Mrs Maria E Barnes

Preliminary Matters

Service and Proceeding in Absence
1. The Panel was satisfied that notice of today’s hearing, dated 18 January 2019, had been properly served on the Registrant in terms of rules 3 and 6 of the Conduct and Competence Committee Procedure Rules. The Panel also had sight of an email from the Registrant dated 12 February 2019 in which she confirmed that she would not be attending today’s hearing because of the stress it would cause. The Panel thereafter considered Mr Stephen’s application to proceed in the Registrant’s absence. The Panel is aware that the discretion to proceed in absence is one which should be exercised with the utmost care and caution. The Registrant did not attend the substantive hearing and is clearly aware of today’s hearing. She has not asked for an adjournment and the Panel has no reason to believe that she would attend at a future date if the matter were adjourned. The Panel is of the view that the Registrant has voluntarily absented herself. This is a mandatory review hearing and the current Order must be reviewed prior to its expiry on 15 March 2019. The Panel has therefore concluded that it is both in the Registrant’s interest and in the public interest to proceed with this review in the Registrant’s absence.

Background
2. On 28 February 2018, a panel of the Conduct and Competence Committee found that the Registrant’s fitness to practise was impaired by reason of her misconduct. The background to this review can be summarised as follows. The Registrant was employed as a Lead Orthoptist for Enhanced and Supplementary Services at Taunton and Somerset NHS Foundation. Her role involved the provision of orthoptic services as an autonomous practitioner, assessing, diagnosing and managing patients who had been referred to the Orthoptic Department (‘the Department’) of the Musgrove Park Hospital. The original panel found that, in relation to approximately 12 patients, the Registrant accessed their personal contact details recorded in NHS patient referrals in order to make unsolicited telephone calls to the patients’ parents and/or guardians and sought to redirect NHS literacy difficulty referrals to her private practice. 

3. That panel also found that the Registrant’s conduct was dishonest and determined that she was impaired by reason of her misconduct. That panel imposed a twelve month Suspension Order.

Today’s Hearing
4. The Panel today is conducting a review of that Suspension Order in terms of Article 30(1) of the Health and Social Work Professions Order 2001.

5. The Panel heard from Mr Stephens who referred to the background of the case and the circumstances which led to the imposition of the Suspension Order. Mr Stephens submitted that the HCPC was of the view that the Registrant’s fitness to practise remained impaired as she had failed to produce any evidence of remediation or reflection because of her limited engagement. He also submitted that the HCPC considered that a Striking Off Order would be appropriate where there was a lack of remediation and given the Registrant has stated that she did not intend to return to practice.

Decision
6. The Panel is mindful that its task today is not to go behind the decision of the previous panel but to determine whether or not the Registrant’s fitness to practise remains impaired and if there is current impairment, what, if any, order should be made when the current order expires. The Panel has considered the submissions of Mr Stephens together with the advice of the Legal Assessor. In reaching a decision, the Panel has exercised its own independent judgement.

7. The Panel first considered whether the Registrant’s fitness to practise is currently impaired. In reaching this decision, the Panel has considered both the personal component and the public component. The previous panel acknowledged that the Registrant had shown a measure of insight into her misconduct and had, to some extent remedied her dishonesty. However it also found that the Registrant had not persuaded them that she would not repeat her actions if placed in a similar situation in the future. In addition, it found that the Registrant had provided no evidence of any detailed reflection on her actions and no insight into the impact of her conduct on patients. This Panel has concluded that, in the absence of any new evidence or information, the Registrant has not addressed the personal component of her misconduct.

8. The Panel has also considered the wider public interest considerations which include the need to protect patients, to declare and uphold proper standards of behaviour and to maintain public confidence in the profession. The Registrant has been found to have acted dishonestly in soliciting privately paid work on the back of NHS referrals. In the absence of evidence of remediation, the Panel has concluded that public confidence in the profession of Orthoptics would be undermined if a finding of impairment were not made in these circumstances.

9.  The Panel has therefore concluded that the Registrant’s fitness to practise remains impaired on both the personal and public components.

10. The Panel next considered the sanctions available to it in ascending order of severity. The Panel is aware that the primary function of any sanction is to address public safety from the perspective of the risk the Registrant may pose to those using or needing her services in the future and determine what degree of public protection is required. The Panel must also give appropriate weight to the wider public interest which includes the deterrent effect on other registrants, the reputation of the profession and public confidence in the regulatory process.

11. The Panel considered that to impose a Caution would not be sufficient to address the wider public interest considerations or to protect the public. The Panel then considered whether a Conditions of Practice Order would be appropriate and sufficient. The Panel considers that given the Registrant is not currently employed as an Orthoptist and the Panel has received no evidence that the Registrant would be able or willing to comply with conditions it could impose, conditions would not be sufficient in these circumstances.

12.  The Panel next considered extending the current Suspension Order. In reaching a decision, the Panel considered the Registrant’s email dated 12 February 2019 in which she expressed her regret at her behaviour and at the impact on the profession, stating “I can understand how the people involved may have been shocked or angered and felt betrayed by my misuse of their personal information”. The Registrant goes on to state that she had decided to cease any aspiration to return to practice, to ensure that she can have no further detrimental effect on the Orthoptic profession. In the Panel’s view, this demonstrates that she is developing insight into her previous failings. The Panel is of the view that the Registrant’s conduct is capable of remediation and not withstanding her stated intention to ‘cease any aspiration to return to practice’ she should be provided with a further opportunity to engage with the fitness to practise process. The Panel has concluded that the appropriate and proportionate sanction would be an extension of the current Suspension Order for a period of twelve months. This would allow the Registrant another opportunity to further develop her insight and provide evidence of remediation.

13. The Panel did consider whether a Striking Off Order would be appropriate. However, the Panel determined that this would be disproportionate at this time in the circumstances given the Registrant appears to be developing insight and where the conduct found proved is remediable.

14. This order will be reviewed prior to its expiry. The Panel considers that a reviewing panel would be greatly assisted by the Registrant actively engaging with the HCPC and attending the hearing. In addition the Panel may be assisted by:
•  A detailed written piece from the Registrant containing reflections on the misconduct, showing insight into the potential and actual effects of the misconduct and its implications for all relevant stakeholders, and for public confidence in the profession and the wider public interest;
•  Testimonials addressing the Registrant’s character and probity;
•  Evidence of any steps taken to maintain the Registrant’s skills including any Continuing Professional Development (CPD) undertaken;
•  Any other evidence that the Registrant may consider to be helpful.

The Panel directs the Registrar to extend the current Suspension Order for a period of twelve months from its expiry in terms of Article 30(1)(a) of the Health and Social Work Professions Order 2001.

The order imposed today will apply from 15 March 2019.
This order will be reviewed again before its expiry on 15 March 2020.

History of Hearings for Mrs Maria E Barnes