Miss Becky Jones

Preliminary Matters:

Service of Notice of Hearing

1. This is the first review of a Suspension Order to run for 12 months that was imposed on 27 February 2020 on Miss Becky Jones (“the Registrant”). The Order is due to expire on 26 March 2021. The Registrant has not attended this hearing which has been conducted by video link, and nor has she been represented.

2. The certificate of the Registrant’s Health and Care Professions Council (HCPC) registration shows both a postal address and an email address for the Registrant. The Panel is satisfied that on 18 January 2021 a notice was sent by the Health and Care Professions Tribunal Service (HCPTS) to the email address for the Registrant as that is shown in the certificate. The notice informed the Registrant that this review of the Suspension Order would take place today by video conference. The Registrant was told that she could participate in the hearing and that she could have prior assistance from a member of staff in using the video conference system if she wished. She was asked to confirm whether she would be participating in the hearing and she was invited to submit any written evidence in support of her case to the HCPTS at least 14 days before the hearing.

3. On the same day that the notice of hearing was sent as above, the HCPTS received email confirmation that the email to the Registrant had been delivered. There has been no response from the Registrant.

4. The Panel was satisfied there had been good service of the hearing notice to an email address of the Registrant as that email address is shown in the HCPC register.

Proceeding in the absence of the Registrant

5. On behalf of the HCPC, Mr D’Alton asked the Panel to proceed in the absence of the Registrant and to take into account the HCPTS Practice Note on Proceeding in the Absence of the Registrant. Mr D’Alton told the Panel that further to the notice of hearing being sent he had also made an attempt to contact the Registrant via email on 04 February 2021 and by telephone on 16 February 2021. He received no response to either communication. He submitted that this was a mandatory review. It was in the public interest for the review hearing to proceed. The Suspension Order was due to expire on 26 March 2021 and if, by that time, no further order were in place there would be a risk to members of the public. The Registrant had not engaged with the original hearing and the Panel might find that an adjournment was unlikely to lead to an attendance by the Registrant. It was accepted by Mr D’Alton that there may be some disadvantage to the Registrant if the Panel were to proceed in her absence but the factors in favour of doing so outweighed any disadvantage to the Registrant.

6. The Panel has considered the HCPTS Practice Note: Proceeding in the Absence of the Registrant. There is a burden on a registrant to engage with their regulator. There is a statutory requirement for this Suspension Order to be reviewed before it expires. Public protection is an overriding factor to be considered. The Registrant has not requested an adjournment of the proceedings. She did not engage with the original hearing. It appears that the Registrant has chosen not to engage with today’s hearing. There appears to be very little likelihood that the Registrant would participate in these proceedings on a future date if this hearing were to be adjourned. It is accepted there is disadvantage to the Registrant in proceeding in her absence but the public interest outweighs that. The Panel has concluded that the fair and appropriate step is to continue the hearing in the absence of the Registrant.

Background:

7. This is a Review Hearing under Article 30 (1) of the Health and Social Work Professions Order 2001 which requires a review of a substantive order prior to its expiry.

8. The Panel has noted what was said by the original Panel at the hearing in February 2020 within paragraphs 24 to 26 of the original decision as to the background circumstances.

“24. The Registrant is an Occupational Therapist (“OT”) who was employed at Cheswold Park Hospital (‘the Hospital’) between September 2016 and January 2018. The Hospital is a forensic mental health hospital and includes medium-secure wards and low-secure wards.

25. The Registrant had a clinical caseload working with individuals held under the Mental Health Act 1983 with a diagnosis of mental illness and/or personality disorder. This was her first job as an OT in a forensic setting.

26. In or around January 2017, Patient B made a complaint about the Registrant. DW, a Quality and Compliance Director and Senior Manager at the Hospital, commenced an investigation. The original complaint made by Patient B was then withdrawn by Patient B, and a formal decision was made not to proceed any further with that allegation due to lack of evidence. However, in the course of the investigation additional concerns came to light regarding the Registrant’s professional boundaries with patients, which form part of this Allegation. DW conducted interviews with a number of hospital employees, including the Registrant herself. An Investigation Meeting was held on 8 February 2017, which the Registrant attended. At the conclusion of the investigation, a Management Report (“Management Report”) was produced by DW, dated 13 February 2017. This report made formal recommendations to address the issues raised. In about November 2017, Patient A reported to a ward manager that the Registrant had used his bank card to withdraw money. An investigation into this complaint was undertaken by DW, which led to an Investigation Meeting on 14 December 2017, which the Registrant attended, followed by a Disciplinary Hearing on 5 January 2018, which the Registrant also attended”.

9. At the original hearing in February 2020, the Panel considered an Allegation that had 6 factual particulars. One of those factual particulars was withdrawn at the beginning of the hearing. Another was found not proved. A third was found proved but did not amount to misconduct. The original Panel concluded that the 3 remaining particulars could not amount to a lack of competence because they did not demonstrate a sufficient sample of the Registrant’s work. However, the Panel concluded that the 3 remaining particulars each amounted to misconduct and those 3 remaining particulars formed the basis upon which the Panel then decided the Registrant’s fitness to practise was impaired.

10. The Panel has noted that the original Panel’s findings on those 3 particulars were as follows:

The particular concerning Patient A

“34. In the Investigation Meeting, the Registrant admitted that she had used Patient A’s bank card and PIN number to withdraw money on behalf of Patient A. She said that she had done this on two or three occasions, although she could not remember when, and that it was a long time ago. She said that she had known that it was wrong to take out money on behalf of a patient, but that she “felt like I was trapped ... I didn’t realise how dangerous he was and how manipulative he was”. She said that after the first time she had withdrawn money, Patient A told her that if she didn’t do it again, “he could get CCTV and he could get bank statements ... and that I’d lose my job”

“43. The Panel accepted the admissions made by the Registrant in the Investigation Meeting and the Disciplinary Hearing that, at Patient A’s request, she made approximately three withdrawals from Patient A’s bank account using his bank card and PIN number, and gave the cash to him”.

The particular concerning Patient B that was found proved

“57. JL had worked therapeutically with Patient B. It was during one of these sessions in February 2017 that Patient B disclosed to her directly that he knew highly personal and sensitive information about the Registrant’s personal life.

58. CC explained that Patient B had directly told her that the Registrant had disclosed highly personal and sensitive information to him on another occasion.

59. Both witnesses were clear that the Registrant was not working therapeutically with Patient B on an ongoing basis because he was not on the ward that she was allocated to work on. From the oral evidence, the Panel found that the allocation of work to OTs was clearly defined, in that there was an identified OT working on each ward.

60. The Panel accepted the evidence of both these witnesses as to why the sharing of personal information with patients potentially placed the Registrant, other persons (such as other staff), and Patient B at risk. These witnesses explained that sharing such personal information with Patient B was a breach of professional boundaries”.

The second particular concerning Patient B

“65. The Panel accepted JL’s evidence that on a date in January 2017, JL had walked past the kitchen and seen the Registrant and Patient B covered in flour from head to toe. It caused concern to JL to see the Registrant in the kitchen with Patient B, who was not her allocated patient, and she believed that such conduct was inappropriate by an OT (or any professional) in a forensic environment in the context of relational security”.

Representations on behalf of the HCPC

11. Mr D’Alton summarised the background of the case as recorded in the decision of the original Panel. The HCPC position was that, given the failure on the part of the Registrant to engage, her fitness to practise was still impaired. There was no evidence of engagement. The Registrant had not complied with the suggestions by the original Panel as to what may be helpful steps taken by her in respect of this review hearing. There was no evidence of any material change in the Registrant’s circumstances. There was a persuasive burden on a registrant to demonstrate that either the risk of future harm to patients has been removed or, at least, reduced. The original Panel had found that the Registrant had shown limited insight. In the absence of further information from the Registrant, the HCPC view was that the Registrant remained a risk to members of the public in that it was likely she would continue to have issues regarding maintaining proper boundaries with service users.

12. In respect of possible sanctions Mr D’Alton submitted that it was unlikely that either taking no further action or imposing a caution order would be appropriate. In respect of a Conditions of Practice Order, the HCPC view was that, given the past non-engagement on the part of the Registrant, there would be no assurance she would engage with any such conditions.

13. Mr D’Alton continued by saying that although the HCPC recognised that a Striking-off order would be available to the Panel today, the Panel may feel it to be disproportionate at this first review stage, given that the Registrant’s misconduct was not at the most serious end of the scale. An appropriate option may be to give the Registrant a further opportunity to demonstrate that she had taken action to reduce any future risk to patients. However, the HCPC would ask that if there were to be a further period of suspension, the decision make plain to the Registrant that if she did not make a positive response to any further period of review the HCPC would probably ask for a Striking-off Order at the next review hearing.

Decision:

14. The Panel is dealing with a Review under Article 30(1) of the Health and Care Professions Order 2001 and has taken into account the HCPTS Practice Note: Review of Article 30 Sanction Orders.

15. Article 30(1) provides that a conditions of practice order or suspension order must be reviewed before it expires and that the reviewing Panel may:

• extend, or further extend the period for which the order has effect;
• make an order which could have been made when the order being reviewed was made; or
• replace a suspension order with a conditions of practice order.

Any order made following an Article 30(1) review only takes effect from the date on which the order under review expires, so the Registrant must continue to comply with the expiring order until then.

16. The review process is not a mechanism for appealing against or ‘going behind’ the original finding that the Registrant’s fitness to practise is impaired. The purpose of review is to consider:

• whether the Registrant’s fitness to practise remains impaired; and
• if so, whether the existing order or another order needs to be in place to protect the public.

17. The key issue which needs to be addressed is what, if anything, has changed since the current order was imposed or last reviewed. The factors to be taken into account include:

• the steps which the Registrant has taken to address any specific failings or other issues identified in the previous decision;
• the degree of insight shown and whether this has changed;
• the steps which the Registrant has taken to maintain or improve his or her professional knowledge and skills;
• whether any other fitness to practise issue have arisen;
• whether the Registrant has complied with the existing order and, if it is a conditions of practice order, has practised safely and effectively within the terms of that order.

18. As is noted in the Practice Note the reviewing Panel’s task “is to consider whether all the concerns raised in the original finding of impairment...[have] been sufficiently addressed. As the decision in Abraheam [Abrahaem v GMC [2008] EWHC 183 (Admin)] indicates, in practical terms this places a “persuasive burden” on the Registrant to demonstrate at a review hearing that he or she has fully acknowledged the deficiencies which led to the original finding and has addressed that impairment sufficiently “through insight, application, education, supervision or other achievement...”.

19. The decision reached must be proportionate, striking a fair balance between interfering with the Registrant’s ability to practise and the overarching objective of public protection.

20. Given that part of the Panel’s task is to assess whether the fitness to practise of the Registrant remains impaired, the Panel has taken into account the HCPTS Practice Note: Finding Impairment and has noted the following comments made by the original Panel (within paragraphs 83 to 88 and paragraph 92 of the original decision) when finding that fitness to practise was impaired.

“83 The Panel concluded that the Registrant’s misconduct had put patients, herself, and other staff members at unwarranted risk of harm. Her actions had breached fundamental tenets of the profession set out in Standards 1.4, 1.7, 2, 6, 8, and 9. She had brought the profession into disrepute through repeated misconduct, despite clear advice and warning about the need to adhere to professional boundaries and observe relational security. Despite this, the Registrant proceeded to act as found in respect of using Patient A’s bank card.

84. The Panel concluded that these factors pointed to a lack of insight on the Registrant’s part as to the insight and seriousness of her actions, compounded by the evidence of JG that the reflective work completed by the Registrant in about February 2017 demonstrated a lack of insight. Further, there had been no subsequent evidence from the Registrant of any insight into what she had done.

85. The Panel concluded that the conduct which led to the particulars of the Allegation was not easily remedial. It appeared attitudinal. The Panel accepted the evidence of JG that the breaches by the Registrant were wilful, in that she was aware of the standards but had disregarded them. There was no evidence that the conduct had been remedied. The Registrant had not attended the hearing or given any evidence of any training attended since the matters found proved occurred, nor provided an insightful or full reflective piece, particularly on the use of the bank card. The Panel concluded that it could not be said that the Registrant’s misconduct was highly unlikely to be repeated. If anything, the evidence pointed to the contrary.

86. The Panel then went on to consider whether a finding of impairment is necessary on public interest grounds. In addressing this component of impairment, the Panel had careful regard to the critically important public issues identified by Silber J in the case of Cohen, when he said:

“Any approach to the issue of whether fitness to practise should be regarded as ‘impaired’ must take account of ‘the need to protect the individual patient, and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour.”

87. The Panel considered that the public would be shocked to learn of the Registrant’s behaviour in this case in relation to vulnerable patients. The Panel had no doubt that the need to maintain public confidence in the profession and to declare and uphold proper standards would be undermined if a finding of impairment of fitness to practise were not made in the circumstances of this case.

88. For all the reasons set out above, the Panel determined that the Registrant’s fitness to practise is currently impaired, both on the grounds of public protection and in the public interest.”

21. In making its decision on sanction the original Panel stated at paragraph 92 of the original Decision: “The Panel had concluded that Particulars 1(a), 1(c), and 1(e) amounted to misconduct, and that the misconduct in relation to Particulars 1(a) and 1(c) was very serious.”

22. At paragraphs 93 and 94 the original Panel identified mitigating and aggravating circumstances, as follows:

Mitigating factors

• The Registrant’s good character, having no previous disciplinary findings against her name; the Panel attached little weight to this given that she had only been in practice for a short time before the incidents which were found proved;
• The lack of personal gain;
• The Registrant’s claim that she had been pressured by Patient A to carry out the second and/or third withdrawal of cash;
• The Registrant’s co-operation with the first and second internal investigation;
• The Registrant’s admissions when Particular 1(a) was first put to her in interview;
• The beginnings of limited insight into relational security and the building of professional boundaries shown by the Registrant when interviewed in the post-suspension meeting on 13 February 2017.

Aggravating factors

• The Registrant had acted in breach of trust;
• The breach of trust related to patients who were vulnerable due to their complex needs;
• The Registrant had known at the time of her actions that what she was doing was wrong;
• The Registrant’s actions put herself at risk of being pressured, which she then succumbed to and repeated her wrongful acts;
• The Registrant has demonstrated no remorse, no remediation, and minimal insight.

23. The Panel went on, at paragraphs 95 and 98, to conclude that:

“95. ……. “ to take no action or to impose a Caution Order would be inappropriate and would be insufficient to protect the public and mark the wider public interest”
“98. …….. “the Panel had no confidence that she would engage with a Conditions of Practice Order if given the opportunity to do so. There was no evidence that the Registrant would be willing to comply or adjust her attitude, nor was there any means of ensuring compliance on her part. Furthermore, it was not possible to formulate conditions to mitigate a risk of repetition which had resulted in part from attitudinal issues”.

24. In concluding that a Suspension Order for 12 months was the appropriate order the Panel said (at paragraphs 100 and 101):

“100. The Panel concluded that the breaches of the standards of conduct in this case had been serious. There was evidence from the 13 February 2018 meeting that the Registrant had begun to develop some limited insight. The Panel concluded that the Registrant’s misconduct in relation to Particular 1(a) was unlikely to be repeated, and that the Registrant had only repeated her actions in withdrawing cash using Patient A’s bank card because she had put herself in a position where she could be manipulated by Patient A.

101. There was no evidence to suggest that the Registrant is likely to be able to resolve or remedy her failings, but the record of the Disciplinary Hearing held on 5 January 2018 suggested that the Registrant did not appear to understand what she had to do to continue to practice. The Panel noted that she was not represented at that hearing and did not appear to understand the fitness to practise process and its potential range of outcomes, having realised that she was to be dismissed from work for gross misconduct.”

25. Within the original decision the Registrant was advised that any reviewing Panel may be assisted by:

• The Registrant’s attendance at the review hearing;
• A detailed reflective piece by the Registrant covering professional boundaries (including relational security, why it was inappropriate to take the bank card from Patient A and remove cash for him, and why this put her at risk, why it was inappropriate to share personal information with patients, and how this made her and colleagues vulnerable);
• Evidence that the Registrant’s training and Continuing Professional Development portfolio has been kept up-to-date;
• Evidence of written references, if any, from an OT with whom the Registrant has worked.
• Evidence of activities undertaken relevant to the Registrant’s OT profession and associated professional and/or other references regarding her conduct during those activities.

Fitness to practise and Review Order

26. There is no evidence of engagement on the part of the Registrant. She has not complied with the suggestions of the original Panel as to what may be helpful steps taken by her in respect of this review hearing. There is no evidence of any material change in the Registrant’s circumstances. There is a persuasive burden on the Registrant to demonstrate that the risk of harm has been removed or, at least, reduced.

27. The Panel has concluded that the Registrant’s fitness to practise still remains impaired on personal component grounds. That is because the Registrant has not yet provided evidence of the development of insight or adequate remediation to show that she would not cause a risk of harm to members of the public if she were now permitted to return to unrestricted practice.

28. The Panel has also concluded that the Registrant’s fitness to practise still remains impaired on public component grounds. That is because members of the public would not have confidence in the profession or this regulatory process if the Registrant were permitted to return to unrestricted practice.

29. In considering the available sanctions the Panel considered the options in ascending order. The Panel is dealing with examples of serious misconduct involving two patients. The misconduct on the part of the Registrant was serious, and her continuing failure to engage in these proceedings mean that it is not appropriate or proportionate to take no further action or to impose a caution order.

30. The Panel went on to consider a Conditions of Practice Order. However, and again in a situation where the Registrant has not engaged in these proceedings and where there is no information as to the employment circumstances of the Registrant, it is not possible to identify workable and effective conditions that would provide an adequate level of public protection. A Conditions of Practice Order is not appropriate.

31. The Panel went on to consider an extension of the current Suspension Order. The Panel recognises, from the original decision, that the Registrant was given guidance in the workplace at Cheswold Park. There were, effectively, conditions placed on her practice in the workplace. However, the Panel also recognises that it is likely that the Registrant had been working with patients with complex needs and there is no clear evidence as to how much prior experience the Registrant had in such a situation. The Panel has noted that in the workplace investigation the Registrant had said she had felt manipulated by a particular patient. The mitigating factors identified within the original decision include that the Registrant had only been in practice a short time and had shown the beginnings of limited insight into relational security and the building of professional boundaries. However, at the same time, the Registrant did not appear to seek guidance and support in the workplace. It appears that she was not open with her employer and her misconduct was not limited to a single occasion.

32. Taking into account all of the above factors, and notwithstanding the past non-engagement on the part of the Registrant, there may still be potential for the Registrant to demonstrate to a future Panel that she has developed insight into her past misconduct and has recognised why that misconduct was not acceptable and, further, has taken remedial action to ensure that it would not be repeated. However, that all rests with the Registrant. She previously qualified as an Occupational Therapist. There is a public interest in allowing occupational therapists to continue to practise provided they can show there would be no risk to members of the public. It may be possible for the Registrant to return to practice but that will happen only if the Registrant engages constructively with this review process.

33. The Panel has taken the view that, given there may be a possibility of the Registrant engaging in this process in the future, she ought to be given a further opportunity of demonstrating she has learned from the past and has remedied her practice and behaviour. The Panel has concluded that an extension to the current Suspension Order is the appropriate and proportionate step. However, the Panel cannot emphasise clearly enough to the Registrant that it is largely in her own hands. If she wishes to return to practise as an Occupational Therapist, she has to take steps to show that she has learnt from the past and demonstrate there would be very little risk of her again committing misconduct. It may be that she sees a future in returning to practice but in a different practice area.

34. If she does not engage in that way then it may be that at a future review hearing the outcome could be a Striking off Order.

35. The Panel is satisfied, for the above reasons, that to impose a striking off Order at this stage would not be appropriate or proportionate.

36. The Order, as it is now being extended, will be reviewed again before the end of the extension period. The Panel has concluded that a 6 months’ extension is the correct and proportionate period.

37. This Panel considers that a reviewing Panel is likely to be assisted by the Registrant:

• engaging in the review process by attending the hearing. This could be in person (if COVID-19 circumstances then permit), or by telephone or by video link
• providing evidence of reflection, insight and learning and targeted Continuing Professional Development (looking at the past events of misconduct)
• references from other persons (whether or not in the field of Occupational Therapy) whether that is in connection with paid or unpaid / voluntary work
• giving a general account of her circumstances since the end of her employment at Cheswold Park.

That the Registrar is directed to suspend the registration of Miss Becky Jones for a further period of 6 months, from the expiry of the current Order.

This Order will be reviewed again before its expiry.

History of Hearings for Miss Becky Jones