Mr Thomas Richard Sugarman

Preliminary matters

Hearing in private

1. Ms Robinson made an application for part of the hearing to be heard in private for the protection of the Registrant’s private life. Ms Robinson informed the Panel that there were matters that could be heard in public, but that it was appropriate for the parts of the hearing that related to the Registrant’s health to be heard in private. The HCPC supported this application.

2. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note “Conducting Hearings in Private”.

3. The Panel decided that it was appropriate to hear those parts of the hearing in private where there was reference to matters related to the Registrant’s health. The remainder of the case should be heard in public. The Panel would produce two versions of its decision.

Background

4. The Registrant is a registered Dietitian. He was employed at Guys and St Thomas’ NHS Foundation Trust (the “Trust”) as a Band 6 Specialist Renal Dietitian. The Registrant was responsible for renal patients on haemodialysis and pre-dialysis renal patients who attended an outpatient clinic service.

5. In January 2017, an incident occurred in relation to Patient A, an elderly patient who has recently been assessed and recommended a soft consistency diet by her Speech and Language Therapist.

6. On 23 January 2017, the Registrant made a note of the earlier recommendation for a soft consistency diet, but also ordered a normal diet and made an order for Patient A of dry biscuits with cheese and sausages.

7. Patient A died on 30 January 2017 following the consumption of normal food whilst on a soft diet. The Trust prepared a serious incident investigation report (QIPS) which identified multiple errors and system factors which may have contributed to this incident, including the Registrant’s actions. KM, the Clinical Lead Dietitian, was one of the authors of the QIPS report.

8. The Registrant was suspended on 13 February 2017. The Trust permitted him to return to work following finalisation of the QIPS report in May 2017. However, the Registrant was subject to a capability process involving a period of supervision and monitoring of his practice by LT, Band 8a Principal Renal Dietitian at the Trust.
9. At the outset of the Substantive Hearing the Registrant made admissions to all the factual particulars with the exception of two patients (43 and 69). In his oral evidence it was clarified that the Registrant’s admissions included Patient 43.  The Substantive Hearing Panel found proved particulars 1 a-c; 2 a(i)-2 a(v); 2 b (with the exception of Patient 35); and 3.

10. The Substantive Hearing Panel considered the Registrant’s health and took that into account within the context of the Substantive Hearing Panel’s role which was to protect the public and the public interest. The Substantive Hearing Panel made a finding of lack of competence and that the Registrant’s fitness to practise was impaired. The Registrant was suspended from practice for a period of 12 months.

Submissions

11. Ms Robinson on behalf of the Registrant stressed that the Registrant’s absence, and lack of presentation of evidence, was no discourtesy but a reflection of the fact that he had made a difficult, but in his view, appropriate decision to seek Voluntary Removal from the Register. The Registrant had reflected on the Substantive Hearing Panel’s findings and the failings that had been identified in his practice. The Registrant had accepted that his fitness to practise remained impaired. Ms Robinson stated that the Registrant was being realistic in accepting that to continue in his profession was not the best path for him. Given his decision to take a different career path in the future it was absolutely right that he had not placed anything before the Panel today.

12. Ms Sampson acknowledged that the Registrant had been engaging with the HCPC and had yesterday presented a completed application form for Voluntary Removal from the Register. A copy of that application was later supplied to the Panel. The HCPC fully appreciated the very difficult and courageous decision that the Registrant had taken. The initial view of the HCPC was that this might be an appropriate case for Voluntary Removal and had given an indication to that effect to the Registrant. It was suggested by Ms Sampson that a little time would be required for the Voluntary Removal process to be undertaken and placed before a further Panel of the Conduct and Competence Committee. So, the HCPC position today was to request a further short period of suspension. Six months was suggested as appropriate with which Ms Robinson agreed. 

Decision

13. In undertaking its task today, the Panel conducted a comprehensive appraisal of the Registrant’s current abilities with a view to establishing whether he was now fit to return to unrestricted practice.  The Panel was not undertaking the task of rehearing the matters that had been brought against the Registrant nor going behind the previous findings. 

14. This Panel took into account the parties’ submissions; accepted the advice of the Legal Assessor; and it reminded itself of the terms of the HCPTS’s Practice Notes.

15. In relation to the issues lack of competence and current impairment this Panel paid carful regard to the observations made by the Substantive Hearing Panel. The Panel noted the range of issues identified by the Substantive Hearing Panel were not solely attributable to the Registrant’s health issues.

16. The Registrant is not currently working as a Dietitian. The Panel noted that nearly one year had elapsed since the substantive hearing and in the absence of any CPD the Registrant’s knowledge will have deteriorated further.  The Panel acknowledged that the Registrant had, by his own admission, not undertaken any steps to remedy his professional failings and acknowledged his current impairment. The Panel appreciated the reasons why the Registrant had chosen not to provide any evidence of remediation. In light of the unremediated risks, the Panel concluded that there existed a continued risk to the public and that the Registrant currently remained impaired on the personal component.

17. Turning to the public interest in making a finding of impairment, the Panel concluded that the matters which had been found proven at the substantive hearing, involving as they did actual harm to a patient, were serious. A member of the public would be rightly concerned if the Registrant were able to return to unrestricted practice in the absence of any appropriate remedial steps. In the Panel’s view, the public interest in making a finding of impairment continued to be warranted.

18. The Panel then considered what would be the appropriate restriction and in this regard took into account the matters which the Substantive Hearing Panel had identified;

The Panel decided that the aggravating features in this case were:

• a long period of underperformance;
• limited insight;
• harm to Patient A and the risk of harm to other patients.

The Panel decided that the mitigating features were:

• no previous regulatory history;
• no ill intent;
• the   Registrant’s full engagement and co-operation with his employer and the HCPC;
• the Registrant’s remorse in relation to Patient A;
• health and disability factors;
• the pressures of the capability process, including pressures on the Registrant to complete work within a timescale.

19. In light of these findings, the Panel considered that the option of taking no action, would not be a sufficient response to the finding of current impairment in this case.

20. The Panel next considered a Caution Order. The Panel did not consider that the guidance for Caution Orders applied. The lack of competence was not isolated or minor and in the absence of any remediation those failings in practice could be repeated. Whilst the Registrant’s insight had now developed it had taken him to the stage beyond understanding of his failings to one where he sought removal. A Caution Order, in the Panel’s view, was therefore totally inappropriate in this case.

21. The Panel next considered a Conditions of Practice Order. The Panel was of the view that conditions of practice that would be effective to protect the public would be highly restrictive and be a suspension by another means. This step was also inconsistent with the evidence that the Registrant would not wish to be subjected to conditions, but sought removal from practice.

22. The Panel next considered the option of a Suspension Order. A Suspension Order prevents the Registrant practising as a Dietitian. It would protect the public and is the most restrictive sanction available to this Panel. The Panel considered that this was the necessary, appropriate and proportionate order in the circumstances of this case.

23. The Panel decided that a period of six months was appropriate and that any lesser period might not be sufficient for the parties to conclude the necessary preliminary work on an application for Voluntary Removal. The Suspension Order will be reviewed before it expires. A future reviewing Panel would be able to impose a further period of suspension, but would not at that date have the power of strike off.

24. This Panel has acknowledged that the Registrant has taken an informed view of his future and was seeking to remove himself from the Register. The Panel has also however considered that the Registrant’s current view could change in the future. With this in mind, the Panel has identified that should the Registrant wish to demonstrate his ability to return to practise he should consider providing a future reviewing Panel with:

• a reflective piece focusing on the findings of the Panel and the risks to patients;
• evidence of his ability to keep accurate records;
• references or testimonials from paid or unpaid work;
• evidence relating to the Registrant’s management of his health conditions;
• evidence that the Registrant has embedded improvements in his communication skills and can:
- reflectively and actively listen and absorb information;
- adapt his knowledge to specific situations; and
- communicate clearly.
• evidence of continuing professional development.

The Registrar is directed to suspend the registration of Mr Thomas Richard Sugarman for a period of six months from the date the current Order expires.

The Order will be reviewed before its expiry.

History of Hearings for Mr Thomas Richard Sugarman