Mrs Josephine A Brady

Profession:

Registration Number: OT35454

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 04/03/2019 End: 17:00 08/03/2019

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

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Whilst registered as an Occupational Therapist and employed at Heart of England Foundation Trust:

1.You behaved inappropriately towards your colleagues in that:

a. You referred to Colleague A as a ‘B**** faced Troll’, or words to that effect;

b. On or around April 2015, you stated that you wanted to ‘Punch Colleague B in the face’ or words to that effect;

c. On 14 August 2015, you sent a text messages to Colleague C which read:

i.‘F*** you and all that ride on the back of me’ or words to that effect;

ii.‘You can’t be like this to me I’m your CTL’ (Clinical Team Leader) or words to that effect;

iii.‘If you want to look for another job, I won’t stop you’ or words to that effect;

d. You advised your colleagues not to be welcoming to Colleague D, when she started a new role;

e. You stated to Colleague E ‘I’m sick of looking at your face in the office with pain. You only stopped going to physio because you aren’t comfortable taking your clothes off’, or words to that effect;

f. You stated to Colleague E ‘If you were blonde and a Size 10, you wouldn’t have a problem with doing it (a project)’ or words to that effect;

g. You referred to Colleague E as a ‘heart attack waiting to happen’ or words to that effect;

h. You offered chocolates around the office but asked Colleague E ‘are you sure you want to have one?’, or words to that effect;

i. On or around 27 March 2015, you stated to Colleague E ‘I could click a button and make you permanent but something is holding me back, I’m just not sure about you, I don’t know enough about your background.” or words to that effect;

j. You stated to your colleagues “we don’t want her as we don’t want those two on Jamaican time”, or words to that effect, about Colleague G;

k. You stated for your colleagues to “Look at their names – not even English’ or words to that effect, referring to job applicants;

On or around November 2014, you asked Colleague E ‘How do you know you are gay?’ ‘Have you slept with a man?’ and commented ‘You don’t fit the stereotype’, or words to that effect;

2. On 16 January 2016, you requested medical information of Patient A, on two occasions, despite not having any clinical involvement with Patient A;

3. You breached Colleagues‘ confidentiality in that:

a. You discussed Colleague E’s sexuality with members of staff;

b. On or around January 2016, you discussed Colleague E’s Hospital appointment and/or medical condition with Colleague E in front of members of staff in an open office;

c. On 27 January 2016, you discussed colleague F’s medical condition with members of staff;

d. You openly discussed a complaint that Colleague A has previously made about you with members of staff;

4. The matters set out in paragraphs 1 - 3 constitute misconduct and / or lack of competence;

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

Finding

Preliminary Matters

Service

1.Mrs Brady did not attend the hearing and was not represented.  The Panel was satisfied that notice of the hearing had been properly served on her at her registered address in accordance with the Rules.
Proceeding in the Absence of the Registrant

2.The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note on deciding to proceed in the Registrant’s absence.  The Panel took account of the fact that the Registrant will be unable to challenge the evidence or present her case if she is not present but noted that hearings should be adjourned only where there is a compelling reason to do so that overrides the key objective of public protection.  The Panel heard that Mrs Brady has not engaged with the HCPC process and that there is no evidence that she would attend the hearing if it was adjourned to a date in the future.  The only communication from the Registrant has been an email she sent on 5 November 2018 at 11.54hrs in which she stated that she would not be attending and asked for her name to be removed from the Register as she would not be applying to work in healthcare in the future.  Therefore, the Panel has concluded that it would be fair to proceed in Mrs Brady’s absence because she has voluntarily absented herself and there is no realistic prospect that she would attend the hearing if it was adjourned to another date.

Amendment of the allegation

3.The HCPC applied to amend the allegation to remove the particular relating to dishonesty and to correct some typographical errors and had given Mrs Brady advance notice of this.  The Panel accepted the advice of the Legal Assessor that amendment can be made at any time but only if the Panel is satisfied that amendment would not cause unfairness.  The Panel decided that to remove the particular relating to dishonesty would be to Mrs Brady’s advantage so the Panel was sure that would not cause her unfairness.  The typographical errors were minor so the Panel allowed the amendments to be made so that the allegation more accurately reflects the evidence.

Background

4.Mrs Brady was employed by the Heart of England Foundation Trust, now known as University Hospitals Birmingham NHS Foundation Trust (“the Trust”) as an Occupational Therapist with the Rapid Emergency Assessment and Communication Team (REACT) at Heartlands Hospital.  She was employed as a Band 7 practitioner and assumed the role of a Band 8 Team Leader between February 2015 and March 2016 to cover a colleague’s maternity leave.  During this time she managed approximately 18 staff members.  While Mrs Brady was employed as a Band 7 practitioner, she was managed by Colleague D.  When Mrs Brady temporarily took on the role of a Band 8 practitioner she was managed by MW. 

5.Mrs Brady is alleged to have made numerous inappropriate and offensive remarks towards staff members within her team and to have breached colleagues’ privacy by discussing their personal information with other members of staff who did not have a legitimate right to know.  Mrs Brady is also alleged to have breached a service user’s confidentiality by requesting information to which she was not entitled.
 
Decision on Facts

6.The Panel reminded itself that the burden of proof is on the HCPC at all times and that the standard of proof is the balance of probabilities.  As Mrs Brady was not present and not represented, in accordance with the HCPTS Practice Note, the Legal Assessor asked some questions to test the HCPC’s evidence as far as practicable and the Panel has taken account of the witnesses’ answers to those questions when considering whether the HCPC has proved its case on the facts. 

7.The Panel accepted the advice of the Legal Assessor that it should ignore any evidence that was not strictly relevant to the allegation that the HCPC has brought against Mrs Brady.  The Panel therefore disregarded any evidence relating to the internal disciplinary hearing conducted by the Trust unless it related to the HCPC allegation.  The Panel also accepted the advice of the Legal Assessor that the decision of a previous tribunal or enquiry represented no more than the views and opinions of those people on the evidence that they heard, and that means that the Panel today is required to make its own assessment of the evidence that it heard during the hearing.

8.The Panel accepted the advice of the Legal Assessor that it should consider each paragraph of the allegation separately and that its decision need not be the same on each part; in other words that the different parts do not stand or fall together.

9.The Panel saw and heard SH, Colleague B and Colleague E give evidence and considered them to be credible and reliable witnesses.  SH was appointed to investigate Mrs Brady’s conduct because she was an independent person from another team and she did not know the Registrant.  The Panel found SH to be objective and able to give helpful background evidence about how the team worked.  She also interviewed Mrs Brady and was able to help the Panel to understand the Registrant’s attitude to the allegation.  The Panel felt that SH did her best to comprehensively answer the Panel’s questions and bore in mind that SH had no first-hand knowledge of events complained of.

10.Collegue B had witnessed some events first hand and was able to give the Panel direct evidence about them.  She gave hearsay evidence about other events which she had been told about.  The Panel found her to be balanced and fair, for example on one occasion when the records showed that Colleague B’s recollection was mistaken she readily accepted her error. 

11.Colleague E was clearly nervous but overcame this to give clear and helpful evidence to the Panel.  Her evidence covered a number of personal topics which she appeared uncomfortable talking about, but the Panel found this to be understandable bearing in mind the nature of her evidence.  Colleague E remained balanced and fair and volunteered when she could not remember something.  She also made appropriate concessions when questioned by the Panel about matters that she did not have direct knowledge of. 

12.Where the evidence was hearsay the Panel looked to see if there was support for the evidence from another source.  The Panel was careful to identify where the evidence was multiple hearsay and placed little weight on it if it was.  The Panel took account of the passage of time and how this is likely to have affected the reliability of a witness’ recollection and Mrs Brady’s ability to respond to the allegations when she was interviewed as part of the Trust’s Dignity at Work process.

Allegation para 1a

13.Colleague E told the Panel that she had witnessed Mrs Brady call Colleague A ‘a bitch faced troll’ or ‘BFT’ on a number of occasions.  This direct evidence was supported by the witness statement and live evidence of Colleague B which the Panel read and heard.  The Panel also noted that when Mrs Brady was interviewed about this, she did not deny referring to Colleague A in that way.  Therefore the Panel found paragraph 1a of the allegation proved.
 
Allegation para 1b

14.In about April 2015 Colleague B met with MW, the Deputy Lead for Therapies in order to provide input on ways in which the team could better develop the rotation for Band 5 physiotherapists.  She did not provide the feedback to Mrs Brady directly as she was concerned that Mrs Brady would be defensive.  Colleague E’s evidence to the Panel was that following this, Mrs Brady told her that she ‘wanted to punch Colleague B in the face’.  This direct evidence from Colleague E was supported by the witness statement of Colleague B which the Panel read.  Therefore the Panel found paragraph 1b of the allegation proved.
 
Allegation para 1c

15.Mrs Brady was interviewed on 5 May 2016 and during that interview she was asked about the text messages that she sent to Colleague C on 14 August 2015.  The Panel noted that Mrs Brady admitted having sent all three messages to Colleague C. The Panel on the basis of the evidence of Colleague C and Mrs Brady’s admission found paragraph 1c(i), (ii) and (iii) of the allegation proved.  The Panel noted Mrs Brady’s explanation that it had followed a night out, that alcohol was involved and that in her view it was a personal matter between her and Colleague C that they had resolved.

Allegation para 1d

16.The witness KM was interviewed as part of the Trust investigation on 25 May 2016 but the record of that interview is a summary of what she said and not a verbatim transcript.  What is recorded is “When Colleague D was our CTL Jo instructed us all not to be welcoming.”  The interview record does not demonstrate that KM was asked for details such as where, when and to whom Mrs Brady said this.  In a later part of the interview record the following is recorded;

“IS was it a clear instruction from Jo – or was it more
Was more like a seed being sown.  That’s how she always does it.

17.IS are the initials of a Trust employee present during the interview but as the record above demonstrates, it is not clear precisely what question KM was asked or if the phrase ‘seed being sown’ was volunteered by KM or was part of a leading question.  The HCPC did not call KM to give evidence to the Panel and so she could not be asked to provide clarification of how Mrs Brady advised colleagues not to be welcoming to Colleague D.  The Panel decided that the HCPC had not produced sufficient evidence to discharge the burden of proving this part of the allegation and therefore the Panel found paragraph 1d of the allegation not proved.  This is not a reflection on KM as a witness but on the questions that she was asked during the interview and the record of it.

Allegation para 1e

18.Colleague E described how Mrs Brady spoke to her and she told the Panel how this had made her feel.  Her evidence to the Panel was consistent with her first complaint to the Trust.  That complaint triggered the Trust investigation and her evidence to the Panel was also consistent with the evidence she had given when interviewed by the Trust.  The Panel noted that when Mrs Brady was asked during her own interview with the Trust, she admitted that she had said words to that effect.  Therefore the Panel found paragraph 1e of the allegation proved.

Allegation para 1f

19.Colleague E’s evidence to the Panel was that Mrs Brady had said to her “If you were blonde and a size 10 you wouldn’t have a problem with doing it” or words to that effect.  She described the tone that Mrs Brady had used and how this had made her feel.  The Panel noted that in interview the Registrant admitted saying words to this effect and so the Panel found paragraph 1f of the allegation proved.  The Panel noted Mrs Brady’s explanation in interview that it was not meant maliciously but preferred the oral evidence of Colleague E which the Panel had had an opportunity to test during the hearing.

Allegation para 1g

20.The HCPC did not call KM to give evidence to the Panel and so her evidence could not be tested or clarified.  The Panel noted that there is no record in Mrs Brady’s Trust interview to show that this specific statement was put to her so that she had an opportunity to respond to it.  The Panel decided that the HCPC had not produced sufficient evidence to discharge the burden of proving this part of the allegation and therefore the Panel found paragraph 1g of the allegation not proved.

Allegation para 1h

21.Colleague E confirmed in her oral evidence to the Panel that she clearly remembered Mrs Brady offering chocolates around the office and saying to her “are you sure you want to have one” or words to that effect.  Colleague E explained that she had not referred to this specific incident when she was interviewed by the Trust because it was one of many similar incidents that she was recalling and that it was not realistic to expect her to have recalled every single one.  The Panel had the opportunity to see and hear Colleague E give her evidence and found this explanation to be credible.  The Panel noted that her evidence was supported by the hearsay evidence of KH and JC who both told the Trust investigator that they had witnessed it.  Therefore the Panel found paragraph 1h of the allegation proved.

Allegation para 1i

22.Colleague E confirmed in her oral evidence to the Panel that Mrs Brady had told her that “I could click a button and make you permanent but something is holding me back, I’m just not sure about you, I don’t know enough about your background” or words to that effect.  The Panel noted that when Mrs Brady was asked about this during the Trust interview, she said she did not recall it.  The Panel preferred the evidence of Colleague E because it had an opportunity to assess her when she gave evidence during the hearing.  Therefore the Panel found paragraph 1i of the allegation proved.

Allegation para 1j

23.During the Trust investigation both Colleague C and witness KM gave consistent accounts of Mrs Brady talking about Colleague G saying words to the effect of ‘we don’t want him as we don’t want those two on Jamaican time’.  However, this specific allegation was not put to Mrs Brady during her interviews with the Trust, although she was asked about her attitude to racism more generally.  The HCPC did not call either Colleague C or witness KM to give oral evidence during the hearing.  The Panel was concerned it was unable to test the allegation and therefore the Panel found paragraph 1j of the allegation not proved.

Allegation para 1k

24.Colleague B gave oral evidence to the Panel which was consistent with the account she had given during the Trust investigation.  The Panel noted that there is no record of this being put to Mrs Brady but it had the benefit of seeing and hearing Colleague B give evidence.  Colleague B was clear that she had heard Mrs Brady say words to the effect of ‘look at their names – not even English’ when referring to applicants for employment at the Trust.  The Panel tested Colleague B’s evidence by asking her questions about the incident and Colleague B had been able to describe the set up in the room and how Mrs Brady had invited others present to look at the application forms which she could see were from applicants with names did not appear to be English.  Therefore the Panel found paragraph 1k of the allegation proved.

Allegation para 1l

25.Colleague E gave oral evidence to the Panel explaining that she clearly recalled Mrs Brady asking her “How do you know you are gay, have you slept with a man?” and telling her “you don’t fit the stereotype”.  When Mrs Brady was interviewed during the Trust process she denied having said these things and told the interviewer that Colleague E was open about her sexuality and that they had many conversations about sexuality and race amongst the team.  However, the Panel had the opportunity to see and hear Colleague E explain how Mrs Brady’s comments had made her feel.  The Panel found her evidence to be compelling and therefore the Panel found paragraph 1l of the allegation proved.

 

Allegation para 2

26.It is alleged that Mrs Brady sent texts to Colleague E and Colleague C requesting medical information about a friend of hers, Patient A although she had no clinical involvement with his case.   The Panel saw print outs of the texts which read;

•To Colleague E

“Hi sorry its late x can you check on (Patient A) presented with cva.  Please can you give me an update.  Personal friend x”

•To Colleague C
“Hi sorry but could you check on a friend of mine.  Presented with a cva had surgery and now in itu x names (Patient A) thingie (sic) he is about 63 no 65”

27.Colleague C responded;

“Hi Jo sorry to hear that! That’s awful.  Cant really check as its against trust policy’s.  will they not give any info to family?”
Mrs Brady replied;

“Thank you for reinding (sic) me of trust policy.  Just thought as mates.  But now its clear”

28.Colleague E and Colleague C told the Trust that they had interpreted Mrs Brady’s texts as a request that they access the patient’s electronic medical records which would be against Trust policy.  When Mrs Brady was asked about this by the Trust she claimed that she had “just wanted her to make a physical visit to check if the patient was ok”.   The Panel rejects this explanation as Mrs Brady’s text message in reply to Colleague C amounts to an admission that she had asked Colleague C to do something that was against Trust policy.  Therefore the Panel found paragraph 2 of the allegation proved.

Allegation para 3a

29.Mrs Brady is alleged to have discussed Colleague E’s sexuality with other colleagues in the office.  Colleague E told the Panel what she had been told by others in the office, including Colleague C.  Colleague C was interviewed by the Trust and made a witness statement to the HCPC but she does not refer to this aspect of the allegation in either document.  It may be that she was not asked about it.  None of Colleague E’s other colleagues were interviewed or made witness statements covering this specific part of the allegation and therefore the sole source of evidence is multiple hearsay from Colleague E.  Therefore the Panel found paragraph 3a of the allegation not proved.

Allegation para 3b

30.Colleague E’s evidence to the Panel was that Mrs Brady discussed her personal medical condition and hospital appointment in front of others in an open office.  When Mrs Brady was interviewed by the Trust, she admitted that she had done this.  Therefore the Panel found paragraph 3b of the allegation proved.

Allegation para 3c

31.Mrs Brady is alleged to have discussed Colleague F’s medical condition with members of staff.  Colleague E told the Panel that she had heard this herself and her evidence is supported by the hearsay evidence of SC and Colleague C.  The Panel also noted that Mrs Brady admitted that she had done so when she was interviewed by the Trust.  Therefore the Panel found paragraph 3c of the allegation proved.

Allegation para 3d

32.Colleague E’s evidence to the Panel was that Mrs Brady had ‘made it very clear and obvious’ that Colleague A had made a complaint about her by saying that “(she) did this to me and that is why I don’t like her”.  Colleague E’s evidence to the Panel was supported by the evidence Colleague B gave to the Trust.  Therefore the Panel found paragraph 3d of the allegation proved.

Decision on Grounds

33.The HCPC submitted that the facts found proved amount to misconduct because Mrs Brady has breached a number of the Standards of conduct, performance and ethics and that her behaviour was serious.   The Panel accepted the advice of the Legal Assessor that; “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 Panel also accepted the advice of the Legal Assessor that “misconduct is of two kinds.  First, it may involve sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practise.  Second, it can involve conduct of a morally culpable or otherwise disgraceful kind which may, and often will, occur outwith the course of professional practice itself, but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession.”

34.The Panel accepted the advice of the Legal Assessor that a lack of competence refers to a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the practitioner’s work.  The Panel reminded itself that whether the facts found proved amount to misconduct or a lack of competence is not a matter of proof but for the Panel’s own judgement. 

35.The Panel is aware from the evidence of the Trust Dignity at Work hearing that some staff members commented that they considered Mrs Brady to be a good Occupational Therapist who they could turn to for advice and that she was supportive.  The Panel saw evidence that Mrs Brady had been working for the Trust as a senior practitioner and the Panel therefore decided that Mrs Brady had the knowledge and skills required to behave professionally and to carry out the tasks required of her and that her failure to do so was not as a result of a lack of competence. 

36.Therefore, the Panel went on to consider if the facts found proved amounted to misconduct.  

37.The Panel was satisfied that Mrs Brady’s actions in relation to the facts found proved fall significantly short of what would have been proper in the circumstances.  She was employed as a senior Occupational Therapist and therefore held a position of trust with a responsibility to set an example of good behaviour.  The Panel has found that Mrs Brady behaved towards her team members in a totally inappropriate manner, exhibiting behaviour that was bullying, victimising and discriminatory.  In respect of Colleagues A, F, E she breached the duty of confidentiality that she owed to them.  Mrs Brady placed Colleagues E and C in a very difficult position by asking them to breach Trust policy by accessing the medical records of Patient A.

38.The Panel found that in respect of Patient A, the Registrant breached standard 2 of the HCPC Standards of conduct performance and ethics (1 August 2012) which requires registrants to respect the confidentiality of service users.
  
39.The Panel found that Mrs Brady’s bullying, victimising and discriminatory behaviour breached the following standards of the HCPC Standards of conduct, performance and ethics (1 August 2012);

•Standard 3 which requires registrants to keep high standards of personal conduct

•Standard 7 which requires registrants to communicate properly and effectively with other practitioners and

•Standard 13 which requires registrants to behave with integrity and to make sure that their behaviour does not damage the public’s confidence in them or the profession.

The Panel considers standards 3 and 13 to be fundamental tenets of the profession

40.The Panel considered the HCPC Standards specific to Occupational Therapists but was satisfied that her acts and omissions related to her membership of a profession and her position as a team leader and are not specific to her work as an occupational therapist.  
 
41.The Panel bore in mind that not every breach of the applicable standards would necessarily amount to misconduct and that the Panel was required to judge each case on its own facts.  The Panel accepted the advice of the Legal Assessor that it was entitled to consider the cumulative effect of the incidents, taken together when deciding if the threshold for misconduct was reached. 

42.The Panel has no doubt that fellow members of the profession and the general public would find Mrs Brady’s behaviour to be deplorable.

 

Therefore the Panel has found that the facts proved amount to misconduct.

Decision on Impairment

43.The Panel went on to decide whether Mrs Brady’s fitness to practise is impaired.  The Panel took account of the HCPTS Practice Note ‘Finding that fitness to practise is impaired’.  It accepted the advice of the Legal Assessor that the test of impairment is expressed in the present tense and reminded itself that the purpose of Fitness to Practise procedures is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise.  Although the Panel must look forward not back, in order to form a view as to whether the Registrant is fit to practise without restriction today it has to take into account the way in which the Registrant has acted in the past. 

44.The Panel reminded itself that it is necessary to distinguish between cases where misconduct is, of itself, likely to lead to a finding of impairment and cases where misconduct does not necessarily lead to a finding of impairment, because of other factors to be taken into account. Such factors usually comprise events between the date of misconduct and the date of the Panel hearing, such as a one-off event of misconduct followed by the passage of substantial time, an otherwise unblemished record, or subsequent retraining.

45.The Panel considered the two elements to impairment; the personal element which includes the Registrant’s current conduct and performance and the public element which includes the protection of members of the public and the public interest
Personal elements

46.In the personal element the Panel considered Mrs Brady’s past acts in order to establish whether her fitness to provide occupational therapy services is currently below acceptable standards and whether she may pose a risk to those who may need to use her services in the future.
 
47.In assessing whether Mrs Brady’s fitness to provide occupation therapy services is currently below acceptable standards the Panel has considered all of the evidence that it was provided with. However, the Panel has no information from Mrs Brady about her current circumstances because she has not engaged with the HCPC in response to the final hearing.  The Panel has no information on what she has been doing since she left the Trust in 2017 apart from her email on 5 November 2018 to say that she did not intend to apply for jobs in healthcare in the future. 

48.In assessing the likelihood of Mrs Brady causing harm in the future the Panel has taken into account the extent of any harm caused by her to the colleagues referred to in the allegation and her culpability for that harm.  The Panel heard from SH and Mrs Brady’s colleagues that her misconduct created a climate of fear in the office which had a real impact on those she supervised.

49.A recurring theme from junior practitioners was that they felt unable to go to Mrs Brady with concerns or for guidance and were therefore inadequately supervised.  The Panel has no doubt that this will have impacted negatively on their professional performance, creating a risk to service users.  

50.The Panel heard SH describe how Mrs Brady reacted when challenged about her behaviour.  SH is a reasonably experienced investigator and told the Panel that she was particularly surprised by Mrs Brady’s reaction because it was so different to that which she was expecting and had witnessed during other investigations.  SH described how, even when Mrs Brady accepted that she had behaved in the way alleged, she expressed no remorse for her actions or insight into how her actions were likely to have affected her colleagues.  SH described how Mrs Brady appeared convinced that she managed a happy team and her view that her colleagues should have been able to resolve any issues they had with her without resorting to a formal complaint. There is no evidence before the Panel of any meaningful insight. 

Public elements

51.The Panel next considered the public interest which includes the need to protect service users and the collective need to maintain confidence in the profession by declaring and upholding proper standards of conduct and behaviour.  The Panel reminded itself that it is highly relevant in determining if a practitioner’s fitness to practise is impaired that: the conduct which led to the allegation is easily remediable; second it has been remedied; and that it is highly unlikely to be repeated. 

52.The Panel accepted that Mrs Brady has in the past shown that she can be a proficient occupational therapist because she worked her way up to be a grade 7 practitioner before these complaints arose.  The Panel was satisfied that the misconduct may be remediable in theory but because Mrs Brady has not engaged with the HCPC process, there is no evidence that she has remedied her misconduct. Given the absence of insight and the limited information from Mrs Brady, the Panel finds that there is a real risk of repetition. Any such repetition would place the public at risk, would break the fundamental tenets of the profession and would undermine public confidence in the profession.

53.For all the reasons set out above, the Panel is satisfied that Mrs Brady’s current fitness to practise is impaired and as a result the Panel finds the allegation well founded.

Decision on Sanction 

54.The Panel then invited submissions on what sanction, if any, should be imposed. 

55.The Panel had regard to the HCPTS’s Indicative Sanctions guidance and accepted the advice of the Legal Assessor.  The Panel was reminded that it is not obliged to impose a sanction and that in appropriate cases may decide that no further action is required.  The Panel is satisfied that a sanction is proportionate in this case because no further action is only appropriate in cases involving minor isolated lapses where the registrant has apologised, taken corrective action and fully understands the nature and effect of the lapse.  For the reasons already referred to by the Panel in its decision on impairment the misconduct found proved in the case cannot be described as an isolated incident or as a minor lapse.    

56.The Panel was reminded that a sanction may only be imposed in relation to the facts which have been found proved and cannot be imposed on a wider basis than that revealed by the facts found proved.
 
57.The Panel has borne in mind that the purpose of Fitness to Practise procedures is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise.  The primary function of any sanction is to address public safety from the perspective of the risk which the registrant concerned may pose to those who need to use her services.  The Panel is aware that it must also give appropriate weight to the wider public interest which includes: the deterrent effect to other registrants, the reputation of the profession concerned and public confidence in the regulatory process. 

58.The Panel identified the following mitigating factors;

•Mrs Brady has not appeared before the HCPC before and

•There is evidence that her clinical practice as an Occupational Therapist is good.

59.The Panel identified the following aggravating factors;

•The Registrant had engaged in a sustained pattern of inappropriate behaviour over a prolonged period of time,

•Her misconduct had a serious impact on her colleagues,

•Mrs Brady abused her position of authority and trust,

•The Registrant’s behaviour was motivated by discrimination, bullying, and homophobia,

•There is no evidence of insight and she had not apologised or expressed remorse for her actions.

60.The Panel had regard to the principle of proportionality and considered the sanctions starting with the lowest first.  The Panel rejected mediation because it would not address the public interest, the interests of those required to work with Mrs Brady and service user safety concerns resulting from Mrs Brady’s misconduct. 

61.The Panel went on to consider whether a caution order was appropriate.  The Panel decided that the misconduct was sufficiently serious that a caution order would not protect the public or maintain confidence in the profession and the regulatory process.  The misconduct was not minor in nature, and Mrs Brady had not provided any evidence of remediation. 

62.The Panel next considered whether conditions of practice were proportionate and workable.  The Panel reminded itself of the Indicative Sanctions Guidance that a Conditions of Practice Order is unlikely to be appropriate where the Registrant has failed to engage with the fitness to practise process.  The Panel concluded that a Conditions of Practice Order was not appropriate because Mrs Brady has not expressed any insight or remorse and as a result the Panel is not satisfied that Mrs Brady can be trusted to make a determined effort to remediate her misconduct.  In any case, the Panel found that it was not possible to formulate workable conditions of practise in the circumstances of this case.

63.The Panel next considered a Suspension Order which it has the power to impose for up to twelve months.  A Suspension Order would protect the public while it is in force and may be appropriate in a case where the registrant has shown a firm intention to address his or her failings.  In this case, the Panel finds that there is no evidence that the Registrant accepts that she has behaved inappropriately or that there is a need to address her misconduct.  The Panel finds that the Registrant’s failings relate to attitudinal issues and that a period of suspension would not result in any reflection or insight.  As such a Suspension Order would not be appropriate. 

64.Finally, the Panel moved onto consider a Striking Off Order, recognising that this is the sanction of last resort.  The Panel finds that Mrs Brady has displayed deep seated attitudinal issues that are fundamentally incompatible with remaining on the Register.  Her treatment of colleagues and those placed in her charge has been appalling, causing them significant emotional harm.  Mrs Brady has shown no meaningful insight and during the investigation process gave every impression of considering that she had behaved appropriately.  A Striking Off Order is the only sanction that is proportionate to her failings and which reflects the seriousness of the findings of fact.  Moreover, any lesser sanction would not be sufficient to maintain public confidence in the profession or to send a clear message to the profession at large about the unacceptability of Mrs Brady’s conduct.  Accordingly the Panel directs the Registrar to strike Mrs Brady’s name from the Register.

Order

The Registrar is directed to strike the name of Mrs Josephine Brady from the Register. 

Notes

Interim Order

1. The Panel considered the HCPC’s application for an Interim Order, pending the coming into force of the Striking Off Order. The Panel was shown the letter dated 9 November 2018 addressed to Mrs Brady’s address in the Register warning her that the HCPC may apply for an Interim Order. The Panel decided that it was fair to proceed in her absence because she has voluntarily waived her right to be present.

2. The Panel has found that Mrs Brady is currently unfit to practise without restriction but without an interim order she would theoretically be able to do so pending an appeal and the Panel has decided that it would not be appropriate to leave that possibility open. The Panel has borne in mind that it is more than three years since the period of misconduct took place and that during that time the HCPC did not apply for an interim order restricting Mrs Brady’s ability to practise. Therefore she has been free to practise without restriction until now and the Panel has no evidence of any further episodes of misconduct during that time. However, the Panel’s findings of fact and decision on misconduct and impairment represent a significant change in circumstances. The Panel is not satisfied that Mrs Brady has any meaningful insight into the seriousness of her misconduct. Mrs Brady has also not expressed remorse for her actions or explained how they came about or how she would make sure that they were not repeated. Therefore the Panel has decided that an interim Suspension Order is necessary to protect members of the public and the public interest and that the appropriate period is 18 months to ensure that an order is in place during the during the appeal period and any subsequent appeal proceedings.

3. The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

4. The order will expire: if no appeal is made against the Panel’s decision and Order upon the expiry of the period during which such an appeal could be made; if an appeal is made against the Panel’s decision and Order the final determination

Hearing History

History of Hearings for Mrs Josephine A Brady

Date Panel Hearing type Outcomes / Status
04/03/2019 Conduct and Competence Committee Final Hearing Struck off