Mrs Lesley J McIlwraith

Profession: Physiotherapist

Registration Number: PH40840

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 01/06/2021 End: 17:00 04/06/2021

Location: This hearing was held virtuallyl via video conference

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

(as amended on day 1 of the hearing, namely, 1 June 2021)

Whilst registered as a Physiotherapist with the Health and Care Professions Council and whilst employed with NHS Forth Valley Trust, you:

1)   On 7 July 2016;

a)   Accessed  Patient  56’s  medical  file  without  authorisation  and/  or clinical reason to do so;

b)   Accessed   Patient   57's   medical   file   without   authorisation and/or clinical reason to do so;

2)   On   30   August   2016,   accessed   Patient   56's   medical   file   without authorisation and/or clinical reason to do so.

3)   On  29  November  2016,  you  accessed  Patient  57's  medical  file  without authorisation. and/or clinical reason to do so.

4)   [HCPC Offered No Evidence]

5)   Made  appointment  bookings  for  the  following  patients  which  were  false and/or which the patients were not notified of:

a)   Patient 18 on 25 April 2017;

b)   Patient 24 on 25 April 2017;

c)   Patient 38 on 27 April 2017

6)   Between 25 October 2016 and 20 April 2017, did not record patient notes for:

a)   Patient 2 in respect of the appointment on 21 February 2017

b)   Patient 6 in respect of the appointments on:

i.   25 October 2016;
ii.   10 November 2016;
iii.  1 December 2016;
iv.  22 December 2016;
v.  9 February 2017

c)  Patient 8 in respect of the appointments on:

i.   17 November 2016;
ii.   8 December 2016;
iii.  15 December 2016;
iv.  10 January 2017

d)  Patient 9 in respect of the appointments on:

i.   27 October 2016;
ii.   10 January 2017

e)  Patient 10 in respect of the appointments on:

i.   27 October 2016;
ii.   8 November 2016;
iii.  29 November 2016;
iv.  13 December 2016;
v.  10 January 2017

f) Patient 11 in respect of the appointment on 19 January 2017

g)  Patient 21 in respect of the appointment on 24 January 2017

h)  Patient 23 in respect of the appointment on 9 February 2017

i) Patient 27 in respect of the appointment on 17 January 2017

j) Patient 28 in respect of the appointments on:

i.   15 September 2016;
ii.   15 November 2016

k)  Patient 30 in respect of the appointment on 26 January 2017

l) Patient 38 in respect of the appointments on:

i.   7 February 2017;
ii.   28 February 2017;
iii.  14 March 2017;
iv.  16 March 2017;
v.  4 April 2017

m) Patient 44 in respect of the appointment on 9 February 2017

n)  Patient 47 in respect of the appointments on:

i.   9 February 2017;
ii.   2 March 2017;
iii.  9 March 2017;
iv.  28 March 2017;
v.  20 April 2017

o)  Patient 49 in respect of the appointment on 20 April 2017

p)  Patient 50 in respect of the appointments on:

i.   1 September 2016;
ii.   29 September 2016;
iii.  11 October 2016;
iv.  6 December 2016

q)  Patient 60 in respect of the appointment on 24 November 2016

r)   Patient 72 in respect of the appointments on:

i.   1 November 2016;
ii.   8 November 2016;
iii.  26 November 2016;
iv.  8 December 2016

7)   Your  conduct  in  creating  false  appointment  bookings  for  patients  in particular 5 was dishonest.

8)   The matters set out in paragraphs 1 - 7 constitute misconduct.

9)   By reason of your misconduct, your fitness to practise is impaired.

 

 

 

 

Finding

Preliminary Matters

Amendment to the Particulars and hearing in private.

1. Ms Reid applied to amend Particular 3 by deleting the words, “and or clinical reason”. Ms Reid also informed the Panel that the HCPC intended to offer no evidence in respect of Particular 4. Mr Sykes did not object to the application which the Panel allowed having determined that no unfairness was caused and that the matter had been properly considered.

2. Mr Sykes applied for any matters relating to the Registrant’s health or private life to be heard in private. Ms Reid agreed to the application which the Panel allowed having received advice from the Legal Assessor.
 

Background

3. The Registrant is a Physiotherapist who at the material time was employed by the NHS Forth Valley (the Trust), and worked for two days a week at Dollar Health Centre (Dollar). Dollar is a GP practice.

4. Following a Subject Access Request (SAR) in April 2017, Patient 56 was provided with an audit report as to who had accessed her General Practitioner (GP) healthcare records. Patient 56 then became aware that the Registrant had accessed her medical records on two occasions, on 7 July 2016 and 30 August 2016. Patient 56 knew the Registrant in a personal capacity but had never had any dealings with the Registrant through the physiotherapy service.

5. On 27 April 2017, Patient 56 requested that an audit be conducted of who had accessed the medical records of her son, Patient 57. That report showed that the Registrant had accessed Patient 57’s records on 7 July 2016 and 29 November 2016.

6. An internal investigation into the concerns relating to Patients 56 and 57 was initiated by the trust on 15 May 2017. On 25 and 26 April 2017, the Registrant called in sick to work as a result of which telephone calls were made to the patients whom the Registrant was listed as having appointments with on those days. It came to light that a number of patients listed were not aware that they had an appointment scheduled with the Registrant and a further investigation relating to the Registrant’s booked appointments was undertaken.

 

Decision on Facts

7. The Panel heard oral evidence from three witnesses called on behalf of the HCPC; (1) Dr HR who is a General Practitioner at Dollar, LA who is the Lead Data Protection Officer for the Trust and NB who is the Team Lead Physiotherapist for the Trust. The Panel also heard oral evidence from the Registrant. The Panel was also provided with an HCPC bundle of documents containing witness statements and exhibits.

8. On the first day of the hearing, the Panel was provided with a Registrant’s bundle which had been served on the 21 May 2021. That bundle contained the Registrant’s witness statement and testimonial evidence.

9. The Panel found that each of the HCPC’s witnesses were credible and assisted the Panel. In particular, the Panel found that Dr HR was a
 
highly credible and fair witness whose evidence was open and honest regarding the operating methods at Dollar, including that written procedures were not always followed to “the letter”, given the ethos which existed there and the encouragement of co-operation between the health professionals who worked at Dollar. LA’s evidence was technical in nature and the panel was confident in its reliability. NB was the Investigating Officer. Whilst the Panel was satisfied that NB was honest and reliable, the Panel noted her admitted shortcomings in relation to the extent of the investigative procedures undertaken by her.

10. In respect of the Registrant’s evidence, the Panel was mindful of the obvious stress which the Registrant would have been under as a result of being investigated and interviewed by the Trust and by these proceedings. However, the Panel was concerned that the Registrant’s evidence was in important respects vague and inconsistent and at times not credible.

11. At the outset of the hearing, the Registrant admitted all of the factual particulars, although she subsequently withdrew her admission to Particular 6. Having very carefully considered all of the oral and documentary evidence, the Panel made the following findings of fact:

Particular 1 (a) – Proved

The Panel was presented with clear evidence in the form of a data audit that the Registrant accessed Patient 56’s medical file on 7 July 2016. The Registrant has also admitted this Particular. Whilst the evidence regarding the authorisations at Dollar was such that medical professionals with login details could freely access medical files, the Panel was satisfied that no clinical reason existed for the Registrant accessing this file on 7 July 2016.

The Panel considered the Registrant’s evidence that there may have been a clinical reason to be vague and inconsistent. The Registrant’s original hand was that she accessed Patient 56’s medical file because she was “catching up” having inherited patients from a previous physiotherapist. Her account then changed to her stating that she had been asked by a colleague, whom she could not name, to access the record to see if Patient 56 had been referred for physiotherapy.
 
Particular 1 (b) – Proved

Patient 57 is the son of Patient 56. The Panel carefully considered the Registrant’s oral evidence that she may have accessed Patient 57’s medical notes in error when looking at, or for Patient 56s medical notes. Dr HR give evidence that such an error is possible. However, the Registrant, who admitted this Particular, had accessed Patient 57’s medical notes around 1 ½ hours after she had accessed Patient 56’s medical notes and had not returned to look at patient 56’s medical notes thereafter. The Panel was satisfied that the Registrant had accessed Patient 57’s medical notes on 7 July 2016 without authorisation or any clinical reason.

Particular 2 – Proved

The Registrant admitted this Particular. The Panel carefully considered the Registrant’s oral evidence that she had accessed Patient 56’s medical file having been asked by the rugby team coach whether patient 56 ‘s other son would be safe to participate in rugby training which was due to take place the following evening. In her oral evidence, the Registrant stated that having accessed these medical notes, she quickly realised that it had been wrong for her to do so.

The Panel considered that the Registrant’s account in respect of this Particular lacked credibility. The Panel did not accept that the rugby team coach would have asked that question of the Registrant, given that he/she could have ascertained themselves whether patient 56’s son was safe to participate in training. Further as the rugby team physiotherapist, the Panel considered that the Registrant would have had access to the contact details of all of the team members and would not have needed to access Patient 56’s medical file for that reason.

Particular 3 – Not Proved

The Registrant has admitted that on 29 November 2016 she accessed Patient 57’s medical file without authorisation. However, it was accepted by LA that the Registrant did have a clinical reason to access the file given a query about Patient 57’s musculoskeletal situation. Given the acceptance that medical practitioners at Dollar could access files provided they had a clinical reason to do so, the Panel found this Particular not proved.

Particular 4 – Not Proved

The HCPC offered no evidence in respect of this Particular which accordingly the Panel found not proved.

Particular 5 (a) (b) and (c) – Proved

The Registrant admitted that she had booked the false appointments which have been particularised under Particulars 5a), b) and c). The Panel also had regard to the evidence of NB that on the dates when these 3 patients were due to attend their appointments, the Registrant was off sick and that the patients were telephoned by the appointment Hub to make new appointments. None of the 3 patients were aware of these appointments.

Particular 6 - Proved in respect of 6 (g) and 6 (k). Not proved in respect of 6 a), b) (i) – (v), c) (i-iv), d(i)-(ii), e(i)-(v), f, h, i, j (i-ii), l(i) – (v), m, n(i-v), o, p(i-iv), q and r(i-iv).

The Panel carefully considered the evidence relating to each sub- particular. The Panel considered that the evidence presented to support most of the sub-particulars of Particular 6 was insufficient for it to be able to find the matters proved on the balance of probabilities. NB’s evidence, including the audit report and her interview with the Registrant has disclosed that the information relating to the appointments which have been particularised within Particular 6 is vague and incomplete.

It is accepted that the Registrant was only under a duty to record patient notes when an appointment actually took place and the patient had attended. The Panel was of the view, that in respect of any appointment which NB stated had either been falsely booked by the Registrant or had gone ahead and the Registrant had not taken any notes, that sub-particular could not be proved. Similarly, sub-particulars for which there was no evidence that the patients had attended the appointments, could not be proved. Unfortunately, the patients in question were not spoken to and some of the patients’ appointments had been changed either by themselves or by the hospital.

The Panel noted that in respect of sub-particulars 6 g) and 6 k) which have been found  proved, the Registrant had remembered those specific appointments and not making any notes.

Particular 7 – proved


In her interview with the Trust and in her oral evidence, the Registrant accepted that her state of mind in falsely booking appointments for 3 patients was to “create some more time to catch up”. She also acknowledged that the result of her actions would have been to delay these and other patients from receiving treatment which they needed. The Panel was in no doubt that the Registrant’s actions in making false appointments was dishonest.

 

Decision on Grounds

12. The Panel considered that the facts found proved fell into 3 distinct categories;

(i) data protection breaches

(ii) acting dishonestly; and

(iii) failing to keep proper patient notes.

13. The Panel was satisfied that the Registrant’s conduct fell far below the standards required of a Registered Physiotherapist. As well as breaching several of the HCPC 2016 standards, the Registrant had breached fundamental tenets in particular, not to undermine confidence in her profession and to behave with honesty and integrity. For these reasons, the Panel was satisfied that the statutory ground of misconduct was established in respect of each of the above three categories.

 

Decision on Impairment

14. The Panel carefully considered the written submissions on current impairment provided to it by Miss Reid on behalf of the HCPC and Mr Sykes on the Registrant’s behalf. The Panel received and accepted the advice of the Legal Assessor.

15. The Panel considered both the personal and public components of impairment. It had regard to the HCPTS Practice Note on Finding that Fitness to Practise is impaired.

16. The Panel had regard to its findings of fact and misconduct. The Panel reminded itself that the matters found proved covered fundamental aspects of practice as a Physiotherapist, including data protection breaches, acting dishonestly and failing to keep proper patient notes. Further, the Registrant’s conduct had fallen far below the standards required of a Physiotherapist, caused unwarranted harm to patients whose appointments were falsified and consequently had brought her profession into disrepute. The Registrant’s dishonesty and her failure to keep proper patient notes involved attitudinal failings which are difficult to remediate.

17. The Panel considered that in the context of the Registrant being a practising Physiotherapist whose primary duty should have been the care of her patients, her dishonesty was of the most serious kind. In effect, by dishonestly creating false appointments, the Registrant caused these patients’ notes to have been noted as having had Physiotherapy appointments when that was not the case. This could potentially seriously affect the care planning for these patients as well as causing personal distress to them.

18. Whilst the Registrant has now expressed remorse, in the Panel’s view, she has failed to demonstrate real insight as to the seriousness of her dishonesty and the effect it could have had on patients. Similarly, in relation to the data protection issues, the Panel considered that the Registrant did not demonstrate proper understanding or insight. In her evidence, the Registrant stated that, in respect of data protection she would, “take further training if required”, which, in the Panel’s view demonstrated a clear lack of insight.
 
19. In respect of her failures to take proper patient notes (the number of patients concerning which has not been definitively established), the Panel considered that the Registrant displayed a casual arrogance as to the need to take proper patient notes, which was a significant concern to the Panel.

20. The Panel had regard to the fact that the Registrant has not worked as a Physiotherapist since 2018, and indeed, now works in an entirely different sphere. As a result, however, the Registrant has been unable to provide any evidence of steps taken to remediate her misconduct. The Panel was of the view that the Registrant could have done more than she has, for example by undertaking training courses on data protection and record-keeping. She could also have provided a reflective log as to the seriousness of her dishonesty and how it would not re-occur. None of that potential material was available to the Panel. Whilst the Panel was presented with positive testimonials, it was not satisfied that the material provided to it was sufficient to show that the Registrant’s misconduct would not or was highly unlikely to be repeated.

21. Given the lack of sufficient evidence of insight or remediation,  the Panel concluded that there is a continuing risk of repetition and that the Registrant’s fitness to practice is impaired on the personal ground of impairment. The Panel also concluded that the Registrant’s fitness to practise is impaired on the public ground of impairment given the damage to the reputation of her profession, particularly in relation to the Registrant’s dishonesty and the need to uphold proper standards. This is a case where the Panel was satisfied that public confidence in the profession and in the HCPC would be undermined were a finding of current impairment not made.


Decision on Sanction

22. The Panel carefully considered the written submissions on sanction provided to it by Miss Reid on behalf of the HCPC and Mr Sykes on the Registrant’s behalf. The Panel received and accepted the advice of the Legal Assessor.

23. The Panel was mindful that the purpose of any sanction was not to punish the Registrant but to protect the public and maintain public confidence in the profession and the HCPC as its regulator, by the maintenance of proper standards of conduct and behaviour and to serve as a deterrent in relation to such behaviour.

24. The Panel had regard to the HCPC’s Sanctions Policy [March 2019]. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of seriousness.

25. The Panel first considered the aggravating factors in this case. The Panel noted that the Registrant had breached the trust that patients had in her as a Physiotherapist by wrongly accessing medical notes, creating false appointments and failing to make proper patient notes. The Panel further considered that the Registrant had abused her professional position when she accessed the medical notes of patients 56 and 57.

26. As further aggravating factors, the Panel considered the Registrant’s limited insight into the effect of her misconduct, the lack of evidence of remediation and the finding of dishonesty. Further, the Registrant has taken very limited third-party help to assist her to deal with stress and her difficult personal circumstances.

27. As mitigating factors, the Panel took into account that the Registrant has had an unblemished career as a Physiotherapist for 29 years. She also admitted factual allegations and has cooperated throughout this investigation. The Panel also had regard to the Registrant’s evidence as to the stressful circumstances concerning her private life at the time.

28. The Panel, however, considered that as a professional, the Registrant ought to have raised concerns or sought help when it was appropriate to do so. Accordingly, the Panel was unable to give the Registrant’s personal circumstances at that time significant weight. However, given that the attitudinal failings occurred at a time of increased stress for the Registrant, the Panel considered that they could be remediated with effective coping strategies.

29. In determining the appropriate and proportionate sanction, the Panel had regard to its findings of fact. Having found that the Registrant’s fitness to practise is currently impaired due to misconduct including dishonesty, the Panel considered that it would be inappropriate to take no action, refer the matter to mediation, or issue a caution.
 
30. The Panel next considered whether a Conditions of Practice Order was appropriate and proportionate. The Panel was conscious that the Registrant has not practised as a Physiotherapist since 2018. Conditions of Practice have to be workable, practical, enforceable and verifiable. The Panel further considered that Conditions of Practice would not sufficiently protect the public or be proportionate in this case.

31. The Panel next considered a Suspension Order which is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a Conditions of Practice Order, but which do not require the Registrant to be struck off the Register or where striking off is not an available sanction, although it is in this case. In considering whether a Suspension Order was appropriate and proportionate, the Panel also considered the factors relevant to a Striking-Off Order.

32. The Panel accepted that the public would be protected during any period of suspension. However, the essential matter with which the Panel had to grapple was whether a Striking-Off Order was necessary given the seriousness of the misconduct found. The Panel noted the relevant paragraphs in the guidance which relate to dishonesty. It took into account paragraph 57 which reminds the Panel that dishonesty can have a significant impact on the trust placed in those who have been dishonest, and potentially on public safety. Putting false information in a service users record (such as falsely creating physiotherapy appointments as happened in this case), is a specific example given in paragraph 57 of the type of dishonesty likely to lead to more serious sanctions.

33. However, paragraph 58 of the guidance states that, “Panels should bear in mind that there are different forms, and different degrees, of dishonesty, that need to be considered in an appropriately nuanced way.” Whilst the Panel acknowledged its findings that the Registrant’s dishonesty was of the most serious kind, given the potential to affect care planning for patients or cause them personal distress, it did not consider that the dishonesty in this case would necessarily result in the most serious sanction. The dishonesty which was charged in this case was limited to three patients on two dates. It did not involve a consequence such as financial gain or actual physical/emotional harm.

34. Although dishonesty is difficult to remediate, the Panel is of the view that the Registrant could remedy her dishonesty with the development of a proper understanding of the consequences of her actions. Her remediation could also be assisted through training in ethics, data security, and medical record keeping.
 
35. The Panel also noted that a Striking-Off Order is a sanction of last resort where a lesser sanction would not be appropriate or proportionate. It is also a ‘long-term order’ where an application for re- admission to the Register would not normally be considered for a period of 5 years.

36. Having very carefully weighed all matters, the Panel eventually came to the conclusion that a Striking-Off Order was not necessary and would be disproportionate at this time.

37. In what was a very difficult and very finely balanced decision, the Panel concluded that the appropriate and proportionate sanction was a Suspension Order for the maximum period of 12 months.

38. Prior to the Suspension being lifted, a review will take place at which it will be expected that the Registrant attends and provides sufficient evidence that her misconduct has been remedied. Such evidence should be in the form of course certificates, showing the completion of training in ethics, record-keeping as well as that of data protection issues. Further, the Registrant should provide a reflective piece demonstrating her insight into her misconduct and the effect which it has had on her patients and her profession.

Order

Order: The Registrar is directed to suspend the registration of Ms Lesley McIlwraith for a period of 12 months from the date this Order comes into effect.

 

Notes

Interim Order

1. The Panel heard submissions from Ms Reid on the need for an Interim Order to cover the period during which an appeal may be made and, if one is made, whilst that appeal is in progress.

The Panel’s Decision

2. The Panel is of the view that, given the nature and seriousness of the misconduct in this case which resulted in a sanction of a Suspension Order for 12 months, it would not be in the public interest to allow the Registrant to be able to practice on an unrestricted basis during any appeal period. The Panel therefore determined that an Interim Order was necessary for the protection of the public and was otherwise in the public interest. The Panel first considered whether an Interim Conditions of Practice Order would be sufficient. However, for the same reasons as dealt with at the sanction stage, the Panel concluded that interim conditions would not be appropriate or proportionate in this case.

3. The Panel therefore decided to make an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect the public and otherwise in the public interest. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 12 months.

Hearing History

History of Hearings for Mrs Lesley J McIlwraith

Date Panel Hearing type Outcomes / Status
01/06/2021 Conduct and Competence Committee Final Hearing Suspended