Mr Kieran McDermott

Profession: Physiotherapist

Registration Number: PH91782

Interim Order: Imposed on 02 Oct 2015

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 09/07/2020 End: 17:00 09/07/2020

Location: This hearing is being held virtually.

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

Please note that the decision can take up to 5 working days to be uploaded onto the HCPTS website. Please contact one of our Hearings Team Managers via tsteam@hcpts-uk.org or +44 (0)808 164 3084 if you require any further information.

 

Allegation

(as found proved at the substantive hearing)

During the course of your employment as a Physiotherapist at University Hospital Birmingham NHS Foundation Trust between June 2012 and 31 March 2015, you:

1. Were unable to consistently work as an autonomous Band 5 physiotherapist, in that you:

a) required a sustained level of guidance whilst working with patients;

b) were unable to consistently hold a full case load as expected of a Band 5 Physiotherapist.

2. Did not consistently maintain accurate and/or adequate and/or contemporaneous records in that you:

a) between June 2012 and December 2012, did not consistently provide sufficient information in patient notes;

b) between June 2012 and December 2012, produced Patient notes which lacked subjective and/or objective measures;

c) between June 2012 and December 2012, did not consistently record subjective markers;

d) on or around February 2013, in relation to Patient C, did not document:

i. which hip had been mobilised;

ii. your reasoning as to why the hip mobilisations were performed on Patient C;

iii. which specific mobilisation was performed.

e) on or around October 2013, required consistent reminding and/or prompting to maintain patient records;

f) on or around June 2014, completed a manual assessment of neck accessory movements on Patient E and did not record:

i. which joints had been palpated;

ii. the grade of palpation;

iii. what range of accessory movement issue was found.

g) on or around October 2014, you:

i. were unable to accurately record assessment and treatment sessions for patients;

ii. omitted information from records including gait pattern and/or hands on treatment.

h) on or around December 2014, did not consistently record evidence of clinical reasoning on patient records.

i) In or around October/November 2013, in relation to Patient D your records did not identify:

i. the exercises performed in relation to the patient;

ii. your clinical reasoning for the insertion of the nasophararyngeal airway (NPA);

iii. any treatment/management plan in respect of the NPA.

3. Demonstrated poor assessments and/or treatment to patients, in that you:

a) [not proved];

b) [not proved];

c) did not consistently read patient notes prior to treating the patient;

d) did not consistently provide appropriate treatment to patients;

e) did not consistently provide reasoning for:

i. [not proved];

ii. straight leg raise;

iii. leg length;

iv. gait analysis.

f) did not consistently form hypotheses from the assessments you conducted on patients;

g) on or around August 2013, you were unable to and/or could not demonstrate measuring range of shoulder movement;

h) on an unknown date, during your rotation at the Royal Orthopaedic Hospital, you inaccurately measured a patient’s leg length following hip surgery;

i) on or around 15 August 2012, during your rotation at the Royal Orthopaedic Hospital, you did not ask a patient had had a microdisectomy about red flags including:

i. Coughing;

ii. Sneezing;

iii. Bladder function; and/or

iv. Bowel function.

4. Did not consistently demonstrate adequate clinical reasoning:

a) in relation to treatment planning;

b) in relation to modification of the patient’s treatment;

c) in that during a discussion with your colleague in relation to Patient B, you were unable to independently provide clinical reasoning for applying manual resistance as part of the patient assessment conducted on 4 January 2013;

d) in that on or around 24 October, when completing the gym transfer form in relation to Patient H, you did not record the patient’s diagnosis and/or treated Patient H without knowing their diagnosis.

e) on or around June 2014, in relation to patient E, you were unable to provide clinical reasoning for your manual assessment of neck accessory movements on Patient E;

f) on or around October 2014, you were unable to clinically reason why a patient may be presenting with a deficit.

5. Demonstrated poor patient safety, in that you:

a) on or around August 2012, prescribed excises to patients in a hip class without checking the patients’ conditions and/or the appropriate precautions;

b) on or around 14 September 2012, in respect of Patient A, you:

i. did not consider and/or demonstrate clinical reasoning in respect of which leg the patient should lead with on climbing stairs;

ii. did not provide the patient with specific instruction prior to asking them to climb the stairs;

iii. [not proved].

c) [not proved];

d) on or around 4 January 2013, in relation Patient B, who had had rotator cuff repair surgery, you applied manual resistance for strength;

e) [not proved]:

i. [not proved];

ii. [not proved];

iii. [not proved];

f) on or around October 2014, conducted physiotherapy exercise with Patient F which was unsafe;

g) on 17 October 2014, requested Colleague A’s assistance to move Patient G on and/or off the floor but proceeded to move Patient G despite the risk;

h) on an unknown date, during your rotation at the Royal Orthopaedic Hospital, you asked a patient with a hip replacement to use the leg press machine;

i) on or around 24 August 2012, you placed a patient who had had a microdisectomy into a slump position

j) [not proved]:

i. [not proved];

ii. [not proved].

6. [Not proved].

7. Did not consistently communicate effectively with patients and/or colleagues in that you:

a) [not proved];

b) [not proved]:

i. [not proved];

ii. [not proved];

iii. [not proved];

c) on or around 27 May 2014, were aggressive towards Colleague A and Colleague B when they discussed discharge planning with you.

8. Did not consistently demonstrate adequate time management.

9. The matters set out in paragraphs 1 – 8 constitute lack of competence.

10. By reason of your lack of competence your fitness to practise is impaired.

Finding

Preliminary Matters

Remote hearing conducted via videolink

1. In light of the Government’s advice on containing the current Covid-19 pandemic, the HCPC has suspended all public hearings to protect the health and safety of its registrants, staff, and stakeholders. This hearing was conducted remotely, with the Registrant, his legal representative, the HCPC’s Presenting Officer, the members of the Panel, the Legal Assessor, the Hearings Officer, and the transcriber all participating via videolink.

Private Hearing

2. At the beginning of the hearing, the Panel considered an application by Mr Jolliffe, on behalf of the Registrant, for all references to the Registrant’s health condition to be heard in private. Ms Simpson, on behalf of the HCPC, supported the application. Having received advice from the Legal Assessor, the Panel granted that application in view of the principles set out in the HCPTS Practice Note “Conducting Hearings in Private”.

Background

3. On the final day of the substantive hearing, 16 June 2017, a panel of the Conduct and Competence Committee determined that 46 particulars were proved, that the proved facts constituted a lack of competence, that the Registrant’s fitness to practise was impaired, and that the appropriate sanction was a Suspension Order for a period of 12 months.

4. The Registrant appealed against that decision by way of application to the High Court. The appeal in respect of sanction was allowed. Yip J ordered that:

‘1. Grounds 1, 2, and 3 of the appeal are dismissed. For the avoidance of doubt there shall stand the findings of the Respondent’s Conduct and Competence Committee (“the Committee”) in its decision the subject of the appeal, in relation to the charges proven, the Appellant’s lack of competence, and the impairment of the Appellant’s fitness to practise.

2. Ground 4 of the appeal is allowed to the extent indicated in the Respondent’s Conduct and Competence Committee (“the New Panel”) to be disposed of in accordance with the direction in paragraph 4 below.

3. The case shall be remitted to a freshly constituted panel of the Respondent’s Conduct and Competence Committee (“the New Panel”) to be disposed of in accordance with the direction in paragraph 4.

4. The New Panel shall impose a Conditions of Practice Order on the Appellant with such terms and for such length as it sees fit.’

5. The reconstituted substantive hearing panel, the ‘New Panel’, sat on 22 January 2018. It determined the terms and length of the Conditions of Practice Order, in accordance with the Order of Yip J. In that decision the previous substantive hearing panel who made the determination on 16 June 2017 was referred to as the “2017 Panel”.

6. The summary recorded at the hearing of the New Panel on 22 January 2018 was as follows:

‘The Registrant qualified in 2009 and joined the University Hospitals Birmingham NHS Foundation Trust (“the Trust”) in a rotational role as a Band 5 physiotherapist. Between 2009 and 2012, he worked in various different departments. In May 2012, he commenced a musculoskeletal rotation based in the physiotherapy gym at the Royal Orthopaedic Hospital (“ROH”). By the end of June 2012, concerns had been raised about the Registrant including in relation to the accuracy of patient assessments. Some patients were said to be unhappy with the treatment they had received from him. These issues were raised with the Registrant and he responded by saying that he was having trouble using the record system at the ROH. In July 2012, he sent an e-mail to [CE], Head of Physiotherapy at the Trust, indicating that he felt he was struggling at ROH. After discussion of the concerns, the Registrant was told that his performance would be managed using the poor performance procedure (“PPP”).

The Registrant has [a health condition]. … The 2017 Panel found “extensive measures taken by the employer over time to assist the Registrant within a planned programme to facilitate improvement in performance and practice.” The 2017 Panel expressly confirmed that it was not of the view that the Registrant’s [health condition] explained the competence issues or that his lack of clinical competency was related to [his health condition].

The Registrant continued to work for the Trust and concerns continued to be expressed. In February 2013, he was moved from Stage 1 to Stage 2 of the PPP on the basis that he had not met the standards set for him. In March 2014, he moved to the neuro-outpatients service. Concerns continued such that in December 2014 it was recommended that he move to Stage 3 of the PPP. On 15 December 2014, the Appellant [sic] commenced long term sick leave. He did not return to work and resigned from the Trust in March 2015. The Trust had serious concerns about the safety implications of some of his practice and considered that he required a high level of support which was not sustainable. The Registrant complained that he was being “micromanaged” and that this was increasing his stress levels and, in turn exacerbating his [health condition].

Following the Registrant’s referral to the HCPC an application was made for and [sic] Interim Order. An Interim Order was made in October 2015, imposing Conditions of Practice.

In December 2015, the Registrant secured an honorary contract with the Birmingham Community Healthcare NHS Trust (“the Community Trust”) allowing him to undertake unpaid voluntary work at Moseley Hall Hospital as a Band 5 physiotherapist but subject to the conditions of practice imposed under the interim order. He began this work in January 2016, working seven hours a day on four days a week. The Registrant maintained this voluntary employment up to the time of the 2017 Panel decision. There were periods of absence due to ill health. By the time of the 2017 Panel decision, he had been in the voluntary post for about seventeen months. The feedback from the community Trust was positive.

The decision of the 2017 Panel was that the areas of lack of competence demonstrated by the findings of fact were that the Registrant failed to demonstrate proper clinical reasoning and to keep accurate clinical records. He also failed to communicate accurate clinical records. There was a worrying lack of improvement despite the extensive measures taken by the employer.

The 2017 Panel found that the issues of extensive lack of competence had not been remedied. This gave to a risk to patient safety and/or inappropriate treatment. The 2017 Panel also found that the Registrant demonstrated a worrying lack of insight into his failings. The Registrant showed a tendency to blame others for his condition rather than taking responsibility for his lack of competence. He failed to recognise that as an autonomous practitioner that he needed to identify and manage these issues. The 2017 Panel concluded that there remained a current risk of harm to the public.

In her decision Yip J concluded that the reasons of the Panel did not justify the rejection of a Conditions of Practice Order. In particular:

“In my judgement the Panel overlooked the reality of what had happened since 2015. It had been considered appropriate to make the Appellant subject to a Conditions of Practice Order in the interim period. He had shown extraordinary commitment to his voluntary placement, keeping up a significant number of hours per week in addition to having a paid job to meet his living expenses. He had complied with the conditions imposed, and in that context, had received genuinely positive references. There was no suggestion that public protection had not been maintained. Although the Appellant continued to lack insight into his lack of competence, he had clearly demonstrated a willingness to improve his clinical skills and had taken constructive criticism on board”.

“I also consider it wrong to say that conditions that were workable, practicable and verifiable could not be formulated. Conditions which were considered to offer public protection had been formulated at the interim stage and it was clear that progress had been made under such conditions”.

“In my judgment, taking the Appellant out of practice for a period of 12 months after he has displayed a real commitment to maintain his skills through the long interim period and produced evidence of improvement is not a proportionate sanction. Further, that course is likely to worsen rather than improve the Appellant’s performance and I do not consider that it can be said to maintain the balance between public and private interest”.’

7. The decision of the New Panel sitting on 22 January 2018 recorded that:

‘The Panel noted that the Registrant’s reflective statement was self-critical and constructive. There were necessarily some limitations in the reflective statement because the Registrant was currently suspended and therefore unable to illustrate any changes in his practice.

The Panel decided that there was a need for conditions of practice which specifically addressed the competency concerns in respect of clinical reasoning and maintaining accurate clinical records. A condition requiring the Registrant to nominate a supervisor and to provide supervision reports would be workable and it would not be unduly onerous. The Panel considered that it was sufficient for reports of the supervisor to be supplied to the HCPC every three months. The Panel decided that it would be constructive and proportionate for the supervisor’s reports to address the areas of concern, namely clinical reasoning and the accuracy of his documentation.

In addition to the supervision conditions, the Panel decided that there should be conditions tailored to assist the Registrant to address and remedy the deficiencies in his practice. The process of remedying a lack of competence in basic areas of practice was likely to take a period of time and to be incremental. These conditions were designed to protect the public in monitoring the remediation process, and to constructively assist the Registrant to demonstrate to a Review Panel that he had remedied the lack of competence. The Panel decided that there should be conditions requiring the Registrant to formulate a Personal Development Plan (PDP) and to meet with his supervisor to consider his progress towards achieving the aims set out in the Personal Development Plan.

The Panel considered carefully whether there should be any restrictions on the Registrant’s practice. The Panel decided that a restriction, which limited the areas of the Registrant’s work, would be unduly onerous and would not strike the appropriate balance between the need to protect the public and the Registrant’s interests. The Panel was satisfied that the Registrant has a sufficient level of insight that he will himself limit the areas in which he will seek work.

However, the Panel decided that a restriction that the Registrant should work only at Band 5 level or its equivalent was appropriate and proportionate. The competency concerns found by the 2017 Panel relate to basic physiotherapy skills and tasks. The Panel considered that there would be a risk to the public if the Registrant were to undertake a role, which required him to take on responsibilities in addition to the standard responsibilities of an autonomous practitioner at Band 5. The Panel did not consider that this restriction was an unduly onerous condition or a significant deterrent to a potential employer. Potential employers would be aware from the other conditions of practice that there were ongoing competency concerns and they would therefore expect there to be a significant period of rehabilitation before the Registrant could be considered for promotion. The Panel’s view was that this condition struck an appropriate balance between the need to protect the public and the Registrant’s interests.

The Panel considered the appropriate length of time for the Conditions of Practice Order. The Panel decided that the appropriate length of time is eighteen months. The Panel considered that it might take the Registrant some time to secure an appropriate position and that he might initially work in a voluntary position. An eighteen month period would enable sufficient time for the Registrant to progress to a paid position and to be able to provide evidence of his competency in paid employment to a Review Panel. The Panel considered a shorter length of time for the Order, as submitted by Ms Brown, but decided that the longer period of eighteen months was appropriate and proportionate. The Registrant may apply for an early review if that is appropriate.’

8. The terms of the Conditions of Practice Order imposed by the New Panel were:

The Registrar is directed to annotate the Register to show that, for a period of 18 months from the date this Order comes into effect, you, Kieran McDermott, must comply with the following conditions of practice:

1. If you take up work as a Physiotherapist you must inform the HCPC promptly and you must confine your professional practice to a Band 5 position (or an equivalent level if you are working in the private sector).

2. You must place yourself and remain under the supervision of an HCPC registered Physiotherapist of Band 6 or above (or an equivalent level if you are working in the private sector) and advise the HCPC of that person’s name within 28 days from the date you commence work as a Physiotherapist.

3. You must work with a named supervisor to formulate a Personal Development Plan designed to address the following areas of your practice:

(a) clinical reasoning; and

(b) maintaining accurate clinical records.

4. You must forward a copy of your Personal Development Plan to the HCPC within two months from the date you commence work as a Physiotherapist.

5. You must allow a named supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.

6. You must obtain a report from a named supervisor and submit the report to the HCPC within three months from the date you commence work as a Physiotherapist. Thereafter you must obtain and submit supervisor reports on a three monthly basis. The reports should address:

(a) your clinical reasoning

(b) your maintenance of accurate clinical records in line with HCPC standards ; and

(c) your progress towards achieving the aims set out in your Personal Development Plan.

7. You must inform the following parties that your registration is subject to these conditions:

A. any organisation or person employing or contracting with you to undertake professional work;

B. any agency you are registered with or apply to be registered with (at the time of application); and

C. any prospective employer (at the time of your application).

8. You will be responsible for meeting any and all costs associated with complying with these conditions.

9. That Order came into effect on 19 February 2018 and was the subject of a first review on 7 August 2019. The panel at the first review found the following with regard to current impairment:

‘The only evidence before the Panel of an overall assessment of the Registrant’s abilities was the report from Ms [B], who had undertaken his supervision during his first rotation. In addition the Panel had before it formal clinical supervision feedback records dated 18 April 2019, 18 July 2019 and 30 July 2019 from his clinical supervisors. In addition the Panel took into account a competency framework from the Registrant’s first rotation. The Registrant’s scores within that framework comprised two below competence, 2 at the standard of a Band 5 practitioner, and the rest were identified as working towards competence. In the assessment reports and the clinical supervision records concerns with the Registrant’s practice in all of the three areas which the final hearing had considered required remediation were identified. In relation to clinical reasoning it was noted that his assessment lacked depth and his clinical documentation lacked specificity and he required prompting to assess a patient fully. Whilst the Registrant’s record keeping had improved, a record of clinical supervision suggests he still required prompts and supervision to ensure it was kept up-to-date. Further, there is evidence that some of the Registrant’s clinical records lacked the degree of clarity required to identify clearly outcomes of treatment and plan. With regard to communication with colleagues the formal assessment from the Registrant’s first rotation identifies a need for the Registrant to communicate to others better.

On the basis of this evidence, the Panel concluded that there remain residual areas of concern in which the Registrant is failing to demonstrate that he is safe to work without some form of supervision and support. The Panel has therefore concluded that the Registrant is not yet able to work as an autonomous practitioner and that there was still a need for some form of restriction. This being the case, the Panel concluded that the Registrant’s fitness to practise remained impaired on both elements of personal and public components the latter flowing from the fact that the Registrant is still not working at a level of a safe and effective autonomous practitioner.’

10. With regard to sanction, the first reviewing panel determined the following:

‘The Panel started its considerations by assessing whether this was a case in which to take no further action or to apply mediation. Neither of these actions would provide sufficient service user protection. The Panel therefore concluded that these measures were neither proportionate nor appropriate in this instance.

In considering whether a Caution Order was the appropriate and proportionate restriction to impose the Panel took into account the observations of the clinical supervisors. A Caution Order would, in its view, not provide sufficient service user protection in that those areas where there remained concern would not be addressed and the potential for repetition and risk of harm would not be removed. Further this measure would not prohibit the Registrant from working independently. The Panel therefore concluded that a Caution Order was not appropriate until the Registrant had been able to fully satisfy a panel that there remained little or no likelihood of a repetition of the matters which had brought the Registrant’s practice to the attention of the HCPC.

The Panel therefore considered whether the terms of the Conditions of Practice Order in place remained the proportionate and appropriate Order taking into consideration the Registrant’s recent performance and the noted improvements in his practice. After careful consideration the Panel came to the conclusion that the current conditions are providing the appropriate level of service user protection and there is nothing further that the Panel would wish to add nor to remove. In this respect that Panel noted that the Registrant was able and willing to comply with the conditions and he has the ongoing support of his employer.

The Panel took note of the submissions of both parties in relation to the period during which conditions should apply. It considered remediating the lack of competence was likely to take a period of time, be incremental and recognised that a short period of conditions would place the Registrant under further pressure to present evidence of compliance and remediation. Further, as the Registrant has only been able to comply with the conditions for a relatively short period of time, four months, a longer period would provide him with the opportunity to present evidence of successful completion of two rotations within his current role. The Panel has therefore decided that it will confirm the terms of the current order and extend it for a further period of 12 months from the time when the current order comes to an end, 19 August 2019.’

Submissions

11. Prior to today’s review hearing, the Panel had been provided with a bundle of documentation prepared by the HCPC which ran to 136 pages. The Panel also had before it a bundle of 147 pages submitted by the Registrant, providing an update for this Panel in relation to his period of practice at the Sandwell and West Birmingham NHS Trust (the Trust) and including a number of assessments, reports from his supervisors, his PDP, and a number of reflective pieces. The Registrant also provided a witness statement for the purposes of this review hearing.

12. The Registrant gave oral evidence to the Panel under Affirmation. He adopted the content of his Witness Statement dated 9 July 2020. The Registrant accepted that his fitness to practise was currently impaired and told the Panel that, “I’m not at my best; I’m struggling in the current setting.” He provided detailed information to the Panel about the rotations that he had undertaken at the Trust. He said that he had felt well-supported on the previous two rotations (in the Acute Stroke Unit and then Trauma and Orthopaedics), his experiences had been positive, and that there had been no patient safety concerns raised. He said that he felt less supported in his current rotation in Intermediate Care and that it had got off to a bad start due to conflict with a colleague. Whereas he felt that he had been able to approach his previous two supervisors for advice and support, the approach in this rotation was different.

13. Although he had not felt it necessary to seek the assistance of Access to Work in his previous rotations, the Registrant said that he had done so in Intermediate Care and, having had an assessment, he was waiting for the recommendations to be put in place. The Registrant told the Panel that he anticipated that he would be particularly assisted by the coaching and mentoring aspects of the Access to Work programme. He told the Panel that his current rotation, although due to end in August 2020, had been extended to January 2021 to allow him time to consolidate his learning.

14. In terms of current supervision, the Registrant said that the sessions with his supervisor were initially held weekly but currently can extend to fortnightly. He noted his concerns that a requirement for weekly supervision meetings as a condition of practice would be more restrictive and create additional administrative burden. His preference would be for he and his supervisor to arrange the sessions, which is what they do now. In terms of working alongside other healthcare professionals, the Registrant said that he currently works alongside someone in each of his nine weekly sessions – he receives direct feedback from five of the supervised sessions and he works alongside another clinician in the other four sessions. The Registrant’s understanding was that this level of supervision would continue whilst he remained subject to the Trust’s capability process, which he thought would end in August 2020. The Registrant reiterated to the Panel his commitment to complying with his Conditions of Practice Order and asked the Panel to continue it in its current form.

15. On behalf of the HCPC, Ms Simpson submitted that the information before the Panel today was that the Registrant had not demonstrated that he was able to work effectively, safely, and independently at the level of a Band 5 Physiotherapist. She submitted that the reports from the Registrant’s supervisors in relation to rotations that the Registrant has undertaken, in particular the current rotation in Intermediate Care, highlight serious and ongoing concerns that are similar to those identified by the panel at the substantive hearing. She noted that the supervisory report before the Panel dated 30 June 2020 states that the Registrant’s performance overall falls below that expected from a Band 5 physiotherapist. Ms Simpson also noted the fact that the Registrant is currently subject to the Trust’s capability process and that concerns remain about him working as an autonomous practitioner without supervision or supervisory reports. Ms Simpson submitted that his fitness to practise remained impaired and that a further period of supervised practice was appropriate. She submitted that, in light of the patient safety concerns highlighted by the Registrant’s current supervisor, the current Conditions should be strengthened and should require at least fortnightly supervision meetings and direct supervision. The HCPC invited the Panel to extend the Conditions of Practice Order, incorporating more stringent conditions, for a further period of 12 months.

16. The Registrant’s Representative submitted that the Registrant had complied fully with the terms of the current Conditions of Practice Order and has provided the required supervisor reports every three months. He submitted that there was a “marked difference” between the previous rotations and his current one and reminded the Panel of the Registrant’s commitment to his profession and his willingness to improve his professional practice. It was submitted on behalf of the Registrant, as he had stated in his oral evidence, that if the Access to Work recommendations were implemented they should enable him to reach a level of competence. The Registrant’s Representative conceded impairment of fitness to practise and advised that it was his client’s wish for the current Conditions of Practice Order to remain unchanged and extended for a further 12 months. He submitted that there need be no change to the requirements for supervision to include weekly meetings. He further submitted that there was no need for a condition requiring direct supervision but that, if the Panel thought such a condition was required, the Order should be for a much shorter period, such as three months, in order for it to be workable.

Decision

17. This Panel accepted and applied the advice it received from the Legal Assessor as to the proper approach it should adopt and had regard to the HCPTS Practice Note “Review of Article 30 Sanction Orders”. It is carrying out a comprehensive reconsideration of the Conditions of Practice Order in light of the current circumstances. The Legal Assessor advised that, in practical terms, there is a persuasive burden on the Registrant to demonstrate that his fitness to practise is no longer impaired and that the matters which led to the original finding of impairment have now been overcome.

18. The Panel bore in mind that it must first decide if a finding of current impairment is necessary to protect the public from any risk of harm (assessing the extent of that current or future risk), maintain public confidence in the profession, or to declare and uphold the proper standards of conduct or behaviour. This is a matter for the Panel’s independent judgment and is essentially a risk assessment in light of all the information before the Panel today.

19. It is only if the Panel determines that the Registrant’s fitness to practise remains impaired that the Panel should go on to consider sanction by applying the guidance as set out in the HCPC Sanctions Policy (SP). The Panel must have regard to proportionality, which requires that the Registrant’s interests be balanced against the interests of the public.

20. The Panel first considered whether the Registrant’s fitness to practise is currently impaired. The Panel took into consideration all of the documentation before it and the oral evidence from the Registrant today and bore in mind the decisions of the previous panels at the substantive hearing and the first review hearing that the Registrant’s fitness to practise was impaired on the grounds of public protection and being otherwise in the public interest. The Panel noted the full engagement from the Registrant throughout his regulatory proceedings with the HCPC to date.

21. The Panel noted the report of 26 September 2019 from a Band 7 Physiotherapist supervisor, Trauma and Orthopaedics, that:

‘Overall [the Registrant] has fitted into the team well and he is completing his competencies at an acceptable pace, working through objectives at a level I would expect.’

The Panel also took into account the more recent report from the Registrant’s supervisor in the Intermediate Care therapy team, where the Registrant began his rotation on 15 January 2020. The report raised a number of areas of ongoing concern, including with regard to patient safety, and provided the following summary:

‘The Intermediate Care rotation is a supportive environment where the pace of work and pressure on staff is not as high as some more acute areas of clinical practice. [The Registrant] has worked on this rotation for over 3 months and had an average of one supervision session per week. He works alongside a senior member of the team and has had individualised objectives set and corresponding support given.

Support provided has included joint clinical sessions with immediate 1:1 feedback, support with note writing including use of SOPs and feedback from myself and other senior colleagues, review of caseload to support clinical reasoning including discharge planning, and support in identifying strategies to ensure he contributes to the team. He has also been exposed to meetings with patients and family to demonstrate his ability to plan discharge. However, [the Registrant] does not perform at the level expected of a Band 5 physiotherapist. I remain concerned about the accuracy of his documentation, the safety and accuracy of his clinical reasoning, and his ability to carry a clinical caseload. He demonstrates a lack of insight into the areas he continues to require support in, struggles to respond positively to feedback given and whilst I recognise that he is keen to succeed, he has not demonstrated sustained improvement despite the significant support provided. In order to support [the Registrant] we have commenced supervision against the trust capability policy stage 1.’

22. In the substantive hearing panel’s view, the Registrant’s lack of competence involved serious breaches of his professional standards. There has been no evidence of sustained material change since the substantive hearing or any evidence that the concerns underpinning the Registrant’s impaired fitness to practise have been consistently overcome.

23. The Panel has determined that, in light of all the evidence before it, the Registrant’s fitness to practise continues to be impaired by reason of his lack of competence. Both the public and the personal element of impairment are engaged. The Registrant is not safe to practise unrestricted given his current impairment and the public interest requires that he should not be in a position to practise unrestricted.

24. The Panel next considered the appropriate sanction, applying the guidance in the SP. It has borne in mind that any sanction must be proportionate and that the primary purpose of sanction is protection of the public. Any sanction it imposes must protect the public but must be the least restrictive sanction that achieves that aim.

25. Having considered these issues, the Panel has determined that the competency issues in this case are too serious to be met with either no further action or a Caution Order. It adopts the same reasoning as that of the first reviewing panel.

26. The Panel next considered a Conditions of Practice Order, either in its current form or varied and decided that, at this stage, this remained an appropriate and proportionate sanction. In coming to this decision, the Panel took into account that the Registrant has been engaging with this regulatory process and has demonstrated a willingness to comply with his conditions.

27. It gave very careful consideration, however, to the current level of risk posed by the Registrant and considered whether the current Conditions of Practice are sufficient and appropriate in the particular circumstances, allowing the Registrant to work as a registered physiotherapist while protecting the public sufficiently and upholding the wider public interest. In light of the information before it that the Registrant has not demonstrated sustained improvement despite the significant support provided and the public protection concerns highlighted, the Panel concluded that they were not.

28. The Panel has determined that the appropriate and proportionate sanction is to require:

• A variation to the current supervision requirement to specify a minimum frequency of supervision meetings so as to consist of at least one meeting each working fortnight (although the Panel nevertheless encourages the current aim of having a meeting once per week);

• direct supervision of the Registrant’s practice by another registered healthcare professional (physiotherapist or otherwise) at all times.

The Panel noted that, in practical terms, this is what the Trust is currently requiring of the Registrant within its capability process. It was of the view that a relatively short period of six months of direct supervision would be workable and in the public interest, and in the Registrant’s own interests. A six-month order will allow for a review to coincide with the end of the Registrant’s current rotation.

29. This Order will take effect on the expiry of the current Order.

30. The Panel considered whether it could, or should, replace the current Order with the revised Conditions of Practice immediately, but was of the view that this would be punitive and disproportionate in the light of the steps taken by the Registrant to meet the existing Conditions, given the Trust’s engagement, and taking account of the fact that the HCPC had not sought an immediate change to the Conditions of Practice.

31. The Panel did consider replacing the Conditions of Practice Order with a more stringent sanction but was of the view that, at this stage, this would be also punitive and disproportionate in light of the steps taken by the Registrant to meet the Conditions.

Order

That the Registrar is directed to annotate the Register to show that for a further period of 6 months from the expiry of the current Order, you, Mr Kieran McDermott, must comply with the following conditions of practice:

1. If you take up work as a Physiotherapist you must inform the HCPC promptly and you must confine your professional practice to a Band 5 position (or an equivalent level if you are working in the private sector).

2. At all times that you are working as a Physiotherapist you must be directly supervised by another HCPC registered healthcare professional of Band 6 or above.

3. You must place yourself and remain under the supervision of a workplace supervisor who is an HCPC registered Physiotherapist of Band 6 or above (or an equivalent level if you are working in the private sector) and advise the HCPC of that person’s name within 28 days from the date you commence work as a Physiotherapist. You must attend upon that supervisor for supervisory meetings at least every two weeks and follow their advice and recommendations.

4. You must work with a named supervisor to formulate/maintain a Personal Development Plan designed to address the following areas of your practice:

(a) clinical reasoning; and

(b) maintaining accurate clinical records.

5. If you commence work as a Physiotherapist with a new employer, you must forward a copy of any new Personal Development Plan to the HCPC within two months from the date you commence work.

6. You must allow a named supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.

7. You must obtain a report from a named supervisor and submit the report to the HCPC within three months from the date you commence work as a Physiotherapist. Thereafter you must obtain and submit supervisor reports on a three-monthly basis. The reports should address:

(a) your clinical reasoning

(b) your maintenance of accurate clinical records in line with HCPC standards; and

(c) your progress towards achieving the aims set out in your Personal Development Plan.

8. You must inform the following parties that your registration is subject to these conditions:

(a) any organisation or person employing or contracting with you to undertake professional work;

(b) any agency you are registered with or apply to be registered with (at the time of application); and

(c) any prospective employer (at the time of your application).

9. You will be responsible for meeting any and all costs associated with complying with these conditions.

Notes

This Order will be reviewed again before its expiry on 19 February 2021.

Hearing History

History of Hearings for Mr Kieran McDermott

Date Panel Hearing type Outcomes / Status
09/07/2020 Conduct and Competence Committee Review Hearing Conditions of Practice
07/08/2019 Conduct and Competence Committee Review Hearing Conditions of Practice
15/07/2019 Conduct and Competence Committee Review Hearing Adjourned
22/01/2018 Conduct and Competence Committee Final Hearing Conditions of Practice
12/06/2017 Conduct and Competence Committee Final Hearing Suspended
05/12/2016 Conduct and Competence Committee Final Hearing Adjourned part heard
02/09/2015 Investigating committee Interim Order Application Adjourned