Mrs Margaret E Ndini-Smith

Profession: Physiotherapist

Registration Number: PH52577

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 20/06/2019 End: 12:30 20/06/2019

Location: The 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 Kent Community Health NHS Foundation Trust:

1. In the case of Service User A, you;

a) did not adequately complete SMART goals and/or an appropriate aim on Service User A’s programmes;

b) gave Service User A inappropriate and/or unsafe exercises for Service User A’s condition.

2. In the case of Service User B, you;

a) did not adequately complete Service User B’s programme;

b) did not produce a report for the tribunal in a timely way as requested; and/or

c) did not complete the report for the Tribunal in adequate detail.

3. In the case of Service User C, you:

a) did not complete the baseline assessment pre operatively;

b) did not complete a post-surgery report and/or assessment in a timely manner;

c) did not complete an adequate programme for Service User C.

4. In the case of Service User D, you;

a) did not adequately clarify the presenting difficulty on the case notes;

b) did not adequately summarise and/or conclude the outcome of the assessment on the case notes;

5. In the cases of Service User E and Service User F, you;

a) did not adequately record background history in the case report;

b) did not record an adequate analysis and/or clinical reasoning in the case report;

c) did not adequately record advice and/or strategies to assist the Children in the case report.

6. In the case of Service User G, you;

a) did not adequately clarify the reasons for the referral to the physiotherapy department in the case report;

b) did not adequately record the motor developmental milestones in the case report;

c) did not adequately provide evidence to support your clinical reasoning in the case report.

7. In the case of Service User H, you;

a) did not provide adequate evidence to support your clinical reasoning in the case report;

b) did not make it clear what specialist physiotherapy intervention was being recommended in the case report;

c) did not adequately clarify what was meant by 'walker's group referral' in the case report;

d) did not adequately identify Service User H’s next treatment steps in their support programme.

8. In the case of Service User I, you;

a) [Not Proved]

b) commented on Service User I’s cognitive ability which was outside of your professional remit;

c) did not adequately interpret and/or clarify the joint measurements in the case report.

9. In the case of Service User J, you;

a) did not record who Service User J had been referred by in the case report;

b) did not record why Service User J had been referred to the Physiotherapy department in the case report;

c) [Not Proved]

10. In the case of Service User K, you;

a) did not provide an adequate summary of Service User K’s clinical difficulty and/or need in the case report;

b) did not complete the case report.

11. In the case of Service User L, you;

a) did not adequately provide a full analysis in the case report;

b) did not clearly set out the next treatment steps in the case report;

c) did not record a follow up appointment in the case report.

12. In the case of Service User M, you stated in Service User M’s report that the service user scored well for the activity levels of the Chailey assessment which was incorrect.

13. The matters set out in paragraphs 1 - 12 constitute lack of competence.

14. By reason of your lack of competence your fitness to practise is impaired.

Finding

Preliminary Matters

Service

1. The Panel had sight of the notice of hearing, which had been sent to the Registrant on 20 May 2019 at her registered address. The Panel determined that service had been complied with in accordance with the requirements of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003.

Proceeding in absence

2. The Panel accepted the advice of the Legal Assessor, who took the Panel to Rule 11 and to the guidance given in the cases of Jones (2003) 1 AC 1 and GMC v Adeogba [2016] EWCA Civ 162.

3. The Panel was provided with an email, dated 18 June 2019, from the Registrant’s legal representative to the HCPC, which said:

“The Registrant intends no disrespect to the Panel but she is not attending the review hearing and will not be represented … She has no objection to the hearing proceeding in her absence”.

4. The Panel concluded from this that the Registrant had absented herself voluntarily and did not want an adjournment of the hearing today. The Panel concluded that it was in the public interest for the matter to be heard expeditiously and decided to proceed in her absence.

Proceeding in private

5. In the email of 18 June 2018, the Registrant’s representative requested that some of their representations be kept in private as they related to the Registrant’s health. Ms Senior did not object to that course. The Panel was satisfied that it would be right for those parts of the evidence to remain in private to protect the Registrant’s private life, in accordance with Rule 10.
 
Background

6. The Registrant was employed by East Sussex Hospital Trust in 2001 as a Band 7, and then Band 6, Clinical Specialist Physiotherapist working with babies and young children. Concerns about the Registrant’s practice were raised in August 2013, as a result of which the Registrant was subject to informal and then formal capability procedures, including a Performance Improvement Plan (PIP), between 2013 and 2015. The Registrant was referred to the HCPC by the Trust.

7. The Registrant admitted the allegation, save for particulars 1(b), 8(b) and 9(c). All particulars were found proved by the substantive panel save for 8(a) and 9(c), which were found not proved. The matters found proved related to the Registrant’s failure to adequately complete records and documentation in relation to vulnerable service users, together with a lack of adequate reasoning, analysis, clarification, and timely completion of important documentation that was relied upon by fellow health professionals, colleagues, parents and tribunals.

8. In concluding that the matters found proved amounted to lack of competence the substantive panel said:

“The Registrant failed to adequately complete important aspects of documentation in respect of vulnerable Service Users. The Registrant admits, and the Panel found proved, a lack of adequate reasoning, recording, analysis, clarification and timely completion of important documentation relied upon by fellow health professionals, colleagues, parents and tribunals. That documentation is essential for the safe and appropriate care of Service Users and the Registrant’s failures were serious and placed Service Users at potential risk of harm”.

9. In finding the Registrant’s fitness to practise to be impaired, the substantive panel said:

“the Panel [who] accept that the Registrant is genuinely remorseful and has apologised for her actions. It is noted that the Registrant seemed to rely heavily upon verbal communication with colleague and Service Users, and tended to minimise the importance of written reports and documentation. Whilst the Registrant clearly grasped the importance of communication, the Panel has concerns that she did not appear to have fully developed insight into the significance for Service Users and her colleagues of failing to keep accurate written and electronic records and to provide adequate and timely written and electronic records, clinical analysis and reasoning. For example, she said that most parents simply folded up her reports and put them in their pockets without reading them. The Registrant did not appear to fully appreciate the seriousness of, and risks presented by, her actions. The Registrant has not taken action to remedy her particular failings and there was a lack of evidence of any remediation of those failings.

The Panel found that the lack of competence could be remedied by the Registrant provided that she fully and properly reflects on her actions and addresses the particular failings admitted and found proved in respect of her practice. She has not done so. The Panel finds from the Registrant’s evidence that she has actively simply taken steps to avoid similar professional roles. In all the circumstances, the Panel determined that the Registrant continues to present a real risk of repetition of the failures found proved, placing Service Users at unwarranted risk of harm in the future.

As to the wider public interest, the Panel is mindful of the need to protect Service Users and the reputation of, and confidence in, the profession and the regulator. The Registrant’s failings are serious and the Panel is not satisfied that the Registrant will not repeat them. In the absence of fully developed insight and sufficient evidence of remediation, the Panel is satisfied that on both the personal and public components of impairment, the Registrant is currently impaired”.

10. In reaching its decision on sanction, the substantive panel said:

“The mitigating factors are the fact that no Service Users were in fact harmed. The Registrant recognised the problems in her practice when drawn to her attention and acknowledged that the concerns engaged questions of professional standards. The Registrant has expressed genuine remorse. She has developed partial insight into the matters that have brought her to this hearing. Her failings are remediable. She has been working in a Band 6 Physiotherapy role and has produced testimonials and evidence from colleagues who spoke well of her practice since leaving the Trust.

The aggravating features are that the Panel has found the Registrant’s fitness to practise is impaired on both personal and the public grounds. The Registrant’s failings placed Service Users at risk of harm, particularly Service User A. The Registrant has not taken action or shown any particular evidence of remedying her failings. She has still not developed full and mature insight into her failings. There is still a real risk of repetition of the failures found proved.

In deciding what sanction, if any, to impose, the Panel has reminded itself that the purpose of sanctions is not to be punitive but to protect service users and the public interest, although a sanction may have a punitive effect. The Panel has taken into account the principle of proportionality, balancing the interests of the public with those of the Registrant.

The Panel has concluded that in the light of the seriousness of the allegation and the risk of harm to Service Users, a sanction is required. Further, the Panel does not consider that a Caution Order or Mediation is a proportionate or an appropriate response in this case.

The Panel did consider whether to impose a period of suspension. It carefully considered all of the evidence and its findings of fact. It considered all of the matters put forward by the Registrant and concluded that in these particular circumstances a sanction of suspension would not be rehabilitative and be merely punitive.

The Panel went on to consider a Conditions of Practice Order …

The Registrant has not fully addressed her failings and she has not been tested in a similar environment to that for which the Panel found her fitness to practise impaired. However, in this case no Service Users were in fact harmed. The Registrant has been working in Intermediate Care Units since leaving the Trust. There have been no complaints of her performance since then and colleagues have spoken well of her practice. She has engaged with this regulatory hearing throughout and the Panel considers that if a Conditions of Practice Order is imposed the Registrant can be trusted to comply with the conditions. She has said in evidence that she will not work in Children’s Services again but the Panel needs to be satisfied that before the Registrant can properly and fully practise unrestricted as a Registered Physiotherapist, she is capable of working in such an environment. The Panel has therefore determined to impose a Conditions of Practice Order for a period of 12 months in order that the Registrant can take the time to address and remedy her failings.”

11.  The substantive panel imposed the following Conditions of Practice:

1. Within six months of the Operative Date you must:

A. satisfactorily complete a one day face to face taught Medico Legal Report Writing Course recognised by the Chartered Society of Physiotherapy (CSP).

B. forward a copy of your certificate to the HCPC following completion of this course.

2. You must confine your professional practice to Adult Services.

3. You must place yourself and remain under the supervision of a Registered Physiotherapist workplace supervisor, registered by the HCPC and supply details of your supervisor to the HCPC within four weeks of the commencement of employment. You must attend upon that supervisor as required and follow their advice and recommendations.

4. You must promptly inform the HCPC if you take up any future employment.

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

6. 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 (at the time of application); and

C. any prospective employer (at the time of your application).

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

• Report writing (to comply with CSP and employers organisations standards)

• Setting SMART goals.

• Analysis of presenting problems

• Clinical reasoning of your assessment to formulate a treatment plan.

8. Within three months of commencing employment you must forward a copy of your Personal Development Plan to the HCPC.

9. You must meet with your supervisor on a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.

10. You must allow your supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.

11. You must submit to the HCPC within six months of commencing employment a reflective practice log showing at least one example of each of the following areas;

• Following completion of the medico-legal report writing course;

• Referral report to an external agency;

• Setting SMART objectives following a patient assessment;

• Clear clinical analysis and reasoning;

• Learning from and understanding of the issues raised in the; particulars of allegation upheld by the Panel.

12. You will be responsible for meeting any and all costs associated with complying with these conditions.

13. Any condition requiring you to provide any information to the HCPC is to be met by you by sending the information to the offices of the HCPC, marked for the attention of the Director of Fitness to Practise or Head of Case Management.

12. The order was first reviewed on 18 June 2018, when the first reviewing panel concluded that the Registrant’s fitness to practise remained impaired as she had not worked as a physiotherapist since the substantive hearing and had not remediated her lack of competence. The first reviewing panel also concluded that a finding of impairment was required on public interest grounds.

13. That first reviewing panel decided that Condition 1 should be deleted because the Chartered Society of Physiotherapy does not have an approval process or any specific criteria with which to recognise courses. Furthermore, that panel was of the view that the Registrant’s skills could be acquired by other methods, which could be managed by a new Condition 8. The first reviewing panel also made amendments to Conditions 7, 9 and 11.

14. The first reviewing panel decided to extend and vary the order by a further 12 months to give the Registrant time to remediate her lack of competence.

15. The first reviewing panel varied the existing Conditions of Practice to read as follows:

1. You must confine your professional practice to Adult Services.

2. You must place yourself and remain under the supervision of a Registered Physiotherapist workplace supervisor, registered by the HCPC and supply details of your supervisor to the HCPC within four weeks of the commencement of employment. You must attend upon that supervisor as required and follow their advice and recommendations.

3. You must promptly inform the HCPC if you take up any future employment.

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

5. 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 (at the time of application); and

C. any prospective employer (at the time of your application).

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

• Report writing (to comply with HCPC, CSP and employers’ organisational standards)

• Setting SMART goals.

• Analysis of presenting problems

• Clinical reasoning of your assessment to formulate a treatment plan.

7. Within three months of commencing employment you must forward a copy of your Personal Development Plan to the HCPC.

8. Any reports provided for external agencies must be checked and approved by your supervisor or nominated deputy prior to circulation.

9. You must meet with your supervisor on a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.

10. You must allow your supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.

11. You must submit to the HCPC within six months of commencing employment as a Physiotherapist, a reflective practice log demonstrating your understanding of, learning from an implementation into practice of the issues raised in the particulars of allegation upheld by the Panel to include;

• Professional report writing;

• Setting SMART objectives following a patient assessment;

• Clear clinical analysis and reasoning.

12. You will be responsible for meeting any and all costs associated with complying with these conditions.

13. Any condition requiring you to provide any information to the HCPC is to be met by you by sending the information to the offices of the HCPC, marked for the attention of the Director of Fitness to Practise or Head of Case Management

Current submissions

16. Today’s Panel considered the email dated 18 June 2019 sent by the Registrant’s representative, which said that the Registrant had not worked as a Physiotherapist since June 2017 when her employment as a Band 6 Physiotherapist in Elderly Care ended. She is currently working as a Lead Teaching Assistant at a Preparatory School, which is not a physiotherapy role.
 
17. The Registrant’s representative requested that the existing Conditions of Practice Order be extended for 12 months in varied form, by the addition of the words “as a Registered Physiotherapist” to Conditions 3, 4, 5A, 5B, and 5C.

18. The HCPC did not oppose the course suggested by the Registrant’s representative, save as to Condition 4, such that the current wording should follow the suggested condition in the HCPC’s Conditions Bank and would inform the HCPC of concerns if disciplinary proceedings arose during employment generally.

Decision

19. The Panel accepted the advice of the Legal Assessor, who reminded the Panel of the case of CHRE v (1) NMC, (2) Grant [2011] EWHC 927 and of relevant factors set out in the HCPC “Indicative Sanctions Policy”.

20. The Panel agreed with the conclusion reached by the substantive panel that the Registrant’s fitness to practise had been impaired at the time of the substantive hearing. The Panel concluded that the Registrant’s fitness to practise remains impaired at today’s date. The Panel had been informed that since the last hearing the Registrant had not worked as a physiotherapist, as she had been unable to return to a registered role due to medical health issues. She had not provided any evidence of reflection, insight, or remediation. In those circumstances, the Panel concluded that there remains a likelihood of repetition of the Registrant’s failings if she is permitted to return to unrestricted practice. Accordingly, it is the judgment of the Panel that the Registrant remains a risk to the public if permitted to practise unrestricted and that her fitness to practise remains impaired on public protection grounds.

21. The Panel also concluded that public confidence in the profession, and the declaring of proper standards of conduct and performance, demands a finding of impairment in the wider public interest in light of the seriousness of the lack of competence found proved by the substantive panel.

22. The Panel considered whether to make no order or to impose a Caution Order, but concluded that this would not be sufficient to protect the public or satisfy the public interest.

23. The Panel concluded that it would be right to extend the current Conditions of Practice Order, as this was the appropriate and proportionate Order. The Panel agreed with the suggested variation to Conditions 3, 5A, 5B and 5C, as the HCPC does not have jurisdiction over forms of employment other than roles as a Registered Physiotherapist. However, the Panel decided not to allow the amendment that had been requested to Condition 4, because if there were to be any disciplinary proceedings arising from the Registrant’s employment this may have an impact on her registration, regardless of the role. The Panel also noted that Condition 4 in its original form had been taken from the HCPC’s Conditions Bank. The Panel concluded that this would be the proportionate response in the circumstances.

24. The Panel decided to extend and vary the Order by a further 12 months, to give the Registrant time to remediate her lack of competence in light of her health condition.

25. The Panel concluded that a future Panel would be assisted by:

• Evidence of ongoing Continuous Professional Development;

• Feedback reports from the Registrant’s supervisor;

• Updated testimonials from work colleagues;

• A recent example of a n assessment with SMART goals and a patient report to an external agency;

Order

The Registrar is directed to extend the Conditions of Practice Order against the registration of Mrs Margaret E Ndini-Smith for a further period of 12 months on the expiry of the existing order, in varied form as follows:

1. You must confine your professional practice to Adult Services.

2. You must place yourself and remain under the supervision of a Registered Physiotherapist workplace supervisor, registered by the HCPC and supply details of your supervisor to the HCPC within four weeks of the commencement of employment. You must attend upon that supervisor as required and follow their advice and recommendations.

3. You must promptly inform the HCPC if you take up any future employment as a Registered Physiotherapist.

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

5. 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 as a Registered Physiotherapist;

B. any agency you are registered with or apply to be registered with (at the time of application) for work as a Registered Physiotherapist; and

C. any prospective employer (at the time of your application) for work as a Registered Physiotherapist.

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

• Report writing (to comply with HCPC, CSP and employers’ organisational standards)

• Setting SMART goals.

• Analysis of presenting problems

• Clinical reasoning of your assessment to formulate a treatment plan.

7. Within three months of commencing employment you must forward a copy of your Personal Development Plan to the HCPC.

8. Any reports provided for external agencies must be checked and approved by your supervisor or nominated deputy prior to circulation.

9. You must meet with your supervisor on a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.

10. You must allow your supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.

11. You must submit to the HCPC within six months of commencing employment as a Physiotherapist, a reflective practice log demonstrating your understanding of, learning from an implementation into practice of the issues raised in the particulars of allegation upheld by the Panel to include;

• Professional report writing;

• Setting SMART objectives following a patient assessment;

• Clear clinical analysis and reasoning.

12. You will be responsible for meeting any and all costs associated with complying with these conditions.

13. Any condition requiring you to provide any information to the HCPC is to be met by you by sending the information to the offices of the HCPC, marked for the attention of the Director of Fitness to Practise or Head of Case Management

Notes

This Order will be reviewed before its expiry of 24 July 2020.

Hearing History

History of Hearings for Mrs Margaret E Ndini-Smith

Date Panel Hearing type Outcomes / Status
20/06/2019 Conduct and Competence Committee Review Hearing Conditions of Practice
18/06/2018 Conduct and Competence Committee Review Hearing Conditions of Practice
19/06/2017 Conduct and Competence Committee Final Hearing Interim Conditions of Practice