Miss Catherine J Kirk

Preliminary Matters

Service

1.It was acknowledged and agreed by the parties and the Panel that in response to the Governments Guidance in relation to the Covid 19 pandemic, this hearing would take place in a virtual hearing room and conducted by means of a video conferencing facility.

 Background

2.The Registrant was appointed as a Highly Specialist Physiotherapist at The Children’s Trust (the Trust) from 20 May 2013. During her initial 6 month probationary period (from May 2013 to November 2013) it was observed by her line manager, SM, that:

•there were aspects of her work that she was struggling with at times;
•her thinking was muddled;
•she required help from SM to identify the patient’s problems and to create effective treatment plans;
•she did not appear to demonstrate an ability to learn;
•and continually needed the same support.

3.However, it was also noted that the Registrant had “a fantastic attitude”; that she “tried so hard to improve” and that she “was a fantastic team member who was very positive towards change and improving her practice”.

4.On 18 November 2013, the Registrant’s probationary period was extended to 28 February 2014 as there were still some concerns about her clinical reasoning and her ability to put into practice suggestions for improvement. There were also concerns about her time management which caused therapy sessions to overrun.

5.At the review meeting on 28 February 2014 it was noted that there were still issues concerning her clinical reasoning so it was decided to implement a Performance Improvement Plan (PIP), which commenced on 24 March 2014. The Registrant was required to:

•improve her clinical abilities/treatment plans; submit reports on time;
•ensure good time management for a caseload of four children;
•arrive and finish work on time;
•work on her communication issues;
•and improve her hydrotherapy skills.
 
6.The PIP was reviewed in June, July, and September 2014, with a final review taking place on 17 October 2014. It was noted at that final review that, although there had been some improvements, the Registrant still required significant support considering that she had been employed as a Highly Specialist Physiotherapist. Accordingly, after discussions, the Registrant agreed to occupy a lower graded Band 6 Specialist Physiotherapist post.

7. There were no issues with the Registrant’s practice from January 2015 to May 2016. Her caseload returned to normal levels and she did not receive any additional support during this period. However, it came to the attention of the Physiotherapy Professional Lead at the Trust at the time (JR) that a number of children had been involved with incidents where they had fallen, or had injured themselves, during sessions with the Registrant. These incidents had been documented by the Registrant, as required, in incident report forms, which not only detailed events where, say, a child had fallen and hurt themselves, but also near misses, where something could have gone wrong due to poor procedure and therefore the child had the potential to be harmed.

8.One such incident involved Child L (Allegation 1 (l)). The Registrant had asked the child to close her eyes whilst walking on an inclined, moving treadmill. This resulted in her overbalancing although the Registrant managed to catch the child, preventing any harm. Following this incident, it was decided, on 26 May 2016 that the Registrant should be made subject to a new PIP. The principal objective of the PIP was that there should be no falls during any of the Registrant’s sessions.

9.Following a further incident which involved Child M (Allegation 1(m) – where the child had fallen off a plinth), an investigation was commenced by the Trust into all incidents where children under the Registrant’s immediate supervision had fallen or were injured during her treatment sessions with them. That investigation was carried out by the Nursing Manager, LK. In the meantime, the Registrant’s work was to be supervised at all times by another physiotherapist. The matter was also reported to the HCPC. A disciplinary meeting was arranged following that investigation but before it took place the Registrant resigned her post on 31 August 2016. The concerns raised as a result of that investigation are detailed in Allegations 1(a) to 1(m).

10.The children that the Registrant had responsibility for were largely children with brain injuries which affected and limited their mobility and/or understanding and their ability to save themselves from injury should their position change.

11.At the review hearing held on 18 June 2019, the reviewing Panel received information from the Chartered Society of Physiotherapists that the Registrant had not been working as a Physiotherapist at the time of the final hearing in June 2018 and since then has been based in Italy teaching English as a foreign language. This being the case the conditions imposed at the final hearing had not been engaged and the Panel was requested to extend the conditions for a further period of 12 months.

12.This was the same position as that adopted by the HCPC in its submissions to the reviewing Panel.

13.The reviewing Panel noted at the final hearing that the Registrant’s statement had reflected the insight she had gained into the matters that had gone awry and had been able to identify ways in which she would address her failings. The reviewing Panel also noted that the Registrant had not been practising as a Physiotherapist since August 2016 and that there was no evidence of any steps taken by the Registrant to remediate her lack of competence.

14.The reviewing Panel after careful consideration concluded that there was current and continuing impairment and that the appropriate and proportionate order in the circumstances was a further Conditions of Practice Order for a period of 12 months. The terms of those conditions were to be the same as those imposed at the final hearing, the reviewing Panel having concluded that they were practicable, proportionate and achievable. Those conditions were:

i.You must place yourself and remain under the supervision of a Physiotherapist registered as such by the HCPC (at Band 7 or above), and supply full details of your supervisor to the HCPC within 7 days of taking up employment as a Physiotherapist. You must attend upon that supervisor as required and follow their advice and recommendations.

ii.Before providing any physiotherapy treatment to children and young people with neurological conditions, you must first discuss with your supervisor your assessment of the patient and your proposed treatment plan. This discussion must include the identification and management of the potential risks to the patient.

iii.You must work with your workplace supervisor to formulate a Personal Development Plan designed to address the deficiencies in the following areas of your practice:

A.Risk Management;
B.Clinical Reasoning;
 
iv.Within three months of taking up any physiotherapy post you must forward a copy of your Personal Development Plan (PDP) to the HCPC.

v.You must meet with your workplace supervisor on a monthly basis to consider your progress towards achieving the aims set out in your PDP.

vi.You must allow workplace supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your PDP.

vii.You must provide a detailed report from your workplace supervisor commenting on your practice as a Physiotherapist and the progress you have made in achieving the aims of your PDP, one month prior to any hearing to review this Order.

viii.You must allow your supervisor to contact the HCPC to report any concerns with your practice as a Physiotherapist.

ix.You must promptly inform the HCPC if you are appointed, or cease to be employed, as a Physiotherapist by any employer.

x.You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

xi.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 as a Physiotherapist (at the time of application);
C.Any prospective employer, seeking to employ you as a Physiotherapist, (at the time of your application).

15.It is those conditions that are today the subject of review by this Panel.

Evidence and Submissions

16.The Panel had before it today a written skeleton argument prepared on behalf of the HCPC. It also had before it copies of three emails received from Mr Jolliffe, of the Charted Society of Physiotherapists with information relating to the Registrant’s current position and intentions. These are dated 1, 12 and 28 May 2020.

17.The Panel also had the benefit of hearing from both representatives and the opportunity to question the Registrant.

18.The HCPC in its submissions highlighted the fact that the Registrant has not been in practice since August 2016, has not returned to practice in the UK and has not undertaken any remedial action to address her lack of competence as identified and accepted at the final hearing. The HCPC emphasised specifically that:

•The Registrant had not been working as a physiotherapist or within a clinical environment for four years.
•The Registrant has not produced any further works of reflection or clarification of her intentions.
•There is no evidence of a further developing level of insight into her failings since the final hearing.
•The Registrant had chosen to work abroad in a different career.
•Whilst there have been no further practice issues this reflects the fact that the Registrant had been working outside her profession.
•It cannot be said that the Registrant has not been complying with the conditions of practice, but this is because there has been total lack of engagement with the conditions.

19.The HCPC drew the Panel’s attention to the serious and fundamental issues which had led to the finding of lack of competence. These were matters that had put service users at the risk of physical harm. It was submitted that these serious practice issues remain to be addressed and the Registrant’s lack of action and engagement now raised the question of whether she now has the commitment to remedy these issues. The HCPC further considered that this lack of engagement demonstrated that conditions of practice are no longer appropriate nor reasonable given that there are now further retraining issues. In the HCPC’s view a period of suspension is now the appropriate measure. The Registrant would have the right to call for an early review and at the review would have the opportunity to provide a future reviewing panel with evidence of her future plans to return to practice and to provide examples of how a further set of conditions of practice would work, either in the UK or in Italy.

20.In his submissions Mr Jolliffe stated that a reworded Conditions of Practice Order for a period of 12 months was the appropriate and proportionate restriction at this time. In his view the conditions of practice in their current form place too heavy a burden upon the Registrant. The conditions are explicit and had been focused on someone still in work. As drafted the conditions effectively inhibit someone who is out of work from finding a suitable position with such a high level of supervision and oversight. He stated that conditions could be framed with a view to return to practice and that it is not unusual for registrants to have time out of practice and to have to undertake as part of their return, courses training and shadowing. It was possible for the Registrant to comply with conditions that provide for this, and he indicated that the Registrant was now considering how best to take forward her intention to return to practice in Italy. The Registrant had already identified several large hospitals where she could undertake some shadowing and voluntary work.

21.Mr Jolliffe emphasised that previous panels had considered that suspension was disproportionate, and he considered that this was still the position. He said that a period of suspension would effectively bring her career to an end. The Registrant accepted that some form of order was required, there being an admission that there is continuing impairment of the Registrant’s fitness to practise, but it should be modified conditions of practice.

Decision
 
22.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. 

23.This Panel has considered all documentation placed before it.  It has taken into consideration the parties’ submissions; taken and accepted the advice of the Legal Assessor which included advice on the impact of Article 29(6) on the range of options available to the Panel; and it has reminded itself of the terms of the relevant HCPTS’s Practice Notes.

24.The Panel noted that there is no fresh evidence of performance or steps for remediation. The Registrant since the final hearing has not sought to engage with the conditions. The Panel noted also, the number and extent of the failings in practice and the time over which those prevailed. These included the inability to identify risks and to manage potential service user harm.

25.This being the case, the Panel has concluded that in the absence of any steps to address those failings there is current and continuing impairment of the Registrant’s fitness to practise on the personal element. The Panel has also concluded that it remains in the public interest that there is a finding of impairment. The public would be concerned if finding of impairment were not made in relation to a practitioner who has been out of practise for four years, was found wanting in their practice, has not taken any steps to address those failings, and has failed to keep their knowledge and skills up-to-date.

26.Having made that decision the Panel moved on to consider what appropriate and proportionate restriction should be placed upon the Registrant’s practice at this time.

27.The Panel considered that taking no further action, mediation or the imposition of a Caution Order would not be appropriate, as none of these measures provide any degree of service user protection. The management of risk and potential harm were key elements of the findings at the final hearing and so any measure imposed today should be aimed at controlling, reducing and removing those risks to service users.

28.The Panel considered that the current conditions of practice had been well-framed and appropriate for someone of the level and skills of the Registrant at that time and the public protection required. The Panel noted the submissions of the HCPC that these conditions were no longer workable or reasonable and the Registrant’s submission that as drafted were too focused on those in current practice.

29.To assess whether any form of conditions could be drafted that would be practicable, workable and achievable the Panel took into account the answers given by the Registrant today about her future plans and intentions in response to questions from the Registrant member of the Panel.

30.The Registrant has acknowledged that she had not read, and indeed “had cancelled, paper copies of the Professional Journal “Physiotherapy” since moving to Italy”. The Registrant appeared to have no knowledge that this Journal was freely available to members of the Chartered Society of Physiotherapists on-line.

31.The Registrant stated that she did not wish to waste her time or money investigating whether she could practice in Italy if it was not going to a viable option. It was therefore unclear to the Panel as to how the possibility of pursuing registration in Italy was going to be a possibility without such efforts being made.

32.The Registrant told the Panel that her current career involved her working long hours and a lot of this was in the evenings or at weekends and was not practicable in the long term. She told the Panel that it was this contract for teaching English as a foreign subject that gave her the option to work in Italy post Brexit. The Registrant hoped to be able to retain her work visa in Italy with a part-time teaching post, but this had yet to be explored with her employers. From this it was difficult for the Panel to envisage how in the short term part-time working sat with a time commitment for retraining.

33.Whilst the Registrant had identified nearby hospitals which she could approach, she said that she had not made any direct attempts yet to establish whether there are any voluntary or shadowing opportunities. In the Panel’s view if the Registrant had been serious about her wish to practice her profession in Italy, she would have already undertaken this exploratory work.

34.The Registrant accepted that there had been issues in her practice which she had struggled with and still needed to resolve.  There was however no evidence before this Panel of any steps taken in the last four years of the Registrant addressing those issues other than the production of pieces of reflective work which were considered at the final hearing.

35.The Registrant had accepted that she felt apprehensive about returning to work and realised that to return to practice would require a lot of effort, tenacity, and perseverance. The Panel noted that whilst she would naturally feel uncertain and anxious about returning to work the Registrant had not identified any coping strategies she could employ to deal with this anxiety.

36.The Panel considered that it had too little information from the Registrant as to how any further set of conditions would sit with what appeared to be her unclear route back to practice either in the UK or Italy.

37.The Panel gave consideration as to whether, after 4 years out of practice, with no evidence of any attempts to address her practice failings, no attempts to engage with the Conditions of Practice, such a measure remained proportionate or appropriate. The Panel concluded that it was not. At the final hearing the Registrant had been given credit for her personal enthusiasm and commitment. At the review the Registrant was given a further opportunity to demonstrate that she had developed and gained full insight into her failings. There is no further fresh evidence to show that the Registrant has taken forward developing that insight. The reasons why a Conditions of Practice Order was imposed at the time of the final hearing no longer apply as the Registrant has moved abroad and has pursued another career. This being the case, the Panel considers that a Conditions of Practice is no longer appropriate and reasonable.

38.The Panel has therefore concluded that a period of suspension is appropriate and proportionate and in the wider public interest. It considers that this suspension will provide the Registrant with time to undertake some careful consideration of whether she truly wishes to pursue her career as a Physiotherapist. This period can be used by her to explore what her options are for retraining, re-skilling and if appropriate obtaining mentoring or supervision. Whilst this Panel cannot bind a future reviewing Panel the Registrant should be aware that a future Panel would wish to see a solid and evidenced plan of how she is intending to ensure that she is fully committed and able to practise again.

39.The Registrant has had four years to consider her past failings and this has borne little evidence of progress. The Panel is therefore of the view that a short period of suspension would assist the Registrant in focusing her thinking. The suspension period is to be for a period of six months. The Registrant has the opportunity to call for an early review if within this six-month period she has sufficient evidence to support such a review.

40.In coming to this conclusion, the Panel has taken into account the impact this measure may have on the Registrant but considers that in this instance her interests are outweighed by the need to maintain and ensure continued service user protection. This measure is also in the wider public interest in maintaining confidence in the profession.

The Registrar is directed to suspend the registration of Catherine J Kirk for a period of 6 months from the expiration of the current conditions of practice order.

The Suspension Order, which takes effect on 18 July 2020, will be reviewed before its expiry on 18 January 2021. 

History of Hearings for Miss Catherine J Kirk