Mrs Helen J Stokes

Preliminary Matters
Service
1. The Registrant was served with notice of the hearing on 12 November 2021 by email.

2. The Panel accepted the advice of the Legal Assessor, and is satisfied that the Notice of Hearing had been served in accordance with Rule 3 of the Health and Care Professions Council (Procedure) Rules 2003 (the Rules).

Proceeding in the absence of the Registrant
3. The Panel then went on to consider whether to proceed in the absence of the Registrant pursuant to Rule 11 of the Conduct and Competence Committee Rules.

4. In doing so, it considered the submissions of Mr Foxsmith on behalf of the HCPC. He argued that the Panel should proceed to hear the case because the Registrant had not applied for an adjournment. Indeed, she had not communicated with the HCPTS at all. He argued that an adjournment would simply delay the hearing and that there was no indication that the Registrant would attend on a future date. There was, he submitted a public interest in this matter being dealt with in a timely manner.

5. The Panel accepted the advice of the Legal Assessor.

6. In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPC Practice Note entitled ‘Proceeding in the Absence of a Registrant’.

7. In reaching its decision the Panel considered the following; the Registrant was sent a reminder email by the Hearings Officer sent an email on 6 December 2021 to which the Registrant did not reply, there was no application to adjourn the hearing and there is a public interest in the matter proceeding this being a mandatory review of an existing order.

8. Having weighed the public interest in the expeditious disposal of this case the Panel decided to proceed in the Registrant’s absence.

Private Hearing

9. The papers contained references to the Registrant’s health and private life. There was an application by Mr Foxsmith for those parts of the hearing to be heard in private.

10. The Panel accepted the advice of the Legal Assessor that despite the presumption in favour of public hearings it could exercise their discretion to hear a case in private where it is in the interests of justice to do so or where the evidence relates to the private life of the Registrant.

11. Having balanced the competing interests, the Panel finds that it is in the interests of justice for those parts of the hearing relating to the Registrant’s private life to be held in private. This was consistent with the approach at the substantive hearing and the first review in December 2020.

Background
12. At the material time, the Registrant, who started work as a Physiotherapist in 2005, was working as a specialist Physiotherapist in the Falls Team at the North Somerset Community Partnership (NSCP). In about January 2017 the Registrant was injured in an accident.

13. The Registrant’s daughter, in clearing out the Registrant’s home after this accident, discovered notes and records relating to service users and colleagues that the Registrant had been keeping in her home. Some of the records dated back to a period in excess of 10 years.

14. The Registrant’s daughter returned the notes to the NSCP and, by a process of cross referral, it was discovered that they related to a total of 277 patients and the names of 418 patients that appeared within the documentation which also included the names of staff. There was no suggestion, however, that any patient had suffered harm.

15. On 6 October 2017, the NSCP referred the Registrant to the HCPC.

16. The Final Hearing of this case took place on 18-19 December 2019 in the absence of the Registrant. She had previously emailed the HCPC to state that she was unwell. She added in that same email that she had no desire to return to practice and wanted her name removed from the Register.

17. During the course of the investigation conducted by the NSCP the Registrant had admitted that she should not have kept the documents in her home. This acceptance formed part of the panel’s reasons in finding the factual particular (particular 1) proved.

18. In further finding misconduct that panel took the view that the failure of the Registrant to maintain confidentiality and keep the records safe betrayed a fundamental tenet of the role of a Physiotherapist.

19. Other reasons given for finding misconduct included the sheer volume of notes stored at the Registrant’s home and the extended time period over which they had accumulated.

20. A finding of impairment followed in relation both to the personal and public components. The Registrant had never, in the view of the panel, fully appreciated the gravity of the situation and the serious implications for service users and her employer as a result of these failures.

21. In dealing with the topic of impairment, although that panel determined that the Registrant’s actions were remediable, there was no actual evidence of any action taken by the Registrant to demonstrate that she had achieved remediation. Nor, the panel found, was there evidence that the Registrant had kept up to date with statutory, mandatory, annual training in relation to information governance since 2015. As such, the panel found that the Registrant’s insight, at best, was limited, that her failings had not been remediated and that the risk of repetition remained high.

22. In respect of the public component, the substantive panel’s view was that the volume of material recovered and the period of time involved was so significant that the Registrant’s misconduct was such that a finding of impairment was necessary in order to uphold professional standards and public confidence in the profession.

The First Review

23. On 24 November 2020 and prior to the first review on 8 December 2020, the Registrant engaged with the process. She emailed to the HCPC a reflective piece in which she accepted that her fitness to practise had been impaired at the material time. She stated her belief that all the issues that affected her then had now been resolved. She catalogued them and blamed her failure to return some of the documents to the workplace on the accident that she had suffered. She complained of being bullied at work and claimed a lack of support from her line manager. To this she added details of mental and physical problems that afflicted her at the time.

24. In the first review, she emphasised that all her problems now had been resolved. Furthermore, she provided information about her employment as a domiciliary care worker for Blue Sky Enabling (BSE) and as a live-in carer for Flexicare UK. Within this same document she declared that she had completed her care certificate and nearly finished a City and Guilds Level 3 qualification in Adult Social Care. Attached to this email was a BSE self-appraisal dated 29 January 2020.

25. The Registrant emailed a second reflective piece to the review panel in which she expressed remorse for her failings. She also amended her original proposal not to return to her profession and emphasised a newfound desire to work as a Disability Assessor.

26. The Registrant gave evidence on oath to the review Panel. She repeated details of the health problems she had been suffering from, but said these were now matters in the past. She expressed deep remorse and shame for her misconduct. She added that since she herself had been suffering the experiences of a patient she now possessed greater insight. She further told the Panel that she was now well aware of the importance of confidentiality and that she was blessed with a very supportive husband and a number of close friends. She did accept that she had done no Physiotherapy related CPD over the past 12 months, although she had read up on a number of topics.

27. However, the review panel noted that “……the Registrant is genuinely remorseful and ashamed of what she did. As against that, however the Panel could not ignore the aggravating factors that persist in this case. In dealing with the personal component the Panel shares the views of those of the previous panel in concluding that the Registrant has not demonstrated full insight yet and the risk of repetition continues to exist. Any plans she may have for her work future are unformulated. No outside references have been produced to the Panel. In relation to the public component, again this Panel agrees with what was previously said about the seriousness of the sheer volume of breaches of confidentiality that this case has exposed. Many of the documents wrongly stored at the Registrant’s home were mixed with other personal papers and the sheer number of years that this took place over was a pertinent factor to consider in this context. Thus, the Panel found that the Registrant’s fitness to practise was still impaired.”

Current review

28. The Panel considered all the material in this case and the submissions made by Mr Foxsmith. It accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note ‘Finding that Fitness to Practise is impaired’. The Panel considered all of the mitigating and aggravating factors identified by the previous panels.

29. Unfortunately, since the last review of the matter the Registrant has not engaged with the HCPTS. There has been no response to the review panel recommendations and indeed there has been no engagement from the Registrant since the December 2020 review. No outside references or evidence of current up to date training has been provided to this Panel. In the absence of any information as to what the Registrant may be currently doing, or what her plans are and how she has remedied her practice, this review Panel concludes that her fitness to practise remains impaired

30. In relation to the public component, this Panel agrees with what was previously said about the seriousness of the breaches of confidentiality in this case. Many of the documents wrongly stored at the Registrant’s home were mixed with other personal papers and the storage continued for a number of years. In the absence of any evidence from the Registrant the Panel also found that the Registrant’s fitness to practise remained impaired on public interest grounds.

31. The Panel considered what, if any, sanction to impose and referred to the HCPTS Sanction Policy. The taking of no further action, mediation or a caution order were not appropriate due to the serious nature of the findings.

32. In considering whether to impose a Conditions of Practice Order the Panel’s view was that this would not be appropriate, workable or measurable. The Registrant has not engaged since the December 2020 review and has not actioned any of the recommendations of the December 2020 review hearing and in those circumstances a conditions of practice order was unworkable.

33. In the circumstances, the Panel determined that the appropriate and proportionate sanction was to extend the existing order of suspension for a further period of 9 months thereby allowing the Registrant an opportunity to engage and to show she can develop real insight and remedied her failings. The Panel noted a number of practical steps that the Registrant could take, notwithstanding she has been out of practice, to assist a future Panel to determine whether her fitness to practise is no longer impaired and that she can practise safely as a physiotherapist if that is indeed her intention. These could include:

• Engagement with the regulatory process and her attendance at the next hearing

• Testimonial evidence from paid or unpaid employment

• Evidence of keeping up to date with her clinical skills

• A Personal Development Plan to inform her learning in relation to the requirements of standards 1,2,3 and 4 contained within the document entitled ‘Continuing Professional Development and your Registration’.

• Evidence/certificates of any relevant continuing professional development relating in particular to confidentiality and information governance.

34. The Panel noted the possibility of strike off in this case but determined that at this stage such an order would be disproportionate. However, if the Registrant continues to disengage it will be an option to be considered by the next reviewing Panel.

Order: The Registrar is directed to confirm the existing suspension order for a further period of 9 months.

This suspension order will be reviewed before its expiry.

History of Hearings for Mrs Helen J Stokes