Miss Rebecca J D Overton-Applebee

Preliminary Matters:

Service

1. The Panel noted that the Registrant’s representative, Mr Sam Oestreicher from UNISON was sent an email dated 23 March 2020 setting out the date and nature of today’s Review hearing and which included the words “Dear Miss Overton-Applebee”. The date of the email (23 March 2020) falls within the statutory time limit of 28 days under Rule 6(2) of the HCPC Conduct and Competence Committee (Procedure) Rules 2003, (the Rules), and also provides the day, time and venue, as required by Rule 6(1) of the Rules. The Panel noted that Rule 3 (2) requires that the Notice of Hearing should be sent by post (but see below with respect to the effect of the Covid 19 virus epidemic on postal service).

2. On 1 April 2020, the HCPC emailed Mr Oestreicher, copying in the Registrant, informing them of the date of today’s hearing, noting that the Registrant had not received her own copy of the Notice of Hearing and whether the Registrant would be prepared to waive the usual 28 day notice period.

3. On 2 April 2020, the HCPC again emailed Mr Oestreicher stating that the copy email to the Registrant was returned as unsent and asked him to remind the Registrant of her obligation to keep the HCPC informed of any change of address, including, in these circumstances, her email address. The HCPC again asked if the Registrant was prepared to waive the normal period of notice of 28 days. This was followed up by an email from the HCPC in similar terms to Mr Oestreicher dated 9 April 2020.

4. On 9 April 2020, about an hour later, Mr Oestreicher responded to the HCPC by email stating, on behalf of the Registrant, that “we” have received the review hearing notice and that “we agree to waive the ordinary notice period”. He highlighted that he had copied in the Registrant’s partner as “there are difficulties with her own email address at present”.

5. The Panel was aware that the current hearing has to be held on the papers only, by reason of the current restrictions due to the Covid 19 epidemic and the resultant lockdown that all have experienced. It was also aware that the most expeditious and certain way to provide notice of hearings is by email, which practice continues for all HCPC hearings. In those emergency circumstances, in light of Government advice on maintaining safe distances, as well as the Registrant’s representative’s responses, and in light of the mandatory nature of this Review, the Panel has taken the view that the email exchanges between the Registrant’s representative and the HCPC amount to good service of the Notice of Hearing. Even though Mr Oestreicher indicated that the Registrant’s email address was faulty, he did not do so until 9 April 2020 and before that time, the HCPC had no way of knowing from the Registrant in particular, as would be her duty, that her email address was not appropriate to use. In the Panel’s judgement, the Registrant is represented, and from the tone of his emails to the HCPC, Mr Oestreicher is communicating with the Registrant diligently.

6. In light of the Covid 19 virus epidemic and its consequences, the Panel was satisfied that email communications and paper hearings, using remote technology, are the only expeditious and appropriate methods to continue the urgent work of the HCPC, and that this Substantive Review hearing falls within these exceptional circumstances.

7. Hence, for all these reasons, the Panel has determined that there is good service of the Notice of Hearing.

Proceeding in Absence

8. The Panel accepted the Legal Assessor’s advice. For the reasons outlined in the Service paragraph above, it was clear that the Registrant has knowledge of today’s hearing. She has not requested an adjournment. Her representative had also had notice of the hearing, communicating to the HCPC by email on 9 April 2020. The Panel considered this to be a voluntary acquiescence by the Registrant to the hearing proceeding in her absence, but in any event, the HCPC had made the decision to hold this as a paper hearing and this necessarily requires the entire hearing to be in private, without the presence of the Registrant and this was understood by the HCPC and by the Registrant and her representative.

9. In addition and in any event, this is a mandatory Review and, as such, if the sanction was to be permitted to lapse on 23 May 2020, this would result in the Registrant, who has been under a Suspension Order for six and three quarter years, to be allowed to return to unrestricted practice. As there was no evidence at the last Review in October 2019 that the Registrant has remediated the issues that caused this case to be brought, adjourning this hearing would prove to be highly dangerous for the health, safety and well-being of the public and would seriously undermine public confidence in the profession and in this regulatory process.

10. Therefore, for these reasons the Panel has determined to proceed in the Registrant’s absence.

Hearing in Private

11. The Panel noted that the previous hearings have included an application to go into private when matters touched upon the Registrant’s health and private and family life. Although these paper hearings are in private, the Panel acknowledged that there would be a need, in principle, to ensure that her health and private and family life matters were preserved within the rules relating to confidentiality, especially relating to the Panel’s published, and therefore, public, determination.

12. To that end, 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;”

13. The Panel determined that information concerning a person’s health and private and family life is confidential and must be preserved as such. Rule 10(1)(a) permits this. Thus, the Panel, accepting the advice of the Legal Assessor, determined that those parts of the hearing that concern the Registrant's health and private and family life should be private and reflected as such in any published determination.

Background:

14. 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.

15. 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.

16. 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. The facts were admitted and found proved in relation to Particulars 1, 2, and 3. The Registrant admitted dishonesty, misconduct and impairment as alleged.

17. The Registrant acknowledged at the substantive hearing in June 2013, that the allegations constituted serious matters. 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.

18. The first review took place on 12 June 2014. The panel at that hearing concluded that the Registrant had taken few steps towards maintaining her Continuing Professional Development (CPD). She had not used any resources other than reading magazine articles. She expressed little insight into the effect of her actions on service users. That panel ordered a suspension for a further one year.

19. 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.

20. 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; evidence of achievement of insight into dishonesty; and evidence that the Registrant had taken steps to maintain her CPD.

21. 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.

22. 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. That panel also made references to this being the Registrant's “last chance to remediate her misconduct”.

23. The fifth review hearing took place on 12 March 2018. Although the Registrant was not present at that hearing due to her daughter's health, she had provided written representations for that panel's consideration. That 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 that panel was the Registrant's state of health.

24. 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 any coping strategies she has in place to satisfy that there is no longer a risk of repetition.

25. The sixth review took place on 26 October 2018. The panel found that there had been no significant change since the previous review hearing. That panel accepted that the Registrant remained under the care of her GP, attending counselling sessions and found volunteering, meditation and art classes a support. She told the panel that she felt well.

26. That 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.

27. Nevertheless, that panel found that the Registrant had not provided medical evidence, or 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.

28. Turning to sanction, that 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”.

29. 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 their assessment of the Registrant's current risk.

• Documentary evidence of any CPD undertaken.

30. The seventh review panel heard from the Registrant and from Mr Oestreicher. She put before the Panel written evidence of her continuing struggle with her own ill health and the remarkable success of her daughter in overcoming a formidable number of difficulties. The panel acknowledged that she has now started mainstream school, although still supported.

31. In her oral evidence to that panel, 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 that 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.

32. The seventh review panel determined that whilst risk remained, the Registrant was liable to put patients at unwarranted risk of harm, and was liable to bring the profession into disrepute. That panel concluded that the Registrant's fitness to practise continued to be impaired by reason of her misconduct, determining that both the public and the personal elements of impairment were engaged. It decided that the Registrant was not safe to practise given her then impairment and the public interest required that she should not be in a position to practise unrestricted.

33. That panel then 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.

34. It next considered extending the existing Suspension Order. It had regard to Paragraph 121 of the HCPC 'Sanctions Policy’ which provides:

“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”.

35. That panel took into account that the Registrant had first been suspended from practice in June 2013 and her suspension has already been reviewed six times. Albeit that the Registrant had developed insight, she had been unable to remediate in the way each panel had indicated was necessary if the Registrant was to return to practise. The seventh review panel accepted that it was an exceptional course to impose a further period of suspension in those circumstances. Nevertheless, the panel decided to take that course for two reasons.

36. Firstly, it wished to reflect the truly exceptional evidence of the Registrant’s struggle against almost overwhelming difficulties, as long as it could do so in a way that protected the public. Secondly, it was impressed by the Registrant’s evidence that she was now committed to pursuing a Voluntary Removal Agreement (VRA) in a way that she had not been in the past. Therefore, that 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 that panel, protect the public and reflect the justice of this case, having regard to all that the Registrant had experienced and achieved since the initial misconduct. Accordingly, that panel made a Suspension Order for 6 months. It 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.

Today’s Review Hearing:

37. At this paper hearing, Ms Simpson, for the HCPC, in her written submissions, reminded the Panel of the background to this case and accepted that the Registrant had engaged in the regulatory process and demonstrated that some insight and remorse had developed over time. Ms Simpsons reminded the Panel that the Registrant had previously declined to pursue a Voluntary Removal Agreement (VRA) in November and December 2018.

38. Ms Simpson also reminded the Panel that this was the eighth review. She drew the Panel’s attention to paragraphs 121 and 131 of the HCPC 'Sanctions Policy’ (2019) and submitted that suspension was no longer appropriate and a Striking Off Order was the only appropriate sanction, should there be no alternative.

39. Ms Simpson submitted that there was an alternative, now fully explored and completed; this was for a Voluntary Removal Agreement (VRA). The Registrant had agreed to it and had signed the document on 1 March 2020. Furthermore, she had obtained a letter from her General Practitioner, Dr Hayward, dated 6 April 2020, addressing her health issues. In addition, the Registrant had fully cooperated with the VRA process.

40. Ms Simpson sought a VRA today, rather than a Striking Off Order, as this would be proportionate and fair to the Registrant, reflecting the progress she has made since 2012 towards reflection, remediation and remorse, whilst also taking into account her severely detrimental personal circumstances in that time frame.

Decision:

Impairment

41. The Panel noted that it had before it a signed VRA, as well as the letter from her GP about her health condition. The Panel noted that Dr Hayward, her GP, had outlined the position in his letter, about the Registrant’s former problems. The Panel concluded that these remaining health issues outlined obliquely by her GP reveals a real risk of repetition and therefore a risk to service users, should the Registrant be declared fit to practise.

42. The Panel took into consideration the reflection and regret expressed by the Registrant, in her one October 2019 reflective piece. The Panel also concluded that the Registrant, by signing the VRA with her union representative advising her, has now finally understood that the effect of a VRA will be immediate and will prevent her from working as an ODP in the future and that any return to practice will require her to apply for Restoration, a challenging process for any former Registrant.

43. The Panel determined that the Registrant is still impaired, albeit that she has taken some steps to overcome her problems in the face of severe personal problems. In that process, the Panel determined that the Registrant had displayed some genuine remorse and had made some inroads to remediate. However, in the Panel’s opinion, the Registrant’s efforts have fallen far short of what would be required to fully remediate her position and it has come after too many years (nearly 6 years, and after seven previous Reviews), during which time it is clear that she has been preoccupied with her infant’s health conditions.

44. Furthermore, the Registrant’s remediation is incomplete to a degree that would make it disproportionate to public protection and to the public interest to extend further any more time of suspension to achieve full remediation so as to be able the Registrant to practice in a safe and effective manner. In the Panel’s view, the Registrant continues to be at a risk of repetition of her failings and, therefore, it follows that she is still a high risk to the health, safety and well-being of the public, if permitted to return to restricted or unrestricted practise as an ODP.

Disposal by Consent

45. In determining the matter today, in the Panel’s judgement, the imposition and acceptance by this Panel of the VRA was the only proportionate and appropriate outcome. The balance between protecting the public and upholding the wider public interest against the interests of the Registrant could be properly and proportionately taken by allowing the VRA. This also takes into account that a VRA is sought by the HCPC and is also the Registrant’s wish as an outcome to this hearing. In the Panel’s judgement, a VRA would reflect fairly and humanely all that the Registrant has done to address the issues identified by this case, albeit falling far short of what was required for full remediation. The previous Panel indicated that it had given the Registrant one last chance to embrace a VRA and complete the process, hence its unusual Order in extending the existing Suspension Order for one last time. This Panel noted that the Registrant has done exactly that and has finally accepted this outcome and has caused the VRA process to be completed.

46. In the Panel’s judgement, a VRA would ensure that the public was protected from Registrant working as an ODP again and it would uphold the public’s confidence in the profession and in the regulatory process, as reflecting the profound concern that the public, fully informed of the case details to date, would feel if the Registrant were to be permitted to return to practice in the future. This was a serious case of dishonest misconduct, involving the repeated theft by the Registrant of medications, compounded by the falsification of the patients’ records.

47. In the Panel’s judgement, the only other alternative at this stage, after nearly 6 years on an extended Suspension Order, would be that of a Striking Off Order. The Panel determined that this would be disproportionate, unfair and punitive, as the VRA is a better alternative that has the same outcome and would also allow the principle of fairness and compassion to reflect the Registrant’s own efforts to try to overcome her problems.

Order: The Registrar is directed to remove the name of Miss Rebecca Overton-Applebee from the Register with immediate effect.

No notes available

History of Hearings for Miss Rebecca J D Overton-Applebee