Miss Catherine J Kirk

Profession: Physiotherapist

Registration Number: PH95870

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 18/06/2019 End: 13:00 18/06/2019

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

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

During the course of your employment as a Physiotherapist with The Children’s Trust, you:

 

1) Did not ensure the safety of Child Patients in physiotherapy sessions in that you:

 

a) On or around 10 April 2013, caused and / or did not take appropriate steps to prevent harm to Child A, in that you:

i. Did not ensure that the seat of a stationary bike was secure before use;

ii. Did not adequately assess the risk involved prior to the session described in Paragraph 1 (a)(i).

 

b) On or around 14 June 2013, caused and / or did not take appropriate steps to prevent harm to Child B, in that you:

i. did not appropriately supervise the session;

ii. did not adequately assess the risk involved prior to the session described in Paragraph 1 (b)(i).

 

c) On or around 06 December 2013, caused and / or did not take appropriate steps to prevent harm to Child C, in that you:

i. did not ensure the Child was supported when you changed positions;

ii. Did not adequately assess the risk involved prior to the session described in Paragraph 1 (c)(i).

 

d) On or around 10 June 2014, caused and / or did not take appropriate steps to prevent harm to Child D, in that you:

i. did not appropriately supervise the session;

ii. did not adequately assess the risk involved prior to the session described in Paragraph 1 (d)(i).

 

e) On or around 01 October 2014, caused and / or did not take appropriate steps to prevent harm to Child E, in that you:

i. did not appropriately supervise the session;

ii. did not adequately assess the risk involved prior to the session described in Paragraph 1 (e)(i).

 

f) On or around 13 April 2015, 28 April 2015 and 26 August 2015, caused and / or did not take appropriate steps to prevent harm to Child F, in that you:

i. did not appropriately supervise the sessions;

ii. did not adequately assess the risk involved prior to the sessions described in Paragraph 1 (f)(i).

 

g) Not proved.

 

h) On or around 18 September 2015, caused and / or did not take appropriate steps to prevent harm to Child H, in that you:

i. did not appropriately supervise the session;

ii. did not adequately assess the risk involved in the assessment described in Paragraph 1 (h)(i).

 

i) On or around 22 September 2015, caused and / or did not take appropriate steps to prevent Child I from falling, in that you:

i. Initiated an activity which was inappropriate for Child I’s level of ability

ii. did not adequately assess the risk involved in the assessment described in Paragraph 1 (i)(i).

 

j) On or around 01 March 2016, caused and / or did not take appropriate steps to prevent harm to Child J, in that you:

i. did not appropriately supervise the session and / or ensure that a physiotherapy assistant was present.

ii. did not adequately assess the risk involved prior to the session described in Paragraph 1 (j)(i).

 

k) On or around 08 April 2016, caused and / or did not take appropriate steps to prevent harm to Child K, in that you:

i. directed him to move from the floor to a plinth and

ii. did not adequately assess the risk involved prior to the activity.

 

l) On or around 27 April 2016, caused and / or did not take appropriate steps to prevent harm to Child L, in that you:

i. directed her to close her eyes whilst on a moving inclined treadmill; and

ii. did not adequately assess the risk involved prior to the session described in Paragraph 1(l)(i).

 

m) On or around 13 June 2016, you caused and / or did not take appropriate steps to prevent harm to Child M, in that you:

i. directed the physiotherapy assistant not to support the Child;

ii. Initiated an activity which was inappropriate for Child M’s level of ability; and

iii. did not adequately assess the risk involved prior to the session described in Paragraph 1 (m) (i) – (ii).

 

2) The matters described in Paragraph 1 (a) – (m) constitute misconduct and / or lack of competence.

 

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

Finding

Preliminary Matters:

Service of Notice

1. The Panel had information before it that Notice of today’s hearing dated 20 May 2019 was sent to the Registrant’s address on the Register on the same date by first class post. The Panel was satisfied that service had been effected in accordance with Rules 3 and 6 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules).

Proceeding in the Registrant’s Absence

2. Ms Ktisti, on behalf of the HCPC, applied for the Panel to proceed today. She informed the Panel that an email from the Registrant’s representative dated 13 June 2019 confirms that the Registrant will not be attending today.  

3. Ms Ktisti reminded the Panel that the Registrant is aware of the hearing, that the Order expires on 18 July 2019 and in light of that imminent expiry, it is in the public interest to proceed.

4. The Panel took into account the HCPTS Practice Note entitled “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor. The Panel was aware that the discretion to proceed in the absence of a Registrant should be exercised with the utmost care and caution. The Panel took into account that the email from the Registrant’s representative dated 13 June 2019 confirms that the Registrant will not being attending today, and states that she is currently based in Italy teaching English as a foreign language. The email then sets out some submissions for the Panel to consider when it carries out its review. 

5. The Panel was of the view that the Registrant has voluntarily waived her right to attend the hearing.  The Panel took into account the potential disadvantage to the Registrant if it were to proceed. However, the Panel was satisfied that this would be minimal, taking into account her position, and the representations which have been sent to the Panel.  In light of these circumstances, the Panel was satisfied that it is in the public interest, as well as being fair, for today’s review to proceed expeditiously.

6. The Panel therefore decided to proceed today.

Background:

7. The Registrant was appointed as a Highly Specialist Physiotherapist at The Children’s Trust (“the Trust”) from 20 May 2013. During her initial 6 month probationary period (from May 2013 to November 2013) it was observed by her line manager, SM, that: there were aspects of her work that she was struggling with at times; her thinking was muddled; she required help from SM to identify the patient’s problems and to create effective treatment plans; she did not appear to demonstrate an ability to learn; and continually needed the same support. However, it was also noted that the Registrant had “a fantastic attitude”; that she “tried so hard to improve” and that she “was a fantastic team member who was very positive towards change and improving her practice”.

8. On 18 November 2013 the Registrant’s probationary period was extended to 28 February 2014 as there were still some concerns about her clinical reasoning and her ability to put into practice suggestions for improvement. There were also concerns about her time management which caused therapy sessions to overrun.

9. At the review meeting on 28 February 2014 it was noted that there were still issues concerning her clinical reasoning so it was decided to implement a Performance Improvement Plan (“PIP”), which commenced on 24 March 2014. The Registrant was required to: improve her clinical abilities/treatment plans; submit reports on time; ensure good time management for a caseload of four children; arrive and finish work on time; work on her communication issues; and improve her hydrotherapy skills.

10. The PIP was reviewed in June, July, and September 2014, with a final review taking place on 17 October 2014. It was noted at that final review that, although there had been some improvements, the Registrant still required significant support considering that she had been employed as a Highly Specialist Physiotherapist. Accordingly, after discussions, the Registrant agreed to occupy a lower graded Band 6 Specialist Physiotherapist post.

11. There were no issues with the Registrant’s practice from January 2015 to May 2016. Her caseload returned to normal levels and she did not receive any additional support during this period. However, it came to the attention of the Physiotherapy Professional Lead at the Trust at the time (JR) that a number of children had been involved with incidents where they had fallen, or had injured themselves, during sessions with the Registrant. These incidents had been documented by the Registrant, as required, in incident report forms, which not only detailed events where, say, a child had fallen and hurt themselves, but also near misses, where something could have gone wrong due to poor procedure and therefore the child had the potential to be harmed.

12. One such incident involved Child L (Allegation 1 (l)). The Registrant had asked the child to close her eyes whilst walking on an inclined, moving treadmill. This resulted in her overbalancing although the Registrant managed to catch the child, preventing any harm. Following this incident it was decided, on 26 May 2016 that the Registrant should be made subject to a new PIP. The principal objective of the PIP was that there should be no falls during any of the Registrant’s sessions.

13. Following a further incident which involved Child M (Allegation 1(m) – where the child had fallen off a  plinth),  an  investigation was commenced by the Trust into all incidents where children under the Registrant’s immediate supervision had fallen or were injured during her treatment sessions with them. That investigation was carried out by the Nursing Manager, LK. In the meantime, the Registrant’s work was to be supervised at all times by another physiotherapist. The matter was also reported to the HCPC. A disciplinary meeting was arranged following that investigation but before it took place the Registrant resigned her post on 31 August 2016. The concerns raised as a result of that investigation are detailed in Allegations 1(a) to 1(m).

14. The children that the Registrant had responsibility for were largely children with brain injuries which affected and limited their mobility and/or understanding and their ability to save themselves from injury should their position change.

Decision:

15. Ms Ktisti submitted that, in light of the lack of any evidence from the Registrant to address the concerns found since the substantive hearing, or to evidence improvement, the Registrant remains impaired. Ms Ktisti submitted that the extension of the Conditions of Practice Order for a further 12 month period would be appropriate in order to protect the public as well as to uphold the wider public interest.

16. The Panel took into account the email from the Registrant’s representative dated 13 June 2019 which states as follows:

“As the Panel will be aware from the HCPC bundle the Registrant was not working as a physiotherapist at the time of her final hearing in 2018. The Registrant has not worked as a physiotherapist since her final hearing and she is currently based in Italy teaching English as a foreign language. The Conditions of Practice have therefore not been engaged. The Registrant asks the Panel to extend the existing Conditions of Practice for a further year.”

17. The Panel was of the view that, by implication, the submission on behalf of the Registrant accepts that her current fitness to practice remains impaired.

18. The Panel accepted the advice of the Legal Assessor.

19. The Panel was aware that its purpose today was to conduct a comprehensive review of the Registrant’s fitness to return to unrestricted practice and considered the HCPTS Practice Note entitled “Review of Article 30 Sanction Orders”.

20. The Panel must exercise its own independent judgement with regard to impairment.

21. With regard to the Registrant’s insight and remediation, the Panel noted the Substantive Panel’s observation a year ago in 2018:

“67.The Panel noted that in her unsigned statement the Registrant went on to reflect at great length about her failings, what areas of her practice she needed to address and what she would do differently, sufficient to persuade the Panel that the Registrant has developed insight into what she has done and how she can improve her practice. However, it also notes that she has not practised as a physiotherapist since August 2016 and therefore has had no opportunity to put her new-found awareness into practice. On that basis alone the Panel considers that, as her practice was clearly impaired in August 2016, she remains currently impaired on account of her lack of competence in relation to the Personal component.

68.The Panel then moved on to consider the Public component. The Panel notes that the Registrant’s actions had either caused harm, or had the potential to cause harm, to a particularly vulnerable group of children who had significant health issues. Although no serious injuries resulted, the risk of harm was significant and the Panel considered that the Registrant’s lack of competence was such that the need to declare and uphold professional standards and maintain public confidence in the profession would be undermined if a finding of impairment were not made in these circumstances. A right-minded member of the public, with full knowledge of all of the circumstances would be concerned if a finding of current impairment were not made.

69. Accordingly, the Panel concluded that the Registrant was impaired in relation to both the Personal and the Public components.”

22. The Registrant has not practiced as a Physiotherapist since the  substantive hearing and therefore there is no evidence that  the Registrant has taken steps in a practice setting to address the lack of competence found proved or of any evidence about steps taken to maintain her professional skills and knowledge since the substantive hearing. These factors led the Panel to conclude that the Registrant remains currently impaired on account of her lack of competence in respect of the personal component.

23. With regard to wider public interest which includes public confidence in the profession, the Panel was of the view that in light of the concerns which have not been addressed, and the consequent risk to patient safety, the Panel was satisfied that a fully informed and fair minded member of the public would be concerned if the Registrant were returned to unrestricted practice. The Panel was therefore satisfied that the need to maintain public confidence in the profession and to uphold proper standards, would be undermined if a finding of impairment were not made in the particular circumstances of this case.

24. The Panel therefore found that the Registrant’s fitness to practice remains impaired in respect of the personal and public components.

25. The Panel next went on to consider sanction, and took into account the Indicative Sanctions Policy (ISP). The Panel bore in mind that sanction is a matter for its own independent judgment, and that the purpose of a sanction is not to punish the Registrant but to protect the public and uphold the wider public interest. Further, any sanction must be proportionate, so that any order that it makes must be the least restrictive order necessary to protect the public interest, including public protection. 

26. The Registrant’s lack of competence was serious in nature, and furthermore, the Registrant has not demonstrated an improvement in her practice since the concerns found proved. Therefore, the Panel concluded that a Caution Order would be inappropriate and insufficient to protect the public and meet the public interest.

27. The Panel next considered a Conditions of Practice Order. Para. 33 of the ISP states that:

“Conditions will rarely be effective unless the registrant is genuinely committed to resolving the issues they seek to address and can be trusted to make a determined effort to do so. Therefore, conditions of practice are unlikely to be suitable in cases:
where the registrant has failed to engage with the fitness to practise process, lacks insight or denies any wrongdoing…”

28. The previous substantive panel considered the Registrant to have developed insight, and decided that she could be expected to comply with Conditions. Despite the Registrant’s current plans which do not involve physiotherapy, the Panel had no reason to believe that the Registrant could not be expected to comply with Conditions, and by implication from the submissions on her behalf, she is considering returning to practice. The Panel decided that Conditions could be drafted which would be workable and appropriate.

29. The Panel considered the current Conditions and was satisfied that they were workable, proportionate and sufficient to protect the public, and uphold the public interest.

30. The Panel did consider imposing a Suspension Order in this case, but concluded that this would be disproportionate, considering the insight which the Registrant demonstrated at the substantive hearing, as well as her indication of her willingness to comply with the current Conditions of Practice Order. In light of these factors, the Panel decided that it would be proportionate to extend the current Conditions of Practice for a period of 12 months from the date on which it would otherwise have expired.

Order

Order: The Registrar is directed to annotate the HCPC Register to show that, for a period of one year from the date that this Order takes effect (“the Operative Date”), you, Catherine J Kirk, must comply with the following conditions of practice:

1. You must place yourself and remain under the supervision of a Physiotherapist registered as such by the HCPC (at Band 7 or above), and supply full details of your supervisor to the HCPC within 7 days of taking up employment as a Physiotherapist. You must attend upon that supervisor as required and follow their advice and recommendations.

2. Before providing any physiotherapy treatment to children and young people with neurological conditions, you must first discuss with your supervisor your assessment of the patient and your proposed treatment plan. This discussion must include the identification and management of the potential risks to the patient.

3. You must work with your workplace supervisor to formulate a Personal Development Plan designed to address the deficiencies in the following areas of your practice:

A. Risk Management;

B. Clinical Reasoning;

4. Within three months of taking up any physiotherapy post you must forward a copy of your Personal Development Plan (PDP) to the HCPC.

5. You must meet with your workplace supervisor on a monthly basis to consider your progress towards achieving the aims set out in your PDP.

6. You must allow workplace supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your PDP.

7. You must provide a detailed report from your workplace supervisor commenting on your practice as a Physiotherapist and the progress you have made in achieving the aims of your PDP, one month prior to any hearing to review this Order.

8. You must allow your supervisor to contact the HCPC to report any concerns with your practice as a Physiotherapist.

9. You must promptly inform the HCPC if you are appointed, or cease to be employed, as a Physiotherapist by any employer.

10. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

11. You must inform the following parties that your registration is subject to these conditions:

A. Any organisation or person employing or contracting with you to undertake professional work;

B. Any agency you are registered with or apply to be registered with as a Physiotherapist (at the time of application);

C. Any prospective employer, seeking to employ you as a Physiotherapist, (at the time of your application).

Notes


The order imposed today will apply from 18 July 2019.

This order will be reviewed again before its expiry on 18 July 2020.

Hearing History

History of Hearings for Miss Catherine J Kirk

Date Panel Hearing type Outcomes / Status
18/06/2019 Conduct and Competence Committee Review Hearing Conditions of Practice
18/06/2018 Conduct and Competence Committee Final Hearing Conditions of Practice