HCPTS |

Profession: Physiotherapist

Registration Number: PH105798

Hearing Type: Voluntary Removal Agreement

Date and Time of hearing: 10:00 26/05/2020 End: 17:00 26/05/2020

Location: Hearing took place remotely on the papers

Panel: Conduct and Competence Committee

Outcome: Removed

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

Allegations as found proven at the Final Hearing

During the course of your employment as a Physiotherapist at Medway NHS Foundation Trust between 21 January 2015 and 14 September 2015, you:

1. Did not complete your probationary period during which there were concerns regarding:

a. your note keeping, in that you;

i. completed patient notes with illegible handwriting on at least four occasions between March 2015 and May 2015

ii. completed patient notes with spelling errors on at least three occasions between March 2015 and May 2015

iii. did not structure your patient records according to the ‘whole systems’ approach on more than one occasion between March 2015 and May 2015

iv. did not include the patient’s subjective history in the patient’s records on more than one occasion between March 2015 and May 2015 3

iv. failed to demonstrate adequate clinical reasoning in the patient records on more than one occasion between March 2015 and May 2015

v. problem lists consistently lacked sufficient detail

b. your assessment skills, in that you:

i. during your probation period frequently did not complete comprehensive whole systems assessments;

ii. on at least two occasions in or around April 2015, stated that two unidentified patients chests were clear, yet on assessment both patients had significant loads of sputum

iii. did not link patient history and then adapt your assessment skills accordingly.

iv. on 19 and 20 May 2015 failed to auscultate the lower zones of the lungs of Patient 1 on two occasions and Patient 2 on one occasion.

c. your use of monitoring during treatment sessions, in that you:

i. on an unknown date in April 2015, removed monitoring equipment from an unidentified patient and instructed the unknown patient to sit at the side of the bed.

ii. on an unknown date and in relation to an unidentified patient, took a blood pressure despite the patient being stable for several days;

iii. on an unknown date and in relation to an unidentified patient, did not reconnect an HDU patient back to the ECG monitoring equipment.

d. your identification of patient problems, in that you;

i. on 19 May 2015, failed to identify the circumstances of when a troponin blood test is required in relation to Patient 1

ii. on 19 May 2015, failed to identify that Patient 1 had metabolic alkalosis

iii. your clinical reasoning, in that on 20 May 2015 you used technical terms incorrectly

e. your treatment selection, in that you;

i. on one or more occasion in or around April and May 2015 did not alter treatment plans according to the patient’s needs
ii. did not prepare bed space adequately

iii. did not sufficiently frequently provide patients with exercises for their trunk;

iv. on 21 April 2015 did not return a patient’s table within reach of an unidentified HDU patient

v. on 21 April 2015 left Oxygen cylinders by an unidentified HDU patient’s bed

vi. on or around May 2015 needed to be prompted regarding the safe placement of a catheter when treating an unknown patient

vii. on 19 May 2015 selected an inappropriate treatment for Patient 1

f. your communication skills, in that you:

i. on more than one occasion between March 2015 and May 2015 did not adapt your communication style to patient age;

ii. on more than one occasion between March 2015 and May 2015 did not adapt your communication style to patient needs;

iii. on more than one occasion between March 2015 and May 2015 raised your voice unnecessarily to patients;

iv. [not proven].

2. The matters set out in paragraph 1 constitute lack of competence.

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

Finding

Preliminary matters

Service

1. This case was listed for a mandatory review under Article 30(1) of the Health Professions Order 2001; as the fifth review of an order imposed on 4 November 2016 and subsequently reviewed on 27 October 2017, 01 March 2018, 01 February 2019 and 30 January 2020.

2. The Panel has been provided with an HCPC skeleton argument from Ms Louisa Simpson dated 12 May 2020. The Panel has also read the 87 page HCPC bundle and further documents and correspondence between the HCPC and the Registrant in an addendum bundle.

Service

3. The Registrant was notified by email dated 6 April 2020 that a Substantive Review was listed for hearing remotely ‘on the papers’ today. Due to government recommendations on containing the current COVID-19 pandemic, the HCPC has suspended all public hearings.

4. The Registrant was further notified on 24 April 2020 that the hearing will be conducted by video conference and he may attend via video link. The Registrant replied stating that in January 2020 he had requested a voluntary removal from the HCPC register but he had not received a reply to this request. He does not wish to take part in any further hearings or to continue to practise as a physiotherapist. He did not make an application to adjourn this hearing, and he is aware of the hearing.

5. The Panel found that there had been good service of the proceedings, in accordance with rule 3 of the Procedure Rules 2003 (the Rules), by notice dated 6 April 2020.

Proceeding in the Absence of the Registrant

6. The HCPC has applied to have this matter heard in the Registrant’s absence, under Rule 11 of the 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.

7. The Panel must consider all the circumstances of the case when considering a decision to proceed in a registrant’s absence, balancing fairness to the Registrant with fairness to the HCPC and the interests of the public.

8. The Registrant has engaged in the HCPC process and made representations to three of the previous panels. He does not wish to participate in any further HCPTS hearings. The Panel concluded that it was reasonable to proceed with today’s hearing in the Registrant’s absence for the following reasons: The Registrant has been properly served with the notice of hearing and he has responded to it. He has not objected to this hearing being conducted in his absence.

9. He has been given the opportunity to provide written or oral submissions today. He has not objected to a decision being made today. There has been no request for an adjournment. Accordingly the Registrant has voluntarily chosen not to take part in the hearing today and states he does not wish to remain as an HCPC registrant. Therefore it is in both the Registrant’s interest and in the public interest, for this hearing to proceed in his absence. It is unlikely that he would participate in a future hearing, if the case were adjourned today.

Background

10. The Registrant commenced employment as a newly qualified Band 5 Physiotherapist at Medway NHS Foundation Trust (“the Trust”) on 21 January 2015. There was both a formal and informal training programme in place for him. This included regular one-to-one supervisions, weekly training sessions, plus additional ‘on-call’ training. His informal training included a ‘running commentary’ at the patient’s bedside where he was asked to talk through his assessment and treatment as he was completing it. He was also given a ‘rotation workbook’ to complete, to record his progress, and he signed a Probationary document outlining expectations over a six month period.

11. Early in the Registrant’s probation period, various concerns were raised by staff in relation to his lack of progress, particularly in the areas of: clinical reasoning/assessment skills/treatment skills; clinical notes; communication; teaching and learning opportunities and concerns regarding his poor perceived attitude.

12. The Trust implemented the performance management policy. The Registrant was deemed unable to practise safely without supervision, and was removed from the on-call rota. The objectives set for him were not met in a timely manner. The Registrant was then on a long period of sick leave for a number of months, and eventually resigned on 14 September 2015. The Trust referred the Registrant to the HCPC, due to the concerns which had not been remedied during his probationary period. The HCPC conducted an investigation and a Substantive Hearing took place from 01-04 November 2016.

Substantive hearing on 01 to 04 November 2016

13. The Registrant did not attend but sent in written submissions. He made a number of admissions, stated that he was newly qualified, had never completed a respiratory placement, struggled within the team, was under pressure from the performance measures and was unable to complete his objectives due to illness. The panel found the facts proved save for Particular 1(g)(iv); due to failures in the Registrant’s note keeping, assessment skills, use of monitoring during treatment sessions, identification of patient problems, treatment selection and communication.

14. The panel found that these concerns amounted to a failure to comply with 10 out of the

15 Standards of Proficiency for Physiotherapists; giving rise to a lack of competence. The failings were pervasive and covered many different areas. They had a direct impact on both patients and colleagues. The panel was concerned that, although the Registrant displayed some remorse, he explained his lack of competence by reference to his inexperience. The panel found that the Registrant had not remediated these problems. Therefore, it concluded there was a risk of repetition, and that the Registrant’s fitness to practise was impaired. The panel imposed a Suspension Order for a period of 12 months. The panel considered that conditions requiring direct supervision would be tantamount to suspension.

First Substantive Review hearing, on 27 October 2017

15. The first Substantive Review took place on 27 October 2017. The Registrant was not present nor represented. He did not provide further documentation as to his current situation or evidence of insight/remediation. The panel therefore found he remained impaired, and imposed a further 12 month suspension.

Second Substantive Review hearing, on 1 March 2018

16. The Registrant requested an early review, which took place on 1 March 2018 and he attended by telephone. He explained that he had been working as a static Band 3 Therapy Support Worker on the ITU/Surgical wards at the Queen Elizabeth Hospital. He provided testimonials from his present employers and others, a reflective piece, evidence of recent training and continued learning, and told the panel that his health had substantially improved. He considered he was no longer impaired, though he accepted that some of the identified failings (e.g. ‘clinical reasoning’) could only be addressed in employment as a physiotherapist. The panel considered that the Registrant’s fitness to practise remained impaired, but was impressed by his commitment to the profession, and attempts to address his failings. That panel considered, and the Registrant accepted, that some of his failings could only be remediated when he was back in physiotherapy practise. The panel therefore imposed a Conditions of Practice Order for a period of 12 months.

Third Substantive Review hearing, on 1 February 2019

17. The third Substantive Review hearing took place on 1 February 2019. The Registrant was not present or represented, and did not provide evidence to establish that he had complied with the Conditions of Practice Order, developed insight or remediated his failings. Therefore his fitness to practise remained impaired. The panel replaced the Conditions of Practice Order with a Suspension Order for a period of 12 months because his failings were widespread and basic, and he had not taken the opportunity to remediate them.

Fourth Substantive Review hearing, on 30 January 2020

18. The fourth Substantive Review Hearing took place on 30 January 2020, and the Registrant was again not present or represented. He had informed the HCPC Case Manager that he wished to be removed, voluntarily, from the HCPC Register. He did not wish to return to practise as a physiotherapist. Given that the deficiencies identified had not been remediated, a risk of repetition remained. Therefore the Registrant’s fitness to practise remained impaired and the panel imposed a Suspension Order for a period of four months. This was to allow time for the Registrant to take proactive steps to make an application for voluntary removal from the HCPC register. The panel expected the Registrant to take the necessary steps in good time, as he had been given full guidance in relation to the procedure.

Today’s Hearing

HCPC Submissions

19. Ms Simpson’s skeleton argument, on behalf of the HCPC dated 12 May 2020 stated that the HCPC reserved its submissions on impairment and sanction until a time closer to the hearing date. The case was being reviewed to determine if a voluntary removal is appropriate, and if the necessary steps have been taken.

20. A supplementary skeleton argument dated 21 May was provided at the hearing, along with further documents and correspondence between the HCPC and the Registrant, in an addendum bundle.

21. The Registrant confirmed in an email sent to the HCPC on 24 April 2020, that he would like to be removed from the HCPC Register and he has now returned the signed Voluntary Removal Agreement (VRA) and admitted the allegations. The HCPC submits that a revocation of the existing order and voluntary removal is a proportionate and pragmatic way to dispose of the case in the public interest. The Registrant does not wish to continue to practise and should be removed from the HCPC Register. The public will be protected as the VRA is equivalent, in effect, to a striking off order. The public interest has been met in that the allegation was considered at a full substantive hearing and a sanction was imposed. The HCPC submits that the public would not be concerned, nor would public confidence in the profession be put at risk, should the Panel make the Consent Order.

Advice of the Legal Assessor

22. 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 panels’ findings. He advised that under Article 30(2) of the Health Professions Order 2001, the Panel may revoke the current Suspension Order with immediate effect. Although the 2001 Order does not explicitly provide for consent arrangements, the HCPTS Practice Note on Disposal of Cases by Consent advises that:…neither the HCPC nor a Panel should agree to resolve a case by consent unless they are satisfied that:

⦁ the appropriate level of public protection is being secured; and
⦁ doing so would not be detrimental to the wider public interest.

… In cases where the HCPC is satisfied that it would be adequately protecting the public if the registrant was permitted to resign from the Register, it may enter into a Voluntary Removal Agreement allowing the registrant to do so, but on similar terms to those which would apply if the registrant had been struck off.

…In cases where an allegation is already before a Panel or a conditions of practice or suspension order is in place, such an agreement cannot take effect unless those proceedings are withdrawn or a Panel revokes the order. In such cases the HCPC will give formal notice of withdrawal to the Panel and, if necessary, ask it to revoke any existing order. As with consensual disposal, a Panel should only agree to revoke an existing order where it is satisfied that voluntary removal would secure an appropriate level of public protection and would not be detrimental to the wider public interest.

Therefore an HCPC Registrant, who wishes to cease practice but is the subject of outstanding proceedings in relation to fitness to practise, may enter into a VRA with the HCPC. In this case a VRA has been drawn up and signed by both parties.

Decision

23. The Panel finds the public interest would be served by the Panel today revoking the existing suspension order and approving the VRA. Removing the Registrant from the Register will prevent him from practising and this action will secure public protection. Furthermore public confidence in the regulatory process will be upheld as dealing with this matter by consent is the most just way of resolving the issue in these circumstances. The Panel is satisfied that a revocation of the existing order, and a voluntary removal, is consistent with the protection of the public; the Registrant will be removed from the HCPC Register as if a striking off order had been made against him, under Article 29 of the 2001 Order.

24. The Panel is satisfied this is the fair and expeditious way of dealing with the case. The Registrant has admitted the allegations, given his fully informed consent to the VRA and he understands that this is the equivalent of a striking off order, involving a five year period out of practice before he could apply to return. There has been a long period of discussion between the HCPC and the Registrant concerning the proposed VRA, to avoid the need for any further review hearings. Furthermore there has already been long periods of either suspension or conditions of practice which did not resolve the competence issues giving rise to these proceedings. These competency issues, although putting service users at risk, did not result in any actual harm.

25. The Panel therefore revokes the existing Suspension Order with immediate effect and consents to the HCPC discontinuing the above proceedings on the basis of the VRA.

Order

Order: The existing Suspension Order is revoked.

The Registrar is directed to remove the name of Mr Alexander Fawcett from the HCPC Register with immediate effect.

Notes

No notes available

Hearing History

History of Hearings for Mr Alexander Fawcett

Date	Panel	Hearing type	Outcomes / Status
26/05/2020	Conduct and Competence Committee	Voluntary Removal Agreement	Removed
30/01/2020	Conduct and Competence Committee	Review Hearing	Suspended