Mr Kieran Mcdermott

Profession: Physiotherapist

Registration Number: PH91782

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 20/01/2021 End: 17:00 20/01/2021

Location: Virtual hearing - Video conference

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

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 Mr D’Alton, on behalf of the HCPC, for all references to the Registrant’s health to be heard in private. Ms Sleeman, on behalf of the Registrant, supported the application.

2. The Panel took into account the HCPTS Practice Note entitled “Conducting Hearings in Private” and accepted the advice of the Legal Assessor, which it incorporated into the decision set out below.

3. The Panel decided to allow the application, pursuant to Rule 10(1)(a) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules), and directed that those parts of the evidence and those submissions relating to the Registrant’s health would be heard in private in order to protect the Registrant’s right to privacy in matters relating to his health.

Background

4. 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”).

5. 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”).

6. 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.

7. 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.

8. 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

9. 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.

10. 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 condition 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.

11. The substantive hearing panel found “extensive measures taken by the employer over time to assist the Registrant within a planned programme to facilitate improvement in performance and practice.”

12. The substantive hearing panel imposed a Suspension Order for a period of 12 months. 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”.

13. A panel sitting on 22 January 2018 (the 2018 panel) imposed a Conditions of Practice Order for a period of 18 months.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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

19. 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.”

20. Turning to sanction, 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

21. 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.

22. 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.”

23. 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.”

24. Turning to sanction, 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 imposed the following conditions:

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.

This review hearing on 20 January 2021

25. At this hearing Mr D’Alton set out the background and drew the Panel’s attention to the following documents which, he submitted, summarised the Registrant’s current fitness to practice and the HCPC’s main concerns:

• 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;

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

The evidence at this review

26. The Panel read those documents and accepted the contents, which were effectively unchallenged. It took note that the Registrant had continued to work as a Band 5 Physiotherapist at the Sandwell General Hospital (“SGH”) in Birmingham, where he was supervised in accordance not only with his HCPC Conditions of Practice Order but also stage 1 of the SGH Capability policy.

27. It 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.

28. The Panel took note of the following, albeit 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.”

29. Nevertheless, the Panel took note of the serious concerns raised about the Registrant’s communication and teamwork, clinical reasoning, and treatment and discharge planning. The Panel took note of the finding that his improvements were not consistent. It took particular note of the following summary in 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.”

30. The Registrant gave evidence to the Panel. He adopted his written statement, in which he told the Panel that he had performed satisfactorily in two placements.

31. Between April and July 2019 he had been on rotation in the acute stroke unit team. He had enjoyed that rotation and his competencies were scored appropriately for a return to practice as a Band 5.

32. 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.

33. He told the 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.

34. He 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. However, he had been to staff counselling meetings to manage his stress levels and said that this had improved his communications. He told the Panel that he aimed to make a good impression in future and develop strong working relationships when he moved to a new team.

35. With regard to clinical reasoning, he said he was receiving and processing daily feedback.

36. With regard to treatment and discharge planning, he told the Panel that he had developed a sheet based on something provided by a Band 6 Physiotherapist for discharge planning. As a result, he had recently conducted two effective discharges and was trying to maintain this momentum.

37. In answer to questions from the Panel, he 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 he would be able to handle the current workload without supervision. He told the Panel that he was developing. Nevertheless, he accepted that he needed the current level of supervision.

38. He acknowledged that there had been difficulties, but said he had also had some good success and feedback. He was awaiting further training which should be completed in April. He also reminded the Panel that the time available to him had been restricted by the Christmas period, during which he had both taken some time as holiday and also had been obliged to self-isolate.

39. He confirmed that he had started a new rotation on 18 January 2021. He had already completed four days shadowing before starting and the placement would last for five months. He was optimistic that this would be a successful placement, in part because there would be other Band 5 Physiotherapists who would provide him with a level of support.

Submissions

40. Mr D’Alton submitted that the Registrant’s fitness to practise remains impaired by reason of the deficiencies in his practice. He submitted that there would be a significant risk to the public and the wider public interest if the Registrant were allowed to practice without restriction.

41. He categorised the concerns under the headings set out above.

42. He drew the Panel’s attention to a particularly concerning incident during the latter part of 2020, when the Registrant had taken a patient’s blood pressure and, instead of responding to a low reading and assisting the patient to bed, he had proceeded to record the blood pressure. The supervising Physiotherapist had needed to intervene to protect the patient. It was also noted that the Registrant did not demonstrate an appropriate understanding afterwards as to why he needed to stop to assist the patient.

43. Mr D’Alton submitted that the appropriate sanction on this occasion was a further period of conditions of practice. He invited the Panel to impose a period of six months to allow the Registrant to complete this rotation and demonstrate that he had at least started to make significant improvement.

44. He submitted that a longer period would put an undue strain upon the hospital where he was working.

45. He also reminded the Panel that the concerns now identified in respect of the Registrant were essentially the same as those first raised in 2012. He invited the Panel to indicate that, if there were no significant improvement, a future reviewing panel would have to consider a Striking Off Order.

46. Ms Sleeman accepted that the Registrant’s fitness to practise remained impaired. Nevertheless, she reminded the Panel that the Registrant had conscientiously followed all his conditions. She submitted that the evidence was a “mixed picture”. There had been two previous rotations where all the Registrant’s competencies had been signed off. She accepted that this rotation had gone less well but reminded the Panel that two of the five required competencies had been signed off in this rotation.

47. She submitted that the Registrant’s commitment to the profession had been recognised throughout these proceedings, including in the appeal to the High Court. She submitted that levels of stress related to his supervision had affected his performance.

48. She submitted that another period of conditions of practice was the appropriate sanction, and that Suspension or Striking Off would be disproportionate because these were not necessary to protect the public.

49. She submitted that a further period of six months was too short because it would not give the Registrant sufficient time and would cause him unnecessary stress, which in turn would reduce his chances of improvement. She submitted that the appropriate period was 12 months because this would give the Registrant an opportunity to complete two rotations and demonstrate that he could practice independently.

50. The Panel received the advice of the Legal Assessor, which it accepted and incorporated into the decision set out below.

51. First, it reminded itself of its powers under Article 30(1) of the Health Professions Order 2001 to extend the period for which the Order has effect or to impose any order the first panel could have imposed.

52. It reminded itself of the importance of a review hearing, described by the Supreme Court in Khan v GPhC [2016] UKSC 64 as “the ‘teeth’ behind the sanctions other than erasure and should focus the doctor’s mind on the need to undertake any necessary remediation”.

53. It followed the ordered sequence of decision making set out by Blake J in Abrahaem v General Medical Council 2008 EWHC 183:

i. address whether the fitness to practice is impaired before considering conditions.

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

iii. 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 impairments.

54. It bore in mind the guidance given to panels by the Supreme Court in Khan (above) to focus on the Registrant’s current fitness to practice:

“The guidance therefore makes clear that the focus of a review is upon the current fitness of the registrant to resume practice, judged in the light of what he has, or has not, achieved since the date of the suspension. The review committee will note the particular concerns articulated by the original committee and seek to discern what steps, if any, the registrant has taken to allay them during the period of his suspension.”

55. The Panel had regard to the over-arching objective of protecting the public, which involves the pursuit of the following objectives:

• to protect, promote and maintain the health, safety and well-being of the public;

• to promote and maintain public confidence in the professions regulated under the Order; and

• to promote and maintain proper professional standards of conduct for members of those professions.

56. It also bore in mind that in deciding whether the Registrant’s fitness to practise is still impaired, it should follow the approach of Dame Janet Smith endorsed by the High Court in CHRE v NMC and P Grant [2011] EWHC 927 (Admin):

"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; and/or

d. has in the past acted dishonestly and/or is liable to act dishonestly in the future”.

The Panel’s decision

Impairment

57. The Panel first considered whether the Registrant’s fitness to practise remains impaired. It bore in mind that there had already been a finding of impairment and asked itself whether the Registrant had demonstrated that he had taken sufficient steps to allay the concerns of the previous panels.

58. The 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.

59. Nevertheless, it accepted the evidence that there were still areas of his practice which fell significantly below the standard expected of a Band 5 Physiotherapist. It found that these were areas of importance which impacted on patient safety, so that the Registrant could not practice safely without supervision.

60. The 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.

61. The Panel concluded that, with the personal and public interest components in mind, the Registrant's fitness to practise is currently impaired; that is to say that the Panel found that 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.

Sanction

62. The Panel next went on to consider sanction. It took into account the HCPC Sanctions Policy. It bore in mind that sanction is a matter for its own independent judgement and that the purpose of a sanction is not to punish the Registrant but to protect the public. Furthermore, a sanction must be proportionate, so that any order it makes should be the least restrictive order that would suffice to protect the public and the public interest.

63. The Panel first considered taking no action. The Panel concluded that, in view of the seriousness of the Registrant’s lack of competence, which remains largely unaddressed, and the ongoing risk to the public, it would be inappropriate to take no action because that would be insufficient to protect the public.

64. Due to the continuing risk of harm presented by the Registrant, the Panel concluded that a Caution Order would be inappropriate and insufficient to protect the public.

65. The Panel next considered a Conditions of Practice Order. The Panel accepted that the Registrant had complied with all the conditions imposed upon him. It also accepted that he had made some improvements, as set out above, although the improvements had often been inconsistent.

66. The Panel accepted that the conditions imposed on the Registrant had protected the public hitherto but found that this was in large part because of a close level of supervision by colleagues who knew the Registrant well and were aware of his difficulties. If supervision had been less well carried out, there would have been a significant risk to patient safety and public confidence in the profession.

67. The Panel also considered carefully whether the time had arrived when conditions would not be sufficient to protect the wider public interest and asked itself whether public confidence in the profession would not be undermined if it knew that the Registrant had been working under conditions for a number of years without making significant improvement.

68. It decided that this time had not yet arrived, because the Registrant had made some improvement and the Registrant’s employers were still able to supervise him in a way that protected the public whilst giving him a chance to improve his performance.

69. The Panel considered carefully the length of time for which it should impose the Conditions of Practice Order. It accepted Ms Sleeman’s submissions that six months was too short to give the Registrant a fair chance to demonstrate he could improve his performance. Nevertheless, the Panel decided that it had to restrict the length of the Order so as to demonstrate that improvements must be made more quickly than hitherto.

70. The Panel 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. This would give him a fair opportunity while sending a clear message that his performance has 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.

71. Finally, the Panel considered whether it should vary the Conditions of Practice Order to reflect the importance of the Registrant’s current employer, both for the protection of the public and to support the Registrant. Having read carefully through all the reports, the 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.

72. Accordingly, the Panel varied the Conditions of Practice Order to ensure that the Registrant remains with his current employer during the period of the Order. If, for any reason, that proves impossible and the Registrant wishes to work elsewhere as a Physiotherapist, he must bring this matter back before a panel for an early review.

73. The Panel therefore varies the Conditions of Practice Order and extends it for a period of 9 months from 19 February 2021.

Order

That the Registrar is directed to annotate the Register to show that for a further period of 9 months from the expiry of the current Order, you, Mr Kieran McDermott, must comply with the following conditions of practice:

1. You must confine your professional practice to a Band 5 position and you must work only for your current employer, the Sandwell and West Birmingham Hospital NHS Trust.

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 and advise the HCPC of that person’s name within 28 days. 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. 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 reports from a named supervisor and submit the reports to the HCPC 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 your employer that your registration is subject to these conditions.

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

Notes

This Order will be reviewed before its expiry on 19 November 2021.

Hearing History

History of Hearings for Mr Kieran Mcdermott

Date Panel Hearing type Outcomes / Status
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
05/12/2016 Conduct and Competence Committee Final Hearing Adjourned part heard