Miss Rebecca J D Overton-Applebee

Preliminary Matters

Hearing in Private

1. At the beginning of the hearing, the Panel considered an application by Ms Burke, on behalf of the HCPC, for parts of the hearing to be conducted in private, as reference would be made to the Registrant's health and private life.

2. Mr Oestreicher, on behalf of the Registrant, supported the application.

3. The Panel heard the advice of the Legal Assessor, which it accepted and incorporated into the decision set out below.

4. The Panel had regard to Rule 10(1)(a) of the Health and Care Professions Council (Conduct Committee) (Procedure) Rules 2003 (the ‘Rules’) which states:

“At any hearing

(a) the proceedings shall be held in public unless the Committee is satisfied that, in the interests of justice or for the protection of the private life of the registrant, the complainant, any person giving evidence or of any patient or client, the public should be excluded from all or part of the hearing;”

5. Accordingly, the Panel determined that those parts of the hearing that concern the Registrant's health and private life should be conducted in private.

Background

6. The Registrant was employed by the Gloucestershire Hospital NHS Foundation Trust (the Trust) from 22 July 2002, initially as a Nursing Auxiliary, and subsequently as an Operating Department Practitioner (ODP) after she had qualified in or about November 2006. She worked in the private sector between December 2006 and August 2008, after which she re-joined the Trust as a Band 5 Orthopaedic Scrub Practitioner and subsequently moved into the Recovery Unit.

7. On the dates identified in the Allegation, between February 2012 and March 2012, whilst on duty, the Registrant took Codeine Phosphate from Trust supplies and falsified the controlled drugs record book to make it appear that patients had been given the Codeine Phosphate. In relation to Particular 2, the Registrant was arrested and given a police caution on 7 March 2012.

8. The panel at the final hearing in June 2013 heard that Codeine Phosphate is a mild pain killer that should not be used over long periods as it has an addictive property. It is a prescription drug that cannot be bought over the counter. That panel took account of the number of occasions when the Registrant had falsely signed the drug out of the controlled medications store in the names of patients when she had in fact self-administered the drugs. The facts were admitted and found proved in relation to Particulars 1, 2, and 3. The Registrant admitted dishonesty, misconduct and impairment as alleged.

9. The Registrant acknowledged at the substantive hearing in June 2013, that the allegations constituted serious matters. The substantive hearing panel noted that self-administering medication whilst on duty was a matter of serious concern. Although there was no evidence of actual patient harm, the Registrant's actions had exposed patients to a risk of harm in that, having been falsely recorded as receiving analgesia, they may have been denied pain management when it was genuinely required. It recommended that the Registrant provide to any reviewing panel evidence of remedial steps to preclude repetition as well as evidence of maintenance of professional skills and knowledge.

10. The first review took place on 12 June 2014. The panel at that hearing concluded that the Registrant had not provided any medical evidence which could have helped in determining whether there was any current risk of Codeine Phosphate misuse and had taken few steps towards maintaining her Continuing Professional Development (CPD). She had not used any resources other than reading magazine articles and remained of the opinion that she had only taken Codeine Phosphate and that was "not a major drug". She expressed little insight into the effect of her actions on service users. That panel ordered a suspension for a further one year.

11. At the second review on 24 June 2015 the panel noted that, since the previous hearing, the Registrant had given birth and, as a result of her personal circumstances, she had been unable rather than unwilling to remedy the failings in her practice or to address the recommendations made by the previous panel. The second reviewing panel noted that, in a letter dated 18 June 2015, the Registrant indicated the personal difficulties that she had to deal with and it took account of her commitment to remaining on the Register as an ODP. She expressed in that letter her remorse for what she had done in the past and expressed a wish to eventually return to her profession.

12. That second reviewing panel concluded that a Suspension Order for a further 12 months was the appropriate and proportionate order. It indicated that a future reviewing panel would be assisted by: independent medical evidence to show that the Registrant had been free from the use of Codeine Phosphate for a substantial period; evidence of achievement of insight into dishonesty; and evidence that the Registrant had taken steps to maintain her CPD.

13. The third review hearing took place on 17 June 2016. That third reviewing panel concluded that although the Registrant had not provided the information suggested by the previous panels, for evidence of remediation, this was not due to a lack of desire by the Registrant, but rather due to her full time caring responsibilities. That panel noted that the Registrant had written a letter detailing her reflections, as well as providing a letter from her GP, dated 3 June 2016, which indicated that the Registrant's own health was being investigated and treated. The third reviewing panel extended the Suspension Order for a further 12 months and gave similar guidance which the previous panels had given of the areas of information which may assist a future reviewing panel.

14. The fourth review hearing took place on 27 June 2017. That reviewing panel concluded that the matters which had led to the Suspension Order had not been fully addressed or remediated, although it acknowledged that there were understandable reasons for that. It determined to extend the Suspension Order for a further 9 months, and made further, similar recommendations of the information which may assist a future reviewing panel. This panel also made references to this being the Registrant's “last chance to remediate her misconduct”.

15. The fifth review hearing took place on 12 March 2018. Although the Registrant was not present at that hearing, she had provided written representations for the panel's consideration. The panel concluded that the Registrant's written reflective piece of 9 March 2018 was “genuine and powerful” and demonstrated that she had developed considerable insight and remorse into her actions and her dishonesty. The residual concern of the panel was the Registrant's state of health and medication regime.

16. In all the circumstances, the fifth reviewing panel concluded that a Suspension Order for a further period of 7 months was the appropriate and proportionate response. In deciding upon this length, the panel had regard to the representations of the Registrant's Representative that a further review date be scheduled for October 2018, at a date to be fixed after consultation with all parties. This date would be anticipated to give the Registrant the opportunity to participate in person or by telephone, and to provide up to date medical and other relevant information to confirm what medication she is taking and any coping strategies she has in place to satisfy that there is no longer a risk of repetition.

17. The sixth review took place on 26 October 2018. The Panel found that there had been no significant change since the previous review hearing. The panel accepted that the Registrant remained under the care of her GP.

18. The Panel found that the Registrant had engaged with the HCPC throughout the proceedings and the fifth reviewing panel had found that her written reflective piece of 9 March 2018 was “genuine and powerful” and demonstrated that she had developed considerable insight and remorse into her actions and her dishonesty.

19. Nevertheless, the Panel found that the Registrant had not provided evidence, in particular medical evidence, to allay the risk of repetition of the misuse of drugs. The Registrant had also not provided any evidence of CPD. The Panel could therefore not be satisfied that the concerns underpinning the Registrant's impaired fitness to practise had been overcome.

20. Turning to sanction, the panel extended the Suspension Order by a period of 12 months. The Panel imposed this sanction to “provide sufficient public protection while leaving open the possibility of remediation taking place and providing objective medical evidence or, alternatively, affording the Registrant the opportunity to explore with the HCPC the possibility of Voluntary Removal from the register, should she wish to do so”.

21. Finally, the reviewing panel considered that any future panel reviewing this Order would be assisted by:

• Detailed information from the Registrant's GP in writing of the Registrant's current medication regime and their assessment of the Registrant's current risk of addiction to medication for pain relief.

• Information from the Registrant as to how she is avoiding the misuse of prescribed medication in the light of her medical history.

• Documentary evidence of any CPD undertaken.

This Review Hearing

Submissions and Evidence

22. At this hearing Ms Burke reminded the Panel of the background to this case and accepted that the Registrant had engaged in the regulatory process and demonstrated that her insight and remorse had developed over time.

23. She reminded the Panel that the Registrant had previously declined to pursue a Voluntary Removal Agreement (VRA) in November and December 2018. The Registrant has not adduced any evidence of remediation in relation to the crucial question of her drug use. Accordingly, she submitted, the Registrant’s fitness to practise remained impaired.

24. Ms Burke also reminded the Panel that this was the seventh review. She drew the Panel’s attention to paragraphs 121 and 131 (and following) of the HCPC “Sanctions Policy” (2019) and submitted that suspension was no longer appropriate and a Striking Off Order was the only appropriate sanction. She submitted that if the Panel were not persuaded of that, a further period of suspension should be for no longer than 6 months to enable the Registrant to engage with a VRA, if the HCPC considered this appropriate.

25. The Registrant attended and gave evidence by telephone link, with the agreement of both parties and the Panel.

26. In her oral evidence, the Registrant repeated her commitment to her daughter and the extent to which her insight had developed still further through seeing things as a patient. She also told the Panel that she had realised, through a painful learning process, that she could not do everything. This had led to her being committed to pursuing a VRA so that she could leave the profession with some dignity, admitting her own failures.

27. Mr Oestreicher submitted that, in the light of the evidence, it would be appropriate to impose a further period of suspension to allow the Registrant to pursue the VRA, to which she was now committed.

Decision

28. The Panel heard the advice of the Legal Assessor which it accepted and incorporated into its decision set out below.

29. First, it reminded itself of its powers under Order 30(1) of the Health and Social Work Professions Order 2001 to extend the period for which the order has effect or impose any order the First Panel could have imposed.

30. It reminded itself of the importance of a review hearing, described by the Supreme Court in Khan v GPhC [2016] UKSC 64 as “the ‘teeth behind the sanctions other than erasure and should focus the doctor’s mind on the need to undertake any necessary remediation”.

31. It followed the ordered sequence of decision making set out by Blake J in Abrahaem v General Medical Council 2008 EWHC 183:

• address whether the fitness to practice is impaired before considering conditions;

• whether all the concerns raised in the original finding of impairment have been sufficiently addressed to the Panel's satisfaction;

• in practical terms there is a persuasive burden on the practitioner at a review to demonstrate that he or she has fully acknowledged why past professional performance was deficient and through insight, application, education, supervision or other achievement sufficiently addressed the past impairments.

32. It bore in mind the guidance given to panels by the Supreme Court in Khan (above), to focus on the Registrant’s current fitness to practise:

“The guidance therefore makes clear that the focus of a review is upon the current fitness of the registrant to resume practice, judged in the light of what he has, or has not, achieved since the date of the suspension. The review committee will note the particular concerns articulated by the original committee and seek to discern what steps, if any, the registrant has taken to allay them during the period of his suspension”.

33. The Panel had regard to the over-arching objective of protecting the public which involves the pursuit of the following objectives

• to protect, promote and maintain the health, safety and well-being of the public;

• to promote and maintain public confidence in the professions regulated under this Order; and

• to promote and maintain proper professional standards of conduct for members of those professions.

34. It also bore in mind that in deciding whether the Registrant’s fitness to practise is still impaired it should follow the approach of Dame Janet Smith endorsed by the High Court in CHRE v NMC and P Grant [2011] EWHC 927 (Admin):

“Do our findings of fact in respect of the (registrant’s) misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:

• has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

• has in the past brought and/or is liable in the future to bring the …..profession into disrepute; and/or

• has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the ……profession; and/or

• has in the past acted dishonestly and/or is liable to act dishonestly in the future”.

35. The Panel considered first whether the Registrant’s fitness to practise remains impaired. It bore in mind that there had already been a finding of impairment and asked itself whether the Registrant had demonstrated that she had taken sufficient steps to allay the residual concerns of the previous panels, and in particular the risk of further abuse of drugs resulting in further misconduct.

36. The Panel found that the Registrant had not provided any evidence to allay this concern.

37. The Panel found that while that risk of relapse remained, the Registrant was liable to put patients at unwarranted risk of harm, and was liable to bring the profession into disrepute.

38. The Panel concluded that the Registrant's fitness to practise continues to be impaired by reason of her misconduct. Both the public and the personal elements of impairment are engaged. The Registrant is not safe to practise given her current impairment and the public interest requires that she should not be in a position to practise unrestricted. 

39. The Panel then considered what, if any, sanction it should impose upon the Registrant. The Panel had careful regard to the HCPC “Sanctions Policy” (2019). It bore in mind that the purpose of a sanction is not to punish the Registrant but to protect the public and the wider public interest.

40. It bore in mind that any sanction must be the least restrictive that will protect the public and must be proportionate to the risk posed by the Registrant, balancing the need to protect the public against the rights of the Registrant.

41. Having considered these issues, the Panel has determined that the misconduct issues in this case are too serious to be met with either no further action or a Caution Order.

42. The Panel next considered imposing a Conditions of Practice Order. The Panel considered paragraph 106 of the Sanctions Policy which provides:

“106. A conditions of practice order is likely to be appropriate in cases where:

• the registrant has insight;

• the failure or deficiency is capable of being remedied;

• there are no persistent or general failures which would prevent the registrant from remediating;

• appropriate, proportionate, realistic and verifiable conditions can be formulated;

• the panel is confident the registrant will comply with the conditions;

• a reviewing panel will be able to determine whether or not those conditions have or are being met; and

• the registrant does not pose a risk of harm by being in restricted practice”.

43. The Panel concluded that the Registrant had not provided the Panel with sufficient material to be able to draft workable conditions or be satisfied that she would comply with the conditions.

44. Next, the Panel considered extending the Suspension Order. It had regard to paragraph 121 of the HCPC “Sanctions Policy” which provides:

“121. A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:

• the concerns represent a serious breach of the Standards of conduct, performance and ethics;

• the registrant has insight;

• the issues are unlikely to be repeated; and

• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings”.

45. The Panel bore in mind that the Registrant was first suspended from practice in June 2013 and her suspension has already been reviewed six times. The Registrant has developed insight but has been unable to remediate in the way each panel has indicated is necessary if the Registrant is to return to practise.

46. The Panel also found that Ms Burke’s submission that the continuing cycle of reviews and suspensions is now helping no-one, least of all the Registrant, was correct.

47. The Panel accepts that it would be an exceptional course to impose a further period of suspension in the present circumstances. Nevertheless, the Panel decided to take that course for two reasons.

48. First, it wished to reflect the truly exceptional evidence of the Registrant’s struggle against almost overwhelming difficulties, as long as it can do so in a way that protects the public. Secondly, it was impressed by the Registrant’s evidence that she is now committed to pursuing a VRA in a way that she had not been in the past.

49. The Panel decided it was right and just to give the Registrant one last chance to end her career with a VRA rather than a Striking Off Order. This would be a resolution that would, in the view of the Panel protect the public and reflect the justice of this case, having regard to all that the Registrant has experienced and achieved since the initial misconduct.

50. Accordingly, the Panel makes a Suspension Order for 6 months. The Panel has fixed a short period to focus the minds of both the Registrant and the HCPC on doing all that is necessary to reach an agreement.

51. For the reasons set out above, the Panel found that it is not yet necessary to impose a Striking Off Order.

ORDER: The Registrar is directed to suspend the registration of Miss Rebecca J D Overton-Applebee for a further period of 6 months on the expiry of the existing Order.

The Order imposed today will apply from 23 November 2019.

This Order will be reviewed again before its expiry on 23 May 2020.

History of Hearings for Miss Rebecca J D Overton-Applebee