Mrs Margaret E Ndini-Smith

Preliminary Matters
Service of Notice
1. The notice of this hearing was sent to the Registrant by email only on 6 May 2020 to her registered email address as it appeared in the register. The notice contained the date and time of today’s hearing and that it would be held by way of a virtual hearing via video conference.

2. The Panel accepted the advice of the Legal Assessor, and is satisfied that notice of today’s hearing has been served in accordance with Rules 6(1) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”).

Proceeding in the absence of the Registrant
3. The Panel then went on to consider whether to proceed in the absence of the Registrant pursuant to Rule 11 of the Rules. In doing so, it considered the submissions of Ms Ktisti on behalf of the HCPC.

4. Ms Ktisti submitted that the HCPC has taken all reasonable steps to serve the notice on the Registrant. She further submitted that the Registrant has engaged with the HCPC in relation to the application for voluntary removal, and that an adjournment would serve no useful purpose. The Registrant has signed and returned the Voluntary Removal Agreement (“VRA”).

5. The Panel has been provided with a copy of an email from the Registrant dated 6 May 2020 in which she stated “I cannot emphasise enough that I cannot attend another Hearing and really came to regret the previous one”. She reminded the Panel that there was a public interest in this matter being dealt with expeditiously.

6. The Panel has also been provided with a copy of an email from the Registrant’s Representative, Mr Jolliffe, dated 2 June 2020 which states:

“I am the Registrant's representative and write to make submissions on her behalf for the Consent hearing listed for 12 June 2020.
The Registrant intends no disrespect to the Panel but she will not attend the hearing or be represented at the hearing. She has no objection to the hearing proceeding in her absence, provided this email is provided to the Panel.
The Registrant has seen the HCPC's bundle and skeleton argument for the hearing and asks the Panel to endorse the Voluntary Removal Agreement dated 25 May 2020 [104] that she has signed. She has also signed the notice of withdrawal at [88].
For completeness the Registrant does not object to the application made by the HCPC in its skeleton argument.”

7. The Panel accepted the advice of the Legal Assessor. He advised that, if the Panel is satisfied that all reasonable efforts have been made to notify the Registrant of the hearing, then the Panel had the discretion to proceed in the absence of the Registrant recognising that in doing so, it must exercise the utmost care and caution.

8. The Legal Assessor also referred the Panel to the cases of R v Jones [2002] UKHL 5 and GMC v Adeogba and Visvardis [2016] EWCA Civ 162 and advised that the Adeogba case reminded the Panel that its primary objective is the protection of the public and of the public interest and that the “fair, economical, expeditious and efficient disposal of allegations made against medical practitioners is of very real importance”. In that regard, the case of Adeogba was clear that “where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed”.

9. The Panel was satisfied that all reasonable efforts had been made by the HCPC to notify the Registrant of the hearing. It was also satisfied that the Registrant is aware of the hearing.

10. In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPC Practice Note on ‘Proceeding in the Absence of a Registrant’. The Panel weighed its responsibility for public protection and the expeditious disposal of the case with the Registrant’s right to a fair hearing. The Panel was mindful to ensure that fairness and justice were maintained when deciding whether or not to proceed in a Registrant’s absence.

11. In reaching its decision the Panel took into account the following:
• the Registrant has stated in her email of 6 May 2020 that she would not be attending any further hearing and this is confirmed in Mr Jolliffe’s email of 2 June 2020 confirming that the Registrant will not be attending this hearing and has no objection to the hearing proceeding in her absence;
• there is an implicit expectation by the Registrant that the hearing today proceeds in her absence due to the Registrant’s request, and agreement to the voluntary removal, and the nature of this hearing;
• the Registrant has not made an application to adjourn today’s hearing; and
• there is a public interest that this matter is dealt with expeditiously.

12. The Panel was satisfied that the Registrant had voluntarily absented herself from the hearing. It determined that it was unlikely that an adjournment would result in the Registrant’s attendance at a later date given the nature of this hearing and the contents of her email of 6 May 2020 and Mr Jolliffe’s email of 2 June 2020. Having weighed the public interest against the Registrant’s own interests, the Panel concluded that there was no unfairness or injustice to the Registrant and therefore decided to proceed in her absence.

Background
13. The Registrant was initially employed by East Sussex Hospital Trust in 2001 as a Band 7 Clinical Specialist Physiotherapist working with babies and young children. The children’s therapy service was reorganised and the Registrant then worked in the newly formed Kent Community in the same role, but at a Band 6 level. Concerns with the Registrant’s practice were raised in August 2013 and she was subject to informal, and then formal capability procedures, including a Performance Improvement Plan (PIP), between 2013 and 2015. The Registrant was referred to the HCPC by the Trust.

14. At the Substantive Hearing held between 19 - 26 June 2017, the Allegation against the Registrant was found proved. The allegations related to the Registrant’s failure to adequately complete records and documentation in relation to vulnerable service users, together with a lack of adequate reasoning, analysis, clarification, and timely completion of important documentation that was relief upon by fellow health professionals, colleagues, parents and tribunals. The Panel considered that no service users were in fact harmed and that the Registrant had engaged with the regulatory process throughout. The panel concluded that a Conditions of Practice Order for 12 months was the appropriate and proportionate sanction to impose.

15. At the first and second review hearings on 18 June 2018 and 20 June 2019 respectively, the Registrant’s fitness to practise was found to remain impaired as she had not worked as a Physiotherapist since the substantive hearing due to medical health issues. As such, the Registrant had been unable to remediate her lack of competence.

16. On 6 February 2020, Mr Jolliffe, wrote to the HCPC advising that he had been instructed to inform the HCPC that the Registrant wished to voluntarily remove herself from the Register. The basis of this request was due to the Registrant being unable to comply with the Conditions of Practice due her not practising as a Physiotherapist, and that she had no intention of practising again. In his email, Mr Jolliffe stated that the Registrant understood the requirements and the effect of what entering such an agreement would mean.

17. On 14 February 2020, the HCPC provided the Registrant with the Practice Note on Disposal of cases by way of Consent, in order for the Registrant to be fully informed of the requirements and process. The Registrant confirmed her position that she wished to enter into a VRA through her representative on 26 February 2020, stating that she accepted the allegations made at the final hearing and that she did not intend to practise as a physiotherapist in the future.

18. A VRA was initially sent to the Registrant’s representative by email on 15 May 2020. However, he later informed the HCPC that the Registrant had no access to a printer. A hard copy was posted to the Registrant for her consent on 20 May 2020.

19. The Registrant’s Representative confirmed that the Registrant returned the signed and witnessed VRA to the HCPC on 26 May 2020. The date of agreement was not included within the document sent to the Registrant for signing, therefore the Case Manager included this and sent this to the Registrant’s Representative on 29 May 2020, to which no objection has been received.

HCPC Submissions
20. In support of the application, the HCPC have submitted a skeleton argument dated 1 June 2020 by Eleanor Ktisti of the HCPC. Ms Ktisti submitted that, in all the circumstances, voluntary removal from the Register is a suitable means of resolving the matter.

21. Ms Ktisti submitted that it is clear from the correspondence received from the Registrant’s Representative, that the Registrant has no desire to practise as a physiotherapist in the future, that she accepts the allegations found proved at final hearing and that consequently her fitness to practise is impaired. She reminded the Panel that the Registrant’s representative in his email of 2 June 2020 confirmed that the Registrant agreed to being voluntarily removed from the register.

22. The Registrant has been provided with detailed information about the consent process and the effect of voluntary removal from the Register, should the application be granted. The Registrant has had time to review this information and seek advice from her representative, and as such, the HCPC is satisfied that her consent to voluntary removal is informed.

Public Protection
23. Should voluntary removal be permitted in this case, Ms Ktisti submitted that public protection would be ensured as the agreement is equivalent, in effect, to a Striking Off Order.

24. The Registrant would no longer be registered as a physiotherapist and she has confirmed that she does not intend to practise as a physiotherapist in the future. Therefore the public would be adequately protected from any potential risk posed by the Registrant’s practice.

Public Interest
25. Ms Ktisti further submitted that the wider public interest would not be put at risk should this matter be disposed of by way of consent. The public interest has been met in that the allegations proceeded to a full substantive hearing and a sanction was imposed.

26. She submitted that the public would not be concerned, nor would public confidence in the profession be put at risk, should the Panel grant this VRA in circumstances where the Registrant has accepted the allegations made at final hearing and accepts that her fitness to practise is impaired.

27. Ms Ktisti referred to the prevailing guidance in respect of voluntary removals.  The Health Professions Order 2001 (‘the Order’) does not allow a Registrant to resign from the Register whilst they are subject to fitness to practise proceedings. Further, the Order does not explicitly provide for a voluntary removal arrangements. However, the HCPC has approved a Practice Note regarding Disposal of Cases by Consent which advises that a panel may consider an application for voluntary removal in suitable cases.
28. The Practice Note states that a panel should not agree to resolve a case in this way unless it is satisfied of two things: firstly, that the appropriate level of public protection is being secured and secondly, that doing so would not be detrimental to the wider public interest.

29. Similarly, in Cohen v GMC [2008] EWHC 581 (Admin), the High Court stated that there are “critically important public policy issues” which must be taken into account by panels in fitness to practise proceedings, including the ‘public’ component of impairment. This ‘public’ component requires consideration of the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

30. In summary, Ms Ktisti submitted that in all the circumstances, it is appropriate to dispose of this matter in accordance with the terms of the VRA. Such a disposal by consent on these terms she submitted, is a suitable, pragmatic and expeditious way of dealing with this matter, and she invited the Panel to approve the proposed agreement.

Decision
31. The Panel considered all the documentation presented to it together with the submissions of Ms Ktisti on behalf of the HCPC. She outlined the circumstances that led to the referral to the HCPC, and submitted that a VRA was the appropriate method of finalising this case. In her written correspondence, the Registrant fully admitted the factual particulars and that her fitness to practise was impaired because of her lack of competence. The HCPC was satisfied that the Registrant fully understood the effect of the VRA and that granting the application would not compromise the protection of the public or have any detrimental effect on the wider public interest.

32. The Panel has seen various emails from the Registrant and her representative from which it is clear that that she accepts the findings made against her and that her fitness to practise remains impaired. She has stated that she has no intention of practising as a Physiotherapist in the future. As a result, she has requested voluntary removal from the HCPC register.

33. The Panel accepted the advice of the Legal Assessor and considered all of the evidence presented. The Panel has applied its own judgement to the application to withdraw the allegation and to discontinue these proceedings. The Panel has also had regard to the HCPTS Practice Note on “Disposal of Cases by Consent”.

34. The Panel noted that the HCPC is satisfied that it would be meeting its statutory objective of protecting the public and the public interest, if the Registrant was permitted to be removed from the Register on similar terms to those which would apply if he were subject to a striking off order under article 29(5) of the Health Professions Order 2001.

35. The Panel has before it a VRA that has been agreed between the HCPC and the Registrant. It was signed and executed by both parties in terms of which the Registrant admitted the allegations which had been made against her and that her fitness to practise is impaired. She agreed that she will resign from the HCPC Register on the terms and conditions fully set out in that agreement. The Registrant also signed a declaration that there was no other matter of which the Registrant was aware which might give rise to any other allegation.

36. The Panel firstly considered whether there were any factors that would make it undesirable to allow the allegation to be concluded on the consensual basis set out in the VRA. The Registrant has unequivocally indicated that she is no longer practising as a Physiotherapist and that she no longer wishes to remain in the profession. Taking the above into consideration, the Panel concluded that there are no overriding public interest factors that would make the Registrant’s voluntary removal from the register inappropriate.

37. The Panel is aware that if the Registrant seeks to return to the HCPC register at any time in the future, her application would be treated as if she had been struck off as a result of the allegation.

38. In all the circumstances, the Panel is satisfied that both the public and the public interest would be adequately protected by the terms of the agreement reached between the Registrant and the HCPC in as much as the Registrant will henceforth be prevented from practising as a Physiotherapist.

39. Furthermore, the Panel is satisfied that this method of finalising this case is appropriate and proportionate, and is jointly in the interest of the public, the HCPC and the Registrant. Accordingly, the Panel approves the Voluntary Removal Agreement and the discontinuance of proceedings.

The Registrar is directed to remove the name of Mrs Margaret E Ndini-Smith from the Register with immediate effect.

Right of Appeal
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Articles 30(10) and 38 of the Health Professions Order 2001, any appeal must be made to the court not more than 28 days after the date when this notice is served on you.

European Alert Mechanism
In accordance with Regulation 67 of the European Union (Recognition of Professional Qualifications) Regulations 2015, the HCPC will inform the competent authorities in all other EEA States that your right to practise has been prohibited.

You may appeal to the County Court against the HCPC’s decision to do so.  Any appeal must be made within 28 days of the date when this notice is served on you. This right of appeal is separate from your right to appeal against the decision and order of the Panel.

History of Hearings for Mrs Margaret E Ndini-Smith