Miss Vera Franco

Profession: Dietitian

Registration Number: DT26848

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 24/01/2019 End: 12:30 24/01/2019

Location: Health and Care Professions Tribunal Service, 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

(The following allegation was considered and found proved by a Panel of the Conduct and Competence Committee at the substantive hearing which commenced on 28 January 2018)
While employed as a Dietitian at Humber NHS Foundation Trust:

1. In relation to Service User 5:

a. following an appointment on or around 15 August 2014, you did not:

i. record sufficient details of a face to face dietetic assessment into the Trust's case management system;

ii. request supplements for Service User 5.

iii Not Proved

b. the plan you recommended on 15 August 2014 did not adequately address the service user's needs.

2. In relation to Service User 6:

a. On 28 October 2014, you completed a face to face dietetic assessment and you:

i. Did not weigh the patient;

ii. Did not make a referral to a Speech and Language Therapist within a reasonable timeframe;

iii. Did not record the visit within a reasonable timeframe.

3. In relation to Service User 4 on 10 December 2014 you recorded that you spoke with a nurse about the service user, but your record did not contain sufficient detail about the patient's condition.

4. Not Proved

5. In relation to Service User 2:

a. On 9 December 2014, you failed to record sufficient details of a face to face dietetic assessment on the Trust's case management system

6. In relation to Service User 3, on 10 December 2014 you:

a. conducted a dietetic assessment via telephone when you should have done this in person

b. did not assess and/or identify nutritional risk.

7. The matters described in paragraph 1- 6 constitute misconduct and/or lack of competence.

8. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.

Finding

Preliminary matters:

Service

1. The Panel had sight of notice of today’s hearing, together with the Registrant’s email response dated 18 January 2019. The Panel accepted the advice of the Legal Assessor and determined that in all the circumstances service had been complied with.

Proceeding in absence

2. The Panel accepted the advice of the Legal Assessor, who took the Panel to the Practice Note on Proceeding in the Absence of the Registrant, to Rule 11 and to the guidance given in the cases of R –v- Jones [2003] 1 AC 1, Tait v The Royal College of Veterinary Surgeons [2003] UKPC 34 and GMC –v-  Adeogba [2016] EWCA Civ 162.

3. The Registrant had sent a short email dated 18 January 2019 in which she stated that she had not worked in Dietetics since her return to Portugal and that she did not wish to do so.

4. It was clear from her email dated 18 January 2019 that the Registrant was aware of today’s hearing and yet had decided not to attend. She had not applied to adjourn the proceedings and the Panel concluded that it was unlikely that she would attend if the matter were to be adjourned. The Panel bore in mind that this was a mandatory review and it was in the public interest to proceed expeditiously. Accordingly, the Panel decided to proceed in the absence of the Registrant.

Background:

5. The Registrant was first employed by Humber NHS Foundation Trust ("the Trust") on 2 February 2009. The Registrant was then employed as a Band 5 Dietitian from 1 November 2011. Support was put in place for a period of 8 or 9 months to ensure that the Registrant met the competencies required for working at a Band 5 level. Apart from a period when an administrative problem with her registration, for which she was not responsible, required her to work below a Band 5 level, the Registrant remained working as a Band 5 Dietitian until she resigned from her employment in January 2015. In her role as a Band 5 Dietitian, the Registrant was responsible for a range of non-complex patients, seeing them in both clinics and residential settings. Included in the areas of her practice were nutrition support in adults, non-complex bowel conditions, weight management and some non-complex paediatric cases. She had no managerial responsibilities, but she was expected to support dietetic students on placement.

6. The Registrant was on annual leave in September 2014. During this period, Mrs LM, a Band 6 Dietitian supervised the Registrant. Mrs LM was responsible for overseeing and checking the Registrant's caseload. Issues reflected in the factual particulars alleged against the Registrant in relation to Service User 5 came to light, and this in turn gave rise to Mrs VS, a Professional Lead in Dietetics employed by the Trust, instigating an investigation in which support was provided to the Registrant, including extra supervision. It was alleged by the HCPC that further issues came to light during this period. On 23 January 2015, the Registrant resigned from her post and the matter was referred to the HCPC.

7. The matters found proved at the Substantive Hearing are set out in the allegations listed at the commencement of this determination. 

8. This Panel considered the issues carefully. It listened to and accepted the advice of the Legal Assessor. It paid attention to the HCPC’s Indicative Sanctions Policy.

9. The Panel considered the email from the Registrant dated 18 January 2018 which stated:

“I have done a post degree course in Clinical Nutrition from the Faculty of Medicine of the University of Lisbon.
…..attached a copy of the course’s certificate…
I have not work in Dietetics since I have returned to Portugal and to be honest do not wish to do so”.

The Panel considered the Certificate from the University of Lisbon which was attached.

10. The Panel noted the findings on lack of competence made by the substantive panel of the Conduct and Competence Committee:

28. The Panel is required to say whether the proven facts amount to misconduct or demonstrate a lack of competence on the part of the Registrant. There are some general findings that the Panel considers are relevant to these decisions, namely:

a. With the exception of the matters concerning Service User 5 in particular 1, the shortcomings occurred during a period when additional supervision of, and support for, the Registrant had been put in place.

b. The witnesses who gave evidence before the Panel described the Registrant as a caring person, and there was no suggestion that she failed to perform tasks she was required to undertake wilfully or deliberately. Rather, the impression formed by the Panel was that problems occurred because the Registrant was struggling.

c. The Panel accepts that the Registrant had certain personal difficulties and some health problems during the relevant period. Furthermore, the Panel accepts that to be under investigation and to be subject to enhanced supervision is itself likely to have been stressful. However, the Panel is of the view that these factors cannot excuse shortcomings, not least because of the clear obligation imposed on HCPC registrants to self-limit their professional activities if their personal circumstances are impacting on their ability to perform them adequately.

29. The Panel is of the view that the identified shortcomings were serious. They had the potential to result in harm to the service users concerned. Furthermore, they constituted breaches of the HCPC's Standards of Proficiency for Dietitians. In particular, the following standards were breached:

Standard 1, be able to practise safely and effectively within their scope of practice.

Standard 8, be able to communicate effectively.

Standard 10, be able to maintain records appropriately.

Standard 11, be able to reflect on and review practice.

Standard 12, be able to assure the quality of their practice.

Standard 14, be able to draw on appropriate knowledge and skills to inform practice.

30. The Panel is satisfied that it has been presented with a sufficient sample of the Registrant's professional work to be able to make an assessment of her competence, and having considered the findings has formed the judgement that there was a lack of competence on the part of the Registrant. For the avoidance of doubt, the Panel does not find misconduct.

11. The Panel was aware that it was not bound by the conclusions of the substantive panel as to lack of competence, but in applying its judgment to the material before it, agreed with the reasoning that had been applied and the decision reached.

12. In considering the issue of current impairment the Panel again noted the reasoning of the Substantive Panel, which was as follows:

31. Having found lack of competence arising from events that occurred in the second half of 2014, it is necessary for the Panel to decide if that lack of competence is still impairing the Registrant's fitness to practise as a Dietitian. In making this assessment, the Panel has considered the matter both from the point of view of the personal component and from the point of view of the public component.

32. So far as the personal component is concerned, the following factors are relevant:

a. The Registrant expressed remorse at having jeopardised the well-being of service users. The Panel also took the view there has been limited insight into the extent of her failings. The Panel accepted the evidence of Mrs VS that the Registrant viewed her main problem as being the timeliness of her record keeping, as opposed to any wider failing.

b. Although the Registrant wrote to the HCPC very nearly a year ago stating that she was undertaking a Masters degree course in Clinical Nutrition in her home country, the Panel still has no evidence that she has completed that course of study, still less that the study had been translated into safe and effective practice.

c. The consequence of these matters is that the Panel is unable to find that the shortcomings have been remediated with the inevitable consequence that there would be a risk of repetition of similar failings were the Registrant to be permitted to return to unrestricted practice.

33. The conclusion of the Panel is that, upon consideration of the personal component, the Registrant's fitness to practise is currently impaired.

34. The Panel also found that it is necessary to declare that the Registrant's fitness to practise is impaired in the wider public interest. It is necessary to declare and uphold proper professional standards and it is also necessary to reassure fair minded members of the public who would lose confidence in the profession if a practitioner against whom findings of this sort has been made, and who has not remediated their shortcomings, were to be permitted to return to practise unrestricted.

35. The finding that there is lack of competence currently impairing the Registrant's fitness to practise has the consequence that the lack of competence allegation is well founded with the result that the Panel must proceed to consider the issue of sanction.

13. The Panel was aware that it was not bound by the conclusions of the Substantive Panel as to current impairment, but in applying its judgment to the material before it, agreed with the reasoning that had been applied. Since the Substantive Hearing there had been no new material submitted by the Registrant other than the contents of the email dated 18 January 2019 together with the Certificate attached to it. The Registrant had not produced the material which he Substantive Panel had advised her to present to the reviewing panel, should she wish to return to practise asa a Dietitian namely:

a. Evidence of professional development, particularly with regard to record keeping and time management.

b. Evidence of C.P.D. undertaken.

c. References and testimonials….

d. A reflective piece of writing dealing specifically with her learning arising from the Panel's findings in relation to the allegations.

14. The Registrant had not provided any further material to allay the concerns expressed by the previous Panel. She had indicated that she had not worked in Dietetics since her return to Portugal. The Panel concluded that the Registrant remained impaired by reason of her lack of competence. It appeared that her circumstances remained unchanged. She had not provided any documentary evidence of remediation, nor had she attended this review hearing to provide oral evidence. The Panel could only conclude that there remained a likelihood of repetition of the Registrant’s lack of competence if she were to be allowed to practise unrestricted. Accordingly, the Registrant remained a risk to the public if permitted to practice as a dietitian unrestricted.

15. The Panel also found that public confidence in the profession and the declaring of proper standards of conduct and performance demanded a finding of impairment given the Registrant’s lack of competence and the fact that she had chosen not to attend or demonstrate remediation or insight into the proven allegations.

16. In considering the issue of Sanction, whilst the Panel was aware that it was not bound by the conclusions of the Substantive Panel, it nevertheless agreed with its findings that:

38. In the view of the Panel the aggravating factors of the case were that the service users were put at risk of harm. Furthermore, the shortcomings were not isolated and continued over a lengthy period, including a time when the Registrant was being closely supervised and supported. She has shown limited insight and the Panel has not received evidence of remediation. The mitigating factors are that the problems did not arise because of a wilful disregard for the safety of the service users and she has expressed regret for placing them at risk of harm. Additionally, the Registrant was experiencing some difficult personal circumstances at the relevant time.

39. In the judgement of the Panel the findings against the Registrant are serious, not only because the five service users relevant to the Panel's findings were put at risk of harm, but also because of the future risk of harm to service users given the Panel's expressed view that there is a risk of repetition.

17. The Panel considered whether to make no order or to impose a Caution Order but concluded that this would not be sufficient to protect the public or satisfy the public interest in light of the seriousness of the lack of competence.

18. The Panel considered whether to impose a Conditions of Practice Order but concluded that it was not possible to draft any workable conditions because the Registrant had not demonstrated a willingness to comply. She had indicated that she had not worked in Dietetics since she had returned to Portugal, and that she did not wish to continue with this work. It followed that there was no work that the Registrant was doing to which conditions could apply.

19. The Panel therefore concluded that a Suspension Order was the only appropriate sanction in the circumstances. The Registrant has not completed remedial action to ensure that her lack of competence has been addressed, nor provided any evidence to indicate how the risk to service users which she presents has been addressed in order to prevent a repetition of her failings. 

20. The Panel decided to suspend the Registrant for a further period of 12 months.

 

Order

Order: The Registrar is directed to suspend the registration of Miss Vera Franco for a further period of 12 months on the expiry of the existing order.

Notes

The order imposed today will apply from 28 February 2019.


This order will be reviewed again before its expiry on 28 February 2020.

Hearing History

History of Hearings for Miss Vera Franco

Date Panel Hearing type Outcomes / Status
24/01/2019 Conduct and Competence Committee Review Hearing Suspended
29/01/2018 Conduct and Competence Committee Final Hearing Suspended