1. The Panel heard that notice in respect of this hearing was sent by first class post to the Registrant’s registered address on 19 November 2017 in accordance with Rules 3 and 6 of the Health and Care Professions Conduct and Competence Procedure Rules 2003 (“the Rules”).
2. The Panel heard and accepted the advice of the Legal Assessor and determined that the notice had been served in accordance with the Rules.
Proceeding in the absence of the Registrant
3. Mr Millin, on behalf of the HCPC, invited the Panel to proceed in the absence of the Registrant. He informed the Panel that there had been no response from the Registrant to the Notice of Hearing or indeed any engagement by her with the HCPC proceedings.
4. Mr Millin referred the Panel to the guidance contained in the HCPTS Practice Note on “Proceeding in the Absence of the Registrant” and submitted that, in the absence of any engagement from the Registrant in relation to the hearing, it was appropriate for the Panel to exercise its discretion to proceed on the basis that the Registrant had chosen not to attend the hearing and had waived the right to appear. He submitted that the public interest in the expeditious disposal of the Allegation outweighed any disadvantage to the Registrant in proceeding in her absence.
5. The Panel heard and accepted the advice of the Legal Assessor, who reminded it of the guidance provided in the cases of R v Jones  UKHL5 and GMC v Adeogba  EWCA Civ 162.
6. The Panel recognised that the discretion to proceed in the absence of a registrant is one which must be exercised with the utmost care and caution.
7. There had been no engagement at all from the Registrant in relation to the hearing, and the Panel concluded that she had voluntarily absented herself and so waived her right to be present. It appeared from the HCPC bundle that the Registrant had been a member of a trade union at some point in the past and therefore could have sought advice, or an adjournment in order to seek advice. However, no such application had been made. The Panel had no reason to believe that, if it were to adjourn the hearing, the Registrant would attend at some future date.
8. The Panel noted that four witnesses were due to be called to give evidence on behalf of the HCPC. These witnesses would be inconvenienced if the hearing were not to proceed, and the HCPC would be put to further expense. The Panel concluded that these factors pointed to it not being fair to the HCPC nor in the public interest to adjourn.
9. The Panel balanced these points, together with the public interest in the timely disposal of the Allegation, against the real disadvantage to the Registrant of proceeding in her absence. The Panel concluded, having conducted that balancing exercise, that it would be fair and in the public interest to proceed in the absence of the Registrant.
Application to amend Particular 1
10. Mr Millin applied to amend Particular 1 by deleting Particular 1(f), on the basis that there was insufficient evidence to support it. Particular 1(f) had alleged that:
“On an unknown date, you threw a Malteser in Patient D’s mouth”.
11. The Panel heard that notice of the proposed amendment had been sent to the Registrant. The Registrant had not lodged any objection.
12. The Panel heard and accepted the advice of the Legal Assessor.
13. The Panel accepted that the amendment was to the Registrant’s advantage and, therefore, there would be no injustice to her if the application were to be allowed. Furthermore, the Allegation particularised in Particular 1(f) was relatively minor in nature and its removal would cause no substantial change to the overall strength of the Allegation, nor would it result in under-prosecution.
14. The Panel therefore agreed to the amendment and Particular 1(f) was deleted from the Allegation.
Application for evidence to be given by telephone
15. Mr Millin applied for DW to give his evidence by telephone. DW had made contact on the day of the hearing to say that he was unable to attend due to poor weather which had affected his local road conditions, such that he could not reach his local train station. The Panel accepted this reason as genuine and a good reason for non-attendance. The Panel allowed the application.
Application to admit hearsay evidence
16. At the close of the HCPC’s case Mr Millin submitted that the record of interview relating to five of the Registrant’s non-OT colleagues, none of whom were to be called as witnesses, should be admitted into evidence. In relation to four of them—GG, DH, RB, and TM—no witness statement had been obtained. In relation to a further possible witness, BC, a witness statement had been drafted following a conversation with a representative of Kingsley Napley solicitors on behalf of the HCPC, but BC had not returned a signed copy nor responded in any way to the draft that was emailed to him.
17. Mr Millin submitted that, in relation to BC, efforts had been made to secure his attendance. In relation to all five employees, the record of interview had been checked by the Investigating Officer, who was one of the live witnesses and who had stated in evidence that they were accurate. In any event, the Registrant had not attended the hearing to ask questions of any of the witnesses who had attended to give evidence in this case.
18. The Panel accepted the advice of the Legal Assessor. She referred to Rule 10(1)(b), which states, “Subject to paragraph (c) the rules on the admissibility of evidence that apply in civil proceedings … shall apply” to Section 1(1) of the Civil Evidence Act 1995, which states, “In civil proceedings evidence shall not be excluded on the ground that it is hearsay”, and also to the case of Thorneycroft v NMC  EWHC 1565, which provides guidance on the relevant factors to take into account when considering the admissibility of evidence.
19. The Panel approached its task on the basis that at this stage it was considering admissibility only and was not considering the weight to attach to the evidence. It considered all the factors set out in the case of Thorneycroft.
20. In respect of BC, the Panel concluded that this was a finely balanced decision, and there had been a misjudgement by the HCPC in the preparation of its case by assuming that this evidence would be admitted by the Panel. However, the application now having been made, the Panel decided to admit this evidence for the following reasons:
• The Panel accepted that this was the sole and decisive evidence in relation to Particular 1(b). However, even if proven, this Particular was not so serious that a finding on this alone would have a serious detrimental effect on the Registrant’s career;
• There was no suggestion made by the Registrant that BC had any reason to fabricate this allegation, even though in interview on 8 February 2017 the Registrant denied being touched when getting onto the mats;
• Although the Panel had been provided with no good reason for the non-attendance of this employee, the Panel balanced this against the fact that the Registrant had been informed about the evidence that would be given at this hearing by means of the documentary bundle and case summary sent out with the Notice of Hearing;
• The Panel did not consider that BC’s unsigned witness statement provided evidence of the reasons for BC’s non-attendance. However, the drafting of a witness statement did at least show that some attempt had been made by Kingsley Napley on behalf of the HCPC to obtain a signed witness statement from BC.
21. In respect of GG, the Panel concluded that this evidence was of marginal relevance but decided to admit it because:
• There was no evidence before the Panel that the Registrant challenged its contents or suggested any fabrication on the part of GG;
• The interview might have assisted the Registrant’s case to a minor extent;
• The HCPC had no objection to it being admitted despite the fact that it might have assisted the Registrant’s case.
22. In respect of DH and RB, the Panel concluded that these interviews were not relevant to the Allegation. They provided general evidence which did not assist either the Registrant or the HCPC’s case.
23. In respect of TM, the Panel concluded that the evidence was of marginal relevance in that it did at least show that the question of boundaries was raised with the Registrant by this witness.
24. The Registrant is an Occupational Therapist (“OT”) who was employed at Cheswold Park Hospital (‘the Hospital’) between September 2016 and January 2018. The Hospital is a forensic mental health hospital and includes medium-secure wards and low-secure wards.
25. The Registrant had a clinical caseload working with individuals held under the Mental Health Act 1983 with a diagnosis of mental illness and/or personality disorder. This was her first job as an OT in a forensic setting.
26. In or around January 2017, Patient B made a complaint about the Registrant. DW, a Quality and Compliance Director and Senior Manager at the Hospital, commenced an investigation. The original complaint made by Patient B was then withdrawn by Patient B, and a formal decision was made not to proceed any further with that allegation due to lack of evidence. However, in the course of the investigation additional concerns came to light regarding the Registrant’s professional boundaries with patients, which form part of this Allegation. DW conducted interviews with a number of hospital employees, including the Registrant herself. An Investigation Meeting was held on 8 February 2017, which the Registrant attended. At the conclusion of the investigation, a Management Report (“Management Report”) was produced by DW, dated 13 February 2017. This report made formal recommendations to address the issues raised. These were:
“a. [The Registrant] must not work on Brook ward at all for the next 6 months.
b. [The Registrant] should not be moved from the PD wards onto MH or LD wards.
c. [The Registrant] must not have any contact with [Patient B] on a 1 to 1 basis.
d. The Registrant with have weekly management supervision with [JG] (Head OT) for a period of 6 months.
e. [The Registrant] will have monthly mentorship allowing exploration of relation security with Senior OT of the same gender.
f. A letter of concern will be placed in her HR file.
g. [The Registrant] will undertake to provide a written piece of work around relational security, detailing her knowledge.”
27. In about November 2017, Patient A reported to a ward manager that the Registrant had used his bank card to withdraw money. An investigation into this complaint was undertaken by DW, which led to an Investigation Meeting on 14 December 2017, which the Registrant attended, followed by a Disciplinary Hearing on 5 January 2018, which the Registrant also attended.
28. The Hospital subsequently submitted a fitness to practise referral to the HCPC in respect of the Registrant’s conduct.
Witnesses and Documentary material
29. The Panel heard oral evidence from four witness who were employees of the Hospital at the material times:
• DW, Quality and Compliance Director and Senior Manager;
• JG, a registered OT and Clinical Services Team Leader, and the Registrant’s supervisor;
• JL, a Cognitive Behavioural Psychotherapist;
• CC, a registered Psychologist and Head of Psychology.
30. The Panel was provided with a bundle of documentary evidence consisting of:
• a record of the Investigation Interview with the Registrant held on 8 February 2017;
• a record of a post-suspension interview with the Registrant held on 13 February 2017;
• the redacted Management Report regarding the investigation into the initial allegation made by Patient B;
• a letter sent to the Registrant by the Hospital dated 14 February 2017;
• a record of the Investigating Meeting held with the Registrant on 14 December 2017;
• a record of the Disciplinary Hearing held with the Registrant on 5 January 2018;
• a record of an Investigation Interview with GG;
• a record of an Investigation Interview with CC;
• a draft, unsigned witness statement from BC;
• a record of an Investigation Interview with DH;
• a record of an Investigation Interview with RB;
• a record of an Investigation Interview with TM;
• a record of an Interview with JG;
• a witness statement from EM, a representative of Kingsley Napley solicitors, who produced an unsigned witness statement from BC, which had been drafted by EM following a conversation with BC.
Decision on Facts
31. In reaching its decisions, the Panel had careful regard to all the evidence put before it and to the submissions of Mr Millin on behalf of the HCPC.
32. The Panel accepted the advice of the Legal Assessor, who advised on the meaning of the burden and standard of proof, the relevance of the Registrant’s good character, and the approach that the Panel should take to the hearsay evidence in the case.
Particular 1(a) – found proved
33. The HCPC sought to prove this Particular on the basis of responses provided by the Registrant when questioned by DW in the course of the Investigation Meeting held on 14 December 2017 and the Disciplinary Hearing held on 5 January 2018.
34. In the Investigation Meeting, the Registrant admitted that she had used Patient A’s bank card and PIN number to withdraw money on behalf of Patient A. She said that she had done this on two or three occasions, although she could not remember when, and that it was a long time ago. She said that she had known that it was wrong to take out money on behalf of a patient, but that she “felt like I was trapped … I didn’t realise how dangerous he was and how manipulative he was”. She said that after the first time she had withdrawn money, Patient A told her that if she didn’t do it again, “he could get CCTV and he could get bank statements … and that I’d lose my job”.
35. In the Disciplinary Hearing the Registrant said that she did not tell anyone about what she had done because she felt stupid. She claimed that she did not know what the normal process was to enable patients to withdraw cash.
36. The Panel concluded that JG was an honest witness, who was able to give direct, albeit sometimes vague, evidence of what happened within the OT team. However, he was clear about the procedures that should have been adhered to so as to enable patients to obtain cash. He had never known it happen for an OT to access money on behalf of patients. Only in exceptional circumstances would a patient come to the Multi-Disciplinary Team and ask for someone else to access their money on their behalf. He explained that prior to this being approved, there would need to be a capacity assessment.
37. JG was clear about the content of the induction training at the Hospital prior to the Registrant’s contact with patients. He stated that this included a session by the Psychology Department on relational security which lasted about two hours. This evidence was corroborated by CC, because a member of her team had written this session.
38. JG was also clear that each OT had formal monthly supervisions, which were recorded.
39. JG explained that after the investigation in January and February 2017, a formal recommendation was that he increase his formal supervisions with the Registrant to weekly sessions, which he did, and which were recorded. These supervisions focused predominantly on relational security issues.
40. The Management Report which followed the investigation also recommended that the Registrant had additional monthly mentorship allowing exploration of relational security. JG confirmed that this recommendation was put into effect.
41. Recommendation 1(g) of the Management Report specified that the Registrant should provide a piece of written reflective work around relational security issues. Both DW and JG were clear that the reflective piece had been undertaken, but each had a different view of the quality of the piece of work. JG explained that the reflective piece was quite brief and was not of the level of detail that he had expected, nor did it demonstrate the level of engagement that he would have expected in the circumstances. The Panel preferred JG’s evidence to that of DW regarding the quality of the reflective piece prepared by the Registrant; as an OT practitioner and her line manager he was likely to know the Registrant better than DW, he had a clear understanding of the professional expectation for that piece of work, and his evidence demonstrated that he had given the piece consideration and had evaluated the quality of the work.
42. JG explained that the ongoing mandatory training (after the induction training) for all OTs would have included similar topics to those covered in the induction, including relational security training.
43. The Panel accepted the admissions made by the Registrant in the Investigation Meeting and the Disciplinary Hearing that, at Patient A’s request, she made approximately three withdrawals from Patient A’s bank account using his bank card and PIN number, and gave the cash to him.
44. The Panel was mindful that the Allegation states that these withdrawals were made between July and November 2017. There was no direct evidence of this. The Panel inferred from the following primary facts that the withdrawals were more likely than not to have been made between February and November 2017:
(i) the Registrant said, when interviewed in December 2017, that it was hard to remember how many withdrawals were made because it was a long time ago;
(ii) the withdrawals came to light following a complaint by Patient A in about November 2017;
(iii) CC stated that in November 2017 she heard discussion amongst other staff regarding the withdrawals. These discussions led her to understand that they occurred in about October-November 2017;
(iv) the Registrant had not filed any evidence or submissions disputing the Allegation concerning the withdrawals.
45. JG was very clear that the Registrant would have known that it was wrong (in the sense of being a breach of professional boundaries) to use Patient A’s bank card and PIN number to obtain cash; indeed, he stated that all those working in the Hospital would know this. This evidence was consistent with that given by the other live witnesses.
46. JG was clear that the Registrant had every opportunity to talk to him about relational security. After learning that the Registrant had taken cash out for Patient A using his bank card, JG concluded that the breach of professional rules was wilful or voluntary and not the result of naivety or lack of experience. After it was found that the Registrant had used Patient A’s bank card to withdraw cash for Patient A, JG had had a “dramatic change” of opinion (to use his words) in respect of the matters alleged in Particulars 1(b), 1(c), and 1(e), which had arisen in or before January 2017 and which he had previously viewed as the product of naivety and lack of experience.
47. From all the oral witness evidence, the Panel found that the Registrant knew that it was wrong, being a breach of professional boundaries, to use Patient A’s bank card and PIN number to obtain cash for him. The Panel concluded that she knew that, by doing this on the first occasion and each occasion thereafter, she was breaching professional boundaries. In particular, the Panel found that she must have known that in withdrawing cash for Patient A she was enabling him to avoid the control systems that were in place for patients at the Hospital for the safe management of individual patient finances.
Particular 1(b) – found not proved
48. The HCPC sought to prove this Particular by relying on the evidence of an Investigation Interview conducted on 3 February 2017 with BC, together with the content of an unsigned draft witness statement compiled by EM following a telephone interview with BC conducted on 16 September 2019. In each document, BC was recorded as suggesting that he had seen the Registrant in the sports hall attempting to sit on a pile of mats that were stacked too high. Two patients, one of whom was Patient B, then hoisted the Registrant up onto them.
49. The Panel did not hear oral evidence from BC. Having admitted the record of his Investigation Interview and his draft unsigned statement, the Panel considered what weight to attach to this hearsay evidence.
50. There was no evidence to explain whether it would have been reasonable and practicable for BC to have attended; there was evidence that he did not sign the statement prepared for him.
51. The interview notes with BC, on which his draft statement appeared to be based, were not made contemporaneously with the events in the gym giving rise to the allegation that the Registrant was hoisted up by Patient B.
52. Although BC was present, his interview notes demonstrate that he was engaged in running a football session at the time.
53. When this allegation was put to the Registrant in interview on 8 February 2017, she denied that she was touched by Patient B.
54. The Panel were unable to find, on a balance of probability, that BC’s account was more likely to be correct than the Registrant’s account.
Particular 1(c) – found proved
55. The HCPC relied on the evidence of JL and CC to prove this Particular.
56. The Panel found JL and CC to be credible and reliable witnesses, who gave clear evidence. They demonstrated a good recall of events.
57. JL had worked therapeutically with Patient B. It was during one of these sessions in February 2017 that Patient B disclosed to her directly that he knew highly personal and sensitive information about the Registrant’s personal life.
58. CC explained that Patient B had directly told her that the Registrant had disclosed highly personal and sensitive information to him on another occasion.
59. Both witnesses were clear that the Registrant was not working therapeutically with Patient B on an ongoing basis because he was not on the ward that she was allocated to work on. From the oral evidence, the Panel found that the allocation of work to OTs was clearly defined, in that there was an identified OT working on each ward.
60. The Panel accepted the evidence of both these witnesses as to why the sharing of personal information with patients potentially placed the Registrant, other persons (such as other staff), and Patient B at risk. These witnesses explained that sharing such personal information with Patient B was a breach of professional boundaries.
Particular 1(d) – found proved
61. The HCPC relied on the evidence of CC.
62. CC informed the Panel that Patient C habitually was bare-chested. She said that on one occasion, on a date between September 2016 and January 2017, she saw the Registrant put Patient C’s jewellery back on whilst his bare chest was facing the Registrant.
63. CC saw this whilst engaged in work with another patient and did not raise any concern about it at the time. In evidence she stated that she found, on a scale of concerns, that the Registrant’s actions were at the lower end, but that it was something which had stuck in her mind and, when she reflected on it after the events leading to allegation now identified at Particular 1(a), she felt that she had to report it because she thought that the Registrant may have had less understanding about the importance of relational security than would have been expected of her.
Particular 1(e) – found proved
64. The HCPC relied on the evidence of JL.
65. The Panel accepted JL’s evidence that on a date in January 2017, JL had walked past the kitchen and seen the Registrant and Patient B covered in flour from head to toe. It caused concern to JL to see the Registrant in the kitchen with Patient B, who was not her allocated patient, and she believed that such conduct was inappropriate by an OT (or any professional) in a forensic environment in the context of relational security. The Panel accepted the evidence of JL.
Decision on Grounds
66. Having made its findings on the facts, the Panel went on to consider whether the matters found proved constituted lack of competence or misconduct. In this regard, the Panel had careful regard to the submissions of Mr Millin and the advice of the Legal Assessor.
67. Mr Millin submitted that, by reason of the matters alleged, the Registrant had breached standards 1, 2, 6, and 9 of the HCPC Standards of Conduct, Performance and Ethics (January 2016). He submitted that the proven facts amounted to misconduct and asked the Panel to take into account the vulnerability of the patients in the Hospital.
68. The Legal Assessor advised the Panel to question when deciding whether the facts amounted to a lack of competence whether it had been provided with a reasonable sample of the Registrant’s work. She advised the Panel to consider when deciding whether the facts amounted to misconduct whether, in its judgement, the Registrant’s behaviour had fallen seriously below the standards required of an OT in the circumstances, and whether her behaviour would be regarded as deplorable by fellow practitioners. She took the Panel to the cases of Roylance v General Medical Council No 2  1 AC 311 and Nandi v GMC  EWHC 2317.
69. In considering the issue of misconduct the Panel had regard to the evidence of DW and JG, who had explained that the Registrant had received training on relational security.
70. The Panel concluded that the matters found proved did not represent a fair sample of the Registrant’s work and were not capable of constituting a lack of competence.
71. In relation to Particular 1(a), the Panel concluded that there had been a clear breach of the following HCPC Standards of Conduct, Performance and Ethics:
Standard 1.4 Make sure you have consent
Standard 1.7 Maintain appropriate boundaries
Standard 2.6 Share relevant information with colleagues involved in the provision of care, treatment or other services
Standard 6 Manage risk
Standard 8 Be open when things go wrong
Standard 9 Be honest and trustworthy
72. The Panel concluded that the matters found proved in Particular 1(a) fell seriously below the standard to be expected of an OT in this setting at this time. The Panel also concluded that the conduct would be viewed as deplorable by fellow practitioners. The conduct was patently a breach of professional boundaries and placed Patient A, the Registrant, and colleagues at risk. In facilitating Patient A to avoid the systems for management of patient money at the Hospital, the Registrant committed grave breaches of professional boundaries. The Panel found the initial serious misconduct in using the bank card for the first time to withdraw cash was made worse by the fact that she was not open and honest (as required by Standard 8) by admitting this, but allowed herself to be pressured by Patient A into repeating the act. The Panel concluded that this was particularly serious because of the existence of:
(i) The previous allegation which led to the Management Report;
(ii) The letter of concern sent to the Registrant on 14 February 2017 after advice from Hospital managers about relational security;
(iii) The weekly supervisions after the Management Report recommendations;
(iv) The monthly mentoring after the Management Report recommendations;
(v) The written reflective piece prepared by the Registrant after the Management Report, which was about relational security.
73. Accordingly, the Panel concluded that Particular 1(a) amounted to misconduct.
74. In relation to Particular 1(c), the Panel concluded that there had been a clear breach of the HCPC Standards of Conduct, Performance, and Ethics:
Standard 1.7 You must keep your relationships with service users and carers professional
Standard 6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible
75. The Panel found that the Registrant’s actions clearly fell far below the standard of care of an OT employed in this setting at this time. Furthermore, the conduct would be viewed as deplorable by fellow practitioners. Patient B was not a patient on the Registrant’s case load and she had no clinical responsibility for him. The conduct was patently a breach of professional boundaries and placed Patient B, the Registrant, and other people at risk. This was demonstrated by the risk to JL, who was heavily pregnant, when she was challenged by Patient B as a result of the Registrant having informed him that she would need to take a step back from working with him due to concerns raised by JL. The Registrant’s actions were highly unprofessional and any fellow practitioner would consider that this put JL at risk, and would deplore it.
76. Accordingly, the Panel concluded that Particular 1(c) amounted to misconduct.
77. In relation to Particular 1(d), the Panel concluded that the actions in putting the jewellery onto Patient C’s bare chest was inappropriate behaviour given the context and nature of the Hospital. However, the fact that CC did not act on it at the time indicates that the actions of the Registrant were not so serious as to meet the standard required to amount to misconduct.
78. Accordingly, the Panel concluded that Particular 1(d) did not amount to misconduct.
79. In relation to Particular 1(e), the context in which these events occurred included the fact that:
• the Registrant had no need to be in contact with Patient B, who was not her patient;
• the Registrant was in the kitchen with Patient B, alone, when she had no reason to be there;
• there was no reason to have contact with this ingredient (flour);
• Patient B had difficulty in understanding social boundaries;
• Patient B had complex needs.
80. The Panel concluded that, when measured against the evidence of other practitioners, this clearly fell below standards expected of the Registrant in the circumstances. It was JG’s view that no professional should behave in this manner.
81. Accordingly, the Panel concluded that Particular 1(e) amounted to misconduct.
Decision on Impairment
82. The Panel then went on to consider whether the Registrant’s fitness to practise is impaired by reason of her misconduct. It had careful regard to all the evidence before it and to the submissions of Mr Millin. It accepted the advice of the Legal Assessor, who advised on the criteria set out in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Paula Grant  EWHC 927 and the case of Cohen v General Medical Council  EWHC 581.
83. The Panel concluded that the Registrant’s misconduct had put patients, herself, and other staff members at unwarranted risk of harm. Her actions had breached fundamental tenets of the profession set out in Standards 1.4, 1.7, 2, 6, 8, and 9. She had brought the profession into disrepute through repeated misconduct, despite clear advice and warning about the need to adhere to professional boundaries and observe relational security. Despite this, the Registrant proceeded to act as found in respect of using Patient A’s bank card.
84. The Panel concluded that these factors pointed to a lack of insight on the Registrant’s part as to the insight and seriousness of her actions, compounded by the evidence of JG that the reflective work completed by the Registrant in about February 2017 demonstrated a lack of insight. Further, there had been no subsequent evidence from the Registrant of any insight into what she had done.
85. The Panel concluded that the conduct which led to the particulars of the Allegation was not easily remedial. It appeared attitudinal. The Panel accepted the evidence of JG that the breaches by the Registrant were wilful, in that she was aware of the standards but had disregarded them. There was no evidence that the conduct had been remedied. The Registrant had not attended the hearing or given any evidence of any training attended since the matters found proved occurred, nor provided an insightful or full reflective piece, particularly on the use of the bank card. The Panel concluded that it could not be said that the Registrant’s misconduct was highly unlikely to be repeated. If anything, the evidence pointed to the contrary.
86. The Panel then went on to consider whether a finding of impairment is necessary on public interest grounds. In addressing this component of impairment, the Panel had careful regard to the critically important public issues identified by Silber J in the case of Cohen, when he said:
“Any approach to the issue of whether fitness to practise should be regarded as ‘impaired’ must take account of ‘the need to protect the individual patient, and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour.”
87. The Panel considered that the public would be shocked to learn of the Registrant’s behaviour in this case in relation to vulnerable patients. The Panel had no doubt that the need to maintain public confidence in the profession and to declare and uphold proper standards would be undermined if a finding of impairment of fitness to practise were not made in the circumstances of this case.
88. For all the reasons set out above, the Panel determined that the Registrant’s fitness to practise is currently impaired, both on the grounds of public protection and in the public interest.
Decision on Sanction
89. Mr Millin submitted that sanction is a matter for the Panel’s independent judgment. He reminded the Panel of its conclusions at the impairment stage, namely that the Registrant lacked insight, had breached professional boundaries and acted in breach of trust, that her misconduct was not easily remediable, and that there was no evidence of remediation.
90. The Panel accepted the advice of the Legal Assessor, who reminded the Panel of the relevant parts of the HCPC’s Sanctions Policy. She advised that the purpose of sanction is not to be punitive but is to protect the public, maintain standards of professional conduct, and uphold public confidence in the profession and the regulatory process.
91. The Panel understood that the purpose of sanction was not to be punitive but was to protect the public and the wider public interest.
92. The Panel had concluded that Particulars 1(a), 1(c), and 1(e) amounted to misconduct, and that the misconduct in relation to Particulars 1(a) and 1(c) was very serious.
93. The Panel concluded that the following features of the case amounted to mitigating factors:
• The Registrant’s good character, having no previous disciplinary findings against her name; the Panel attached little weight to this given that she had only been in practice for a short time before the incidents which were found proved;
• The lack of personal gain;
• The Registrant’s claim that she had been pressured by Patient A to carry out the second and/or third withdrawal of cash;
• The Registrant’s co-operation with the first and second internal investigation;
• The Registrant’s admissions when Particular 1(a) was first put to her in interview;
• The beginnings of limited insight into relational security and the building of professional boundaries shown by the Registrant when interviewed in the post-suspension meeting on 13 February 2017.
94. The Panel concluded that the following features of the case amounted to aggravating factors:
• The Registrant had acted in breach of trust;
• The breach of trust related to patients who were vulnerable due to their complex needs;
• The Registrant had known at the time of her actions that what she was doing was wrong;
• The Registrant’s actions put herself at risk of being pressured, which she then succumbed to and repeated her wrongful acts;
• The Registrant has demonstrated no remorse, no remediation, and minimal insight.
95. The Panel first considered whether to take no action or to impose a Caution Order. It gave careful consideration to the factors set out in the Sanctions Policy. The Panel had found that the Registrant had demonstrated minimal insight and no remediation and that there remains a high risk that she will repeat her serious misconduct. In those circumstances, the Panel concluded that to take no action or to impose a Caution Order would be inappropriate and would be insufficient to protect the public and mark the wider public interest.
96. The Panel then considered the imposition of a Conditions of Practice Order. It consulted Paragraph 106 the Sanctions Policy, which suggests that this will be most appropriate 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;
• 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.
97. The Panel also took into account Paragraph 107 of the Sanctions Policy, which suggests:
“Conditions will only be effective in cases where the Registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so. Therefore conditions of practice are unlikely to be suitable in cases in which the Registrant has failed to engage with the fitness to practise process or where there are serious or persistent failings”.
98. The Panel concluded that none of the factors set out at Paragraph 106 of the Sanctions Policy apply to this case, whereas the considerations set out in Paragraph 107 were pertinent in that the Registrant had failed to engage with this hearing and the Panel had no confidence that she would engage with a Conditions of Practice Order if given the opportunity to do so. There was no evidence that the Registrant would be willing to comply or adjust her attitude, nor was there any means of ensuring compliance on her part. Furthermore, it was not possible to formulate conditions to mitigate a risk of repetition which had resulted in part from attitudinal issues.
99. The Panel went on to consider the imposition of a Suspension Order. Paragraph 121 of the Sanctions Policy suggests that Suspension 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. It suggests that 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;
• There is evidence to suggest that the registrant is likely to be able to resolve or remedy their failings.
100. The Panel concluded that the breaches of the standards of conduct in this case had been serious. There was evidence from the 13 February 2018 meeting that the Registrant had begun to develop some limited insight. The Panel concluded that the Registrant’s misconduct in relation to Particular 1(a) was unlikely to be repeated, and that the Registrant had only repeated her actions in withdrawing cash using Patient A’s bank card because she had put herself in a position where she could be manipulated by Patient A.
101. There was no evidence to suggest that the Registrant is likely to be able to resolve or remedy her failings, but the record of the Disciplinary Hearing held on 5 January 2018 suggested that the Registrant did not appear to understand what she had to do to continue to practice. The Panel noted that she was not represented at that hearing and did not appear to understand the fitness to practise process and its potential range of outcomes, having realised that she was to be dismissed from work for gross misconduct.
102. The Panel considered a Striking Off order. It took account of Paragraph 131 of the Sanctions Policy, which states that a Striking Off Order is likely to be appropriate in particular where the registrant:
• lacks insight;
• continues to repeat the misconduct; or
• is unwilling to resolve matters.
103. The Panel reminded itself that a Striking Off Order is the most serious of all orders, which should only be applied where no lesser sanction would be sufficient to protect the public, to maintain public confidence in the profession, and uphold confidence in the Regulator. The Panel concluded that a Striking Off Order was not required to protect the public, public confidence, and confidence in the Regulator in this instance. Although there had been very serious breaches of standards, these were not the most serious in the range of breaches, and the Panel concluded that a Striking Off Order would be disproportionate in the light of the mitigating circumstances that had been identified.
104. For all the reasons set out above, the Panel decided that a Suspension Order is the appropriate and proportionate sanction in the circumstances.
105. The Panel concluded that a period of 12 months is the appropriate and proportionate length of time in the light of the seriousness of the misconduct.
106. The Panel considered that a reviewing panel would be likely to be assisted by:
• The Registrant’s attendance at the review hearing;
• A detailed reflective piece by the Registrant covering professional boundaries (including relational security, why it was inappropriate to take the bank card from Patient A and remove cash for him, and why this put her at risk, why it was inappropriate to share personal information with patients, and how this made her and colleagues vulnerable);
• Evidence that the Registrant’s training and Continuing Professional Development portfolio has been kept up-to-date;
• Evidence of written references, if any, from an OT with whom the Registrant has worked.
• Evidence of activities undertaken relevant to the Registrant’s OT profession and associated professional and/or other references regarding her conduct during those activities.