Mr Thomas Richard Sugarman

Profession: Dietitian

Registration Number: DT11872

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 25/11/2019 End: 17:00 02/12/2019

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

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

Whilst registered as a Dietician and during the course of your employment at Guy’s and St Thomas’ NHS Foundation Trust, you:

1. On or around 23 January 2017:

a. inappropriately assessed and/ or recorded a recommendation of a ‘normal consistency diet’ in an assessment plan for Patient A;

b. did not advise Patient A that dry biscuits were inappropriate for her recommended ‘soft consistency diet’;

c. ordered snacks for Patient A which were inappropriate for a ‘soft consistency diet’.

2. Between 13 July 2017 and 10 May 2018:

a. failed to complete adequate dietetic assessments for patients in that you did not:

i. obtain and/ or record an adequate history for the patients identified in Schedule 1;

ii. provide adequate and/ or appropriate dietetic advice to the patients identified in Schedule 2;

iii. address and/ or respond appropriately to patients’ dietary knowledge, concerns or misconceptions for the patients identified in Schedule 3;

iv. give appropriate written information to the patients identified in Schedule 4;

v. advise appropriately in relation to phosphate binders for the patients identified in Schedule

3. Between around January 2017 and May 2018, failed to provide and/ or arrange appropriate follow-up for the patients identified in Schedule 7.

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
Procedural matters
1. At the outset of the hearing Ms Brown informed the Panel that she proposed to defer making an application for an adjournment of the hearing until the Panel has heard from the two HCPC witnesses. Mr Millin indicated that the HCPC did not object to this proposal, but that the HCPC would object to an adjournment of the hearing. Ms Brown and Mr Millin agreed that, if this proposal was accepted by the Panel, the HCPC would not close its case and that Ms Brown’s application would follow immediately after the evidence from the HCPC witnesses.

2. Mr Millin also proposed that the Panel should consider and announce its decision on the facts and separate this stage from any consideration of the statutory ground or impairment, if those stages were reached. Ms Brown agreed with this proposal.

3. The Legal Assessor reminded the Panel of the requirement for the hearing to be fair to both parties.
4. The Panel agreed to the proposal for the Panel to hear the evidence of two HCPC witnesses and then hear Ms Brown’s application for an adjournment. This would be an efficient use of the time and would not create unfairness for either party.

5. The Panel also agreed to Mr Millin’s proposal for the separation of the factual determination from any other parts of the hearing.

Hearing in private
6. Ms Brown made an application for part of the hearing to be heard in private for the protection of the Registrant’s private life. Mr Millin informed the Panel that there were matters that could be heard in public, but that it was appropriate for the parts of the hearing that related to the Registrant’s health to be heard in private.

7. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note “Conducting Hearings in Private”.

8. The Panel decided that it was appropriate to hear part of the hearing in private where the matters related to the Registrant’s health. The remainder of the case should be heard in public.

Application for an adjournment – decision
9. The Panel accepted the advice of the Legal Assessor and considered the factors set out in the case of CPS v Picton including the potential prejudice to the Registrant if the adjournment were not granted, the need for expedition, the potential length of any adjournment, and the question of whether the Registrant’s representatives were at fault.

10. The Panel therefore did not accept the application to adjourn. 

Background
11. The Registrant is a registered Dietitian. He was employed at Guys and St Thomas’ NHS Foundation Trust (the “Trust”) as a Band 6 Specialist Renal Dietitian. The Registrant was responsible for renal patients on haemodialysis and pre-dialysis renal patients who attended an outpatient clinic service.

12. In January 2017, an incident occurred in relation to an elderly patient, Patient A. Patient A had previously been assessed and recommended a soft consistency diet by her Speech and Language Therapist.

13. On 23 January 2017, the Registrant made a note of the earlier recommendation for a soft consistency diet, but also ordered a normal diet and made an order for Patient A of dry biscuits with cheese and sausages.

14. Patient A sadly died on 30 January 2017 following the consumption of normal food whilst on a soft diet. The Trust prepared a serious incident investigation report (QIPS) which identified multiple errors and system factors which may have contributed to this incident, including the Registrant’s actions. KM, the Clinical Lead Dietitian, was one of the authors of the QIPS report.

15.  The Registrant was suspended on 13 February 2017. The Trust permitted him to return to work following finalisation of the QIPS report in May 2017. However, the Registrant was subject to a pcapability process involving a period of supervision and monitoring of his practice by LT, Band 7 Principal Renal Dietetian at the Trust.

Facts
16. At the outset of the hearing the Registrant made admissions to all the factual particulars with the exception of two patients (43 and 69). In his oral evidence it was clarified that the Registrant’s admissions included Patient 43.

17. The Panel heard evidence from LT. The Panel found that she was a credible witness. She was fair to the Registrant, acknowledging areas of his performance which were satisfactory. She was open and not defensive when describing her role in the capability process.

18. The Panel heard evidence from KM. The Panel found that he was a credible witness. He was fair and not defensive when describing his role in respect of the Registrant. His relationship with the Registrant appeared supportive.

19. The Panel heard evidence from the Registrant. The Panel found that he was a credible witness. He sometimes found it difficult to address the question asked and gave the Panel extraneous background information, losing the point in the process. The Panel found that this was not deliberate, but an aspect of the Registrant’s personality and his style of communication. The Registrant was doing his best to assist the Panel.

Particular 1
20. The Panel found particulars 1(a), 1(b) and 1(c) proved by the evidence of KM, the documentary evidence, the Registrant’s admission, and the Registrant’s evidence.

21. The Registrant’s involvement in the care of Patient A is summarised in the QIPS report as follows:
 “The dietician (sic) reviewed the patient on 23/01/17. The assessment conducted by the SLT team on the 20/01/2017 was acknowledged by the dietician (sic) and the change in diet consistency was noted but the dietician (sic) proceeded to recommend a plan of normal diet at the end of their review and assessment. Therefore, the dietitian’s plan contradicted the SLT’s recommendation. This was documented on both E-noting and EPR. The dietitian then made changes to the special orders system used by the catering department for extra snacks for the patient which included scrambled egg, sausage and cheese and biscuits. The dietitian did not handover any plan to the nursing staff and does not recall what the SLT consistency instruction sheet by the patient’s bed said or if anything was written on the nutrition communication board”.

22. The QIPS report identified a number of reasons why the patient was given a normal diet:
“The catering department were not informed of the change in patient dietary requirement. Patient continued to be provided a normal diet and cooked breakfast and a normal dietary supplement. The nursing and catering staff did not check to ensure the dietary requirement written on the nursing handover sheet and the nutritional board corresponded with the actual dietary intake being given to the patient. On the 20/2/17, the nurse in charge was not aware of the SLT review and new recommendation as this information was not handed over by the nurse to whom it was communicated to and this was not documented by the SLT team on E-noting which is the most common and usual place of reference for nursing staff on the urology wards for updates in patients conditions or assessments wards”.

23. The QIPS report identified patient factors, human factors and systems factors as contributing to the incident. The root cause was identified as:
 “Patient was given normal food (which led to aspiration) due to a lack of communication between the multidisciplinary team when changes in diet were made and regarding which items were suitable, including when queries arose. These mixed messages led to confusion as to what diet was suitable for the patient (including on the part of the patient herself)”.

Particular 2(a)(i)
24. The Panel found particular 2(a) proved by the documentary evidence, the evidence of LT, the Registrant’s admissions, and the Registrant’s evidence.

25. This particular involving the adequacy and recording of patient history concerned Patient 6, Patient 32, Patient 36, and Patient 46.

26. Patient 6 was taking a phosphate binder called Adcal to control or lower the level of phosphate in their blood. In respect of Patient 6 the Registrant failed to record in the electronic notes that the patient said they were taking 4 Adcal tablets. He incorrectly recorded that the patient said they were taking 6 Adcal per day.

27. Patient 32 was a Spanish speaking haemodialysis patient with a very high blood potassium level. A Spanish interpreter was present at the time of the consultation, but the Registrant failed to obtain a diet history from the patient thinking he had too little time despite there being sufficient time to do so.

28. The Registrant discussed Patient 36’s history, but failed to document that the patient reported a poor appetite, sometimes vomits post meals, and brings food into haemodialysis but never eats it. The care plan was also inaccurate because key points that had been discussed were not documented. They included encouraging the patient to trial bland foods and the use of a product called Calshake.

29. LT reviewed the Registrant’s notes for Patient 46 and found that the entire medical history was incorrect and most likely belonged to another patient.

Particular 2(a)(ii)
30. The Panel found particular 2(a)(ii) proved by the documentary evidence, the evidence of LT, the Registrant’s admission, and the Registrant’s evidence.

31. This particular involving the provision of adequate or appropriate dietetic advice involved Patient 33, Patient 36, Patient 37, and Patient 45.

32. In the Registrant’s consultation with Patient 33 he summarised the care plan that he would refer Patient 33 to the Social Worker. This was inappropriate because the patient had expressly not agreed to the referral.

33. In the consultation with Patient 36 the Registrant recommended “Renapro shake”. This product does not exist; the correct name of the product is “Renapro powder”. The Registrant used the correct terminology in the electronic notes, but this was not in accordance with his consultation with the patient.

34. In the consultation with Patient 37 the Registrant advised the patient to “continue with Nepro HP for now”, but did not clarify the quantity. The Registrant also did not advise on food fortification.

35. In the consultation with Patient 45 the Registrant advised the patient to reduce eggs to four per week with an additional two egg whites. Later in the consultation he returned to the subject and advised on egg intake again, contradicting himself by advising the patient to reduce eggs to seven per week. When the patient asked for advice on eating pork and beef, the Registrant advised that there were no restrictions. This was not adequate dietetic advice because he should not have advised this without reviewing the patient’s proposed protein intake per day. The Registrant also failed to advise the patient that nuts are high in phosphate and best avoided and to reduce or keep oily fish to once per month.

Particular 2(a)(iii)
36. The Panel found particular 2(a)(iii) proved by the documentary evidence, the evidence of LT, the Registrant’s admission, and the Registrant’s evidence.

37. This particular, involving the adequacy of his response to patients’ dietary knowledge, concerns or misconceptions, related to patients 17, 18, 34, and 47.

38. In the consultation with Patient 17 the patient informed the Registrant that she was following a “ketogenic” diet. The Registrant replied that he did not have concerns about the patient’s diet. The Registrant failed to probe about the “ketogenic” diet and the patient’s protein and vegetable intake. He was therefore unable to advise appropriately. He also did not assess if Patient 17 was consuming an excessive amount of protein to replace the carbohydrate. Patient 17 asked about consumption of fruit and vegetables. The Registrant did not clarify portion sizes of fruit and vegetables to ensure that the patient’s intake of potassium was not excessive. The patient asked about dark chocolate, but the Registrant did not answer the question.

39. Patient 18 told the Registrant that he was following a low salt diet and did not eat potato crisps. The Registrant did not explore the patient’s rationale for this to assess if the patient’s dietary knowledge and understanding were correct. Patient 18 also said that he needed greater variety in his diet. The Registrant acknowledged the concern, but did not respond to it by suggesting alternatives. Patient 18 also asked “Why is my phosphate high?”. The Registrant replied “In general you’re not having too many high phosphate foods”. The Registrant should have reassured Patient 18 that the intake of high phosphate foods did not appear to be high, and it was unlikely to be the diet contributing to a high blood phosphate.

40. Patient 18 asked “should I have fresh ham instead of packet?” The Registrant replied “you could have pork or beef as an alternative”. The Registrant did not answer the question and failed to give any clarification.

41. During the consultation Patient 34 reported that she was having “…a jacket potato which I know I’m not meant to have”. The Registrant did not respond. He should have explained that the patient was allowed to have a jacket potato given that her latest blood potassium result and trends were acceptable. Patient 34 said “It’s a hassle going out because you can’t have lots of things” and reported that she went out about once per month. The Registrant replied “I’m not concerned with what you have once a month so its okay to have Italian”. This response came across as dismissive.

42. Patient 34 also asked “I’m fed up making soup as you have to boil the veges twice don’t you”. The Registrant nodded in agreement, which was an incorrect response as double boiling is no longer advised.

43. Patient 47 explained to the Registrant that she was buying meat from the outdoor market. The Registrant did not pick up that meat brought from an outdoor market would be high risk food to be avoided.

44. Patient 49 asked the Registrant “I avoid offal, but why am I still chubby?”. The Registrant did not answer. Patient 49 also said “I used to be on Renagel but threw it away because it made my bones ache”. The Registrant did not respond to this misconception. He should have clarified that high phosphate levels can cause aching bones, whereas phosphate binders are beneficial because they help bring down the blood phosphate.
Particular 2(a)(iv)
45. The Panel found particular 2(a)(iv) proved by the documentary evidence, the evidence of LT, the Registrant’s admission, and the Registrant’s evidence.

46. This particular involving the failure to provide written information involved Patient 8, Patient 32, and Patient 34.

47. During the consultation with Patient 8 the Registrant discussed the concept of restricting fluids, but did not give the patient the standard “Fluid Diet sheet” as would be expected.

48. During the consultation with Patient 32, a Spanish speaking patient, the Registrant did not give her the pictorial diet sheets “Foods high in potassium” and “Fruit and vegetables high in potassium”.

49. During the consultation with Patient 34 the Registrant discussed a low phosphate diet but did not give the patient the standard “Low Phosphate Diet Sheet”.

Particular 2(a)(v)
50. The Panel found particular 2(a)(v) proved by the documentary evidence, the evidence of LT, the Registrant’s admission, and the Registrant’s evidence.

51. This particular involving a failure to advise appropriately in relation to phosphate binders concerned Patient 2, Patient 4, and Patient 43. A phosphate binder is medication taken by renal patients to control or lower phosphate levels in their blood.

52. LT reviewed the Registrant’s notes for Patient 2 and identified that he had recorded incorrect information in relation to the phosphate binders. The Registrant recorded that Patient 2 was on “Calcichew 1 tab with meals (tds)” when in fact the patient was prescribed Sevelamer 1.6 mg tds with meals. The Registrant also incorrectly documented that 1 Renagel should be taken with toast when this would not be best practice due to toast having negligible phosphate content. The Registrant did not explain the rationale for phosphate binders or discuss with Patient 2 exploring an alternative phosphate binder as Sevalamer was making the patient feel “rotten”.

53. In the consultation with Patient 4 she reported taking the phosphate binder “Calcichew 2 with breakfast and dinner” which was double the dosage prescribed by the consultant. The Registrant should have discussed this with Patient 4 and informed Patient 4 that he would liaise with a senior dietitian and a consultant about the the Calcichew dosage.

54. The Registrant recommended to Patient 43 that she take 1 phosphate binder before breakfast (but only if she is having eggs), 3 before lunch (main meal) and 2 before evening meal (usually sandwiches). Patient 43 did not agree and said that she should be having six phosphate binders per day. The Registrant failed to clarify that this was still a dosage of 6 per day, but divided according to the likely phosphate content of the meals.

55. Patient 43 also reported that she found Phosex (prescribed phosphate binder) large, but was able to take them easily by breaking them in half. The Registrant was about to inappropriately change the patient’s phosphate binder to a chewable form when this was not necessary because there were no issues with tolerability.

Particular 2(b)
56. The Panel found particular 2(b) [with the exception of Patient 35] proved by the documentary evidence, the evidence of LT, the Registrant’s admission, and the Registrant’s evidence.
57. This particular involving a failure to refer patients for onward assessment and/or treatment involved Patient 9, Patient 13, and Patient 35.

58. In the consultation with Patient 9 it became evident that Patient 9’s main concern was wanting to lose weight. The Registrant should have asked the patient if she wanted to be re-referred to the renal weight management clinic for further support, but did not do so.

59. Patient 13 reported that her waking blood sugar levels were unusually high. Patient 13 may have benefitted from a dietetic assessment by a specialist diabetes dietitian, but the Registrant failed to ask Patient 13 whether she would like him to investigate options regarding this.

60. In the consultation with Patient 35 she was upset and tearful. LT was of the opinion that the Registrant should have asked Patient 35 whether she would like him to refer her to a renal psychologist.

61. The Registrant explained that he considered this option, but decided that it was not appropriate in all the circumstances. He took the view that the conversation would further upset the patient, particularly because there was no privacy for the conversation. Further, he did not consider it to be an appropriate referral.

62. The Panel found that although the Registrant did not refer Patient 35, this may have been a matter of reasonable clinical judgement and the HCPC have not proved that this was a “failure” on his part.

Particular 3
63. The Panel found particular 3 proved by the documentary evidence, the evidence of LT, the Registrant’s admission, and the Registrant’s evidence.

64. This particular involves a failure to provide and/or arrange appropriate follow-up for Patient 56, Patient 64, Patient 69 and Patient 73.

65. The Registrant reviewed Patient 56 on 9 February 2018 and recorded that he would review the patient in approximately two months. However, he did not do this. Patient 56 was reviewed by another dietitian on 10 July 2018.

66. Patient 64 was seen by the Registrant on 28 November 2017. The Registrant recorded the patient’s dry weight loss and that he planned to check the patient’s weight in 3-4 weeks. He failed to carry out this check himself or hand over the case to anyone else for the check to be carried out.

67. Patient 69 was seen by the Registrant on 11 April 2018. The Registrant informed Patient 69 that he would arrange for Fortisip Compact Protein to be added to the repeat prescription by the GP. By 13 June 2018 the Registrant had not arranged a repeat prescription for Patient 69.

68. This was a failure on the Registrant’s part despite the fact that Patient 69 may have continued to receive the supplement. The Registrant’s omission exposed the patient to the risk of harm.

Decision on Grounds
69. The question of whether the facts found proved constitute misconduct or a lack of competence is for the judgment of the Panel and there is no burden or standard of proof.

70. When considering a lack of competence the Panel assessed the Registrant against the standards that are required of a Band 6 specialist renal dietitian. It considered whether the standard of the Registrant’s work was unacceptably low and whether the particulars covered a fair sample of the Registrant’s work.

71. There is no statutory definition of misconduct, but the Panel had regard to the guidance of Lord Clyde in Roylance v GMC (No 2) 1 AC 311: “Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a practitioner in the particular circumstances…”. The conduct must be serious in that it falls well below the standards.

72. Ms Brown invited the Panel to conclude that the Registrant’s actions and recording for each patient might be regarded as acceptable when the entirety of each patient’s notes were read. The Panel carefully read the patient notes, but did not accept Ms Brown’s submission. Patient A suffered actual harm and the Registrant’s errors and failures in particulars 2 and 3 had the potential to put patients at risk of harm. For example, a failure to take a complete and accurate diet history involves a risk that the Registrant might give incorrect advice to the patient, or that other healthcare professionals reading the notes might make an incorrect assessment. A failure to provide appropriate dietary advice potentially has implications for the patient’s health. Patients may become confused or may seek alternative advice which may be harmful. In the context of renal patients, the risks include malnutrition, or high blood potassium and/or phosphate which can affect the heart or lead to renal bone disease. When she was supervising the Registrant LT stepped in on a number of occasions to ensure that patients were given the correct dietary advice.

73. In the Panel’s judgment it was not appropriate to characterise the Registrant’s acts and omissions within particulars 2 and 3 as misconduct. The evidence of LT and KM was that the Registrant had good intentions and was fully engaged in the process of trying to raise the standard of his practice to an acceptable level. There was nevertheless a pattern of behaviour and repetition of similar errors indicating a lack of skill and ability. The issue was not the Registrant’s knowledge, but his ability to adapt his knowledge to the needs of particular patients and situations. In the Panel’s judgment there was not a significant element of culpability; the Registrant was making efforts to improve his practice but the improvements were insufficient to address the concerns.

74. The Panel carefully considered whether the Registrant’s actions in particular 1 in relation to Patient A should be regarded as misconduct. The Registrant made a very serious error, and his error was identified as one of the human factors that contributed to Patient A being given a normal diet. While fully recognising the seriousness of the Registrant’s error, KM’s view was that this was not an intentional or culpable act on the part of the Registrant.

75. The Panel noted the conclusions of the QIPS report which highlighted the involvement of other individuals who also made errors, and system failures that contributed to the incident. The Registrant’s action was part of the background that led to confusion about Patient A’s diet, but it was not the immediate cause of the incident.

76. In the Panel’s judgment the Registrant’s error in his care of Patient A was similar to the types of error he made when supervised by LT. He had the knowledge to give the right advice, but did not give that advice. In the Panel’s judgment the Registrant’s conduct in particular 1 was not sufficiently culpable to be characterised as misconduct. It was part of the pattern of errors and should be considered with particulars 2 and 3.

77. The Panel considered whether the sample of the Registrant’s work identified in particulars 1, 2 and 3 could be described a “fair sample”. The Panel was satisfied that the particulars covered a sufficient number of patients and a range of dates and types of intervention.

78. Although some caution is appropriate because of the stress associated with giving evidence, the Panel noted that when answering questions the Registrant seemed unable to select the necessary information to answer the question, frequently went off on tangents, and struggled to get to the point.

79. The Registrant’s errors were not limited to the period he was under the additional stress of investigation and/or supervision. The important error involving Patient A occurred prior to the commencement of the capability process.

80. The Panel considered the Standards of Proficiency for Dietitians (2013) and identified a breach of the following:

Standard 1 in its entirety
Standard 4 (4.1, 4.2, 4.3, 4.5)
Standard 8 (8.1, 8.3, 8.4, 8.6, 8.8)
Standard 10 (10.1)

81. In the Panel’s judgment the departure from the required standards was serious and the Registrant’s acts and omissions in particulars 1, 2 and 3 constituted a lack of competence.

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

83. The Panel first considered the personal component which is the Registrant’s current level of competence.
84. The Registrant is currently employed in a clerical role in the NHS. He told the Panel that there have been no significant difficulties in his current role. The Registrant wishes to return to resume his career as a Dietitian. He envisages that this would be in a Band 5 role and probably not in a specialist area.

85. The Panel considered the level of the Registrant’s insight. In the Panel’s judgment the Registrant has limited insight into the level of risk his failings present to patients. His managers said that when presented with an error, he accepted it, but that he did not recognise mistakes independently. Whilst the Registrant clearly cares about patients and wants to do the right thing, when asked about the risk his practise failings presented to patients, it took a long time whilst giving evidence for him to acknowledge the potential harm. Further, he seemed unable or unwilling to acknowledge issues relating to the reputation of the profession.

86. Further, the Registrant is not currently working as a Dietitian and has not demonstrated remediation of the communication, advice, and recording errors in the Allegation.

87. The Panel noted that the Registrant is clearly keen to improve his practice and has been viewing videos about good patient interaction. However, the Registrant has not had the opportunity to put his learning into practice with patients in stressful situations and the Panel had concerns about his presentation in the hearing.

88. In the Panel’s judgment the Registrant’s fitness to practise is impaired on the basis of the personal component.

89. The Panel next considered the wider public interest considerations including the need to protect patients from the risk of harm, uphold standards of conduct and behaviour, and to maintain confidence in the profession and the regulatory process.

90. The Panel considered that the most important factor in this case is the need to protect patients from the risk of repetition of the errors. Informed members of the public would be concerned about the ongoing risk of repetition. The incident involving Patient A was also very serious and would be of concern to informed members of the public. Public confidence in the profession and the Regulator would be undermined if the Panel did not conclude that the Registrant’s fitness to practise is currently impaired.

91. The Panel decided that the Registrant’s fitness to practise is currently impaired on the basis of the personal component and the public component.

Decision on sanction
92. The Panel heard submissions from Ms Thompson and Ms Brown. Ms Brown invited the Panel to consider a Conditions of Practice Order. She submitted that a Suspension Order would not permit the Registrant to remediate the deficiencies in his practice and would not serve a purpose.

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

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

95. The Panel decided that the aggravating features in this case were:
• a long period of underperformance;
• limited insight;
• harm to Patient A and the risk of harm to other patients.

96. The Panel decided that the mitigating features were:
• no previous regulatory history;
• no ill intent;
• the Registrant’s full engagement and co-operation with his employer and the HCPC;
• the Registrant’s remorse in relation to Patient A;
• the pressures of the capability process, including pressures on the Registrant to complete work within a timescale.

97. The Panel considered the option of taking no action, but decided that this was not a sufficient response to the finding of current impairment in this case and would not address the risk of repetition the Panel has identified.

98. The Panel next considered a Caution Order. The Panel did not consider that the guidance in the ISP for Caution Orders applied. The lack of competence was not isolated or minor, the Registrant’s insight is limited and the Panel has concluded that there is a risk of repetition.

99. The Panel next considered a Conditions of Practice Order. The Panel was sufficiently confident that the Registrant would comply with conditions and that his insight was sufficient that conditions could be considered. The Panel was also of the view that there was a prospect that the Registrant’s lack of competence could be remedied. The Panel therefore considered carefully whether realistic conditions of practice could be formulated that would be sufficient to protect the public.

100. The Panel was of the view that conditions of practice that would be effective to protect the public would be highly restrictive. They would require the Registrant to be in a role of lesser complexity/seniority, directly supervised and every record of a patient appointment reviewed. The level of scrutiny would be at least as high as the supervision provided by LT. In the Panel’s judgment any lesser degree of scrutiny would not be sufficient, given the persistence of the problems under LT’s supervision.

101. The Panel took the view that the necessary conditions of practice would be so restrictive that they would operate as a Suspension Order. They would not be realistic and would be unlikely to assist the Registrant’s rehabilitation to the profession. For these reasons, the Panel were unable to formulate conditions of practice which would be sufficient to protect the public.  

102. The Panel next considered the option of a Suspension Order. A Suspension Order prevents the Registrant practising as a Dietitian. It would protect the public and is the most restrictive sanction available to the Panel. 

103. The Panel decided that a twelve month period was appropriate and that any lesser period would not be sufficient. In the Panel’s judgment a twelve month period will allow the Registrant time to reflect on the past events and to improve his communication skills. 

104. In reaching its decision the Panel took into account the Registrant’s interests including his financial interests and his interest in returning to practise as a Dietitian so that he can demonstrate remediation of the deficiencies in his practice. The Panel decided that the Registrant’s interests were outweighed by the need to protect the public.

105. The Suspension Order will be reviewed before it expires. A reviewing Panel may be assisted by:
• a reflective piece focusing on the findings of the Panel and the risks to patients;
• evidence of his ability to keep accurate records;
• references or testimonials from paid or unpaid work;
• evidence that the Registrant has embedded improvements in his communication skills and can:
- reflectively and actively listen and absorb information;
- adapt his knowledge to specific situations; and
- communicate clearly.

Order

The Registrar is directed to suspend the registration of Mr Thomas Richard Sugarman from the date this Order takes effect.

Notes

The Order will be reviewed before its expiry.

Right of Appeal:
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health and Social Work Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you.  The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

European alert mechanism:
In accordance with Regulation 67 of the European Union (Recognition of Professional Qualifications) Regulations 2015, the HCPC will inform the competent authorities in all other EEA States that your right to practise has been prohibited.

You may appeal to the County Court against the HCPC’s decision to do so.  Any appeal must be made within 28 days of the date when this notice is served on you.  This right of appeal is separate from your right to appeal against the decision and order of the Panel.

Interim Order:
1. Ms Thompson made an application for an Interim Suspension Order for the maximum period of 18 months to cover the 28 day appeal period and the time that might be required to conclude any appeal. Ms Brown did not oppose the application.

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

3. The Panel decided that an interim order was necessary for the protection of the public. The Panel has identified a risk of repetition and therefore there is a potential risk to the public which is ongoing. The Panel also considered that an interim order was otherwise in the public interest. A member of the public would be shocked or troubled to learn that there was no interim restriction in place.

4. The Panel did not consider that the risks in this case could be addressed by an Interim Conditions of Practice Order because of its earlier conclusions that it could not formulate realistic conditions of practice that would be sufficient to protect the public.

5. The Panel decided to make an Interim Suspension Order for a period of 18 months, the maximum duration, to allow sufficient time for the disposal of any appeal.

 

 

Hearing History

History of Hearings for Mr Thomas Richard Sugarman

Date Panel Hearing type Outcomes / Status
18/11/2020 Conduct and Competence Committee Review Hearing Suspended
25/11/2019 Conduct and Competence Committee Final Hearing Suspended