Miss Anne G Shawyer

Preliminary matters

1. The case for the Health and Care Professions Council (HCPC) was presented by Ms Peta-Louise Bagott of Kingsley Napley Solicitors. The Registrant was not present or represented. The Panel was satisfied that notice of today’s hearing had been properly served on the Registrant at her home address as it appears on the HCPC Register, under Rules 3 and 6 of the Conduct and Competence Procedure Rules 2003. Ms Bagott thereafter made an application to proceed in the Registrant’s absence, under Rule 11. She advised that there had been no engagement from the Registrant since the notice of hearing had been served and that there was no evidence to indicate that the Registrant would attend at a future date if the matter were adjourned. Ms Bagott also advised that there were three witnesses due to give evidence in the course of this hearing.  Ms Bagott submitted that the Panel had to balance the issue of fairness to the Registrant with the wider public interest and that if the Panel determined to proceed in the Registrant’s absence, no adverse inference should be drawn from her failure to attend.     

2. The Panel considered Ms Bagott’s application to proceed in the Registrant’s absence, together with the advice of the Legal Assessor. The Panel also had regard to the HCPTS Practice Note “Proceeding in the Absence of the Registrant”. The Panel is aware that the discretion to proceed in absence is one which should be exercised with the utmost care and caution. The Panel has been advised that there has been no engagement from the Registrant since the notice of hearing was served on her. The Panel is aware that there are three witnesses giving evidence at this hearing and that the allegation dates back to 2016/2017. There has been no application to adjourn these proceedings and the Panel is of the view that an adjournment would be unlikely to secure the Registrant’s attendance at a future date as she appears to have voluntarily absented herself. The Panel has therefore concluded that in all of these circumstances, it is in the public interest to proceed in the Registrant’s absence. The Panel will not draw any adverse inference from the Registrant’s failure to attend the hearing.

3. The Panel also agreed to grant Ms Bagott’s application under Rule 10(1)(a) of the Conduct and Competence Procedure Rules 2003 to consider issues around the private life of the witness, HW or the private life of the Registrant in private in order to protect their private lives. The Panel concluded that the right of the witness and the Registrant to protection of their private lives outweighed the general presumption of the hearing being conducted wholly in public and agreed that any evidence or submissions in relation to the private life of the witness or the Registrant would be heard in private.

4. The Panel next considered Ms Bagott‘s application to amend the allegation as shown above. Ms Bagott advised the Panel that the Registrant had been put on notice of these amendments by letter dated 30 August 2019 to which no response had been received. Ms Bagott submitted that the proposed amendments did not alter the allegation in any significant way and that they served to clarify the HCPC’s case in accordance with the evidence. Ms Bagott also advised that the application to delete particulars 7a) and 9a) was made in order to avoid repetition and to clarify the allegation and did not represent under-prosecution of the case. The Panel considered Ms Bagott’s submissions and the advice of the Legal Assessor. The Panel agreed to grant the application as it was satisfied that the amendments better reflected the evidence before the Panel and did not cause any injustice to the Registrant. In addition, the Panel was satisfied that the HCPC had provided an objectively justified explanation for the deletion of particulars 7a) and 9a) and this did not represent under-prosecution of the case.

Background

The Registrant was employed as a Band 5 Rehabilitation Occupational Therapist by Somerset Partnership NHS Foundation Trust (the Trust) between from May 2015 until February 2017.  She was initially based in the Bridgewater Community Hospital and in January 2017 was relocated to the Community Rehabilitation Team.  The Registrant’s Line Manager, BL, identified concerns relating to the Registrant’s practise from approximately 2015. The concerns related to the Registrant giving her colleagues incorrect information about patients, her clinical reasoning and record-keeping. These concerns were initially managed informally until a formal action plan was implemented in June 2016. The Registrant resigned from the Trust in April 2017, having completed one of the seven elements of her formal action plan.           

Decision on Facts

5. The Panel heard evidence from three witnesses on behalf of the HCPC: HW, Team Manager in the Integrated Rehabilitation Team; BL, Band 6 Occupational Therapist and HN (evidence given by video-link), Band 6 Occupational Therapist all of whom were employed by Somerset Partnership NHS Foundation Trust at the relevant time.

6. The Panel found HW to be a credible and reliable witness whose evidence was clear and consistent and was supported by the documentary evidence in the form of patient records, policy documents, competency assessments and developmental action plans. The Panel found that she was very thorough and professional and had made every effort to provide support to the Registrant.    

7. The Panel found BL to be a credible and reliable witness whose evidence was clear, considered and consistent. It was obvious to the Panel that he was a very supportive line manager who provided both formal and informal supervision and support over an extended time period, both in meetings and in clinical settings, a level of support which he described as “abnormal” and which did not lead to a sustained improvement in the Registrant’s practise. His evidence was supported by documentary evidence in the form of action plans, supervision records and patient records.

8. The Panel found HN to be a credible and reliable witness who had a detailed knowledge of Service User 1. The Panel found her evidence to be clear and consistent and was supported by the patient records and email correspondence. The Panel found her to be honest and fair and she gave detailed evidence of her direct observations of the Registrant’s practice in relation Service Users 1 and 2.

9.  In the absence of the Registrant, the Panel had regard to an email response by the Registrant to HCPC dated 13 August 2017 in which she confirms that she disagreed with the concerns raised and felt that some issues stemmed from limited supervision or observation and appropriately managed meetings early in her career.

Particulars 1a) – 1d)

10. The Panel heard evidence from HN and HW in support of these particulars. The Panel also had sight of Service User 1’s Patient Records, email correspondence in relation to incomplete patient notes, a summary of supervision sessions and a copy of the Trust’s Record Keeping and Records Management Policy.

11. HW gave evidence that the Registrant was required to visit Service User 1 in the community and carry out a full occupational therapy assessment which included a social assessment, a physical assessment, current occupational performance/cognition and rehabilitation assessment overview. HW gave evidence that in terms of the Trust’s Record Keeping and Records Management Policy, the components of the assessment should be recorded on the RIO case management system within 24 hours of the assessment. HW gave evidence that the assessment was inadequate in that it lacked sufficient detail and her analysis of Service User 1’s problems was not sufficiently specific and patient focussed. In addition, HW gave evidence that the Registrant did not carry out an adequate risk assessment in that she has not recorded measures to mitigate identified risks and did not record a treatment plan with information about Service User 1’s goals and the measures in place to address those goals. HW gave evidence that the Registrant carried out the assessment on 20 January 2017 and that the assessment was not completed and updated on the RIO Case Management System until 25 January 2017.

12. HN gave evidence that she observed the Registrant’s assessment of Service User 1 and that she felt the need to intervene due to the concerns she had about the Registrant conducting the assessment and that she raised concerns at the time with the Registrant’s Clinical Manager. She advised that the Registrant did not ask how the service user was currently getting on, how his fall had come about, how he was managing his medication, the current condition of a pressure sore or the current UTI status. HN gave evidence that she would have expected there to have been a conversation about all of these issues and that the assessment was inadequate. She gave evidence that the Registrant concluded from her assessment that there were no risks that would prevent the service user staying at home when it was clear that he was not safe to do so and this could lead to self-neglect. In addition, she advised that she was greatly concerned that the Registrant could not identify a problem list when there were clear issues. She advised the Panel that these were core skills of an occupational therapist.

13. The Panel accepts the evidence of HW and HN which is supported by the documentary evidence and finds that the Registrant did not complete an adequate and comprehensive assessment of Service User 1, did not carry out an adequate assessment of risk, did not record a treatment plan and did not record the assessment within the required timescales. The Panel therefore finds the facts of particulars 1a), 1b), 1c) and 1d) proved on the balance of probabilities.

Particulars 2a) - 2d)

14. The Panel heard evidence from HW and HN in support of particular 2. The Panel also had sight of Service User 2’s Patient Records.

15. HW gave evidence that the Registrant carried out an assessment of Service User 2 on or around 12 January 2017 and a follow up visit on 19 January 2017. HW gave evidence that Service User 2 presented with a “shuffly gait” which placed him at risk of tripping and that the Registrant did not record a plan to address this issue.  HW also gave evidence that the Registrant noted that Service User 2 presented with symptoms similar to Parkinson’s Disease and also queried Service User 2’s self-care/neglect on her visit of 12 January 2017. However she did not identify these problems in the rehabilitation assessment to ensure that they were addressed. HW also stated that there was no evidence on the RIO Case Management system that the Registrant completed a treatment plan. The Panel also heard from HW that following the visit on 19 January 2017, the Registrant did not complete the case notes until 25 January 2017, when the required timescale in terms of the Trust’s Record Keeping Policy was 24 hours.

16. HN gave evidence that she observed the Registrant’s assessment of Service User 2 and that the Registrant did not identify the patient’s shuffly gait when walking with the walking aid and was unable to identify what she would need to do about this. HN also gave evidence that on entering the Service User’s home, there was an overpowering smell and that the Service User’s hygiene was questionable. She also gave evidence that she would have expected the Registrant to clearly identify the fact that the service user presented with symptoms similar to Parkinson’s disease both in the rehabilitation assessment and in the problem list. She advised the Panel that the Registrant did not identify these issues and only recorded these on the patient records when she prompted her to do so. 

17.   The Panel accepts the evidence of both HN and HW which is supported by Service User 2’s case notes and the Trust’s Record Keeping Policy. The Panel finds that the Registrant did not identify that Service User 2 presented with a shuffling gait or record a plan to address this issue; did not adequately identify or record all relevant problems; did not document an appropriate treatment plan and did not complete progress notes within the required timescale.  The Panel therefore finds that the facts of particulars 2a), 2b), 2c) and 2d) proved on the balance of probabilities.

Particular 3a) -3b)

18. The Panel heard evidence from HW and had sight of Service User 3’s Patient Records. HW gave evidence that Service User 3 was discharged from hospital on 3 January 2017 and that the Registrant would have been aware from the progress notes that there were concerns about his cognitive impairment and that a follow-up appointment was warranted. HW’s evidence was that the Registrant discharged Service User 3 from the Integrated Rehabilitation Service by telephone on 6 January 2017 and although there was an additional appointment entered on the RIO Records Management System for 29 December 2016, there were no obvious RIO entries to demonstrate that the Registrant had progressed the necessary actions to ensure a safe discharge.  She also gave evidence that there was no evidence on the RIO Case Management System to indicate that the Registrant liaised with any other members of the Multi-Disciplinary Team prior to discharging Service User 3.  The Panel accepts the evidence of HW which is supported by the Patient Records and finds that the Registrant did not arrange a follow up visit following Service User 3’s discharge from hospital and did not liaise with the Multi-Disciplinary Team prior to discharging Service User 3. The Panel therefore finds the facts of particulars 3a) and 3b) proved on the balance of probabilities.

Particulars 4a)- 4d)

19. The Panel heard evidence from HW and had sight of Service User 4’s Patient Records. HW gave evidence that Service User 4 was referred to the Bridgewater Rehabilitation Team on 22 November 2016 and that the Registrant did not see the service user until 29 November 2016. HW stated that the Registrant completed some elements of the assessment but not in full. She gave evidence that there was information missing from the social assessment and she did not complete the current occupational performance and did not add any information to the rehabilitation assessment overview. HW stated that the Registrant completed a Home Assessment of Service User 4 on 9 December 2016 and identified that Service Use 4 needed follow up by a pharmacy technician to review his medication and needed further practice in stabilising himself when rising from a seated position and with regards to the placement of his wheeled walking frame. The Panel also heard from HW that on 22 December 2016, the Registrant recorded on RIO that Service User 4’s doctor informed her that Service User 4 wished to self-discharge and the Registrant recorded her discussion with the service user on that date that he may be willing to stay if he had his own clothing. She gave evidence that the Registrant did not record any further discussion with Service User 4 between 23 December 2016 and 29 December 2016, the date of his discharge. HW gave evidence that when a patient wished to self-discharge, she would expect a capacity assessment to be carried out and if this was not completed, she would expect a record that this had been considered and decided against as the service user was fully aware of the risks. She stated that there was no evidence on the RIO system that the Registrant had carried out an assessment of Service User 4’s mental capacity and cognition or that it was considered at all. The Panel accepts the evidence of HW which is supported by the patient records and finds the Registrant did not complete or record  an adequate assessment, did not ensure that follow up actions were completed following a home visit on or around 29 December 2016, did not discuss or record discussing with Service User 4 his wish to self-discharge from hospital between 23 and 29 December 2016 and did not carry out an assessment or record an assessment of Service User 4’s mental capacity and cognition. The Panel therefore finds the facts of particulars 4a) to 4d) proved on the balance of probabilities.

Particulars 5a) – 5c)

20. The Panel heard evidence from HW and had sight of Service User 5’s Patient Records. HW gave evidence that Service User 5 was allocated to the Registrant following an admission to Bridgewater Community Hospital on 15 December 2016. HW’s evidence was that the Registrant was expected to carry out a full occupational therapy assessment. She gave evidence that the Registrant carried out an assessment on 16 December 2016 and that it was not completed to an acceptable standard. She advised that the social assessment was incomplete and contained very little detail about Service User 4’s previous support and social circumstances and that the physical assessment contained very little detail. HW stated that the rehabilitation assessment overview was not a comprehensive analysis of the information gathered from the assessment. She also advised the Panel that the Registrant did not carry out an adequate risk assessment. She advised that the Registrant did not identify any mobility issues, although the rehabilitation assistant recorded that Service User 5 had had reduced confidence as she felt that she would lose her balance when reaching down from a seated position. HW gave evidence that the Registrant had recorded a limited treatment plan which was not targeted to address Service User 5’s problems or aimed at improving her circumstances. She advised that the treatment plan and goals set by the Registrant did not fully establish whether Service User 5 could manage by herself at home without care, which placed her at risk.

21.  The Panel accepts the evidence of HW which is supported by the patient records and finds the Registrant did not complete or record an adequate assessment, did not carry out or record an adequate assessment of risk and did not formulate an appropriate treatment plan or appropriate goals. The Panel therefore finds the facts of particulars 5a), 5b) and 5c) proved on the balance of probabilities.

Particulars 6a) – 6d)

22. The Panel heard evidence from HW and had sight of Service User 6’s Patient Records. HW gave evidence that Service User 6 was referred to the Bridgewater Rehabilitation Team following her admission to the Bridgewater Community Hospital on 12 May 2016 and was allocated to the Registrant under the blanket referral system on 13 May 2016. HW gave evidence that the assessment paperwork was not adequately completed in that the current occupational performance section was not completed at all, the social assessment was only partially completed with insufficient detail and the Registrant has not added anything to the rehabilitation overview completed by the physiotherapist.  HW also gave evidence that Service User 6 expressed a wish to sleep in a chair and that there would be a risk of pressure damage and complications arising from being immobile, such as swollen legs and respiratory complications as well as a risk of rolling out of the chair while sleeping.  Her evidence was that the Registrant did not identify this as a risk to Service User 6 and when asked to re-write this section failed to include any detail as to the risks arising and incorrectly stated that the patient was aware of the risks and was able to make an informed decision, when it appeared that the risks had not been set out for the patient. 

23. HW advised the Panel that given Service User 6’s wish to sleep in a chair as opposed to the hospital bed which was provided in her home, the Registrant should have carried out a capacity assessment. She stated that there was no evidence that the Registrant had properly considered the issue of capacity beyond stating that Service User 6 was able to make the choice for herself. HW advised the Panel that if Service User 6 had the capacity to decide to sleep in a chair, a rise and recline chair of appropriate width should have been provided. She advised that the Registrant did provide a rise and recline chair for Service User 6 but it was not the right width for her and the service user was upset because the chair was too narrow and ill-fitting. HW explained that if the chair is too narrow, the service user is placed at risk of developing pressure ulcers and the tight fit means that there is not room to manoeuvre and the service user will remain static in position.

24. The Panel accepts the evidence of HW which is supported by the patient records and finds that in respect of Service User 6, the Registrant did not complete or record an adequate assessment, did not adequately identify the risks to Service User 6 of sleeping in a chair, did not consider a formal capacity assessment and provided equipment which was not suitable for or meet the needs of Service User 6 and finds the facts of particulars 6a) to 6d) proved on the balance of probabilities. 

Particulars 7b)–7c)

25. The Panel heard evidence from HW and had sight of Service User 7’s Patient Records. HW gave evidence that Service User 7 was admitted to the ward while awaiting a package of care and the Registrant was asked to become involved with the service user on 7 November 2016 to review the equipment order. She gave evidence that Service User 7 was assessed at home by the Registrant on 21 November 2016 and that she did not carry out an adequate assessment of Service User 7’s needs. She advised that a progress note from 26 October 2016 referred to Service User 7 not having full understanding and that the Registrant would contact her son regarding a private care package and update the social assessment accordingly. HW advised that this did not appear to have been done and that there was no record on the social assessment of any discussion or contact with Service User 7’s son.  The Panel accepts the evidence of HW which is supported by the patient records and finds that the Registrant did not complete an adequate assessment of needs in respect of Service User 7 and finds the facts of particular 7b) proved on the balance of probabilities.

26. HW also gave evidence that a sling hoist had been ordered for Service User 7 and installed at her home address. She advised the Panel that the Registrant did not carry out a home visit to risk assess Service User 7’s ability to use the hoist until 21 November 2016.   While the Panel accepts the evidence of  HW which is supported by the patient records, the wording of this particular is that the Registrant did not follow up and/or record following up with Service User 7 in respect of the sling hoist.  The Panel has seen evidence that the Registrant did follow up with Service User 7 in respect of the sling hoist on 21 November 2016 and recorded that she had done so. The Panel therefore finds the facts of particular 7c) not proved to the requisite standard.

Particulars 8a) – 8d)

27. The Panel heard evidence from HW and had sight of Service User 8’s Patient Records.  HW gave evidence that Service User 8 was admitted to Bridgewater Community Hospital on 20 September 2016 and his case was allocated to the Registrant. She advised the Panel that on 7 October 2016, the Registrant placed an order for a riser/recliner chair with a pressure cushion and that there was no obvious clinical record indicating that Service User 8 had been assessed by the Registrant prior to completing a home assessment. Her evidence was that while it was not always necessary to carry out a risk assessment before ordering equipment, she would have expected a risk assessment to be carried out in this particular circumstance because pressure cushions on top of a riser/recliner chair were not standard practice and there was a risk that the cushion could not be adequately secured.

28. HW gave evidence that there was an appointment entry recorded in Service User 8’s records for 14 October 2016 and the Registrant had not recorded what took place during this meeting or if the meeting took place at all. She also advised the Panel that there was no corresponding entry in the progress notes and that Service User 8’s patient records were not adequately maintained. The Panel heard from HW that the Registrant visited Service User 8’s home on 7 October 2016 to carry out a home assessment without previously having carried out or recorded an assessment of the service user. She advised that without knowing the current level of need prior to the visit, the Registrant would not have been able to identify Service User 8’s abilities and needs and so would not have been able to properly assess his home environment as it related to him.

29. The Panel accepts the evidence of HW which is supported by the patient records and finds that the Registrant ordered equipment without visiting Service User 8 and without conducting an appropriate risk assessment; did not maintain adequate records and visited Service User 8’s home to assess his home environment, without carrying out or recording an assessment of Service User 8. The Panel therefore finds the facts of particulars 8a) to 8d) proved on the balance of probabilities.

Particulars 9b) - 9d)

30. The Panel heard evidence from HW and had sight of Service User 9’s Patient Records. HW gave evidence that Service User 9 was admitted to Bridgewater Community Hospital on 19 December 2016 and was seen by another occupational therapist, HN, on 20 December 2016 and then seen by the Registrant on 22 December 2016.  HW gave evidence that prior to seeing Service User 9 on 22 December 2016, she would have expected the Registrant to review Service User 9’s records, including the reason for admission to hospital and to review the progress notes. Her evidence was that the Registrant did not do this as the Registrant inaccurately recorded in the progress note for 22 December 2016 that an occupational therapy assessment was required and had she reviewed the notes, she would have identified that an assessment had already been carried out. She also gave evidence that progress notes were not adequately maintained by the Registrant as they contained limited detail regarding intervention particularly with reference to assistance required with toilet and personal care.

31. The Panel heard from HW that a MDT meeting on 28 December 2016 identified the need for a home visit to Service User 9 and this was subsequently booked for 29 December by the Registrant. HW advised that the Registrant retrospectively cancelled the home visit to Service User 9 scheduled for 29 December 2016 and the reason entered on the RIO system was “reallocation of work”. HW advised that she would have expected  the clinical reasoning to be documented explaining why a home visit was required or alternatively, if another team member had made the recommendation and the occupational therapist felt it was not clinically appropriate, the reasoning for this should have been documented. HW stated that no home visit was actioned after 29 December 2016.

32. The Panel accepts the evidence of HW which is supported by the patient records and finds the Registrant did not review Service User 9’s records before visiting on or around 22 December 2016, did not maintain accurate records and did not arrange a home visit after 29 December 2016 and did not record the clinical reasoning for this. The Panel therefore find the facts of particulars 9b) to 9d) proved on the balance of probabilities.

Particulars 10a) - 10e)

33.  The Panel heard evidence from HW and had sight of Service User 10’s Patient Records. HW gave evidence that Service User 10 was admitted to Bridgewater Community Hospital on 8 December 2016 and her case was allocated to the Registrant on 9 December 2016. She advised the Panel that the Registrant ordered a glide about commode, a single propad mattress and an overlay mattress for Service User 10 and that there was no evidence that the Registrant had carried out an assessment of Service User 10’s needs prior to placing the order. She advised that there was no assessment recorded on the RIO system, other than that carried out by a physiotherapist. She gave evidence that the propad mattress was not required as Service User 10 already had a high risk mattress and a hospital bed in situ at her home. She explained that the overlay mattress would not be appropriate for use in conjunction with the Registrant’s existing mattress.  She advised that there was no evidence that the Registrant had carried out an assessment prior to placing the order and no evidence of her clinical reasoning for ordering the equipment.  

34. HW stated that Service User 10’s records were not adequately maintained as there were no RIO entries recorded for appointments on 14 December 2016, 21 December 2016, the second appointment on 23 December 2016 and 29 December 2016. She also advised that the entry for the first appointment on 23 December 2016 was not validated until 5 January 2017 with the last amendment being made on 5 January 2017 and this indicated that amendments to the notes could have been made well outside of the 24 hour time limit for recording notes.

35.  HW gave evidence that the physiotherapy assessment carried out on 09 December 2016 identified a concern about Service User 10’s left ankle and that she would have expected the Registrant to discuss this concern with the physiotherapist and ensure that any appropriate action was taken. She advised that the Registrant was aware that she needed to discuss this matter with the physiotherapist as she had recorded it as an action point in her progress notes for 23 December 2016 and that there was no evidence on the RIO records system after that date that the Registrant had done so. 

36. The Panel accepts the evidence of HW which is supported by the patient records and finds that in or around December 2016 – January 2017, the Registrant ordered equipment without assessing Service User 10, ordered incorrect and inappropriate equipment, did not record adequate clinical reasoning in respect of the equipment ordered for Service User 10 and did not discuss or record discussing with a physiotherapist the concern about Service User 10’s left ankle. The Panel therefore finds the facts of particulars 10a) to e) proved on the balance of probabilities.

Decision on Grounds

37. The Panel next considered whether the Registrant’s actions in particulars 1a) to d), 2a) to d), 3a) to b), 4a) to d), 5a) to c), 6 a) to d), 7b), 8a) to d), 9b) to d) and 10a) to e) amount to a lack of competence.  The Panel is aware that this is a matter for its professional judgement. In reaching its decision, the Panel has considered the submissions of Ms Bagott on behalf of the HCPC and has had regard to the HCPTS Practice Note on Finding Fitness to Practice is Impaired. The Panel has also accepted the advice of the Legal Assessor.

38. The Panel has heard consistent evidence from all three HCPC witnesses that the Registrant’s practise was well below the standard of a Band 5 Occupational Therapist and that despite significant support and supervision provided by all three witnesses, the Registrant consistently failed to meet the required standard and her actions potentially put vulnerable service users at risk of harm. The Panel is also satisfied that the particulars found proved demonstrate a fair sample of the Registrant’s work over an extended period of time and demonstrate repeated failings despite that close supervision and support.

39. The Panel has concluded that the Registrant’s conduct found proved breached the following standards of the HCPC’s Standards of Proficiency for Occupational Therapists:

• Standard 1 – To be able to practice safely and effectively within their scope of practice
• Standard 2 – To be able to practice within the legal and ethical boundaries of their profession
• Standard 4 – To be able to practice as an autonomous professional, exercising their own professional judgement
• Standard 8 – To be able to communicate effectively
• Standard 9 – To be able to work appropriately with others
• Standard 10 – To be able to maintain records appropriately
• Standard 12 – To be able to assure the quality of their practice
• Standard 13 – To understand key concepts of the knowledge base relevant to the profession
• Standard 14 – To be able to draw on appropriate knowledge and skills to inform practice
• Standard 15 – To understand the need to establish and maintain a safe practice environment
    
The Panel has therefore concluded that the matters found proved amount to a lack of competence.
    
Decision on Impairment

40. The Panel next considered whether the Registrant’s current fitness to practise is impaired by that lack of competence. In reaching its decision the Panel has considered both the personal component and the public component. In addition, the Panel has considered the submissions of Ms Bagott on behalf of the HCPC and has also had regard to the HCPTS Practice Note on Finding Fitness to Practice is Impaired. The Panel has also accepted the advice of the Legal Assessor.

41. In terms of the personal component, the Panel heard evidence from BL that while the Registrant was open and honest in the course of his supervision sessions when issues were highlighted and was quite receptive to his input, she lacked insight into the cause of her issues. The Panel has also heard from BL that her actions had the potential to cause risk to patients, particularly in discharging patients home when they were not able to support themselves.  In addition, given the lack of engagement, the Panel has no evidence of remediation on the part of the Registrant. In the absence of evidence of remediation and insight, the Panel has concluded that there is a high risk of repetition. The risk has been highlighted by all three HCPC witnesses who gave evidence that the level and period of support and supervision provided to the Registrant was unprecedented and despite this, the Registrant failed to meet all of the required competencies and made repeated errors. It is clear to the Panel that the Registrant was not able to practice safely as a Band 5 Occupational Therapist.

42. The Panel has also considered the approach of Dame Janet Smith in her 5th Report from the Shipman Inquiry referred to in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin). The Panel is of the view that the findings in fact in respect of the Registrant’s lack of competence show that her fitness to practise is impaired in the sense that she:

(a) has in the past acted and is liable to act in the future so as to put service users at unwarranted risk of harm; and
(b) has in the past brought and is liable in the future to bring the profession into disrepute; and
(c) has in the past and is liable in the future to breach one of the fundamental tenets of the profession.

43. The Panel has also considered the critically important public policy issues which include the collective need to maintain public confidence in the profession and in the regulatory process, the protection of service users and the declaring and upholding of proper standards of behaviour.  The Panel is of the view that the Registrant’s actions which amounted to a lack of competence and which were repeated over an extended period of time, despite unprecedented levels of support and supervision, would impact on public confidence in the profession. The Panel has found that the Registrant consistently failed to meet the standards expected of a registered occupational therapist and that her actions had the potential to place vulnerable service users at significant risk of harm. The Panel has concluded that there would be a serious risk of an adverse impact on public confidence in the profession and in the regulatory process, if a finding of impairment were not made in these circumstances.

44. The Panel therefore finds that the Registrant’s current fitness to practise is impaired by her lack of competence in terms of both the personal component and the wider public component and the allegation is well founded.

Decision on Sanction

45. The Panel has heard submissions from Ms Bagott on behalf of the HCPC on the issue of sanction. The Panel has also considered the advice of the Legal Assessor and had regard to the HCPTS’s Indicative Sanctions Policy.

46. The Panel is aware that the function of fitness to practise panels is not to be punitive, and that the primary function of any sanction is to address public safety from the perspective of the risk the Registrant may pose to those using or needing her services in the future and determine what degree of public protection is required. The Panel must also give appropriate weight to the wider public interest which includes the deterrent effect on other Registrants, the reputation of the profession and public confidence in the regulatory process.

47. The Panel considered the following mitigating factors: the Registrant has had no previous findings made against her; the Registrant was recently qualified and appeared to have health issues which may have impacted on her practise.

48. The Panel also had regard to the following aggravating factors:- the Registrant’s failings were in core occupational therapy skills and were repeated and involved multiple service users; her failings continued despite an unprecedented level of support and supervision over an extended time period; there was potential for harm to vulnerable service users; there is no evidence of  remediation or insight; the Panel has identified a risk of repetition.

49. The Panel has considered the sanctions available to it in ascending order of severity. The Panel considered that to take no action or to impose a Caution Order would not be appropriate, given that the lapse was not isolated or minor in nature, the Panel has identified wide ranging failings over an extended period of time and has identified a risk of repetition. In addition the Panel is of the view that neither option would be sufficient to address the wider public interest considerations.

50. The Panel next considered a Conditions of Practice Order. While the Panel is of the view that, in principle, the matters found proved are capable of remediation, in the absence of the Registrant and of any information on her current circumstances, the Panel is not aware if the Registrant is committed to resolving her issues and continuing in her profession.  The Panel has also identified a pattern of repeated failings in core skills, no evidence of insight and no sustained improvement in the Registrant’s practise despite one to one supervision over an extended period of time. In these circumstances, the Panel could not formulate conditions which would be realistic, workable and verifiable. The Panel considers that a Conditions of Practice Order would not be an appropriate or proportionate sanction in this case as it would not address the public interest considerations nor would it protect the public.

51. The Panel next considered a Suspension Order.  In terms of the Sanctions Policy, a suspension Order may be appropriate where there are serious concerns which cannot be reasonably addressed by a Conditions of Practice order.  Given that the Panel has already found that the concerns cannot be addressed by a conditions of practice order, the Panel has concluded that a Suspension Order is the appropriate and proportionate sanction in this case as it will provide the necessary degree of public protection and address the wider public interest considerations. The Panel is of the view that a 12 month period of suspension would be appropriate as it will demonstrate the seriousness of the matters found proved.

The Panel directs the Registrar to suspend the Registration of Anne Shawyer from the Register for a period of 12 months from the date on which this Order takes effect.

The Panel considered an application by Ms Baggott on behalf of the HCPC for an 18 month Interim Suspension Order in terms of Article 31 of the Health Professions Order 2001. Ms Bagott made the application on the grounds that it was necessary for the protection of members of the public and was otherwise in the public interest.  The Panel agreed to consider this application in the absence of the Registrant as it was satisfied that the Registrant had been put on notice of this application in terms of Article 31(15) of the Health Professions Order 2001 and that it was in the public interest to consider the application in her absence, given the findings made against her.

Having considered Ms Bagott’s submission together with the advice of the Legal Assessor, the Panel concluded an order was necessary to protect the public, given the risk of repetition identified and in order to maintain confidence in the profession and the regulatory process. The Panel considered whether Interim Conditions of Practice would be appropriate and concluded that, given the pattern of repeated failings over a prolonged period and whilst under close supervision, conditions would not be workable. Accordingly the Panel agreed to make an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.  This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Miss Anne G Shawyer