Miss Anne G Shawyer
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While registered with the HCPC and employed by Somerset NHS Trust as an Occupational Therapist:
1) In relation to your assessment of Service User 1 on or around 20 January 2017, you:
a) Did not complete an adequate and/or comprehensive assessment.
b) Did not carry out an adequate assessment of risk.
c) Did not record a treatment plan following your assessment of Service User 1.
d) Did not record the assessment within the required timescale.
2) In relation to your assessment of Service User 2 on or around 12 January 2017 and/or the follow up visit that you made to Service User 2 on 19 January 2017, you:
a) Did not identify that Service User 2 presented with a shuffling gait and/or record a plan to address this issue.
b) Did not adequately identify and/or record all relevant problems.
c) Did not document an appropriate treatment plan.
d) Did not complete progress notes within the required timescale.
3) In relation to Service User 3, you:
a) Did not arrange a follow-up visit following Service User 3’s discharge from hospital on or around 3 January 2017.
b) Did not liaise with the Multi-Disciplinary Team prior to discharging Service User 3 from the Integrated Rehabilitation Service.
4) In relation to Service User 4, in or around November 2016 – January 2017, you:
a) Did not complete and/or record an adequate assessment;
b) Did not ensure that follow up actions were completed following a home visit on or around 09 December 2016.
c) Did not discuss and/or record discussing with Service User 4 his wish to self-discharge from hospital between 23 and 29 December 2016;
d) Did not carry out an assessment and/or record an assessment of Service User 4’s mental capacity and cognition.
5) In relation to your assessment of Service User 5 on or around 16 December 2016, you:
a) Did not complete and/or record the assessment to an acceptable standard.
b) Did not carry out and/or record an adequate assessment of risk.
c) Did not formulate an appropriate treatment plan and/or appropriate goals.
6) In relation to your assessment of Service User 6 on or around 13 May 2016 you:
a) Did not adequately complete and/or record an adequate assessment.
b) Did not adequately identify the risks to Service User 6 of sleeping in a chair.
c) Did not record a formal capacity assessment.
d) Provided equipment which was not suitable for and/or did not meet the needs of Service User 6.
7) In relation to your assessment of Service User 7 on or around 21 November 2016 you:
a) Did not complete an adequate assessment of needs.
b) [NOT PROVED]
8) In relation to Service User 8, in or around September – October 2016, you:
a) Ordered equipment without visiting Service User 8.
b) Ordered equipment without conducting an appropriate risk assessment;
c) Did not maintain adequate records;
d) Visited Service User 8’s home to assess his home environment, without carrying out and/or recording an assessment of Service User 8.
9) In relation to Service User 9, in or around December 2016 – January 2017, you:
a) Did not review Service User 9’s records before visiting on or around 22 December 2016.
b) Did not maintain accurate records.
c) Did not arrange a home visit after 29 December 2016 and/or did not record the clinical reasoning for this.
10) In relation to Service User 10, in or around December 2016 – January 2017, you:
a) Ordered equipment without assessing Service User 10.
b) Ordered incorrect and/or inappropriate equipment.
c) Did not record adequate clinical reasoning in respect of the equipment ordered for Service User.
d) Did not maintain adequate records.
e) Did not discuss and/or record discussing with a physiotherapist the concern about Service User 10’s left ankle.
11) The matters at paragraphs 1-10 above amount to a lack of competence.
12) By reason of your lack of competence your fitness to practise is impaired.
1. This case is listed for a mandatory review under Article 30(1) of the Health Professions Order 2001; as the first review of a Suspension Order for 12 months imposed on 6 February 2020.
2. The Registrant was notified by email dated 18 December 2020 that a Substantive Review was listed for hearing remotely today. The Registrant has not replied to the notice of hearing or to another email from the HCPTS Hearing officer, sent to her on 20 January 2021. The Panel found that there had been good service of the Notice of Hearing, in accordance with rule 3 of the Procedure Rules after hearing advice from the Legal Assessor.
Proceeding in the Absence of the Registrant
3. The HCPC has applied to have this matter heard in the Registrant’s absence, under Rule 11 of the Procedure Rules. The Panel considered the HCPTS Practice Note entitled Proceeding in the Absence of the Registrant and advice from the Legal Assessor.
4. Based upon the guidance in R v Jones  UKHL 5, R v Hayward  EWCA Crim 168, GMC v Adeogba and GMC v Visvardis  EWCA Civ 162; the Panel must consider all the circumstances of the case when considering a decision to proceed in a registrant’s absence, balancing fairness to the Registrant with fairness to the HCPC and the interests of the public. The Registrant has not engaged in the HCPC review process. She made representations to the previous panel but did not attend the final hearing.
5. The Panel has decided to proceed with this hearing in the Registrant’s absence for the following reasons: The Registrant has been served with the notice of the hearing, but has not responded to it. There has been no request for an adjournment and this is a mandatory review of a Suspension Order which expires on 5 March 2021. The Panel took the view that the Registrant has voluntarily waived her right to attend and chosen not to take part in the hearing today. Furthermore, as she has not engaged with the HCPC review process, the Panel considered that an adjournment would not secure her attendance on a future date. Therefore, it is in both the Registrant’s interest and in the public interest, for this hearing to proceed in her absence.
6. The Registrant was employed as a Band 5 Rehabilitation Occupational Therapist by Somerset Partnership NHS Foundation Trust (the Trust) from May 2015 to February 2017. She was initially based in the Bridgewater Community Hospital and in January 2017 was relocated to the Community Rehabilitation Team. The Registrant’s Line Manager, BL identified concerns relating to the Registrant’s practice from approximately 2015. The concerns related to the Registrant giving her colleagues incorrect information about patients, her clinical reasoning and record-keeping. These concerns were managed informally until a formal action plan was implemented in June 2016. The Registrant resigned from the Trust in April 2017, having completed only one of the seven elements of her formal action plan.
Substantive hearing from 03 to 06 February 2020
7. The Registrant did not attend the substantive hearing from 03 to 06 February 2020. In an email dated 13 August 2017 she had confirmed that she disagreed with the concerns raised. She felt that some issues stemmed from limited supervision or observation of her and inappropriately managed meetings early in her career. The panel heard evidence from three HCPC witnesses: HW (Team Manager in the Integrated Rehabilitation Team), BL (Band 6 Occupational Therapist) and HN (Band 6 Occupational Therapist); who were employed by the Trust at the relevant time. The panel found them to be credible and reliable witnesses. BL was a very supportive line manager who provided both formal and informal supervision and support over an extended time period, both in meetings and in clinical settings, a level of support which he described as “abnormal” and which did not lead to a sustained improvement in the Registrant’s practice. HN gave detailed evidence of her direct observations of the Registrant’s practice in relation Service Users 1 and 2.
8. The panel found that the Registrant’s actions in relation to the proved factual particulars: 1a)-1d), 2a)-2d), 3a-3b), 4a)-4d), 5a)-5c), 6a)-6d), 7a), 8a)-8d), 9a)-9c), 10a)-10e) amounted to a lack of competence.
9. The panel heard consistent evidence from the HCPC witnesses that the Registrant’s practise was well below the standard of a Band 5 Occupational Therapist. Despite significant support and supervision the Registrant consistently failed to meet the required standards. Her actions potentially put vulnerable service users at risk of harm. The panel was satisfied that the particulars found proved demonstrated a fair sample of the Registrant’s work over an extended period of time and they demonstrated repeated failings, despite close supervision and support. The panel also concluded that the Registrant had breached the following HCPC Standards of Proficiency for Occupational Therapists: 1, 2, 4, 8, 9, 10, 12, 13, 14 and 15.
10. The panel also found the Registrant’s current fitness to practise was impaired by lack of competence. The Panel heard evidence from BL that the Registrant was open and honest in the course of supervision sessions and when issues were highlighted she was receptive to his input; but she lacked insight into the cause of these issues. The panel had also heard from BL that the Registrant’s actions had the potential to cause a risk of harm to patients; particularly by discharging patients home when they were not able to support themselves. In addition, given her lack of engagement, there was no evidence of remediation and insight and a high risk of repetition.
11. The HCPC witnesses gave evidence that the level and period of support and supervision provided to the Registrant was unprecedented. Despite this, the Registrant failed to meet the required competencies, made repeated errors and was not able to practice safely as a Band 5 Occupational Therapist. The Registrant’s lack of competence was repeated over an extended period of time, despite support and supervision and would have impacted on public confidence in the profession; due to the potential to place vulnerable service users at significant risk of harm. The panel determined that there would be a serious risk of an adverse impact on public confidence in the profession and in the regulatory process, if a finding of impairment were not made.
12. The following mitigating factors were identified by the panel: the Registrant has had no previous findings made against her; the Registrant was recently qualified and appeared to have health issues which may have impacted on her practice. The panel also had regard to the following aggravating factors: the Registrant’s failings were in core occupational therapy skills, were repeated and involved multiple service users. Her failings continued despite an unprecedented level of support and supervision over an extended time period; there was potential for harm to vulnerable service users; there is no evidence of remediation or insight and a risk of repetition.
13. The panel considered that to take no action or to impose a Caution Order would not be appropriate, given that the lapse was not isolated or minor in nature, the panel had identified wide-ranging failings over an extended period and a risk of repetition. In addition, neither of these options would be sufficient to address the wider public interest considerations.
14. The panel next considered a Conditions of Practice Order and found that, in principle, the matters proved are capable of remediation. However, in the absence of the Registrant and of any information on her current circumstances, the panel was not aware if the Registrant is committed to resolving the issues raised. The panel also identified a pattern of repeated failings in core skills, no evidence of insight and no sustained improvement in the Registrant’s practice; despite one-to-one supervision over an extended period. The panel could not formulate conditions which would be realistic, workable and verifiable. Therefore, a Conditions of Practice Order would not be an appropriate or proportionate sanction; as it would not address the public interest considerations nor would it protect the public.
15. Accordingly, the panel concluded that a Suspension Order was the appropriate and proportionate sanction, to provide the necessary degree of public protection and address the wider public interest considerations. A 12-month period of suspension was imposed due to the seriousness of the matters found proved.
16. The HCPC submits there has been a continuing lack of engagement by the Registrant, prior to this first review of her Suspension Order. The Registrant has been encouraged to submit written representations for the Panel or attend the hearing today, but she has not engaged or responded. Therefore, there is still a lack of evidence of insight or remedial action and a real risk of repetition remains. Accordingly, the HCPC submits that her fitness to practise remains impaired under the personal component.
17. The HCPC also submitted that a finding that the Registrant is no longer impaired would be seriously detrimental to the public interest, professional standards and the reputation of the profession in view of the wide-ranging failures and risk of repetition. Therefore, the Registrant’s fitness to practise is also currently impaired under the public component.
18. Furthermore, the HCPC also submitted that a Caution Order or Conditions of Practice would not be appropriate, and it is not clear if the Registrant wishes to return to practice. It would therefore be fair and proportionate for the Panel to impose a further period of suspension for 12 months today. This will give the Registrant time to reflect and decide if she wishes to return to practice.
Advice of the Legal Assessor
19. The Legal Assessor advised the Panel that the purpose of the review today was not to conduct a rehearing, or to go behind the previous panel’s findings. He advised that under Article 30(1) of the Health Professions Order 2001 the Panel may: extend the Suspension Order, make any order it could have made at the time of the original Order being imposed or replace the Suspension with a Conditions of Practice Order, with which the Registrant must comply if she resumes practice.
20. The Panel today should have regard to the HCPTS Practice Notes on Article 30 reviews and on Finding that Fitness to Practice is Impaired. If the Panel finds that the Registrant’s fitness to practise remains impaired the Sanction Policy should be considered, in relation to the available sanctions, starting with the least restrictive. Therefore, the Panel’s role today is to review the matter on the basis of the evidence available, decide whether the Registrant’s fitness to practise remains impaired, and if it is, to decide on the appropriate sanction, if any. The Panel must take account of a range of issues which, in essence, comprise two components: The ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and the ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and to maintain public confidence in the profession.
21. The personal component includes the issue of insight, the risk of repetition, whether the lack of competence is remediable and whether it has been remedied. In respect of the public component the Panel has to consider public policy issues, which include the need to: maintain confidence in the profession and to declare and uphold proper standards of conduct and behaviour. As this is a competence case, the sanctions available to the Panel under Article 29(6) of the 2001 Order do not include a Striking-Off Order, because the Registrant has not been continuously suspended for a period of 2 years.
22. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Notes on Article 30 reviews and Finding that Fitness to Practice is Impaired and the Sanctions Policy. The Panel finds the Registrant’s fitness to practise is currently impaired under the personal and public policy components. There has been no change of circumstances and no engagement with the HCPC for the last 12 months nor has the Registrant submitted any evidence or material for this reviewing Panel to consider. Therefore, there has been no remediation or insight demonstrated and a risk of harm to the public remains. The substantive hearing panel found that the Registrant’s failings continued despite an unprecedented level of support and supervision over an extended time period.
23. The Panel went on to consider what the appropriate and proportionate sanction should be, if any, starting with the least restrictive.
24. In the light of the lack of engagement the Panel determined that taking no further action, mediation or imposing a Caution would not be sufficient to protect the public or be in the public interest. The Panel considered whether to impose Conditions of Practice but this would be inappropriate because the circumstances are unchanged in that there is no likelihood of the Registrant meaningfully engaging with any conditions imposed. The Panel then went on to consider imposing a further period of suspension.
25. The Registrant has not yet demonstrated insight into the matters giving rise to her suspension and there is a risk of repetition. Her fitness to practice is still impaired on personal and public policy grounds. There has been no engagement with the HCPC since the final hearing. The proved facts and consequent finding of impairment are sufficiently serious to justify a further suspension, to both protect the public from the risks identified and their possible repetition and to provide the Registrant with an opportunity to demonstrate meaningful insight and remediation of the failings identified a period of 12 months suspension from the HCPC register is necessary.
Order: The Registrar is directed to suspend Miss Anne G Shawyer from the Register for a further period of 12 months, from the date of expiry of the current order.
The Order imposed today will apply from 5 March 2021.
This Order will be reviewed again before its expiry on 5 March 2022.