Jonathon G E Smith

Preliminary Matters:

Remote hearing conducted via video-link

1. In light of the Government’s advice on containing the current COVID-19 pandemic, the HCPC has suspended all public hearings to protect the health and safety of its registrants and stakeholders. This hearing was conducted via video-link.

Notice of Hearing

2. Due to the COVID-19 situation, the Registrant was sent a Notice of Hearing by email on 10 February 2021. The Panel was satisfied that the date of the Notice of Hearing falls within the statutory time limit of 28 days under Rule 6(2) of the HCPC Conduct and Competence Committee (Procedure) Rules 2003, (the Rules), and also provides the day, time and venue (specifically that the hearing would be conducted via video conference), as required by Rule 6(1) of the Rules.

3. For the above reasons, the Panel has determined that there is good service of the Notice of Hearing.

Proceeding in Absence

4. Mr D’Alton, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. The Panel heard and accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note on Proceeding in Absence.

5. While the Panel is aware that a decision to proceed in the absence of a Registrant is one to be taken with great care and caution, the Panel has decided to exercise its discretion to proceed in the absence of the Registrant in accordance with Rule 11 of the Rules. In reaching its decision the Panel had regard to the following matters:

• Service of the appropriate notice of this hearing has been properly effected.
• The Registrant has indicated clearly by email that he will not be attending the hearing today, stating in his email response to the HCPC dated 10 February 2021, “Thank you for your email and documentation regarding the above hearing. I will not be attending, I will not be represented.” He has given his reasons for not attending, has not applied for an adjournment or sought to object to this hearing proceeding in his absence.
• The Registrant is fully aware of this hearing, has made an informed decision not to participate and, in the Panel’s view, has voluntarily waived his right to attend the hearing.
• The Registrant has engaged with the HCPC in relation to this matter and this is a hearing of the Registrant’s own application for Voluntary Removal from the Register.
• The HCPC consents to the Registrant’s Voluntary Removal from the Register.
• There would be limited risk of prejudice or unfairness to the Registrant if the hearing proceeds today.
• The matter has been ongoing for three years and there is a public interest with the matter proceeding without further delay.

Application for Hearing to be in Private

6. Mr D’Alton invited the Panel to hold the entirety of the hearing in private under Rule 10(1)(a) of the Rules, which provides that “proceedings shall be held in public unless the Committee is satisfied that, in the interests of justice or for the protection of the private life of the health professional … the public should be excluded from all or part of the hearing.” He submitted that the Registrant’s health concerns are inextricably linked to the matters giving rise to the Allegation.

7. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note on Conducting Hearings in Private. The Panel noted that the Allegation is charged as a conduct and competence/misconduct matter, not a health matter. It acknowledged that the Registrant’s health was relevant to the matters contained in the Allegation. The Panel therefore determined to hold those parts of the hearing touching on the Registrant’s health in private, being satisfied that to do so would be in the interests of justice and would serve to protect the private life of the Registrant.

Background:

8. The Registrant is a registered Occupational Therapist.

9. At the time of the events related to this matter the Registrant was engaged by Leicestershire Partnership NHS Trust (the Trust) in the Community Integrated Neurology and Stroke Service (CINSS) as a locum Occupational Therapist. The Registrant began working at the Trust on 27 November 2017.

10. Shortly following the Registrant commencing in post, concerns were noted by the Trust regarding his record-keeping ability and ability to manage his caseload. In January 2018, following the commencement of an internal investigation, the Registrant resigned from his post at the Trust.

11. On 22 March 2018 the Trust referred the Registrant to the HCPC, enclosing their Investigation Report into the Registrant’s work while at the Trust. The concerns related to the Registrant’s documentation standards; his timeframe standards; not completing planned visits with patients; and the quality of his neurological assessments and interventions.

12. During the HCPC’s investigation, the Registrant kept the HCPC appraised of his working status. He also informed the HCPC that he had been diagnosed with a health condition which could affect his organisational skills and concentration when in busy environments.

13. In September 2018 the Registrant informed the HCPC that he had taken up employment as an Occupational Therapist in June 2018 at Coventry and Warwickshire Partnership Trust. Whilst initially the Coventry and Warwickshire Partnership had no concerns regarding the Registrant’s practice, the HCPC was notified on 28 November 2018 that issues surrounding the Registrant’s record keeping and a lack of care plans and risk assessments had come to light.

14. The Coventry and Warwickshire Partnership continued to have concerns regarding the Registrant’s record keeping and poor general organisational skills and it was outlined in January 2019 that on an audit of the Registrant’s case load, there had been a total of 30 missing entries. These concerns continued throughout the Registrant’s employment and, as a result, he was progressed through Coventry and Warwickshire Partnership’s performance management process.

15. On 20 April 2020 the HCPC was informed that the Registrant had found employment as a PIP assessor and had resigned from Coventry and Warwickshire Partnership Trust on 8 May 2020.

16. On 17 November 2020 a panel of the Investigating Committee determined that there was a case to answer against the Registrant in respect of the Allegation as set out, concerning Registrant’s patient records, referrals and his management of his caseload.

17. Following the Investigating Committee decision, the Registrant proposed on 30 November 2020 that the HCPC enter into a Voluntary Removal Agreement with him. The HCPC provided the Registrant with details of the process and the effect of it.

18. Having been provided with this information, the Registrant provided documents admitting to the substance of the allegation, provided a supporting reflective statement and formally requested voluntary removal from the Register. In his reflective statement the Registrant outlined he had had the time to reflect extensively on the events concerned and accepted that he did not meet the standard required by the HCPC. He fully acknowledged that he struggled with his records in both employments and that his health had also made it difficult to carry out this aspect of his role. The Registrant acknowledged the impact of his actions both on patients and the wider profession, and apologised for this.

19. The HCPC subsequently obtained internal approvals to dispose of the case by way of removal and sent the Registrant the Voluntary Removal Agreement for signing on 18 February 2021.

20. The Registrant returned a signed copy of the Voluntary Removal Agreement (VRA) on or around 5 March 2021.

Decision

21. The purpose of today’s hearing is for the Panel to consider a joint application from the HCPC and the Registrant to dispose of this matter by consent. Should the Panel agree to a consent order, in line with the VRA, it would allow the Registrant to be removed from the Register and the HCPC would take no further action in respect of the current fitness to practise matters.

22. In coming to its decision, the Panel considered all of the material before it including the main evidence bundle of 728 pages; the HCPC Skeleton Argument of 11 March 2021 in support of the VRA and provided to the Panel in advance of the hearing; the communication logs between the Registrant and the HCPC; and the signed copy of the VRA.

23. The Panel had regard to Mr D’Alton’s oral submissions and to the written submissions set out in the Skeleton Argument. Mr D’Alton confirmed the HCPC’s position that voluntary removal from the Register would be an appropriate means of resolving this matter and that granting the application would not compromise the protection of the public or have any detrimental effect on the wider public interest. He submitted that public protection would be ensured as the VRA is equivalent, in effect, to a striking off order. The Registrant would no longer be registered as an OT and has confirmed that he does not intend to practise as one in the future. Mr D’Alton also submitted that this case does not raise concerns with regard to the wider public interest to such an extent that the matter must be disposed of at a final hearing. He submitted that a reasonable and informed member of the public would not be concerned, nor would public confidence in the profession be put at risk, should the Panel grant this voluntary removal agreement in circumstances where the Registrant has accepted the allegations made and that his fitness to practise is impaired.

24. Mr D’Alton further submitted that 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. He submitted that the Registrant has had time to review this information and query its implications with the HCPC.

25. The Panel also had regard to the Registrant’s written statements to the HCPC, provided in the bundle of correspondence before the Panel. The Registrant noted his concerns around the length of time that it has taken the HCPC to investigate the matter and set out the impact this this delay has had on his health and on his family.

26. The Panel accepted the advice of the Legal Assessor. The process of disposing of a case by way of consent is an extra-statutory means of concluding a matter. However, before agreeing to such a course the Panel reminded itself that it has to be certain that, by adopting this process, there is the appropriate level of public protection and that to conclude this matter in this way would not be detrimental to the wider public interest. The Panel applied its own judgment and had regard to the content of the HCPTS Practice Note on Disposal of Cases by Consent. It had particular regard to the following part of the Practice Note:
“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.”

27. The Panel noted the contents of the Registrant’s correspondence with the HCPC in which his stance appeared to have changed over time. The Panel noted that on 19 October 2020, the Registrant had stated that it would be devastating to him and to his family if he were to lose his registration. He stated that he was prepared to work under a supervision condition and demonstrate that, with the correct support measures and reasonable adjustment equipment provision, he was a competent clinician. On 30 November 2020, however, the Registrant called the HCPC to ask for voluntary removal. The HCPC Case Manager noted in the Telephone Attendance Note that the Registrant “wanted Voluntary Removal for his own wellbeing, if nothing else.” The Registrant then completed the Consensual Disposal Request form on 13 December 2020 and emailed a further reflective statement to the HCPC on 14 December 2020. He stated that he no longer wanted to practise as an Occupational Therapist and wanted to be removed from the Register. In a telephone call between the Registrant and the HCPC Case Manager dated 31 March 2021, the Registrant talked about the impact of the HCPC process on his own health and his family and stressed that he wanted to move on. The Panel was therefore satisfied that this was a considered and informed decision on his part.

28. The Panel noted from the documents that a panel of the Investigating Committee had concluded that there was a case to answer and that the Registrant has admitted the Allegation as part of the VRA. The Registrant has also signed a Declaration that there is no other matter of which the Registrant is aware which might give rise to any other allegation.

29. The Panel was mindful of its overarching objective of protection of the public and the public interest. The Panel therefore 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.

30. The Panel noted that the HCPC was satisfied that it would be meeting its statutory objective of protecting the public if the Registrant were permitted to be removed from the Register. He would not be able to apply to be re-admitted to the Register for a period of at least 5 years. The Panel was satisfied that the public would be adequately protected if this Allegation were withdrawn and the Registrant were permitted to have his name removed from the Register and leave the profession in accordance with the terms of the VRA.

31. The Panel was also satisfied that there are no overriding public interest factors that would require this matter to go to a full substantive hearing and make disposal of this case by VRA inappropriate. The Panel was of the view 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 that his fitness to practise is impaired.

32. The Panel is aware that if the Registrant seeks to return to the HCPC Register at any time in the future, his application would be treated as if he had been removed from the Register for a period of 5 years as a result of the Allegation.

33. In all the circumstances, the Panel is satisfied that both the public and the wider public interest would be adequately protected by the terms of the Agreement reached between the Registrant and the HCPC. In addition, the Panel is satisfied that this means of disposal of this case is appropriate and proportionate and is jointly in the interests of the public, the HCPC and the Registrant.
34. The Chair of the Panel has, on behalf of the Panel, signed the attached Notice of Withdrawal which will take immediate effect, a copy of which has been dated today.

The Registrar is directed to remove the name of Mr Jonathan G E Smith from the Register with immediate effect.

No notes available

History of Hearings for Jonathon G E Smith