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The allegation against you is as follows:
Whilst registered as an Occupational Therapist and employed by County Durham & Darlington NHS Trust:
1) In relation to Service User 1;
a) Following an initial assessment on or around 21 December 2017, you did not complete and/or record a follow up visit;
b) you discharged the service user without completing a full needs assessment.
2) In relation to Service User 2;
a) On or around 4 January 2018, you did not adequately assess and or record the assessment of Service User 2 in their home;
b) You did not monitor the patient when the discharge was delayed;
c) You discharged the patient without liaising with the physiotherapist regarding the patient’s mobility;”
3) In February 2018, in relation to Service User 4, you discharged the service user without undertaking and/or recording a full assessment
4) In relation to Service User 5;
a) after the service user refused to be assessed, you discharged them without a full assessment;
b) you completed a Continuation Sheet with no patient identifiable information and placed it in the patient’s records.
5) Between December 2017 and October 2018, you did not undertake and/or record an adequate assessment and/or plan for;
a) Service User 1;
b) Service User 3;
c) Service User 6;
d) Service User 7;
e) Service User 9;
f) Service User 10;
g) Service User 11;
h) Service User 12.
6) On 5 October 2018, during an environmental visit to Service User 8, you;
a) did not demonstrate an awareness of the service user’s functional abilities;
b) did not review the occupational therapy input prior to the visit;
c) required prompting from your supervisor to undertake measurements.
7) In October 2018, in relation to Service User 9 you;
a) did not hand over the outcome of the needs assessment in relation to Service User 9 to the ward staff;
b) sent a referral to a handyman for equipment that was not suitable;
c) saved the referral form, containing confidential information, on the shared system.
8) On 5 June 2018, you did not identify the equipment required for discharge of Service User 12;
9) In relation to Service User 13;
a) On or around 8 March 2018, you did not adequately complete and/or record a transfer assessment;
b) did not adequately undertake an environmental visit.
10) The matters described in paragraphs 1 – 9 amount to misconduct and/or lack of competence
11) By reason of your lack of competence, your fitness to practise is impaired.
The Panel had sight of the notice of today’s hearing which was emailed to the Registrant’s email address on 01 November 2021. The Panel had sight of information confirming that the Registrant’s email address to which the notice was sent on 01 November 2021, is recorded as her email address on the HCPC Register.
2. The Panel took into account the HCPC’s published updated guidance that, in light of the government guidelines to contain the pandemic, and the closure of HCPC offices, service of notice of hearings will take place by email rather than post.
3. In all the circumstances, the Panel was satisfied that there had been good service.
Proceeding in the absence of the Registrant
4. Ms Khorassani on behalf of the HCPC submitted that the hearing should proceed in the absence of the Registrant. She referred the Panel to an email that the Registrant had sent to the HCPC on 18 November 2021. That email is in the following terms;
Thank you for your email.
I have previously sent replies to the hcpc advising that I can't attend the hearings due to prior commitments. I have also sent emails informing them that I have not practiced as an occupational therapist since the first suspension and will not be practicing as an occupational therapist again. Due to this I will not have any representation for the hearing. Would it be at all possible to remove my details from the register?
If you require further information please contact me and I will gladly provide further information as required.
5. Ms Khorassani also referred the Panel to an earlier email from the Registrant to the HCPC, which was dated 02 November 2021 and is in the following terms;
Thank you for your email
Unfortunately I cannot attend the hearings scheduled for the 1st December due to other commitments.
Whilst I worked at Darlington memorial hospital I had developed mental health problems.
I no longer have these problems and no longer take medication.
I have not worked as an occupational therapist since the first suspension. I will not be working as an occupational therapist again.
However I understand that you still need to reasses [sic] my fitness to practice.
Mrs Jacqueline Daley
6. Ms Khorassani also referred to a conversation that she had with the Registrant on 19 November 2021. The content of that conversation was summarised in an attendance note prepared by Ms Khorassani. This document has been seen by the Panel. In the course of that conversation the Registrant repeated that for reasons she explained, she would not be attending this hearing. She confirmed that she would like to explore the possibility of an agreement for her voluntarily to leave the Register [a Voluntary Removal Application VRA]. Ms Khorassani explained to the Registrant what was involved in a VRA. By an email dated 01 December 2021, also seen by the Panel, Ms Khorassani confirmed the conversation of 19 November 2021. She further explained what was involved in a VRA and supplied copies of relevant documents, including the Practice Note published by the Health and Care Professions Tribunal Service entitled “Disposal of cases by Consent”.
7. Ms Khorassani on behalf of the HCPC submitted that the Panel should proceed with this hearing albeit in the absence of the Registrant. In support of this submission Ms Khorassani relied primarily upon the content of the two emails set out above and the telephone conversation of 19 November 2021.
8. Having heard and accepted the advice of the Legal Assessor, the Panel determined to proceed with this hearing in the absence of the Registrant. Its reasons are the following;
• The Notice of this hearing has been properly served.
• This is a mandatory review.
• The Registrant has explicitly stated that she will not be attending this hearing. She has therefore waived her right to attend. In these circumstances an adjournment would serve no purpose. It is highly unlikely that she would attend any adjourned hearing.
• The Registrant did not attend and was not represented at the hearing held on 24 November 2020.
• The Registrant has made it clear she does not wish to return to her career as an Occupational Therapist. The Panel is thus aware of her position.
• It is in the public interest and in the interests of the Registrant that this review hearing should proceed as has been arranged.
Hearing in Private
9. Ms Khorassani, on behalf of the HCPC, applied for those parts of the hearing which dealt with matters of the Registrant’s health to be heard in private, on the basis that this would be required to protect her private life, pursuant to Rule 10(1)(a) of the Conduct and Competence Procedure Rules 2003.
10. The Panel took into account the HCPTS Practice Note entitled “Conducting Hearings in Private” and accepted the advice of the Legal Assessor. The Panel decided that it would hear those parts of the hearing which referred to the Registrant’s health in private, in order to protect her private life. Otherwise the hearing would be conducted in public. However, having taken specific advice from the Legal Assessor, the Panel directed that an observer who had recently been appointed by the HCPC as a lay panellist should be present throughout the hearing.
11. The Registrant is a registered Occupational Therapist. She was employed by County Durham and Darlington NHS Foundation Trust from January 2009 to December 2018.
12. Concerns about the Registrant’s competence initially came to light in early 2017 and an informal capability procedure commenced. In January 2018, a formal capability procedure commenced and the Registrant eventually progressed to a Stage 3 formal capability review. At the conclusion of the capability proceedings, the Registrant referred herself to the HCPC
Hearing on 24 November 2020
13. At the first review hearing, which was conducted on 24 November 2020, the reviewing panel determined that the Registrant’s fitness to practise was impaired in respect of both the personal and the public components; Its reasons were as follows;
The Panel was aware that its purpose today was to conduct a comprehensive review of the Registrant’s fitness to return to unrestricted practice and considered the HCPTS Practice Note entitled “Review of Article 30 Sanction Orders”. The Panel accepted the advice of the Legal Assessor.
In light of this, the Panel was of the view that the Registrant has not yet achieved sufficient remediation or insight. As such, the Panel agreed with the previous panel that the Registrant is highly likely to repeat the actions and omissions which led to the factual findings of a lack of competence. The Registrant therefore remains impaired in respect of the personal component.
In view of the lack of sufficient remediation and insight, and the remaining risk, the Panel decided that the need to uphold proper standards and maintain confidence in the profession would be undermined if a finding of impairment were not made on public interest grounds. The Panel therefore decided that the Registrant remains impaired on the basis of the public component.
14. The reviewing panel then determined that the existing Suspension order should be extended for a further period of 12 months. Its reasons were as follows;
The Panel took into account the Sanctions Policy (SP) and accepted the advice of the Legal Assessor. The Panel bore in mind that sanction is a matter for its own independent judgment, and that the purpose of a sanction is not to punish the Registrant but to protect the public and uphold the public interest. Further, a sanction must be proportionate, so that any order made be the least restrictive order necessary to protect the public interest, including public protection.
The Panel first considered taking no action or mediation. The Panel concluded that these sanctions would not be appropriate in view of the lack of remediation and insight, and the risk that remains to public protection and the public interest. The Panel concluded that a Caution Order would also be inappropriate and insufficient to protect the public and meet the public interest concerns in that it would not place any restriction on the Registrant’s practise.
The Panel next considered a Conditions of Practice Order and decided that it could not be said to be an appropriate or workable sanction. The Registrant’s lack of competence, as found proved, was so wide-ranging, that any conditions would have to be so widely drafted that they would be tantamount to a suspension. In addition, there have been no submissions or evidence put before the Panel with regard to insight or remediation of the concerns, and therefore the Panel could not be satisfied that the Registrant would be willing or able to comply with conditions.
The Panel therefore decided that it would be proportionate to extend the Suspension Order to reflect the ongoing lack of sufficient insight and remediation, and to give the Registrant time to develop and demonstrate them. Such an order would protect the public and satisfy the wider public interest in declaring and upholding proper standards and in maintaining public confidence in the profession.
The Panel decided that it would be proportionate and appropriate to extend the Suspension Order for 12 months, to take into account the Registrant’s ongoing lack of insight and remediation.
The Registrant can ask for an early review if she has any new information or evidence to put before a panel.
The Panel was aware that a Striking Off Order is not available to it at this time.
15. At the review hearing on 24 November 2020, the reviewing panel gave guidance as to what might assist a subsequent reviewing panel. That advice was in the following terms;
The Panel considered that a reviewing panel would be likely to be assisted by:
• The Registrant’s attendance at the next review hearing;
• A reflective piece from the Registrant with regard to the failings identified in the substantive hearing, together with their impact on service users, other professionals and the public;
• Evidence from the Registrant as to any steps she may have taken in order to remediate her failings;
• References and testimonials in respect of any employment or work, either paid or unpaid, which she may have undertaken since the events in question.
• Evidence of any Continuing Professional Development (CPD) undertaken by the Registrant to keep her professional skills up to date.
The Hearing on 03 December 2021
Submissions made on behalf of the HCPC
16. Ms Khorassani on behalf of the HCPC submitted that the Registrant is still impaired in respect of both the personal and the public components. In support of these submissions she said that there had been no material change in the relevant facts since the last review hearing on 24 November 2020, which would in any way undermine a finding of impairment or the need for an order. The Registrant had not practised as an Occupational Therapist since the making of the substantive order on 06 December 2019. She stated that she did not intend to resume practice as an Occupational Therapist. She had not complied with the suggestions made on 24 November 2020 by the reviewing panel as to what might assist a subsequent reviewing panel. Consequently, there remained a risk of repetition and thus a risk to future service users. Also public confidence in the profession of Occupational Therapy and in the HCPC as its regulator, would be undermined by a finding of no present impairment. Moreover, the need to uphold proper standards within the profession required a finding that the Registrant’s fitness to practise is still impaired.
17. Ms Khorassani further submitted that the appropriate order for the Panel to make, was a Suspension Order for a further period of 12 months. In support of this submission she said that as the Registrant did not intend to return to practise as an Occupational Therapist, no appropriate conditions of practice could be formulated. Moreover, because this is a lack of competence case and as two years have not elapsed, since the making of the original order on 06 December 2019, a striking off order is not available to the Panel. In these circumstances only a Suspension Order would sufficiently protect the public and the public interest. She also suggested that the Suspension order should be for a period of 12 months so as to allow for the possibility of a VRA to be fully explored
Submissions made on behalf of the Registrant
18. Except for the emails identified above, together with her comments made during the telephone conversation of 19 November 2021, the Panel has not seen any representations or submissions made by or on behalf of the Registrant for the purpose of this review hearing.
Decision by the Panel on Impairement
19. The Panel was aware that its purpose was to conduct a comprehensive review of the Registrant’s fitness to return to unrestricted practice. It considered the HCPTS Practice Note entitled “Review of Article 30 Sanction Orders”. The Panel heard and accepted the advice of the Legal Assessor.
20. The Panel determined that the Registrant’s fitness to practise remains impaired. Its reasons include all of those expressed by the first reviewing panel on 24 November 2020. Also, the Registrant has not complied with any of the suggestions made on 24 November 2020, as to what might assist a reviewing panel. Consequently, if the Registrant was to return to unrestricted practice, there would be a real risk of repetition of her failures and thus a risk to service users. Moreover, the Registrant has now stated that she does not intend to resume her career as an Occupational Therapist. Additionally, public confidence in the profession of Occupational Therapy and in the HCPC as its regulator, would be seriously undermined, if this Panel, in the present circumstances, was to hold that the Registrant’s fitness to practise was not presently impaired. Furthermore, the need to maintain proper standards within the profession required such a finding. In all of these circumstances, the Panel determined that the Registrant’s fitness to practise remains impaired in respect of both the personal and the public components.
ORDER: The Registrar is directed to extend the Suspension Order against the registration of Mrs Jacqueline Daley for a further period of 12 months on the expiry of the existing order.
The Order imposed will apply from 03 January 2022.
This Order will be reviewed again before its expiry on 03 January 2023.