Mrs Maria Barnes
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Service and Proceeding in Absence
1. The Panel was satisfied that notice of today’s hearing, dated 20 January 2020, had been properly served on the Registrant in accordance with the Rules. The Panel also took into account an email from the Registrant dated 12 February 2020 in which she confirmed that she would not attend today’s hearing because she will be out of the country and that she has “made the decision not to aspire to practice as an orthoptist in the future to assist with protecting the integrity and standing of the profession, and consider myself retired since May 2017.”
2. The Panel went onto consider the HCPC application to proceed in the absence of the Registrant. The Panel accepted the advice of the Legal Assessor. The Panel noted that the Registrant had not made an application for an adjournment and that she had voluntarily absented herself from the review today. The Panel has no reason to believe that she would attend at a future date if the hearing was adjourned. This is a mandatory review hearing which must take place before its expiry on 28 March 2020 and so the Panel decided that it was fair to proceed with this review in the Registrant’s absence today.
3. On 28 February 2018, a panel of the Conduct and Competence Committee found that the Registrant’s fitness to practise was impaired by reason of her misconduct. The Registrant was employed as a Lead Orthoptist for Enhanced and Supplementary Services at Taunton and Somerset NHS Foundation. Her role involved the provision of orthoptic services as an autonomous practitioner, assessing, diagnosing and managing patients who had been referred to the Orthoptic Department of the Musgrove Park Hospital. The Registrant accessed the personal contact details recorded in NHS patient referrals of approximately 12 patients in order to make unsolicited telephone calls to the patients’ parents and/or guardians and that she did so in order to redirect those NHS patients to her private practice.
4. The panel in 2018 found that the Registrant’s conduct was dishonest and that her fitness to practise was impaired by reason of her misconduct and imposed a 12 month Suspension Order.
5. The order was reviewed on 19 February 2019 when the Registrant did not attend and was not represented. The Suspension Order was extended to 28 March 2020. The panel in February 2019 informed the Registrant that this would provide her with a further opportunity to develop insight into her misconduct and to provide evidence of remediation. That panel also informed the Registrant that the Panel today would be greatly assisted if she provided:
a. A detailed written piece containing her reflections on the misconduct, showing insight into the potential and actual effects of the misconduct and its implications for all relevant stakeholders, and for public confidence in the profession and the wider public interest;
b. Testimonials addressing the Registrant’s character and probity;
c. Evidence of any steps taken to maintain the Registrant’s skills including any Continuing Professional Development (CPD) undertaken;
d. Any other evidence that the Registrant may consider to be helpful.
6. The Registrant’s letter to the HCPC dated 12 February 2020 states; “From the report of last year’s hearing, it appears that there is some form of words that you require and of which I am not aware. Whilst I could pay someone who knows the form of words that would satisfy you, that would be disingenuous. I know that by using the contact details in the way I did was unprofessional, had the potential to bring the Orthoptic profession into disrepute, and caused distress to those who were contacted. For this I am truly sorry. There is not a day when I do not reflect on my behaviour and the distress it has caused, and I know it is something that I will never be foolish enough to repeat. I have made the decision not to aspire to practice as an orthoptist in the future to assist with protecting the integrity and standing in the profession, and consider myself retired since May 2017.”
7. The Registrant has not provided the Panel with any information in addition to this letter.
8. The Panel today is conducting a review of that Suspension Order in terms of Article 30(1) of the Health Professions Order 2001.
9. The HCPC submitted that the Registrant’s fitness to practise remains impaired because she has failed to provide any of the information listed by the panel at the last review a year ago. The HCPC considered that a Striking Off Order would be appropriate where there was a lack of remediation and given the Registrant has stated that she did not intend to return to practice.
10. The Panel is mindful that its task today is not to go behind the decision of the previous panel but to determine whether or not the Registrant’s fitness to practise remains impaired and if her fitness to practise is currently impaired, what, if any, order should be made when the current order expires. The Panel has considered the submissions of the HCPC together with the advice of the Legal Assessor. In reaching a decision, the Panel has exercised its own independent judgement.
11. The Panel first considered whether the Registrant’s fitness to practise is currently impaired. In reaching this decision, the Panel has considered both the personal component and the public component. The previous panel acknowledged that the Registrant had shown a measure of insight into her misconduct and had, to some extent remedied her dishonesty. The Panel considered that her letter dated 12 February 2020 does show some insight but the Panel was concerned that the Registrant had chosen not to provide the information outlined at the last review. The Panel is aware that might be because the Registrant considers herself retired and that she has no intention to return to practice. However, Article 30(1) requires the Panel to assess whether the Registrant is currently fit to practise without restriction, regardless of her stated intention. This is because unless an order is in place, the Registrant would be free to change her mind in relation to her retirement and return to unrestricted practice.
12. The Panel noted that the Registrant appears to have been out of practice since May 2017, which is now almost 3 years ago. There is no evidence before the Panel that she has kept her skills up to date and therefore the Panel cannot be satisfied that she is currently fit to practise without restriction.
13. The Panel also considered the wider public interest considerations which include the need to protect patients, to declare and uphold proper standards of behaviour and to maintain public confidence in the profession. In the absence of evidence of her current skills, the Panel has concluded that the Registrant’s fitness to practise remains impaired on both the personal and public components.
14. The Panel next considered the sanctions available to it in ascending order of severity. The Panel is aware 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.
15. The Panel considered that because the Registrant has been out of practice for almost three years, a Caution would not be sufficient to protect the public. The Panel then considered if there are conditions of practice that would be proportionate and workable and decided that such an order would not be appropriate because the Registrant is not currently employed as an Orthoptist and the Panel has received no evidence that she would be able or willing to comply with any conditions it could impose.
16. The Panel has concluded that the appropriate and proportionate sanction would be an extension of the current Suspension Order for a period of 12 months. The Panel did consider whether a Striking Off Order would be appropriate. However, the Panel decided that this would be disproportionate today and that it is appropriate instead to give the Registrant the opportunity to apply for Voluntary Removal which would represent a dignified exit to the profession. The Panel noted the finding of the original panel in 2018 that no actual harm was caused to service users. The Panel also noted that the Registrant had been in practice for almost 40 years with a hitherto unblemished record. The Panel was satisfied that the Registrant has shown insight, and that she is unlikely to repeat her misconduct.
17. This order will be reviewed prior to its expiry. The Panel considers that if, contrary to her current stated intention to remain in retirement, the Registrant wishes to return to practice, that a reviewing panel would be greatly assisted by the Registrant actively engaging with the HCPC and attending the hearing. In addition the panel may be assisted by:
• A detailed written piece from the Registrant containing reflections on the misconduct, showing insight into the potential and actual effects of the misconduct and its implications for all relevant stakeholders, and for public confidence in the profession and the wider public interest;
• Testimonials addressing the Registrant’s character and probity;
• Evidence of any steps taken to maintain the Registrant’s skills including any Continuing Professional Development (CPD) undertaken;
• Any other evidence that the Registrant may consider to be helpful.
The Registrar is directed to suspend the registration of Ms Maria E Barnes for a further period of 12 months on the expiry of the existing Suspension Order.
The order imposed today will apply from 28 March 2020.
This order will be reviewed again before its expiry on 28 March 2021.