Mr Kieran Mcdermott

Profession: Physiotherapist

Registration Number: PH91782

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 10/12/2021 End: 17:00 10/12/2021

Location: Virtual hearing - Video conference

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Allegation against the registrant is as follows:

During the course of your employment as a Physiotherapist at University Hospital Birmingham NHS Foundation Trust between June 2012 and 31 March 2015, you:

1. Were unable to consistently work as an autonomous Band 5 Physiotherapist, in that you:

a) required a sustained level of guidance whilst working with patients;

b) were unable to consistently hold a full case load as expected of a Band 5 Physiotherapist.

2. Did not consistently maintain accurate and/or adequate and/or contemporaneous records in that you:

a) between June 2012 and December 2012, did not consistently provide sufficient information in patient notes;

b) between June 2012 and December 2012, produced Patient notes which lacked subjective and/or objective measures;

c) between June 2012 and December 2012, did not consistently record subjective markers;

d) on or around February 2013, in relation to Patient C, did not document:

i. which hip had been mobilised;

ii. your reasoning as to why the hip mobilisations were performed on Patient C;

iii. which specific mobilisation was performed.

e) on or around October 2013, required consistent reminding and/or prompting to maintain patient records;

f) on or around June 2014, completed a manual assessment of neck accessory movements on Patient E and did not record:

i. which joints had been palpated;

ii. the grade of palpation;

iii. what range of accessory movement issue was found.

g) on or around October 2014, you:

i. were unable to accurately record assessment and treatment sessions for patients;

ii. omitted information from records including gait pattern and/or hands on treatment.

h) on or around December 2014, did not consistently record evidence of clinical reasoning on patient records.

i) In or around October/November 2013, in relation to Patient D your records did not identify:

i. the exercises performed in relation to the patient;

ii. your clinical reasoning for the insertion of the nasophararyngeal airway (NPA);

iii. any treatment/management plan in respect of the NPA.

3. Demonstrated poor assessments and/or treatment to patients, in that you:

a) [not proved];

b) [not proved];

c) did not consistently read patient notes prior to treating the patient;

d) did not consistently provide appropriate treatment to patients;

e) did not consistently provide reasoning for:

i. [not proved];

ii. straight leg raise;

iii. leg length;

iv. gait analysis.

f) did not consistently form hypotheses from the assessments you conducted on patients;

g) on or around August 2013, you were unable to and/or could not demonstrate measuring range of shoulder movement;

h) on an unknown date, during your rotation at the Royal Orthopaedic Hospital, you inaccurately measured a patient’s leg length following hip surgery;

i) on or around 15 August 2012, during your rotation at the Royal Orthopaedic Hospital, you did not ask a patient had had a microdisectomy about red flags including:

i. Coughing;

ii. Sneezing;

iii. Bladder function; and/or

iv. Bowel function.

4. Did not consistently demonstrate adequate clinical reasoning:

a) in relation to treatment planning;

b) in relation to modification of the patient’s treatment;

c) in that during a discussion with your colleague in relation to Patient B, you were unable to independently provide clinical reasoning for applying manual resistance as part of the patient assessment conducted on 4 January 2013;

d) in that on or around 24 October, when completing the gym transfer form in relation to Patient H, you did not record the patient’s diagnosis and/or treated Patient H without knowing their diagnosis.

e) on or around June 2014, in relation to patient E, you were unable to provide clinical reasoning for your manual assessment of neck accessory movements on Patient E;

f) on or around October 2014, you were unable to clinically reason why a patient may be presenting with a deficit.

5. Demonstrated poor patient safety, in that you:

a) on or around August 2012, prescribed excises to patients in a hip class without checking the patients’ conditions and/or the appropriate precautions;

b) on or around 14 September 2012, in respect of Patient A, you:

i. did not consider and/or demonstrate clinical reasoning in respect of which leg the patient should lead with on climbing stairs;

ii. did not provide the patient with specific instruction prior to asking them to climb the stairs;

iii. [not proved].

c) [not proved];

d) on or around 4 January 2013, in relation Patient B, who had had rotator cuff repair surgery, you applied manual resistance for strength;

e) [not proved]:

i. [not proved];

ii. [not proved];

iii. [not proved];

f) on or around October 2014, conducted physiotherapy exercise with Patient F which was unsafe;

g) on 17 October 2014, requested Colleague A’s assistance to move Patient G on and/or off the floor but proceeded to move Patient G despite the risk;

h) on an unknown date, during your rotation at the Royal Orthopaedic Hospital, you asked a patient with a hip replacement to use the leg press machine;

i) on or around 24 August 2012, you placed a patient who had had a microdisectomy into a slump position

j) [not proved]:

i. [not proved];

ii. [not proved].

6. [Not proved].

7. Did not consistently communicate effectively with patients and/or colleagues in that you:

a) [not proved];

b) [not proved]:

i. [not proved];

ii. [not proved];

iii. [not proved];

c) on or around 27 May 2014, were aggressive towards Colleague A and Colleague B when they discussed discharge planning with you.

8. Did not consistently demonstrate adequate time management.

9. The matters set out in paragraphs 1 – 8 constitute lack of competence.

10. By reason of your lack of competence your fitness to practise is impaired.

Finding

Preliminary Matters

Proceeding in private

1. At the beginning of the hearing the Panel considered an application by Ms Sampson for the HCPC who sought that any references to the Registrant’s health condition be heard in private. This was not opposed by Mr Stevens.

2. The Panel took into account the HCPTS Practice Note entitled “Conducting Hearings in Private” and accepted the advice of the Legal Assessor, on the open justice principle and the interests of justice. The Panel decided to allow the application and directed that those parts of the hearing that relate to the Registrant’s health condition be heard in private in order to protect the Registrant’s right to privacy in matters relating to his health.


Background

3. The Registrant qualified in 2009 and joined the University Hospitals Birmingham NHS Foundation Trust (“the Trust”) in a rotational role as a Band 5 Physiotherapist. Between 2009 and 2012, he worked in various different departments. In May 2012, he commenced a musculoskeletal rotation based in the physiotherapy gym at the Royal Orthopaedic Hospital (“ROH”).

4. By the end of June 2012, concerns had been raised about the Registrant, including in relation to the accuracy of patient assessments. Some patients were said to be unhappy with the treatment they had received from him. These issues were raised with the Registrant and he responded by saying that he was having trouble using the record system at the ROH. In July 2012, he sent an e-mail to CE, Head of Physiotherapy at the Trust, indicating that he felt he was struggling at ROH. After discussion of the concerns, the Registrant was told that his performance would be managed using the Poor Performance Procedure (“PPP”).

5. The Registrant continued to work for the Trust and concerns continued to be expressed. In February 2013, he was moved from Stage 1 to Stage 2 of the PPP on the basis that he had not met the standards set for him. In March 2014, he moved to the neuro-outpatients service. Concerns continued such that in December 2014, it was recommended that he move to Stage 3 of the PPP.

6. On 15 December 2014, the Registrant commenced long-term sick leave. He did not return to work and resigned from the Trust in March 2015. The Trust had serious concerns about the safety implications of some of his practice and considered that he required a high level of support which was not sustainable. The Registrant complained that he was being “micromanaged” and that this was increasing his stress levels.

7. In December 2015, the Registrant secured an honorary contract with the Birmingham Community Healthcare NHS Trust (“the Community Trust”) allowing him to undertake unpaid voluntary work at Moseley Hall Hospital as a Band 5 Physiotherapist, but subject to the interim conditions of practice imposed under the interim order in place at the time. He began this work in January 2016, working seven hours a day on four days a week. The Registrant maintained this voluntary employment up to the time of the substantive hearing in 2017. There were periods of absence due to ill health. By the time of the substantive hearing, he had been in the voluntary post for about 17 months. The feedback from the Community Trust was positive.


Procedural history

The substantive hearing in 2016 and 2017

8. The Allegation was heard by a Conduct and Competence panel of the HCPC (the substantive hearing panel) over 14 days between 5 December 2016 and 16 June 2017. The substantive hearing panel found that the Registrant had failed to demonstrate proper clinical reasoning and to keep accurate clinical records. He had also failed to communicate accurate clinical records. It also found there was a worrying lack of improvement despite the extensive measures taken by the Trust.

9. The substantive hearing panel found the Registrant’s fitness to practise was impaired and found that the issues of extensive lack of competence had not been remedied. This gave rise to a risk to patient safety and/or inappropriate treatment. The substantive hearing panel also found that the Registrant demonstrated a worrying lack of insight into his failings. It found that the Registrant showed a tendency to blame others for his situation rather than taking responsibility for his lack of competence. He failed to recognise that as an autonomous practitioner he needed to identify and manage these issues. The substantive hearing panel concluded that there was a current risk of harm to the public. The substantive hearing panel imposed a Suspension Order for a period of 12 months.

10. The Registrant appealed the decision of the substantive hearing panel. The High Court allowed the appeal in part and remitted the case to another panel to impose a Conditions of Practice Order. In her judgement, the Judge made the following observation:

“In my judgement the Panel overlooked the reality of what had happened since 2015. It had been considered appropriate to make the Appellant subject to a Conditions of Practice Order in the interim period. He had shown extraordinary commitment to his voluntary placement, keeping up a significant number of hours per week in addition to having a paid job to meet his living expenses. He had complied with the conditions imposed, and in that context, had received genuinely positive references. There was no suggestion that public protection had not been maintained. Although the Appellant continued to lack insight into his lack of competence, he had clearly demonstrated a willingness to improve his clinical skills and had taken constructive criticism on board.

I also consider it wrong to say that conditions that were workable, practicable and verifiable could not be formulated. Conditions which were considered to offer public protection had been formulated at the interim stage and it was clear that progress had been made under such conditions”.

11. The case was referred back to a new panel to consider sanction. That panel sat on 22 January 2018 (the 2018 panel) and it imposed a Conditions of Practice Order for a period of 18 months. The 2018 panel highlighted competency concerns in respect of clinical reasoning and maintaining accurate clinical records. It observed that the process of remedying a lack of competence in basic areas of practice was likely to take a period of time and to be incremental. The conditions imposed were designed to protect the public in monitoring the remediation process, and to constructively assist the Registrant to demonstrate to a reviewing panel that he had remedied the lack of competence.

12. The 2018 panel also decided that the Registrant should work only at Band 5 level or its equivalent because there was a risk to the public if the Registrant were to undertake a role which required him to take on responsibilities in addition to those which are standard to an autonomous practitioner at Band 5.

13. That panel also decided that an 18-month period would enable sufficient time for the Registrant to progress to a paid position and to be able to provide evidence of his competency in paid employment to a review panel. The terms of the Conditions of Practice Order imposed by the 2018 panel were:

The Registrar is directed to annotate the Register to show that, for a period of 18 months from the date this Order comes into effect, you, Kieran McDermott, must comply with the following conditions of practice:

1. If you take up work as a Physiotherapist you must inform the HCPC promptly and you must confine your professional practice to a Band 5 position (or an equivalent level if you are working in the private sector).

2. You must place yourself and remain under the supervision of an HCPC registered Physiotherapist of Band 6 or above ( or an equivalent level if you are working in the private sector) and advise the HCPC of that person’s name within 28 days from the date you commence work as a Physiotherapist.

3. You must work with a named supervisor to formulate a Personal Development Plan designed to address the following areas of your practice:

(a) clinical reasoning; and

(b) maintaining accurate clinical records.

4. You must forward a copy of your Personal Development Plan to the HCPC within two months from the date you commence work as a Physiotherapist.

5. You must allow a named supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.

6. You must obtain a report from a named supervisor and submit the report to the HCPC within three months from the date you commence work as a Physiotherapist. Thereafter you must obtain and submit supervisor reports on a three monthly basis. The reports should address:

(a) your clinical reasoning

(b) your maintenance of accurate clinical records in line with HCPC standards; and

(c) your progress towards achieving the aims set out in your Personal Development Plan.

7. You must inform the following parties that your registration is subject to these conditions:

A. any organisation or person employing or contracting with you to undertake professional work;

B. any agency you are registered with or apply to be registered with (at the time of application); and

C. any prospective employer (at the time of your application).

8. You will be responsible for meeting any and all costs associated with complying with these conditions.

15. That Order came into effect on 19 February 2018 and was the subject of a first review on 7 August 2019.

The first review on 7 August 2019

16. The first reviewing panel found that the Registrant’s fitness to practise remained impaired by reason of his lack of competence. It found that both the public and the personal components of impairment were engaged and identified the following concerns:

• “In the assessment reports and the clinical supervision records concerns with the Registrant’s practice in all of the three areas which the final hearing had considered required remediation were identified. In relation to clinical reasoning, it was noted that his assessment lacked depth and his clinical documentation lacked specificity and he required prompting to assess a patient fully. Whilst the Registrant’s record keeping had improved, a record of clinical supervision suggests he still required prompts and supervision to ensure it was kept up-to-date. Further, there is evidence that some of the Registrant’s clinical records lacked the degree of clarity required to identify clearly outcomes of treatment and plan. With regard to communication with colleagues the formal assessment from the Registrant’s first rotation identifies a need for the Registrant to communicate to others better.”

• “…there remain residual areas of concern in which the Registrant is failing to demonstrate that he is safe to work without some form of supervision and support. The Panel has therefore concluded that the Registrant is not yet able to work as an autonomous practitioner and that there was still a need for some form of restriction.”

17. The first reviewing panel extended the Conditions of Practice Order for a further 12 months and made the following findings:

“the current conditions are providing the appropriate level of service user protection and there is nothing further that the Panel would wish to add nor to remove. In this respect that Panel noted that the Registrant was able and willing to comply with the conditions and he has the ongoing support of his employer.”

The second review on 9 July 2020

18. That order was reviewed by a second reviewing panel on 9 July 2020. The second reviewing panel found that the Registrant’s fitness to practise remained impaired by reason of his lack of competence. It found that both the public and the personal components of impairment were engaged. It found that the Registrant was not safe to practise unrestricted given his current impairment and the public interest required that he should not be in a position to practise unrestricted.

19. It accepted the evidence that he had performed to a satisfactory standard, “completing his competencies at an acceptable pace, working through objectives at a level [his supervisor] would expect.”

20. However, the second reviewing panel also accepted the evidence of the Registrant’s supervisor on a placement he had begun on 15 January 2020 that, despite significant support, “[the Registrant] does not perform at the level expected of a Band 5 Physiotherapist. I remain concerned about the accuracy of his documentation, the safety and accuracy of his clinical reasoning, and his ability to carry a clinical caseload. He demonstrates a lack of insight into the areas he continues to require support in, struggles to respond positively to feedback given and whilst I recognise that he is keen to succeed, he has not demonstrated sustained improvement despite the significant support provided. In order to support [the Registrant] we have commenced supervision against the trust capability policy stage 1.”

21. The second reviewing panel found that “the Registrant has not demonstrated sustained improvement despite the significant support provided and the public protection concerns highlighted”, and it imposed the following conditions of practice:

1. If you take up work as a Physiotherapist you must inform the HCPC promptly and you must confine your professional practice to a Band 5 position (or an equivalent level if you are working in the private sector).

2. At all times that you are working as a Physiotherapist you must be directly supervised by another HCPC registered healthcare professional of Band 6 or above.

3. You must place yourself and remain under the supervision of a workplace supervisor who is an HCPC registered Physiotherapist of Band 6 or above (or an equivalent level if you are working in the private sector) and advise the HCPC of that person’s name within 28 days from the date you commence work as a Physiotherapist. You must attend upon that supervisor for supervisory meetings at least every two weeks and follow their advice and recommendations.

4. You must work with a named supervisor to formulate/maintain a Personal Development Plan designed to address the following areas of your practice:

(a) clinical reasoning; and

(b) maintaining accurate clinical records.

5. If you commence work as a Physiotherapist with a new employer, you must forward a copy of any new Personal Development Plan to the HCPC within two months from the date you commence work.

6. You must allow a named supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.

7. You must obtain a report from a named supervisor and submit the report to the HCPC within three months from the date you commence work as a Physiotherapist. Thereafter you must obtain and submit supervisor reports on a three-monthly basis. The reports should address:

(a) your clinical reasoning

(b) your maintenance of accurate clinical records in line with HCPC standards; and

(c) your progress towards achieving the aims set out in your Personal Development Plan.

8. You must inform the following parties that your registration is subject to these conditions:

(a) any organisation or person employing or contracting with you to undertake professional work;

(b) any agency you are registered with or apply to be registered with (at the time of application); and

(c) any prospective employer (at the time of your application).

9. You will be responsible for meeting any and all costs associated with complying with these conditions.

The third review on 20 January 2021

22. At the third review the panel had before it documents which summarised the Registrant’s current fitness to practice and the HCPC’s main concerns including:

• The decisions of the previous panels;

• A supervisor’s report dated 21 October 2020 written by the Registrant’s clinical supervisor, SP, a Band 7 Physiotherapist;

• A second supervisor’s report, written by SP and dated 13 January 2021;

• Two reports from Professor DML, a HCPC-registered Practitioner Psychologist;

• The Registrant’s statement, in which he outlined his position and his plans for the future.

23. The panel was advised at the third review that the Registrant had continued to work as a Band 5 Physiotherapist at the Sandwell General Hospital (“SGH”) in Birmingham, where he had been supervised in accordance not only with his HCPC Conditions of Practice Order, but also stage 1 of the SGH Capability policy.

24. That panel accepted that the Registrant’s previous rotations between April 2019 and January 2020 had been largely satisfactory. However, his latest rotation, which commenced within intermediate care on 15 January 2020, had given rise to significant concerns.

25. That panel noted the following limited, improvements in the Registrant’s performance:

• He had “continued to maintain his consistent ability to contribute accurately to board round. He continues to attend board round independently with 1 session every 2 weeks being observed by a senior therapist. [The Registrant] continues to utilise his own self- made crib sheet to support with information gathering prior to and during the meeting. [The Registrant] should continue to utilise this strategy in order to maintain consistency with contributing to the meeting.”

• “In some circumstances, [the Registrant] is able to demonstrate good clinical reasoning. [The Registrant] has improved in his confidence to ask for support and guidance from seniors when unsure of how to progress a particular patient.”

• “At times [the Registrant] is able to formulate an appropriate treatment session and plan. However, on other occasions he continues to require support to consider what therapy intervention is required for patients in order to progress and work towards their goals.”

26. That panel took note of the serious concerns raised about the Registrant’s communication and teamwork, clinical reasoning, and treatment and discharge planning. It took note of the finding that his improvements were not consistent. It took particular note of the following summary in his supervisor, SP’s, report:

“I remain concerned about the accuracy of his documentation, the safety and accuracy of his clinical reasoning, and his ability to carry a clinical caseload. [The Registrant] does not appear to readily identify the impact of his behaviour on others whether that is staff or patients. He demonstrates a lack of insight into the areas he continues to require support in, struggles to respond positively to feedback given and whilst I recognise that he is keen to succeed, he has not demonstrated sustained improvement despite the significant support provided.”

27. That panel heard evidence from the Registrant in which he told that panel that he had performed satisfactorily in two placements.  He told that panel that between April and July 2019 he had been on rotation in the acute stroke unit team and his competencies were scored appropriately for a return to practice as a Band 5. The Registrant told that panel that he had been on a rotation with trauma and orthopaedics between July 2019 and January 2020 and his supervisor had signed him off as competent in all his competencies at either level three (competent) or four (competent with proficiency) appropriately for a return to practice as a Band 5.

28. The Registrant told that panel that he had a more difficult working relationship with his supervisor when he moved to the intermediate care rotation. He told the panel that the record-keeping system was more difficult to operate and he had not been allowed to use a dictaphone clinically until 7 December 2020. He told the panel of the difficulties he had encountered. He also gave evidence of the steps he had taken to overcome.

29. The Registrant at the third review told the panel that he had again contacted Professor DML. He pointed out the report he had obtained from Professor DML and told the panel of his continued efforts to find solutions. The Registrant also dealt with the matters highlighted by his supervisor in her report. He acknowledged that there had been a period when he was stressed with the capability process and this had impacted on the way he had communicated with colleagues. He told that panel that he aimed to make a good impression in future and develop strong working relationships when he moved to a new team.

30. The Registrant at the third review accepted that he was not currently meeting the standards expected of a Band 5 Physiotherapist. He believed that the current level of supervision was sustainable over the next year, which would include two further rotations. He believed that, with reasonable adjustments, he would be able to handle the current workload without supervision. He told the Panel that he was developing with the help of reasonable adjustments and was “just at the cusp of making them work well”. Nevertheless, he accepted that he needed the current level of supervision to embed the reasonable adjustments.

31. That panel accepted that the Registrant had made improvements in some areas and had developed strategies to make further progress in the future. It found that he has developed further insight into the difficulties he faces and the strategies he must adopt to overcome them. It found that there were still areas of his practice which fell significantly below the standard expected of a Band 5 Physiotherapist, and it found that these were areas of importance which impacted on patient safety, so that the Registrant could not practice safely without supervision.

32. That panel also found that it would be failing to uphold proper standards for the profession and maintain public confidence in the profession if it allowed the Registrant to return to unrestricted practice before these matters were resolved.  It concluded that, with the personal and public interest components in mind, the Registrant's fitness to practise remained currently impaired, and there was still a significant risk of harm to the public and the wider public interest if the panel did not make a finding of impairment.

33. The panel at the third review found a continuing risk of harm was presented by the Registrant. It considered that the Registrant had made some improvement and that his employers were still able to supervise him in a way that protected the public whilst giving him a chance to improve his performance. That panel had regard to the reasonable adjustments that were being put in place for the Registrant and which he had not yet had sufficient opportunity to absorb and use to the full.

34. That panel accepted that a further period of time was necessary to give the Registrant a fair opportunity to use the reasonable adjustments and to improve his performance. For these reasons, that panel decided that it would impose a further varied period of conditions of practice. It decided that a period of nine months would give the Registrant an opportunity to complete the whole of his current rotation and progress through a second rotation. That panel decided that this would give him a fair opportunity while sending a clear message that his performance had to improve within a reasonable time if a reviewing panel are not to be driven to the conclusion that a Striking Off Order is the only sanction available to it.

35. Having read the reports, that panel was satisfied that it was essential that the Registrant remain with his current employer to ensure that he receives the support he needs under the SGH Capability Policy, and so that the public continues to be protected. It varied the Conditions of Practice Order to ensure that the Registrant remains with his current employer during the period of the Order. That panel therefore made some minor changes and varied the Conditions of Practice Order and extended it for a period of 9 months from 19 February 2021. Direct supervision and reports remained a requirement of the conditions.

Fourth Substantive Order Review on 6 October 2021 and 10 December 2021

36. Ms Sampson summarised the background and procedural history of the case. This is the fourth review. The Panel was provided with a bundle of documents which included two reports from the Registrant’s supervisors dated 13 May 2021 and 21 August 2021, and a witness statement and reflections from the Registrant. It also contained further reports on the Registrant’s health issues. The Registrant gave evidence and referred to and adopted his witness statement.

37. The Registrant told the Panel that despite the witness statement his period of sick leave ended not in July, but when he returned to work on 2 August 2021, having begun on 17 May 2021. He said he had been overwhelmed by the process, the work dynamic and he had been stressed. OH had recommended 6 weeks phased return to work in August 2021 and after 6 weeks he had gone from three half to three full days a week.

38. The Registrant said that his phased return to work had continued into his next rotation into respiratory. He said he has been on usual working hours for about a week. The Registrant said he now felt much better.  He said that a stakeholder meeting had also been helpful. He explained that his team had not all known about the current HCPC case and he had asked that all Band 6 and 7 colleagues know about his case. His current supervisor had said that the lack of disclosure to his previous supervisors had been a problem.  The Registrant said this meant he was less stressed as his colleagues now know about his issues and need for reasonable adjustments. 

39. The Registrant said he had been given time to shadow the new team and was finding that using his dictaphone was really helpful. He said that reasonable adjustments were being put in place, but were not yet fully in place. He said that many reasonable adjustments were still to be completed. For example, he said that one of the adjustments he needed was a software package that was compatible with his needs. His required dictation software did not work in the current system and IT were looking at work arounds; and he said he was to get a more powerful laptop from his employer to assist.

40. The Registrant said he had developed a respiratory assessment format and structure to assist him. He said he has also been using a white board to note his observations, all in line with the suggestions from Professor McLaughlin (DML). This was to reflect concerns raised about this aspect of his practice.  He said he recognised the concerns raised and was taking steps to deal with those and demonstrate safe clinical practice. He said he was keen to be open with colleagues about his issues.

41. In cross examination, the Registrant said with regard to the use of the dictaphone, that the problems with its use had only occurred in one of his previous rotations and said he was now more familiar with using the dictaphone. He said he could use it now without looking at it. He said that he accepted the current assessment of his supervisors that he was not currently meeting the requirements of a Band 5 Physiotherapist. He said the current level of supervision was challenging but it was working. He said joint working was an area where he struggled, but there were discussions underway to decide before the appointment who was responsible for what decisions.

42. The Registrant said that once the reasonable adjustments were in place he did not consider he would need the same level of support if he considered his practice was not impaired. The supervisor had expressed some concerns about clinical reasoning and he said he now had mind-mapping software to assist him. This software was now on his work laptop and he said that was a strategy that was working along with the use of the dictaphone. 

43. The Registrant referred to his mapping strategies which he said were in line with the advice he got from DML.  He said he also used a white board to record his observations, but he accepted that his approach was a work in progress. His supervisor had noted his motivation had reduced and the Registrant said that was at a point where he was stressed and tired and was about to have time off work. He was working with his GP and said he felt well supported.

44. The Registrant told the Panel about his self-directed study and his learning around ITU where he works as part of his rotation. He said he was being as pro-active as possible and was building his mind maps to help him learn. He kept them on his laptop and can refer to them at work.

45. The Registrant said that he wanted to keep his career and that he would want a further 6 or 9 months of conditions of practice to allow for all his reasonable adjustments to take effect.

46. The Registrant told the Panel about his reflections on taking social histories from patients following concerns about that aspect of his practice expressed by his supervisor. He was taken by the Panel to the supervision report in May 2021 around concerns about putting knowledge into practice.  He told the Panel that preparation was key and use of the white board assisted him.  He said when learning new skills he had decided that he should let his supervisor take the lead so that he can focus on acquiring the new skill. He knew he had to be clear with colleagues about his approach and focus. He said that he considered that the reasonable adjustments would assist him, especially the “read & write” software and that would help him prepare a treatment plan. He said he was aware of the need for consistency.   He said he realised that his supervisors had found the process stressful and he understood that, and hoped that his stress had not impacted on his patients.


Closing Submissions

HCPC

47. Ms Sampson submitted the Panel should consider what has changed since the last review.  She referred to the relevant case law about the proper approach to review. The HCPC acknowledges the Registrant’s compliance with the conditions and his considerable efforts to address the concerns about his fitness to practice. She submitted that the Panel has a difficult decision to make. The Registrant has been honest and has set out the steps he has taken to improve his practice.

48. Ms Sampson submitted that the 13 May and August 2021 supervision reports are such that the Registrant’s fitness to practice remains seriously impaired. He is unable to perform as a Band 5 Physiotherapist. He is unable to cope with a full case load, and has failed to make acceptable progress. His supervisor also states that he  struggles to accept suggestions for improvement.  The Registrant has demonstrated inconsistent  team work  and communication skills and this has created an element of risk to patients. His progress is said to have been inconsistent across a number of crucial practice issues, which include fundamental tenets of the profession.

49. There remain significant concerns about his clinical reasoning, this is the biggest concern expressed by his supervisor who has significant concerns about the Registrant’s ability to practice safely. She has said there has been no improvement in the period covered by her report. A lack of accountability by the Registrant is also a concern raised in the supervision report. She states that “The Registrant continues to cause great concern” with regard to his ability to practice safely. His supervisor also expresses concerns about the impact on colleagues which she states is real and significant. She states that the software available would not appear to be able to assist in the real concerns about his clinical reasoning.

50. Ms Sampson referred the Panel to its powers. The options are to extend the Conditions of Practice or to Strike Off. Progress has been made but the HCPC submitted that the Registrant remains unable to practice safely without direct supervision.  He continues to present a real risk to patient safety. She referred to the HCPC Sanctions Policy and the advice on Striking Off. The Registrant has now been subject to a Panel order for over two years. She submitted there was no evidence of sustained and consistent improvement and he has failed to address his lack of competence over a considerable period of time.  She invited the Panel to consider a Striking Off Order or to further extend the Conditions for 6 months.

Submissions for the Registrant

51. Mr Stevens stated that there is no challenge to a finding that the Registrant’s fitness to practice remains currently impaired. He has accepted that in his own evidence,  which Mr Stevens submitted shows that the Registrant has insight.  He submitted that the May and August 2021 supervision reports relate to the previous period of practice, not the current period. This period includes a lengthy absence from work.

52. Mr Stevens submitted that the period covered by the supervision report related to a time of difficulty for the Registrant. Mr Stevens submitted that things had now moved on and the Panel can see that the Registrant has persistently and fully engaged with the process and he has shown reflection and motivation to improve. He has not sought to be defensive or negative and has “owned” his failings. Mr Stevens submitted that things have changed based on the Panel’s assessment of the Registrant today. He was committed to change. 

53. Mr Stevens submitted that the Registrant was now in a new rotation with a new openness with colleagues, the lack of which had previously had a negative impact on his performance. He said the Registrant has a new frame of mind and he has deployed new coping methods, and there is also an ongoing implementation of reasonable adjustments.

54. Mr Stevens submitted that as to sanction, the proportionate and appropriate response is to extend the current period of conditions. He submitted that the conditions required to be in place for a reasonable time to allow the Registrant to demonstrate improved practice, as stated by the previous reviewing panel, who decided to extend the order for nine months. The Registrant has not been in practice for much of the nine month period due to his absence and his phased return to work.

55. Mr Stevens submitted that in these circumstances that a member of the public would not consider that a Striking Off Order was appropriate as the Registrant has only worked full time for some 3 months and had not yet had the time to prove he can practice safely. Formal supervision is to commence on the 12 October 2021 and his employer is committed to supporting him. Mr Stevens submitted that there is reason to believe that the Registrant is capable of improving his practice and that he ought to be given a further period of 6 - 9 months of Conditions of Practice to do so. That would cover the remaining period of his current rotation.


Decision to Adjourn

56. Due to the lateness of the hour the Panel had to adjourn this review hearing of the Substantive Conditions of Practice Order until 10 December 2021. It noted that the current Conditions of Practice Order is due to expire on 19 November 2021.

57. The Panel accepted legal advice and heard submissions from both parties.  The Panel decided, with the agreement of Ms Sampson and Mr Stevens, that in these circumstances it would be fair, appropriate and expedient to extend the current Conditions of Practice Order under the powers in Article 30 (1) (a) until  10 December 2021, that being the agreed date upon which the Panel will reconvene to conclude its deliberations. For the avoidance of doubt the current Conditions Of Practice Order, with no changes,  is extended from  its due expiry date on 19 November 2021 until the adjourned review hearing 10 December 2021. 


Decision

58. The Panel accepted  the advice of the Legal Assessor who reminded the Panel of its powers under Article 30(1) of the Health Professions Order 2001 and of the importance of reviewing the Registrant’s current fitness to practice. If the Panel makes a finding of current impairment it must then consider sanction and have in mind the HCPC Sanctions Policy. It should  be mindful of the need to act proportionately and to apply the least restrictive sanction in order to protect the public and the wider public interest.

59. The Legal Assessor  advised the Panel of the guidance about review in Abrahaem v General Medical Council 2008 EWHC 183 which states:

• The panel should address whether fitness to practice is impaired before considering conditions.

• Consider whether all the concerns raised in the original finding of impairment have been sufficiently addressed to the Panel's satisfaction.

• In practical terms there is a persuasive burden on the practitioner at a review to demonstrate that he or she has fully acknowledged why past professional performance was deficient and through insight, application, education, supervision or other achievement sufficiently addressed the past impairment.

60. The Panel had regard to the over-arching objectives of the HCPC, and it was mindful of the authoritative guidance in CHRE v NMC and Grant [2011] EWHC 927 (Admin). This stressed the central importance of considering the Registrant’s insight, remediation and the assessment of the risk of repetition. That case recommended the following approach to assessing fitness to practice:

"Do our findings of fact in respect of the (registrant’s) misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:

a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

b. has in the past brought and/or is liable in the future to bring the …..profession into disrepute; and/or

c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the … profession;


Impairment

61. The Panel first considered whether the Registrant’s fitness to practise remains impaired. It bore in mind the original findings of impairment and it first considered whether the Registrant had demonstrated that he had taken sufficient steps to remedy the concerns of the previous panels.

62. The Panel noted that current impairment is not disputed. The supervisor’s reports raise ongoing, wide-ranging and serious concerns about the Registrant’s ability to practice safely and effectively.  Those concerns are related to core skills. The supervisor expressed particular concern about the Registrant’s ability to conduct competent clinical assessments.

63. The Panel took account of the detailed and comprehensive supervision report from 13 May 2021, and the latest report dated August 2021. The content of these reports is not disputed, being the reports required by the current conditions requiring direct supervision.

64. In the May 2021 report, Ms CJ, his supervisor, makes some positive observations about the Registrant’s practice. She states that he has made some improvement in treatment and discharge planning However, serious concerns remain in this and other areas of his practice.

65. In the section on communication and team-work she states:

“I find he can be so focused on his pre-planned intention for an interaction, that he misses important information and does not respond to the patients’ verbal and non- verbal communication or cues. This can lead to ineffective sessions and at times be damaging to the relationship with the patient. It is this lack of patient awareness and his inconsistency that are most concerning and introduce an element of risk to his practice.”

68.  In the section on clinical reasoning she states:

“Kieran is able to demonstrate good clinical reasoning in some circumstances, and the most effective examples of this are when done verbally, outside of patient - facing interventions and after having time to reflect. It does, however, remain my biggest  concern in his clinical practice, as he frequently cannot apply this reasoning to his actual  interventions with patients. Whilst his other areas of practice  also require improvement, these can be accommodated and supported, but it is his clinical reasoning that leaves  me with significant concern around his ability to perform his role safely and effectively.  This has been well communicated with Kieran and action plans made to support him in  better demonstrating this, but unfortunately has seen no improvement during the time  that this report relates to, in either his clinical practice or in his supervisions.

69. The supervisor goes on to set out in detail a number of instances of her concerns and concludes:

“I strongly feel that Kieran lacks the clinical reasoning ability to perform his role safely. This concerns me more than any other area discussed in this report, or in his objectives. I appreciate he is relatively new to the clinical area, but even with consideration of an adjustment period, he does not demonstrate the reasoning I would expect of a newly qualified physiotherapist or therapy assistant, and fails to consistently demonstrate transferable reasoning skills he would be expected to have gained in his previous rotations.

Unfortunately, and despite great effort and resource from our senior  team, I feel that he continues to require constant supervision and there have been numerous times when working with Kieran that a senior therapist has had to step in to ensure patient safety, within the time period that this report relates to.

Kieran demonstrates a good knowledge base but does not demonstrate that he can translate this into practice. Even in the things Kieran often does and reasons well  (for example, information gathering and assessment of range of movement), he still lacks consistency….

Whilst waiting for the outstanding software adjustments for Kieran has been very frustrating for all involved and we hope will be of benefit in other areas of his practice, I do not perceive a way that they could support in this area, and Kieran agrees with this  himself when we have discussed it previously. This is because this area of concern is not related to his interpretation or documentation of information prior to or following the therapy session (i.e. in reading, processing or documenting information ) but to how he responds to changes and ensures the safety and wellbeing of the patient in front of him in a given moment.”

70. Ms CJ concludes on the assessment of clinical need that:

“I am concerned that without direct supervision from a senior  therapist the safety of the patient could have been significantly compromised on multiple occasions, due to Kieran’s reduced insight into their immediate care needs. In instances where the patient does not present as unwell, I still feel Kieran can frequently miss important components identified in his assessment and therefore does not plan to act on these (such as the example given in the previous section where he missed an obviously antalgic gait and potential bony injury)”

71. In the documentation section she states:

“Even with his additional software to support, Kieran can often miss important  documentation. This has led to repetition of things such as gathering (or intending to) of social history which has already been completed. Kieran is inconsistent in managing our online caseload system and recording of time spent with patients, known as MPTL, despite multiple prompts to improve this. On some days he does do this well.

The sometimes inaccurate or incomplete content and, to a lesser extent, the length of time required both continue to provide significant concern with regards to Kieran’s documentation. Whilst we are happy to consider reasonable  adjustments to support with the length of time it takes Kieran to document his sessions, the over-riding safety concern identified is Kieran’s reported poor working memory which does not allow him to keep accurate records.

Some strategies, such as Dictaphone use, do help with this but these strategies are not always appropriate to use and do not compensate for or support with all issues. Sometimes Kieran can be told specifically what to document by his senior at the time of writing, and still not document this  effectively. I feel many instances of his poor documentation actually stem from his clinical reasoning abilities lacking, rather than his actual documentation abilities. I do not feel Kieran can either read a patient’s notes and make a plan, or subsequently document the therapy session, without these also being reviewed by his senior on every occasion.”

72. Ms CJ concludes in August 2021 in summary that:

“The capability process Kieran is under has continued from his previous rotation, as well as many recommendations that were embedded there to support Kieran. Unfortunately, no meaningful progress has been seen since his rotation to the Medicine Therapy Team, and the concerns that were previously identified still remain. This is despite significant adaptation, support and resource being given from both his direct supervisor and senior team, and the wider Trust. This can often be so demanding that it has a detrimental impact on support given to the rest of the team and our clinical efficiency and productivity, and therefore on the service provided to patients.”

73. The August 2021 report was briefer due largely to his absence from work. Ms CJ reports in detail on a concerning incident involving the Registrant. She reports that his actions had a significant negative impact on a patient and caused further concern around his clinical reasoning abilities.

74. Ms CJ concludes the August 2021 report stating:

As explained, there is little further to add from this time period, but I do feel from conversations held in supervision sessions and after reviewing patients in the week prior to Kieran’s absence that  he still has a concerning lack of insight into his current performance and competence in his current role. Kieran has since shared that when he feels under pressure he is aware he can be dismissive of concerns raised to him, which I can appreciate, but does unfortunately does not take away from Kieran presenting as not learning from or understanding the implication to patients of poor practice and safety concerns that are raised to him, such as the example above. We have discussed some strategies to try and improve reflective discussions in supervisions on Kieran’s return.”

75. These detailed supervision reports speak clearly to many, wide ranging deficiencies and serious concerns in core areas of the Registrant’s practice, not least in clinical reasoning. There is considerable evidence of a lack of consistent, meaningful progress despite extensive support and effort by his colleagues.

76. In all these circumstances, the Panel found that whilst the Registrant has some insight and has taken steps to try to remedy his practice he remains unable to practice safely and effectively.  The Panel concluded that he remains liable to, and has repeated, his deficiencies and has placed patients at unwarranted risk of harm. He is also liable to breach fundamental tenets of the profession, namely competency in his practice, particularly in clinical reasoning.  His actions are also likely to bring the profession into disrepute and to undermine public confidence in the profession. The  Panel concluded that the Registrant’s fitness to practise remains currently impaired on both the personal and public components.

Sanction

77. The Registrant has practiced for some three months under the current conditions. Prior to that he was subject to conditions of practice imposed by the 2018 panel on 22 January 2018 for 18 months. At that time that panel highlighted competency concerns in respect of clinical reasoning and maintaining accurate clinical records.

78. The substantive hearing panel, over three years ago, observed that the process of remedying a lack of competence in basic areas of practice was likely to take a period of time and to be incremental. The conditions that panel imposed were designed to protect the public in monitoring the remediation process, and to constructively assist the Registrant to demonstrate to a reviewing panel that he had remedied the lack of competence. At the first, second and third review the conditions were slightly varied but otherwise continued with supervision until the review today.

79. The Panel noted the serious concerns that continue to be expressed by his supervisor after more than three years of support and supervised practice. The Registrant is yet to show improvement in a wide range of core abilities and, despite support and supervision, is not yet able to practice safely and effectively.

80. The Panel took account that the Registrant has for over 9 years been subject to a level of supervision by his employers, under interim conditions and then under Conditions of Practice. Patient safety was compromised during that time by the Registrant’s actions, and there is little if any indication that the Registrant’s practice is improving and heading in the right direction. His recent supervisions express serious ongoing concerns about safety and consistency and refer to a lack of meaningful progress. Further concerning incidents compromising patient safety have arisen due to the Registrant’s actions as set out in the supervision reports.

81. The Panel are mindful that the Registrant has had only two weeks full time in his new rotation but in the previous rotation he was not able to cope and serious concerns arose. The Panel found that the Registrant had very limited insight into the impact of his actions on patients and on his colleagues. He said he “hoped” his patients had not been harmed where the evidence is that patients have in the past been harmed and their treatment compromised, most recently detailed in the August 2021 supervision report.

82. The Registrant has shown little recognition and acknowledgment of the impact of his conduct on his colleagues, on the reputation of the profession and on public confidence. The support process has had a serious impact on the Registrant’s colleagues who have provided a high level of support and supervision.

83. The Panel was mindful of the Registrant’s health issues. It was concerned that whilst reasonable adjustments may assist in some areas of his practice, such as documentation and planning, it is not clear what adjustments could be made to improve the serious concerns about his clinical reasoning. As expressed by his supervisor “I do not perceive a way that they could support in this area, and Kieran agrees with this  himself when we have discussed it previously. This is because this area of concern is not related to his interpretation or documentation of information prior to or following the therapy session …. but to how he responds to changes and ensures the safety and wellbeing of the patient in front of him in a given moment.”

84. The Panel shares those serious concerns. It has nothing before it to reassure it that any reasonable adjustments in respect of his health issues would address the persistent concerns about his competence, in particular his clinical reasoning and his ability to perform safely “in a given moment.” The Panel heard from the Registrant that further adjustments were planned and that he hoped they would assist him in his role.  However, the Panel has nothing to indicate how these further adjustments will remedy the deficiencies in the wide range of fundamental and core skills highlighted by the Registrant’s supervisors, to the extent that he will be able to practice safely and effectively without the substantial support and supervision he is currently receiving.  He continues to be unable to do so despite considerable support and direct supervision for over three years with the same supportive employer.

85. The nature and gravity of the concerns are such that the Panel could not, and were not invited to, consider any sanction less than continuing the current conditions of practice. Nothing less would be proportionate or appropriate.

86. The Panel concluded in light of the detailed concerns that continue to be expressed and the lack of meaningful progress after three years that a further period of conditions is no longer the appropriate and proportionate sanction.  It concluded that the Registrant has been given a fair and reasonable period of time in which to take steps to remedy his practice and to demonstrate he can practice safely and effectively.

87. The Registrant has been highly supported and supervised and reasonable adjustments have been made. The Panel regrets no meaningful progress has been achieved, despite the engagement demonstrated by the Registrant and what appear to be his best efforts, for which he is to be commended. However, the Panel has a duty to balance the Registrant’s interests against its responsibility to protect the public and maintain confidence in the profession.

88. Taking full account of all the circumstances the Panel considered that after almost a decade of attempts to enable the Registrant to practise safely and effectively a period of Suspension at this stage would serve no useful purpose. The Registrant would not be able to develop his skills and would be less likely to be competent at the end of any period of suspension. The Panel concluded that the Registrant would not be able to reach a point where he could practise safely.

89. It therefore considered a Striking Off Order. The Panel has found that the Registrant, although well engaged with this process, lacks insight into the impact of his conduct on patients, colleagues and the public interest in maintaining confidence in the profession. Despite all the support and supervision provided, the Registrant continues to be unable to resolve matters and remains impaired.

90. The public would expect any Registrant to be given a fair and reasonable opportunity to remedy his practice, and to be supported through that, including with reasonable adjustments where relevant.  The Panel has concluded that the Registrant has had that opportunity. He has had  good support for three years but multiple, serious deficiencies in his practice remain which show little, if any, sign of improving or resolving.  There has been no meaningful progress since the imposition of conditions of practice in January 2018. Public confidence in the profession would be undermined by once again continuing supportive conditions of practice that, after more than three years, are yet to produce any real improvement. 

91. The Panel therefore concluded that in all the circumstances of this case that at this point the proportionate and appropriate sanction is that of imposing a Striking Off Order.

 

Order

Order: That the Registrar is directed to strike the name of Mr Kieran McDermott from the Register.

Notes

This order will take effect from 10 December 2021.

Hearing History

History of Hearings for Mr Kieran Mcdermott

Date Panel Hearing type Outcomes / Status
10/12/2021 Conduct and Competence Committee Review Hearing Struck off
06/10/2021 Conduct and Competence Committee Review Hearing Conditions of Practice
20/01/2021 Conduct and Competence Committee Review Hearing Conditions of Practice
09/07/2020 Conduct and Competence Committee Review Hearing Conditions of Practice
07/08/2019 Conduct and Competence Committee Review Hearing Conditions of Practice
15/07/2019 Conduct and Competence Committee Review Hearing Adjourned
22/01/2018 Conduct and Competence Committee Final Hearing Conditions of Practice
12/06/2017 Conduct and Competence Committee Final Hearing Suspended