Mr Terry J Hindmarch

Profession: Occupational therapist

Registration Number: OT32281

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 28/01/2019 End: 17:00 29/01/2019

Location: Avonmouth House, 6 Avonmouth Street, SE1 6NX

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

Allegation

(As amended at the Final Hearing commencing 18 June 2018)

Whilst registered with the Health and Care Professions Council (HCPC) as an Occupational Therapist, you:

  1. In regards to Service User 1, between 2014 – 2015:

a) delayed handing over vital equipment which had been delivered to the care home;

b) due to your lack of contact with Service User 1, did not recognise significant decline in and / or take action regarding Service User 1’s condition;

c) did not seek timely senior support to handover the equipment and / or  wait for the representative’s handover;

d) did not follow due process for a full manual handling assessment of slings / hoist as Service User 1 had not previously been hoisted;

e) did not provide an accurate verbal handover to support staff;

f) [HCPC offering no evidence]

g) did not provide management with an accurate reflection of Service User 1’s needs;

h) did not follow instructions, which included:

i. [HCPC offering no evidence]

ii. [HCPC offering no evidence]

iii. producing a written timeline.

 

2. In regards to Service User 2, between 2014 – 2015:

a) did not contact and / or record contact with Service User 2 in a timely manner to progress their case;

b) did not maintain adequate case recordings for Service User 2;

c) [HCPC offering no evidence]

d) did not complete an adequate Assessment report for Service User 2 in that it required substantial amendments before it was authorised;

e) [HCPC offering no evidence]

f) [HCPC offering no evidence]

3. In regards to Service User 3, in 2015:

a) did not maintain adequate contact with Service User 3’s family in regards to potential Disability Facilities Grant funding;

b) did not provide adequate information at a case conference meeting at a hospital on 13 March 2015;

c) did not establish and or maintain a therapeutic relationship and / or advocate on behalf of the family through the grant process;

d) [HCPC offering no evidence]

4. In regards to Service User 4:

a) did not record any contact with Service User 4 between 19 May 2015 and 6 August 2015 and / or  maintain adequate records for this Service User.

5. In regards to Service User 5, in 2015:

a) did not contact a district nurse as instructed by your manager;

b) did not make a recommendation about widening the doorway and ramping until 22 June 2015 and / or progress the case in a timely manner;

c) [HCPC offering no evidence]

6. In regards to Service User 6:

a) did not progress Service User 6’s case in a timely manner;

b) did not follow a management instruction not to contact Service User 6 when the case had been transferred to a new worker.

7. In regards to Service User 7, in 2015, you:

a) did not explain eligibility criteria to support your decision not to supply seating to Service User 7; and / or

b) did not provide advice about possible alternative solutions.

8. In regards to Service User 8, on 5 December 2014:

a) made no formal introduction and / or  provide a reason for visiting Service User 8 and / or  display your identification badge;

b) did not explore and / or record exploring Service User 8’s feelings of low mood or suicidal thoughts and / or respond to his suicidal statements;

c) did not ensure that appropriate mental health treatment was sought and / or  was provided to Service User 8.

9. In regards to Service User 9, in June 2015, did not acknowledge and / or record Service User 9’s low mood or suicidal thoughts during his angry outbursts.

10. In regards to Service User 10, in June 2015:

a) produced an Assessment Report for Service User 10 that:

i. contained insufficient and / or incorrect information; and / or

ii. could not be authorised.

11. In regards to Service User 11, in 2015:

a) did not progress Service User 11’s needs for shower equipment;

b) did not evidence the activities you had undertaken in the case recordings;

c) did not undertake and / or  record a follow up visit to Service User 11;

d) left Service User 11 at significant risk when transferring on or off the stair lift and / or accessing the shower facilities.

12. In regards to Service User 12, in 2014:

a) unnecessarily questioned Service User 12 repeatedly;

b) did not end and / or re-arrange the assessment when Service User 12 felt unwell;

c) did not seek advice from the nurse on duty.

13. In regards to Service User 13, in 2014:

a) asked Service User 13 to stand from his chair despite him having no lower garments on;

b) did not identify Service User 13 was spending the majority of his time in the bedroom.

14. In regards to Service User 14, in March 2016:

a) did not follow an instruction from your manager to contact the community nursing team the morning after your visit;

b) did not fully lead the assessment of Service User 14;

c) [HCPC offering no evidence]

d) did not assess and / or  explore Service User 14’s comments in relation to suicide.

15. In regards to Service User 15, in March 2016:

a) did not progress Service User 15’s case in a timely manner in that you did not complete Service User 15’s report following an instruction from your manager;

b) [HCPC offering no evidence]

c) did not communicate the outcomes of Service User 15’s assessment to her housing provider and / or to the Service User.

16. In regards to Service User 16, in 2016:

a) prescribed an unsuitable piece of equipment;

b) did not manage and / or  record the risks to Service User 16 following your allocation of equipment.

17. The matters as set out in paragraphs 1 – 16 constitutes misconduct and / or lack of competence.

18. By reason of your misconduct and / or lack of competence your fitness to practise as an OT is impaired.

Finding

Preliminary Matters

Service in relation to the hearing 18-20 June 2018

1.       The Panel heard that notice in respect of this hearing was sent by first class post to the Registrant’s registered address on 26 March 2018 in accordance with Rules 3 and 6 of the Conduct and Competence Procedure Rules 2003 (The “Rules”).

2.       The Panel heard and accepted the advice of the Legal Assessor and determined that the notice had been served in accordance with the Rules.

Proceeding in the absence of the Registrant 18-20 June 2018

3.       The Presenting Officer invited the Panel to proceed in the absence of the Registrant. She informed the Panel that there had been no engagement with the HCPC from the Registrant at the Investigating Committee stage or thereafter. She drew the Panel’s attention to the following events:                                                                               

•         September 2017, efforts were made by the HCPC to send an email to the Registrant but this could not be delivered.                   

•         16 February 2018, an email was sent to the Registrant at the same email address inviting him to indicate in respect of the period April - August 2018 the non-availability of himself and any representative or witness he would wish to call. No receipt or proof of delivery was available to the Panel.

•         26 March 2018, Notice of Hearing was sent by first class post to the Registrant at his address on the HCPC Register.                                                                                     

•         26 April 2018, the HCPC bundle of hearing documents was sent by Special Delivery to the Registrant at his address on the Register. An identification key was also sent under separate cover on the same occasion.

•         28 April 2018, the Special Delivery packages were collected from the Sunderland Delivery Office and apparently signed for as ‘HINDMSRCH’.

4.       The Presenting Officer referred the Panel to the guidance contained in the HCPTS Practice Note on “Proceeding in the Absence of the Registrant” and submitted that in the circumstances it was appropriate for the Panel to exercise its discretion to proceed on the basis that the Registrant had chosen not to attend the hearing and had voluntarily waived his right to appear. She submitted that the public interest in the expeditious disposal of the Allegation outweighed any disadvantage to the Registrant in proceeding in his absence. She noted that the Registrant had not sought an adjournment and submitted that no useful purpose would be served in adjourning the matter.

5.       The Panel heard and accepted the advice of the Legal Assessor who reminded it of the guidance provided in the cases of R v Jones [2002] UKHL5, Adeogba v the General Medical Council [2016] EWCA Civ 162 and Davies v HCPC [2016] EWHC 1593 (Admin).

6.       The Panel recognised that the discretion to proceed in the absence of a registrant is one which must be exercised with the utmost care and caution and that its decision should be guided by the overarching objective to protect the public. The Panel recognised that it would run counter to that objective if a practitioner could effectively frustrate the process by deliberately failing to engage.

7.       In reaching its decision, the Panel had regard to the nature and circumstances of the Registrant’s behaviour in absenting himself. The Panel considered each of the documents referred to by the Presenting Officer and concluded that there had been no engagement from the Registrant at the Investigating Committee stage or thereafter.

8.       Although the Panel could not be satisfied that emails to the Registrant had been delivered, it was satisfied that the special delivery documents had been collected and concluded that the Registrant was aware of the hearing, had voluntarily absented himself and had waived his right to be present.

9.       The Panel balanced the public interest in the timely disposal of the Allegation with any disadvantage to the Registrant should the hearing proceed in his absence. The Panel also took into account inconvenience to the witnesses in this case, two of whom were already in attendance. The Panel had no reason to believe that, if it were to adjourn the hearing, the Registrant would attend on a subsequent occasion.

10.     For the reasons set out above, the Panel concluded that it would be fair and in the interests of justice to proceed in the absence of the Registrant.

Service in relation to the hearing 29 October - 6 November 2018

11.     The Panel heard that notice in respect of this hearing was sent by first class post to the Registrant’s registered address on 1 August 2018 in accordance with the Rules.

12.     The Panel heard and accepted the advice of the Legal Assessor and determined that the notice had been served in accordance with the Rules.

Proceeding in the absence of the Registrant on 29 October – 6 November 2018

13.     The Presenting Officer invited the Panel to proceed in the absence of the Registrant. She informed the Panel that there had been no engagement with the HCPC from the Registrant in response to the notice of hearing or the subsequent letter dated 30 August 2018 which enclosed a copy of a supplementary bundle.

14.     The Panel noted that the letter of 30 August 2018 was sent to the Registrant by special delivery. The Panel was provided with the tracking documentation for this item which showed that it was collected and signed for on 2 September 2018 by or on behalf of the Registrant.                                                                         

15.     Ms Shameli submitted that in the circumstances it was appropriate for the Panel to exercise its discretion to proceed on the basis that the Registrant had chosen not to attend the hearing and had waived the right to appear. She submitted that the public interest in the expeditious disposal of the Allegation outweighed any disadvantage to the Registrant in proceeding in his absence. She reminded the Panel that the two witnesses who were in attendance to give their evidence were attending the hearing on a second occasion and that it was in their interests for the hearing to proceed.

16.     The Panel heard and accepted the advice of the Legal Assessor.

17.     The Panel recognised that the discretion to proceed in the absence of a registrant is one which must be exercised with the utmost care and caution and that its decision should be guided by the overarching objective to protect the public. The Panel recognised that it would run counter to that objective if a practitioner could effectively frustrate the process by deliberately failing to engage.

18.     In reaching its decision, the Panel considered the documentation and concluded that the Registrant was aware of the reconvened hearing, had voluntarily absented himself and had waived his right to be present.

19.     The Panel balanced the public interest in the timely disposal of the Allegation with any disadvantage to the Registrant should the hearing continue in his absence. The Panel considered that there would be nothing to be gained by any delay, because there was no reason to believe that the Registrant would attend at a later date if the hearing was adjourned. The Panel considered that any prejudice to the Registrant was limited, given that he has not engaged with the HCPC for several years.

20.     For these reasons the Panel concluded that it would be fair and in the interests of justice to proceed in the absence of the Registrant.    

Service in relation to the hearing 28-29 January 2019

21.    The Panel heard that notice in respect of this hearing was sent by first class post to the Registrant’s registered address on 7 December 2018 in accordance with Rules 3 and 6 of the Rules. The notice of hearing was also sent by e-mail dated 7 December 2018.

22.    The Panel accepted the advice of the Legal Assessor and decided that the notice had been served in accordance with the Rules.

 

Proceeding in the absence of the Registrant on 28 January – 29 January 2019

23. Ms Shameli invited the Panel to proceed in the absence of the Registrant. She informed the Panel that there had been no engagement from the Registrant with the HCPC in response to the notice of hearing.

24. Ms Shameli submitted that in the circumstances it was appropriate for the Panel to exercise its discretion to proceed on the basis that the Registrant had chosen not to attend the hearing and had waived the right to appear. She reminded the Panel of the history of the matter. The Registrant had not engaged with the HCPC for several years and the Panel had proceeded in his absence on two previous occasions.

25. The Panel accepted the advice of the Legal Assessor. The Panel had regard to the guidance in the HCPTS practice note and recognised that the discretion to proceed in the absence of a Registrant is one which must be exercised with the utmost care and caution and that its decision should be guided by the overarching objective to protect the public.

26. In reaching its decision, the Panel considered the documentation and concluded that the HCPC had taken reasonable steps to inform the Registrant of the hearing. The Panel considered the history of the case and noted that on two previous occasions the Registrant had not attended this hearing and that he had shown no interest in the case. The hearing had reached its closing stages and there would be no benefit in an adjournment. The Panel concluded that any prejudice to the Registrant was outweighed by the public interest in the expeditious disposal of the case and that the hearing should proceed in the Registrant’s absence.                                                           

Application to Amend Particulars / Offer No Evidence

Application on 18 June 2018

27.     At the outset of the hearing, Ms Shameli applied to amend Particular 2(d), the stem of Particular 3, Particulars 3(b) and (c), the stem of and Particulars 4(a), 5(a), (b) and (c), Particular 6(a), Particular 7, Particular 8(a), Particular 9, Particular 10(a)(ii), Particulars 13(a) and (b), Particulars 14 (a) and (d), Particulars 15 (a) and (c), Particular 16 (a). 

28.     Ms Shameli told the Panel that, by letter dated 28 November 2017, the HCPC had informed the Registrant of its intention to apply at the hearing to make the amendments. She submitted that the proposed amendments would better reflect the evidence and further particularise or clarify the case against the Registrant. Further, they would cause no substantial change to the overall strength of the Allegation and would not prejudice the Registrant.

29.     The Panel heard and accepted the advice of the Legal Assessor.

30.     The Panel was satisfied that the proposed amendments would better reflect the evidence and further particularise or clarify the case against the Registrant. Further, the amendments would cause no substantial change to the overall strength of the Allegation and would not prejudice the Registrant. The Panel allowed the application in respect of each proposed amendment.

31.     Ms Shameli also applied to offer no evidence in respect of Particulars 1(f), 1(h)(i) and (ii), 2(e) and (f), 14(c) and 15(b). She told the Panel that, by letter dated 28 November 2017, the HCPC had informed the Registrant of its intention to apply at the hearing to offer no evidence in respect of those matters.

32.     Ms Shameli told the Panel that the reasons for seeking to offer no evidence in respect of these matters were as follows:

•         Particular 1(f) covered the same issue outlined at Particular 1(d). To proceed with it would be duplicitous;

•         Particulars 1(h)(i) covered the same issue outlined at Particular 1(c). To proceed with it would be duplicitous;

•         Particular 1(h)(ii) covered the same issue outlined at Particular 1(a). To proceed with it would be duplicitous;

•         Particular 2(e) – There was not a realistic prospect of proving this as the witnesses did not provide evidence to establish what the data protection issues or concerns were;

•         Particular 2(f) -There was not a realistic prospect of proving this as the witnesses did not provide sufficient evidence;

•         Particular 14(c) covered the same issues as set out at Particular 14 (a). To proceed with it would be duplicitous.

•         Particular 15(b) had been combined with proposed amendments to Particular 15(a).

33.     The Panel heard and accepted the advice of the Legal Assessor.

34.     The Panel was satisfied that each of the applications to offer no evidence was appropriate and would not prejudice the Registrant or the public interest. For these reasons the Panel allowed the applications.

Application to amend on 1 November 2018

35.     Ms Shameli made a further application to amend the Allegation and offer no evidence on some of the particulars before she closed the case on behalf of the HCPC.

36.     The Panel accepted the advice of the Legal Assessor who confirmed that the Panel had discretion to amend the particulars and to accept the decision of the HCPC to offer no evidence. In the exercise of this discretion the Panel must have regard to the requirement for a fair hearing and should consider whether the amendments prejudice the Registrant. The Panel should also consider the wider public interest and particularly whether amendments are required to avoid any “under charging”. The Legal Assessor referred the Panel to the guidance in the case of PSA v HCPC and Doree [2017] EWCA 319 which confirmed that amendment of an Allegation may be justified even after the evidence had been heard.

37.     Ms Shameli proposed to offer no evidence in respect of Particulars 2(c) and 3(d) and for Particular 5(c) to delete “did not record your clinical reasoning for changing your recommendations to a bariatric bed for Service User 5”. Ms Shameli outlined the evidence given by the HCPC witnesses, which did not provide support for the relevant particulars.

38.     The Panel carefully considered the evidence and was satisfied that the withdrawal of these particulars was appropriate. The Panel was satisfied that the HCPC’s decision was not an under prosecution of the matter, when considered in the context of the matters that remained for the determination by the Panel.

39.     Ms Shameli applied to amend Particular 3(b) to clarify the date of the case conference meeting as 13 March 2015. The Panel decided that this amendment was appropriate. The Registrant was not prejudiced by it because there was no change to the substance of the particular; and the date was drawn from the witness evidence and documents served on him in advance of the hearing.

40.     The proposed amendment to Particular 3(c) was to add “and/or maintain”. This was based on the witness evidence which indicated that the Registrant had established a therapeutic relationship with Service User 3, but had not maintained it. The Panel considered that the proposed amendment changed and widened the scope of the particular. Given that the Registrant had no prior notice of the proposed amendment and that it was proposed in response to the evidence, the Panel considered that it was prejudicial to the Registrant.

41.     The Panel considered the public interest that there should not be undercharging, but did not consider that an amendment to Particular 3(c) was required, taking into account the other particulars in relation to Service User 3 and the scope of the Allegation. The Panel therefore did not allow the amendment to Particular 3(c).

42.     The proposed amendment to Particular 4(a) was to amend the relevant dates from “19 May and 6 August 2015” to “13 November 2014 and 10 March 2015”. The reference in this particular to the year 2015 appeared to be a typographical error because the records showed that there was a gap in contact between 19 May and 6 August 2014. Despite this gap, LR confirmed in her evidence that there was no criticism of the Registrant in this regard because no contact or records of contact would have been expected at that time. As originally drafted the particular was directed to this period of time rather than to the longer period of time between 13 November 2014 and 10 March 2015.

43.     The Panel considered that the proposed amendment was a significant change to Particular 4(a) and that it would be unfair and prejudicial to the Registrant to allow the amendment, particularly because LR’s evidence did not support the particular in relation to the gap in the records between May and August 2014. The Panel was satisfied that there would not be any undercharging and therefore did not allow the amendment to Particular 4(a).

44.     The Panel considered Ms Shameli’s proposal to amend Particular 6 to add “and/or his family”, but decided not to allow the amendment. The proposed amendment would widen the scope of the particular and was prejudicial to the Registrant. The Panel noted that the witness statements served on the Registrant did not refer to the management instruction extending to members of Service User 6’s family and that there was nothing in the papers served on him in advance of the hearing which would have alerted him to the wider suggested scope of the matters alleged.

45.     The Panel agreed to Ms Shameli’s proposal to amend Particular 8 to correct an error in the stem of the particular in relation to the date. The Panel was satisfied that there was no prejudice to the Registrant and considered that it was in the public interest that this matter was properly prosecuted.

46.     The Panel did not allow the proposed amendment to Particular 16(a) to add the word “ordered” or to Particular 16(b) to add the word “ordering”. The Panel considered that these proposed amendments widened the scope of the particular in a way which would create unfairness for the Registrant. The Panel considered the public interest, but was satisfied that the refusal to allow these proposed amendments would not amount to an under prosecution. 

Hearing in Private

47.     Ms Shameli informed the Panel that the evidence in this case included references to the health of the Registrant and also to private matters concerning a third party. She asked the Panel to direct, in accordance with Rule 10(1)(a) of the Rules, that such matters should be heard in private session.

48.     The Panel heard and accepted the advice of the Legal Assessor.

49.     The Panel was satisfied that hearing those matters in private session would be in the interests of justice and would protect the private lives of the persons concerned.

Background

50.     The Registrant was employed by Sunderland City Council as a Community Occupational Therapist (OT) in the Community Occupational Therapy Team within Adult Social Care. He was in the role from 28 February 2005 until he resigned on 21 July 2016. He was responsible for adults and children with physical disabilities.

51.     After concerns were raised in relation to the Registrant’s practice by his managers, he was made subject to informal capability procedures in January 2015. The concerns related to delays in the progression of casework; lack of case recording; concerns regarding judgment and application of sound clinical reasoning and an unwillingness / inability to follow management instruction. The informal capability procedure was originally for 12 weeks but, during the process, further concerns were raised in relation to the Registrant’s practice and on 30 March 2015, he was made subject to formal capability procedures. In June 2015, the formal capability procedure was reviewed and further concerns were raised by service users. In July 2015, the Registrant was suspended pending a formal investigation into the concerns. KW, Team Manager, was appointed by EA, Service Manager, to conduct an investigation into the concerns about the Registrant. The concerns were referred to the employer’s disciplinary panel in November 2015.

52.     The Registrant returned to work in January 2016 after a period of sick leave but due to taking annual leave, he started back at work in February 2016. He had a four week phased return to work where his caseload was reduced and he was provided further support. On 22 February 2016, the Registrant commenced a development plan to assist him with improving his practice. The contents of the development plan had been agreed between the Registrant, EA and LR, Team Manager, on 5 February 2016.

53.     In March 2016, LR raised further concerns in relation to the Registrant’s practice after he had undertaken a visit with a service user and had not taken action in a timely manner. The concerns led to the Registrant being suspended and EA conducting an investigation. During the course of the investigation, two further concerns were raised with EA in relation to Service User 15 and Service User 16. The concerns relating to the Registrant’s practice included: failure to follow management instruction; lack of case recording; delay in the progression of casework; concern regarding judgment and application of sound clinical reasoning.

Decision on Facts

54.     In considering the particulars, the Panel accepted the advice of the Legal Assessor and applied the principles that the burden of proving the facts is on the HCPC and that any fact alleged may only be found proved if the Panel is satisfied on the balance of probabilities that it is more likely than not to be correct.

55.     In reaching its decisions, the Panel had careful regard to all the documentary and oral evidence put before it and to the submissions of Ms Shameli on behalf of the HCPC.

56.     The Panel heard oral evidence from KW, who carried out the Trust’s investigation into the matters alleged. The Panel considered her to be an experienced OT who was well informed about the issues in this case. For the most part her evidence was hearsay. She was able to provide some useful background. However, she appeared to struggle with some of the questions; not address the actual questions; and occasionally she descended into speculation. She was clearer and more consistent when she had direct knowledge of the issues.

57.     At the reconvened hearing the Panel heard evidence from EA and found her to be a credible witness. She gave her answers in a clear manner, and demonstrated a professional, thorough approach, making concessions when appropriate. The Panel had no reason to doubt the reliability of her evidence.

58.     The Panel also heard evidence from LR who was a credible, clear and concise witness. LR had a good recollection of the relevant events and first-hand knowledge in relation to a significant number of the particulars. The Panel found LR to be a fair and balanced witness. She acknowledged when she did not have knowledge, and, when appropriate she readily made concessions.

59.     The Panel found that the evidence of the HCPC witnesses was generally consistent. Where there were differences between them, the Panel preferred the evidence of LR and EA to KW because of their direct involvement.

60.     The documentary evidence before the Panel included:

·       a substantial bundle which included witness statements and associated exhibits including service user records.

·       copies of other emails referred to in evidence

·       a supplementary bundle with further Service User records

 

Particular 1

61.     Service User 1 (SU1) was allocated to the Registrant on 29 August 2014. Following an assessment the Registrant recommended the trial of a one way glide sheet to assist with transfers, a further assessment on seating and a commode. A suitable commode was ordered on 27 November 2014.

62.     On 2 February 2015 the Registrant visited SU1 and identified that the one way glide sheet did not meet her needs. An alternative to the one way glide sheet was a four way glide sheet which is a double layer of material to easily move the service user around the bed. The four way glide sheet was ordered for SU1 after a visit from the Registrant and a sales representative on 16 March 2015.

63.     On 29 May 2015 the care home informed EA that SU1’s condition was deteriorating rapidly, the glide sheet had been delivered about six weeks previously and the commode had been delivered “the previous week”. The staff had been unable to use this equipment because its use had not been demonstrated or “handed over” by an OT.

64.     The Panel found Particular 1(a) proved only in relation to the four way glide sheet. In relation to the four way glide sheet the Registrant’s explanation to EA was that he needed specialist support from the supplier for the handover and that he had booked an appointment with the supplier for 12 June 2015. The Registrant’s belief that the senior OT staff did not have the skill to assist him to hand over the four way glide sheet was incorrect. The Registrant should have arranged a handover with the assistance of senior OT staff soon after he knew the glide sheet had been delivered.

65.     The glide sheet was vital equipment because the manual handling issues in relation to the SU1 needed to be resolved quickly because of the risk to staff members and SU1. The Registrant delayed in handing over the glide sheet because of his lack of knowledge of when it was delivered. He should have been checking on delivery. He also failed to ask about the ability of senior OT staff to assist him.

66.     The Panel did not find Particular 1(a) proved in relation to the commode because the care home reported on 29 May 2015 that the equipment had been delivered the previous week and there is no evidence that the Registrant had been informed that this delivery had taken place.

67.     The Panel found both limbs of Particular 1(b) proved. The Panel reviewed records for SU1 and noted the absence of any recorded contact between 19 March 2015 and 28 May 2015. The Panel inferred that there was no contact between the Registrant and SU1 between these dates. There was evidence that there had been a significant decline in SU1’s condition as this was reported by the care home and recorded in the Registrant’s written note on 28 May 2015 and in the e-mail from the care home to EA dated 29 May 2015. Because the Registrant was unaware of this decline, he took no action regarding SU1’s condition.

68.     The Panel found the first limb of Particular 1(c) proved because the Registrant did not seek timely senior support to hand over the four way glide sheet. When he was interviewed by KW he said, in relation to the glide sheet, “I didn’t want to bother the others”.

69.     Instead, the Registrant chose to arrange for a delayed handover by a representative of the glide sheet supplier. Therefore, the alternative in Particular 1(c) is not proved.

70.     The Panel found Particular 1(d) proved. The due process for manual handling using a hoist would have first required an assessment of SU1’s mobility and whether there were any alternatives to using a hoist. From the Registrant’s dealings with the care home, he incorrectly assumed that SU1 had already been hoisted.  He therefore did not follow the due process which required an initial assessment.

71.     The Panel found Particular 1(e) proved. There was no accurate verbal handover to staff. However, because the Registrant did not hand over any equipment to support staff, there could never had been a verbal handover. Therefore, there is no criticism of the Registrant.

72.     The Panel found Particular 1(g) proved by the evidence of EA. The Registrant spoke to EA about SU1 prior to the contact from the care home on 29 May 2015. The Registrant asked for support to supply a sling like the customer already had, implying that the customer was already being hoisted, which was not the case.

73.     The Panel found Particular 1(h)(iii) proved. On 1 June 2015 EA sent an e-mail to the Registrant asking for a clear timeline of his actions on the case to date. On 2 June, the Registrant replied by e-mail asking if EA was in the office that afternoon to discuss the case. She replied on 2 June, asking him to e-mail her the information she needed. The Registrant did not provide the written timeline. LR had a conversation with the Registrant to chase up the timeline. The Registrant’s response was that that he would “get that to her”, but he never did so.

Particular 2

74.     Service User 2 (SU2) was allocated to the Registrant on 21 January 2014. LR identified that the case in relation to SU2 had not been progressed by the Registrant in a timely manner when she went through his caseload.

75.     The Panel found Particular 2(a) proved in respect both of failing to contact and of failing to record contact. The Panel reviewed the records for SU2 and noted that there were gaps in recorded contact. There was a gap in recorded contact between 28 January 2015 and 18 March 2015. KW would have expected to see contact recorded over this period of time to progress a possible property move. When the Registrant visited SU2’s property on 23 March 2015 he was advised by a neighbour that SU2 had moved.

76.     The Panel drew the inference from the lack of recorded contact together with the evidence of the difficulties that arose in connection with SU2’s property move that the Registrant had not contacted SU2 in a timely manner to progress her case.

77.     The Panel found Particular 2(b) proved to the extent that the Registrant did not make an adequate recording of his telephone contact with SU2. The Registrant made a record on 18 March 2015 of a “3rd telephone contact to customer, unable to contact customer”. There is no record of the date or time of two previous telephone contacts (the Panel inferred from the note that there were two other telephone calls when he was unable to contact the customer).

78.     The Panel found Particular 2(d) not proved. Although KW confirmed her hearsay evidence that she understood the Registrant did not complete an adequate Assessment report for SU2, LR who was directly involved, had no recollection of the details of this particular. There was no documentary evidence to support this particular. The HCPC has not discharged the burden of proof.

Particular 3

79.     The Registrant was involved in making assessments of Service User 3 (SU3) for equipment and adaptations to his house and in supporting the family with applications for grants and charitable funding applications.

80.     The Panel found Particular 3(a) not proved. Although KW criticised the Registrant for inadequate contact regarding disabilities facilities grant (DFG) funding, the Panel preferred the oral evidence of LR who did not make criticism of the Registrant with regard to his contact with SU3 in in connection with potential DFG funding. She stated it was clear from the start that SU3 would not qualify for DFG funding because of his income.

81.     The Panel found Particular 3(b) proved by the evidence of LR. She explained that she attended the case conference on 13 March 2015 in an observational capacity. At the meeting the Registrant was unable to explain the DFG and associated financial assessment process. LR stepped in herself to provide the detail. LR’s evidence is confirmed by the Registrant’s case note which states that LR provided the information about funding for adaptations.

82.     The Panel found both limbs of Particular 3(c) not proved. The evidence of LR was that the Registrant initially established a therapeutic relationship with SU3. This relationship later dwindled, but it had been established.

83.     In relation to advocacy on behalf of the family, the evidence of the HCPC witnesses was that the Registrant did not sufficiently explore other grant options and left the family to deal with this themselves. However, having reviewed the case notes, the Panel noted that the Registrant did advocate on behalf of the family on 3 June 2015. It is recorded that he spoke with a charity representative. The Panel concluded that the HCPC has not discharged the burden of proving that the Registrant did not advocate on behalf of the family.

Particular 4

84.     Service User 4 (SU4) was allocated to the Registrant who identified needs in relation to seating and bed transfers on 23 April 2014. SU4 also had difficulties accessing his property and was awaiting provision of a wheelchair due to severe difficulties and pain on walking.

85.     The Panel found Particular 4(a) partially proved. It was not proved in relation to the failure to record contact between 19 May 2015 and 6 August 2015. The Panel was not provided with the notes for SU4 for 2015 and the HCPC therefore has not discharged the burden of proof.

86.     However, Particular 4(a) was proved in relation to the more general failure to maintain adequate records for SU4. LR gave examples in her witness statement of inadequate recording. In particular, the Registrant made a case note on 13 November 2014 in which he stated that “quote for custom back rest received following several requests over the past two weeks”. However, there was no documented evidence of those earlier phone calls. The standard of the record also contained limited detail. For example, it appeared that there were occasions where the Registrant had contact with SU4 or a relative, but these were not always recorded.

Particular 5

87.     Service User 5 (SU5) was referred to the service regarding a rehousing issue. The Registrant was considering the option of a specialist turning bed for SU5, but he did not have the right to prescribe this equipment. Such a specialist piece of equipment required joint working with a  District Nurse.

88.     The Panel found Particular 5(a) proved by the evidence of LR who confirmed that she gave a direct instruction on 16 February 2015 to the Registrant for him to contact a District Nurse. The Registrant thought that he did not need to contact a District Nurse, but LR told the Registrant that he did not have prescriber rights for a turning bed. After the initial conversation the Registrant told LR that the matter was “in hand” but it was not.

90.     The case was reallocated to another OT in September 2015 and throughout that time from February 2015 the Registrant had not complied with the instruction to contact a District Nurse and SU5 did not have a suitable bed.

91.     The Panel found both limbs of Particular 5(b) proved. The Registrant knew that SU5 had accepted a new property on 8 June 2015 and that an assessment was required because the property would need to be adapted for a wheelchair user. The Registrant’s report recommending alterations to the property was authorised by LR on 22 June 2015. In her oral evidence, LR stated that she remembered receiving the report on 22 June and that she had authorised it on the same day.

92.     The Registrant did not progress the case in a timely manner. The expectation was that the Registrant would complete the report making the recommendation for alterations within 48 hours of the customer agreeing to take the property on 8 June 2015. The Registrant would also be expected to prioritise this task because the property would otherwise not be accessible for SU5.

93.     The Panel found Particular 5(c) proved in that the Registrant did not order a bed for SU5. No bed was ordered according to the records, and on 13 August 2015 the SU5 told another OT that he was expecting a new bed but had not heard anything. LR’s witness statement confirms that a bed was later provided by another OT.

Particular 6

94.     Service User 6 (SU6) was allocated to the Registrant on 22 August 2014 for an assessment in relation to difficulties with access, bathing and toileting.

95.     The Panel carefully reviewed the documentary evidence in relation to SU6 and found Particular 6(a) proved. Although the Registrant carried out a home visit and assessment of SU6 on 15 September 2014 the Panel identified that there was a lack of timely progress on the case from 15 September 2014 until SU6 was admitted to hospital in or about early December 2014. An example is that there is no record or evidence of any action by the Registrant with respect to SU6’s toileting difficulties. The Panel inferred that the toileting difficulties mentioned in August 2014 had not been addressed because on 19 November 2014 a further referral for a toilet assessment was made by SU6’s Social Worker.

96.     The Panel found Particular 6(b) not proved. The Registrant was overheard by a Team Manager speaking to SU6’s wife. This conversation took place after the Registrant had been given an instruction not to contact SU6. There had been a confusing situation in that on 13 March 2015 the Registrant had not been entirely removed from the case of SU6. He had been told to complete the seating assessment for SU6 that he had started; and his conversation with SU6’s wife on 13 March 2015 related to that seating assessment.

97.     The Panel did not accept Ms Shameli’s submission that Particular 6(b) was proved because all communication with SU6 was through his wife. There was a record of a direct communication with SU6 on 12 September 2014.

Particular 7

98.     The Registrant was responsible for arranging and completing an assessment in relation to the needs of Service User 7 (SU7). An appointment was arranged for 23 April 2015 and this was attended by CS, a Senior Practitioner. This was an audit visit under the Registrant’s performance plan.

99.     The evidence to support Particulars 7 (a) and (b) was hearsay evidence in the form of an e-mail from CS to KW dated 8 October 2015. The Panel considered carefully the weight it should give to this hearsay evidence. The Panel noted that the e-mail was not contemporaneous with the relevant events. Nevertheless, the Panel considered that the evidence in the e-mail was reliable. The Registrant has not challenged the evidence of CS. CS was aware that he was providing information to a manager in respect of a capability process. The information provided by CS was also consistent with other evidence including the evidence of LR that the Registrant generally found it difficult when he needed to decline the provision of equipment to a service user.

100.    The Panel found Particulars 7(a) and 7(b) proved by the hearsay evidence of CS. The Registrant did not explain to SU7 why she did not meet the criteria for the provision of seating and did not advise her about possible alternative solutions.

Particular 8

101.    Service User 8 (SU8) was allocated to the Registrant on 27 November 2014. SU8 was experiencing difficulties with stairs and bathing.

102.    The Panel found Particular 8(a) not proved. KW referred in her witness statement to the interview with LS, a Team Manager. This was heresay evidence of the alleged failures. However, the record of that interview did not include any evidence to support Particular 8(a). The HCPC has not therefore discharged the burden of proof.

103.    The Panel found all three limbs of Particular 8(b) not proved. LS made a note of her audit visit with the Registrant for SU8. In this note the Registrant asked SU8 how he was feeling. The Panel therefore found that the HCPC has not proved that the Registrant did not explore SU8’s low mood, nor did he fail to record this.

104.    In his note of the visit the Registrant made a record for 5 December 2014 that he (referring to SU8) discussed that he had attempted suicide, but “was not feeling suicidal at this time”. Therefore as there was a discussion, the HCPC has not proved that the Registrant did not respond to his suicidal statements.

105.    The Panel found Particular 8(c) proved in that the Registrant did not take any action with regard to ensuring that mental health treatment was sought or provided for SU8. However, the Panel did not make a criticism of the Registrant in the absence of reliable evidence that mental health treatment was actually appropriate or required for SU8 at that time.

Particular 9

106.    The Registrant visited Service User 9 (SU9) with LR, who was attending to conduct an audit.

107.    The Panel found Particular 9 proved by the evidence of LR and the documentary evidence. LR told the Panel that during the visit SU9 on more than one occasion stated that he wanted to kill himself. The Registrant did not acknowledge these statements. He did nothing, but moved the conversation on to continue his initial interview and assessment. The Registrant did not make a record of SU9’s low mood or suicidal thoughts in his case note for the visit.

Particular 10

108.    The Registrant submitted an assessment report to LR for Service User 10 (SU10) recommending the provision of a riser/recliner chair. Although the report prepared by the Registrant in June 2015 was no longer available, LR remembered that she could not authorise the report because there was insufficient information to justify the provision of a chair. She worked with the Registrant to improve the report. LR’s recollection was consistent with the documentary evidence which showed that the report was not authorised until 5 July 2015.

109.    The Panel found Particular 10(a)(i) partly proved in that the assessment report prepared by the Registrant contained insufficient information. However, there was no evidence that it contained incorrect information. Particular 10(a)(ii) was found proved because the report could not be authorised in June 2015.

Particular 11

110.    Service User 11 (SU11) was referred to the Service due to difficulties in transferring on and off an existing stairlift; and allocated to the Registrant on 2 September 2014.

111.    SU11 came to the attention of KW because he was subsequently referred to her team. A physiotherapist carried out a visit on 27 October 2015. At that time a new stair lift was in place. The physiotherapist identified that SU11 could not flex his hips or knees to attain a safe sitting position on the stairlift. When sitting on the stairlift he was catching his legs and he then had difficulty getting off the stairlift at the top of the stairs. The physiotherapist was highly concerned about the risks inherent in the adaptation provided. SU11 also did not have shower seating: he had fixed a plank of wood across his commode.

112.    The Panel found Particular 11(a) proved by the evidence of KW and the documentary evidence. The shower seating was not provided to SU11 until 3 November 2015 by another worker, which was a year after the Registrant undertook his assessment of SU11. The Registrant identified the need for a shower assessment. His intention was to carry out the assessment after the new stairlift was installed. However, he made no progress with the assessment after the installation of the stairlift and in October 2015 SU11 was showering by perching on a plank of wood in the shower area.

113.    The Panel found Particular 11(b) not proved. There was no evidence that the Registrant had undertaken activities that were not recorded.

114.    The Panel found Particular 11(c) proved in that the Registrant did not undertake a follow up visit to SU11. There was therefore no assessment of the adequacy or safety of the newly installed stairlift. The Panel did not find that the Registrant did not record a follow up visit. No visit took place so one could not have been recorded.

115.    The Panel found Particular 11(d) proved by the evidence of KW and the documentary evidence. KW explained the risks in relation to the Registrant’s failure to follow up or review the installation of the new stairlift and his failure to assess the shower facilities. These risks remained apparent when SU11 was assessed by the physiotherapist in October 2015. They had not been considered or assessed by the Registrant.

Particular 12

116.    Service User 12 (SU12) was allocated to the Registrant on 3 November 2014. The Registrant conducted a visit with SU12 on 7 November 2014.

117.    The Panel found Particulars 12(a), 12(b) and 12(c) not proved. Ms Shameli referred the Panel to the hearsay evidence of an interview with LS in relation to SU12. However, the Panel found no reliable evidence to confirm that the service user described in LS’s interview was SU12.

Particular 13 

118.    The Registrant carried out a visit with Service User 13 on 13 May 2014. This visit was attended by MG, Team Leader as an audit visit.

119.    The Panel found Particular 13(a) not proved because there was no reliable evidence that SU13 had no lower garments on at the time of the visit. MG described SU13 as being in a state of undress, but gave no details. When he was interviewed, the Registrant agreed that he had asked SU13 to mobilise. He added that SU13 was wearing a dressing gown, but he did not state that SU13 had no lower garments on.

110.    The Panel found Particular 13(b) not proved because there was no reliable evidence that SU13 was spending the majority of his time in the bedroom. There was evidence that MG believed that SU13 spent the majority of time in his bedroom because of the facilities for SU13 to eat and drink in the bedroom. However, when he was interviewed the Registrant said that SU13 told him that he lived downstairs and watched films downstairs. The HCPC has not proved that SU13 spent the majority of his time in the bedroom.

Particular 14

111.    Service User 14 (SU14) was referred to the Service because he had problems with seating and his posture. On 15 March 2016 the Registrant undertook an assessment of SU14 whilst he was being observed by LR as part of his personal development plan. SU14 said that he had not slept for 15 days. He said that he had contacted his General Practitioner the previous night because he was in pain and that pain relief was prescribed.

112.    The Panel found Particular 14(a) proved by LR’s evidence. LR was clear that she gave an instruction to the Registrant to contact the community nursing team the morning after the visit on 15 March 2016. There was no doubt in her mind about this. The Registrant did not contact the District Nurse in the morning on 16 March 2016. When LR asked the Registrant about this in the afternoon on 16 March 2016 his response was that it was on his “to do” list.

113.    The Panel found Particular 14(b) proved by LR’s evidence. The Registrant did not lead the assessment of SU14. He gave up trying to engage and started to write down a list of medications. He stopped asking questions, so that LR had to take over. LR described this as a competency issue.

114.    The Panel found Particular 14(d) proved by LR’s evidence. LR assessed and explored SU14’s suicidal thoughts at the appointment on 15 March 2016 because the Registrant had not done so. The Registrant had ignored the issue and moved on in his assessment.

Particular 15

115.    Service User 15 (SU15) was allocated to the Registrant on 22 February 2016. The Registrant conducted a visit for a Housing Verification Assessment on 3 March 2016.

116.    The Panel found Particular 15(a) proved by LR’s evidence. On 14 March 2016 LR instructed the Registrant to complete the Housing Verification Assessment report that day. He did not do so and went on leave or was suspended on 17 March 2016. On 23 March SU15’s husband made a complaint that the report had not been completed. The failure to comply with LR’s instruction was a failure to complete the report in a timely manner.

117.    The Panel found Particular 15(c) partially proved. In relation to the communication of the outcome of the assessment to the housing provider, Particular 15(c) was proved. The written report was not available to the housing provider prior to the Registrant’s suspension. The housing provider’s response to queries from SU15’s husband showed no awareness by them of the outcome of the report. The Panel inferred from the evidence that the Registrant did not communicate the outcome of the assessment to the housing provider.

118.    In relation to the communication of the outcome of the assessment to SU15 the Panel did not find Particular 15(c) proved. The Registrant had not sent the final report to SU15 because he left before the report was completed. However, there was no evidence that he did not informally communicate the outcome of the assessment in another way to SU15. SU15 appeared to know the outcome of the assessment, at least in part, because her husband had contacted the OT Department as he had been expecting a Housing Report.

Particular 16

119.    Service User 16 (SU16) was allocated to the Registrant on 25 February 2016 and the Registrant carried out a bathing assessment on 11 March 2016.

120.    The Panel found Particular 16(a) not proved because the HCPC did not prove that the Registrant had prescribed the bath lift for SU16. He had ordered it from the equipment store for the purpose of assessing its suitability. At that time, the Registrant had not decided that the bath lift was suitable for SU16.

121.    The Panel found Particular 16(b) not proved because the bath lift had not been allocated to SU16. The equipment would not have been allocated to SU16 until an assessment had taken place and no assessment had yet taken place.

Decision on Grounds

122.      The question of whether the proven facts constitute misconduct or a lack of competence is for the judgment of the Panel and there is no burden or standard of proof.

123.      There is no statutory definition of misconduct, but the Panel had accepted the advice of the Legal Assessor and had regard to the guidance of Lord Clyde in Roylance v GMC (No2) [2001] 1 AC 311: “Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a …practitioner in the particular circumstances…” The conduct must be serious in that it falls well below the required standards.

124.      The Panel considered the context and the surrounding circumstances. The Registrant had been subject to a number of capability procedures and investigations during his employment from 2005. The issues were similar to those investigated by KW and EA. There would be periods of improvement, but his performance declined when he was given more issues to address or complex cases. The Registrant had been assessed as incapable of progression to a senior practitioner level.

125.      The Registrant not only had the benefit of regular monthly supervision, but also more frequent clinical case load monitoring during the informal and formal capability process. During the informal and formal capability process the Registrant was able to have one to one conversations with senior practitioners to give him a balanced view of how he performed. He was offered the opportunity of case file audits to give him points of improvement and feedback. He was encouraged to undertake reflective practice, and a number of different senior practitioners audited his cases and observed him during visits to service users. Objectives were set for the Registrant to achieve in respect of the competencies that were expected. At times during the capability process the Registrant was allocated a reduced caseload.

 

126.      The Panel first considered Particulars 1(e) and 8(c). The Panel found these particulars proved, but that there was no criticism of the Registrant. The Panel found that these particulars did not constitute misconduct or a lack of competence.

 

127.      The Panel noted that there was a pattern of repeated failures in relation to the following areas of skills or ability in basic occupational therapy tasks: progression of cases in a timely manner or without delay; assessment of service users; identification and appropriate response to risk; effective or accurate communication; and case recording. The Panel identified the following:

  • Instances of failure to progress cases in a timely manner or without delay - Particulars 1(a),1(c), 2(a), 5(b), 5(c), 6(a), 11(a), 11(c), 15(a);
  • Instances of failures in assessment of service users - Particulars 1(d), 9, 10(a)(i) and (ii), 14(b), 14(d);
  • Instances of identification and appropriate response to risk to service users – Particulars 1(b), 1(d), 9, 11(d);
  • Instances of failure to communicate effectively or accurately -Particulars 1(g), 3(b), 7(a), 7(b), 15(c);
  • Instances of failures in case recording – Particulars 2(a), 2(b), 4(a), 9.

128.      The proved particulars where there is a criticism of the Registrant relate to twelve different service users. The Panel was satisfied that these service users represent a fair sample of the Registrant’s work.

 

129.      The Panel also identified instances where the Registrant failed to follow a management instruction: Particulars 1(h)(iii), 5(a), 14(a) and 15(a).

 

130.      The Panel considered the HCPC Standards of Conduct, Performance and Ethics (2012 edition and 2016 edition). In respect of the period of time covered by the 2012 edition the Panel identified that the Registrant was in breach of standard 1, standard 7 and standard 10. In respect of the period of time covered by the 2016 edition the Panel did not identify any particular standards. The Panel also considered the HCPC Standards of Proficiency for Occupational Therapists (2013 edition) Standards 1, 2, 3, 4, 8, 9, 10, 14 and 15.

 

131.      In the Panel’s judgment the proved and partially proved Particulars 1(a), 1(b), 1(c), 1(d), 1(g), 2(a), 2(b), 3(b), 4(a), 5(b), 5(c), 6(a), 7(a), 7(b), 9, 10(a)(i), 10(a)(ii), 11(a), 11(c), 11(d), 14(b), 14(d), and 15(c) constituted a lack of competence. The Panel identified a pattern of failures in a number of areas of basic skills and ability for OTs. These failures occurred despite the supervision and support which was in place to assist the Registrant. The Registrant engaged with the capability process, but the failures nevertheless continued.

 

132.      In the Panel’s judgment the failure to follow management instructions, Particulars 1(h)(iii), 5(a), 14(a), and 15(a) did not constitute a lack of competence. The instructions given to the Registrant were straightforward and the Panel was satisfied that in each case he understood the instructions he was given. He chose not to prioritise the instructions. In the Panel’s judgment this was not due to a lack of knowledge, skill or ability. In the Panel’s judgment these particulars, considered both individually and cumulatively were sufficiently serious to constitute misconduct. There was no reason why the Registrant could not have complied timeously with the instructions.

 

133.      The failure to produce a written timeline was unacceptable because the Registrant disregarded the instruction from two separate team managers. However, this failure to follow instructions did not have a direct impact for SU1. In respect of SU5, the failure to contact a District Nurse was serious and persisted over a period of weeks. The delay in appropriate action had the consequence that SU5 was left without an appropriate bed. In respect of SU14 there was an urgency in the instruction to the Registrant to contact the community nursing team. The consequence of the delay was that the community nursing team would be unable to provide a bed for SU14 leading to another sleepless night for him. For SU15 the instruction was given by LR because of the urgency of the report for SU15.

 

134.      In the Panel’s view, the Registrant’s conduct in failing to follow management instructions fell well below the standard of an OT and constituted misconduct.

 

Decision on Impairment 

 

135.      The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note “Finding that Fitness to Practise is Impaired”. The Panel considered the Registrant’s fitness to practise at today’s date.

 

136.      The Panel had no information from the Registrant about his current position in relation to the Allegation.

 

137.      The Panel considered the available evidence relating to the level of the Registrant’s insight at the time of the events including the Registrant’s responses in interviews and his reflective statements. The Panel noted that the Registrant appeared in the interviews to recognise some of his deficiencies and that there were some signs that he was developing insight. However, this limited insight did not lead to sustained improvement in the areas of deficiency he appeared to accept. Furthermore, the Panel noted that the Registrant did not in the interviews or in his reflective statements take full responsibility for the deficiencies. For example, there was a tendency to blame the computer system, the fact that he was being observed, or other people for the failures. The Panel concluded that at the time of the events the Registrant had limited insight.

 

138.      The Registrant did not engage with the HCPC at the Investigating Committee stage and has not engaged thereafter. There was therefore no evidence that he has developed insight.

 

139.      The Panel considered that the lack of competence was remediable. The misconduct was also potentially remediable, although this might be more difficult. There was no evidence that the Registrant had taken any steps to remedy either the lack of competence or the misconduct.

 

140.      In the Panel’s judgment there was a high risk of repetition in respect of both the competence matters and the misconduct. The Registrant was provided with extensive support and was subject to lengthy periods of performance management. This support and monitoring was in place during the period covered by the Allegation. Despite the efforts made by the Registrant’s managers, the pattern of the Registrant’s failures in respect of the progression of cases, adequacy of assessment, communication, addressing risk and case recording continued over lengthy period of time from 2014-2016. There was also a repetition of the failure to follow management instruction, indicating that possibly there may be an attitudinal issue.

 

141.      The Panel therefore concluded that the Registrant’s fitness to practice is impaired on the basis of the personal component.

 

142.      The Panel next considered the wider public policy considerations including the need to protect service users, uphold standards of conduct and behaviour and maintain public confidence in the profession and the regulatory process.

 

143.      The Panel noted that there were potential risks of harm to service users. One example which would be of concern to informed members of the public was SU11. The physiotherapist identified that SU11 was at risk of harm both in relation to the stairlift and in relation to the shower facilities. These were risks that should have been identified by the Registrant at a much earlier date. The description of SU11 perching on a plank of wood placed across the commode in order to shower was particularly concerning and would be regarded as entirely unacceptable by a member of the public.

 

144.      Members of the public would also have serious concerns about the Registrant’s multiple and repeated failures in basic occupational therapy tasks over a sustained period of time. The failure to follow management instructions undermines public confidence in the Registrant and has the potential to undermine confidence in the profession. Public confidence in the profession and the regulatory process would be undermined if the Registrant was not judged to be impaired.

 

145.      The Panel concluded that the Registrant’s fitness to practise is impaired on the basis of the public component.

 

Decision on Sanction

 

146.      The Panel heard submissions from Ms Shameli.

 

147.      In considering which, if any, sanction to impose the Panel accepted the advice of the Legal Assessor and had regard to the HCPC Indicative Sanctions Policy (ISP).

 

148.      The Panel reminded itself that the purpose of imposing a sanction is not to punish the practitioner, but to protect the public and the wider public interest. The Panel ensured that it acted proportionately, and in particular it sought to balance the interests of the public with those of the Registrant, and imposed the sanction which was the least restrictive in the circumstances commensurate with its duty of protection.

 

149.      The Panel decided that the aggravating features were:

  • despite managerial support and assistance there was a pattern of failures over a lengthy period of time;
  • wide ranging deficiencies involving a large number of service users;
  • the failure to follow managerial instructions was deliberate;
  • service users were placed at risk of harm;
  • the Registrant’s failure to engage with the HCPC over several years giving the appearance that he is not interested;
  • the Registrant’s limited insight, tendency to blame others and not take responsibility for his actions.

 

150.      The Panel decided that the mitigating features were:

  • some limited recognition of some of the deficiencies;
  • some health and personal issues.

 

151.      The Panel considered the option of taking no action, but decided that this exceptional outcome was not appropriate given the seriousness of the lack of competence and the misconduct. The option of mediation is not relevant in the circumstances of this case.

 

152.      The Panel next considered a Caution Order. The Panel did not consider that the guidance in the ISP for Caution Orders applied. In particular the Panel have found that there is a high risk of repetition and that the Registrant has limited insight. A Caution Order would also not be sufficient to address the wider public interest considerations because of the ongoing need to protect service users.

 

153.      The Panel next considered a Conditions of Practice Order. The Panel decided that this option would not be sufficient or appropriate. The Registrant has not engaged with the HCPC and has not demonstrated a sufficient level of insight for conditions to be appropriate. The Panel has found that there were persistent failings which put service users at risk of harm. The Panel did not have sufficient confidence that the Registrant would comply with conditions or that conditions would currently be sufficient to prevent the risk of repetition. Further, the Panel has no information about the Registrant’s circumstances and was not able to formulate realistic, workable and verifiable conditions.

 

154.      In reaching its decision to reject the option of a Conditions of Practice Order the Panel was aware of the implications of this decision for the Registrant. A more severe sanction would prevent the Registrant working as an OT for a period of time and might have an impact on the Registrant financially and professionally. The Panel took into account the Registrant’s interests, but decided that they were outweighed by the need to protect the public and by the wider public interest considerations.

 

155.      The Panel next considered the option of a Suspension Order. A Suspension Order would prevent the Registrant working as an OT while he was suspended and would guard against the risk of repetition. A Suspension Order would be sufficient to protect the public.

 

156.      The Panel considered whether a Suspension Order was a sufficiently severe sanction to act as a deterrent effect to other Registrants and to maintain public confidence in the Profession and the regulator. A Suspension Order would mark the seriousness of the Registrant’s misconduct, while allowing the prospect of a future return to practice if the Registrant is able to provide evidence relating to his insight, remediation and the risk of repetition to persuade a reviewing Panel that he is fit to practise as an OT.

 

157.      The Panel noted that the majority of the proved particulars constitute a lack of competence. If these matters had been considered alone the highest available sanction would be a Suspension Order. A Suspension Order was the appropriate and proportionate sanction in respect of these matters, given the findings of the Panel in paragraphs 129 and 134 above and the aggravating features.

 

158.      The Panel next gave careful consideration to its finding of misconduct. The Panel considered that the consequences of the Registrant’s failure to follow instructions was at the lower end of the scale of seriousness. There was no actual harm to service users. Although the failure to follow management instructions was deliberate, the Panel also found that this misconduct was potentially remediable. Earlier in this decision the Panel noted the possibility that the Registrant may have an attitudinal issue, but there was insufficient evidence for the Panel to reach a view on this matter. In summary, the Panel did not consider that the misconduct in this case was so serious that a Suspension Order would be insufficient to mark its gravity.

 

159.      The Panel considered the more restrictive sanction of a Striking Off Order, but decided that it would be disproportionate. It would be disproportionate because of the mitigating factors, the fact that the lack of competence and misconduct is potentially remediable, and because a Suspension Order is sufficient to protect the public and to maintain confidence in the profession and the regulatory process.

 

160.      The Panel decided that the appropriate length of time for the Suspension Order was 12 months. This period was proportionate and sufficient to mark the seriousness of the Registrant’s lack of competence and misconduct. It would also allow sufficient time to give the Registrant the opportunity to begin the process of remediating his deficiencies and to prepare evidence for a Review Panel. The Suspension Order will be reviewed before it expires.

161.      The Panel therefore decided that the appropriate and proportionate Order is a Suspension Order for a period of 12 months.

162.      A future Reviewing Panel may be assisted by:

(a)    a reflective statement from the Registrant focussed on the deficiencies as found by the Panel and how he intends to remedy them;

(b)    a timetabled plan for remediation and any evidence of remediation;

(c)     an update on the Registrant’s employment or work arrangements and any testimonials or references;

(d)    evidence that the Registrant has kept his skills and knowledge up to date (continuing professional development - CPD).

 

 

Order

Order: The Registrar is directed to suspend the Registration of Terry J Hindmarch for a period of twelve months from the date this Order takes effect.

Notes

Interim Order

162.      Ms Shameli made an application that in the absence of the Registrant the Panel should hear an application for an Interim Suspension Order. She referred the Panel to the Notice of Hearing dated 7 December 2018 which informed the Registrant that an application might be made. The Panel decided that the Registrant had been notified that an application might be made. The Panel next considered that it was appropriate to proceed in the absence of the Registrant. He has waived his right to attend the hearing and there would be no purpose in an adjournment. Ms Shameli made an application for an Interim Suspension Order for a maximum period of eighteen months on the ground that it was necessary for the protection of the public and was otherwise in the public interest. The Panel accepted the advice of the Legal Assessor. The Panel decided that an interim order was necessary for the protection of the public. The Panel has identified a risk of repetition and a potential risk to the public which is ongoing. The Panel also considered that an interim order was otherwise in the public interest. A member of the public would be shocked or troubled to learn that there was no restriction in place. The Panel decided to make an Interim Suspension Order for a period of eighteen months, the maximum duration, to allow sufficient time for the disposal of any appeal.

  1. The Panel decided that the Registrant had been notified that an application might be made. The Panel next considered that it was appropriate to proceed in the absence of the Registrant. He has waived his right to attend the hearing and there would be no purpose in an adjournment.
  1. Ms Shameli made an application for an Interim Suspension Order for a maximum period of eighteen months on the ground that it was necessary for the protection of the public and was otherwise in the public interest.
  1. The Panel accepted the advice of the Legal Assessor.
  1. The Panel decided that an interim order was necessary for the protection of the public. The Panel has identified a risk of repetition and a potential risk to the public which is ongoing. The Panel also considered that an interim order was otherwise in the public interest. A member of the public would be shocked or troubled to learn that there was no restriction in place.
  1. The Panel did not consider that the risks in this case could be addressed by an Interim Conditions of Practice Order because of its findings in relation to the level of the Registrant’s insight and the Panel’s lack of confidence that conditions would be sufficient to protect the public.

Hearing History

History of Hearings for Mr Terry J Hindmarch

Date Panel Hearing type Outcomes / Status
28/01/2019 Conduct and Competence Committee Final Hearing Suspended
29/10/2018 Conduct and Competence Committee Final Hearing Adjourned part heard