Ms Janine Thomas

Preliminary Matters

Remote hearing conducted via video-link

1. On or around 23 March 2020 and acting in accordance with Government recommendations concerning the COVID-19 pandemic, the HCPC decided to suspend all public hearings to protect the health and safety of its registrants and stakeholders. This hearing was conducted via video link.

Service

2. The HCPC also decided that during the period of suspension of its public hearings, there would be a new process whereby Notice of hearings would be sent to the parties by email. The Registrant was sent a Notice of hearing by email on 13 July 2020 to her email address as held on the Register.

3. The Panel accepted the advice of the Legal Assessor. It was satisfied that the date of the Notice of hearing fell within the statutory time limit of 28 days under Rule 6(2) of the HCPC Health Committee (Procedure) 3 Rules 2003, (“the Rules”), and also provided the dates and times of the hearing and the fact that, due to the COVID-19 pandemic, the hearing would be held remotely via video conference. The Panel acknowledged that in normal times the Notice of hearing would be sent by post. However, in circumstances where, as a result of the COVID-19 crisis, members of the HCPTS Scheduling Team are working remotely, the Panel found that communication by an email sent to the Registrant’s registered email address was both a proper and sufficient means of communication. For these reasons the Panel found that there was good service of the Notice of hearing.

Proceeding in absence

4. The Registrant did not participate in the hearing. There had been no response from the Registrant to the formal Response to the Notice of Allegation document and no indication as to whether she intended to attend the hearing or be represented at it. The Panel had sight of 5 emails from the HCPC to the Registrant, sent between September 2019 and March 2020; there had been no response from the Registrant to any of those emails.

5. Mr Bridges, on behalf of the HCPC, submitted that the Registrant had not engaged with the HCPC regulatory process or proceedings; that she had not requested an adjournment of this hearing; that she had waived her right to attend and that it was in the public interest to proceed in her absence.

6. The Panel accepted the advice of the Legal Assessor. The Panel referred to the HCPTS Practice Note on proceeding in absence and to the guidance that a hearing panel should consider as provided by the cases of R v Jones (Anthony) [2004] 1 AC 1HL and GMC v Adeogba [2016] EWCA Civ 162. Applying that guidance, the Panel was careful to remember that its discretion to proceed in absence is not unfettered and must be exercised with the utmost caution and with the fairness of the hearing at the forefront of its mind.

7. The Notice of Hearing dated 13 July 2020 informed the Registrant of the dates and details of the Health Committee hearing, and of her right to attend and be represented. She was also advised of the Panel’s power to proceed with the hearing in her absence if she did not attend and of how she could apply for a postponement of the hearing. The Registrant was informed of the sanction powers available to the Panel, should it find her fitness to practise to be currently impaired.

8. The Registrant had not responded to the Notice of Hearing and had not communicated with the HCPC or Kingsley Napley Solicitors, acting for the HCPC. Further, on the information before the Panel, there was no response or comment provided by the Registrant in relation to the medical report of February 2020 that would have been sent to her. No request for an adjournment had been received, nor was there any indication that the Registrant wished to attend the hearing but was unable to do so.

9. Taking all the above circumstances into account, the Panel concluded that the Registrant had not engaged at all with the HCPC processes or in relation to this hearing. It was unlikely in all the circumstances that an adjournment would secure her attendance on a future date. The Panel concluded that, in the absence of any explanation from the Registrant as to why she was not present and to her lack of engagement, the Registrant has voluntarily waived her right to be present at today’s hearing and that adjourning this hearing would serve no useful purpose.

10. The Panel was mindful that it must also consider fairness to the HCPC, whose case was ready to proceed today. The HCPC’s two witnesses were ready to give evidence at this virtual hearing. Following the guidance in the case of Adeogba, given that there was no good reason to adjourn the hearing, the Panel decided it was in the public interest to proceed in the Registrant’s absence.

11. The Panel considered that there was some disadvantage to the Registrant in proceeding in her absence as she would not be able to challenge the evidence put forward by the HCPC or give her own evidence. The Panel was mindful, though, that it could explore any inconsistencies in the evidence that it identified and should ask questions and consider points which might be in the Registrant’s interests and were reasonably apparent from the evidence. Furthermore, the limited disadvantage was the consequence of the Registrant’s decision to absent herself from the hearing, waive her rights to attend and be represented and to not provide evidence or make submissions.

12. In these circumstances, the Panel decided that it was fair, appropriate and proportionate to proceed in the absence of the Registrant.

Private Hearing Application

13. Mr Bridges made an application for the entire hearing to be conducted in private, under Rule 10(1)(a) of the Health Professions Council (Health Committee) (Procedure) Rules 2003, so as to protect the private life of the Registrant, as the case concerned the Registrant’s health.

14. Having heard and accepted the advice of the Legal Assessor, the Panel decided that it was justified to hold the entirety of the hearing in private in order to protect the private life of the Registrant. The Panel had regard to the fact that it had been convened as a Panel of the Health Committee; that the allegation faced by the Registrant was that her fitness to practise is impaired by reason of her health; and that the evidence to be adduced primarily related to her health. In these circumstances, the Panel determined that the information was of such a sensitive and personal nature that it should not be in the public domain, and that since such information was inextricably linked to all matters relevant to this case, no part of the hearing should be in public. The Panel also determined that details of the Registrant’s health should not form part of the public record.

The Registrar is directed to suspend the name of Ms Janine Thomas for a period of 12 months from the date that this Order takes effect (the Operative Date).

Interim Order

1.The Panel heard an application from Mr Bridges to cover the appeal period by imposing an 18-month Interim Suspension Order on the Registrant’s registration. He submitted that such an order is necessary to protect the public and is otherwise in the public interest.

2.The Panel heard and accepted the advice of the Legal Assessor. It had careful regard to Paragraphs 133-135 of the SP and to Paragraph 7 of the HCPTS Practice Note on Interim Orders, which offers guidance on interim orders imposed at final hearings after a sanction has been imposed. The guidance states that registrants should be made aware of the potential for an interim order to be imposed on their registration after the panel has made a substantive order and should be given an opportunity to make representations in respect of an interim order.

3.The Panel noted that the Registrant had been informed by the Notice of hearing email dated 13 July 2020 that if this Panel found proved the allegation against her and imposed a conditions of practice order or a suspension order, the HCPC may make an application to the Panel to impose an interim order to cover any appeal period. For the reasons set out in its earlier decision to commence the hearing in the absence of the Registrant, the Panel determined that it would also be fair, proportionate and in the interests of justice to consider Mr Bridges’ application.

4.The Panel recognised that its power to impose an interim order is discretionary and that the imposition of such an order is not an automatic outcome of fitness to practise proceedings in which a Suspension Order has been imposed, and that the Panel must take into consideration the impact of such an order on the Registrant. The Panel was, however, mindful of its findings in relation to the health condition in this case and the risk of relapse.

5.The Panel decided to impose an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001. The Panel was satisfied that an interim suspension order is necessary for the protection of the public and is otherwise in the public interest to maintain confidence in this regulatory process. The Panel has had regard to the nature and severity of the health condition it has found proved, and the resulting public protection concerns and the full reasons set out in its decision for the substantive order in reaching the decision to impose an interim order. In the circumstances, it also considered that public confidence in the profession and the regulatory process would be seriously undermined were the Registrant allowed to remain in practice as an Occupational Therapist during the appeal period.

6.The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined.

7.If no appeal is made, then the interim order will be replaced by the Suspension Order 28 days after the Registrant is sent the decision of this hearing in writing.

8.That concludes this determination.

History of Hearings for Ms Janine Thomas