Mrs Maria E Barnes

Preliminary Matters

Service

1. The Panel is satisfied that there has been good service of the Notice of Hearing. An email was sent on 13 January 2021 to the Registrant’s registered email address, giving notice of today’s hearing.

Proceeding in Absence

2. The Registrant has not attended the hearing today. The Panel has seen an email dated the 13 January 2021 from the Registrant. It is apparent that the Registrant is aware of today’s hearing. The email says:

“…As I have already stated, I do not wish to participate, or have any representation at this meeting.
I am content for the meeting to proceed without me.
I do wish to be removed from the register…”
 
3. The Panel first considered whether it ought to exercise its discretion to continue with this hearing in the absence of the Registrant. The Panel concluded that it was in the public interest to do so, having considered the HCPC Practice Note on Proceeding in the Registrant’s Absence, and having considered the guidance in R v Jones [2002] UKHL 5 and GMC v Adeogba, R v Hayward [2001] EWCA Crim 168, GMC v Visvardis [2016] EWCA Civ 162 and Sanusi v GMC [2019] EWCA Civ 1172, for the following reasons:

(a)  The Panel is satisfied that the Registrant had notice of the hearing.

(b)  The Registrant is aware of the hearing today and has signed the Voluntary Removal Agreement.

(c)  The Panel was of the view that even if these proceedings were adjourned there was very little likelihood that the Registrant would attend on a subsequent occasion and she has not requested an adjournment.

(d)  The Panel concluded that the Registrant has deliberately chosen not to attend this hearing and that given the nature of the hearing today there is no prejudice to the Registrant, in proceeding in her absence.

(e)  The Panel determined that it was reasonable and in the public interest to proceed today in the circumstances, given that it was a hearing to determine whether to revoke the Suspension Order to allow a Voluntary Removal Arrangement to be put into effect.

Bundle

4. The Panel has been provided with a substantive bundle of documents which runs to 61 pages and a skeleton argument, prepared by Ms Bwoma, Presenting Officer, on behalf of the HCPC. The Panel has also been provided with an unredacted copy of the Voluntary Removal Agreement, signed both by the Registrant and on behalf of the HCPC.

Background

5. On 28 February 2018, a panel of the Conduct and Competence Committee found that the Registrant’s fitness to practise was impaired by reason of her misconduct. The Registrant was employed as a Lead Orthoptist for Enhanced and Supplementary Services at Taunton and Somerset NHS Foundation. Her role involved the provision of orthoptic services as an autonomous practitioner, assessing, diagnosing and managing patients who had been referred to the Orthoptic Department of the Musgrove Park Hospital. The Registrant accessed the personal contact details recorded in NHS patient referrals of approximately 12 patients in order to make unsolicited telephone calls to the patients’ parents and/or guardians and she did so in order to redirect those NHS patients to her private practice.

6. The panel, in 2018, found that the Registrant’s conduct was dishonest and that her fitness to practise was impaired by reason of her misconduct and imposed a 12-month Suspension Order.

7. The Suspension Order was reviewed on 19 February 2019, when the Registrant did not attend and was not represented. The Suspension Order was extended to 28 March 2020. The review panel took the view that the Registrant had not addressed the personal component of her misconduct. Although the Registrant had shown a measure of insight, and had to some extent remedied her dishonesty, the review panel was not convinced that there was not a prospect of repetition, if placed in a similar position. The panel further noted there was no evidence of detailed reflection on her actions or the impact of her conduct on her patients. The review panel also concluded that the Registrant remained impaired, having regard to the public component, finding that in the absence of evidence of remediation, public confidence in the profession of Orthoptics would be undermined if a finding of impairment was not made.

8. The review panel, in February 2019, informed the Registrant that the further Suspension Order would provide her with a further opportunity to develop insight into her misconduct and to provide evidence of remediation. The panel also informed the Registrant that the next review panel would be greatly assisted if she provided:

(a)  A detailed written piece containing her reflections on the misconduct, showing insight into the potential and actual effects of the misconduct and its implications for all relevant stakeholders, and for public confidence in the profession and the wider public interest;

(b)  Testimonials addressing the Registrant’s character and probity;

(c)  Evidence of any steps taken to maintain the Registrant’s skills including any Continuing Professional Development (CPD) undertaken;

(d)  Any other evidence that the Registrant may consider to be helpful.

9. The Suspension Order was further reviewed on 24 February 2020. The Registrant did not attend and was not represented. The review panel did however have a letter from the Registrant, sent to the HCPC, dated 12 February 2020, which stated:

“From the report of last year’s hearing, it appears that there is some form of words that you require and of which I am not aware. Whilst I could pay someone who knows the form of words that would satisfy you, that would be disingenuous. I know that by using the contact details in the way I did was unprofessional, had the potential to bring the Orthoptic profession into disrepute, and caused distress to those who were contacted. For this I am truly sorry. There is not a day when I do not reflect on my behaviour and the distress it has caused, and I know it is something that I will never be foolish enough to repeat. I have made the decision not to aspire to practice as an orthoptist in the future to assist with protecting the integrity and standing in the profession, and consider myself retired since May 2017.”

10. The February 2020 review panel concluded that the Registrant’s fitness to practise remained impaired. Although they accepted that the letter dated 12 February 2020 did show some insight, the panel was concerned that the Registrant had chosen not to provide the information outlined at the previous review in February 2019. The panel considered that this might be because the Registrant considered herself retired and had no intention of returning to practice.

11. The February 2020 review panel noted that the Registrant appeared to have been out of practice since May 2017, almost 3 years earlier and that there was no evidence that she has kept her skills up to date. The panel hence concluded that they could not be satisfied that she was currently fit to practise without restriction. The panel also had regard to the wider public interest considerations which include the need to protect patients, to declare and uphold proper standards of behaviour and to maintain public confidence in the profession. In the absence of evidence of her current skills, the panel concluded that the Registrant’s fitness to practise remained impaired on both the personal and public components.

12. The Panel imposed a further Suspension Order for a period of 12 months. However, they also set out the following:

The Panel did consider whether a Striking Off Order would be appropriate. However, the Panel decided that this would be disproportionate today and that it is appropriate instead to give the Registrant the opportunity to apply for Voluntary Removal which would represent a dignified exit to the profession. The Panel noted the finding of the original panel in 2018 that no actual harm was caused to service users. The Panel also noted that the Registrant had been in practice for almost 40 years with a hitherto unblemished record. The Panel was satisfied that the Registrant has shown insight, and that she is unlikely to repeat her misconduct.

13. Thereafter, the Registrant engaged in email correspondence with the HCPC, indicating a willingness to apply for voluntary removal, to enable “a dignified exit from the profession” (03 July 2020 email). There are two further similar emails, dated 25 July 2020, in which the Registrant expressed the desire to apply for voluntary removal from the Register.

14. In a further email dated 27 September 2020, the Registrant formally confirmed:

(a)  She wished to apply for voluntary removal,

(b)  She admitted the substance of the allegations,

(c)   She confirmed her fitness to practise was impaired,

(d)   She considered herself retired from the profession, having not undertaken any work as an orthoptist since March 2017; had not been employed as an orthoptist since January 2016 and did not intend to work as an orthoptist or in any other capacity in the future.

15. The Panel has been provided with a copy of the Voluntary Removal Agreement dated 26 February 2021, signed by both the Registrant and on behalf of the HCPC. Schedule C contains a letter signed by the Registrant, requesting her removal from the HCPC Register with effect from 26 February 2021 and seeking the revocation of the Suspension Order to allow the voluntary removal to take place.

Voluntary Removal

16. The Panel had regard to the written and oral submissions made on behalf of the HCPC and the advice of the Legal Assessor and has had regard to the Practice Note on Disposal of Cases by Consent.

17. Article 11(3) of the Health and Social Work Professions Order 2001 and Rule 12(3) of the Health & Care Professions Council (Registration and Fees) Rules 2003 prevent a Registrant from resigning from the Register whilst the Registrant is subject to an allegation or a conditions of practice order or a suspension order.

18. However, in cases where the HCPC is satisfied that it would be adequately protecting the public if the Registrant was allowed to resign from the Register, it may enter a Voluntary Removal Agreement, allowing the Registrant to do so, but on similar terms to those which would apply if the Registrant had been struck off. In cases where there is an existing order, such an agreement cannot take effect, unless the proceedings are withdrawn or the Panel revokes the order.

19.  In the present case, the HCPC asks the Panel to revoke the existing Suspension Order to allow the Voluntary Removal Agreement to be put into effect, following:

·  A signed request by the Registrant that she be removed from the Register;
·  A commitment that the Registrant will cease and desist from practising as an Orthoptist and will not attempt to re-join the register.

20. The Panel notes that it should not agree to revoke the Suspension Order to facilitate the resolution of the case by consent, unless it is satisfied that:

(a) The appropriate degree of public protection is being secured, and

(b) That doing so would not be detrimental to the wider public interest.

21. The Panel noted that the Registrant has now not been in practice since 2017 and that she has expressed the intention not to return to practice in the future. The Panel was also concerned that the Registrant had not engaged with the substantive review process, having not submitted a reflective piece of writing, or the other suggestions made by the previous review panel.

22. The only realistic sanction left for a Panel to impose in these circumstances, at any further review hearing, given the length of suspension, the lack of intention to return to practice and the non-engagement from the Registrant, would have been a Striking Off Order.

23. The Panel concluded that the public would not be concerned, nor would public confidence in the profession be put at risk, by revoking the Suspension Order to allow the Voluntary Removal Agreement to be put into effect, in circumstances where the Registrant has accepted that her fitness to practise is impaired by her misconduct and has expressed the intention to come off the Register, which in public protection terms is tantamount to a Striking Off Order.

24. In the circumstances, the Panel is satisfied that the appropriate degree of public protection that is required would be secured by the Voluntary Removal Agreement and agrees to revoke the existing Suspension Order, to allow this to be put into effect.

ORDER: The Suspension Order is revoked in order to allow the Voluntary Removal Agreement to be put into effect immediately.

No notes available

History of Hearings for Mrs Maria E Barnes