Mrs Melanie J Englishby

Preliminary Matters
Service
1. The Registrant was notified by email dated 16 June 2020 that a Substantive Review was listed for hearing remotely today. The Registrant replied on 21 July 2020 stating that she had retired in November 2017 and she does not wish to take part in any HCPC hearings.

2. The Panel found that there had been good service of the Notice of Hearing, in accordance with Rule 3 of the Procedure Rules 2003.

Proceeding in the Absence of the Registrant
3. The HCPC has applied to have this matter heard in the Registrant’s absence, under Rule 11 of the Procedure Rules. The Panel considered the HCPTS Practice Note entitled “Proceeding in the Absence of the Registrant” and advice from the Legal Assessor. Based upon the guidance in R v Jones [2002] UKHL 5, R v Hayward [2001] EWCA Crim 168, GMC v Adeogba and GMC v Visvardis [2016] EWCA Civ 162; the Panel has to consider all the circumstances of the case when deciding whether to proceed in a Registrant’s absence; balancing fairness to the Registrant with fairness to the HCPC and the interests of the public.

4. The Registrant has not engaged in the HCPC process and she made representations to the substantive hearing panel, as follows: “Just so you know I retired from the NHS 18/12 ago and have no interest in the outcome of this case. I will not be attending any hearing and think that this is a complete waste of money and time for everyone.”

5. The Panel has decided to proceed with this hearing in the Registrant’s absence for the following reasons: this is a mandatory review. The Registrant has been served with the notice of the hearing and she has responded to it. She has not objected to this hearing being conducted in her absence. There has been no request for an adjournment. The Registrant has voluntarily chosen not to take part in the hearing today and there is no indication that she would attend on a future date if this hearing was adjourned.

Background
6. The Registrant was employed by Milton Keynes Hospital NHS Trust as a static Band 7 Physiotherapist. In 2014, she became the Team Manager of the Domiciliary Service and maintained a clinical caseload of physiotherapy patients. Concerns about the Registrant’s practice as a Physiotherapist were raised with the Therapy Services Manager by KC.

7. KC was a static Band 6 Physiotherapist working with the Registrant in the Domiciliary Service. The Therapy Services Manager requested evidence of her concerns and KC collated patient records and medical notes, to demonstrate her concerns. On a number of occasions the Registrant did not attend appointments, or record notes from appointments with patients. She failed to follow up patients as required and provided inaccurate details in patient discharge letters.

Substantive hearing from 05 to 08 August 2019
8. The substantive hearing panel found the following facts proved: 1(a), 1(b), 1(c), 1(d), 1(f), 2(b), 2(c), 3(a), 3(b), 4(a)(i), 4(a)(ii), 4(a)(iii), 4(b), 4(c), 5(a), 6(a), 6(b), and 9.

9. The panel concluded the Registrant’s fitness to practise was impaired, by reason of misconduct. The information available demonstrated an absence of insight. At her investigation interview the Registrant appeared not to recognise that patient care had been compromised. She seemed unaware of the risks to patients caused by her failings. The panel found there was no evidence of remediation and concluded that if the Registrant was free to work as a Physiotherapist again; there would be a high risk of a repetition of her misconduct.

10. The panel stated maintaining records is a fundamental requirement of the profession of Physiotherapy and the public “would be appalled” to learn of the Registrant’s failings. The aggravating factors were: the length of time covered by the allegations, the number of patients who were involved, the pattern of behaviour, the risk of harm to patients (some of whom were particularly vulnerable), the Registrant’s lack of insight or remediation and the high risk of repetition.

11. The mitigating factors were the challenging circumstances in her personal and family life and her perception of a lack of genuine support in her working environment. The Registrant had worked at the Trust since 2001 and there have been no previous regulatory findings against her. The panel imposed a 12 month Suspension Order and stated that the reviewing panel may be assisted by:
• the Registrant’s engagement with the process and attendance at the hearing,
• evidence she had undertaken relevant courses,
• a reflective piece to demonstrate her reflection and 
• the provision of testimonials.

HCPC Submissions
12. The HCPC submits that the matters giving rise to the current Suspension Order are serious, including not attending appointments or keeping adequate records. In many cases the patients concerned were vulnerable and unlikely to complain when the Registrant failed to conduct or record assessments. The finding of misconduct arose because the Registrant knew what the correct process was, but failed to follow it thereby putting patients at risk of serious harm and compromising patient care. There has been a lack of meaningful engagement by the Registrant in the regulatory process. There is a lack of evidence of insight or remedial action and a high risk of repetition of the misconduct remains. The Registrant is unwilling to resolve her impairment. She states she has retired and therefore does not wish to engage with the HCPC. No further steps have been taken and it appears her HCPC registration is no longer important to her. Sanctions are not designed to be punitive but the HCPC submits it would not be proportionate for the Panel to impose a further period of suspension. Therefore, a Striking Off Order today is the only appropriate sanction. A Voluntary Removal Agreement would not be suitable in this case.

Advice of the Legal Assessor
13. The Legal Assessor advised the Panel that the purpose of the review today was not to conduct a rehearing, or to go behind the previous panel’s findings. He advised that under Article 30(1) of the Health Professions Order 2001 the Panel may: extend the Suspension Order, make any order it could have made at the time of the original order being imposed or replace the Suspension Order with a Conditions of Practice Order.

14. The Panel today should have regard to the HCPTS Practice Notes on ‘Article 30 Reviews’ and on ‘Finding that Fitness to Practise is Impaired’. If the Panel finds that the Registrant’s fitness to practise remains impaired the Sanction Policy should be considered, in relation to the available sanctions, starting with the least restrictive. The Panel should review the matter on the basis of the evidence available, decide whether the Registrant’s fitness to practise remains impaired, and if it is, decide on the appropriate sanction, if any.

15. The Panel 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 proper standards of behaviour and to maintain public confidence in the profession.

16. The personal component includes the issue of insight into the misconduct, the risk of repetition, whether the misconduct is remediable and whether it 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 proper standards of conduct and behaviour. As this is a case of misconduct, all sanctions are available to the Panel, up to and including a Striking-Off Order.

Decision
17. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Notes on ‘Article 30 Reviews’ and ‘Finding that Fitness to Practise is Impaired’ and the Sanctions Policy. The Panel finds the Registrant’s fitness to practise is currently impaired. The Panel went on to consider what the appropriate and proportionate sanction should be, if any, starting with the least restrictive.

18. In the light of the lack of engagement 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. The Panel considered whether to impose conditions of practice but they are not relevant or workable because the circumstances are unchanged.

19. The Panel then went on to consider imposing a further period of suspension. However, the Registrant has retired and therefore she has not sought to remediate her misconduct. The HCPC has explained to the Registrant how to meet the suggestions of the final hearing panel. The Registrant has chosen not to pursue those suggestions. A communication from the Registrant states that she regards this regulatory process as: “a complete waste of money and time for everyone”.

20. The Registrant has made it clear that she does not wish to return to Physiotherapy practice. She has not indicated that she wishes to do anything further to develop her insight into the matters giving rise to her suspension and therefore a risk of repetition of her misconduct arises. Her fitness to practise is still impaired on personal and public policy grounds. There has been no significant or meaningful engagement during, or since, the final hearing. The proved facts and consequent finding of misconduct are sufficiently serious to justify removal from the HCPC register. There would be no useful purpose served by a further Suspension Order in this case, because the Registrant is unlikely to engage with any future review hearing. This case is also not suitable for a Voluntary Removal Agreement. Accordingly, a Striking Off Order is now the only appropriate and proportionate sanction.

The Registrar is directed to strike the name of Mrs Melanie J Englishby from the Register from the date of expiry of the current order.

The Order imposed today will apply from 5 September 2020.

History of Hearings for Mrs Melanie J Englishby