Miss Lois K Appleton

Preliminary matters
Service of Notice
1. The Panel had been provided, in advance of the hearing, with evidence that Notice had been served on the Registrant, by email to an email address provided by the Registrant on the 5 June 2020. This notification by email is in line with practice adopted by the HCPTS during the current Covid-19 pandemic and in recognition of current Government guidelines. The Panel had evidence of receipt of this email and it noted that it had been sent and received more than 28 days in advance of today’s hearing.

2. The Panel noted that the information within the Notice email contained all the correct information relating to today’s hearing in terms of time, date and mode of hearing.

3. The Panel has accepted the Legal Advice on the matters which should be considered in relation to establishing compliance with the rules. After careful consideration of the information before it, the Panel has come to the conclusion that there had been good service in accordance with the rules.

Proceeding by video hearing
4. In compliance with the Government’s Guidance on social distancing as part of the HCPTS’s programme in response to the current Covid-19 Pandemic, this hearing is being conducted through the medium of a virtual online hearing. The parties have the ability and opportunity to be present in this video hearing, but of necessity the hearing will not be open to the public however there will be a public copy of the decision which will be published on the HCPTS website.

5. The Panel received an application from the HCPC to proceed in the Registrant’s absence. The HCPC highlighted the fact that there had been no engagement by the Registrant since December 2017 when she indicated that she would not be participating in the final hearing and would not be engaging in the HCPC process. The Registrant did not attend the final hearing nor the review in 2019 and there has been no further communication. There has therefore been no request for an adjournment and there is no information as to whether the Registrant would be more likely to attend at a future date. The Panel was informed that a review of this order was in the public interest and should there be a delay in that review the Order would lapse with the effluxion of time on 22 August 2020.

6. The Panel accepted the advice of the Legal Assessor as to the matters which should be included within its consideration of whether to proceed in the Registrant’s absence. The Panel was reminded that it should only proceed with extreme caution in the Registrant’s absence and it was required to give its reasons for approving the application.

7. The Panel noted that the Registrant had not taken the opportunity to attend the final hearing in 2018 or the review in 2019. There had been no engagement by the Registrant with the HCPC process. There was no information as to why the Registrant is not present today. There is therefore no basis on which to make an adjournment. The Panel has therefore concluded that the Registrant has voluntarily absented herself. There is public interest in this matter proceeding today and the Panel has decided that the public interest in this instance outweighs that of the Registrant. The Panel will therefore proceed to review the Order in the Registrant’s absence.

Background
8. The Registrant commenced employment as a Band 6 Physiotherapist within the Acute Admissions and Private Patients Team at St Richards Hospital NHS Foundation Trust in August 2015, having previously been employed as a Bank Band 5 Physiotherapist and then appointed to a permanent Band 5 at another NHS Trust. In around October 2015 concerns were raised about the Registrant’s practice. The informal stage of the Trust’s capability process was implemented from 13 November 2015. As part of this process, the Registrant spent four weeks working full-time in the respiratory team to improve her skills in this area. A decision was taken to progress to the formal capability process and a Final Stage Capability hearing was held on 11 July 2016. As a result of patient safety concerns, toward the latter stage of the Trust’s capability process all the Registrant’s clinical work was supervised by a Senior Physiotherapist.

9. The HCPC Allegation, which related to the incidents which arose during the period of the Registrant’s supervised practice, was considered by a substantive hearing Panel on 23-25 July 2018. The Registrant had informed the HCPC that she would not attend the hearing and she did not do so. The Panel found all the facts proved and that they constituted a lack of competence.

10. In its decision on impairment the substantive hearing Panel explained that although the Registrant engaged fully with the capability process, she did not appear to have any insight into her failings or to understand the seriousness of them with regard to patient safety. There was also no evidence of remediation. The substantive hearing Panel was of the view that the Registrant had repeatedly demonstrated wide-ranging failings in basic physiotherapy skills relevant to her role. In the absence of remediation there was a real risk of repetition. That panel found impairment also on the public interest limb in that they concluded that there was a serious risk of an adverse impact on public confidence in the profession and in the regulatory process if a finding of impairment was not made in the circumstances.

11. The substantive hearing Panel decided that the appropriate and proportionate sanction was a Suspension Order to address issues of public protection and the wider public interest considerations. The substantive hearing Panel suggested that a Panel reviewing the order might be assisted by evidence from the Registrant of relevant continuing education and professional development, relevant work experience and references from any employers, together with evidence that the Registrant wished to continue to work as a physiotherapist.

12. At the review hearing held on 22 July 2019, the HCPC submitted that the Registrant’s fitness to practise remained impaired in circumstances where there was no evidence of any change in circumstances since the substantive hearing and in particular no evidence of the development of insight or remediation. The HCPC submitted that the Panel might consider that the continuation of the current Suspension Order was appropriate and proportionate.

13. The Registrant’s last engagement with the HCPC had been her e-mail dated 20 December 2017, some months prior to the substantive hearing. There was no new information and nothing to persuade the review Panel that the wide-ranging concerns identified by the substantive hearing Panel have been addressed. There was no evidence of a change in the level of the Registrant’s insight or any remedial steps. In these circumstances the review Panel decided that there remained a real risk of repetition and an ongoing risk to the public. The wider public interest was engaged, given the nature of the Registrant’s failings, and the absence of any evidence that the concerns have been addressed. The review Panel therefore decided that the Registrant’s fitness to practise remained impaired.

14. The review Panel considered that the appropriate restriction on the Registrant’s practise remained a suspension order, as anything less would expose the public to serious risk of harm. The review Panel’s considered that if the Registrant changed her mind and decided to engage with the fitness to practise process she would need a considerable period of time to address the matters and to prepare evidence for a future reviewing panel. The review Panel therefore decided that the appropriate length of the Suspension Order would be a further period of twelve months.

15. The review Panel considered that it may assist a future Panel if the Registrant were to demonstrate engagement with the HCPC and attend a future hearing. In addition, a future Panel may also be assisted with the following evidence:
• of relevant continuing education and professional development;
• of relevant work experience and references from any employers; and,
• that the Registrant now wished to continue to work as a physiotherapist.

Evidence before today’s Panel
16. The Panel noted the email letter of 26 June 2020 sent by the HCPC to the Registrant in which the presenting officer reminded the Registrant of the review Panel’s indications of information that this Panel may wish to see before it today. That email did not produce a reply from the Registrant. There is therefore no fresh evidence before this Panel of any steps taken by the Registrant since her last communication with the HCPC in December 2020.

Submission
17. The HCPC drew the Panel’s attention to the wide-ranging failings which had been identified at the final hearing in 2018. There is no information from the Registrant as any actions she has taken to remedy those failings and so in the HCPC’s view there remains, and is continuing impairment of the Registrant’s fitness to practise, on both the personal and the public components.
 
18. The HCPC emphasised that previous periods of supervised practice had not produced any identifiable improvement in the Registrant’s practice and in the absence of any information from the Registrant of any steps she has taken to address her failings, it would, in the HCPC’s view, be inappropriate to put in place any restriction which would allow the Registrant to return to practise. This being the case, a further period of suspension would be proportionate and appropriate. It was suggested by the HCPC that as there had been total lack of engagement a short period of suspension of no more than 6 months would be appropriate at this time.

Decision
19. In undertaking its task today, the Panel is conducting a comprehensive appraisal of the Registrant’s current abilities with a view to establishing whether she is now fit to return to unrestricted practice.  The Panel is not undertaking the task of rehearing the matters that had been brought against the Registrant nor going behind the previous findings. 

20. This Panel has taken into account the documentation placed before it.  It has heard the HCPC’s submissions; taken and accepted the advice of the Legal Assessor; and it has reminded itself of the terms of the HCPTS’s Practice Notes.

21. The Panel first considered the issue of impairment and commenced with its consideration of the personal component. The Panel accepted that there is a persuasive burden on the Registrant to demonstrate that her fitness to practise is not longer impaired. There is nothing before this Panel on which it could make an assessment of the Registrant’s current abilities. The fact that the Registrant has been out of practise for some time before the final hearing and has been continuously suspended for a period of 23 months, has had a further adverse impact on her professional skills and abilities. There is nothing on which to make an assessment of her insight into her previous failings. The Panel noted that the Registrant had denied the allegations and there is nothing since to support a change in that personal view of her clinical skills. There is no evidence of her having a transition in her view of the events. This being the case, there is a risk of repetition of her clinical failings.

22. The Panel then considered the public component of its decision. The Panel noted that whilst the Registrant’s actions had not resulted in service user harm there had been a real risk of causing harm. Having accepted that there had been a potential risk of harm to the public the Panel considered that in the absence of any information to the contrary there is a continuing risk of future harm to the public. To not make a finding of impairment would undermine the public confidence in the profession. Further, in relation to the maintenance of standards to not make a finding would send the wrong message to fellow practitioners. The Panel has therefore concluded that it must make a finding of impairment in the public interest.

23. The Panel then turned to the issue of which level of restriction to place upon the Registrant’s practice. The Panel took into account the HCPC’s representation on this issue and had the benefit of the Legal Assessor’s advice in writing in advance of the hearing and orally in the hearing. The Panel noted and confirmed that it was considering the least restrictive restriction that would uphold the need for public protection. This being the case, taking into account the wide ranging failings that had led to a finding of lack of competence the Panel considered that adopting any measure which would not provide service user protection would be unsupportable. The Panel therefore discounted taking no further action, offering mediation, or the imposition of a Caution Order.

24. In relation to Conditions of Practise, the Panel noted that the Registrant had failed to date to engage in the HCPC process and so there was little or no likelihood of her engaging in any conditions. There had been unsuccessful periods of supervision before this matter was referred to the HCPC and it is therefore questionable whether further periods of support and supervision would be of value. Further, given the extent of the failings identified and which remain to be addressed, any conditions would be so restrictive in nature as to be a suspension by another means. The Panel therefore came to the conclusion that the proportionate and appropriate restriction in this instance is a further period of suspension.

25. The Panel has noted that in accordance with Article 29(6) of the Health Professions Order 2001 (as amended) this Panel does not have the power to impose a Striking Off Order as there has not to date been a continuous period of suspension for two years. The Registrant ought to be aware that a future reviewing Panel will have this option to impose a Striking Off Order. The Panel could impose a short period of a few months suspension, so that on review a Panel may be able to bring the process to an end. However, this Panel is mindful that the Registrant may have used this recent period of lock down to undertake a review of her position and may have identified a wish and desire to take steps to resume her career. A further period of suspension provides an additional opportunity for the Registrant to do this and this Panel does not wish to inhibit the Registrant’s ability to take advantage of that. The Panel has decided on a further period of 6 months suspension. The current limitations imposed due to the pandemic on services and facilities may have an impact on the Registrant’s ability to amass training and professional support and this has been reflected in that decision to suspend for 6 months.   The further period of suspension is in the public interest and for public protection

26. Any steps of engagement taken by the Registrant will be considered by a future reviewing panel. To assist her in identifying what might be the most appropriate evidence to place before that future reviewing panel, this Panel has suggested the following;
• relevant continuing education and professional development;
• relevant work experience and references from any employers;
• confirmation that the Registrant now wished to continue to work as a physiotherapist; and,
• a reflective piece of writing.

27. This evidence should be produced to the HCPC before the next review hearing. The current Suspension Order expires on the 22 August 2020. The further Suspension Order of 6 months will come to an end on 22 February 2021. There will therefore be a further review hearing at the end of the 2020 or very early in 2021. The Registrant should take this into consideration when deciding whether to engage with the regulatory process and submitting information for a future review.

The Registrar is directed to suspend the registration of Miss Lois K Appleton for a further period of 6 months on the expiry of the existing Order.

This Order will be reviewed again before its expiry on 22 February 2021.

History of Hearings for Miss Lois K Appleton