Miss Alexandra Claire Burns

Profession: Physiotherapist

Registration Number: PH70215

Interim Order: Imposed on 25 Nov 2016

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 13/01/2020 End: 13:00 13/01/2020

Location: Health and Care Professions Tribunal Service, 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

As Proven at the final hearing on 20 August 2018:

 

While registered as a Physiotherapist with the Health and Care Professions Council:
1. You were unable to undertake your professional duties as you were under the influence of alcohol, on the following dates:
a) On 4 December 2015, at Milton Keynes University Hospital.
b) On 22 January 2016, at Peterborough City Hospital.
c) On 4 October 2016, at Kettering General Hospital.
2. The matters set out in paragraph 1 constitute misconduct.
3. By reason of your misconduct, your fitness to practise is impaired.

Finding

Preliminary matters

Proof of Service


1. On 19 December 2019, 25 days prior to the hearing, the HCPC sent the notice of this hearing by first class post to the Registrant’s registered address. A copy of the notice was also sent to the Registrant by email. The notice contained the required particulars, including time, date and venue.

2. This was the third time that the HCPTS had listed the matter for the third mandatory review of a Suspension Order, due to expire on 18 January 2020. The first occasion was on 6 December 2019, when the matter had to be adjourned due to Panel unavailability. The second occasion was on 19 December 2019, when the Panel did not find good service, as the 28 day notice period was not observed.

3. The Panel heard and accepted the advice of the Legal Assessor. She advised the Panel that the procedural failure in respect of the notice period was not necessarily fatal to the hearing. She advised that assistance may be derived from the criminal case of R v Ashton, Draz, and O’Reilly [2006] EWCA Crim 794, a case where the issue of a breach of procedural requirements was considered. Mr Justice Fulford, giving the judgment of the court said: ‘In our judgment it is now wholly clear that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised (“a procedural failure”), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk the court must decide whether it is just to allow the proceedings to continue.’

4. The Panel noted that whilst the 28 day notice period for a hearing set out in the Rules was mandatory in nature, the Panel did not consider that either the Rules or the Order itself intended that such a hearing would necessarily be invalid if the full notice period was not complied with. It required a consideration of the interests of justice and an assessment of fairness in the particular circumstances of the case.

5. The Panel considered that the Registrant had been informed in multiple letters, that before the Order was due to expire, it would be reviewed. The Panel considered that the Registrant had been provided with many opportunities to prepare for the review. In the written determination of the first review on 16 August 2019, she was informed that the Suspension Order would be reviewed again before its expiry on 18 January 2020. On 5 November 2019, the notice regarding 6 December 2019 (original scheduled date for the second review) was sent to her. Two further notices had been sent: one, for the next date scheduled for the review on 19 December 2019, and the other for today’s scheduled date for the review (13 January 2020).

6. The Panel further noted that if the procedural irregularity invalidated the hearing today, then the Suspension Order would expire on 18 January 2020, without having been reviewed, to assess whether or not the Registrant was fit to practise without restriction. Mindful of the over-arching duty to protect the public, maintain public confidence and uphold standards, the Panel was satisfied that the procedural irregularity did not render the hearing invalid. In all the circumstances, the Panel was satisfied that the Registrant had been provided with sufficient notice for the purposes of this second review hearing today.

Registrant’s Application to Adjourn

7. The Panel considered the Registrant’s letter, dated 6 January 2020, received by the HCPC on 10 January 2020. In that letter, she requested an adjournment until the end of March 2020, to be listed at 2pm. She described the difficulties in securing leave from work without lots of advance notice, the financial implication of travelling to London, and the need for an overnight stay adding to cost if the hearing was listed for the morning.

8. The Panel heard and accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note, ‘Postponement and Adjournment of Proceedings’.

9. The Panel noted that the Registrant’s request for an adjournment extended beyond the expiry of the existing order (18 January 2020). The Panel did not consider that there were exceptional circumstances for granting an adjournment. The application itself had been made very late, and there was no evidence provided to support the application. The Panel was mindful that the consequences of adjourning the review until after the expiry of the Order would mean that the Order would lapse without review. The Panel recognised the need to act with all due expedition, and that this was a mandatory review of the Order to assess whether there was an ongoing risk to the public, and the public interest.

10. Whilst the Panel acknowledged that there may be a disadvantage to the Registrant in not being present at this review, it noted that she had been advised in the past that she could participate in a hearing by telephone. This option had also been spelled out to her in the determination of the first review.

11. In all the circumstances, the Panel did not allow the Registrant’s application for an adjournment.

Proceeding in the absence of the Registrant

12. Ms Navarro, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. The Panel heard and accepted the advice of the Legal Assessor, who advised that the discretion to proceed in a Registrant's absence should only be exercised with the utmost care and caution.

13. The Panel had regard to the HCPTS Practice note ‘Proceeding in the Absence of the Registrant’ and decided that it was appropriate to proceed with this review hearing in the Registrant’s absence. This is a mandatory review of an Order before its expiry. Having regard to the Registrant’s letter of 6 January 2020, the Panel was satisfied that the Registrant was aware of today’s Hearing. The Panel concluded that she had voluntarily waived her right to attend, either in person or by telephone. The Panel was mindful that a Registrant has a duty to engage with the Regulator, and it did not consider that she was meaningfully engaging in this review process. The Panel also considered that it was in the public interest for the hearing to take place, as this was a statutory review of a Substantive Order due to expire. The consequences of not proceeding with the review would mean that the Order would necessarily lapse, raising issues of risk to public protection and undermining public confidence.

Background

14. The Registrant is registered with the HCPC as a Physiotherapist. The Registrant was employed as a locum at three hospitals – Milton Keynes University Hospital, Peterborough City Hospital and Kettering General Hospital. On three separate occasions between December 2015 and October 2016 the Registrant was unable to undertake scheduled work as she was under the influence of alcohol.

15. Following a substantive hearing on 20 – 21 August 2018, which was not attended by the Registrant, factual particulars 1(a), 1(b), and 1(c) were found proved, and to amount to misconduct. The substantive panel considered that there was a lack of direct evidence from the Registrant as to insight or remediation. It noted that she had apologised to a number of the witnesses, but there was no up to date evidence of the Registrant’s circumstances. In those circumstances the substantive panel found that the Registrant had little, if any, insight into her misconduct and there was no evidence of any remediation. The substantive panel determined that there was a high risk of repetition of the misconduct.

16. The Registrant’s fitness to practise was assessed as being impaired on both the personal and public components. A Suspension Order of 12 months was imposed by the substantive panel, which also gave a number of recommendations as to what may assist a reviewing panel.

17. On 16 August 2019 the Suspension Order was reviewed (the first review) The first review panel noted that the Registrant at that time was engaging with the HCPC and seemed to be attempting to arrange for information to be provided in relation to her circumstances. The first review panel considered that the failings identified were capable of remediation, however it did not consider that the limited information provided by the Registrant demonstrated that the risks identified by the substantive panel were reduced sufficiently to remove the need for an Order.

18. The first review panel was satisfied that the Registrant continued to pose a risk to the public if she was allowed to return to unrestricted practice at that point. Although it noted that she had informed the HCPC during a telephone conversation on 14 June 2019 that she was “doing better” and that “the issues have been addressed”, the first review panel found little evidence of insight into the failings identified, or any evidence as to what remediation had been undertaken. It found that the Registrant remained impaired on both the personal and public components. It extended the Suspension Order for a further four months. The first review panel identified a number of recommendations for the Registrant as to what may assist the next reviewing panel:

Evidence of her ongoing engagement with the HCPC including attending the next review hearing, in person or by telephone;
Her reflections on the impact of her misconduct on patients and colleagues;
Evidence about her health and wellbeing;
Evidence of continuing professional development;
Relevant current references or testimonials in relation to paid or unpaid work.


Decision on Impairment of Fitness to Practise


19. Ms Navarro, on behalf of the HCPC took the Panel through the history of the case. She identified that no material had been provided regarding the recommendations made by the first review panel. She submitted that consequently, the Registrant’s fitness to practise remained impaired. She submitted that it did appear that the Registrant wished to attend at a review, but the practicalities made it difficult for her. She said that the Scheduling Team had confirmed that the case could be re-listed towards the end of March 2020, and that the intention would be to give the Registrant at least six weeks’ notice of the hearing date. The HCPC view was that a further short Suspension Order for four months was the appropriate outcome.


20. The Panel heard and accepted the advice of the Legal Assessor. The Panel exercised its independent judgement in determining whether the Registrant’s fitness to practise remains impaired. It had regard to the HCPTS Practice Note on Impairment and the Indicative Sanctions Policy (the Policy).


21. This reviewing Panel had regard to the findings of the previous panels to the effect that although the Registrant’s misconduct was capable of remediation, it had no evidence at all of any remediation. The Panel also had no information before it to demonstrate that the Registrant had reflected on her misconduct or had gained insight into how it may have had serious potential consequences for the safety of patients and the reputation of the profession. Consequently, it had no evidence of any insight into her misconduct. In fact, there was no evidence of any meaningful engagement with this review process. The Panel was aware that the persuasive burden is on a Registrant to satisfy a Panel that their fitness to practise is no longer impaired. In the absence of such information, the Panel did not consider that the risk of attending work when under the influence of alcohol was diminished. Therefore, the likelihood of repetition remains.


22. Accordingly, the Panel is of the view that the risks identified by the previous panels remain and that the Registrant’s fitness to practise consequently remains impaired on the grounds of both public protection and the wider public interest in maintaining public confidence in the profession and declaring and upholding proper standards of conduct and professionalism.


Decision on Sanction


23. The Panel had regard to the HCPTS Sanctions Policy. It was the Panel’s view that there was a need to impose a sanction which would provide public protection and would otherwise address the public interest of maintaining public confidence in the profession and declaring proper standards of conduct and behaviour. The Panel therefore concluded that taking no further action and allowing the Order to lapse would not achieve this.


24. The Panel was also of the view that a Caution Order would not restrict the Registrant’s practice and, so would also fall short of protecting both the public and the wider public interest. As such, the Panel finds that a Caution Order would be neither appropriate nor proportionate in the circumstances of this case.


25. In respect of a Conditions of Practice Order, the Panel was mindful that the misconduct in this case was capable of remediation. However, such an Order requires insight from a Registrant, in particular when it comes to a panel formulating conditions which are meaningful, workable and verifiable. Given the absence of any evidence of insight or remediation, the Panel was not reassured that the Registrant would be either willing or able to abide by conditions. Further, the Registrant’s history of engagement with the HCPC demonstrated that she had misunderstood and miscommunicated the outcomes and timescales of previous hearings, which did not give the Panel confidence that she could be trusted to comply with conditions.


26. The Panel next went on to consider whether the appropriate and proportionate sanction was to impose a further Suspension Order. Notwithstanding the lack of insight, remediation, and meaningful engagement with the HCPC process, the Panel had regard to the following: the Registrant is not represented; there has been a slight shift in her engagement, indicating that she wishes to participate in the review hearing; the misconduct is capable of remediation.


27. Accordingly, the Panel decided to impose a further Suspension Order for four (4) months. In determining this length, the Panel had regard to the Registrant’s indication that she would participate in a review at the end of March 2020, and that this period provided the opportunity to the Registrant to demonstrate evidence of insight and remediation.


28. The Panel considered a striking off order but was of the view that this would be disproportionate at this time.


29. A future panel may be assisted by:


• The Registrant’s attendance at the next review, either in person or by telephone;

• Her reflections on the impact of her misconduct on patients, colleagues, and public confidence in the profession;

• Evidence about her health and wellbeing relevant to the misconduct found;

• Evidence of relevant continuing professional development (CPD); and

• Relevant current references or testimonials in relation to paid or unpaid work.

Order

ORDER:
The Registrar is directed to suspend the registration of Miss Alexandra Claire Burns for a further period of four (4) months on the expiry of the existing order.

Notes

No notes available

Hearing History

History of Hearings for Miss Alexandra Claire Burns

Date Panel Hearing type Outcomes / Status
20/04/2020 Conduct and Competence Committee Review Hearing Suspended
13/01/2020 Conduct and Competence Committee Review Hearing Suspended
19/12/2019 Conduct and Competence Committee Review Hearing Adjourned
16/08/2019 Conduct and Competence Committee Review Hearing Suspended
20/08/2018 Conduct and Competence Committee Final Hearing Suspended