Miss Jennifer Carlaw

Preliminary Matters

1. The Panel has been convened to undertake the final hearing of the HCPC’s allegations against the Registrant, Ms Jennifer Carlaw.  In referring to the Registrant as Ms Carlaw, the Panel did not overlook the fact that since the relevant events she has married and submitted documents to the Panel under her married name.  During the hearing the Registrant was described as Ms Carlaw as that was the name by which she was known during the relevant employment and was known to the witnesses.  It is appropriate to describe her as Ms Carlaw in this document because that remains her name on the HCPC Register.

2. The Registrant did not attend the hearing and was not represented at it.

Notice of Hearing

3. The Panel first considered whether a valid notice of hearing had been sent to the Registrant.  The Panel was satisfied that the letter dated 13 September 2019 addressed to the Registrant at her HCPC registered address constituted a valid notice of hearing as it informed her of the date, time and location of this hearing.

Proceeding in Absence

4. After the Panel announced its decision that a valid notice of hearing had been sent to the Registrant, the Presenting Officer applied for a direction that the hearing should proceed in the absence of the Registrant.  In considering this application, the Panel heeded the advice it received from the Legal Assessor and also had regard to the HCPTS Practice Note on the topic.  Having given the matter very careful consideration, the Panel decided that it was appropriate to direct that the hearing should proceed in the absence of the Registrant.  The reasons for this decision were as follows:

• The Panel was satisfied that the Registrant had knowledge of the hearing date because the Solicitors acting for her wrote to the HCPC’s Solicitors on 29 January 2020 stating that the Registrant would neither be attending nor represented at this hearing.
• In a witness statement dated 28 January 2020 sent under cover of her Solicitors’ letter, the Registrant stated that she would not be attending the hearing and gave an explanation for that decision.
• There was no request for an adjournment of the hearing or other suggestion that the Registrant would be minded to attend a hearing on a future occasion.
• It followed from the above that there was no information on which the Panel could conclude that the Registrant would attend a hearing on a future occasion if the case did not proceed at the present time.
• The fact that the Registrant submitted for the consideration of the Panel a witness statement had the consequence that the Registrant’s case could be taken into consideration.
• One of the two witnesses the HCPC intended to call in support of its case was already present and waiting to give evidence, and the other witness was travelling to the hearing venue.
• The events with which the case is concerned occurred over two years ago.  Further delay would be undesirable.
• In all these circumstances, the clear public interest in the case proceeding outweighed the absence of the Registrant.

Application to Amend

5. At the outset of the hearing, the HCPC applied to amend the factual particulars of the allegation made against the Registrant.  The terms of the proposed amendments were communicated to the Registrant by a letter dated 5 June 2019.  The Panel was satisfied that the amendments were minor in nature, that they reflected appropriate clarifications and corrections.  They were also consistent with the “case to answer” decision of the Investigating Committee when the allegation was referred to the Conduct and Competence Committee.  Crucially, the Panel was also satisfied that, if allowed, the amendments would not result in any prejudice to the Registrant.  In that last respect it is noteworthy that the Registrant’s witness statement appeared to have been prepared on the basis that it addressed the proposed amendments, as opposed to the unamended factual particulars.  For all these reasons the Panel acceded to the application.  The amended allegation is set out at the head of this written determination.

Background

6. Following her graduation from University after studying psychology, the Registrant obtained employment in a special needs nursery where she worked as a learning assistant, and subsequently as a speech and language assistant.  Her application to study speech and language therapy in order to become a Speech and Language Therapist (“SLT”) was supported by that employer.  The Registrant completed her post-graduate diploma in speech and language therapy in 2013.  During that training she completed three placements, one of which was undertaken with the East Kent Hospitals University NHS Foundation Trust (“the Trust”).

7. The Registrant commenced employment as a Band 5 SLT with the Trust on 1 September 2014.  She was based at the Queen Elizabeth the Queen Mother Hospital in Margate (“the Hospital”).  The Registrant’s employment continued until she submitted her resignation on 10 October 2017.  Her last official working day was 7 November 2017, but she was on sick leave for some of the period between the submission of the resignation and the end of the employment.

8. The line management and formal supervision of the Registrant by JH from November 2016 will be described below when the Panel explains the role of the witnesses who attended the hearing to give evidence.  However, before that date the supervision of the Registrant had been, at best, patchy, and for lengthy periods non-existent.

9. By May 2017 JH had begun to notice significant concerns about the Registrant’s practice.  This resulted in JH instigating an informal performance review from 24 May 2017 that lasted until 29 August 2017.  An action plan was set up under this informal procedure.  When it was believed that the informal procedure had not achieved the goals set, a formal review meeting was scheduled for 29 September 2017 in line with the Trust’s HR Guidance for Performance Reviews.  A further action plan was set under the formal procedure. The Registrant submitted her letter of resignation on 10 October 2017.

10. The incidents alleged in respect of the four patients, as reflected in the four principal particulars being considered by the Panel, are not advanced in chronological order.  Listed in chronological order, the incidents are as follows:

• Patient 2, on or around 4 April 2017.
• Patient 4, on or around 25 September 2017.
• Patient 3, on or around 26 September 2017.
• Patient 1 on or around 23 October 2017.

Decision on Facts

11. The HCPC called two witnesses to give evidence before the Panel.  They were:
• JH, who between July 2016 and September 2018 was the Acute Team Lead for Adult SLT.  Between July 2016 and 21 November 2016, JH undertook that role on a locum basis.  However, from 21 November 2016 she became a permanent member of staff, and from that date became the Registrant’s line manager and supervisor.
• KG, who from April 2016 was employed by the Trust as a Highly Specialist SLT.  Although primarily based at a different hospital within the Trust, KG’s role involved providing occasional support at the Hospital.  From the commencement of her employment in April 2016, KG worked with the Registrant, and for a very short period from October 2017 until the Registrant left the Trust’s employment, she became the Registrant’s supervisor.  In fact, so short was this period that there was only one documented supervisory session undertaken.  It took place on 17 October 2017.

12. When it began its deliberations, the Panel first considered its general assessment of the witnesses.  It found both witnesses to be credible, balanced and fair.  The oral evidence of each was consistent with the written witness statements they had made themselves, and also consistent with each other and other evidence included in the hearing bundle.  Both witnesses volunteered their opinions that the Registrant was hard working and had a caring attitude towards patients.  The Panel was aware that the events took place over two years ago and this affected some of the recollection of events by KG.

13. It has already been recorded that the Registrant submitted a witness statement dated 28 January 2020.  The Panel ensured that the contents of this statement were fully considered during the hearing.  The Panel read the statement before the case began.  When the two HCPC witnesses were called before the Panel, the Presenting Officer asked the witnesses questions arising from the statement.  Before asking its own questions of the witnesses, the Panel retired to formulate its questions, and again had recourse to the statement in deciding what should be asked.  The Panel re-read the statement before hearing the Presenting Officer’s closing submissions.  Finally, the Panel paid close attention to the statement when reaching its decisions on the facts.

14. In reaching its decisions, the Panel considered the entirety of the evidence, not only the oral evidence given by the two witnesses who attended the hearing, but also the witnesses statements and the documentary exhibits included in the HCPC hearing bundle.  To the extent that the evidence was not the direct evidence of the two witnesses arising from their own knowledge, the Panel treated those hearsay elements with caution, being aware that it had not been possible for it to be explored.  The Panel remembered throughout that in relation to the factual particulars the burden rests on the HCPC to prove matters on a balance of probabilities.

Particulars 1(a) to (h).

15. Patient 1 was an elderly lady who was extremely unwell.  An SLT referral was made from the Medical Assessment Unit on Friday 20 October 2017.  However, she was not seen by the Registrant until the following Monday, 23 October 2017, by which time she had been transferred to a gynaecological ward. This was not an elderly care ward and so was not one routinely used by elderly patients.  While the Registrant was attending the patient on 23 October 2017, the patient died.  It is very important to stress that the HCPC’s case is not advanced on the basis that it was the Registrant’s actions that resulted in the patient dying.

16. Particular 1(a) alleges that the Registrant did not consider and/or seek advice as to whether it was appropriate to undertake a speech and language assessment, and/or not recording that such consideration was given or advice sought.  The thrust of the allegation is thus directed to whether it was appropriate for there to have been any speech and language input in relation to this patient at that time.  As has been stated, the patient was very unwell.  The medical notes made before 23 October 2017 indicated that the patient was quite simply too unwell to undergo a speech and language assessment.  Further, the patient was a complex patient, and was thus one who should not have been seen by the Registrant.  In her note of her intervention, the Registrant recorded, “Nursing report declining intake and oral cares, mouth-holding and spillage when trialled with water.”  The Panel therefore accepts that the Registrant may well have had a conversation with a nurse that was directed to consideration of whether an assessment was appropriate, but the Panel finds that given the complexity of the patient and the extremely unwell condition in which she was when the Registrant attended her, there was an obligation on the Registrant to seek advice from a more senior SLT.  Although JH was not present that day, KG was.  In her witness statement, the Registrant acknowledged that, “…. my first port of call should have been a senior practitioner.”  The Panel finds particular 1(a) proven on the basis that advice was not sought from a senior practitioner.

17. Particular 1(b) alleges that an oro-motor assessment was not undertaken and/or recorded.  It is certainly the case that an oro-motor assessment was not recorded in the patient notes made by the Registrant.  Furthermore, in her witness statement the Registrant does not assert that she did undertaken one, and the account of her interactions with the patient lead the Panel to conclude that it is extremely unlikely that she did in fact perform such a task.  Accordingly, the Panel finds proved on a balance of probabilities that no oro-motor assessment was undertaken.  Particular 1(b) is proven.

18. Particular 1(c).  The two elements of particular 1(c) are, firstly, that the Registrant contacted the patient’s son regarding food and drink preferences, and, secondly, that it was inappropriate for her to have done so.  That the Registrant did telephone the patient’s son is demonstrated by the record she made in the medical notes which begins, “T/call to son ……”.  Had the patient’s state of health been better, and, in particular, such that a meaningful speech and language assessment would have been appropriate and possible, then a telephone call to a family member to discuss food and drink preferences would have been appropriate.  However, the Panel is persuaded that in the light of the patient’s true condition the telephone call was not appropriate.  The Panel does not accept that the telephone call was justified on the basis stated by the Registrant, namely that she understood it to be fairly standard practice at the time and not contrary to any protocol.  Particular 1(c) is proven.

19. Particular 1(d) alleges that the Registrant gave Patient 1 a wet teaspoon despite the patient’s notes indicating no oral intake should be attempted.  It follows that there are two elements of this particular, namely, first the issue whether the Registrant gave the patient a wet teaspoon, and, secondly, whether the patient notes indicated that no oral intake should be attempted.  As to the first issue, the Panel is satisfied that the Registrant did put a wet teaspoon in the patient’s mouth.  No reference is made to her having done so in the lengthy record made by the Registrant in the medical notes.  However, approximately an hour after the Registrant left Patient 1, she spoke to KG and a colleague, CMcC, about the patient having died while she was with her.  Initially the Registrant made no reference to having used the wet teaspoon, but subsequently in that conversation did so.  Furthermore, in her witness statement presented to the Panel, the Registrant accepts that she did put a wet teaspoon in the patient’s mouth with the intention of triggering a swallow, as the Registrant wished to do something to assist the patient in managing her secretions.  As to whether the patient notes indicated that no oral intake should have been attempted, the Panel has not overlooked the fact that there are suggestions in the HCPC’s evidence that there was a clear “nil by mouth” instruction.  There was no evidence before the Panel that there was any explicit “nil my mouth” instruction.  Furthermore, the Panel does not consider that the entry in the patient’s notes made in the early hours of the same day that the patient was, “Not able to tolerate anything my mouth”, can properly and fairly be construed as a like instruction.  However, what the Panel does find is that the patient’s medical notes taken as a whole made the Registrant’s interventions, including the use of the wet teaspoon, to be inappropriate.  It has already been stated that the patient was an elderly lady who was gravely ill.  Two days before the Registrant saw Patient 1, the medical notes recorded that CPR would not be attempted and that end of life medication was to be prescribed to prevent any distress to the patient.  Had the Registrant both read the medical notes and considered them appropriately she should have appreciated that it was not appropriate to use a wet teaspoon.  Particular 1(d) is proven.
20. Particular 1(e) alleges that the Registrant did not check whether suctioning equipment was available prior to her session with Patient 1. In her witness statement the Registrant states, “At some stage the nurses also made an attempt to carry out suctioning.  I had noticed at the outset that suctioning equipment was present although I was only there to check if the patient was suitable for assessment and had not envisaged its use.  I would expect working suctioning equipment to be available in an acute hospital environment.”  It is relevant that the patient was on a gynaecological ward, where it might be expected that there would be suctioning equipment available, but not readily set up and ready for use.  The Panel finds that it was not ready for immediate use, a finding based on the note made by the nursing staff following the patient’s death that, “…… informed …. that SALT had requested suctioning of secretions from pt, however when I was getting the equipment ready, pt struggled to breathe due to the obstruction from the secretions.”  The note made by the nurse is corroborated by the account that the Registrant gave to KG and CMcC approximately an hour after the event when she stated that it took some time for the suctioning equipment to be prepared for use.  The Panel finds that if some intervention was intended (and, as already stated, the Registrant inserted a wet teaspoon into the patient’s mouth), the particular condition of the patient necessitated a check to establish that suctioning equipment would be readily available.  The Panel finds on the balance of probabilities that the Registrant did not do so prior to her session with the patient.  Particular 1(e) is proven.

21. Particular 1(f) alleges that the Registrant did not record accurate and/or adequate notes in respect of her session with Patient 1.  The Panel finds that there are two significant respects in which the notes made by the Registrant were deficient.  One was that she did not record her reason for not undertaking an oro-motor assessment of Patient 1.  The second is that she made no reference to the use of the wet teaspoon.  The Panel finds that the former is an example of the notes being inadequate, the latter of them being inaccurate as there was an obligation to record significant interventions, and the failure to record the use of the teaspoon suggests that it did not occur.  Particular 1(f) is proven.

22. Particular 1(g) alleges that the Registrant acted outside the scope of her practice in that she recorded her conclusion as to Patient 1’s cause of death.  This allegation arises from the entry in the medical notes made by the Registrant that reads, “Impression: Patient ++unwell,? pass away as unable to manage secretions.”  In her witness statement the Registrant stated, “I recall speaking to the consultant following Patient 1 passing away and him making a reference to the cause of death.  I believe that this was still on my mind when I made the record in relation to what had occurred.  I did not mean to make a diagnosis or to comment on the cause of death within my record.  I was not acting outside the scope of practice.  Rather, my error was in not recording that it was the doctor’s opinion as to the cause of death.  I believe, in hindsight, that I was in shock at this time.”  There is nothing in that entry to indicate that the Registrant was recording what the consultant had said to her.  Even if that had been explained, it would have been inappropriate for an entry by a SLT to stray into such matters, but the entry as written reads as if it is the Registrant’s own opinion as to the cause of death, and that was clearly outside the scope of her practice.  Particular 1(g) is proven.

23. Particular 1(h) alleges that the Registrant did not seek advice from a senior colleague following her session with Patient 1.  The Registrant’s session with Patient 1 occurred at around midday on 23 October 2017.  A little over an hour later, the Registrant went to the office where KG and CMcC were working and stated that she had had a bad morning and told them about the death of Patient 1 in her presence.  In the intervening period the Registrant had attended and treated another patient.  The Panel finds that the seriousness of what had occurred with Patient 1 imposed an obligation on the Registrant to immediately inform a senior colleague.  JH was not at the Hospital that day, but KG, who at this time was supervising the Registrant, was.  In her witness statement, the Registrant acknowledged that she accepted that it would have been appropriate for her to have spoken to somebody more senior in the SLT team, but thought that she was in shock at the time.  Particular 1(h) is proven.

Particulars 2(a) to (c)

24. Patient 2 was a patient who was an intravenous drug user who was admitted to the Hospital on 23 March 2017 following a collapse.  He had hit his head and was intubated in the Accident and Emergency Department.  He was initially assessed by the Registrant on 31 March 2017.   However, following that initial assessment, on 3 April 2017 a tracheostomy procedure was carried out.  The Registrant saw him for a review the following day, 4 April 2017, when she recorded in the medical notes that the patient was “NBM”, i.e. nil by mouth.  She also recorded that she had a conversation with a doctor whom she named.

25. Particular 2(a) alleges that the Registrant undertook an assessment when it was not appropriate for her to do so.  The case is advanced on the straightforward basis that the Registrant was not qualified to assess or treat patients with a tracheostomy in situ.  In her witness statement, the Registrant accepts this proposition but states that she was pressurised by the nurse treating the patient and also by the patient himself.  The Panel finds that the Registrant was not qualified to assess or treat the patient, and that it was her responsibility to resist any pressure from others to perform tasks that placed the patient at risk of harm.  Particular 2(a) is proven.

26. Particular 2(b) alleges that the Registrant did not escalate Patient 2 to a senior SLT.  The Panel finds that the Registrant did not do so.  Indeed, the Registrant does not contend that she actually did so, but does state that she attempted to do so, but was not able to make contact and did not record her efforts in this regard. Particular 2(b) is proven.

27. Particular 2(c) alleges that the Registrant acted outside the scope of her practice in that she performed suctioning on Patient 2. Quite apart from the fact that the Registrant should not have had any professional involvement with this patient when he had a tracheostomy in situ, it is alleged that suctioning was not something that should have been undertaken by the Registrant.  The Registrant accepts that she performed what she describes as “basic suctioning” on the patient, and also accepts that she should not have done so as she was not trained to perform suctioning.  The Panel finds that the Registrant did perform suctioning on the patient and that it was not within the scope of her practice to do so.  Particular 2(c) is proven.

Particulars 3(a) to (c).

28. On 26 September 2017 the Registrant spoke to KG about Patient 3 in the SLT office at the Hospital.  The Registrant told KG that she was not happy to observe Patient 3 eating a sandwich.  KG asked the Registrant what her clinical rationale was behind this decision and she responded that it would be too risky to give the patient a sandwich.  KG then told the Registrant that if she felt that undertaking a trial with a sandwich would be too risky, she should explain that fact to the patient, to the nursing staff and record her clinical reasoning in the notes.

29. Particular 3(a) alleges that the Registrant did not adequately and/or accurately record the advice given by KG.  The Panel accepts the evidence of KG that she explained to the Registrant in the terms outlined in the preceding paragraph.  That advice was not accurately recorded in the record made by the Registrant in the medical notes that stated, “due to patient’s ongoing chestiness, variable swallow presentation (and high risk of texture of bread) agreed unable to rule out aspiration/risks on sandwiches on bedside”.  Particular 3(a) is proven.

30. Particular 3(b) alleges that the Registrant recommended that Patient 3 could have sandwiches with accepted risk, which was not clinically justified and/or in accordance with the advice of KG.  At a later stage on the same day, the Registrant recorded in the medical notes that she had advised Patient 3 of the risks of eating sandwiches, that he understood these, had weighed them up, particularly the possibility of consequences of chest infections and choking, and had been having sandwiches on the ward.  In the judgement of the Panel for this conclusion to have been reached it would have been necessary for the Registrant to have considered and recorded the patient’s mental capacity to have made this decision for himself, and also to have assessed him by trialling the relevant food consistency or referring the patient for an instrumental assessment of swallowing.  Neither trialling nor referral for assessment was undertaken.  It follows that the clinical reasoning was absent as the level of risk to Patient 3 was not known.  Particular 3(b) is proven.

31. Particular 3(c) alleges that the Registrant did not keep adequate and/or accurate records.  The criticism levelled against the Registrant by this particular is not duplication of that made in relation to particular 3(a).  Rather, this particular is directed to the fact that an entry that was made in the medical notes by the Registrant earlier in the day on 26 September 2017 was struck through, but there was no explanation why they had been apparently deleted.  It is alleged that an explanation for the striking through should have been given in the medical notes, and that the explanation should have been signed and dated.  The Panel accepts that that this was required, and that the Registrant did not do it.  Particular 3(c) is proven.

Particulars 4(a) and (b).

32. Patient 4 had suffered a stroke and was admitted to the stroke unit at the Hospital.  On 25 September 2017, the Registrant undertook a communication assessment on Patient 4.
33. Particular 4(a) alleges that the Registrant did not use an appropriate communication test.  In undertaking the assessment, the Registrant did not use an informal communication screen or a standardised assessment.  The Panel received evidence that in the SLT department at the Hospital there was a drawer containing appropriate tests that could have been used.  The advantage of a standardised assessment is that tests can be repeated and standardised, however, an informal departmental screen could have been used.  The Registrant used neither.  The Panel accepts that she should have used either a standardised assessment or a screen.  Particular 4(a) is proven.

34. Particular 4(b) alleges that the Registrant did not keep adequate and/or accurate records.  The Panel accepts the evidence of JH that the Registrant’s record of her assessment was deficient.  It was lacking in terms of conclusions and plans, and there were respects in which there were internal inconsistencies.  For example, it was recorded that the patient could speak in full sentences, yet the assessment was undertaken at a less complex level.  Overall, the notes reflected a fundamental lack of understanding of why the patient was being assessed.  In her witness statement, the Registrant stated that it was her view that it was not that she had carried out an inappropriate test, but rather that she had failed to execute it and record the results properly.  She attributed the shortcomings to her lack of “exposure to patients with communication difficulties” and the fact that the focus of her work at the Hospital was with dysphagia patients.  However, the Panel finds that the knowledge and skills required by the Registrant to undertake the tasks competently were basic and would have been obtained during training as a SLT.  The Panel also noted that in the record of the one-to-one meeting between the Registrant and JH on 9 June 2017, more than three months before Patient 4 was seen, it was recorded under Professional development, “[The Registrant] has enjoyed spending more time in the stroke unit and has been able to do a little more assessment even if informal of communication, which has increased confidence in this area slightly.”  Particular 4(a) is proven.

Summary of findings of fact.

35. The consequence of the findings described above is that the entirety of the factual particulars are proven.

Decision on Grounds

36. In relation to the statutory grounds, the allegation advanced by the HCPC alleges “misconduct and/or lack of competence”.  Although no single particular could be both misconduct and lack of competence, the multiplicity of particulars established has the consequence that it would be open to make a finding that both misconduct and lack of competence were made out.

37. The Panel considered that it would be helpful to its deliberations on this topic to first consider the nature of the knowledge and skills that would have been required for the Registrant not to have defaulted in the respects found by the Panel.  Having conducted this assessment, the Panel concluded that all of its factual findings represented breaches of basic, core requirements of SLT practice at a Band 5 level that would have been known to the Registrant.  In particular:

• With regard to Patient 1, the Registrant knew that she should not see complex patients, knew that it was appropriate to consider whether a patient was in a condition to be assessed, and knew that it was not appropriate to insert a wet teaspoon into a patient’s mouth when the patient was not in a condition to be assessed and no assessment had in fact been carried out.
• With regard to Patient 2, the Registrant knew that she was not to treat patients with a tracheostomy in situ, knew that if a patient was beyond her competence to treat it was necessary to escalate the referral to a more senior practitioner, knew that suctioning was not something that she was competent to perform, and knew that she had a professional responsibility to resist being cajoled into undertaking activities she was not qualified to perform.
• With regard to Patient 3, knew that it was important that recommendations should be based on sound clinical reasoning.
• With regard to Patient 4, that the communication assessment undertaken by her required the use of an appropriate tool.
• With regard to all Patients 1, 3 and 4, knew that it was important that records of her interventions should be accurate and adequate.  Again, this was a basic requirement and one that would have been imparted during training as a SLT.
In short, the Panel concluded that all of the knowledge and skills required to act appropriately with regard to each patient were fundamental.  None of them was unusual or specialised and the failings were serious.

38. The Panel next considered whether the consequences of the failings were potentially serious.  The risk of serious harm to Patients 1 and 2 are evident, although the Panel makes it clear that in relation to the former it does not proceed on the basis that it was the Registrant’s actions that precipitated the patient’s death.  Patient 3 was at some, albeit less, risk of physical harm.  Patient 4 was not exposed to the risk of physical harm, but nevertheless his overall treatment and rehabilitation was jeopardised by his assessment not being undertaken appropriately.  The Panel concluded that when viewed individually and collectively the findings were serious.

39. The Panel considered whether the Registrant’s acts and omissions constituted breaches of the HCPC’s Standards of conduct, performance and ethics.  The Panel concluded that the following standards were breached:
• 2.3 You must give service users and carers the information they want or need, in a way they can understand.

• 2.6 You must share relevant information, where appropriate, with colleagues involved in the care, treatment or other services provided to a service user.

• 3.1 You must keep within your scope of practice by only practising in the areas you have appropriate knowledge, skills and experience for.

• 3.2 You must refer a service user to another practitioner if the care, treatment or other services they need are beyond your scope of practice.

• 6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.

• 6.2 You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user ….. at unacceptable risk.

• 10.1 You must keep full, clear, and accurate records for everyone you care for, treat, or provide other services to.

40. Having carefully considered the matter, the Panel concluded that when viewed both individually and collectively the factual findings it made warranted a finding of misconduct.  For the avoidance of doubt, there were no factual particulars that the Panel considered to be too insignificant to be included in this finding.  Furthermore, the Panel was satisfied that no issue of lack of competence arises.

Decision on Impairment

41. The Panel next considered whether the misconduct arising from the proven facts is currently impairing the Registrant’s fitness to practise as an SLT.  In this regard the Panel heeded the necessity of considering both the personal and public components of impairment of fitness to practise. The Panel referred to the HCPTS Practice Note “Finding that Fitness to Practise is Impaired” and accepted the legal advice it received.

42. In considering this issue the Panel considered that it was helpful to have regard to four matters, namely (i) the evidence about the Registrant’s attitude towards her work at the Hospital, (ii) the degree of acceptance by the Registrant that there were failings, (iii) the chronology, and (iv) the Registrant’s evidence about what she has done since the events covered by the allegation and what she intends to do in the future.  In the view of the Panel these factors are relevant to an assessment of the risk of recurrence of failings.  In relation to these four areas:

• It was the clear evidence of both JH and KG that the Registrant was hard working, caring and had a genuine regard for her patients, and wished to advance their interests.  The Panel accepts this evidence, and it follows that this is not a case where failings arose because the practitioner took a cavalier or uncaring attitude towards their work.
• It is fair to record that in her witness statement prepared for the purposes of this hearing, the Registrant has shown some insight  and accepted many, but not all, of the failings found proved by the Panel.  She has also expressed an apology for them and her concerns for the patients and their families and acknowledged the importance of the role of the Regulator in these matters.
• Particular 2 was first in time, and although that incident occurred before JH had instituted a performance review, it nevertheless occurred some five months after JH became the Registrant’s line manager and supervisor.  The other incidents occurred after performance reviews were instituted, that in relation to Patient 1 occurring after the Registrant had handed in her notice.
• In her witness statement the Registrant informed the Panel of a matter of which it would otherwise have been in ignorance, namely that an interim suspension order has been made.  She explained that this had prevented her from practising as an SLT, and that she has pursued alternative employment.  She also stated that she has not undertaken CPD.  Her witness statement concludes with this passage, “However, whatever the Committee decides I hope that I will not be prevented by the HCPC from returning to practise in the future although I understand and appreciate I would need to undergo further training and supervision.”
Based on these findings the Panel has concluded that there has not been remediation of the identified shortcomings.

43. So far as the personal component of impairment of fitness to practise is concerned, the Panel finds that the Registrant’s actions have in the past exposed patients to unwarranted risk of harm, have brought the profession of SLT into disrepute and have breached fundamental tenets of that profession.  The absence of remediation to date that has already been referred to has the consequence that those matters are liable to be repeated in the future.
44. Accordingly, the Panel finds that the Registrant’s current fitness to practise is impaired so far as the personal component is concerned.

45. So far as the public component is concerned, the Panel is satisfied that fair-minded members of the public would be dismayed if a practitioner against whom these serious findings have been made, and who has not remediated the shortcomings, were to be permitted to return to practise without restriction.  Furthermore, if the Panel did make a finding of current impairment of fitness to practise it would be failing in its obligation to declare and uphold proper professional standards.
46. For these reasons, the Panel finds that the Registrant’s current fitness to practise is impaired so far as the public component is concerned.
47. The finding that the Registrant’s current fitness to practise is impaired has the consequence that the Panel is required to proceed to consider the issue of sanction.

Decision on Sanction

48. After the Panel announced its decision on the allegation, the Presenting Officer made submissions on sanction.  He did not urge the Panel to impose any particular sanction, submitting that the issue of sanction was one for the discretion of the Panel.  The Presenting Officer did, however, make submissions as to the proper approach to the imposition of a sanction.  In this regard the Panel also received advice from the Legal Assessor and paid close attention to the HCPC’s Sanctions Policy.

49. The Panel initially identified the aggravating factors.  In the judgement of the Panel they are the following matters:

• The risk of harm, particularly with regard to Patients 1 and 2.
• There was an extent to which the Panel concluded that the Registrant’s insight was not complete, particularly with regard to understanding why her actions with regard to Patient 1 were inappropriate.
• There was an element of repetition in that, although the four patients presented with different conditions, general themes of not seeking advice when it was appropriate to do so, and not making adequate records were present.
• The evidence heard by the Panel resulted in it concluding that during the period covered by the particulars, the Registrant had not been fully assimilating and retaining learning.

50. Against these aggravating factors, the Panel concluded that it was fair to record the following matters in the Registrant’s favour:

• There are no other adverse regulatory findings against the Registrant;
• She has cooperated with the HCPC, and in her witness statement acknowledged the important role of the HCPC in maintaining the fitness to practise of the profession;
• She admitted a significant number of the factual particulars, apologised for her shortcomings and recognised the effect of her failings on patients;
• For a lengthy period after commencing as a newly appointed practitioner, her supervision was, at best, patchy;
• Even after JH assumed the role of supervisor, the Registrant was working in a busy environment;
• She was described by the witnesses as hard working, caring and a person who was concerned to advance the best interests of patients;
• She has expressed a desire to be able to return to practise as an SLT.

51. With these findings the Panel first considered whether the Panel’s findings required any sanction at all.  The clear conclusion of the Panel was that they did.  The findings are far too serious to result in no order being made.

52. The Panel also rejected the imposition of a Caution Order as an appropriate disposal.  The failings were not isolated, they were not minor in nature and there is a risk of repetition without restrictions being put in place.

53. The Panel therefore next considered whether a Conditions of Practice Order should be made.  The conclusion of the Panel was that the positive evidence about the Registrant’s attitude while working at the Hospital and the cooperation with the HCPC she has demonstrated provides sufficient confidence that conditions of practice would be complied with.  Furthermore, there remains a prospect that the Registrant could address the shortcomings that have been identified.

54. The specific conditions of practice will not be reproduced in the body of this determination as they are set out in the Order below.  While the Panel acknowledges that they are wide-ranging, they are nevertheless achievable by a newly qualified practitioner wishing to work autonomously as an SLT.  Crucially, the Panel considers them to be necessary to ensure that the risk to potential patients is minimised until a measured decision can be made as to whether the Registrant can be permitted to return to practise with fewer or no restrictions.  In short, a Conditions of Practice Order imposing the conditions formulated by the Panel is a sufficient but necessary restriction on the Registrant’s ability to practise.  For that reason it is proportionate.

55. The Panel tested the appropriateness of a Conditions of Practice Order by considering whether a Suspension Order should be made.  The conclusion of the Panel was that, while there remains a realistic prospect that the Registrant is able to address the identified shortcomings, a suspension order would be disproportionate.  It would be disproportionate because it would deprive the Registrant of the opportunity to return to practise as an SLT, and that fact would itself result in the task of effecting remediation more difficult.

56. As to the length of the Conditions of Practice Order, the Panel considers that the appropriate length is 2 years.  This period reflects the fact that the Registrant is not currently working as an SLT, that it might take her some time to obtain employment as such, and that, once employment is obtained, the various steps required by the conditions will take some time to complete.

The Registrar is directed to annotate the HCPC Register to show that, for a period of 2 years from the date that this Order takes effect (“the Operative Date”), you, Jennifer Carlaw (now Jennifer Ward) must comply with the following conditions of practice:

1. You must not accept any offer of employment for which your HCPC registration is required unless the post to which you would be appointed offers you weekly face to face supervision until such time as your Newly Qualified Practitioner (“NQP”) Competencies are signed off as having been met by your supervising SLT who must be working at Band 7 or above.

2. You must not work alone with the following categories of patients:

• patients with dysphagia;
• patients with acute onset;
• end of life patients; and,
• patients with tracheostomies.

To the extent that you need to see patients falling into these prohibited categories in order to satisfy competencies, you are to shadow and/or be directly supervised by a practitioner working at Band 7 or above.

3. You are to attend and satisfactorily complete a Royal College of Speech and Language Therapists (“RCSLT”) accredited course on dysphagia.

4. You are to successfully complete the RCSLT NQP Competencies, starting that task afresh.

5. You are to successfully complete the RCSLT Dysphagia Training Competency Framework at Level B.

6. You are to complete a significant event analysis, using the RCSLT CPD Toolkit, in relation to the four patients concerned in this case.

7. You must provide not less than 28 days before the date of the review of this Order, the following documents:

• A certificate of completion of the course required to be undertaken by condition 3.
• Proof that your RCSLT NQP Competencies have been signed off by your supervising SLT.
• A certificate of completion of the Dysphagia Training Competency Framework at Level B required by condition 5.
• Copies of the significant event analyses required by condition 6.
• A report from your supervisor commenting specifically on your progress since this Order was made and your readiness to practise without restriction.
• Your CPD portfolio, demonstrating adherence to the five HCPC’s CPD standards.

8. You must promptly inform the HCPC if you take up any employment for which your HCPC registration is required.

9. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

10. You must inform the following parties that your registration is subject to these conditions:
a. any organisation or person employing or contracting with you to undertake professional work;
b. any agency you are registered with or apply to be registered with (at the time of application); and
c. any prospective employer (at the time of your application).

Interim Order:

The Panel makes an Interim Conditions of Practice 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 to mirror the conditions as set out above.

History of Hearings for Miss Jennifer Carlaw