Service of Notice
1. The Panel had information before it that Notice of today’s hearing dated 6 December 2019 was sent to the Registrant’s address on the register on the same date by first class post. The Panel accepted the advice of the Legal Assessor and was satisfied that service had been effected in accordance with Rules 3 and 6 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003.
Proceeding in the Registrant’s Absence
2. Ms Simpson, on behalf of the HCPC, applied for the Panel to proceed today. She referred to an email from the Registrant dated 12 December 2019 which was sent in reply to the Notice of Hearing and which demonstrates the Registrant’s awareness of the listing of today’s hearing. That email states that she no longer wishes to practice and would like to withdraw her registration.
3. Ms Simpson told the Panel that there has not been time before today’s hearing to consider and deal with the Registrant’s request of the 12 December 2019 for voluntary removal. Ms Simpson pointed to a series of correspondence from the HCPC to the Registrant regarding this matter but said that more time is required for voluntary removal to be considered by the HCPC. Ms Simpson submitted that, because Striking Off as a potential sanction is not available at this present time, on account of the matters found proved constituting a lack of competence, she would be asking for the Suspension Order to be continued. This would not prejudice the Registrant who would be unlikely to asking for any other sanction if she were present today, and would give the opportunity for voluntary removal to be considered in due course by both the HCPC and the Registrant, in accordance with the Registrant’s wishes. Ms Simpson reminded the Panel that the Order expires on 18 February 2020, and that it is in the public interest to proceed.
4. As well as the Registrant’s response to the Notice of Hearing dated 12 December 2019, the Panel read an email from the Registrant’s representative dated 23 December 2019 which expresses dissatisfaction with the hearing and regulatory process and expresses the Registrant’s wish that the process comes to an end.
5. The Panel read an email from the Registrant’s representative dated 3 January 2020 which states:
‘Lisa is understandably reluctant to engage further with any part of this cruel process …Perhaps the panel could be informed that Lisa wishes to relinquish her OT registration as soon as possible and has no desire to ever work as a Band 5 OT in the future.’
6. A further email from the Registrant’s representative dated 7 January 2020 reiterates the Registrant’s wish for voluntary removal from the register, and also states that:
‘As her representative, I can see no advantage in either of us attending a hearing which will simply inform us of a process that marches on regardless of whether we are there.’
7. The Panel took into account the HCPTS Practice Note entitled “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor. The Panel was aware that the discretion to proceed in the absence of a Registrant should be exercised with the utmost care and caution. The Panel was of the view that there is no indication that an adjournment would secure the Registrant’s attendance at a future date on the basis of the emails from her and her representative. The Panel took into account that the Notice of hearing as well as the email from Ms Simpson to the Registrant’s representative, the possibility of alternative means of being present were available. In light of the Registrant’s position which she has explained clearly, the Panel was of the view that there would be minimal potential disadvantage to her in proceeding today. The Panel was satisfied that it is in the public interest, as well as being fair, for today’s mandatory review to proceed expeditiously.
8. The Panel therefore decided to proceed today.
9. The Registrant was employed by University of Bristol NHS Foundation Trust at Bristol Royal Infirmary (BRI), as a Band 5 Occupational Therapist (OT) from 20 October 2014. She rotated between medical departments, working for 6 months in each. She joined the Acute Stroke Ward (ASW) in October 2015, having completed a rotation in the Medical Respiratory Team where some concerns about her practice had already been identified.
10. The ASW Clinical Lead OT was Ms BC. She received a telephone handover from the Medical Respiratory Team at the start of the Registrant’s ASW rotation. Ms BC was given feedback on the Registrant’s performance while she was working on the Medical Respiratory ward. She subsequently received a copy of the minutes of a meeting in that department dated 18 June 2015 detailing concerns and setting out an action plan. Ms BC identified areas of deficient practice in the first few weeks of the Registrant working within ASW and her concerns increased regarding the Registrant’s ability to work safely and independently. Mr SA, the Registrant’s senior line manager made the decision, based on evidence of unsafe practice and poor decision- making from a variety of staff members, to make the Registrant a supernumerary member of staff on 5 January 2016. From this time, the Registrant was placed under the close supervision of Ms BC, Ms EL (nee F) and Ms KD (nee J).
11. Despite supervision and support throughout the Performance management process, which lasted for 38 weeks and was overseen by Mr SA, concerns remained about the Registrant’s ability to practice at the standard of a Band 5 OT. These unresolved performance issues were referred to the HCPC upon the Registrant’s resignation from the Trust in December 2016.
12. At the final hearing, which concluded on 21 January 2019, a finding of impairment through lack of competence was made.
Decision of the Panel
13. Ms Simpson submitted that there is a lack of any evidence from the Registrant to address the concerns found, and a lack of evidence of any developed insight before the Panel. A high risk of repetition remains as does a serious risk of harm. Therefore, it was submitted that the Registrant remains impaired. Ms Simpson reminded the Panel that Striking Off is not available to the Panel at this time, and submitted that it would be appropriate and proportionate to impose a Suspension Order which would allow for Voluntary Removal to be investigated as an option. Ms Simpson submitted that if it was decided that Voluntary Removal would not be appropriate, a further period of Suspension would allow the Registrant to consider her future and give her time to undertake remedial steps if she so wished.
14. There were no substantive submissions from the Registrant before the Panel regarding impairment and sanction.
15. The Panel accepted the advice of the Legal Assessor.
16. The Panel was aware that its purpose today was to conduct a comprehensive review of the Registrant’s fitness to return to unrestricted practice and considered the HCPTS Practice Note entitled “Review of Article 30 Sanction Orders”.
17. The Panel must exercise its own independent judgement with regard to impairment.
18. The Panel first considered whether the Registrant’s fitness to practise is currently impaired. The Panel noted that the substantive hearing Panel found impairment both on the basis of the personal component as well as the public component.
19. The substantive hearing Panel found that the Registrant’s failures were in principle remediable but:
“69. …there was no evidence of remediation in respect of the core OT competencies. There was therefore, in the particular circumstances of this case, a high likelihood of repetition. The Panel has noted the Registrant’s satisfactory performance as a Band 4 OT Technician (which does not require HCPC registration) and her progress in resolving some of her deficiencies at that level, including communication skills, teamwork and goal planning. Nevertheless, since resigning from the Trust the Registrant has not worked as an autonomous Band 5 OT and has therefore been unable to demonstrate that she is now able to work safely at that level.
70. Given the Registrant’s lack of competence and the comments of all the HCPC witnesses, the Panel remains to be convinced whether the Registrant is capable of fully resolving the deficiencies in her performance at the level of a qualified OT. As patient safety issues are a paramount consideration in this case, the Panel was concerned that unless the Registrant is able to demonstrate that she has achieved those core competencies, patient safety will continue to be at serious risk of harm.
71. The Registrant did demonstrate some insight in, that she accepted her deficiencies and the impact they had had on the team, the management of the ward and on the patients. She said she was ‘terrified’ of harming a patient. However, the Panel had some doubts as to whether she had truly recognised the extent of those deficiencies, the efforts put in to help her address them and whether, in fact, she was capable of resolving them and achieving the core competencies of a Band 5 OT.”
20. That Panel therefore found that the Registrant had only partial insight.
21. There has been no evidence from the Registrant demonstrating the level of her insight since the substantive hearing. There is additionally no demonstration of an understanding of the potential impact of lack of competence. Nor is there a demonstration of an understanding of the impact on public perception of such actions, or on public confidence in the profession. Further, there is a lack of any other evidence that she has taken any steps to address the lack of competence found proved. These factors led the Panel to conclude that there is now, at the present time, a real risk of repetition of a similar kind of lack of competence in the future. As such, impairment remains on the basis of the personal component.
22. With regard to the public component, in light of the concerns which have not been addressed, the Panel was satisfied that a fully informed and fair minded member of the public would be very concerned if the Registrant were returned to unrestricted practice. The Panel was therefore satisfied that the need to maintain public confidence in the profession and to uphold proper standards, would be undermined if a finding of impairment were not made in the particular circumstances of this case.
23. The Panel therefore found that the Registrant’s fitness to practise remains impaired on the basis of the public component.
24. The Panel next went on to consider sanction, and took into account the Sanctions Policy (SP). The Panel bore in mind that sanction is a matter for its own independent judgment, and that the purpose of a sanction is not to punish the Registrant but to protect the public. Further, sanction must be proportionate, so that any order that it makes be the least restrictive order that would suffice to protect the public interest, including public protection.
25. The Panel first considered taking no action. The Panel concluded that, in view of the nature and seriousness of the Registrant’s lack of competence which has not been remedied, and the ongoing risk of repetition, it would be inappropriate to take no action. It would be insufficient to protect the public, maintain public confidence and uphold the reputation of the profession.
26. The Panel then considered a Caution Order. The Registrant has not demonstrated that she has taken any of the steps required to address that lack of competence. Therefore, the Panel concluded that a Caution Order would be inappropriate and insufficient to protect the public and meet the public interest.
27. The Panel next considered a Conditions of Practice Order. On the basis of the Registrant’s wish to be removed from the Register, there is no indication that she would be willing to comply with conditions. In this regard the Panel noted that the Registrant has not followed the recommendations of the previous Panel to submit evidence which may be of assistance to Panels at reviews of the Suspension Order. The Panel therefore decided that conditions would be unworkable and neither sufficient to protect the public, nor in the public interest.
28. The Panel next considered a Suspension Order. The Panel was aware that in light of this being a lack of competence case, a Striking Off was not available as a sanction at this present time.
29. The Panel was of the view that there is a real risk of repetition of the serious failings, and the Registrant is either unable or unwilling to resolve her failings. She has not demonstrated her insight and there is no evidence of remediation. The Panel was of the view that a Suspension Order was the appropriate and proportionate sanction in the circumstances of this case. In light of the seriousness of the failings, and their number, the Panel was of the view that 12 months’ duration is proportionate. In addition, a Suspension Order for 12 months would allow Voluntary Removal to be investigated and considered by the parties, and for them to communicate about the practicalities of pursuing that route. The Panel was also of the view that 12 months would also allow the Registrant, if she changed her mind about Voluntary Removal, to have sufficient time to take steps to demonstrate that she has remediated her practice, developed her insight, and to re-engage with the process.
30. The Panel was aware that a Suspension Order would have an impact on the Registrant’s right to practise, and may have a financial and reputational impact. However, when carrying out a balancing exercise in the aim of considering proportionality, the Panel was satisfied that the need to protect the public and uphold public confidence outweighed the Registrant’s interests in this regard.
31. The Panel therefore decided to extend the Suspension Order for a period of 12 months, to take effect on the date upon which it would otherwise have expired.