Miss Vera Franco

Profession: Dietitian

Registration Number: DT26848

Hearing Type: Voluntary Removal Agreement

Date and Time of hearing: 13:00 31/01/2020 End: 17:00 31/01/2020

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

Panel: Conduct and Competence Committee
Outcome: Voluntary Removal agreed

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Allegation

Allegations as found proven at the final hearing
 
While employed as a Dietitian at Humber NHS Foundation Trust:
 
1. In relation to User 5:
 
a. following an appointment on or around 15 August 2014, you did not:
 
i. record sufficient details of a face to face dietetic assessment into the Trust’s case management system;
 
ii request supplements for Service User 5.
 
iii [not proven];
 
b. the plan you recommended on 15 August 2014 did not adequately address the service user’s needs.
 
2. In relation to Service User 6:
 
a. On 28 October 2014, you completed a face to face dietetic assessment and you:
 
i. Did not weigh the patient;
 
ii. Did not make a referral to a Speech and Language Therapist within a reasonable timeframe;
 
iii. Did not record the visit within a reasonable timeframe.
 
3. In relation to Service User 4 on 10 December 2014 you recorded that you spoke with a nurse about the service user, but your record did not contain sufficient detail about the patient’s condition.
 
4. In relation to Service User 1 on 9 December 2014, you conducted a home visit and:
 
a. [not proven];
 
b. [not proven].
 
5. In relation to Service User 2:
 
a. On 9 December 2014, you failed to record sufficient details of a face to face dietetic assessment on the Trust’s case management system
 
6. In relation to Service User 3, on 10 December 2014 you:
 
a. conducted a dietetic assessment via telephone when you should have done this in person
 
b. did not assess and/or identify nutritional risk.
 
7. The matters described in paragraph 1- 6 constitute misconduct and/or lack of
competence.
 
8. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.

Finding

Preliminary Matters


Proof of Service


1. The Panel was provided with a signed certificate as proof that a Notice of Hearing had been sent in a letter, by first class post on 14 January 2020, to the address shown for the Registrant on the HCPC register.  The Notice of Hearing was sent in relation to an Article 30 Review of a substantive suspension order. The Panel was satisfied that Notice had been properly served in accordance with Rule 3 (Proof of Service) and Rule 6 (date, time and venue) of the Conduct and Competence Committee Rules. Although, the Registrant had not been formally notified that the hearing would proceed as a Consent Hearing, the Panel was provided with email correspondence between the HCPC and the Registrant which had been sent today. In an email timed at 13.48 the Registrant confirmed that despite the fact that she had not been provided with formal notice of the Consent Hearing she was content for it to proceed. She stated that she wanted ‘closure’. In these circumstances, the Panel was satisfied that the Registrant has waived her right to formal notice of the Consent Hearing.

Proceeding in Absence


2. Ms Ktisti, on behalf of the HCPC, made an application for the hearing to proceed in the absence of the Registrant under Rule 11 of the Conduct and Competence Committee Rules.

3. The Panel was advised by the Legal Assessor and accepted that advice. The Panel also took into account the guidance as set out in the HCPTS Practice Note “Proceeding in the Absence of the Registrant”.

4. The Panel determined that it was fair and reasonable to proceed with the hearing in the absence of the Registrant for the following interrelated reasons:
i. The Panel noted that following the first substantive review hearing which took place on 24 January 2019, the Registrant expressed an interest in entering into a Voluntary Removal Agreement with the HCPC.  The purpose of today’s hearing is to consider the signed agreement and is therefore a joint application made on behalf of both parties. In these circumstances, the Panel concluded that it would be in the Registrant’s interest to proceed with the hearing.

ii. The Registrant, in the email that she sent today, stated that she wants the hearing to ‘go ahead’ and has therefore clearly wavied her right to attend. In reaching this conclusion the Panel noted that the Registrant was offered the opportunity to participate by telephone but did not take up that offer.

iii. The Registrant has not made an application to adjourn and there is no indication that even if the case were to be adjourned that she would be willing or able to attend on any future date.

iv. There is no disadvantage to the Registrant as she has made it clear in her communications with the HCPC that she wishes to be removed from the Register.

v. It was in the public interest and in the Registrant’s own interests that this hearing commences and proceeds expeditiously.

Background


5. The Registrant was first employed by Humber NHS Foundation Trust ("the Trust") on 2 February 2009. The Registrant was then employed as a Band 5 Dietitian from 1 November 2011. Support was put in place for a period of 8 or 9 months to ensure that the Registrant met the competencies required for working at a Band 5 level. Apart from a period when an administrative problem with her registration, for which she was not responsible, required her to work below a Band 5 level, the Registrant remained working as a Band 5 Dietitian until she resigned from her employment in January 2015. In her role as a Band 5 Dietitian, the Registrant was responsible for a range of non-complex patients, seeing them in both clinics and residential settings. Included in the areas of her practice were nutrition support in adults, non-complex bowel conditions, weight management and some non-complex paediatric cases. She had no managerial responsibilities, but she was expected to support dietetic students on placement.

6. The Registrant was on annual leave in September 2014. During this period, Mrs LM, a Band 6 Dietitian supervised the Registrant. Mrs LM was responsible for overseeing and checking the Registrant's caseload. Issues reflected in the factual particulars alleged against the Registrant in relation to Service User 5 came to light, and this in turn gave rise to Mrs VS, a Professional Lead in Dietetics employed by the Trust, instigating an investigation in which support was provided to the Registrant, including extra supervision. It was alleged by the HCPC that further issues came to light during this period. On 23 January 2015, the Registrant resigned from her post and the matter was referred to the HCPC.


7. The substantive hearing took place between 29-31 January 2018. The Registrant did not attend. The substantive hearing panel found the majority of the factual particulars proved and concluded that these findings amounted to a lack of competence. The substantive hearing panel determined that the Registrant’s fitness to practise was impaired and imposed a sanction of 12 months’ suspension.

8. The first review hearing took place on 24 January 2019. The Registrant did not attend. This panel noted that at the impairment stage the first review hearing panel stated:

“The Registrant had not provided any further material to allay the concerns expressed by the previous Panel. She had indicated that she had not worked in Dietetics since her return to Portugal. The Panel concluded that the Registrant remained impaired by reason of her lack of competence. It appeared that her circumstances remained unchanged. She had not provided any documentary evidence of remediation, nor had she attended this review hearing to provide oral evidence. The Panel could only conclude that there remained a likelihood of repetition of the Registrant’s lack of competence if she were to be allowed to practise unrestricted. Accordingly, the Registrant remained a risk to the public if permitted to practice as a dietitian unrestricted.

The Panel also found that public confidence in the profession and the declaring of proper standards of conduct and performance demanded a finding of impairment given the Registrant’s lack of competence and the fact that she had chosen not to attend or demonstrate remediation or insight into the proven allegations.”

9. At the sanction stage the first review panel determined that a further 12 month suspension order was the only appropriate sanction. The first review panel stated:

“The Registrant has not completed remedial action to ensure that her lack of competence has been addressed, nor provided any evidence to indicate how the risk to service users which she presents has been addressed in order to prevent a repetition of her failings.”

10. Following the first review hearing the HCPC provided the Registrant with information regarding voluntary removal from the Register. In an email to the HCPC, dated 24 September 2019, the Registrant stated she she wished to pursue voluntary removal and that she had no intention of practising as a dietitian in the future.

11. After further correspondence the Registrant formally confirmed in a letter dated 12 January 2020 that she:

• wished to be removed from the register;
• has no intention of practising as a dietitian in the future, in the UK, Portugal or anywhere else;
• accepts the allegations made against her;
• takes full responsibility for the mistakes, fully understands how serious these were and fully understands the consequences.

12.  A Voluntary Removal Agreement (VRA) was sent to the Registrant on 29 January 2020 which she signed and returned via email on the same date.

Submissions
13. Ms Ktisti, on behalf of the HCPC, submitted that the VRA is an appropriate means of resolving the case against the Registrant. She submitted that it would therefore ensure public protection and maintain public confidence in the profession. She further submitted that voluntary removal would not be detrimental to the wider public interest. In addition, Ms Ktisti drew to the Panel’s attention the Registrant’s clearly expressed intention to not work  as a dietician in the future.

14. Although there were no written submissions from the Registrant, the Panel took into account the communication between the HCPC and the Registrant. The Panel also took into account the signed agreement itself which confirmed that the Registrant admitted responsibility for her mistakes.

The Panel’s Approach
15. On the advice of the Legal Assessor, the Panel considered the criteria for a VRA. The Panel noted that Article 11(3) of the 2001 Order and Rule 12(3) of the HCPC Rules, prevent a Registrant from seeking to resign from the Register whilst subject to an Allegation, a Conditions of Practice Order or a Suspension Order. The Panel also took into account the guidance contained within the HCPC Practice Note:  Disposal of Cases By Consent which, in respect of Voluntary Removal states that:
“In cases where the HCPC is satisfied that it would be adequately protecting the public if the Registrant was permitted to resign from the Register it may enter into a Voluntary Removal Agreement allowing the registrant to do so, but on similar terms to those which would apply if the registrant had been struck off.”

Decision
16. The Panel noted that the VRA mirrors the terms of a Striking Off Order, as it would prevent the Registrant from practising as a dietician, using any title associated with that profession and would prevent her from making an application to be re-admitted to the register within 5 years.

17. The Panel noted that the Registrant’s lack of competence could not have resulted in a Striking Off Order at the substantive hearing. However, the Registrant has been made subject to two 12 month suspension orders and the Panel was satisfied that in these circumstances the VRA met the underlying purpose of removal by consent, which is to avoid unnecessary substantive hearings, in circumstances where the public interest can be met by a consensual disposal.

18. The Panel then went on to consider whether acceptance of the VRA would provide adequate public protection and whether it would be detrimental to the wider public interest. The Panel noted that if it was not satisfied that removal would adequately protect the public interest, the proposed voluntary agreement would have to be rejected, which would mean that the case will proceed towards a substantive review hearing before a differently constituted panel of the Conduct and Competence Committee. The Panel also considered the Registrant’s own interests.


19. Based on the documentary evidence and the views expressed by the Registrant, the Panel was satisfied that there was sufficient evidence to support a finding of current impairment of fitness to practise. The Panel noted that the ongoing proceedings had had a profound effect on the Registrant’s health. In addition, the Panel noted that the Registrant has made it clear that she has no expectation that she would ever work again as a dietician. Furthermore, the Panel was satisfied that the Registrant is fully aware of the  consequences of voluntary removal and has willingly entered into an agreement with the HCPC. 

20. In considering whether removal of the Registrant’s name from the Register was proportionate the Panel noted that her lack of competence had the potential to put patients at risk of harm, to damage the reputation of the profession and was likely to undermine public trust and  confidence in the profession. In all the circumstances, the Panel concluded that approval of the proposed VRA is both proportionate and appropriate. The Panel also determined that there is a legitimate public interest in avoiding a substantive hearing, in circumstances where the Registrant has expressed a clear desire to be removed from the register. 

21. Therefore, the Panel consented to the VRA and was satisfied that the professional disciplinary proceedings should be withdrawn.

Order

The Panel consented to the Voluntary Removal Agreement.

Notes

No notes available

Hearing History

History of Hearings for Miss Vera Franco

Date Panel Hearing type Outcomes / Status
31/01/2020 Conduct and Competence Committee Voluntary Removal Agreement Voluntary Removal agreed
24/01/2019 Conduct and Competence Committee Review Hearing Suspended
29/01/2018 Conduct and Competence Committee Final Hearing Suspended