Mr Terry J Hindmarch

Profession: Occupational therapist

Registration Number: OT32281

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 16/07/2020 End: 17:00 16/07/2020

Location: this hearing took place virtually via videoconference

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

The following Amended Allegation was considered by a Panel of the Conduct and Competence Committee at a Substantive Hearing which took place on 18 to 20 June and 29 October to 6 November, 2018 and 28 to 29 January 2019.

Whilst registered with the Health and Care Professions Council (HCPC) as an Occupational Therapist, you:

1. In regards to Service User 1, between 2014 – 2015:

a) delayed handing over vital equipment which had been delivered to the care home;

b) due to your lack of contact with Service User 1, did not recognise significant decline in and / or take action regarding Service User 1’s condition;

c) did not seek timely senior support to handover the equipment and / or wait for the representative’s handover;

d) did not follow due process for a full manual handling assessment of slings / hoist as Service User 1 had not previously been hoisted;

e) did not provide an accurate verbal handover to support staff;

f) [HCPC offered no evidence]

g) did not provide management with an accurate reflection of Service User 1’s needs;

h) did not follow instructions, which included:

i. [HCPC offered no evidence]
ii. [HCPC offered no evidence]
iii. producing a written timeline.


2. In regard to Service User 2, between 2014 – 2015:

a) did not contact and / or record contact with Service User 2 in a timely manner to progress their case;

b) did not maintain adequate case recordings for Service User 2;

c) [HCPC offered no evidence]

d) [not proved]

e) [HCPC offered no evidence]

f) [HCPC offered no evidence]


3. In regards to Service User 3, in 2015:

a) [not proved]

b) did not provide adequate information at a case conference meeting at a hospital on 13 March 2015;

c) [not proved]

d) [HCPC offered no evidence]


4.  In regards to Service User 4:

a)  did not record any contact with Service User 4 between 19 May 2015 and 6 August 2015 and / or maintain adequate records for this Service User.


5.  In regards to Service User 5, in 2015:

a) did not contact a district nurse as instructed by your manager;

b) did not make a recommendation about widening the doorway and ramping until 22 June 2015 and / or progress the case in a timely manner;

c) changing your recommendation and / or did not order a bed for Service User 5.


6.  In regards to Service User 6:

a) did not progress Service User 6’s case in a timely manner;

b) [not proved]


7. In regards to Service User 7, in 2015, you:

a) did not explain eligibility criteria to support your decision not to supply seating to Service User 7; and / or

b) did not provide advice about possible alternative solutions.


8. In regards to Service User 8, on 5 December 2014:

a) [not proved]

b) [not proved]

c) did not ensure that appropriate mental health treatment was sought and / or was provided to Service User 8.


9. In regard to Service User 9, in June 2015, did not acknowledge and / or record Service User 9’s low mood or suicidal thoughts during his angry outbursts.


10. In regards to Service User 10, in June 2015:

a) produced an Assessment Report for Service User 10 that:

i. contained insufficient and / or incorrect information; and / or
ii. could not be authorised.

11. In regards to Service User 11, in 2015:

a) did not progress Service User 11’s needs for shower equipment;

b) [not proved]

c) did not undertake and / or record a follow up visit to Service User 11;

d) left Service User 11 at significant risk when transferring on or off the stair lift and / or accessing the shower facilities.


12. In regards to Service User 12, in 2014:

a) [not proved]

b) [not proved]

c) [not proved]


13. In regard to Service User 13, in 2014:

a) [not proved]

b)  [not proved]


14. In regard to Service User 14, in March 2016:

a) did not follow an instruction from your manager to contact the community nursing team the morning after your visit;

b) did not fully lead the assessment of Service User 14;

c) [HCPC offered no evidence]

d) did not assess and / or explore Service User 14’s comments in relation to suicide.


15. In regards to Service User 15, in March 2016:

a) did not progress Service User 15’s case in a timely manner in that you did not complete Service User 15’s report following an instruction from your manager;

b) [HCPC offered no evidence]

c) did not communicate the outcomes of Service User 15’s assessment to her housing provider and / or to the Service User.


16. In regards to Service User 16, in 2016:

a) [not proved]

b)  [not proved]

17. The matters as set out in paragraphs 1 – 16 constitutes misconduct and / or lack of competence.

18. By reason of your misconduct and / or lack of competence your fitness to practise as an OT is impaired.

The panel at the substantive hearing found the following:

Facts proved: 1(a) [partly], 1(b), 1(c) [partly], 1(d), 1(e), 1(g), 1(h)(iii), 2(a), 2(b) [partly], 3(b), 4(a) [partly], 5(a), 5(b), 5(c), 6(a), 7(a), 7(b), 8(c), 9, 10(a)(i) [partly], 10(a)(ii), 11(a), 11(c), 11(d), 14(a), 14(b), 14(d), 15(a), 15(c)[partly].

Facts not proved: 2(d), 3(a), 3(c), 6(b), 8(a), 8(b), 11(b), 12(a), 12(b), 12(c), 13(a), 13(b), 16(a), 16(b).

Grounds: Misconduct in respect of 1(h)(iii), 5(a), 14(a) and 15(a).
Lack of Competence in respect of 1(a) [partly], 1(b), 1(c) [partly], 1(d), 1(e), 1(g), 2(a), 2(b) [partly], 3(b), 4(a) [partly], 5(b), 5(c), 6(a), 7(a), 7(b), 8(c), 9, 10(a)(i) [partly], 10(a)(ii), 11(a), 11(c), 11(d), 14(b), 14(d) and 15(c)[partly].

The panel found the Registrant’s fitness to practise to be impaired and a Suspension Order for a period of 12 months was imposed.

At the first review hearing the panel found the Registrant’s fitness to practise was impaired and imposed a Suspension Order for 6 months.

 

Finding

Preliminary Matters

1. This is a mandatory review under Article 30(1) of the Health Professions Order 2001. The Panel has read the 115 page HCPC bundle and heard submissions from the Presenting Officer Ms Zahra Ahmed.

Service

2. Notice in respect of this hearing was sent by email to the Registrant’s registered email address on 11 June 2020, in accordance with Rules 3 and 6 of the Conduct and Competence Procedure Rules 2003 (The “Rules”). The Panel heard and accepted the advice of the Legal Assessor and determined that there had been good service of the notice in accordance with the Rules.

Proceeding in the absence of the Registrant

3. Ms Ahmed submitted that in the circumstances it is appropriate for the Panel to permit the hearing to proceed today; on the basis that the Registrant has voluntarily chosen not to attend the hearing and has therefore waived his right to attend. The Registrant did not attend the three substantive hearings. The Panel accepted the advice of the Legal Assessor to have regard to the guidance in the HCPTS Practice Note on “Proceeding in Absence” and the cases of Adeogba and Visvardis [2016] EWCA Civ 162.

4. The discretion to proceed in the absence of a Registrant must be guided by fairness to the Registrant and the public interest. The Registrant did attend the previous review hearing in January 2020, but there has been no contact from him since then. The Panel finds that the HCPC has taken reasonable steps to inform the Registrant of the hearing and that an adjournment would be unlikely to secure his attendance; due to his erratic previous engagement and the complete lack of engagement since January 2020. Any prejudice to the Registrant is outweighed by the public interest in the expeditious disposal of this mandatory review. Therefore it is fair for the hearing today to proceed in the Registrant’s absence.

Hearing partly in private

5. Ms Ahmed made an application for the hearing to be conducted partly in private, to protect the private life, including health and family matters, of the Registrant. The previous hearings were all conducted partly in private. The Registrant did not object to this when he attended the hearing in January 2020.

6. The Panel accepted the advice of the Legal Assessor to consider the HCPTS Practice Note on “Conducting Hearings in Private”. The Panel had regard to the reasons for this application which is limited to private or health-related matters.

7. The Panel decided that the hearing should be heard partly in private to protect the private and family life of the Registrant and any third party.

 

Background

8. The Registrant was employed by Sunderland City Council as a Community Occupational Therapist from 28 February 2005 to 21 July 2016. In this role he was responsible for adults and children with physical disabilities. Concerns were raised in relation to the Registrant’s practise in January 2015, and on 30 March 2015 he became subject to his employer’s formal capability procedures. In June 2015 further concerns were raised and in July 2015 he was suspended from his employment. The HCPC witness KW was appointed to conduct an investigation and concerns relating to the Registrant’s practise were referred to a disciplinary panel, in November 2015. In February 2016, the Registrant returned to work and commenced a development plan to address these concerns, with a reduced case load and support.

9. However in March 2016 HCPC witness LR raised further concerns, the Registrant was again suspended and HCPC witness EA then conducted an investigation. The Registrant resigned from his employment on 21 July 2016. The concerns relating to the Registrant’s practise between 2014 and 2016, included: failure to follow management instructions, lack of case recording, delay in the progression of casework, concerns regarding his professional judgment and his application of sound clinical reasoning.
Substantive hearing

10. The factual particulars found proved at the substantive hearing gave rise to findings of misconduct in respect of four particulars and lack of competence in respect of the remaining proved particulars relating to twelve different service users, who represented a fair sample of the Registrant’s work. The instances of misconduct arose when the Registrant failed to follow a management instruction. The panel found that the Registrant had been subject to a number of capability procedures and investigations. There was a pattern of improvement, followed by a decline in performance. The Registrant had been assessed by his former employer as being incapable of progression to a senior practitioner level. His misconduct in failing to follow management instructions fell well below the standard of an Occupational Therapist. There was a pattern of repeated failures in relation to the following areas of skills or ability in basic occupational therapy tasks: progression of cases in a timely manner, assessment of service users, identification and appropriate response to risk, effective or accurate communication and case recording. The panel concluded that the Registrant had limited insight and his fitness to practise was impaired under the personal and public components.

11. The aggravating features were that despite managerial support and assistance, there was a pattern of failure over a lengthy period of time and wide-ranging deficiencies involving a large number of service users. The Registrant’s failure to follow managerial instructions was deliberate, service users were placed at risk of harm and his failure to engage with the HCPC over several years gave the appearance that he is not interested. The Registrant also had limited insight, a tendency to blame others and not to take responsibility for his actions. The mitigating features were limited recognition of some of the deficiencies and some health and personal issues.

12. In relation to its finding of misconduct the panel considered that the failure to follow instructions was at the lower end of the scale of seriousness. There was no actual harm to service users. Although the failure to follow management instructions was deliberate, the panel also found that this misconduct was potentially remediable. The panel decided a Striking Off Order would be disproportionate because of the mitigating factors, and the fact that the lack of competence and misconduct is potentially remediable. Also a Suspension Order was sufficient to protect the public and to maintain confidence in the profession and the regulatory process. The panel stated a future panel may be assisted by:

(a) a reflective statement from the Registrant focussed on the deficiencies as found by the panel and how he intends to remedy them;

(b) a timetabled plan for remediation and any evidence of remediation;

(c) an update on the Registrant’s employment or work arrangements and any testimonials or references;

(d) evidence that the Registrant has kept his skills and knowledge up to date (continuing professional development - CPD).

Review hearing on 17 January 2020

13. The Registrant provided the reviewing panel with written submissions and gave evidence on oath. In view of the length of time since he last practised as an Occupational Therapist, he accepted he would have to undertake a mandatory 30 days updating. He was in the process of applying to local authorities to be accepted for a 30 day period of work as an Occupational Therapy Assistant (OTA). He considered that this would provide him with an opportunity to demonstrate that he is capable of working to the required professional standard, and to keep case records and notes to the standard expected. He had not previously been in a financial position to progress this, but was actively pursuing a placement. He re-joined the Royal College of Occupational Therapists in February 2019 and reads journals to keep up to date. He stated he has purchased books about record keeping and has studied the Care Act 2014, to understand changes in legislation. He also planned to attend a Manual Handling course in February 2020.

14. The Registrant fully accepted there were deficiencies in his past Occupational Therapy practise. He stated he had undertaken therapy and attended courses on being assertive. Also mindfulness based stress reduction and understanding procrastination. He had learned to manage stressful situations step by step, and how to avoid procrastination, through positive distraction. He would now ask for help and support if he were to experience difficulty at work.

15. The Registrant explained he had previously suffered personal difficulties including a breach of confidentiality at work. This caused the Registrant to feel unable to continue as an Occupational Therapist. He now misses his professional practice and has a deep desire to return to practise, to help resolve difficulties and challenges faced by vulnerable patients. He considered that within three to four months he would have done sufficient work or activities, to demonstrate his fitness to practise, by completing a placement as an OTA, showing his clinical skills and ability to keep records. His current workplace was supportive and he intended to enquire about the availability of a mentor, to assist him in his return to practice after remediation.

16. The Registrant did not object to an extension of the Suspension Order. The panel was encouraged by the Registrant’s development of substantial insight into his deficiencies. However the Registrant had provided no information or evidence of actual remediation to address his misconduct and the deficiencies identified. He had not demonstrated that his deficiencies had been fully addressed and the risk of repetition reduced. His fitness to practise remained impaired on the grounds of public protection and the public interest. The panel considered taking no action was not appropriate and a Caution Order would not be sufficient, to protect the public or to address the wider public interest. A Conditions of Practice Order would not be sufficient to protect patients and any conditions that could be formulated would be tantamount to a suspension. The Registrant intended to undertake a placement as an OTA as soon as possible. This could provide useful evidence of remediation for a future reviewing panel. A Suspension Order remained appropriate and proportionate, for a period of six months to give the Registrant an opportunity to put into effect his plans for remediation.

 

Today’s Review Hearing

HCPC Submissions

17. Ms Ahmed submitted that in view of the engagement by the Registrant at the review hearing in January 2020, together with his previous personal difficulties, a further period of suspension for 6 months would now be appropriate. A Striking-Off Order would be disproportionate. However the burden is on the Registrant to demonstrate he has insight and has remediated, by successfully addressing the concerns giving rise to his current impairment. At the last hearing he did show remorse and expressed an intention to remediate but he has not yet done so. Therefore any sanction less than suspension would be inappropriate.

Advice of the Legal Assessor

18. The Legal Assessor advised the Panel that the purpose of this review is not to conduct a rehearing, or to go behind the previous panel’s findings. He advised that in carrying out a review, the Panel should have regard to the HCPTS Practice Notes on “Article 30” reviews and on “Finding that Fitness to Practice is Impaired”. If the Panel finds that the Registrant’s fitness to practise remains impaired, the HCPC Sanctions Policy (SP) should be considered in relation to the available sanctions, starting with the least restrictive.

19. In determining whether fitness to practise is impaired, panels must take account of a range of issues which, in essence, comprise two components: The ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and the ‘public’ component: the need to protect service users, declare and uphold professional standards and maintain public confidence in the profession. The personal component includes the risk of repetition and to what extent any lack of competence has been remedied. In respect of the public component the Panel has to consider public policy issues, which include the need to: maintain confidence in the profession and to declare and uphold the HCPC standards of proficiency.

20. Under Article 30(1) of the Health Professions Order 2001, the Panel may:

a. Extend the current Order;
b. Make any order it could have made at the time of the original Order being imposed;
c. Replace a Suspension Order, with a Conditions of Practice Order.

 

Decision

21. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Notes on Article 30 Reviews, Finding that Fitness to Practice is Impaired and the HCPC’s Sanction Policy.

22. The Panel today finds the Registrant’s fitness to practise is still impaired on personal and public policy grounds. The Panel is unaware of any change in the Registrant’s circumstances. He has not engaged with this process since January 2020. His current lack of engagement raises the possibility that the risk to the public may have increased since January 2020.

23. The Panel has considered what the appropriate and proportionate sanction should be, if any; taking the available sanctions in order of severity, starting with the least restrictive. The Panel determined that taking no further action, mediation or imposing a caution would not be sufficient to protect the public or be in the public interest or the Registrant’s interest. A Conditions of Practice Order would not be feasible due to the Registrant’s disengagement from this process.

24. The last reviewing panel stated the next panel was likely to be assisted by evidence of any further attempts made by the Registrant to obtain a supervised placement as an OTA. The Panel today is prepared to give the Registrant one last opportunity to re-engage with the HCPC process, even if, in the current circumstances, he finds it difficult to obtain a placement as an OTA. Such engagement would be in accordance with his duty to engage with his regulator.

25. A further short Suspension Order is appropriate to alleviate the risks to the public identified by the final hearing panel. The Panel today has had to conclude that there has been no significant or meaningful progress made by the Registrant since the review in January 2020.

26. There has been a considerable lapse of time since the proved facts occurred. All options will be available to the next reviewing panel including a Striking-Off Order, due to the findings of misconduct and lack of competence. At the time of the next review he will have been continuously suspended for no less than 2 years.

Order

Order: The Registrar is directed to suspend the registration of Mr Terry J Hindmarch for a further period of 6 months on the expiry of the existing order.

Notes

The Order imposed today will apply from 26 August 2020.


This Order will be reviewed again before its expiry on 26 February 2021.

Hearing History

History of Hearings for Mr Terry J Hindmarch

Date Panel Hearing type Outcomes / Status
16/07/2020 Conduct and Competence Committee Review Hearing Suspended
17/01/2020 Conduct and Competence Committee Review Hearing Suspended
28/01/2019 Conduct and Competence Committee Final Hearing Suspended
29/10/2018 Conduct and Competence Committee Final Hearing Adjourned part heard