Mrs Lorna C Carr

Profession: Occupational therapist

Registration Number: OT43332

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 15/03/2021 End: 17:00 18/03/2021

Location: This hearing will take place virtually

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

As a registered Occupational Therapist (OT43332) your fitness to practise is impaired by reason of misconduct. In that:

1. Whilst signed off as unfit to work, and receiving sick pay from West Lothian Council, you provided information to West Lothian Council in that, you stated:

a) You were unable to go outdoors without polarised lenses;

b) You could only tolerate short periods of daylight;

c) You were rarely able to leave your home environment;

d) You were unable to drive.

2. Whilst employed by West Lothian Council and receiving sick pay, you attended and/or participated in Sensory Sessions classes on the following dates:

a) Wednesday 6 September 2017;

b) Thursday 7 September 2017;

c) Monday 11 September 2017;

d) Monday 30 October 2017.

3. Your actions at paragraphs 1 and 2 were misleading and/or dishonest.

4. The matter’s described at paragraphs 1 to 3 above constitute misconduct.

5. By reason of your misconduct your fitness to practise is impaired.

 

Finding

Preliminary Matters:

Service of Notice of Hearing

1. This hearing has been conducted by video conference and the Registrant has not participated. The Legal Assessor advised the Panel of the effect of the Health and Care Professions Council (Coronavirus)(Amendment) Rules 2021. Rule 3 (3) of those Rules provides for service of a notice of hearing on a Registrant:
(i) by post to or left at the registrant’s address as it appears in the register, or
(ii) sent by electronic mail to an electronic mail address which the registrant has notified to the Council as an address for communications.

2. Notice of today’s hearing was sent by email to the Registrant on 8 December 2020. The Panel was satisfied that the email address used by the Health and Care Professions Tribunal Service (“HCPTS”) in sending the email was an email address notified to the Health and Care Professions Council (“HCPC) by the Registrant as an address for communications. The Panel found that the notice of hearing had been properly served on the Registrant.

Proceeding in the absence of the Registrant

3. These proceedings were earlier considered by an Investigating Committee of the HCPC and the Registrant engaged with those earlier proceedings by submitting representations by email, the last email communication being on 17 December 2019. Since then, there have been letters from the HCPTS to the Registrant on 14 January 2020, 1 April 2020 and 8 December 2020 to which the Registrant has not replied.

4. On behalf of the HCPC, Ms Lykourgou asked the Panel to continue the hearing in the absence of the Registrant. Ms Lykourgou asked the Panel to take into account that although the Registrant had a right to defend the case there was a public interest in moving proceedings such as these forward with reasonable expedition. There was a responsibility on the Registrant to engage with her Regulator. The Registrant had failed to reply to a number of contacts made by the HCPTS. Ms Lykourgou asked the Panel to accept it was unlikely that any adjournment would lead to the Registrant attending and, further, to accept that the Registrant had waived her right to attend.

5. The Panel took into account that there had been no engagement by the Registrant since December 2019 despite subsequent letters and emails to her from the HCPTS. The Legal Assessor drew the attention of the Panel to the HCPTS Practice Note: Proceeding in the Absence of the Registrant. The Panel further noted the public interest in these proceedings moving forward with reasonable expedition. There were two witnesses in support of the HCPC case who were ready to give evidence. There had been no application for an adjournment made by the Registrant. There was nothing to indicate that if this hearing were to be adjourned that the Registrant would attend on a future occasion. It appeared that the Registrant had chosen not to attend the hearing. The Panel accepted that the Registrant was likely to be disadvantaged if the hearing took place in her absence. That was clearly a matter to be taken into account by the Panel when balancing all of the factors. However, the Panel concluded, in all the circumstances, that the correct and fair decision was to proceed in the absence of the Registrant.


Amendments to the Allegation

6. Ms Lykourgou applied for the Allegation to be amended and the proposed amendments were set out in a letter sent to the Registrant dated 1 April 2020. The Legal Assessor advised the Panel that any discretion to allow an amendment should be exercised fairly. The Panel was satisfied that the proposed amendments were relatively minor in that they (i) did not introduce significant change to the gravity or extent of the pre-existing particulars and (ii) removed some unnecessary duplication of wording.

7. There had been no objection to the proposed amendments by the Registrant. She had been given almost a year’s notice that the application would be made. The Panel was satisfied that no prejudice would be caused to the Registrant by the proposed amendments and the application was granted. The Allegation, as amended, is shown above.

Holding the Hearing in Private

8. A relevant background feature in this case is that, at the relevant times, the Registrant experienced Keratitis in one eye, which is an infection of the cornea that can cause pain, vision change and sensitivity to light. The Panel considered whether it was appropriate or not to hold some or all of the hearing in private to protect the private life of the Registrant, so far as that medical condition was concerned. The Legal Assessor advised the Panel on the HCPTS Practice Note: Conducting Hearings in Private. The Panel noted the importance of the “open justice principle” and took into account that the Panel had discretion to order that parts of a hearing be in public and other parts in private. However, it was clear to the Panel that references to the Registrant’s condition appeared throughout extensive portions of the evidence. The Panel decided that there was no practical way in which the hearing could be split into separate Public and Private sections.

9. Public access to these decisions is an important feature of maintaining public confidence in the Occupational Therapy profession and in the HCPC regulatory process. The Panel considered the nature of the eye condition and took the view that, whilst the condition could have a substantial impact on an individual, it was not in the category of medical conditions that would cause significance embarrassment or disadvantage were there to be public knowledge of the condition. The Panel concluded that the proper step was to hold the entirety of the hearing in public.

Background

10. In 2005, the Registrant was employed as a Community Occupational Therapist by West Lothian Council (“the Council”) and at the times relevant to the Allegation the Registrant’s line manager was Witness 1. On 3 March 2017, the Registrant commenced a period of sickness absence due to being diagnosed with Keratitis. The Registrant’s position was that she was unable to drive or attend work due to being unable to tolerate, for long periods of time, overhead lighting, inability to work with back lit screens and direct sunlight.

11. The Registrant’s sickness absence was managed according to the Council’s Managing Sickness Absence Policy. In accordance with the Policy, the Registrant had regular review meetings with her line manager to discuss her sickness absence and during those meetings the Registrant provided information regarding the impact of the condition on her ability to work and leave her home.

12. The Registrant had completed a declaration form for her employer in February 2017, registering her voluntary, unpaid role as a director of Sensory Sessions. In around July 2017, concerns arose within the Council that, whilst she was on long-term sickness absence and receiving sick pay, the Registrant was actively participating in Sensory Sessions. The Council referred the concerns to its Counter Fraud Team (“CFT”). A Senior Counter Fraud and Compliance Officer with the Council undertook a counter fraud investigation to determine whether the Registrant had provided correct information regarding the symptoms of her condition and whether she was working privately for her own business whilst on sickness absence.

13. The Panel received oral evidence from:

(i) Witness 1 – Occupational Therapy Manager with the Council and the Registrant’s line manager
(ii) Witness 2 - Senior Counter Fraud & Compliance Officer with the Council.

14. The Panel also took into account:

(i) all of the documentary material provided by the HCPC in the hearing bundle running to 268 pages.
(ii) the representations that the Registrant had previously submitted to the Investigating Committee.

Decision on facts

15. The Panel found both Witness 1 and Witness 2 to be reliable, credible and professional in the giving of their evidence. Witness 1 was objective and impartial and showed no bias against the Registrant. In the Panel’s opinion she had carried out her tasks as line manager (as those were relevant to this hearing) fully in accordance with her role. Witness 2 gave clear, consistent and objective evidence. He was careful not to embellish his responses. The Panel was satisfied that he had carried out an independent and objective investigation.

16. The Legal Assessor advised the Panel that findings of fact should be made on the balance of probabilities.

Particular 1
1. Whilst signed off as unfit to work, and receiving sick pay from West Lothian
Council, you provided information to West Lothian Council in that, you stated:

a) You were unable to go outdoors without polarised lenses;
b) You could only tolerate short periods of daylight;
c) You were rarely able to leave your home environment;
d) You were unable to drive.

17. The Registrant’s period of absence from work because of sickness started on 3 March 2017. Witness 1, as the Registrant’s line manager, had sickness absence meetings with the Registrant on the following dates: 24 May 2017, 18 August 2017, 13 September 2017, 20 December 2017, and 21 February 2018. After each of those meetings, Witness 1 sent a letter to the Registrant to confirm what had been discussed at the meeting. At each of those meetings the Registrant maintained her position that:

• she suffered from photophobia (a symptom of Keratitis)
• she was unable to drive or use technology, including PC, mobile phone and TV without sunglasses
• she rarely left home because she could tolerate only short periods of daylight, but she would leave home for short periods, mostly to attend hospital or optician appointments
• the condition had an impact on all aspects of day-to-day life and routine.

18. In the letter following the meeting on 24 May 2017 Witness 1 recorded that the Registrant had reported:

• she continued to suffer from photophobia
• she was unable to drive or utilise technology such as PC, mobile phone or TV without sunglasses due to the glare that she experienced from those devices
• she was only rarely able to leave her home environment because she could only tolerate short periods of daylight
• the condition had an impact on all aspects of her day-to-day life and routine
• she had received a prescription for polarising lenses for sunglasses
• and that an Occupational Health report had highlighted her inability to drive or to work in front of a PC.

19. In the letter following the meeting on 18 August 2017, Witness 1 recorded that the Registrant had reported:

• she still continued to suffer from photophobia, light sensitivity, resulting from the ongoing eye condition.

• the condition continued to have a significant impact on her day-to-day life with her only being able to leave home for short periods of time - this was mostly to attend hospital/optician appointments

• she remained unable to drive

• she was unable to go to supermarkets/shops for any period of time due to the lighting within those buildings

• she continued to be unable to use technology such as a mobile, computer or watch TV without experiencing photophobia.

20. In the letter following the meeting on 13 September 2017 Witness 1 recorded that the Registrant had reported:

• the lesion on her cornea had reduced in size and she had been encouraged to reduce the amount of time she wore polarised lenses. However, she reported that she was unable to go outdoors without those lenses because the reduction of use had led to her experiencing headaches

• she was not able to carry out any roles or tasks for the Occupational Therapy service or other departments for three main reasons:

• inability to drive

• inability to use any technology with a screen

• inability to sit in bright light for any longer than 45 minutes

• she continued to be unable to go out unsupported and relied upon her husband and father for all her travel arrangements.

21. In the letter following the meeting on 20 December 2017, Witness 1 recorded that the Registrant had reported:

• she did not need to wear her dark glasses at all times although she continued to use them when outdoors due to their calming effect

• she maintained that she was still unable to drive


22. In the letter following the meeting on 21 February 2018, Witness 1 recorded that the Registrant had reported:

• she was still unable to drive

• she was now able to tolerate computer work for approximately 60 minutes but she continued to struggle with backlights and overhead lighting

• she continued to wear dark lenses the majority of time when outdoors

23. There was no occasion when the Registrant responded to any of the above letters to seek to correct or make further comment on what Witness had 1 recorded.

24. The Panel considered all that the Registrant had said in the Registrant’s representations to the HCPC Investigating Committee:

“I was unable to go outdoors without polarised lenses – I was indeed able to go outdoors without polarised lenses. The lenses were suggested by a consultant as a way to reduce glare, pain and headaches and they were amazing. Overnight my headaches reduced, I had less pain, needed less medication and I felt more able to function and initially I wore them all the time. I was then advised at a subsequent appointment that I wasn’t to use them all the time as I needed to give my eye the opportunity to be subjected to lots of different lighting conditions, so I had to limit their use to occasions that I found really uncomfortable for example being in brightly light rooms with lights that reflected off metal grids, being in a car as a passenger at night with oncoming headlights or rainy days where light was shining off wet pavements or roads.

I could only tolerate short periods of daylight – my ability to tolerate different lighting conditions was very much dependent on my symptoms on that particular day, this was reported to my employer. Throughout the time I was off sick I attended many GP, consultant, optician and ophthalmic nurse practitioner appointments and their treatments, drops, gels and lotions all had an impact on my ability to tolerate light as well as the type of day it was, how quickly things were moving, how blurred my vision was and the headache I experienced. On other days I was able to negotiate my way around without much impairment.

I was rarely able to leave my home environment – I remember having this conversation with my line manager and at the time I found it really difficult to leave the house. I described leaving Tescos in tears because the light was too bright and the pain too much. I had been provided with drops to dilate my pupils and the pain was incredible. My photosensitive eye was letting in more light than before and it was unbearable so after a short time this treatment was stopped. Home was a very comforting place when I had the difficulties, and I spent a lot of time at my parents home too. There I was unable to control the light, pull down blinds and live in a darker place.

I was unable to drive – throughout the time I was off sick I didn’t drive, I was unable to, I couldn’t see properly. I had a wave across my visual field and everything was distorted. I didn’t meet DVLA standards and my optician and consultant had both advised me not to drive. In the notes provided by the Council on the 6th of September they state I drove a car ‘a few feet forward’. All I did was take the hand break off the car to roll it forward to give my class leader access to the mats that were in the back of the car. The back door of the car opens out the way rather than up so there wasn’t enough room to get them out due to the proximity of the car behind”.

25. It is clear to the Panel that in her representations the Registrant did not substantially contradict this part of the Allegation. In any event, if there were any difference between the respective accounts, the Panel prefers the evidence of Witness 1 as being more reliable because that evidence is supported by contemporaneous letters written by Witness 1, being the letters sent following the sickness review meetings which are referred to above.

26. On the above evidence it was clear to the Panel that the Registrant had stated to her line manager that:

a) she was unable to go outdoors without polarised lenses
b) she could only tolerate short periods of daylight
c) she was rarely able to leave her home environment
d) she was unable to drive.

The Panel decided that Particular 1 was proved in full.

Particular 1 is proved in full

Particular 2
2. Whilst employed by West Lothian Council and receiving sick pay, you attended and/or participated in Sensory Sessions classes on the following dates:

a) Wednesday 6 September 2017;
b) Thursday 7 September 2017;
c) Monday 11 September 2017;
d) Monday 30 October 2017.

27. The Panel took into account a Counter Fraud Investigation Report (“the Report”) dated 26 January 2018 prepared by Witness 2. The Report recorded that Sensory Sessions was a business running sensory play classes for babies and toddlers. The Registrant was the sole director of the business and the sole bank account signatory for the business. There had been transfers of money from the business account to the Registrant’s private bank account.

28. The Report went on to record that a covert surveillance operation was undertaken which involved observation of the Registrant’s daily activities and noted:

6 September 2017

29. Sensory Sessions for that day were scheduled for 10 am, 11.10 am, 1 pm, and 1:30 pm at various locations around Edinburgh. The Registrant was observed leaving her home at 9.16 am not wearing glasses of any kind and not wearing any form of headwear for sun protection. She was wearing a black jumper branding the logo for Sensory Sessions and was seen to get into a car and drive the car “a few feet forward” before she got back out and opened the boot to remove items of equipment. It was recorded that she showed no signs of discomfort.

30. The Registrant was subsequently interviewed in respect of this occasion. She was asked about protection for her eyes and she gave the response “It depends on the light conditions. If it’s cloudy it can be worse than if it’s blue skies. It depends what the previous day has been like. I’m trying to wear them less”. The Registrant confirmed that she had on that particular day attended a Sensory Sessions and baby massage class. She said the work was “totally on a voluntary basis” and she had not spoken to her manager about it, “It hasn’t come up”.

7 September 2017

31. The weather was cloudy but dry. Sensory Sessions classes were scheduled for 10:30am, 1pm and 2.10 pm. At 9:59am the Registrant was observed leaving her home with no glasses. She was then observed putting on clear spectacles. Those were not sunglasses or tinted lenses. She was wearing a black jumper branding the logo for Sensory Sessions. She showed no sign of discomfort.

32. At 2:25pm on the same day, the Registrant was observed being collected by her husband in a car from a church hall. In a subsequent interview the Registrant confirmed she was at the Sensory Sessions class for between one and a half to two hours supporting a member of Sensory Sessions staff and “chatting to some of the mums”. She was asked if that was her normal practice and she replied “Yes, some days, it depends on a lot of variables”. The Report noted that the Registrant had described the lighting in the hall as “brilliant”.

11 September 2017

33. The weather was bright and sunny. Sensory Sessions for that day were scheduled for 10 am, 11.10 am, 1 pm and 1:30 pm at various locations. At 8:58am the Registrant was seen leaving her home and wearing clear spectacles (not sunglasses or tinted lenses). She showed no sign of discomfort despite being in bright sunshine without any form of protective eyewear. She was wearing a black jumper branding the logo for Sensory Sessions. She was driven by her husband to a parish church. They arrived at 9:24am and unloaded equipment into a room at the rear of the building. The Registrant’s husband then left the venue without her.

34. At 2.02pm the Registrant’s husband returned to the venue and at 2.25pm the Registrant left the venue and entered the passenger seat of the car. At that time the weather was very bright with a mixture of blue sky and white clouds. The Registrant was seen not wearing eye protection of any kind and she continued to show no sign of discomfort.

35. The vehicle was followed to a business park. Because the surveillance team felt they would be noticed the team returned to the Registrant’s home address to await her return. At 3.37pm the Registrant’s husband returned to the home address by car without the Registrant. The surveillance operation ended at 4pm with no sighting of the Registrant returning to her home address. By that point the Registrant had been out of her house for more than 7 hours.

36. In a subsequent interview the Registrant was asked why she had not been wearing eye protection. She said, “Some days I need to use them all day and some days I don’t”. She was asked how she had been able to spend that amount of time at the venue. She replied, “It’s dependent on a number of variables”. She accepted she had not told her line manager about the feature of variability.

30 October 2017

37. A visit was made by members of the CFT on 30 October 2017 to a church hall with the object of interviewing a Sensory Sessions member of staff. The Registrant was present and was seen to be wearing branded Sensory Sessions clothing and clear spectacles (no sunglasses). She was noted to be “cheerfully conversing with the parents and tidying the toys on the floor”. The church hall was noted to be bright with mirrored, fluorescent ceiling lights. The windows had blinds that were fully rolled up letting in the daylight. The team members noted that during the initial conversation with the Registrant she was not visibly in any signs of distress due to the room or window lighting.

38. Within the Registrant’s representations to the HCPC Investigating Committee, the Registrant commented on the occasions referred to above. She said:

“Whilst employed by West Lothian Council & receiving sick pay I worked for Sensory Sessions on 6th September, 7th September, 11th September & 30th October.

On the days in question, I did attend sensory sessions groups. My husband, parents, consultant, ophthalmic nurse practitioners and GP could all see the impact that being so isolated was having on my mental health and I was being encouraged to get out and do some activities. My GP provided me with a letter confirming their support of getting out of my home which is attached. As an occupational therapist I know how important activity is for wellbeing. I wasn’t the class leader at any of the groups which was confirmed in the counter fraud team investigation when they saw others present, I was there in a shadowing capacity to get me out of the house and give me the opportunity to talk to people. At any point I could have been collected by my husband or father and my involvement was minimal. I chose venues where the lighting could be controlled and that I felt comfortable in. Attendance at the group is in no way comparable to being able to complete my role as an occupational therapist with the Council, I had no harsh lighting, no responsibility for assessing or keeping others safe in their unpredictable home environments, no computer work and no driving to do. I was literally sitting on a mat chatting and talking about baby development, I really saw it as a steppingstone to getting well. Occupational health requested that it be considered about whether there were any alternative roles that I could do and I would have gladly been seconded within the council if they had been able to find a suitable role”.

39. There is no dispute between the parties that the Registrant did attend the Sensory Sessions events on the dates as asserted in Particular 2. On that basis alone the Panel finds that Particular 2 is proved in respect of each of the dates mentioned

40. The Particular also, of course, maintains that the Registrant “participated” in Sensory Sessions classes. The Panel has taken into account what the Registrant had said in the Registrant’s representations. She said that she was “sitting on a mat chatting and talking about baby development”. She made that comment as a description of her general involvement in the sessions being run.

41. The report from the CFT in respect of 30 October 2017 noted that the Registrant was “cheerfully conversing with the parents and tidying the toys on the floor”.

42. The Panel finds on the balance of probabilities that the accounts given both on behalf of the HCPC and the Registrant are not inconsistent, and both serve to show that the Registrant’s general practice was to “participate” in the classes on each of the dates mentioned.

Particular 2 is proved in full


Particular 3

43. In respect of this Particular, the Panel has noted that the Registrant was entitled to sick pay in respect of her absence from work from March 2017 until sometime in 2018 when her employment ended. A factor in her continuing entitlement to sick pay was the information she provided to Witness 1 in the sickness review meetings.

44. This Particular asserts that the actions of the Registrant were “misleading and/or dishonest”. The HCPC has invited the Panel to accept that “to mislead” means “to cause someone to believe something is not true” and, further, that a person can mislead either intentionally or unintentionally. The Panel has accepted that as accurate.

45. In respect of “dishonesty” the Legal Assessor gave advice on the guidance given by the Supreme Court in the case of Ivey v Genting [2017] UKSC 67 at paragraph 74 of the judgment:

“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest”.

46. Particular 3 asserts, of course, that the actions of the Registrant, as those are contained in Particulars 1 and 2, were misleading and/or dishonest. Therefore, it is necessary to examine Particulars 1 and 2 separately in the context of misleading and/or dishonest.

47. So far as Particular 1 is concerned, the Panel has considered all of the evidence regarding what was said by the Registrant to Witness 1 in the five sickness review meetings. Particular 1 asserts that the Registrant was misleading and/or dishonest in maintaining that:

a) she was unable to go outdoors without polarised lenses
b) she could only tolerate short periods of daylight
c) she was rarely able to leave her home environment
d) she was unable to drive.

48. The Panel has also taken into account what the Registrant said in this respect in the Registrant’s representations:

“Providing false information – I was accused of providing false information to the Council and I strongly deny this. I think that my mistake was not saying to my manager that I was trying to get out of the house more by attending the mother and baby groups. I honestly didn’t think that it was an issue as HR had not been interested at all in my voluntary role and I didn’t think about mentioning it at all, I wasn’t at any point purposefully withholding information. At the time that the investigations were ongoing I was stressed, in pain and had constant headaches which were affecting my functional ability and sleep”.

49. The Panel puts to one side, for the moment, the last factor in Particular 1 regarding the inability to drive. With regard to the other factors in Particular 1 at a) to c) inclusive, the Panel has taken into account all of the evidence referred to above including that the Keratitis diagnosis was supported by sick notes from her GP. The Panel is satisfied that with regard to the factors at a) to c) inclusive, the Registrant maintained those positions to Witness 1 over a number of months. She was sent letters which recorded what Witness 1 had understood to be the Registrant’s accounts of restrictions resulting from her medical condition. Those claimed restrictions had contributed to the Registrant being paid sick pay. It is clear to the Panel that the repeated accounts given by the Registrant to Witness 1 in respect of the factors at a) to c) inclusive were, despite the sick notes from the GP supporting the diagnosis of Keratitis, false and inaccurate to a substantial degree and that the Registrant knew that to be the case. The observations of the Registrant made by the CFT, as recorded above, show that the Registrant:

a) was able to go outdoors without polarised lenses
b) could tolerate more than short periods of daylight
c) was regularly able to leave her home environment.

50. The Panel has taken into account what the Registrant has said about the variability of her condition and its symptoms. However, the Panel has also taken into account that on each of the four occasions when the CFT observed the Registrant, the Registrant exhibited behaviour which contradicted the claim made by the Registrant that over a period of months she had not been able to go outdoors without polarised lenses, that she could not tolerate more than short periods of daylight and that for most of the time she was not able to leave her home environment.

51. The Panel has concluded that it is most unlikely that the Registrant’s inability to go outdoors without polarised lenses, to tolerate more than short periods of daylight and to be able to leave her home environment was limited only to the four occasions when she was observed by the CFT. The Panel is satisfied on the balance of probabilities that the Registrant knowingly gave an incorrect account of the restrictions caused by her medical condition at each of the sickness review meetings conducted by witness 1 in so far as Particular 1 a), b) and c) are concerned.

52. The Panel has considered what was, subjectively, the actual state of the Registrant’s knowledge or belief as to the facts when she gave her accounts to Witness 1 in the context of the matters referred to in Particular 1, sub-particulars a), b) and c). The Panel has concluded that in giving those accounts the Registrant knowingly gave false accounts of the negative impact of her medical condition and its restrictions on her daily life. Also, she knowingly failed to provide information as to her Sensory Sessions activities which she knew to be relevant in any assessment by the Council of her unfitness to carry out her work. The Panel is satisfied that the Registrant both knowingly gave false accounts of the impact of her medical condition and knowingly failed to provide relevant information with the intention of either qualifying for sick pay or, at least, increasing her prospects of doing so.

53. The Panel has considered what ordinary, decent people would make of the Registrant’s false accounts and failure to provide relevant information in connection with her entitlement to sick pay as those relate to Particular 1 a), b) and c). The Panel has concluded that ordinary, decent people would consider the actions and failures of the Registrant in those respects to be dishonest.

54. The Panel has considered Particular 1 d), being the claimed inability to drive, in the context of “misleading and/or dishonest”.

55. The Panel has taken into account the witness statement from a member of the Council’s staff who claimed to have seen the Registrant driving a brown metallic Volkswagen Golf car on 15 August 2017. The witness stated he was about 2 metres away from the Registrant whilst she was driving a moving car. He said he had seen the Registrant “for a few seconds” in clear visibility and if it was not the Registrant it was someone identical. He sent a text to Witness 1 to say he thought he had seen the Registrant driving a car.

56. The Panel has also taken into account what the Registrant said in an interview on 19 October 2017. She said that she had never even sat in such a car. Her own car was a different make. She knew no-one who owned a brown Volkswagen Golf. She “categorically denied” being present on the occasion claimed.

57. In assessing this evidence, the Panel has noted what are known as the “Turnbull guidelines”, derived from the case R v Turnbull [1977] QB 224. The Panel has also taken into account that the observation by the witness was fleeting (“only a few seconds”) and was made whilst the person said to be the Registrant was driving a moving motor vehicle. This matter has to be determined on the balance of probabilities. The Panel has concluded that the HCPC has not shown on the balance of probabilities that it was the Registrant who was driving the motor vehicle on the occasion in question.

58. Therefore, Particular 3, insofar as it asserts that the Registrant’s account that she was unable to drive was dishonest, now rests solely upon the observation of the Registrant made by the CFT on 6 September 2017 when she was said to have sat in a car whilst it moved “a few feet forward”.

59. If the HCPC case in this respect were taken at its highest, then it may be said that the Registrant misled Witness 1 when she said she was unable to drive. That is because the Panel can accept that, on the balance of probabilities, the Registrant was, in a strict legal sense, driving a car even though it was just for “a few feet”.

60. However, this case is all about the assertion that over a period of time the Registrant gave misleading or dishonest information regarding the effects of her medical condition and the outcome of doing so was payment of sick pay to which the Registrant was not truly entitled. The view of the Panel is that, when all of the other circumstances of this case are taken into account, the question of whether or not the Registrant drove a few feet on a single occasion had minimal to no impact on the decision to pay sick pay. The Panel is satisfied that it was the other factors of being (i) unable to go outdoors without polarised lenses (ii) able only to tolerate short periods of daylight; and (iii) rarely able to leave the home environment that contributed to the decision to pay sick pay.

61. The Panel takes the view that the decision to pay sick pay was taken on the basis of the other claimed limitations put forward by the Registrant. The Panel does not accept that the failure by the Registrant to mention this single and very limited occasion of driving served to “mislead” anyone. On that basis, the Panel has concluded that this single event, lasting just moments, does not serve to show that the Registrant misled witness 1 either intentionally or unintentionally.

62. Separately, the Panel has considered whether the Registrant was dishonest in this aspect. The Panel is satisfied that the likelihood is that when the Registrant was being interviewed by Witness 1 the Registrant would not have considered the event of driving a car “a few feet” as being an event of driving so far as a lay person was concerned. The Panel finds that she would not have had the knowledge or belief that that event constituted an act of driving. Ordinary, decent people would not consider this single, very limited occasion of driving, in circumstances where the Registrant would not herself have considered this to be an act of driving, as being sufficient to show that the Registrant had been dishonest by saying she was unable to drive.

63. The Panel has gone on to consider considered whether the Registrant’s actions in attending and participating in the Sensory Sessions classes as set out in Particular 2 were misleading and/or dishonest. The Panel is satisfied that the attending and participating in Sensory Sessions involved the Registrant in carrying out actions that she had repeatedly told Witness 1 she could not do. The attending and participating involved the Registrant going out without polarised lenses, for more than short periods of daylight and leaving the home environment for extended periods. The Panel is satisfied that the attending and participating involved the Registrant in engaging in activities which she knew was contrary to the information she had been providing to Witness 1. It is clear to the Panel that ordinary, decent people would regard the Registrant’s activities in this respect, which were carried out in the knowledge that the activities were contrary to the information given to her line manager, was dishonest.

Particular 3 is proved in respect of Particular 1 - sub-particular a), b) and c) but not proved in respect of sub-particular d).

Particular 3 is proved in respect of Particular 2 in full.

Decision on Grounds - Misconduct

64. The Legal Assessor advised the Panel of the definition of misconduct as given in Roylance v GMC (No 2) [1999] UKPC 16

65. ‘Misconduct is a word of general effect involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a practitioner in the particular circumstances.’

66. The Panel has also taken into account that only serious acts or omissions may be taken into account when assessing whether there has been misconduct.

67. The Panel is satisfied that the misconduct on the part of the Registrant amounted to a breach of the HCPC ‘Standards of Conduct, Performance and Ethics’: Standard 9 – Be honest and trustworthy.

68. The Panel has found that the Registrant committed dishonest acts over an extended period running for a number of months. It is clear to the Panel that this is so serious that it amounts to misconduct.

Decision on Impairment

69. The Legal Assessor identified to the Panel, the guidance in the HCPTS Practice Note on Fitness to Practise Impairment. The Panel’s task is to assess current fitness to practise.

70. The Panel has taken into account all that the Registrant has said in the Registrant’s representations.

71. In determining fitness to practise allegations, Panels must take account of two broad components: the ‘personal’ component and the ‘public’ component. The personal component is the current competence, behaviour etc. of the Registrant concerned. The public component refers to protecting service users; declaring and upholding proper standards of behaviour; and maintaining public confidence in the profession concerned.

72. The key questions which need to be answered are:

• are the acts or omissions which led to the allegation remediable?
• has the Registrant taken remedial action?
• are those acts or omissions likely to be repeated?

73. The Panel considered all four limbs of the test set out by Dame Janet Smith in the fifth Shipman Report which were re-stated in Grant (CHRE v NMC (1) and Grant (2) (2011) EWHC 927 (Admin)), namely: -

“Do our findings of fact in respect of the doctor's misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:

1.has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

2.has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or

3.has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or

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

74. The Panel is satisfied that the answer is “Yes” to points 2, 3, and 4 above.

75. As is recorded above, the Registrant committed serious misconduct amounting to dishonesty over a number of months. There is no evidence of insight or remorse. There has been some mention of the Registrant having entered into an agreement to repay the sick pay to the Council but there has been no evidence to confirm that any such agreement has been fulfilled. Therefore, the position with regard to remediation is, at best, uncertain. There is no information from the Registrant as to what she has been doing since her employment with the Council ended.

76. In respect of the personal component, and in the absence of any evidence of insight, remorse or reflection, there is nothing to show that the Registrant has changed her behaviour. On that basis there is a risk of repetition of dishonesty. The Panel has decided that the fitness to practise of the Registrant is currently impaired on the basis of the personal component.

77. In respect of the public component, it is relevant to take into account the serious nature of the misconduct. The misconduct continued for a number of months. Its objective was personal gain. The dishonesty of the Registrant was a significant factor in her being entitled to sick pay. The evidence considered by the Panel shows that the Council, at the time, had some difficulty in meeting its occupational therapy workload. The Panel is satisfied that the Registrant’s prolonged absence from work would therefore have had a negative impact on her Occupational Therapist colleagues and on service users. The Registrant’s dishonesty would be regarded by both colleague practitioners and service users as deplorable. Factors relevant within the public component assessment are the need to maintain confidence in the profession concerned and to declare and uphold proper standards of conduct and behaviour. On that basis the Panel has decided that the fitness to practise of the Registrant is also impaired on public component grounds.

Decision on Sanction

78. The Legal Assessor identified specific paragraphs within the Sanctions Policy which the Panel may feel were relevant in this case.

79. The Panel considered the HCPC Sanctions Policy. The purpose of sanctions is not to be punitive, although they may have that effect. The primary purpose of a sanction is to ensure public safety. However, a Panel must also give appropriate weight to wider public interest factors which include: the deterrent effect for other Registrants, the reputation of the profession concerned, and public confidence in the regulatory process. Further, a panel must act proportionately in striking the proper balance between the interests of the public and those of a Registrant.

80. In considering an appropriate sanction a Panel should impose the sanction that provides an adequate and proportionate balance between (1) public safety and the other public interest factors referred to above and (2) the Registrant’s ability to practise his or her profession. The sanctions should be considered in ascending order.

81. In relation to dishonesty the Sanctions Policy states:

“56. The Standards of conduct, performance and ethics require registrants to be honest and trustworthy (Standard 9). Dishonesty undermines public confidence in the profession and can, in some cases, impact the public’s safety.

57. Dishonesty, both in and outside the workplace, can have a significant impact on the trust placed in those who have been dishonest, and potentially on public safety. It is likely to lead to more serious sanctions. The following are illustrations of such dishonesty: (only the most relevant illustration is shown below).
• fraud, theft or other financial crime.

58. Given the seriousness of dishonesty, cases are likely to result in more serious sanctions. However, 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. Factors that panels should take into account in this regard include:

• whether the relevant behaviour took the form of a single act, or occurred on multiple occasions;
• the duration of any dishonesty;
• whether the Registrant took a passive or active role in it;
• any early admission of dishonesty on the Registrant’s behalf; and
• any other relevant mitigating factors.”

Aggravating factors

82. The aggravating factors in this case are:

• the dishonesty was committed over an extended period of months

• there were repeated events of dishonesty

• there is no evidence of insight or remorse

• there is no recognition by the Registrant as to the extent that her misconduct damages the reputation of her profession and public confidence in Occupational Therapists.

Mitigating factors

83. The mitigating factors in this case are:

• the Panel recognises that there was some evidence that the Registrant had entered into an arrangement with the Council to repay the sick pay but there is no evidence to show that the arrangement has been fulfilled. The Panel is satisfied that any credit to the Registrant in this respect is limited.

Consideration of Sanction

84. The Panel first considered the sanction of Mediation and concluded that it was not appropriate - the matter was too serious to be resolved in this way. The same can be said of taking no action.

85. The Panel next considered a Caution Order, which is deemed to be appropriate where:

“the issue is isolated, limited, or relatively minor in nature; there is a low risk of repetition; the Registrant has shown good insight; and the Registrant has undertaken appropriate remediation…A caution order should be considered in cases where the nature of the allegations mean that meaningful practice restrictions cannot be imposed, but a suspension of practice order would be disproportionate.”

86. The Panel considered that the Particulars found proved were so serious that such a sanction would be insufficient to address the Panel’s concerns in relation to the public interest grounds. In any event, the factors listed above which otherwise would support a Caution Order being made did not apply to the Registrant – for instance: the issues were not isolated; they were not relatively minor in nature; there was not a low risk of repetition; the Registrant had not shown insight; and there was no evidence of remediation. The Panel therefore concluded that such a sanction would be neither appropriate nor proportionate.

87. The Panel then considered the next most onerous sanction, that of a Conditions of Practice Order. The Panel noted paragraph 106 of the Sanctions Policy which sets out when a Conditions of Practice Order is suitable, but concluded that paragraphs 107 to 109 were more applicable to this case. Those paragraphs state:

“107. Conditions will only be effective in cases where the Registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so. Therefore, conditions of practice are unlikely to be suitable in cases in which the Registrant has failed to engage with the fitness to practise process or where there are serious or persistent failings.

108. Conditions are also less likely to be appropriate in more serious cases, for example those involving:
• dishonesty…;

109. There may be circumstances in which a panel considers it appropriate to impose a conditions of practice order in the above cases. However, it should only do so when it is satisfied that the Registrant’s conduct was minor, out of character, capable of remediation and unlikely to be repeated. The panel should take care to provide robust reasoning in these cases.”

88. In particular, the Panel considered that the Registrant’s conduct was not “minor” and the Panel could not be satisfied that the conduct would not be repeated. Furthermore, there was no evidence before the Panel to suggest that the Registrant would comply with any conditions imposed upon her practice and therefore the Panel was led to the conclusion that, against the background of her non-engagement with these proceedings, it is unlikely that the Registrant would be willing or able to comply with any conditions.

89. In addition, the Panel was not satisfied that a Conditions of Practice Order would adequately reflect the seriousness of the Registrant’s misconduct.

90. The Panel next considered imposing an order of Suspension and noted the following paragraphs of the Sanctions Policy:

“121. A suspension order 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. These types of cases will typically exhibit the following factors:

• the concerns represent a serious breach of the Standards of conduct, performance and ethics;
• the issues are unlikely to be repeated; and
• there is evidence to suggest the Registrant is likely to be able to resolve or remedy their failings”.

91. The Panel has no assurance that the misconduct, in the form of dishonesty that occurred in this case, would not be repeated. There is no evidence to suggest the Registrant is likely to be able to resolve or remedy their failings.

92. The Panel takes into account its assessment of the gravity of the misconduct committed by the Registrant. The view of the Panel is that the conduct was extremely serious and damaging to the reputation of Occupational Therapists and to public confidence in the profession.

93. Taking into account the guidance in paragraph 121 of the Sanctions Policy, set out above, the Panel concluded that a Suspension Order was not an adequate or appropriate sanction in this case.

94. The Panel noted the guidance in the Sanctions Policy that a Striking Off order is a sanction of last resort for serious, persistent, deliberate or reckless acts including dishonesty. At paragraph 131 of the Sanctions Policy is the comment:

“A striking off order is likely to be appropriate where the nature and the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where is the registrant:

• lacks insight;
• continues to repeat the misconduct or,
• is unwilling to resolve matters".

95. There is no evidence before Panel that shows the Registrant has insight into her misconduct and the consequences of it and there is no evidence of a willingness on the part of the Registrant to resolve matters.

96. In making its decision, the Panel has considered the severity of the impact of a Striking off order on the Registrant but has concluded, having regard to all the circumstances of this case, that the appropriate and proportionate sanction is one of Striking off.

 

Order

ORDER: The Registrar is directed to strike the name of Mrs Lorna C Carr from the Register on the date this Order comes into effect.

Notes

Application for Interim Order

1. Ms Lykourgou applied for an interim order on the ground that such order was necessary for the protection of members of the public and otherwise in the public interest.

2. The Panel was satisfied that in the notice of hearing the Registrant had been put on notice that such an application may be made. It was in the public interest to hear the application as soon as possible. The Panel was satisfied that it was fair to proceed in the absence of the Registrant.

3. The Legal Assessor advised the Panel that an interim order could only be made if the Panel was satisfied that one or more of the statutory grounds were present:

• it is necessary for the protection of members of the public; and/or
• it is otherwise in the public interest; and/or
• it is in the interests of the registrant concerned.

4. If a Panel finds that one or more of the statutory grounds is present, then the Panel may make either an interim conditions of practice order or an interim suspension order. Such an order may run for a maximum period of 18 months, but the Panel should exercise its discretion in identifying the appropriate period.

5. The Panel finds that an interim order is necessary both for the protection of members of the public and is otherwise in the public interest.

6. The Panel has taken into account that the Striking off Order made today will not take effect until, at least, 28 days from now. That period may be longer if the Registrant were to submit an appeal against the Panel’s decision within the next 28 days.

7. The Panel has taken into account all of its findings and conclusions as above. There is a likelihood that if the Registrant were permitted to continue in unrestricted practice there would be a risk to members of the public. It is also in the public interest as members of the public would be concerned if there were no restrictions on the Registrant’s practice pending any possible appeal.

8. In those circumstances, the Panel is satisfied that it is proportionate and necessary to impose a level of public protection from today. The Registrant has not attended, and the Panel has no assurance that conditions of practice would be complied with. In those circumstances the Panel has concluded that it is appropriate and proportionate to make an Interim Suspension Order.

9. The Panel is satisfied that it is appropriate and proportionate to make such an order for the maximum period and the Panel makes an interim suspension order to run for 18 months.

Hearing History

History of Hearings for Mrs Lorna C Carr

Date Panel Hearing type Outcomes / Status
15/03/2021 Conduct and Competence Committee Final Hearing Struck off
26/10/2020 Conduct and Competence Committee Final Hearing Hearing has not yet been held