Mr Terry J Hindmarch

Preliminary Matters

Hearing partly in private

1. Mr Lloyd made an application for the hearing to be conducted partly in private, to protect any matters in relation to the private life, including health of the Registrant and a third party. The previous hearings were all conducted partly in private. The Registrant did not object to this when he attended the hearing in January 2020.

2. The Panel accepted the advice of the Legal Assessor to consider the HCPTS Practice Note on “Conducting Hearings in Private”. The Panel had regard to the reasons for this application which is limited to private or health related matters.

3. The Panel determined that those parts of the hearing that would touch on the health or private life of the Registrant or any third party should be heard in private to protect the private and family life of the Registrant and any third party.

Background

4. The Registrant was employed by Sunderland City Council as a Community Occupational Therapist from 28 February 2005 to 21 July 2016. In this role he was responsible for adults and children with physical disabilities. Concerns were raised in relation to the Registrant’s practise in January 2015, and on 30 March 2015 he became subject to his employer’s formal capability procedures. In June 2015 further concerns were raised and in July 2015 he was suspended from his employment. The HCPC witness KW was appointed to conduct an investigation and concerns relating to the Registrant’s practice were referred to a disciplinary panel, in November 2015. In February 2016, the Registrant returned to work and commenced a development plan to address these concerns, with a reduced case load and support.

5. However in March 2016 HCPC witness LR raised further concerns, the Registrant was again suspended and HCPC witness EA then conducted an investigation. The Registrant resigned from his employment on 21 July 2016. The concerns relating to the Registrant’s practice between 2014 and 2016, included: failure to follow management instructions, lack of case recording, delay in the progression of casework, concerns regarding his professional judgment and his application of sound clinical reasoning.

Substantive hearing

6. The factual particulars found proved at the substantive hearing gave rise to findings of misconduct in respect of four particulars and lack of competence in respect of the remaining proved particulars relating to twelve different service users, who represented a fair sample of the Registrant’s work. The instances of misconduct arose when the Registrant failed to follow a management instruction. The panel found That the Registrant had been subject to a number of capability procedures and investigations. There was a pattern of improvement, followed by a decline in performance. The Registrant had been assessed by his former employer as being incapable of progression to a senior practitioner level. His misconduct in failing to follow management instructions fell well below the standard of an Occupational Therapist. There was a pattern of repeated failures in relation to the following areas of skills or ability in basic occupational therapy tasks: progression of cases in a timely manner, assessment of service users, identification and appropriate response to risk, effective or accurate communication and case recording. The panel concluded that the Registrant had limited insight and his fitness to practise was impaired under the personal and public components.

7. The aggravating features were that despite managerial support and assistance, there was a pattern of failure over a lengthy period of time and wide-ranging deficiencies involving a large number of service users. The Registrant’s failure to follow managerial instructions was deliberate, service users were placed at risk of harm and his failure to engage with the HCPC over several years gave the appearance that he is not interested. The Registrant also had limited insight, a tendency to blame others and not to take responsibility for his actions. The mitigating features were limited recognition of some of the deficiencies and some health and personal issues.

8. In relation to its finding of misconduct the panel considered that the failure to follow instructions was at the lower end of the scale of seriousness. There was no actual harm to service users. Although the failure to follow management instructions was deliberate, the panel also found that this misconduct was potentially remediable. The panel decided a Striking Off Order would be disproportionate because of the mitigating factors, and the fact that the lack of competence and misconduct is potentially remediable. Also, a Suspension Order was sufficient to protect the public and to maintain confidence in the profession and the regulatory process.

9. The panel stated a future panel may be assisted by:

a) a reflective statement from the Registrant focussed on the deficiencies as found by the panel and how he intends to remedy them;
b) a timetabled plan for remediation and any evidence of remediation;
c) an update on the Registrant’s employment or work arrangements and any testimonials or references;
d) evidence that the Registrant has kept his skills and knowledge up to date (continuing professional development - CPD).

Review hearing on 17 January 2020

10. The Registrant provided the reviewing panel with written submissions and gave evidence on oath. In view of the length of time since he last practised as an Occupational Therapist, he accepted he would have to undertake a mandatory 30 days updating. He was in the process of applying to local authorities to be accepted for a 30-day period of work as an Occupational Therapy Assistant (OTA). He considered that this would provide him with an opportunity to demonstrate that he is capable of working to the required professional standard, and to keep case records and notes to the standard expected. He had not previously been in a position to progress this but was actively pursuing a placement. He re-joined the Royal College of Occupational Therapists in February 2019 and reads journals to keep up to date. He stated he has purchased books about record keeping and has studied the Care Act 2014, to understand changes in legislation. He also planned to attend a Manual Handling course in February 2020.

11. The Registrant fully accepted there were deficiencies in his past
Occupational Therapy practice. He stated he had attended courses on being assertive. He had learned how to avoid procrastination through positive distraction. He said he would ask for help and support if he were to experience difficulty at work.

12. The Registrant explained he had previously had personal difficulties. This caused the Registrant to feel unable to continue as an Occupational Therapist. He now misses his professional practice and has a deep desire to return to practise, to help resolve difficulties and challenges faced by vulnerable patients. He considered that within three to four months he would have done sufficient work or activities to demonstrate his fitness to practise by completing a placement as an OTA, showing his clinical skills and ability to keep records. His current workplace was supportive and he intended to enquire about the availability of a mentor to assist him in his return to practice after remediation.

13. The Registrant did not object to an extension of the Suspension  Order. The panel was encouraged by the Registrant’s development of substantial insight into his deficiencies. However, the Registrant had provided no information or evidence of actual remediation to address his misconduct and the deficiencies identified. He had not demonstrated that his deficiencies had been fully addressed and the risk of repetition reduced. His fitness to practise remained impaired on the grounds of public protection and the public interest.

14. The panel considered that taking no action was not appropriate, and Caution Order would not be sufficient, to protect the public or to address the wider public interest. A Conditions of Practice Order would not be sufficient to protect patients and any conditions that could be formulated would be tantamount to a suspension. The Registrant intended to undertake a placement as an OTA as soon as possible. This could provide useful evidence of remediation for a future reviewing panel. A Suspension Order remained appropriate and proportionate, for a period of six months to give the Registrant an opportunity to put into effect his plans for remediation.

Subsequent Review Hearings

15. The Registrant did not attend the review hearing conducted on 16 July 2020. However, the HCPC submitted that, in view of the engagement by the Registrant at the previous review hearing in January 2020, when taken together with his previous personal difficulties, a further period of suspension for 6 months would be appropriate. This was duly imposed.

Decision of the review Panel dated 28 January 2021

16. The case presenter, on behalf of the HCPC, submitted that there was no information before this Panel to indicate that the Registrant has addressed his impairment, given his non-engagement since January 2020. Accordingly, the HCPC position was that the Registrant remained impaired. Further, that the appropriate sanction would be an extension of the Suspension Order to address the risk that the Registrant had previously been identified as presenting.

17. The Panel accepted the advice of the Legal Assessor who referred to the HCPTS Practice Notes “Finding That Fitness to Practise is ‘Impaired’” and to the HCPC Sanctions Policy. The Legal Assessor reminded the Panel that it should first consider whether the Registrant’s fitness to practise remains currently impaired. She reminded the Panel of its powers at a mandatory review under Article 30(1) of the Health Professions Order if current impairment is found, and that it should impose the least restrictive order which appropriately protects the public and the public interest.

18. The Panel carefully considered the information before it and noted the absence of any material from the Registrant that might have been helpful. The Panel had regard to the Registrant’s engagement in January 2020 at an earlier review. However, there has been no further engagement or information provided by him. Accordingly, the Panel has no information before it to evidence that the Registrant’s lack of competence and misconduct has been addressed. In light of the lack of evidence or submissions from the Registrant, the Panel found that the Registrant had failed to discharge the persuasive burden to indicate that he was no longer impaired.

19. The Panel concluded that there remains a risk to the public. While the Registrant’s previous acknowledgement that there was more for him to do to address his deficiencies reflects some insight, it also indicates impairment, which insofar as the Panel knows has not been addressed. It concluded that members of the public would be concerned if the Registrant, who has admitted gaps in his ability which pose a potential risk to the public, was found not be to impaired. In these circumstances’ public confidence in the profession and the regulatory process would be undermined. The Panel therefore concluded that the Registrant’s fitness to practise remains impaired on the grounds of public protection and the wider public interest.

20. The Panel considered the available sanctions and referred to the HCPC Sanctions Policy. It applied the principle of proportionality and carefully considered the sanctions in ascending order of seriousness.

21. The Panel considered that it would not be appropriate to impose no order or a Caution Order because the public would not thereby be protected and the wider public interest would not be adequately addressed.

22. The Panel considered whether it could formulate a Conditions of Practice Order. However, the Panel concluded that no conditions could be formulated which would not be tantamount to suspension. Further, a conditions of Practice Order would not be appropriate or workable as the Registrant has acknowledged that work is required before he could return to work.

23. The Panel considered whether a further period of suspension would be appropriate and proportionate to address public protection and the wider public interest issues. It considered that the Registrant has had almost two years to address his misconduct and lack of competence but he appeared to have been unable to evidence any progress other than a plan of what he intended to achieve. It took into account paragraph 131 of the HCPC Sanctions Policy which addresses Strike-Off as a suitable sanction in circumstances:

where a registrant has been suspended for two years continuously, fails to address a lack of competence…

24. The Panel consulted the Legal Assessor on whether the fact that the Registrant has only been subject to a Suspension Order for one day less than the two years precluded the Panel from imposing a more serious sanction.

25. The Legal Assessor referred the Panel to the HCPC Sanctions Policy. At paragraph 129 the following appears:

A striking off order may not be made in respect of an allegation relating to lack of competence or health unless the registrant has been continuously suspended, or subject to a conditions of practice order, for a period of two years at the date of the decision to strike off. Interim orders do not count towards the period of two years.

26. However, in this case while the period of time that the Suspension Order has been in place is one day less than two years, this case does not just concern lack of competence, but also misconduct. For misconduct, the two-year period is not required. Accordingly, notwithstanding the fact that were the Registrant here and represented, an argument may well have concerned that the suspension has been imposed for both a lack of competence and misconduct, the Panel could impose a Strike-Off Order if it considered the sanction of suspension insufficient.

27. The Panel was of the view that, notwithstanding that the Registrant had not made submissions or engaged at this hearing, it was aware that a combination of a global pandemic and personal difficulties may have impacted the Registrant. It was possible that trying to arrange work and training of the type identified by the Registrant may have been more problematic than it would normally be in non-pandemic times. Accordingly, the Panel was of the view that, taking into account the HCPC submissions, and that the Registrant has had under two years to make progress, the appropriate sanction remains a suspension order. The Panel therefore determined that the suspension order should be extended for a further six months.

28. It concluded that at this time the Registrant has not been able to evidence that he has undertaken the necessary work and steps that is required to remedy his deficiencies and suspension and make him a practitioner who is able to practise safely. In all the circumstances, notwithstanding that this deprives the Registrant of the ability to practise as in his chosen profession, the Panel was of the view that no other sanction was appropriate in the circumstances.

ORDER: The Registrar is directed to suspend the registration of Mr Terry Hindmarch for a further period of six months upon expiry of the existing order.

This order will be reviewed before its expiry on 26 August 2021.

Right of Appeal

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Articles 30(10) and 38 of the Health Professions Order 2001, any appeal must be made to the court not more than 28 days after the date when this notice is served on you.

History of Hearings for Mr Terry J Hindmarch