Mr Philip Ma
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The following Allegation was found proved by a panel of the Conduct and Competence Committee at a Substantive Hearing on 28 November to 5 December 2016.
During the course of your employment as a Practitioner Psychologist with North East London NHS Foundation Trust:
1. On 23 April 2010, you wrote a report on Patient B for Social Services Child Families Case Conference, and
a) you did not ensure a formal risk assessment of the patient was undertaken
b) you did not analyse risk-related matters which came to light during your session with Patient B
c) the report was poorly constructed and lacked structure.
2. The matters described in paragraph 1 constitute misconduct and / or lack of competence.
3. By reason of your misconduct and / or lack of competence, your fitness to practise is impaired.
Hearing in Private
1. The Panel chose to hear a discrete part of Mr Lazarus’ submissions in private as they referred to personal circumstances.
2. The Registrant qualified as a Counselling Psychologist in 1997. He commenced employment with the North East London NHS Foundation Trust (“the Trust”) on 3 March 2003. On 8 February 2010, he was transferred to work at the Intake and Brief Intervention Team.
3. The Panel was informed that Patient B was referred to the Trust on 5 January 2010. She was assessed by a psychiatric nurse who later discussed the case with the Registrant, and an appointment was made for Patient B to see the Registrant on 10 March 2010.
4. The Registrant saw Patient B on four occasions: 10 March 2010; 19 March 2010; 1 April 2010; and 9 April 2010.
5. On 21 April 2010, the Registrant was sent a letter inviting him to a multidisciplinary review meeting which was due to take place on 26 April 2010 regarding Patient B. The Registrant was unable to attend, and so he was required to write a report in advance of the meeting to update the team on Patient B’s progress.
6. It was accepted by the HCPC that the Registrant’s intention was to summarise the history that he had obtained from Patient B, together with the social work records that he had accessed, and to summarise the work he had done with Patient B. However, it was alleged, and accepted, that he gave the report a heading that was misleading, namely: “psychology report”. He informed the substantive panel that this was a mistake on his part. He admitted that he had been told previously not to use this heading “because of the connotation of what it means”, but that he had continued to use it; he said that he had not realised that it was inappropriate. He accepted that the heading raised very different expectations. He also accepted that the problem was further compounded by the content of the first sentence of the final paragraph of his report, which stated: “From her presentation it was my impression that Patient B does not pose a risk in the care of her children”.
7. In relation to Sub-Particular 1(a), the substantive panel found that an integral part of preparing a psychological report in relation to Patient B was the carrying out of a formal risk assessment. The Registrant had admitted that he did not undertake such an assessment and the Panel found the sub-particular proved.
8. In relation to Sub-Particular 1(b), the substantive panel found that the Registrant did not analyse risk-related matters which had come to light during Patient B’s appointments with the Registrant. The substantive panel accepted expert evidence that the Registrant had made “no attempt to explore highly pertinent and risk laden facts mentioned by the client”.
9. In relation to Sub-Particular 1(c), the substantive panel found that the Registrant’s report was “poorly constructed and lacked structure”. The Registrant admitted that the heading was misleading, that he had not made clear what other documents had been relied on, and that he had reached conclusions that he was not qualified to give, and that were not justified in the circumstances. The substantive panel concluded that the report was “not objectively well constructed. It did not set out what the purpose of the document was and how it was intended to be used. It reached a conclusion that the Registrant was not entitled to find, on the basis of the work he had done, without carrying out an assessment, or having the appropriate experience and knowledge to do so. It was not clear how its conclusions had been reached or the reliance that was intended to be placed upon it”.
10. The substantive panel concluded that the facts found proved amounted to misconduct in that “this was an instance of acting well below the necessary standards that applied to a Practitioner Psychologist. He gave a misleading impression based on his misplaced desire to help Patient B, without any proper regard to the consequences for Patient B or her children. Ultimately such consequences would not have been in the best interests of anyone”.
11. When appearing before the substantive panel, the Registrant accepted that his behaviour had been wrong, and that he had not thought about the impact that his actions would have on the general public. He accepted that “other people would have perceived that I had done a full risk assessment on the client”, and that he was conscious now of what could have happened if someone had been led to believe that he had done a risk assessment. He said that this had not been apparent to him at the time and that he had been acting out of a desire to support Patient B, albeit that he now accepted that that desire could have backfired because “she might use it against others and cause conflict with others in the team” and agreed that it could also have the potential to cause harm to children and that his report would have allowed Patient B to “carry on doing what she was doing”.
12. The substantive panel concluded that the Registrant had provided it with evidence of some insight into his behaviour. He had provided testimonials which dealt with positive attributes of his character. However, the substantive panel concluded that these did not address the core issues in the case. The substantive panel noted that the Registrant showed some remorse but was concerned that he was focusing on the failings of his colleagues rather than on his own failings.
13. The substantive panel took into account a combination of events that were occurring in the Registrant’s professional and personal life at the time. The substantive panel concluded that the Registrant’s actions had been overly sympathetic to his patient and that he had failed to analyse the potential risk to Patient B’s children. The Registrant had provided a document that was misleading and contained opinions that were not justified, were not appropriate and were outside his professional expertise.
14. The substantive panel concluded that the Registrant’s behaviour was remediable but was unable to say that it been fully remedied in light of the limited ways in which he had sought to remedy his behaviour. The substantive panel noted that the Registrant had recognised that his report writing was below par but had not addressed this deficiency, nor sought to increase his skill level. He had recognised that he had become overly involved in focusing on Patient B’s issues to the exclusion of other relevant criteria, but had not attended courses on maintaining professional boundaries and self-care. He had not demonstrated learning about assessment and formulation, the writing up of assessments, or how his learning had been put into practice. He appeared to have reflected on how he might have dealt differently with Patient B but it was not apparent that he had learnt how to apply his learning to other situations.
15. The substantive panel concluded that the Registrant’s fitness to practice was impaired on the basis that he posed a risk to the public, and also on wider public interest grounds, in that there was a need to declare and uphold proper standards and to maintain confidence in the regulatory process.
16. In determining sanction, the substantive panel emphasised the seriousness of the case, and the Registrant’s failure to evidence full insight or to demonstrate appropriate remedial action. The substantive panel concluded that a Conditions of Practice Order would be sufficient to address the risks identified and to protect the wider public interest.
17. The substantive panel imposed the following Conditions:
The Registrar is directed to annotate the Register to show that for 18 months, from the date that this Order comes into effect (“the Operative Date”), you, Mr Philip Ma, must comply with the following conditions of practice:
1. 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 which requires HCPC registration.
b. any agency you are registered with or apply to be registered with (at the time of application) when seeking to undertake professional work which requires HCPC registration.
c. any prospective employer (at the time of your application) when seeking to undertake professional work which requires HCPC registration.
2. When undertaking professional work, which requires HCPC registration, you must place yourself and remain under the supervision of a suitable and appropriately qualified supervisor who is registered with the HCPC and supply details of your supervisor to the HCPC within 21 days of commencing any such professional work. You must attend upon that supervisor as required and follow their advice and recommendations.
3. You must work with that supervisor to formulate a Personal and Professional Development Plan within 2 months of commencing supervision. That plan should be designed to address the deficiencies in the following areas of your practice:
- report writing, to the extent they form part of your practice and acting within your scope of practice
- maintaining professional boundaries
- reflective practice and self-care.
4. You must forward a copy of your Personal and Professional Development Plan to the HCPC within one month of it having been formulated.
5. You must meet with your supervisor on at least a monthly basis to reflect on and consider your progress towards achieving the aims set out in your Personal and Professional Development Plan.
6. You must allow your supervisor to provide information to the HCPC concerning your progress towards achieving the aims set out in your Personal and Professional Development Plan.
7. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.
18. The substantive panel decided to impose the Order for 18 months.
19. Since the substantive hearing, the Registrant has produced to the reviewing panel that sat on 25 May 2018, two Supervision Reports, dated 30 August 2017 and 30 April 2018, and a witness statement dated 15 May 2018 from his supervisor. The reviewing panel took this material into account in reaching its decision. The Registrant was not present at the review hearing and no adverse inference was drawn from this lack of attendance.
20. The reviewing panel was informed that, since the imposition of the Conditions of Practice Order, the Registrant had had significant difficulties in obtaining employment as a registered Practitioner Psychologist. He had undertaken a voluntary counsellor role at the Awareness Centre, contracted to NHS Wandsworth, NHS Lambert and HMP Brixton, to provide IAPT services, on 22 July 2017. However, the Registrant was discharged after the clinical manager returned from leave in September 2017. The HCPC was informed at that review hearing that the Registrant at the time counselled one client on a private basis.
21. The Registrant attended regular supervision in connection with his voluntary work at the Awareness Centre, although technically his work did not require him to do so, and it was the supervisor of these sessions who provided the two reports and the witness statement referred to earlier.
22. Since the termination of his voluntary work, the Registrant had been unable to secure further work, either paid or voluntary.
23. The Registrant’s representative, Mr Lazarus, made one submission on behalf of the Registrant at that review hearing, and that was that the requirement to notify potential employers of the existence of the conditions should be removed. He argued that Registrant’s integrity was not in question, that he had self-referred, and that he had been seeing a supervisor on a regular basis in connection with his voluntary work when there had been no requirement on him to do so. In those circumstances, the panel could be satisfied that he would inform his employers of the existence of the conditions, and it followed that there was no need to impose that particular condition.
24. At that review hearing both parties accepted that the Registrant’s fitness to practise was still impaired. The panel after careful consideration came to its own conclusion on this matter and found that the information supplied did not demonstrate full remediation of the Registrant’s practice and the matters which had been found proven by the substantive panel. The reviewing panel determined that there was a continuing state of impairment of the Registrant’s fitness to practise.
25. The reviewing panel did not accept Mr Lazarus’s argument that Condition 1 be removed. If, as stated, it was the Registrant’s intention to declare the existence of the Conditions of Practice Order then it made little difference and it was, in the reviewing panel’s view, not disproportionate for this condition to remain in its current form. The Panel did however take the opportunity of amended other conditions and the amended conditions are set out above.
Review Hearing – 30 May 2019
26. There was no fresh documentary evidence placed before the Panel.
27. The HCPC’s initial submission was that notwithstanding the fact that the Registrant had been unable to secure work and had previously experienced personal difficulties, there was no evidence of compliance with the conditions before the Panel and no evidence of any steps of remediation of his previous behaviour. The only information supplied by the Registrant before the Panel is that which was presented to the last reviewing panel a year ago. That information had been considered by the reviewing panel as inadequate to demonstrate full insight and remorse. There was no evidence then, or now, of any training to address the matters specifically identified as requiring improvement, which were report writing, professional boundaries, assessments, and formulations.
28. In the HCPC’s view the Panel should consider at this stage, two and a half years after a substantive finding, whether conditions of practice are working and remain appropriate. The Panel was reminded that this being a case where the substantive panel had made a finding of misconduct, this Panel had the full range of sanctions available to it.
29. Mr Lazarus stated that his position today was to ask for the current conditions of practice, in the same form, be continued for a further period of 12 months.
30. In relation to the lack of any real progress towards compliance Mr Lazarus provided the Panel with personal information regarding the Registrant’s circumstances.
31. In relation to the issue of compliance with the conditions it was submitted by Mr Lazarus that:
• With the exception of Condition 7, the Registrant was not in a position to provide evidence of compliance as he had for various personal reasons mentioned, and his inability to find suitable employment, been unable to comply.
• In relation to Condition 2, the Registrant was not undertaking any HCPC regulated work. However, in relation to the one patient he saw privately he did have a supervisor and Mr. W, his supervisor, would have been here to support him today however a family matter had precluded this.
• In relation to Condition 7, it was accepted that he was expected to supply this information, however there were two reasons why this had not been produced. First, the personal difficulties mentioned above. Secondly, it was questionable how useful this information would be given that the Registrant had been completely detached from professional work.
32. The Registrant has accepted that his fitness to practice is currently impaired. He has not been employed since 2010 and he accepted that he had become deskilled. In relation to the Registrant’s future plans, Mr Lazarus told the Panel that the Registrant was now able to undertake some retraining. The Panel was informed of three courses which the Registrant, notwithstanding the fact of his conditions of practice, was hopeful of persuading the course providers to allow him to join. These were:
• DPsy (Doctorate) in Counselling and Psychotherapy – New School of psychotherapy and Counselling.
• Counselling Psychology Professional Doctorate – London Metropolitan University.
• Professional Doctorate in Counselling Psychology – University of East London.
33. The HCPC in response to this information drew attention to the fact that the Registrant had not provided any evidence of keeping his CPD up-to-date, and that if the Panel chose to retain conditions of practice then they should reflect the Registrant’s intention to undertake a course of study. First, the Panel should give consideration to a longer period of conditions to provide the Registrant opportunity to demonstrate that he had not only been able to join the course, but could provide evidence of compliance with the conditions through that course of study. The HCPC also stated that any placements arranged by the course provider and which required interaction with patients may only last for a relatively short period of time, therefore there may be a need for more frequent supervision and a shorter period between each supervision.
34. Mr Lazarus reflected on the points raised by the HCPC and conceded that a longer period of conditions may be appropriate in the specific circumstances of the Registrant securing a position on a three year course of study which would only start, at the earliest, this autumn.
35. Mr Lazarus also drew the Panel’s attention to the fact that evidence of continuing CPD had not been a condition, however the Registrant has not been totally inactive. The Registrant had:
• Undertaken two sets of workshops over the past year.
o One relating to complex trauma which was a single session.
o Four workshops, believed to be of two days each, relating to supervision training.
• Begun training to work as a volunteer for the Samaritans. This training and mentoring had started in February this year, but the Registrant had stopped three weeks ago to allow him time to prepare for this hearing.
36. In response to the HCPC point that a more severe restriction may now be appropriate. Mr Lazarus mentioned that it was difficult enough for the Registrant to gain acceptance onto his chosen courses with conditions, but suspension may preclude him completely from gaining a place.
37. It was emphasised that the Registrant accepted that he was in a very difficult position and was an unattractive candidate for employment. It was to his credit that he had identified a way for him to retrain so that he could return to practise, but there was no certainty to this at all. The Registrant had quite rightly refrained from advertising for private client work as this was not a safe and sensible thing to do. Until his course of study could commence the Registrant would continue to see his one private patient and have supervision from Mr W, as well as undertaking his voluntary Samaritan role as a lay person.
38. In undertaking its task today the Panel is conducting a comprehensive appraisal of the Registrant’s current abilities with a view to establishing whether he is now fit to return to unrestricted practice. The Panel is not undertaking the task of rehearing the matters that had been brought against the Registrant nor going behind the previous findings.
39. The Panel noted the HCPC’s position remained that the Registrant had not complied with the conditions imposed on him and had failed to provide this Panel with any evidence of his attempts to do so. The Panel noted that Mr Lazarus accepted that there was nothing to demonstrate remediation or for the various reasons advanced for the lack of ability to provide evidence of compliance with Conditions 7 and 8.
40. This Panel has taken into account the HCPC documentation placed before it and has heard and given appropriate weight to the statement made by Mr Lazarus on behalf of the Registrant. It has heard the parties’ submissions; taken and accepted the advice of the Legal Assessor and it has reminded itself of the terms of the HCPTS Practice Notes on Fitness to Practise and the HCPC Indicative Sanctions Policy.
41. The Panel noted that both parties accepted that there had been no remediation and that the Registrant’s fitness to practise was therefore impaired. It was however a matter to be considered and determined by this Panel. In this regard the Panel noted that there had been nothing further furnished to the Panel today to demonstrate increased insight or evidence of appropriate training. In the absence of this information the Panel has concluded that on the personal component of its decision the Registrant remains impaired.
42. In relation to the public interest element of its decision, the Panel noted that conditions had now been in place for two and a half years and there had been no evidence of the Registrant undertaking steps to address the personal failings that had led to the finding of misconduct. The public would rightly be concerned if in the absence of any obvious willingness to engage or remediate if a registrant were allowed to return to unrestricted practice. The Panel has therefore concluded that there is impairment on this component too.
43. The Panel then went on to consider which level of restriction to impose. It took into account the fact that there was nothing to support it taking no further action or offer mediation.
44. In relation to the imposition of a Caution Order the Panel noted the guidance on this at paragraph 28 which stated:
“A Caution Order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial actions.”
45. The Panel does not accept that this was a single incident, nor that it could be considered relatively minor. The Registrant has so far failed to show insight and has failed to undertake steps to remediate his conduct. The Panel has therefore concluded that this level of sanction is not proportionate given the lack of insight, and in the absence of any evidence of remediation.
46. The Panel considered the following crucial to its consideration of whether a conditions of practice order remained the appropriate restriction to impose. These were:
• Conditions had been in place for over two and a half years.
• In this time the Registrant has not provided a panel with a reflective piece of writing which had shown that he had understood the nature of his failings and had gained insight into how those failings had arisen.
• The Registrant has failed to comply with 2 of the conditions imposed on him.
• There is no supporting evidence of the efforts which the Registrant has made to find suitable employment either paid or unpaid.
• The guidance at paragraph 33 which states “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”.
• The Panel has heard in Mr Lazarus’ statement that:
o The Registrant has attended workshops.
o The training the Registrant has undertaken since February 2019 with the Samaritans.
o The supervision he has received on a regular basis from Mr W.
o The names of the courses he intends applying for.
There is however no supporting evidence of these matters before the Panel.
• The Registrant stated that he had stopped his training with the Samaritans three weeks ago to prepare for this hearing, however he has not presented any of the supporting information mentioned above, nor has he undertaken the preparation of a reflective piece of writing which was required.
• There is considerable uncertainty as to whether the courses identified by the Registrant will be workable with conditions of practice or capable of being joined if he is suspended.
47. The Panel considers the information placed before it by Mr Lazarus provides a mixed message. This process of review is a legal process which has to be adhered to. The Panel has taken seriously the fact that there has been noncompliance with the conditions of practice and no tangible evidence of a determination or willingness to comply with a further set of conditions. The Panel was of the view that the Registrant has had 30 months of conditions. He has had ample opportunity to write a reflective piece, as well as providing evidence of addressing the issues of report writing and professional boundaries. This could have been done despite the Registrant’s difficulties in obtaining employment.
48. The Panel is encouraged that the Registrant wants to do the educational courses he has described, however the Panel notes that there is uncertainty about his ability to successfully enroll upon these courses. This willingness to partake in education going forward does not however resolve the fact that to date the Registrant has done little to show his willingness to engage in this regulatory process or to remediate his failings. The Panel has therefore little confidence that a further set of conditions will produce the much needed demonstration of insight and compliance. The Panel has therefore concluded that condition of practice will serve little purpose.
49. The Panel has therefore concluded that a short period of suspension is appropriate and proportionate in this instance at this time. It will provide the Registrant additional time to reflect on his previous behaviour and take the opportunity to resolve the issues previously identified.
50. The imposition of a period of suspension sends a clear message to the Registrant that he must take this review process seriously, and to the profession and the public that the process should be respected and adhered to. This measure will provide public protection and it is in the wider public interest, as it demonstrates an upholding of standards and the maintenance of the reputation of the profession and the regulatory process.
51. The Panel considers that the period of suspension is to be 6 months, sufficiently long to provide the Registrant with the ability to demonstrate his commitment to remediation of his failings and future training. The Registrant will be able during that time to ask for an early review if he is able to furnish the requisite evidence before the expiration of this Order.
52. Whilst this Panel cannot prescribe information which a future reviewing panel may wish to see, this Panel considers that the Registrant provides information which would demonstrate that he has addressed the matters identified by the substantive panel and the two reviewing panels, i.e that which has previously been requested by the conditions orders.
The Registrar is directed to suspend the registration of Mr Philip Ma for a period of 6 months upon the expiry of the current Conditions of Practice Order.
Any Order imposed today will apply from 2 July 2019.
This Order will be reviewed again before its expiry on 2 January 2020.