Miss Zoe L Flello
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The following allegations were considered by a panel of the Conduct and Competence Committee at the substantive hearing on 3-7 December 2018.
‘During the course of your employment as a Physiotherapist at Milton Keynes University Hospital:
In the case of Child A, you:
a) Did not record and / or place on file in a timely manner, contemporaneous treatment notes for appointments on 30.03.16 and / or 20.04.16 and / or 25.05.16;
b) did not record and / or place on file treatment notes for appointments on 07.05.15 and / or 07.10.15 and / or 15.10.15;
c) did not assess and / or record objective measures adequately and / or at all;
d) did not consistently record an analysis of whether the treatment was effective;
e) did not provide and / or record clear goals for the patient.
2. In the case of Child B, you:
a) did not record and / or place on file in a timely manner, contemporaneous treatment notes for appointments on 30.03.16 and / or 20.04.16 and / or 25.05.16;
b) did not record and / or place on file treatment notes for appointments on 07.05.15 and / or 07.10.15 and / or 27.07.16;
c) did not assess and / or record objective measures adequately and / or at all;
d) did not consistently record an analysis of whether the treatment was effective;
e) did not provide and / or record clear goals for the patient.
3. In the case of Child C, you:
a) [Not Proved]
b) did not consistently record an analysis of whether treatment was effective;
c) did not consistently record an adequate plan of what the patient’s goals were and / or when outcome measures would be retested;
d) did not record and / or place on file in a timely manner, contemporaneous notes for the contact with the patient’s father on 03.02.2016.
4. In the case of Child D, you:
a) did not undertake and / or record treatment notes for patient appointments on 22.05.14 and / or 04.12.14;
b) did not see and / or record that you had seen the patient between 19.12.14 and 01.07.15;
c) noted a deterioration in the patient’s condition on 02.07.15 but did not:
i. contact and / or record your contact with the patient’s parents to update them; and / or
ii. plan to offer treatment until approximately two months later; and / or
iii. provide and / or record that you had provided the patient with a home exercise plan.
d) did not see and / or record that you had seen the patient between 03.07.15 and 21.10.15;
e) [Not Proved]
f) did not consistently record an analysis in your notes of whether treatment was effective.
5. In the case of Child E, you:
a) did not set and / or record goals and / or outcome measures to reassess the patient;
b) did not provide and/or record the provision of treatment to the patient;1
c) did not record justification for continuing with regular appointments.
6. In the case of Child F, you:
a) [Not Proved]
b) did not consistently record sufficient detail with regards to goals and / or outcomes;
c) [Not Proved]
7. In the case of Child G, you:
a) [Not Proved]
b) did not see the patient between 17.12.2015 and September 2016;
c) did not consistently record an adequate plan in the patient’s notes and merely stated “continue”;
d) did not consistently set and / or record goals and / or outcome measures to reassess the patient;
e) did not consistently record an analysis of the patient's problems and / or whether physiotherapy treatment was effective;
f) did not set and / or record any home exercise programme for the patient, despite its importance following surgery.
8. In the case of Child H, a patient suffering from a worsening gait pattern and falls, you:
a) did not conduct and / or record the following assessments of neurotesting for neuromuscular weakness:
i. an assessment of the patient’s strength; and / or
ii. eccentric control; and / or
iii. any testing for fatigue; and / or
iv. an assessment of how the patient gets off the floor;
b) did not include a copy of and / or record details of the patient's exercise programme in their notes;
c) did not provide and / or record clear plans and goals.
9. In the case of Child I, you:
a) did not document in sufficient detail the treatment provided to the patient;
b) did not consistently record an analysis of the patient's condition and / or whether treatment was effective;
c) did not set and / or record goals and / or outcome measures to reassess the patient.
10. In the case of Child J, you:
a) in respect of the use of equipment at appointment on 17.09.15 did not:
i. obtain a signed copy of the safety advice sheet and / or place this on file; and / or
ii. provide and / or record that safety advice was given on this date.
b) did not record in sufficient detail the patient's treatment;
c) did not record and / or place on file in a timely manner, treatment notes for the patient's appointment on 10.12.15.
11. In the case of Child K, you:
a) [Not Proved]
b) did not set and / or record goals and / or outcome measures to reassess the patient;
c) did not consistently record an adequate analysis of the patient's condition and / or whether treatment was effective;
d) on 26.02.16 and 22.06.16 recorded that a plan was in place to visit the patient's school to run through the exercise programme but did not conduct and / or record a subsequent school visit.
12. In the case of Child L, you did not carry out and / or record strength or stability observations.
13. In the case of Child M, you:
a) did not action the plan to order different accessories arrange and / or record arranging for a company representative to complete an assessment of the appropriate equipment to meet Child M’s needs, despite identifying the need for alternative equipment on 28 October 2015;
b) did not attend and / or record attending the patient between 28.10.15 and 23.08.16;
c) Attended an appointment on 08.09.16, during which you:
i. set up the standing frame without trialling Child M in the standing frame; and / or
ii. agreed for the mother to adjust the standing frame herself.
14. In the case of Child N, you:
a) did not record the treatment the patient received;
b) did not consistently record an adequate analysis of the patient's condition;
c) [Not Proved]
15. In the case of Child O, you:
a) did not clearly record an analysis of the patient's condition;
b) did not set and / or record goals and / or outcome measures to be achieved;
c) did not arrange and / or record arranging a school visit as you indicated you would do in the notes of appointment on 03.06.15.
d) did not take steps and / or record those steps taken to order equipment as you indicated you would do in the note of your appointment on 3.06.15.
16. In the case of Child P, you:
a) did not provide Child P with weekly physiotherapy for a period of six weeks following Botox therapy in April 2015;
b) despite noting that the child’s walker was too small, did not order and / or record that you had ordered the patient's walker;
c) identified that the patient required a standing frame on 21.05.15 but did not:
i. speak and / or record a discussion with the child’s mother regarding this issue until 24.02.2016;
ii. actively progress the plan to provide a standing frame;
d) following concerns identified on 16.06.16, regarding Child P not attending school, did not undertake adequate steps to ensure Child P was safe.
17. In the case of Child Q, you:
a) did not see the patient between 30.09.15 and 06.01.16, despite the child requiring a full assessment as soon as possible;
b) did not record a clear analysis of the patient's problems;
c) did not carry out a detailed physical assessment of the patient's condition on 06.01.16;
d) despite noting Child Q needed an alternative walker on 6.01.16, did not take/and or record steps to arrange for a suitable walker to be provided in a timely manner;
e) on 15.09.16 placed an order to trial equipment but did not detail which accessories should accompany the walker.
18. In the case of Child R, you:
a) did not provide adequate safety advice and / or record providing adequate safety advice to the patient's parents;
b) did not provide a treatment block following appointment on 19.03.15;
c) did not carry out and / or document evidence of any home exercise programme or advice on activities for the patient to do at home;
d) despite agreeing on 10.06.15 to make a wheelchair referral, did not do so until 21.01.16;
e) did not record that the patient's walker tipped outside at school on the Trust Datix incident reporting system;
f) did not visit the patient at school between 13.10.15 and 05.05.16;
g) did not record and / or place on file in a timely manner, a contemporaneous record of your conversation with the child’s mother on 16.06.16.
19. In the case of Child S, you:
a) did not consistently record sufficient observations of the patient’s condition;
b) did not provide and / or record an adequate treatment plan;
c) did not provide follow up treatment between 24.06.13 and 07.01.15.
20. The matters set out in paragraphs 1 – 19 constitute misconduct and / or lack of competence.
21. By reason of your misconduct and / or lack of competence your fitness to practice is impaired.’
1. The Panel was referred to a service bundle by the HCPC. This confirmed that the Registrant was written to by the HCPC on 22 October 2020 via email at her registered email address. The email confirmed that there would be a review of the Suspension Order Hearing on 23 November 2020 at 10 am via video conference. The Registrant was informed in the email that the ‘powers available to the Panel’ were contained in Annex 1. Annex 1 referenced the power to make a Striking Off Order.
2. The Registrant responded by email on 9 November 2020, indicating that she had received the email and confirmed that she would not be attending.
3. The Panel received advice from the Legal Assessor. He referred them to the practice note in relation to service, reminding them of the requirements to ensure that the Registrant had been given proper notice of the hearing, including the date, time and location of the hearing. In order to establish that a person has been given notice, the Panel Rules only require proof of posting (rather than of service) and provide that documents sent by post are to be treated as having been sent on the day of posting.
4. The Panel was satisfied that the Registrant had proper notice of the hearing.
Proceeding in Absence
5. The HCPC made an application to proceed in the absence of the Registrant. Mr D’Alton referred to the above email from the HCPC and the response of the Registrant dated 9 November 2020, indicating she would not be attending.
6. Mr D’Alton referred to the jurisdiction to proceed in absence and the factors set out in the HCPTS Practice Note “Proceeding in the Absence of the Registrant”, including the nature and circumstances of the Registrant’s absence and, in particular, whether the behaviour may have been deliberate and voluntary and thus a waiver of a right to appear.
7. The Panel received advice from the Legal Assessor. He referred them to the practice note in relation to proceeding in absence.
8. In particular he reminded them that the Panel has a discretion to proceed if it is satisfied that all reasonable steps have been taken to serve notice of the hearing on the Registrant and that it is fair to do so in the circumstances of the case.
9. In exercising the discretion to proceed in absence, panels must strike a balance between fairness to the Registrant and fairness to the wider public interest, ensuring that there is adequate focus on public protection. Fairness to the Registrant is of prime importance, but the overarching statutory objective of regulation is to protect the public.
10. The Panel was satisfied that the Registrant had waived her right to appear and to be represented at the hearing. Her email of 9 November 2020 stated clearly that she would not be attending the hearing. She had not requested an adjournment and no purpose would be served by an adjournment.
11. The Registrant had been employed as a Physiotherapist at Milton Keynes University Hospital NHS Foundation Trust (“the Trust”) from 1998 to September 2016. She was the Clinical Team Lead for the Core Over 5s Neurology Service, working with children aged between five and 19 years old with long-term conditions, primarily those arising from neurological disorders.
12. In May 2016, a member of the Trust’s staff accidentally deleted a set of patient records. Discrepancies were then discovered between the electronic appointment records and the paper records written by the Registrant. A wider audit was conducted by the Trust and the Registrant was invited to attend a meeting. However, the Registrant resigned from her post before the meeting took place. The Trust made a Fitness to Practise referral to the HCPC by a referral form, dated 9 September 2016.
The Final Hearing
13. At a Final hearing that took place between 3-7 December 2018, the panel found proved most of the particulars of the Allegation (as set out above), which related to shortcomings in the Registrant’s care and record-keeping between 2013 and 2016 with respect to 19 patients.
14. The Final hearing panel found misconduct and concluded that the Registrant’s Fitness to Practise was then currently impaired. It concluded that neither a Caution nor a Conditions of Practice Order would be appropriate and that a Suspension Order was necessary. In paragraph 134 of its decision, the substantive hearing panel stated:
“Having determined that a Suspension Order was the appropriate sanction, the Panel considered the period of suspension … In this case, the Panel believed that it was appropriate to suspend the Registrant from practice for a period of 12 months. The Panel considered this to be appropriate and proportionate given the potential for harm to the public and a risk of repetition. The 12 months would also allow the Registrant time to reflect on her practice, develop insight and undergo further training, although the Panel recognised she could not practise as a physiotherapist”
15. In its decision, that panel directed the Registrar to impose a period of suspension for 12 months (“the Suspension Order”) and went on to state:
16. “The Order imposed today will apply from 4 January 2019. This Order will be reviewed again before 4 July 2019.”
17. There was correspondence between the HCPC and the Registrant in January 2019 as to the possibility of her consensual removal from the Register. However, that did not proceed further because in her email of 28 January 2019, the Registrant stated that she did not wish that her name be removed.
The First Review Hearing
18. A review took place on 4 June 2019 when the HCPC did not invite the review panel to impose a further sanction but to uphold the Suspension Order. The review panel decided not to make a further order as to sanction, with the result that the Suspension Order remained in place until 4 January 2020, to be reviewed before it expired.
The Second Review Hearing
19. At the second review hearing on 6 December 2019, the HCPC submitted that the panel had jurisdiction to review the Suspension Order under Articles 30(1) and 30(2) of the 2001 Order. The HCPC submitted that the Registrant’s fitness to practise remained impaired. The panel were told of the Registrant’s lack of engagement since the sanction was imposed. The HCPC invited the panel to impose a new sanction and to consider whether, in all the circumstances, a Striking Off Order would be appropriate.
20. The panel found that the Registrant Fitness to Practice was impaired and that a 12 month Suspension Order was an appropriate sanction. In imposing that sanction the panel considered it would provide the Registrant ‘with an opportunity to show willingness to engage with the regulatory process and remediate her practice.’ The panel went on to consider a Striking Off Order but ‘considered, at this stage, that a Suspension Order would be sufficient to protect the public and mark the seriousness of the matters found proved.’
21. The panel ordered a review of the order before its expiry. In doing so, it made the following observations:
“The Panel considers that it may assist the reviewing panel if the Registrant could present evidence as to how she has developed and reflected on the areas of concern found at the substantive hearing, i.e. record-keeping, safeguarding issues, commissioning equipment, etc. This might be achieved by undertaking training and / or maintaining a reflective portfolio and / or receiving support from a mentor. In addition, although the Panel recognised the Registrant could not practice as a physiotherapist, she might be able to work in another capacity, and show reliability and the understanding of a need to provide good care to service users.
Testimonials from any paid or unpaid employment may also assist in this regard. However, the Panel recognised that its recommendations do not bind or fetter the discretion of a reviewing panel considering this matter. In order to assist the Registrant, the Panel notes that, in very broad terms, there may be three ways in which this case may progress. First, the Registrant has the opportunity to show willingness to engage and remediate her practice and to demonstrate progress to the reviewing panel as outlined above;
Secondly, the Panel notes that the Registrant has previously sought Voluntary Removal from the Register, albeit she then withdrew that application. It is a matter for the Registrant to reflect on whether she now wishes to renew an application for Voluntary Removal from the Register. Today’s Panel makes no comment one way or the other as to whether such an application would be granted.
Thirdly, in the event that the Registrant does not demonstrate to the reviewing panel a willingness to engage meaningfully and to remediate her practice, the reviewing panel is likely to give serious consideration to a Striking Off Order”
22. Mr D’Alton today submitted that the Panel today had jurisdiction to review the Suspension Order under Articles 30(1) and 30(2) of the 2001 Order. He submitted that the Registrant’s Fitness to Practise remained impaired. The Panel were told of the Registrant’s further lack of engagement since the sanction was originally imposed and following the last two reviews. The Panel was specifically reminded of the observations of the December 2019 review Panel, set out at paragraph 23 above. The HCPC invited the Panel to impose a new sanction and to consider whether, in all the circumstances, a Striking Off Order would be appropriate.
23. The Legal Assessor advised that this was a mandatory review of the Suspension Order under Article 30(1). The Legal Assessor advised the Panel that its task is to comprehensively review the Suspension Order in the light of the current circumstances. It was important to approach their task sequentially, first considering the issue of current impairment and only if they made a finding of impairment should they go on to consider the issue of sanction. The Panel was required to consider matters afresh, notwithstanding the previous findings of earlier panels.
24. The Panel took into account the HCPTS Practice Note: “Finding that Fitness to Practise is Impaired” (December 2019). In particular, it noted that the test of impairment is expressed in the present tense – that Fitness to Practice is impaired. A Registrant may have been impaired at the time of the failings identified in the allegation but the Panel’s function was to form a view about the Registrant’s current Fitness to Practice, by taking account of the way in which the Registrant has acted or failed to act in the past and looking forwards whether they consider that the Registrant’s ability to practice safely is compromised.
25. The Panel also accepted the advice of the Legal Assessor. The Legal Assessor advised that in determining current impairment the Panel should have regard to the following aspects of the public interest:
i) The ‘personal’ component: the current behaviour of the individual Registrant; and
ii) The ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.
26. In relation to the Personal component, the key questions that needed to be asked were:
a. Are the acts or omissions which led to the allegation remediable?
b. Had the Registrant taken remedial action?
c. Are those acts or omissions likely to be repeated?
27. An important factor will be the Registrant’s insight into those acts or omissions, the extent to which the Registrant:
a. Accepts that their behaviour fell below professional standards, understand how and why it occurred and its consequences for those affected; and
b. Can demonstrate they have taken action to address that failure which remedies any past harm where that is possible and avoids any future repetition.
28. In relation to the public component, the key question was, given the nature of the allegation and the facts found proved, would public confidence in the profession be undermined if there were to be no finding of impairment?
29. In assessing the likelihood of a Registrant causing similar harm in the future, panels should take account of:
a. The degree of harm caused by the registrant; and
b. The registrant’s culpability for that harm.
The Panel’s Decision on Impairment
30. The Panel noted that the previous panels had found that the Registrant had limited insight and had demonstrated a lack of judgment and a disregard for the wellbeing of her patients.
31. The Panel found that while the acts were remediable, there remained no explanation as to how the Registrant would behave differently in the future and no assurance that such serious misconduct would not be repeated.
32. The Panel took into account the fact that they had no information or evidence from the Registrant since the substantive hearing in December 2018. Therefore, there was nothing to demonstrate that the Registrant has made any progress towards gaining insight or showing remediation since the substantive hearing panel made its findings of fact.
33. In the absence of any information with regards the Registrant’s current level of insight and any steps she has taken towards remediation, the Panel concluded that there was a real risk of repetition.
34. The Panel concluded that for these reasons the Registrant’s Fitness to Practice is currently impaired on the basis of the personal component.
35. In considering the public component, the Panel had regard to the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour. Members of the public would be extremely concerned to learn that a physiotherapist had failed to deliver planned treatment or ensure patients were safe. The Registrant’s conduct fell far below the standard expected of a registered practitioner.
36. The Panel found that the Registrant continues to pose a risk to patients, had brought the profession into disrepute, had breached a fundamental tenet of the profession by failing to act in the best interest of patients, and has demonstrated a lack of insight. There was a risk that all of these features were likely to be repeated in the future.
37. In all the circumstances, the Panel determined that public confidence and professional standards would be undermined if a finding of impairment were not made and concluded that the Registrant’s current Fitness to Practise is impaired on the basis of both the personal component and the wider public interest.
38. The Legal Assessor referred the Panel to the HCPC Sanctions Policy. He advised that the purpose of imposing a sanction is not to punish the Registrant but to ensure that the public is protected, to promote public confidence in the profession, and to provide a deterrent to other registrants.
39. When considering what, if any, sanction was appropriate in this case, the Panel was mindful that each case must be determined on its own merits. The HCPC has adopted a policy in respect of indicative sanctions to aid panels to make fair, consistent, and transparent decisions. It was also aware of the need to give clear and cogent reasons for its decision, particularly if departing from the policy. The Panel received and applied advice from the Legal Assessor in relation to the imposition of a sanction.
40. The primary function of any sanction is to protect the public. The considerations in this regard include:
• any risks the registrant might pose to those who use or need their services;
• the deterrent effect on other registrants;
• public confidence in the profession concerned; and
• public confidence in the regulatory process.
41. Sanctions are not intended to punish registrants, but instead ensure the public is protected. Inevitably, a sanction may be punitive in effect, but should not be imposed simply for that purpose. Panels should only take the minimum action necessary to ensure the public is protected. This means considering the least restrictive sanction available to them first, and only moving on to a more restrictive sanction if it is necessary to protect the public.
42. A Striking Off Order is a sanction of last resort for serious, persistent, deliberate or reckless acts.
43. A Striking Off Order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process.
In particular where the registrant:
a. lacks insight;
b. continues to repeat the misconduct or, where a registrant has been suspended for two years continuously, fails to address a lack of competence; or
c. is unwilling to resolve matters.
44. A Striking Off Order has a significant impact on a registrant, and so when a panel imposes a Striking Off Order, it should provide clear and detailed reasoning in its decision on sanction.
Decision on Sanction
45. The Panel agreed with the following aggravating features identified at the substantive hearing:
• the failings in the Registrant’s practise were fundamental, particularly in relation to record keeping;
• the children in her care had been exposed to a risk of harm by her failings;
• the failings occurred over a sustained period of time;
• there was a lack of insight by the Registrant as to the potential consequences of her failures of practice;
• there was no evidence over a sustained period that Registrant had remediated her practise;
• there was a risk of repetition;
• there were multiple highly vulnerable patients;
• there were multiple failings over an extended period of time.
46. The Panel also accepted that there were mitigating factors, in that the Registrant had an unblemished regulatory record prior to this allegation and there had been no complaints recorded. The two witnesses had not identified any issues with the actual treatment of patients.
47. The Panel determined that the Registrant had not demonstrated remorse or sufficient insight and there was a high risk of repetition. As a result, it was not appropriate for the Panel to take no action. Mediation was also not an appropriate sanction in this matter as mediation would provide no public protection.
48. The Panel did not consider that a Caution Order would be appropriate in this matter given the seriousness of the misconduct, the risk of future harm, and the lack of any insight or remediation shown by the Registrant.
49. The Panel therefore moved on to consider whether a Conditions of Practice Order would be appropriate. The Panel found that a Conditions of Practice Order would not be an appropriate sanction in this case because the Registrant lacks insight and has not engaged meaningfully with the regulatory process, with the consequence that the Panel is not confident that the Registrant would comply with conditions or that any workable conditions could be formulated.
50. The Panel carefully considered whether a Suspension Order would protect the public, act as a deterrent to others, maintain confidence in the profession and the regulatory process, and uphold the standards of the profession. However, the Panel found that the Registrant had not engaged with the regulatory process and had not taken any remedial action in relation to her conduct. A further Suspension Order would serve no purpose. In doing so, the Panel reminded itself of the observations made by the December 2019 review panel, including that a Striking Off Order would be given serious consideration in the absence of the Registrant demonstrating she had attempted to remediate her practice, and that the Registrant had at one time indicated that she wished to be removed from the Register.
51. In all the circumstances, taking into account the serious factual findings relating to persistent conduct of the Final Hearing Panel and the failure by the Registrant to engage in the regulatory process, including any efforts to remediate her practice and showing any insight, that a Striking Off order was an appropriate and proportionate sanction. In doing so, the Panel was satisfied that due to the nature of the gravity of the concerns that any lesser sanction would be insufficient to protect the public, public confidence in the profession and public confidence in the regulatory process.
ORDER: The Registrar is directed to strike the Registrant off the Register.
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.