Dr Janet Rich
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1. Whilst registered as a Practitioner Psychologist, in relation to Patient A, you did not maintain professional boundaries in that you:
a. Not proved.
b. In or around December 2016, asked Patient A to look after your dog.
c. In or around January to March 2017, socialised with Patient A in a pub.
d. Provided inappropriate support to Patient A in her legal proceedings.
2. Did not notify your line manager and/or clinical lead that concerns about the relationship between yourself and Patient A had been raised with you by Patient A’s GP on or around 6 February 2017.
3. You were uncooperative with line management supervision in that you:
a. Did not share information and/or records in relation to one or more of your patients with your supervisor and/or consultant when requested on one or more occasion;
b. Not proved.
4. Provided Patient A with around 188 therapy sessions when this should have been limited to around 16 sessions.
5. Whilst the subject of an order suspending you from the HCPC Register, you undertook consultations with patients on the following dates:
a. removed by amendment
b. removed by amendment
c. 26 April 2018
d. 2 May 2018
e. 3 May 2018
f. 9 May 2018
g. 10 May 2018
h. 16 May 2018
i. 22 May 2018
j. 31 May 2018
k. 5 June 2018
6. Not proved.
7. Not proved.
8. The matters described at Particulars 1 – 7 amount to misconduct.
9. By reason of your misconduct, your fitness to practice is impaired.
Hearing in private
1. At the commencement of the hearing it was submitted by the parties that it would be necessary for certain aspects of the evidence to be received in private. In addition to evidence that could result in the identification of Patient A, there would be evidence relating to the Registrant’s personal circumstances. The Panel agreed to evidence relating to these matters being given in private sessions to preserve the confidentiality of the private lives of those to whom the evidence related. However, the Panel was satisfied that the remainder of the evidence should be given in public.
The hearing dates
2. The original listing of the final hearing was for nine days, the first four days being between 9 and 12 February 2021, when it was intended that the HCPC would present its evidence. The concluding five days were listed for 22 to 26 March 2021 when it was intended that the Registrant would present her case and the Panel would make and deliver the decisions required to conclude the case. In the event, the submission of no case to answer made on behalf of the Registrant resulted in the Panel meeting on two days (1 and 4 March 2021) between these two sessions of the final hearing. The submission of no case to answer will be further explained in paragraphs 7 and 8 below.
HCPC application to amend the factual particulars of the allegation
3. By a letter dated 14 February 2020 the Registrant was put on notice that the HCPC would apply at the commencement of the final hearing to amend the factual particulars. In summary, the proposed amendments were to change the span of months during which it would be alleged that the Registrant socialised with Patient A in a pub, alter the allegation in relation to the support in legal proceedings to a contention that it was inappropriate whereas it had originally been alleged to have been undertaken despite advice from a clinical supervisor not to do it, and to add particulars 3(a)&(b) and 4. Further, the Presenting Officer sought to amend so as to delete sub-particulars (a) and (b) under particular 5 on the basis that the dates alleged in those sub-particulars did not fall after the making of the interim suspension of the Registrant’s registration. No objection was made by or on behalf of the Registrant to the proposed amendments and the Panel concluded that they were appropriate corrections and additions which would not result in prejudice to the Registrant. Accordingly, the Panel acceded to the HCPC’s application. The allegation as it is set out at the head of this document is in the form as amended.
Registrant’s response to the amended allegation
4. When the Registrant was invited to respond to the allegation as amended, particulars 1(b), 2 and 5(c) to (k) inclusive were admitted.
The separation of different elements of the allegation
5. Before the case was opened and any evidence called, the parties requested that the Panel should conduct the case by deciding, and announcing its decision on, the factual issues before proceeding to consider the issues of misconduct and current impairment of fitness to practise. The Panel agreed that there were positive advantages in acceding to this request. Accordingly, this initial determination is confined to the factual particulars.
Hearsay application by the HCPC in relation to Patient A and Person X
6. Before he opened the case, the Presenting Officer applied for permission to rely on the witness statements of Patient A and Person X without calling those witnesses to give evidence before the Panel. This application was opposed on behalf of the Registrant. Having decided the matter, the Panel handed down a ruling in writing that is appended to this determination as “Appendix A”. The Panel declined to permit the HCPC to rely upon the witness statements of these two witnesses in circumstances where they were not to be called to give live evidence before it.
Submission of no case to answer
7. Although an application was made after the HCPC had presented its case, it is convenient to deal at this stage with the submission made on behalf of the Registrant that there was no case for her to answer in relation to any of the factual particulars that had not been admitted. However, particular 7 (by which it was contended that the consultations following the making of the interim suspension order which was dishonest) was not included in the submission. The submission was made by Mr Walker and responded to by the Presenting Officer on 12 February 2021, the last day of the first tranche of hearing dates. The Panel considered that it was necessary to decide this application before the second tranche of hearing dates took place. Accordingly, the Panel met in private on 1 and 4 March 2021 to decide this application. A written ruling was prepared which was provided to the parties shortly after 4 March 2021 so that the Panel’s decision would be known in good time for the resumption of the hearing on 22 March 2021. That written ruling is appended to this determination as “Appendix B”.
8. The decision of the Panel was that there was no case to answer in relation to particulars 1(c), 1(d) and 4. Otherwise, the Panel concluded that there was a case to answer. It follows that when the hearing resumed on 22 March 2021, the following factual particulars remained in contention: 1(a), 1(b), 2, 3(a), 3(b), 5(c) to (k) inclusive, 6 and 7.
9. Until she was dismissed in relation to matters connected with the issues being considered by the Panel, the Registrant was employed as a Band 8B Clinical Health Psychologist by the Sussex Partnership NHS Foundation Trust (“the Trust”). Her working time was divided between two days a week in the Non-Epileptic Attack Disorder Neuropsychology service and three days a week providing Cognitive Behavioural Therapy to Neurological patients in the Neurological Long Term Conditions service.
10. The involvement of the Registrant with Patient A lies at the heart of the HCPC’s allegations, even those advanced by particulars 5 and 7 relating to the interim suspension order as that order was made as a result of concerns arising with regard to Patient A. Patient A had been a long-standing patient of the Trust, having been receiving treatment from 2007. The professional contact between the Registrant and Patient A commenced in 2012 and continued until early 2017 when the allegations about the nature of the relationship between the two arose. The Registrant was suspended on 30 March 2017, and was dismissed following an internal Trust disciplinary process in November 2017.
11. As will be further explained below, the Panel found that there was no case to answer in relation to the allegedly excessive number of therapy sessions that took place between the Registrant and Patient A, but the enduring nature and complexity of Patient A’s presenting condition and the fact that there was apparently no follow-on service to which the Registrant could refer Patient A, are relevant to the wider context of the relationship between the two individuals. The fact that Patient A was a patient who received attention above the norm was something that also emerged from Patient A’s G.P., who, when called by the HCPC to give evidence against the Registrant at the present hearing, stated that not only did she see Patient A up to twice a week (as well as referring her to the Mental Health Crisis Team and the Mental Health Team), and also stated that if Patient A missed an appointment she would telephone her to enquire as to her welfare.
12. The nature of the HCPC’s criticisms of the Registrant are clearly set out in the factual particulars and do not require further summary here.
Decision on Facts
13. The HCPC called a number of witnesses to give evidence before the Panel and also produced an extensive bundle of documentary exhibits. The Panel’s general assessment of the HCPC’s witnesses was as follows:
• Mr JB, a senior manager employed by the Trust undertook the investigation on behalf of the Trust. As the investigating officer, it followed that Mr JB had no direct knowledge of any of the relevant matters. The Panel found him to be focused and he understood the issues. In particular, he was very clear when a matter was not within the remit of the investigation he was charged to undertake, as he was when he was not clear about a matter or could not recall. The Panel considered his report to be of good quality, as far as it went, and found his evidence to the Panel helpful as to what he had been able to discover about the supervision arrangements that had been in place at the relevant time.
• Dr CB, Patient A’s General Practitioner. Dr CB was both very professional and clear. She responded appropriately in acting on the report of an inappropriate relationship made to her, initially consulting her colleagues and then taking further advice before writing to the Registrant. She provided useful background information about Patient A so that the Panel was able to understand just how ill she had been, and how much professional help she required, as referred to above.
• Mrs FM, called as an expert witness by the HCPC to deal with the disputed handwriting on two documents. The Panel found Mrs FM to be appropriately qualified to offer the opinion evidence the HCPC introduced. In oral evidence she provided an explanation of how she arrived at the conclusions she stated in her short written report, and demonstrated confidence in her own expertise when challenged in cross-examination.
• Dr VO, a Consultant Clinical Psychologist and Lead for Neuropsychology Services in Clinical Health Psychology at the Trust. Dr VO took over line management of the Registrant in October 2016. The Panel found that Dr VO gave her evidence fairly, displaying no hostility towards the Registrant, expressing empathy for her. She stated clearly that she could not recall if she could not. Further, she admitted her lack of experience as manager at the time as well as highlighting some confusion about supervision arrangements.
• Dr JB, a director of the company offering psychological services, through which the Registrant performed the work that is the subject of particular 5. The Panel found Dr JB gave clear evidence that was fair. He responded quickly and professionally when a report was made to him that the Registrant was continuing in breach of the interim suspension order. He was careful to establish the relevant facts before acting. His fairness was demonstrated by the fact that he acknowledged that when he contacted patients to inform them that alternative arrangements would have to be made for their future treatment, he received positive comments from patients about the Registrant’s involvement with them.
• Ms MC, a Consultant Clinical Psychologist and Clinical Lead for Complex Trauma at the Trust. She did not have regular contact with the Registrant after October 2015, and for the purposes of the decisions the Panel was required to make, the connection was limited to some supervision sessions that are relevant to particulars 3(a) and (b). The Panel found Ms MC to be a credible witness who gave a clear explanation of her role and of her involvement with the Registrant. She considered questions before answering them and was forthcoming when she could not remember matters she was asked about.
14. The Registrant herself gave evidence and called two witnesses to give evidence before the Panel. Additionally, she produced positive testimonial character evidence in written form. The Panel’s general assessment of the Registrant and her witnesses was as follows:
• The Registrant. The Panel found the Registrant to be a straightforward and honest witness who was at pains not to denigrate anybody by the evidence she gave. Her evidence gave the Panel a good impression of the stress she was experiencing in early 2017, as well as the frustrations she felt over the management of her. In addition, the Registrant provided much more detail concerning the clinical challenges and personal issues presented by Patient A, as well as her working environment.
• Dr A(H)B, a Clinical Psychologist working at the same level as the Registrant albeit in a different location with whom the Registrant sought peer supervision. The Panel found her to be a very competent and experienced practitioner who was very straightforward in the evidence she gave. It was clear that her relationship with the Registrant was professional, rather than one of friendship. She had a good understanding of the Registrant, the environment the Registrant was working in and her assessment of the Registrant was open and honest.
• Ms MO’D, had professional contact with the Registrant at two different stages in different capacities. In 2013, when a student, she was allocated to the Registrant as an unpaid intern for one year. In late 2016 to early 2017, Ms MO’D was working as a Psychology Assistant within the Trust. In that role she sat in on a number of the Registrant’s therapy sessions with Patient A and also had meetings alone with Patient A. The Panel found that Ms M’OD answered questions with complete honesty and did her absolute best to answer questions accurately, thinking carefully before answering.
15. When it deliberated on the facts, the Panel heeded the advice it received as to the proper approach to the decisions to be made. In particular, the Panel remembered throughout that the burden rested on the HCPC to prove the case against the Registrant, the standard of that burden being the balance of probabilities. In reaching its decisions, the Panel had regard to all the evidence it received that was relevant to the issue being considered. The following is a summary of the Panel’s findings, and of the reasons for those findings.
Particular 1(a): Whilst registered as a Practitioner Psychologist, in relation to Patient A, you did not maintain professional boundaries in that you:
a. Engaged in an inappropriate relationship with Patient A.
16. The HCPC’s case is that the Registrant had a sexual, or at least romantic, relationship with Patient A. It is based on a post-it note, a card and a series of telephone text messages. The Panel will consider the strength of the contentions based on these sources, but before it does so it considers it necessary to put that serious contention in the context of what is known about the Registrant. The findings the Panel makes about the Registrant are as follows:
• There is no evidence that the Registrant is or was a lesbian.
• The only evidence that the Panel can rely upon that there was any contact between the Registrant and Patient A outside formal clinical sessions was when they had walked the Registrant’s dog during a session, when they had been in contact over the loan of the dog to Patient A (as to which, the circumstances will be explained in connection with particular 1(b)), and an encounter in a public house. That the evidence relating to the latter meeting did not support any finding other than it was a chance encounter explains the acceptance by the Panel that there was no case to answer that the Registrant had “socialised” with Patient A.
• Albeit that its status is a hearsay statement, the Panel noted that when interviewed for purposes of the Trust enquiry, Patient A categorically denied that she had been in a sexual relationship with the Registrant.
• There was no attempt by either the Trust for the purposes of the internal disciplinary process or by the HCPC in the context of the allegations currently being examined to obtain evidence from individuals connected with the Registrant’s work relating to the contention that there had been an inappropriate relationship. A number of people might have been able to cast light on this issue, including the Registrant’s P.A., Ms JG and Ms MO’D, a Psychology Assistant who, on a significant number of occasions, was present when the Registrant had treatment sessions with Patient A. In the event, at this hearing the Registrant called Ms MO’D to give evidence, and the Panel was impressed by her incredulity at the suggestion that there had been an inappropriate relationship.
• Ms MO’D’s involvement with Patient A is relevant in another respect because the Registrant took active steps to arrange for Ms MO’D to have sessions with Patient A on her own. Such sessions did take place for some time, although they did not continue because of lack of engagement on the part of Patient A. However, the Panel found that it was inherently unlikely that, if the Registrant had been engaged in an inappropriate relationship with Patient A, she would have suggested that lone working because it would have carried with it the risk of discovery. The same point applies to the numerous referrals the Registrant made to other agencies, including for assessment, for a Multi Agency Risk Assessment Conference, which amongst other agencies included the Police.
17. The contextual matters just referred to would, in the absence of any other evidence, have had the consequence that there would have been no basis upon which the Registrant’s denial of the improper relationship could have been doubted. It follows that the Panel must consider the evidence that the HCPC contends should lead to the Registrant’s denial not being accepted. As has already been indicated, these factors are (i) the post-it note and the card and the associated expert handwriting expert, and, (ii) the text messages. Separate considerations apply to these aspects and they will be taken separately.
18. The ruling made by the Panel on the issue of hearsay evidence resulted in the provenance of the post-it note and card being somewhat opaque. The direct evidence that the Panel unhesitatingly accepted was that these two documents were sent by Person X to Patient A’s G.P., Dr CB, on 27 March 2017. They were sent as photographs attached to an email. So far as the Panel has been able to determine, no original or better version than an email attachment of a photograph was produced in either the Trust investigation or in the present proceedings. It is certainly the case that during the Trust process the Registrant requested the original documents so she could instruct a graphologist, yet they were not produced to her. Not only has no version of these documents closer to the original than described been produced, but, when the HCPC instructed an expert handwriting witness, the documents provided to her for analysis were not only at least as remote as those as received by Dr CB. and subsequently passed on by her to the Trust, but, additionally, they had been redacted by the Trust and annotated by the expert witness instructed by the Trust.
19. The Panel has already stated in its general assessment of Mrs FM, that it accepted that she was an honest witness who had the required degree of expertise in the relevant field to afford her the competence to give expert evidence. The evidence of Mrs FM was that there was very strong evidence that the two relevant documents were written by the Registrant, although she conceded in evidence that there was a slim possibility of forgery. When the Panel weighed the evidence of Mrs FM against the contextual matters described and the Registrant’s denial, its conclusion was that it did not find that the Registrant had written these documents.
20. Before turning to consider the HCPC’s case in relation to the text messages, it is necessary to deal with the issue of another handwriting expert, Ms MW. Included in the HCPC’s exhibits bundle, presented as an appendix to the Trust investigation report, was a report by another handwriting expert. It was submitted on behalf of the Registrant that no regard should be placed on this document. On behalf of the HCPC, the Presenting Officer explicitly stated that the HCPC did not rely upon it as expert evidence, but, sought to rely upon it as evidence of fact. The Panel took the view that it could not rely on this evidence. For it to be applied to a consideration of whether or not the Registrant wrote the disputed documents, it would be necessary to treat it as opinion evidence. The HCPC quite properly sought permission at a Preliminary Hearing for permission to rely on expert evidence. That application was made in relation to the evidence of Mrs FM and was determined on 24 August 2020 when a Panel of this Committee gave permission for the evidence of Mrs FM to be adduced. There was no application made by the HCPC in relation to Ms MW, and there is no mention of her in the Preliminary Hearing Panel’s determination. The Panel accepts as a fact that the Trust obtained the evidence of Ms MW and has been able to read what that evidence was, but it would not be fair to the Registrant to admit it as expert, opinion evidence for the purposes of the present decision when there has been no opportunity to challenge it.
21. So far as the text messages are concerned, the difficulties over provenance are even more acute than those in relation to the post-it note and card. It was not at all clear to the Panel that they were exhibits that had been produced at all in view of the exclusion of the witness statement of Person X. However, as they featured in the evidence, as the Registrant was cross-examined on them and as they were dealt with in the closing submissions, the Panel will state its findings in relation to them. They are dated, or purportedly dated, 29 August 2019, 6 September 2019 and 25 September 2019. These dates are significant because they are approximately 30 months after the post-it note and card were produced, the same length of time after the Registrant’s suspension, approximately 16 months after the interim suspension order was made and some months after a panel of the HCPC’s Investigating Committee found that there was a case to answer in relation to the allegations currently being considered by this Panel. The contention that they involved inappropriate communications on the part of the Registrant with Patient A is based on the fact that the letters, “DJR” appear above the messages. It is within the knowledge of the Panel that these letters are very likely to represent how the owner of the receiving telephone recorded the number of the sending telephone in the receiving address book. It is neither appropriate nor necessary for the Panel to speculate on who wrote these messages or who recorded a telephone number in that manner, or why those things might have been done. It is sufficient for the Panel to state that it finds it utterly inconceivable that the Registrant sent these messages to Patient A, particularly in view of the chronology just mentioned and the fact that the Registrant’s accepted evidence was that she had had no contact with Patient A for some considerable time by the late summer of 2019.
22. It follows from these findings that the Panel finds that there is no evidence it accepts that could lead to the conclusion that the Registrant engaged in an inappropriate relationship with Patient A. It follows that particular 1(a) is not proven.
23. As the contention of sexual motivation is dependent upon particular 1(a) being factually established, it necessarily follows that particular 6 is also not proven.
Particular 1(b): Whilst registered as a Practitioner Psychologist, in relation to Patient A, you did not maintain professional boundaries in that you:
b. In or around December 2016, asked Patient A to look after your dog.
24. This particular was admitted by the Registrant. The admission accorded with the evidence produced by the HCPC, including that of Dr AB and Dr CB. It was also confirmed by Ms MO’D when she gave evidence on behalf of the Registrant.
25. As the Panel is presently deciding whether the factual particulars are proved, the culpability of this issue will not be assessed at the present time. However, it is appropriate to state the Panel’s findings as to the context in which the loan of the dog occurred. The dog had been present during some of the Registrant’s sessions with Patient A sessions as an element of that therapy. As Christmas 2016 approached, Patient A led the Registrant to believe that she would be alone over the Christmas period, and as Patient A was reporting to the Registrant that she was being repeatedly attacked by her abuser who was in the habit of breaking into her home, the Registrant considered that the presence of the dog would afford Patient A reassurance and a degree of protection. Shortly after the loan, the Registrant accepted that the loan of the dog constituted a breach of professional boundaries, an acceptance she has maintained. However, it is important that the Panel records that it accepts that her motives were well-intentioned, if misguided, and did not occur as a result of the Registrant having an ulterior motive.
26. Particular 1(b) is proven.
Particular 2: Did not notify your line manager and/or clinical lead that concerns about the relationship between yourself and Patient A had been raised with you by Patient A’s GP on or around 6 February 2017.
27. Again, this particular was admitted by the Registrant, and the Panel found that it accorded with the evidence presented to it.
28. The context is again relevant, and it is particularly important to explain why Patient A’s G.P., Dr CB, wrote to the Registrant. Shortly before Dr CB wrote the letter dated 6 February 2017, she had been telephoned by Person X who stated that Patient A had informed her that she was in a relationship with the Registrant. Given the hearsay nature of this evidence and the multiple conflicts between the accounts of Person X and Patient A, it is not possible to place any reliance on the truth of the assertion that there was a relationship. However, the Panel unhesitatingly accepts that these words were spoken by Person X to Dr CB, and they explain Dr CB’s actions. Dr CB consulted with her partners and her defence union, and then wrote the letter dated 6 February 2017. Without identifying Person X in the letter, Dr CB wrote to the Registrant stating that she had been told by a third party that Patient A had stated to the third party that she was in a relationship with her Psychologist. The letter continued, “I felt that I should inform you of this information and ask for a direct response from you and your supervisor.” It is important to note that the post-it note and card discussed in relation to particular 1(a) did not feature in this letter, nor could it because the email containing the attached photograph was not sent to Dr CB until approximately three weeks after she wrote this letter to the Registrant.
29. The Registrant told the Panel, and the Panel accepts, that when she received the letter dated 6 February 2017, she thought that it was the loan of the dog that was considered to be inappropriate. The Registrant did reply to Dr CB by a letter dated 22 February 2017. In that letter she stated, “Thank you for your letter dated 6th February 2017. I have had a discussion with Patient A regarding the allegations as stated in the letter. I can assure you that although both you and I have been working intensively with Patient A, and she has been offered support outside the usual amount of support offered to any patient, I do not believe that a “relationship” as suggested by a third party, is anything of concern for Patient A’s safety. The only boundaries that have been crossed was during Christmas when Patient A looked after our family dog for two days, as I felt it would be company for Patient A and may have helped her feel a little safer during this difficult period. On second thoughts, this was outside the usual therapeutic boundary, and having discussed it with my supervisor it has been felt this was inappropriate.”
30. In her evidence before the Panel, Dr A(H)B confirmed that the Registrant had discussed with her the loan of the dog and that she (Dr A(H)B) had stated that she thought it inappropriate.
31. However, despite these matters, the Registrant did not notify her line manager or the clinical lead about the concerns raised by Dr CB in the letter dated 6 February 2017, with the consequence that particular 2 is proven.
Particular 3(a): You were uncooperative with line management supervision in that you:
a. Did not share information and/or records in relation to one or more of your patients with your supervisor and/or consultant when requested on one or more occasion;
32. Having carefully considered the evidence of Dr VO and Ms MC, the Panel has concluded that their evidence supports this criticism. Although relating to a period that ended in approximately October 2016, the evidence of these two witnesses who gave evidence before the Panel is supported by the hearsay record of a telephone interview of Dr AB conducted on 27 April 2017 for the Trust investigation.
33. The Panel does not find that the Registrant was totally uncooperative, and it is fair to record that the meetings at which the lack of cooperation was manifested were only expected to take place once a month and even then there were occasions when they were postponed. The Panel acknowledges that there is an absence of evidence of documented clear requests for those matters that are said to have demonstrated lack of cooperation, as there is a lack of documentation stating that the issue would be escalated without a greater degree of cooperation. Furthermore, the lack of cooperation occurred against a background of concerns felt by the Registrant as to her future prospects in her employment, as well as significant personal issues.
34. However, having regard to all the evidence the Panel is satisfied that particular 3(a) is proven.
Particular 3(b): You were uncooperative with line management supervision in that you:
b. On or around 28 March 2017 avoided discussing Patient A with your supervisor and/or consultant when requested.
35. This particular relates to a specific meeting that was scheduled to take place on 28 March 2017 that was to be attended by Dr VO and Ms MC. Ms MC arrived 90 minutes late having been held up in bad traffic and childcare factors required Dr VO to leave 30 minutes after Ms MC arrived. The Panel makes no criticism of those matters as factors such as this simply occur, but they are nevertheless relevant to the issue of whether the Registrant demonstrated a lack of cooperation at the meeting. That meeting did not take place at the premises where the Registrant worked and that had the consequence that she was not permitted to take paper patient records to the meeting. Furthermore, Dr VO conceded that it would not have been appropriate for her to look at the electronically recorded notes as Patient A had withheld consent to her notes being viewed by others. Given all these factors the Panel has concluded that it would not be fair to reach a finding on the balance of probabilities that the events of 28 March 2017 could be said to have demonstrated a lack of cooperation with line management supervision.
36. Accordingly, particular 3(b) is not proven.
Particular 5: Whilst the subject of an order suspending you from the HCPC Register, you undertook consultations with patients on the following dates:
(c) 26 April 2018 through to (k) 5 June 2018.
37. The Registrant admitted this particular in relation to the nine dates between 26 April 2018 and 5 June 2018 that remained after the HCPC applied to delete the first two dates originally alleged. The Panel has seen the determination of the panel of the Investigating Committee which made an interim suspension order on 23 April 2018. It was also satisfied that the admission of the specific dates accorded with the documentary evidence (including contemporary invoicing evidence) that sessions were indeed held on those dates. It was confirmed by Dr JB, the Director of the company through which the Registrant worked these sessions, that to work for the company HCPC registration was required. It follows that the work was in fact prohibited by the terms of the interim suspension order.
38. Accordingly, particular 5 is proven in relation to sub-particulars (c) to (k).
Particular 7: Your actions as described in particular 5 were dishonest.
39. The starting point for the decision in relation to the HCPC’s case that in continuing to work as a Practitioner Psychologist was dishonest was for the Panel to determine the Registrant’s state of mind when she continued to practise after 23 April 2018 until an unidentified individual contacted Dr JB reporting a concern that the Registrant was continuing to practise.
40. The Registrant’s evidence to the Panel was that she held a genuine belief that the suspension of her registration did not preclude her from continuing to see the patients she was already seeing through that company, patients with whom she knew her involvement would be relatively short-lived as they had a set number of sessions booked. She informed the Panel that she did not take on any new patients, and, indeed, positively declined to accept some she might otherwise have been engaged to see had she not been the subject of the interim suspension order.
41. It is, of course, obvious to the members of this Panel that no work as a Practitioner Psychologist was permissible after the interim suspension order was made on 23 April 2018. However, the Panel has concluded that it cannot apply what is obvious to it to determine the Registrant’s state of mind, but rather must look at all the surrounding circumstances. The following factors are relevant:
• Although the Registrant attended the interim order hearing and addressed the Panel, she was not represented at the hearing.
• There is no reference in the body of the panel’s determination to the effect that an interim order would have in relation to patients already being seen by the Registrant.
• The order is worded, “The Registrar is directed to suspend the name of Dr Janet Rich from the Register on an interim basis for a period of 12 months.” The words, “with immediate effect” (or similar) are not included in that order.
• The HCPC has not produced a transcript of what was said at the interim order hearing, and so there is no evidence that the issue of the issue of patients already being treated was addressed or that the formal terms of the order just reproduced were expanded upon by the panel chair to state explicitly that it would apply immediately to all work.
• The present Panel accepts that the Registrant did not ask for any clarification of the effect of the order (although she concedes that it might have been sensible to do so and would certainly do so if similar circumstances arose again).
• As has already been stated, the Registrant confined her post-interim order work to a limited number of relatively short term patients, and did not accept new patients.
42. Having applied these factors to the crucial question of whether the Panel could say that there were cogent grounds for finding that the Registrant’s evidence as to her belief was untrue, the Panel concluded that it could not find that the Registrant was untruthful on this issue.
43. It followed that the question in relation to dishonesty was whether ordinary decent people would consider that it was dishonest to continue to practise following the making of the interim order in circumstances where the practitioner held the genuine belief in relation to pre-existing patients that has already been referred to. The Panel concluded that a person asked this question might well reply that it was naïve to hold this view, and that it was incautious not to seek explicit clarity from the HCPC. However, the Panel concluded that it would not be regarded as dishonest.
44. Accordingly, Panel particular 7 is not proven.
The next stage of the hearing
45. The result of these findings is that the Panel must proceed to consider the issues of misconduct and current impairment of fitness to practise in relation to particulars 1(b), 2, 3(a) and 5(c) to (k) inclusive.
Decision on misconduct
46. After the Panel handed down its decision on the facts, the parties were allowed time to consider that decision before making further submissions.
47. The parties agreed that it was convenient for them to make their submissions on misconduct and current impairment of fitness to practise at the same time, and then for the Panel to decide those issues in one retirement.
48. On behalf of the HCPC, the Presenting Officer referred the Panel to the written submissions he had presented to the Panel at the commencement of the case on 9 February 2021. He developed those submissions orally, particularly with regard to the proper approach to the consideration of whether findings of fact were of sufficient seriousness to merit a finding of misconduct. On behalf of the Registrant, in relation to misconduct Mr Walker submitted that the findings fell short of the required threshold of seriousness, particularly given the contextual findings of the Panel in relation to those particulars found proved and referred the Panel to the documents in the Registrant’s bundle, including her reflective piece.
49. The Panel accepted the advice it received in relation to the issues to be decided, and in particular the importance of deciding the issues of misconduct and current impairment of fitness to practise separately and sequentially. Accordingly, the first issue decided by the Panel was whether the factual findings in relation to particulars 1(b), 2, 3(a) and 5 should lead to a finding of misconduct.
50. The approach the Panel took was as follows:
• First, to decide if the proven particulars constituted breaches of standards required by the HCPC. In turn, this involved considering both the Standards of conduct, performance and ethics 2016 (“the conduct standards”) and the Standards of proficiency relating to Practitioner Psychologists 2015 (“the proficiency standards”).
• Then to assess the seriousness of any breaches established and also to consider whether it would be appropriate to consider separate factual particulars together to decide if there had been a serious falling short from expected standards.
51. With regard to breaches of standards, the Panel concluded that there had been a number of breaches.
• Particular 1(b). This particular breached:
o Of the conduct standards, under the heading “Maintain Appropriate Boundaries”, 1.7 “You must keep your relationship with service users …. professional.”
o Of the proficiency standards, 2.10, “be able to recognise appropriate boundaries and understand the dynamics of power relationships.”
• Particular 2. This particular breached:
o Of the conduct standards:
under the headings, “Communicate appropriate and effectively” and “Work with colleagues”, standard 2.6, “You must share relevant information, where appropriate, with colleagues involved in the care, treatment or other services provided to a service user”; and,
under the headings, “Report concerns about safety” and “Follow up concerns”, “You must acknowledge and act on concerns raised to you, investigating, escalating or dealing with those concerns where it is appropriate for you to do so.”
o Of the proficiency standards, 7.3, “be able to recognise and respond appropriately to situations where it is necessary to share information to safeguard service users or the wider public.”
• Particular 3(a). This particular breached:
o Of the conduct standards, the same standard 2.6 that is referred to in relation to particular 2.
o Of the proficiency standards, standard 9.1, “be able to work, where appropriate, in partnership with …. other professionals ….”
• Particular 5(c) to (k) inclusive. This particular breached:
o Of the conduct standards: Under the heading “Personal and professional behaviour, standard 9.1, “You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.”
o Of the proficiency standards, standard 2.2, “understand what is required of them by the Health and Care Professions Council.”
52. The Panel reminded itself that the existence of a breach of standards, or even a number of breaches, should not automatically lead to a finding of misconduct. What is required is an assessment of the seriousness of the breach or breaches, where appropriate, considering breaches of a like nature together. Accordingly, the Panel went on to make the following findings:
• Particular 1(b). The Registrant should clearly not have loaned her dog to Patient A despite the intentions held by the Registrant that it would provide Patient A with comfort and security. However, given the Registrant’s motives, the Panel considered that the breach this particular constituted should properly be categorised as misguided or ill-judged rather than a serious falling short of expected standards. For that reason the Panel concluded that this particular should not be considered to be misconduct when considered in isolation. Furthermore, as there was no other proven particular of a similar nature, the Panel found that it would not be appropriate to include particular 1(b) to be considered together with any other proven particular to make a finding of misconduct.
• Particulars 2 and 3(a). The Panel considered these particulars together because there is a similarity between them. Indeed, it is possible that the Registrant’s failure to notify her line manager of Dr CB’s letter founding particular 2 was a yet further example of the lack of cooperation underpinning the finding that particular 3(a) is proven. The Panel found that these particulars were of a more serious nature, and when taken together crossed the threshold of seriousness to warrant a finding of misconduct.
• Particular 5(c) to (k) inclusive. Despite the fact that the Panel accepted the Registrant’s honest belief that she was permitted to continue to see four pre-booked, existing patients after being suspended. The Panel considers that the simple fact of continuing to practise when suspended must be considered to be serious misconduct. Any other conclusion would result in the public justifiably losing confidence in the robustness of the regulation of Practitioner Psychologists.
53. Accordingly, the Panel found that misconduct is established. It is based on particulars 2, 3(a) and 5(c) to (k) inclusive, but not on particular 1(b).
54. The Panel must therefore proceed to consider the issue of current impairment of fitness to practise.
Decision on Impairment
55. As the Panel determined that the statutory ground of misconduct is established, it became necessary for the Panel to consider whether that misconduct is currently impairing the Registrant’s fitness to practise.
56. It has already been stated that the submissions made by the parties after they absorbed the Panel’s decisions on the facts addressed the issues of misconduct and current impairment of fitness to practise. With regard to impairment of fitness to practise, the Presenting Officer’s written submissions helpfully set out the tests to be applied. On behalf of the Registrant, Mr Walker asked the Panel to have regard to the context in which the established breaches occurred, and, importantly, the reflections demonstrated by the Registrant both in writing and in her oral evidence. He asked the Panel to accept that there would be no recurrence of breaches of the nature being considered by the Panel. Furthermore, he asked the Panel to find that the contextual matters meant that it would not be necessary to warrant a public marking of the findings. Accordingly, he submitted that there should be no finding of impairment of fitness to practise.
57. In reaching its decision the Panel paid close attention to the HCPTS Practice Note entitled, “Finding that Fitness to Practise is ‘Impaired’”. Consistent with the guidance contained in that document the Panel considered separately the personal component and the public components of impairment of fitness to practise.
58. When it considered the personal component, the Panel decided that the following factors were relevant:
• So far as particulars 2 and 3(a) were concerned, they occurred at a time of personal stress being suffered by the Registrant as a result of events in both her personal life and arising from her working environment. They also occurred against a background of a sub-optimal managerial background.
• So far as particular 5(c) to (k) is concerned, the breach of the terms of the interim order was not dishonest or even deliberate; the personal culpability was in not verifying what was, and what was not permitted.
• The Registrant provided the Panel with a strong reflective piece which, along with her oral evidence, persuaded the Panel that she had learned a salutary lesson from the events that occurred, and this point applies to each element of the misconduct.
• Furthermore, the Registrant has undergone additional training in some of the relevant areas.
59. The conclusion reached by the Panel was that in the light of the factors just identified there is a low risk of repetition. That conclusion translated to a finding that the fitness to practise of the Registrant is not currently impaired in relation to the personal component.
60. Different considerations apply to the consideration of the public component. It is, of course, possible for a finding of public component impairment of fitness to practise to be made even when the absence of a significant risk of repetition does not require such a finding in relation to the personal component. Central to this consideration are issues of the maintenance of a proper degree of public confidence in the profession and the regulation of it, as well as factors such as the declaration and upholding of proper professional standards.
61. In its finding on misconduct, the Panel stated that particulars 2 and 3(a) were serious, particularly when taken together. The Panel does not resile from that view, but it has equally concluded that they are not so serious that a finding of public component impairment is required in circumstances where fully informed and fair-minded members of the public would be satisfied that they occurred at a particular time and in particular circumstances and would not be repeated in the future. For the reasons stated above in relation to the personal component finding with regard to these particulars, the Panel is satisfied that an informed bystander would indeed take that view. Further, the Panel has taken the view that the finding that they constituted misconduct is sufficient to establish that they constituted a serious departure from proper professional standards. Accordingly, the Panel finds that it is not necessary to make a finding of public component impairment of fitness to practise in relation to particulars 2 and 3(a).
62. Different considerations apply, however, to particular 5(c) to (k). It has already been stated on a number of occasions, but it nevertheless bears repetition, that the Panel does not find that the Registrant deliberately flouted the terms of the interim suspension order, still less that she acted dishonestly in continuing to practise after it was imposed. Furthermore, the Panel acknowledges that a small number of pre-existing patients were seen and it was expected that the Registrant’s involvement with them would continue for a relatively short period of time. Nevertheless, the Panel takes the view that so serious is the simple act of continuing to practise following the making of an interim order that it is necessary to mark the gravity of it by making a finding of public component impairment of fitness to practise in relation to it. This is because members of the public are entitled to believe that interim orders can be applied where necessary, and, if determined to be necessary, complied with. In the view of the Panel any conclusion other than the one arrived at in relation to this particular would seriously undermine the confidence the public is entitled to have in the regulation of registered professions.
63. It follows from these findings that the Panel finds that the Registrant’s fitness to practise is currently impaired, but that finding is limited to the public component and in relation to particular 5(c) to (k) alone.
Decision on Sanction
64. After the Panel handed down its decision on misconduct and current impairment of fitness to practise it allowed the parties to consider it before making their submissions on sanction.
65. When the hearing resumed, the parties made their submissions on sanction. The Presenting Officer identified some factors which he submitted might be considered aggravating factors and he also made submissions as to the proper approach to the making of a decision on sanction. The Presenting Officer did not, however, urge the Panel to apply any particular sanction, making clear that the HCPC’s position was one of neutrality.
66. On behalf of the Registrant, Mr Walker referred to a number of factors that he submitted the Panel could take into account when making its decision which he described as “mitigation”. For reasons the Panel will explain in paragraph X below, it has taken the view that this is a case where it does not consider that it is helpful to identify in the usual way “aggravating” and “mitigating” factors. That does not mean, however, that the Panel has overlooked or ignored the points relied upon by Mr Walker. On the contrary, the Panel has had regard to them in deciding on the length of the order that it has concluded is necessary. Mr Walker urged the Panel to conclude that the finding that the allegation is well founded is a sufficient marker of the seriousness of the matter, and that it should not be thought necessary to impose a sanction to underline the matter. He therefore submitted that this is a case in which the Panel could decide that it is not appropriate to take any further action (an outcome that would involve the Panel concluding the case in the manner provided for by Article 29(4)(b) of the Health Professions Order 2001). In support of this submission he relied upon the reported decision of the High Court in Wallace v Secretary of State for Education EWHC 109 (Admin.).
67. The Panel does not consider that there are any factors collateral to the issue of continuing to practise when an interim suspension order has been imposed that aggravates it. The simple fact that it occurred is very serious, and that is the reason why the Panel categorised it as misconduct and why that misconduct continues to impair the Registrant’s fitness to practise. In the view of the Panel the factors identified by Mr Walker do not reduce the seriousness of the matter, although, as will be explained, the Panel does consider that those factors are relevant to the response that is required to satisfy public concern arising from the breach.
68. In deciding on the issue of sanction the Panel paid close attention to the HCPC’s Sanctions Policy. Consistent with the guidance contained in this document the Panel accepted that punishment of the Registrant should form no part of the sanction decision. Furthermore, although in many cases protection of the public and service users is an important factor determining the sanction required, it is not a factor in this case. For the reasons already explained why particular 5(c) to (k) inclusive amounted to misconduct, and the reason why that misconduct is still impairing the Registrant’s fitness to practise, it is the need to uphold public confidence that is the sole factor that could justify the imposition of a sanction.
69. The Panel first considered whether the seriousness of the finding would be adequately addressed by taking the view that the finding that the allegation is well founded is sufficient, concluding the case without taking any further action. Having carefully considered the matter, the Panel concluded that to take such a course would not reflect the seriousness of the matter. The Panel therefore went on to consider the available sanctions.
70. The first sanction considered was a caution order. The Panel was of the provisional view that a caution order would be a sufficient marker to reassure the public of the seriousness with which non-observance of interim orders is viewed. To satisfy itself that a caution order should be made, the Panel assessed the appropriateness of the next sanction that would have to be considered if a caution order were not to be made, namely a conditions of practice order. The Panel was of the clear view that a conditions of practice order was neither required nor would it be appropriate to the factor requiring the imposition of a sanction. It is not appropriate because no relevant conditions could be framed and the Registrant does not present a risk to service users. A conditions of practice order not being appropriate, it is not required and would be a disproportionate response if imposed.
71. Having satisfied itself that a caution order is required, the Panel then considered the length of that order. It was at this stage that the Panel applied factors identified by Mr Walker in his submissions, namely the fact that the circumstances of the wider case (although not specifically particular 5(c) to (k) inclusive) had resulted in the Registrant being dismissed, being the subject of an interim suspension order for very nearly three years and suffering significant economic hardship as a result. When these factors, together with the very important facts that the Registrant has reflected, expressed remorse and offered an apology, the Panel concluded that the public would be reassured that the matter has been treated as the serious breach it was by the imposition of a caution order for the minimum period permissible of one year.
72. The Panel being of the view that a caution order for one year is at the same time both necessary and sufficient, it was also satisfied that it represents a proportionate response to its findings.
ORDER: That the Registrar is directed to annotate the register entry of Dr Janet Rich with a caution which is to remain on the register for a period of one year from the date this order comes into effect.
Right to Apply to the Court:
Under Article 31(12) of the Health and Social Work Professions Order 2001, you may apply to the appropriate court to terminate the order.
History of Hearings for Dr Janet Rich
|Date||Panel||Hearing type||Outcomes / Status|
|22/03/2021||Conduct and Competence Committee||Final Hearing||Caution|