Mrs Upasana Sallis
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Allegation as amended
In your role as an Occupational Therapist at NHS Greater Glasgow and Clyde (“NHS GGC”)
- In relation to SU:1, on or around 21 August 2015 you:
a. failed to complete any adequate clinical assessment, risk assessment and/or management plan, prior to taking SU:1 out of Craigielea Care Home (“the Home”) to a local cafe;
b. failed to ensure that appropriate measures were in place to summon assistance if required prior to taking SU:1 out of the Home, in that you:
i. Did not ensure your mobile phone was easily accessible;
ii. Did not ensure that the Home had your contact number;
iii. Did not have the number of the Home in case you required assistance;
c. when SU:1 refused to return to the Home, failed to effectively manage and/or minimise any risk to yourself, SU:1 and/or members of the public by continuing to drive around with SU:1 in the front passenger seat of your car for around 90 minutes;
d. removed SU:1’s records from NHS GGC and stored them in the boot of your car, in breach of NHS GGC Transportation of Health Records policy.
- Failed to adequately carry out and/or record Occupational Therapy assessments:
a. for the service users set out in Schedule A;
b. for SU:9 on or about 28 February 2017 in that you failed to detail:
i. all the resources and equipment used during the assessment;
ii. all the relevant medical information for SU:9 including that she had recently
had a fall and had stitches on her forehead;
iii. that SU:9 required prompting to drink milk;
iv. that SU:9 had difficulty locating the food on her plate;
v. that SU:9 was only eating slowly with small quantities on her spoon,
meaning that her food went cold;
vi. that SU:9 had to be encouraged to resume eating;
vii. that SU:9 had limited bilateral ability.
- Failed to adequately complete and/or record treatment plans for the service users set out in Schedule B.
- Between around March and August 2017 you set up and/or provided services as an Occupational Therapist at the business ‘Weekday Wow Factor’ during the time that you were on sick leave and receiving statutory sick pay from NHS GGC contrary to their Code of Conduct Policy.
- Your conduct at 4 above was:
a. Misleading and/or
- The matters set out in Paragraph 1, 2, 3, 4 and/or 5 constitute misconduct and/or lack of competence.
- Your fitness to practise as an Occupational Therapist is impaired by reason of your misconduct and/or lack of competence.
Service User 3
Service User 4
Service User 5
Service User 6
Service User 2
Service User 3
Service User 4
Service User 8
Application by HCPC to amend the Allegation
- In respect of the Allegation, Mr Lloyd applied to amend the allegation to remove the words “(between the date ranges)” where they appear in particulars 2 (a) and 3 and he submitted that the witnesses would make clear the relevant dates. The proposed amendment was not opposed by Ms McPhee.
- The Panel accepted the advice of the Legal Assessor as to the proposed amendments. It bore in mind fairness and the interests of justice. The Panel concluded that the proposed amendments do not change the character or the gravity of the Allegation and were not unfair or prejudicial to the Registrant. The Registrant did not oppose the amendments. The Panel concluded that proposed amendments were fair and appropriate and granted the application to amend.
- The Registrant produced to the Panel a bundle of documentation and Ms McPhee explained that it supported the Registrant’s position, in particular her denial of particulars 4 and 5 relating to the business Weekday WOW Factor “WWF”. She also sought that the hearing be divided to first hear facts and grounds, then, if appropriate, to hear the case on impairment and sanction.
- The Panel accepted the Legal Assessor’s advice and concluded that it was fair and appropriate to divide the hearing as requested by the Registrant and it would hear and decide upon fact and grounds first before considering impairment of fitness to practise.
- The Registrant is a Band 6 Registered Occupational Therapist (OT). She was employed by NHS Greater Glasgow and Clyde (NHS GGC) at the time of the allegation. An HCPC referral was made in 2015 in relation to concerns about the Registrant’s professional practice and poor record keeping.
- In addition, there were concerns about an incident on or about 21 August 2015 when the Registrant took Service User 1 who had early onset dementia, out of Craiglea Care Home (the Care Home) to a café. It is alleged that the Registrant did so without undertaking a risk assessment or implementing a treatment plan and that the Registrant removed Service User 1’s health records from the Care Home and stored them in her car. Additionally, it is alleged that she failed to ensure that the Care Home had her contact details and that she failed to keep her mobile telephone accessible.
- As a result of the concerns raised in relation to that incident the Registrant was subject to an audit of her caseload of nine patient records. A number of those records were found to lack evidence that the Registrant had carried out, or recorded, the necessary OT assessments and/or treatment plans. In respect of Service User 9 the Registrant had failed to detail a number of matters in the patient records.
- Following the audit and a disciplinary investigation by NHS GGC, the Registrant was placed on an informal Supported Improvement Plan (SIP) on 1 September 2016. On 30 January 2017 the Registrant was placed on a formal Capability procedure.
- In or around March 2017, the Registrant went on sick leave. The SIP had not been completed. Whilst on sick leave between March 2017 and August 2017 the Registrant allegedly set up a business called WWF offering activities to elderly people and nursing homes and ran various activities including a weekly disco. The Code of Conduct of NHS GGC stipulates that the Registrant should have obtained written approval from her supervisor prior to commencing work with WWF. Further, during that period of absence from NHS GGC the Registrant claimed statutory sick pay from NHS GGC.
- During the internal disciplinary process, the Registrant provided NHS GGC with a letter from her GP advising that she had health issues due to her work environment and as a result further disciplinary meetings were postponed. She resigned from NHS GGC in July 2017.
- The Panel heard from the Registrant and three live witnesses:
- DR, the NHS Investigating Officer
- JM, an OT who provided supervision to the Head of the Occupational Therapy Department, and who was the Registrant’s supervisor
- DM, an OT colleague of the Registrant who was asked by management to supervise the Registrant as part of the SIP process
- The Registrant responded to the Allegation. She admitted Particulars 1(a), 1b (i), 1b (ii), 1 b (iii), 1(c), 1 (d), 2 (a) , 2 (b) (i) , 2 b (ii), 2 b (iii), 2 b (iv), 2 b (v), 2 b (vi) and 2 b (vii), and particular 3. The Registrant denied particulars 4 and 5. She accepted misconduct in respect of particulars 1, 2 and 3.
Witness 1 - DR
- DR was sworn and confirmed that her witness statement was signed by her and was true to the best of her knowledge and belief. She confirmed she had worked with the Registrant at NHS GGC. She is a Registered OT and the Mental Health Care Group Lead OT at NHS GGC.
- DR told the Panel about her investigation into the incident when the Registrant had taken Service User 1 out of the Care Home to a café. She said that the circumstances surrounding the visit to the Care Home were quite unusual. She understood that the Registrant had visited the Care Home as they had reported that Service User 1 was displaying symptoms of distress and the Registrant’s advice was required. She stated that prior to any intervention or visit taking place there should have been agreement, a clear plan and a management agreement to that intervention. This was required to keep the Service User safe.
- DR said that any professional, working in the community, should be aware of the need for a risk assessment, and if she was unsure, she ought to have sought advice from a more senior colleague. DR said she had seen no record of the Registrant doing so. Any new activity, such as the trip to the café, would require a new risk assessment and the ward risk assessment on the file could not be solely relied upon. She said there should be a rationale on the file and evidence that there had been some consideration of the risks. DR said “I expected to see one OTA form, a treatment plan and a formal discharge letter. I did not see any of these”. All that she had found on the file was a record that the activity had taken place. There was a summary of an assessment and intervention, but no specific discharge document. “It appears that [the Registrant] rolled everything into one document that was not completed till after the incident so cannot be used as a means of planning treatment”.
- DR stated that the file entries for Service User 1 were not detailed and there was no plan which should have been recorded separately so that other professionals on the team are fully aware of the position. Any intervention should have been short, involve another professional and ensure the Care Home had contact numbers if any issues arose whilst on the trip to the café. DR said that she would, as a professional, feel vulnerable if she had not put these safeguards in place before taking Service User 1 out of the Care Home. She believed that had an assessment been completed using the OT document pack then the evidence would have shown that Service User 1 should not be taken out of the home. The Registrant had told DR that she considered she was a “risk enabler”. This caused DR some concern as the risks had not been properly assessed by the Registrant.
- DR said that Service User notes should not be taken out of the office and should, unless in use, be kept under lock and key. DR explained that Service User notes were used and accessed by all the health care professionals treating Service User 1 and that the Registrant was the only OT involved in the multi-disciplinary team.
- The nine cases considered by DR were all of the Registrant’s caseload. DR said that she had found risk assessments blank and in other records there was no evidence of a formal assessment report. For most patients there were no treatment plans. She formed the general view from the Registrant’s file records that soon after meeting Service Users the Registrant moved matters on quickly and there was a general pattern of moving things forward quickly and Service Users did not respond favourably.
- DR said that Service User 1 had been distressed before leaving the hospital and the Registrant should have worked with the Care Home staff to discuss and agree interventions to alleviate any distress. DR said that the duty of care the Registrant owed to Service User 1 involved assessing the situation and working with other carers to alleviate distress. DR said that the trip to the café may have benefitted the Service User however due to the lack of “assessment or treatment planning or risk [assessment]” the rationale was not clear from the records. In particular the Care Home records showed that Service User 1 was at risk of absconding.
- DR said that she understood that the Care Home policies were that records should not be removed from the Care Home and kept securely. She said that records should be kept up to date by the professional by completing them at the Care Home, and not by removing them to do so, and it was acceptable to complete the records after an event, but that should be done as soon as possible. DR stated that the team she had interviewed at the time had felt that there had been limited information about the incident with Service User 1.
- DR accepted that the Registrant had wanted to care for Service User 1, but said her rationale for the intervention was not documented, nor was her apparent assessment of deterioration in Service User 1. She said that continuation notes on the file would not be sufficient to properly assess a service user as they would not likely be comprehensive enough, although some details might be present.
- DR explained the risk assessment process and the need to assess whether a Service User can cope in certain situations. She said that she considered the Registrant felt that she was an enabler but did not sufficiently assess the risks. As part of her investigation DR said that she did not recall the Registrant suggesting an improvement to the documentation, just that she said the standard documentation did not “fit” her Service Users. Due to the fact that the Registrant’s role was evolving it would have been appropriate for her to suggest improvements to the documentation. DR also explained the induction process for new members of staff and OTs. She told the Panel that she would have expected an account of the incident to be reflected in the OT notes. She accepted that the Registrant’s role in the team was evolving.
- DR confirmed for the Panel that the Registrant was a Band 6 OT with experience and that assessment treatment planning and risk assessment were fundamental, core and basic skills taught at university.
Witness 2 – JM
- JM is a registered OT. Her role is as an OT Mental Health Advisor and Care Group Lead OT for North West and West Dunbartonshire employed by NHS GGC. She confirmed that her witness statement was signed by her and was true to the best of her knowledge and belief.
- JM said that it was not appropriate to conduct a risk assessment after the event. If the risk assessment template was not available, the risks could be highlighted in the notes and that would be acceptable as long as the template was subsequently completed. JM also explained that treatment plans needed to be written to clarify clinical reasoning and that was about patient safety. In the absence of an assessment there is no evidence that you have considered the risk areas and that suggests that you have not conducted clinical reasoning.
- JM said that another health care professional’s ability to treat the patient is completely and adversely effected by the lack of a risk assessment and treatment plan and that can lead to unnecessary repetition of assessments. JM stated that the continuation notes in patient records complimented the templates for assessments, and were designed to be systematic and assist evaluation. Whilst one size did not fit all in respect of the templates, they were flexible enough to provide structure to service delivery.
- JM told the Panel that the Registrant at the time was resistant to using the templates for assessment and seemed to fail to appreciate the risks of not doing so. JM said that the Registrant had good ideas for treatment, but the basic core functions needed to be put in place and the Registrant seemed not to appreciate the concerns with her professional practice. The Registrant seemed to consider that management were against her because of her ideas. JM said that the Registrant seemed to lack insight into the deficits in her practice. JM said that ideas were good but needed clinical reasoning, support and management approval.
- JM stated that she was told by a colleague that the Registrant was “oppositional” when she received feedback on the Supportive Improvement Plan (SIP). The Registrant had been argumentative and spoke of irrelevant matters not connected to her practice. Any feedback was deemed negative. JM said that the Registrant lacked some core professional abilities and that those needed to be dealt with before the Registrant took forward her ideas. JM said she did consider there was a disinclination by the Registrant to complete the templates and follow the required structure despite clear instruction to complete the “OT pack”.
- JM said that the Registrant was, in part, successfully completing her SIP but there were concerns about the Registrant’s engagement with it. JM said that she was told by colleagues who managed the Registrant that the Registrant was hostile and angry. JM said that the Registrant had staff representation throughout the process and understood that the Registrant had raised a grievance, but she was not privy to the details. JM said that supervision and the SIP involved supporting the Registrant and she accepted that it was a stressful situation for the Registrant, but the department was a supportive environment. JM also instructed the supervisor of the SIP that any feedback should be constructive.
- JM stated that there was no risk assessment in respect of taking Service User 1 out of the Care Home and that was extremely significant as all patients needed to have an up to date risk assessment and clinical reasoning for the task that is being carried out. JM said she had never before known of a situation where a contact number is not left with the Care Home. This was fundamental to ensure patient safety and it was standard practice to do so.
- JM said that Service User 1 had dementia and was displaying distress and had previously absconded. JM said it was highly irregular to take the chance of taking the service user out of the Care Home in the circumstances. JM said that usually the OT would collaborate with the Care Home about taking a Service User out of the home. JM said that such risk assessment as there had been was not complete. Fundamentally, Service User 1 ought not to have been removed from the Care Home without a comprehensive risk assessment by the OT, the Registrant. JM said she was aware that the Registrant had not felt supported by the Care Home staff on the day of the incident. JM confirmed all OT’s are trained at university on written assessments and treatment planning.
- JM said she accepted that what the Registrant did was what she believed was in the best interests of Service User 1, but said that the lack of a documented risk assessment, contact details and lack of contact arrangements was the problem.
- JM explained her recollection of the business WWF. She recalled that she had been contacted in or about May 2017 by the team leader in the service where the Registrant worked, who had become aware of the Registrant’s activity in respect of WWF. JM said that at that stage there were still concerns about the Registrant’s practice as the SIP was still in place and this had not been completed by the Registrant as she was on sick leave. JM said she was very concerned that the Registrant was apparently running this business whilst off sick and with outstanding concerns about her practice.
- JM was asked about the Registrant’s involvement with WWF. She said that if someone was on sick leave and was undertaking work related to their profession during that leave, she would have expected that to be made known to her, and that such activity should be raised by the professional themselves with their employer. She said that the WWF promotional material suggested that the Registrant was acting in her professional role as an OT. She said that group activities still required some assessment and that it had appeared to her from the material she had seen at the time that the Registrant had been acting as an OT whilst off sick but had not notified her employer, NHS GGC.
- JM said that NHS GGC had tried to organise meetings during the Registrant’s absence but that the Registrant had not attended. She said her concerns remained about public safety and the Registrant’s approach to risk assessment. She was also concerned that the Registrant had stopped engaging with her employer when she went on sick leave. She understood that the Registrant had received statutory sick pay during her absence.
- JM told the Panel that the Registrant in citing the national professional body, the Royal College of Occupational Therapists, in the WWF material was very significant and had raised her concerns. JM said the professional standards of practice applied whenever the Registrant practised her profession.
Witness 3 – DM
- DM was sworn and confirmed that her witness statement was signed by her and was true to the best of her knowledge and belief. She confirmed she worked with the Registrant at NHS GGC and is a Band 6 Registered Specialist OT in the Older People OT Inpatient Team.
- DM told the Panel that she had been shadowed by the Registrant for a period to expose her to the more clinical side of practice. They worked together and both were Band 6 OTs. DM said that she had raised some concerns with the Registrant directly and did not recall any hostility from the Registrant and had found their interactions positive.
Mr Lloyd’s submission on the definition of business
- Before closing the HCPC case Mr Lloyd provided the Panel with the Oxford English Dictionary definition of “business”. He submitted that the ordinary and correct meaning of that word as it appeared in particular 4 of the allegation did not require a business to be one that was incorporated as a limited company, or one that was that a profit making business.
Half time Submission
- Ms McPhee submitted that there was no case to answer in respect of particulars 4 and 5. She submitted that there was no evidence to meet the allegation as set out and that no Panel could satisfy themselves that the WWF was “a business” and that the Registrant had provided OT services through that business. She submitted that WWF was incorporated as a limited company on 12 October 2017 and it was a voluntary, charitable social enterprise and so was not a “business” in the time period alleged. The Registrant’s position was that the HCPC has not provided sufficient evidence to allow the Panel to find that WWF was “a business” in the period and so particular 4 and 5 could not be proved.
- Mr Lloyd submitted that the test was in respect of the HCPC evidence alone, and the Panel could not take account of the summary of what the Registrant’s evidence might be as suggested by Ms McPhee. Mr Lloyd referred to the time-line and to the evidence in the HCPC bundle as to the Registrant’s period of absence from work. He said that during the period of her absence WWF had Facebook adverts and flyers. The documentation showed that WWF had a registered email address, website, twitter handle and a business Facebook page and it referred to clients. It was clearly open to a Panel to find on this evidence that there was a concerted effort by the Registrant to form an enterprise and that there was a “business”.
- Mr Lloyd submitted that there was evidence that the Registrant had “set up and/or provided services as an Occupational Therapist” as set out in particular 4. That was clear from the HCPC witnesses who gave evidence that the Registrant appeared to be providing OT services through WWF. He submitted this was clear from the evidence in the social media presented in the HCPC bundle and spoken to by the witnesses, not least in the HCPC bundle where there is a website screenshot which states “the weekday wow factor is a voluntary organisation run by Occupational Therapist Pasna Sallis”
- Mr Lloyd referred to the Oxford English Dictionary definition of “business”. The business did not need to be for profit and that did not form part of what was alleged in particular 4. He submitted that there was evidence that there was an enterprise and the HCPC did not require to prove that WWF was a limited company or that the Registrant was paid by it. He submitted that the mischief of the allegation was that the Registrant represented to her employer that she was unable to work and was paid statutory sick pay, and at the same time was providing services as an OT through WWF. He submitted that there was a degree of organisation and publicity and WWF was a “business”. He referred the Panel to the test in R v Galbraith for half time submissions.
Decision on Half Time Submissions
- The Panel heard from and accepted the advice of the Legal Assessor who referred it to the HCPC Practice Note on Half Time Submissions and to the guidance in R v Galbraith  1 WLR 1039.
- The submission is directed at particulars 4 and 5 only and Ms McPhee accepted that the challenge was to the issue of whether there was any evidence that WWF was a “business” as set out in particular 4. The Panel considered the oral evidence of the witnesses and the documentary evidence in the HCPC bundle. The Panel did not take account of the evidence in the bundle produced by the Registrant (although the HCPC witnesses were taken to it).
- The word “business” is a word of general meaning, it is not a technical word. It’s normal, natural meaning does not require evidence that WWF was an incorporated limited company, or one that seeks a profit or pays a salary. These latter issues are not what the HCPC offer to prove in particular 4 and they are not necessary for the HCPC to prove that WWF was a “business.”
- The Panel has concluded that the HCPC evidence is such that it is capable of proving that WWF was “a business”. Witness JM has given evidence that she had formed the view at the time in 2017 that WWF was a business in which the Registrant was involved as an OT whilst she was absent on sick leave. This evidence is supported by the documentary evidence in the HCPC bundle which states in a screenshot from WWF that “the weekday wow factor is a voluntary organisation run by Occupational Therapist Pasna Sallis”. This evidence is not tenuous or inherently weak. It has been tested by cross-examination and is consistent.
- The Panel concluded in these circumstances that there is evidence that, taken at its highest, is capable of proving WWF was a “business” as stated in particular 4. Particular 5 is inextricably linked to the particular. The Panel accordingly find the half time submission not well founded.
- Having handed down its decision on the half time submission Ms McPhee advised the Panel that the Registrant admitted the terms of particular 4 but denied her conduct was misleading or dishonest as alleged in particular 5.
The Registrant’s Evidence
- The Registrant was sworn and gave extensive evidence. She told the Panel about the incident on 21 August 2015 with Service User 1. She said she was surprised to learn that Service User 1 had been discharged from the hospital to the Care Home. The Registrant said she had met family members and completed continuation notes at the time. She said those notes did not appear in full in the documents before the Panel. The Registrant said she knew the Service User from the ward and had received a telephone call from the Care Home staff. She had assessed the Service User and she was familiar with the local area.
- The Registrant told the Panel about her recollection of the incident in particular 1 of the allegation. She said that she had received information from Care Home staff about Service User 1 before taking her out and this had taken about 15 minutes. This had been preceded by a telephone call with the staff at the Care Home and she was aware that Service User 1 had presented a “flight risk”. The Registrant said she recalled she was made aware that Service User 1 smoked. The Registrant said she had asked for a second member of Care Home staff to accompany her on the trip out of the home and she had also asked for a mobile telephone. She said she had previously relied upon the risk assessment done by the Care Home and said that some of the continuation notes she made were missing from the bundle.
- The Registrant said that the Care Home worker’s position that it was her idea to take the car, when moving between the two cafes was wrong, despite being recorded in the internal investigation. The Registrant told the Panel that on returning to the Care Home, Service User 1 refused to get out of the car and to go back inside. The Registrant asked the accompanying Care Home staff member to get more assistance and two further members of staff attended and tried to coax Service User 1 into the Care Home. At that point Service User 1 tried to run away and then dropped to the ground outside the Care Home in the car park.
- The Registrant said at that point she had invited Service User 1 to get back into the car and had not consulted with the other members of staff before doing so. At the time she said she felt that was the best way to stop Service User 1 from running away. Things had moved very quickly and she had driven off as a way of de-escalating the situation when Service User 1 said “let’s go”. She accepted that she was then placed in a risky situation as she was alone with Service User 1 in her car with no access to her mobile telephone and this was as a consequence of her own actions. She had driven slowly up and down the road for about 90 minutes and said that her car was visible by what she assumed were secretarial staff in the Care Home.
- The Registrant explained that when Service User 1 was invited back into the Registrant’s car she seemed relaxed and secure. The three workers from the Care Home had simply left, had said nothing and did not help her. She said that by driving away that would de-escalate matters and allow her to seek help.
- The Registrant said she had shouted across the pavement from her car to the staff in the Care Home that she needed help and they had responded saying they would help. She had then asked a member of staff leaving the Care Home to go back in and ask for help, including passing a note asking for the Police to be called. The Registrant said that she did not know why the investigating notes record that the staff member she spoke to at that point recalled being asked by the Registrant to get a hair-dresser. The Registrant said that she then passed a note from the car to members of the public in order to try to get help. The Registrant told the Panel that after approaching several members of the public, a man assisted and called the Police.
- The Registrant said she had her own mobile telephone, but it was in her handbag, which she had put in the boot of her car. She told the Panel that she should have kept the Care Home mobile telephone on her and had not anticipated that the Care Home staff member would not stay with her.
- The Registrant said that Service User 1 had been on a compulsory treatment order but that had been suspended and she had been discharged to the Care Home. She partially accepted that if she had done another assessment of Service User 1 she might have concluded that she ought not to have taken her out of the Care Home. She had not read the Service User’s information pack before taking her out. The Registrant explained her approach to risk as a “risk enabler”, and that meant positive risk taking.
- The Registrant said that both her and the Care Home owed a shared duty of care to service users. She said she reported the Care Home to the Care Commission. Her managers gave her no support and did not listen to her but took her to disciplinary proceedings. She said she felt abandoned in what was a joint intervention. She accepted that the Care Commission had dismissed her complaint and she agreed with its recommendation that Service User 1 ought not to have been taken out of the Care Home. The Registrant accepted that she had failed to do the necessary risk assessment, but she did not accept that the risks arose solely due to her actions in inviting Service User 1 into her car and driving away.
- The Registrant said she was wrong not to have given the Care Home or the Care Home worker her own mobile telephone number. She said she did not use the child lock on the car door when travelling with Service User 1, she had considered it but decided not to do so as it might have caused distress to Service User 1. She said she had not given the same answer about the child locks to the internal disciplinary investigator on 4 March 2016 as she felt under considerable pressure and unsupported. She agreed she had put the records in her car boot to take them home to work on in breach of the NHS GGC policy. She had not formally reported the incident and was traumatised at the time. She accepted that she had received a copy of the interview notes and signed them but was off sick at the time.
- The Registrant said it was her practice often to complete risk assessments after the event but realised that was not good practice. She said she felt the assessment documentation was generic and she had raised this in supervision. She accepted that her assessment of Service User 9 was “appalling” but said she had been under stress and under pressure from management. She said she was not well supported, was quite unwell at that point, and had not seen a patient for some time. She said she felt demeaned by the whole situation.
- The Registrant said that in the Spring of 2015 she had started to look at places for Service Users to go dancing as one of her Service Users had responded powerfully to music and dancing. The Registrant had raised the issue with her Line Manager at NHS GGC. She said she had spoken to a Scottish Government consultant who dealt with Alzheimers issues and had told her employers about that. She had sent some emails and made some plans in early 2015, but it had not occurred to her to tell her employers as she was doing this in her own time. NHS GGC did not tell her she could not do this. She said she organised a venue and there was no one to one contact with Service Users as she was simply facilitating the event and had done a risk assessment for the venue which she recorded in writing at the time.
- The Registrant said she was off sick due to workplace stress in 2015 and, in any event, the disco had been on a Monday when she did not work. She said the disco events had been a focus for her and was an “anti-depressant” for her and gave her confidence. The first disco had been 8 February 2017, but no one showed up that day.
- The Registrant said she felt physically sick and could not face the meetings with management, but she did not miss her occupational health appointments. She stated that she wanted to keep herself well and so did not attend the management meetings as she could not face her managers and decided to resign from NHS GGC in July 2017.
- The Registrant said WWF was a business and provided services. She used her own money to provide food at the events and she had charged £2 to the attendees. She said she made no money from WWF and was presently living on benefits. WWF was a not for profit business and no salaries were paid. The Registrant said she was supervised by another registered OT in her role in WWF. She said she had prepared well before the first disco on 8 February 2017 and she had done a risk assessment as part of that preparation. The Registrant said that she was transparent and had not intended to mislead and it was not her intention to be dishonest.
- The Registrant said she had issues with the OT document pack used at NHS GGC and she accepted she should have followed them, although they were generic. She said that her supervisor had not raised it as an issue with her until there had been a clinical audit of her cases, and she had agreed to use the forms thereafter from July 2015.
- On return to work after the incident the Registrant said she was devastated to be removed from clinical work. The Registrant said she had felt isolated and blamed by NHS GGC from the start and she was shocked to be removed from clinical practice and told she was being investigated. She told the Panel that she had learnt from this experience and would do things differently but had felt she was not taken seriously and her ideas were being blocked. The Registrant said she was off sick from September 2015 for 6 months. She said management were angry with her about the arrangements she had tried to make for the SIP and she was frustrated in doing nothing clinically at work.
- The Registrant said that she did not tell her managers about her plans to run the discos as she felt communication had broken down and she was unwell, but she did tell Occupational Health at the time.
- The Registrant said that by March 2017 the WWF discos were running each Monday. She accepted that the organising, feedback, and social media about WWF took place before she resigned and during the period she was receiving sick pay from NHS GGC. She resigned from NHS GGC on 18 July 2017. She gave the BBC radio interview in October 2017. The Registrant said that the other director of WWF helped her set up the website for WWF and she had paid for it. She explained that the discos were part of a number of activities run by WWF between March and August 20017, and the disco was the weekly event. She accepted that the NHS had therefore indirectly funded WWF.
- The Registrant referred to her NHS GGC job description and stated that she had not been treating individuals in her role at WWF which had a community centred approach, nor was she preparing any individual treatment plans. She stated she was enabling and enhancing the experience of users and her role at WWF involved developing a community treatment plan, risk assessments and discharge plans. She researched and co-designed the activities, adapting her OT skills to consider the needs of the population. She attended all the discos and had the OT health and safety role. The Registrant said that at the time in 2017 she had used her theoretical knowledge and background to develop and frame pilot forms and rationales in order to conduct risk assessments and obtain feedback and to operate the WWF activities. She said that WWF was now evolving into a full OT service, as this had been her plan.
- The Registrant stated that the work of WWF was a non-traditional, unique approach to OT and she was a volunteer OT throughout 2017 in her work for WWF. She said she had told her co-director at WWF that she was having problems at her work at NHS GGC, that she had work- related stress, and that there were ongoing disciplinary procedures. She said that she had dis-associated herself from the NHS and the users of WWF did not know, and did not care, that she was an OT and thought she was a nightclub manager. She said she had not been open and honest about her employment position with the users of WWF. She stated that she had not been trying, or intending to, mislead or be dishonest and had nothing to hide from her employers.
- The Registrant said that she had been told by her managers not to speak to anyone about her position at work but did disclose it to some colleagues at WWF. She summarised her career history and said she was familiar with the requirements to complete forms and knew how to do so. She told the Panel about her approach to practice and the various methods she employs. She said that the nine cases that were audited were her case load and that was a typical caseload. She emphasised to the Panel that she had nineteen years of experience as an OT with considerable experience in various specialisms e.g stroke rehabilitation and wide ranging psychiatric areas in adult mental health. This included completing standardised forms for assessments treatment planning and risk assessments.
- Mr Lloyd summarised the evidence and the HCPC’s position in his closing submissions in respect of each particular of the allegation. He referred to the relevant case law on the question of misconduct and competence and invited the Panel to find all the facts proved and to find that they amount to misconduct and/or lack of competence.
- Ms McPhee submitted that the Registrant had admitted particulars 1 to 4 in full. She summarised the Registrant’s career. She confirmed that the Registrant fully accepted the terms of particular 1 and had acted in this way to provide therapeutic benefit to Service User 1 and the Care Home staff. She accepted that she had not carried out a full risk assessment at that time but had recorded the events on the continuation sheets, but had not done so properly. The Registrant also admitted particular 2 but had done the assessment on Service User 9 under considerable stress and felt undermined.
- Ms McPhee told the Panel that the Registrant admitted particular 3 and accepts that she should have followed the proper procedures but failed to do so. In respect of particular 4, the Registrant admitted that she set up WWF in 2015 but was never told she should have disclosed her involvement to her employers whom she said knew about her activities. Ms McPhee submitted that the Registrant’s employers are not professional regulators and so were not entitled to be advised by the Registrant about her activities with WWF and she did not breach her contract of employment. The Registrant’s role with WWF was completely different from her OT role at NHS GGC and there was no direct interaction with service users. The WWF role was a voluntary one, and did not provide assistance or interventions. Her WWF activity also provided therapeutic benefit to the Registrant herself and her GP had recommended that she pursue that activity.
- Ms McPhee said that the Registrant never sought to hide or conceal her identity in the WWF material. She was merely organising and facilitating events and was entitled to and honestly referred to her OT title. There were no restrictions on her practice. There was no intent to mislead or be dishonest and she honestly believed she was in no way acting in a misleading or dishonest way. Her actions were objectively honest. Her employment (NHS GGC) and voluntary role (WWF) were separate.
- The Panel accepted the advice of the Legal Assessor and applied the relevant principles. He advised the Panel on the approach to facts and that the civil burden of proof, the balance of probabilities, rests on the HCPC, and that the Registrant need prove nothing. On the issue of the alleged grounds of lack of competence and misconduct, the Legal Assessor referred the Panel to the guidance in Holton v General Medical Council  EWHC 2960, Calhaem v GMC  EWHC 2606 and Roylance v GMC (No 2)  1 AC 311.
- The Legal Assessor advised the Panel on the proper approach to considering dishonesty as set out in Ivey v Genting Casinos (UK) Ltd t/a Crockfords  UKSC 67 which stated:
“ 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".
- The Panel carefully considered all the evidence, the documents before it and the submissions from Mr Lloyd and Ms McPhee.
- The Panel found the witness DR consistent, credible and reliable. She was clear about the extent of her involvement in the investigation and highlighted issues concerning the Registrant’s practice.
- The Panel found witness JM consistent, open, helpful, credible and reliable. Notwithstanding some obvious frustration JM clarified the details regarding the SIP and the Registrant’s response to it and her approach to the Registrant’s ideas and why they were “not suitable”.
- The Panel found witness DM helpful insofar that in shadowing the Registrant she observed a number of deficiencies in the Registrant’s assessment of Service User 9. These gave her cause for concern as they were basic observations.
- The Panel found the Registrant’s evidence helpful to an extent. The Panel acknowledged that giving evidence is a difficult and stressful experience. However, even given these considerations her evidence was frequently repetitive, incoherent and on many occasions inconsistent. At times the Registrant was evasive responding with deflective commentary such as “that’s a good question”, “I’m loving your questions”, or wishing to” thank the BBC”. The Registrant often failed to answer the questions put to her and became side-tracked and confused in her responses. At times, the Panel found that her evidence and her descriptions, in particular that involving Service User 1, were inconsistent and became increasingly elaborate at each retelling. Whilst the Panel found that the Registrant at times sought to be helpful and open, the over-elaboration in her answers made her evidence hard to understand and follow. The Panel found that the Registrant’s evidence at times lacked credibility and was not wholly reliable.
Decision on the Facts
Particulars 1 a) , 1 b) i), ii) & iii) - Proved
- The Panel considered the documentary evidence and accepted the evidence of the Registrant, JM and DR. The Registrant admitted the particular. The Registrant accepted that she had failed to complete an adequate clinical assessment, risk assessment and management plan and admits these particulars. She told the Panel she had not done a risk assessment for the trip, that she had left her mobile telephone locked in the boot of her car and had not left contact details with the Care Home.
- JM’s witness statement was that there was no formal risk assessment, clinical plan and no documentation of a plan to take Service User 1 out of the Care Home, nothing to say where the Registrant was taking them, no contact details and no telephone number for the Care Home. DR’s witness statement is consistent and supports JM. DR confirms that the Registrant had not put in place any measures to ensure the safety of Service User 1, the public or herself. The management report, to which DR contributed, is also consistent with the evidence of JM and DR on these matters. The Panel found these particulars proved.
Particular 1 c) - Proved
- The Registrant admitted this particular. Her evidence and that of DR and JM is consistent. DR in her witness statement explains that the Registrant placed Service User 1 in the front seat of her car despite the Registrant being aware that Service User 1 did not have full cognitive ability and had displayed some aggression and distress. DR’s evidence was that this placed both Service User 1 and the Registrant at risk. The Registrant said she had not engaged child locks in the car. Safe and appropriate alternatives were available to the Registrant, such as not inviting Service User 1 back into her car and not setting off. The risks would have been identified, managed and minimised had the Registrant carried out a risk assessment. She did not do so. If anything, the Registrant increased the risk by inviting Service User 1 back into her vehicle. The Panel found that the Registrant accordingly failed to identify, assess and effectively manage and minimise the risks to Service User 1, herself and to the public. The Panel found this particular proved.
Particular 1 d) - Proved
- The Registrant admitted this particular. The Panel accepted the evidence of JM and the Registrant who both stated that the Registrant had removed the records from NHS GGC and placed them in the boot of her car. The Registrant said she was taking them home to work on. This was a breach of the NHS GGC policy. The Panel found this particular proved.
Particular 2 a) - Proved
- The Registrant admitted this particular. The audit was carried out by DR who sets out in her witness statement that in respect of Service Users 3, 4, 5 and 6 she found that whilst some assessment information had been recorded, the Registrant had not recorded full OT assessments in the records. The review of the patient records conducted by DR, reports that in respect of these service users no notes were found for SU4 and SU6, and no OT therapy assessments were found. No risk assessment was found for SU3 and the risk assessment for SU5 was incomplete and contained no management plan. The Panel found this particular proved in that the assessments were neither carried out nor recorded.
Particulars 2 b) i) – vii) - Proved
- The Registrant admitted these particulars. DM’s witness statement explains the Registrant’s failure to identify and detail the issues and the consequent risk of harm to the service user. The Panel found that this type of assessment required basic OT skills. The Registrant failed to identify and to detail seven basic aspects of the assessment, placing the service user at potential risk of harm. The Panel noted that the Registrant said she was stressed and under pressure at the time. However, that does not avoid the fact that she carried out what she described as an “appalling” assessment of Service User 9. The Panel found that she had gone through the assessment process with DM the day before but she disregarded what she had observed. The Panel found these particulars proved.
Particular 3 - Proved
- The Registrant admitted this particular. The evidence of DR supports the alleged failures. DR’s evidence in her witness statement was that the Registrant had no treatment plan for SU2; had recorded no formal assessment for SU3; had recorded some continuation notes for SU4 but these were incomplete and there was no formal OT assessment recorded. The assessment recorded was not comprehensive and did not allow for a treatment plan to be agreed. In respect of SU8, DM found no treatment plan. The Registrant did not dispute this evidence. The Panel found that the Registrant failed to adequately complete and adequately record treatment plans for these service users and found this particular proved.
Particular 4 – Proved in part
- The Panel carefully considered the wording of this particular and was mindful that it contained a number of elements. It alleges that the Registrant set up and/or provided services as an OT in a date range at the business of WWF. It further alleges that the Registrant did so whilst on sick leave from NHS GGC whilst receiving sick pay. It also alleges that the Registrant did so contrary to NHS GGC Code of Conduct Policy.
- The Panel considered the Registrant’s evidence. She admitted the particular in full. In her evidence she set out at length, and in considerable detail, that she set up WWF and provided services as an OT to WWF and that WWF activity took place, in part, in the period alleged. She called herself a “volunteer OT” at WWF. The Registrant’s evidence was that WWF was a voluntary, social enterprise organisation, and she received no payment. She said she had done preparatory work by way of social media and flyers before the first disco on 12 February 2017. She set out in her evidence that she arranged for WWF to hold discos each Monday and it had done so between March 2017 and August 2017. She attended all of them. Whilst the OT role at WWF may well have differed from the Registrant’s role at NHS GGC, and her formal job description, as the Registrant asserted, the Panel concluded that the evidence strongly indicated that the Registrant was providing OT services to WWF in the period alleged.
- The Registrant’s evidence is supported by documentation before the Panel, some of which sets out that WWF is “an innovative, community centred seedling… contribute to public health and well being.. we hope our roots will be embedded with a strong occupational therapy philosophy.” The Registrant told the Panel at length that she ran the discos with a colleague, who she later confirmed was a volunteer DJ. She was the “OT health and safety” person at the discos, a role which included interacting with the participants and de-escalating any conflicts. The Registrant stated she was doing everything alone and that she was a “one woman band”. She said she had conducted risk assessments of the venue before holding the discos. The Registrant said that she had explored hosting other WWF events such as motor-boat racing, canoeing, climbing, trampolining and zip sliding. The WWF publicity material reflects that.
- There is an article dated 2 August 2017 from “Glasgow Live” that talks about what WWF has been doing and mentions the discos, speed boat racing and zip sliding. The documentation states that the Registrant was the contact for WWF, and Facebook discussions show the Registrant replying to feedback and promoting WWF.
- JM’s evidence was that she understood from the publicity material she had seen that the Registrant was involved in WWF in an OT capacity and that WWF was a business of some sort.
- The Panel concluded from the evidence that WWF was a business. In determining whether WWF was a business or not, it concluded it was not necessary for that business to be profit making, pay a salary or be incorporated as a limited company (WWF was not incorporated until October 2017). The Panel concluded on the evidence of JM and the Registrant that the Registrant set up and provided services as an OT to the business of WWF between March 2017 and August 2017.
- It is not disputed that the Registrant was absent from her employment as an OT at NHS GGC and received statutory sick pay between March 2017 and August 2017. This is supported by the Registrant’s own evidence, the statutory sick notes from the Registrant’s GP and the sickness record produced by JM.
- The Panel accordingly concluded on the evidence that the Registrant did set up and provide OT services to the business WWF in the period alleged, and that she did so during a period when she was absent from work and receiving statutory sick pay from NHS GGC.
- The Panel was not taken to any NHS GGC Code of Conduct policy and no witness gave evidence in that regard. The Panel did not find this aspect of the particular proved given there was no evidence to support it. The Registrant is governed by the overarching professional standards in the HCPC Standards of conduct, performance and ethics and by the HCPC Standards of proficiency for Occupational Therapists. The Panel did not consider that this aspect of the particular was significant and it was not material to the nature and gravity or to the mischief of this particular.
Particular 5 a) & 5 b) - Proved
- The Panel considered the guidance in Ivey and accepted the advice of the Legal Assessor. It considered the Registrant’s evidence about her actions, and it considered matters objectively.
- The Panel has found that the Registrant was absent from work through sickness in the period alleged in particular 4. As a matter of fact, it has found that she was receiving sick pay in the period when she was setting up and providing services as an OT to the business of WWF. The Registrant’s evidence was that she considered she had been open and transparent. She said she was never told by NHS GGC that she could not undertake this role for WWF. She said that her employers never asked what she was doing and that she thought they knew. Her evidence was she had not told her employers about WWF and did not consider she was required to do so.
- The Panel carefully considered the chronology of events. On 8 May 2017 the Registrant took service users of WWF trampolining, and on 11 May 2017 she told her employer by email that she remained too unwell to attend the management meeting on 16 May 2017. On 15 May 2017 the Registrant hosted the daytime disco for WWF and on 16 May 2017 she emailed her employers telling them she has been signed off sick for a month. She therefore hosted a WWF disco and the next day was signed off sick for a month.
- The GP letter of 24 May 2017 states that the Registrant’s work related stress had a significant impact on her day-to-day functioning. The Registrant said she was unwell. She had constant headaches, was often unable to care for her children or get dressed. She was at this time organising and hosting the WWF discos each Monday, planning further events and actively publicising WWF.
- The Panel noted that the GP letter from Dr Rowland dated 14 December 2018 confirms that the Registrant did some voluntary work which he considered beneficial. He does not detail the extent or the nature of the voluntary work. There is no indication that he was aware of the level of the Registrant’s involvement and her role in WWF.
- During her absence from work on sick leave the Panel has found that the Registrant undertook significant work and responsibilities for WWF. It was clear from her evidence that during this time the Registrant was heavily involved in WWF; she prepared and hosted events and provided the food, and was the health and safety officer at the weekly discos. Furthermore, she was actively planning and promoting events for WWF.
- The Panel recognised that there can be significant emotional and psychological impact upon a person when their relationship with their employer breaks down. However, the Panel found this chronology of events hard to reconcile with the Registrant’s version of events that she was very unwell at the time, too unwell to attend her employment or meetings with her employer, particularly with the symptoms she described to the Panel. The Panel consider that it is not credible that whilst being so unwell that she could not attend work, the Registrant was planning, organising and hosting WWF events, including the disco on a weekly basis.
- The Registrant had a continuing obligation to be engaged with her employer’s sickness policy and to be honest and open with them. The Registrant admitted that she did not tell her the employer about WWF and seemed to assume they knew. The Registrant’s professional practice was also, at that time, under review.
- The Panel considered the objective test of whether the Registrant’s conduct was honest or dishonest and applied the objective standards of ordinary decent people. The Panel has found that the Registrant whilst off sick, claiming to be too unwell to work or attend meetings and whilst receiving sick pay from NHS GGC, was actively running events for WWF as a volunteer OT. She was actively involved in promoting WWF and planning events. Although the Registrant may have genuinely considered that she was not misleading or being dishonest with NHS GGC she was working beyond that which would have been considered as rehabilitative voluntary work. The Registrant was promoting an OT service that involved a highly dynamic and energised environment requiring significant physical and emotional input from the Registrant, including a high degree of responsibility. She was doing so at a time when she was being paid by her employer and was claiming extended periods of absence from her employment due to ill health.
- The Panel concluded that a well-informed, ordinary, decent member of the public would conclude that the Registrant’s conduct in this regard was both misleading and dishonest.
Decision on Grounds
- Having found all the particulars proved, the Panel went on to consider the statutory grounds of misconduct and/or lack of competence. The Panel considered the submissions for Mr Lloyd and Mc McPhee. The Panel exercised its own professional judgement and accepted the Legal Assessor’s advice. It bore in mind the relevant case law, including the guidance in the cases of Roylance and Holton.
Lack of Competence
- The Panel first considered whether the findings amount to a lack of competence. The evidence was that the audit had covered her whole caseload. The Panel had evidence before it of more than a fair sample of the Registrant’s work.
- The Registrant said in her evidence that she was aware of the correct forms to complete and, as an OT with 19 years of experience, was well aware of risk assessment, treatment plans and management plans. She was a Band 6 OT and an experienced OT with a career in several different OT settings and for a number of NHS boards. There was no evidence that the Registrant did not know what she ought to do, nor that she did not know how to conduct the required assessments and plans. She gave evidence that she did not find the format of the NHS GGC OT assessment documentation pack relevant and she did not find it useful. However, she fully accepted in her evidence that she should have completed it correctly. The Panel considered that the Registrant had a dis-inclination to use the forms she was required to complete, and indeed she resisted doing so.
- When assessing SU9 she had been accompanied by a Band 6 colleague and had discussed the planned assessment and observed an identical assessment of a patient the day before. Despite the support from DM, the Registrant made serious, basic failings in the assessment placing the service user at potential risk of harm.
- But for her knowledge and experience, the failings in respect of particulars 2 and 3 might have been considered to be due to a lack of competence. However, in these circumstances, the Panel concluded that the Registrant does not lack competence. Her professional experience of 19 years, and her evidence, indicated that she was well aware of what she should have done, how she should have done it but that she failed, or chose, not to do so. She placed service users at risk of harm as a result.
- The Panel did not consider that the particulars 1, 4 or 5 arose as a result of lack of competence. Lack of competence is not found in respect of any part of the allegation.
- The Panel considered the guidance in Roylance as to misconduct and considered its findings of fact. The Registrant is an experienced Band 6 OT. She made clear in her evidence she knew what she should have done in respect of preparing risk assessments, management report and record keeping. She admitted all of her multiple failures as alleged.
- Particular 1 is a serious matter that placed the service user, the Registrant and the public at risk. She had not checked the patient’s records, instead she jumped to an intervention without regard to the core risks. Had this risk assessment been completed the circumstances arising within particular 1 would have never have occurred. The Panel has found that the Registrant failed to complete a risk assessment form and to manage and minimise the risks. Particulars 2 and 3 are serious given the wide-ranging and basic failures to conduct and record adequate OT assessments for some nine service users. The findings in respect of particulars 4 and 5 are serious given the findings on dishonesty.
- Further, the Panel considered the HCPC Standards of Proficiency for Occupational Therapists (2013). Given the facts found proved the Panel found that the Registrant breached the following standards:
- Be able to practice safely and effectively - 1.1
- Be able to practice within the scope of the legal and ethical boundaries of your profession - 2.1, 2.2, 2.7, 2.8
- Be able to maintain fitness to practice – 3.1
- Be able to practice as an autonomous profession - 4.1, 4.2, 4.3, 4.4, 4.6
- Understand the importance of and be able to maintain confidentiality – 7.2
- Be able to communicate effectively – 8.4, 8.6, 8.9
- Be able to work appropriately with others – 9.1, 9.2, 9.3, 9.4
- Be able to reflect on and review practice – 11.1, 11.2
- Be able to assure the quality of their practice – 12.1 , 12.2, 12.3, 12.4 ,12.6, 12.7
- Understand the key concepts of the knowledge base – 13.1, 13.3, 13.4
- Be able to draw on appropriate knowledge and skills to inform practice – 14.1 – 14.19 (except 14.7)
- Understand the need to establish and maintain safe practice – 15.1, 15.2, 15.3, 15.5
- The Panel considered the HCPC Standards of conduct, performance and ethics (2016). It has found that the Registrant breached the following standards:-
- Treat Service users and carers with respect - 1.2
- Communicate appropriately and effectively - 2.2 , 2.3
- Work with Colleagues - 2.5, 2.6
- Maintain and develop your knowledge and skills - 3.3, 3.4, 3.5
- Manage risk - 6.1, 6.2
- Be Open when things go wrong - 8.1
- Be honest and trustworthy - 9.1, 9.2, 9.3
- Keep records of your work - 10.1, 10.2, 10.3.
- With regard to Particular 1, which happened in 2015, the 2012 HCPC Standards of conduct, performance and ethics were in force. The Panel found that standards 1, 3, 5, 7, 8, 10 were breached by the Registrant.
- The Panel concluded that each particular found proved is conduct which is serious. Particulars 1, 2 and 3 had the potential to cause harm to service users as a result of the Registrant’s conduct and failings. Particular 4 and 5 relate to misleading and dishonest conduct by the Registrant whilst on sick leave. In respect of each particular, and taken together, the Registrant’s conduct fell far short of what would have been proper in the circumstances and amounts to misconduct.
Impairment of Fitness to Practice : 23 November 2020
- The hearing adjourned part heard on 24 January 2020 and it reconvened remotely on 23 November 2020 for a further five days. The Panel heard evidence in respect of impairment from the Registrant and LMc. It also received a formal witness statement from RS.
The Registrant’s Evidence
- The Registrant gave extensive evidence in respect her fitness to practise. She said she accepted the findings of the Panel. She said she had placed service users and herself at risk of harm and she had learned to be more objective and learnt lessons. As regards the finding on particular 1a) the Registrant said that she now “absolutely” ensures that she considers risk and risk management. If those events occurred she would consider completing risk assessments.
- The Registrant said she had been rather naïve and she should have done a risk assessment. She said that process was necessary each time to ensure her practice was safe at all times. She now realises how important clinical supervision is and the need to be objective. She said she conducts risk assessments every time and actively seeks feedback from her supervisor and colleagues and has developed templates to assist her to be thorough.
- The Registrant referred the Panel to her Risk Assessment and Management Policy, Gorbals Disco terms and conditions, personal information sheet and a risk assessment she completed on 13 March 2020. She said she prepared these and conducted risk assessments before each event. The Registrant explained that she now understood that Service User 1’s physical and mental health could have been harmed, the seriousness of the incident and the damage to the profession.
- The Registrant accepted that due to the findings the public would be distrustful of the profession and she was ashamed. She said that the findings have had a huge impact on her practice and she constantly reflected on whether she was doing the right thing.
- As regards finding 1b) she said she had learnt to always have her mobile telephone with her and realises now that she should have been better organised and not just rely on the care home. She said she ensures her mobile number is always shared and realised that she may have caused harm to Service User 2 and undermined trust in her profession. She said she has learnt to “take a step back,” not rush into things, follow policies and protocols, and now does not hesitate to seek professional advice.
- The Registrant accepted that the findings at 1c) were correct. She said she had reflected on her lack of risk assessment and communication and the risk of harm she had created. She told the Panel that she understood the public and her fellow professionals would have been concerned about her conduct. The Registrant also said she better understood the need for security with documents and the need to keep records safe. She said she was accountable for her actions and had learned to follow systems and checks to maximise safety for the client, the public and her profession.
- The Registrant next considered the findings in respect of particular 2 and 3 which she accepted. She said her failures were “stand alone” and reflected how she felt at that time. She knew it was not acceptable practice and she should have got the basics correct. She referred the Panel to examples of her assessment and treatment plans and told the Panel that her clinical supervisor audits her work and since March regularly communicated about the plans. She said that had helped her and boosted her self-esteem. She accepted it was wrong of her not to have used the standardised documentation which she said she now understood had positive aspects and helped in risk assessment. She said her practice had changed and she now carefully documented all her interventions on standardised documentation.
- The Registrant said she was really hurt by the finding of dishonesty. She apologised and said that she could see why her employers felt that way, but she had not been well and with hindsight she wished she had completed the capability programme. She knew that integrity was crucial to her profession and its reputation and that trust and safety were linked. She considered the public would be entitled to “walk away” from a dishonest professional and fellow professionals would be disgusted.
- The Registrant told the Panel that being an Occupational Therapist meant everything to her and it was part of who she was. She loved her profession, was very proud to be a member of it and she wanted to promote it. She said that she did not think her current practice was impaired and she had fully reflected and learnt. This would never happen again.
- In response to cross examination by Mr Lloyd, the Registrant said that she had not told clients about the HCPTS hearing as that was not appropriate as enough of her contacts in social care knew about it. The failings related only to her NHS practice and she had worked hard with her supervisor. She did not consider she currently presented a risk and that was the feedback she was getting.
- The Registrant said with regard to particular 1, that she should not have blamed the home and reported it to the CQC. She accepted she had taken some time to learn, it had been gradual but she had changed. She said she was embarrassed by aspects of her position at the first part of the hearing in January 2020 and agreed that she had been managed fairly by her employers. She accepted she had been wrong to describe her employers as being in a “conspiracy” and agreed that she ought to have completed the capability programme and would now like to apologise to them.
- The Registrant told the Panel about how she designed and reviewed risk assessment plans and carried insurance for WWF. She explained her approach to completion of the assessments and said she had told her social work partner and her colleague at the Scottish Council for Voluntary Organisation about the current HCPTS proceedings, but had not told others. With regards to the CPD she had completed in the days before the January 2020 hearing, the Registrant said she had been busy with WWF and she had done other CPD too.
- The Registrant responded to Panel questions. She confirmed she ran WWF as a director and as an Occupational Therapist in the context of public health. She is the primary accountable person and as such, the same professional standards apply to her as they would in in private practice, although at WWF she is working at a population level rather than with individuals.
- The Registrant stated that she did not complete individual risk assessments. Her risk assessments were confined to a “walk about” of the premises, but any other accountability lay with the carers/care home.
- The Registrant said she had consulted with the Royal College of Occupational Therapists frequently and she explained the WWF disclaimer, personal information and incident documentation. The Registrant said that she stored the papers for WWF in a lockable cupboard at home to which only she has access and in a locked case in her car boot at events. She also said that since January 2020 she had done CPD on the use of digital technology, equality and diversity and on work in the voluntary sector.
Witness – LMc
- LMc is a registered Occupational Therapist and acts in a voluntary capacity in providing supervision to the Registrant. She referred to and adopted her witness statement. She works as a Band 8a Occupational Therapist employed by NHS Lanarkshire. She is about to take up a senior post as an Occupational Therapist with another NHS Trust. She said she was aware of the findings of the Panel on fact and grounds.
- The witness explained her knowledge of the Registrant with whom she had worked as part of a Falls Team and said they frequently worked together. She explained she had met with the Registrant as the Registrant had been seeking advice about setting up WWF.
- The witness said she was initially aware of the incident at the care home and through discussion and supervision she is aware of the other allegations, which have been discussed at supervision as learning points. She explained that she had formalised the supervision arrangements and they meet every three months and also have frequent contact by email, text and telephone. The witness said that supervision was a considerable time commitment but it was mutually beneficial. It was typically “at least one hour per month” plus the emails and telephone calls.
- The witness told the Panel that the Registrant was fully engaged in the supervision process and often attended with lists of issues to cover. The witness explained that the Registrant had developed the risk assessments for WWF herself and had sought advice from her and others as there was no “off the shelf” assessment. This had been discussed at supervision sessions. The witness told the Panel about her understanding of the forms used by the Registrant at the WWF events and said she had considered the WWF documentation, consent policies and web pages as well as auditing about six or seven risk assessments.
- The witness told the Panel that the risk assessment has been reviewed and altered several times following supervision discussions. She said that responsibility for risk was mutually shared between the Registrant as an Occupational Therapist and the service user or carer. The witness said that the presence of an Occupational Therapist at WWF events would make it safer and more effective.
- The witness said the Registrant was very focussed on the health and safety of the service users and that she was fit to practice. The Registrant was not over confident and recognised the importance of working within the HCPC and Royal College of Occupational Therapists regulatory framework. The witness said she would want to continue to work with the Registrant going forward who continued to reflect on and develop her practice.
- The witness said the supervision sessions were noted and records were also kept for all the informal sessions. She said that the Registrant was always looking to see how she can improve her service at WWF and evaluating the service on an on-going basis as it constantly evolved. She explained the group and community level approach and the need to also understand the individual or “micro” level. She told the Panel of a successful WWF event at Glasgow Green and engaged with other professional and local groups in doing so and there had been really positive feedback about the event.
- The witness emphasised the benefit of these events and also confirmed the need to look at the individual attending the event. Furthermore, there was a need to understand the basic core functions of occupational therapy.
- The witness said she had no concerns about the Registrant’s current practice and would raise any concerns with the HCPC. If she considered anyone was at risk she would flag that up. The witness said the Registrant was always keen to review and reflect on her practice was continuously doing so and is also involved in an independent practice group through the Royal College of Occupational Therapists. She was keen to learn and understand and to develop her practice.
- The witness said the Registrant was a good practitioner and she would be happy for her to look after her own parents. The witness said she was aware that the Registrant had done ground breaking work in the past. The witness said the Registrant’s CPD was up to date and she was very pro-active in that regard. The witness said she had no reason to believe that the Registrant would be dishonest. She considered that, based on what she had seen from the Registrant, she would have no concerns about her practice at this time.
Application to Adjourn
- Due to unavoidable circumstances Ms McPhee was unable to attend the hearing on Thursday 26 and Friday 27 November 2020 and the Panel received a written application from her to adjourn until Monday 30 November 2020. Having received an email from the Registrant stating that she did not wish to attend in the absence of her representative, and having accepted the advice of the Legal Assessor, the Panel concluded that it was fair and in the interests of justice to grant the application to adjourn until Monday, 30 November 2020.
Monday 30 November 2020
- The hearing reconvened on Monday, 30 November 2020. Ms Merchant appeared on behalf of Ms Sallis and made a further application to adjourn the hearing. She referred to the HCPTS Practice Note on Postponement and Adjournment and submitted that the Registrant was entitled to have Ms McPhee represent her and it would be a huge disadvantage to the Registrant were she not to do so. She explained that, whilst unfortunate, there was no fault to be attributed to Ms McPhee and the case should be adjourned to avoid prejudice to the Registrant.
- Mr Lloyd observed that there had been a whole weekend for the Registrant’s solicitors to prepare submissions and for another solicitor to take on and present the Registrant’s case in place of Ms McPhee. He pointed out that the case management directions had not been adhered to as papers had continued to be presented throughout the hearing by the Registrant. Mr Lloyd, whilst expressing concern at the approach taken by the Registrant’s solicitors, advised that the HCPC did not oppose the application to adjourn.
- Mr Lloyd suggested the following case management directions: -
- Within 21 days for the Registrant to serve any further evidence and a Skeleton Argument on admissibility
- Within 14 days thereafter for the HCPC to serve any written response
- For both parties to provide dates for a continued hearing to allow four days to be allocated to allow for admissibility arguments and the further stages of the hearing.
- Mr Lloyd reminded the Panel that the case did not start promptly on day one due to difficulties with Registrant’s documentation. He told the Panel that the supplementary statement from the witness, LMc, which is sought to be produced by the Registrant would be opposed as it appeared to be an attempt to adduce expert evidence. He did not oppose the testimonials that the Registrant sought to produce. Mr Lloyd sought clarification in respect of any other documentation that the Registrant was seeking to produce.
Decision on Adjournment
- The Panel accepted the advice of the Legal Assessor who referred it to the HCPTS Practice Note on Postponement and Adjournment. It was mindful of the CPS v Picton factors and fairness to the parties.
- The Panel heard from Ms Merchant that the Registrant would be prejudiced if an adjournment were not granted and that it was not possible to make progress today, even in respect of the required application from the Registrant in respect of new evidence. She said it was not possible for another solicitor to take on the case at this stage. The Panel heard from Ms Merchant that she would consider an appeal or judicial review and would potentially withdraw from acting for the Registrant if there was no adjournment.
- The Panel was mindful of the importance of fairness and that it must manage fairness to both parties and balance the parties’ interests. The Panel was concerned and disappointed that arrangements had not been made to have another solicitor at Thompsons represent the Registrant. It makes no criticism whatsoever of Ms McPhee, but it is entitled to expect appropriate arrangements to be made by the solicitors instructed to avoid delay and disruption of the hearing, particularly so given the history of this case which began in January 2020 and relates to allegations in 2015. It is not in the interests of either party to delay matters further.
- The Panel concluded that, on balance, it would not be fair to the Registrant to require her solicitors to proceed today. Ms Merchant told the Panel that they have not been able to prepare to proceed today. The Registrant’s case ought not to be prejudiced by the lack of alternative arrangements by her solicitor’s firm. The Panel considered that lack of opposition by the HCPC was understandable in these circumstances. Delay is regrettable but in all the circumstances that cannot be avoided and further days would, in any event, have been required to conclude this hearing.
- The Panel decided to grant the Registrant’s application to adjourn. With focus and expedition in mind the Panel also made the following case management directions: -
- Within 14 days for both parties to provide dates between January and April 2021 to allow for a continued hearing of four days to be allocated.
- Within 21 days for the Registrant to serve any further evidence in a paginated and indexed bundle together with a Skeleton Argument on admissibility of any such evidence.
- Within 14 days thereafter for the HCPC to serve any written response.
- No later than 14 days before the allocated hearing for both parties to provide written submissions on impairment of fitness to practice.
Resumed hearing 9 March 2021
- The hearing resumed on the 9 March 2021. The Panel heard an application from Ms McPhee to receive and two testimonials and a further witness statement and exhibits from the witness LMc. Ms McPhee confirmed she had not closed the case for the Registrant. Due to a delay in receiving the transcripts from the HCPC she had not been able to prepare the supplementary witness statement any earlier.
- Ms McPhee advised the Panel that the witness sought to explain further the various occupational therapy models that she had referred to in her evidence. Ms McPhee submitted that the witness had not been able to meet the time scale required by the case management directions as she had faced some personal difficulties and had only been in a position to finalise her witness statement yesterday. Ms McPhee submitted that this evidence was relevant, was not expert evidence and sought only to elaborate on LMc’s earlier evidence and to assist the Panel to better understand public health occupational therapy. Ms McPhee acknowledged that she should have sought an extension to the case management directions. She submitted that it would be prejudicial to the Registrant not to allow this evidence. She referred the Panel to the case law on admitting hearsay evidence.
- Mr Lloyd for the HCPC did not oppose the production of the two testimonials. He submitted that the case management directions had not been adhered to by Ms McPhee. The time period for providing the written application to receive the evidence had expired in December 2020, before the request for the transcripts and he submitted the transcripts were not a ground for delay and the application had no merit. He submitted that there had been a conspicuous and sustained failure by the Registrant’s solicitors to adhere to case management directions.
- Mr Lloyd stated that Ms McPhee was unclear as to why she was seeking to produce LMc’s supplementary statement. He queried its evidential value and whether it was being produced as expert opinion or hearsay. Mr Lloyd submitted that LMc’s evidence was not expert evidence, not least as it did not meet the requirements for such evidence. He reminded the Panel that the evidence would not be tested under cross examination as this witness would not be recalled. He said the evidence was hearsay evidence and submitted that the evidence did not add anything and was not helpful. He submitted that it was simply a “second bite at the cherry.” It was ultimately for the Panel to decide whether it was fair to admit the evidence but the application was opposed by the HCPC.
Decision on the receiving the Supplementary Witness Statement
- The Panel accepted the advice of the Legal Assessor who reminded it that the central test for the admission of evidence was fairness and relevance. He referred the Panel to the relevant case law on hearsay evidence including NMC v Ogbonna  EWCA Civ 1216 and Thorneycroft v NMC  EWHC 1565 (Admin). He stressed to the Panel that there was a two stage process to follow - first whether to admit the evidence and, if so, secondly what weight to attach to it.
- The Panel considered the submissions from both Ms McPhee and Mr Lloyd. The Panel was mindful that at this stage in proceedings it was not finding facts and was not dealing with an evidential onus or burden of proof, but exercising its own professional judgement on impairment of fitness to practise.
- Firstly, it considered admitting the two testimonials, which are not opposed. It is not unusual for testimonials to be provided at the stage when impairment of fitness to practise is being considered. The Panel decided that it was fair and appropriate to admit the two testimonials which are relevant and will assist the Panel in its consideration of current impairment.
- The Panel noted that the Registrant’s solicitors have not complied with the case management directions and this has caused a further delay in the progress of this case. The directions in November 2020 were not predicated on the delivery of any transcripts. The Panel did not agree that the delay and failure to comply was justified by the date the transcripts were provided by the HCPC.
- The Panel considered the witness statement from LMc which appears to supplement the live evidence she provided to the Panel. It is regrettable that the opportunity was not taken to better explore this evidence in the witness’s live evidence before the Panel. The usefulness of the evidence is disputed, but it is not evidence that is disputed on its merits and it is not contentious. The witness is seeking to be helpful and she provides background and context that may be useful to the Panel in considering impairment. The Panel agreed that the witness was not an expert witness.
- The Panel took the view that the evidence was not sole and decisive evidence. Its decision on facts and grounds has already been made, and this evidence is limited and goes only to the issue of impairment and is essentially contextual.
- The Panel concluded, on balance, that the evidence has some relevance and will likely be of some assistance when considering impairment. The Panel decided that the inability of the HCPC to cross examine the witness, whilst not ideal, did not give rise to such prejudice that the evidence should not be admitted. Submissions on impairment are still to be made by both parties who are free to make such observations as they wish in relation to this evidence.
- The Panel having considered the central issue of fairness to the Registrant and the HCPC, concluded that it was fair to admit the supplementary witness statement of LMc. It will, when exercising its professional judgement on the issue of impairment, attach such weight to that evidence as it considers appropriate.
Submissions on Impairment
- Mr Lloyd summarised the evidence heard on impairment and referred the Panel to the relevant case law. He submitted that on both the personal and public elements of impairment that the Registrant was currently impaired and he referred the Panel to his detailed written submissions.
- Mr Lloyd submitted that the Registrant’s attitude to risk, patient safety, accountability, patient record keeping and dishonesty was such that her fitness to practise was currently impaired. He submitted there was little evidence of developed insight or reflection by the Registrant. He submitted that the nature of the misconduct, including dishonesty, also required a finding of impairment on public interest grounds. He also asked the Panel to consider whether the Registrant’s practice continues to show signs of impairment characterised by a refusal to accept accountability or tendency to delegate or disclaim responsibility for patient safety.
- Mr Lloyd asked the Panel to consider the evidence of LMc very carefully given that it was not subject to cross examination. Mr Lloyd submitted that the Panel should carefully consider the Registrant’s current role and any remediation she has undertaken.
- Ms McPhee referred the Panel to its findings and she submitted that the Registrant accepts that at the time of the incidents she was impaired, but is no longer impaired. She referred the Panel to excerpts from the transcript to support her submissions that the Registrant has insight and has developed her practise. The Registrant has developed and she holds herself out for public scrutiny and as an ambassador for good practice.
- Ms McPhee told the Panel that the Registrant is informally supervised by LMc and her practise is therefore scrutinised by her and she has given evidence in support of the Registrant’s practise. Ms McPhee told the Panel that the Registrant has developed her record keeping with the support of LMc and has shown she appreciates and mitigates risk.
- She submitted that the Registrant’s work practices were now entirely appropriate. She reminded the Panel about the setting in which the Registrant currently practises. Ms McPhee told the Panel that the Registrant constantly reviews and reflects on her practice. Ms McPhee told the Panel that there have no further issues with the Registrant’s practise and she continued to develop and evolve her practise.
- Ms McPhee referred the Panel to the relevant case law and to CHRE v NMC & Grant  EWHC 927 (Admin). She submitted that the Registrant does not present a current risk as she is supervised and accountable. She said that the risk of repetition was low to none. The Registrant now does, and will chose to do things very differently and she has expressed remorse for her actions. She has accepted that harm could have been caused and the profession brought into disrepute. Ms McPhee submitted that the Registrant understood the need to act with candour and honesty, and she has since sought to be open and honest with partners and colleagues. The dishonesty would not be repeated and she had rectified her deficiencies. This had been a single, one off incident.
- Ms McPhee asked the Panel to consider the Registrant’s conduct and public face she holds as director of the company that runs Weekday WOW factor. Ms McPhee submitted that the Registrant had learned and moved forward and that her fitness to practice was not currently impaired.
Decision on Impairment
- On impairment of fitness to practice, the Legal Assessor referred the Panel to the HCPTS Practice Note on “Finding that Fitness to Practice is ‘Impaired’” and to the authoritative guidance in CHRE v NMC & Grant  EWHC 927 (Admin). He reminded the Panel to consider the central issues of insight, remediation and the risk of repetition of the conduct. He reminded it that on impairment, there was no burden of proof as impairment was a matter for the Panel’s own professional judgement. The Legal Assessor stressed the central importance of both protecting the public and the wider public interest in the reputation of the profession.
- The Panel considered the evidence from the Registrant and LMc, including the supplementary witness statement and exhibits. It also considered Ms McPhee and Mr Lloyd’s submissions.
- In considering its decision on impairment, the Panel was mindful that the purpose of these proceedings is not to punish the Registrant but to protect the public. The Panel accepted the Legal Assessor’s advice and exercised its own professional judgement. It considered the guidance in the relevant HCPTS Practice Note and in the case of Grant, and was mindful of the central importance of protecting the public and the wider the public interest, including public confidence in, and the reputation of, the profession and the Regulator.
- The Panel was mindful that in assessing the Registrant’s current fitness to practise it is required to assess the ability of the Registrant to practice safely and effectively as an Occupational Therapist without restriction in any professional environment. It is not conducting a narrow assessment of the Registrant’s ability to practice safely in the environment in which she has chosen currently to practice. The Panel requires to be satisfied that in any professional environment, the Registrant can currently practice safely and effectively without restriction.
- The Panel considered the issue of remorse. The Registrant has been on a journey during this hearing and the Panel found that she is well intentioned and has shown some remorse and has apologised for her misconduct. In her evidence on facts the Registrant gave an impression of being wronged. That position has diminished, and in her evidence on impairment the Registrant has demonstrated a developing understanding of her misconduct and shown genuine remorse.
- The Panel considered remediation and insight. The misconduct found relates to basic failures in professional practice relating to lack of assessment, risk assessment, management plans and record keeping. Dishonesty was also found.
- The Panel considered LMc’s supplementary witness statement and exhibits. She provided the Panel with evidence of the Registrant’s current practice and conducts her supervision. The Scottish Government Policy produced is interesting but its relevance is not clear. The Royal College of Occupational Therapists Code of Ethics and Professional Conduct is exhibited and is referred to by LMc. That Code is drafted to complement the HCPC Code. It in no way derogates from the required professional standards and from those standards which Panel has found the Registrant breached.
- The Panel noted that the Code deals with risk management at paragraph 2.5. It states that potential harm relates to both people and organisations, which is relevant in the circumstances of this case where much evidence has been heard about the apparent differences in the approach to public health based occupational therapy. It states:
“2.5 Risk management is an intrinsic part of governance and the provision of a quality service. Risk management is a process of identifying and adequately reducing the likelihood and impact of any kind of incident occurring that might cause harm. The principles remain the same whether the potential harm is to people, organisations or the environment. The process also enables positive risks to be taken with service users in a safe and appropriate way.”
- That Code also states at 2.6 that it is essential to record the clinical reasoning behind any care plan:
“2.6 Record keeping is core to the provision of good quality and safe care. The key purpose of records is to facilitate the care and support of a service user. It is essential to provide and maintain a written or electronic record of all that has been done for/with or in relation to a service user, including any risk assessment and the clinical reasoning behind the care planning and provision. Your records also demonstrate how you meet your duty of care and that your practice is appropriate.”
- LMc’s supplementary witness statement refers to the Code and, whilst to an extent somewhat generic, her statement was of some assistance to the Panel. The Panel noted that LMc refers to the need for a full understanding of the basics of occupational therapy and the need to consider the individual. At paragraphs 7, 8 and 9 of her supplementary witness statement she states :-
“7. In order to practice in this way as an Occupational Therapist you must have a full understanding of the basic elements of Occupational Therapy because if an individual comes to the group or community who has any level of risk that impacts on any aspect of them as a person, their environment, the occupation (Weekday Wow Factor Activity) or their performance then as an Occupational Therapist Pasna must make the necessary adjustments so that they can be empowered to maintain their own health and wellbeing.
- However, if the necessary adjustments cannot be made then Pasna would have to advise the person that the risk was too great for them to take part. In this scenario, where you were working in individual area of Occupational Therapy practice you may only have to have knowledge of one particular condition (e.g. dementia, stroke or orthopaedics) and its impact on Person Environment Occupation and Performance. However, Pasna must understand a wide range of complex conditions in order to synthesise that information and meet the needs of a group/community. This is combined with the different environments where interventions take place and the types of interventions offered. In terms of ownership of risk in groups and communities if you are empowering groups or communities to maintain their health and wellbeing then there would be a degree of responsibility lies with them or their carers when they take part in activity.”
- LMc helpfully sets out the approach required in risk assessment. The Panel noted, in particular, the following:- “you must have a full understanding of the basic elements of Occupational Therapy because if an individual comes to the group or community who has any level of risk that impacts on any aspect of them as a person… then as an Occupational Therapist Pasna must make the necessary adjustments so that they can be empowered to maintain their own health and wellbeing… Pasna must understand a wide range of complex conditions in order to synthesise that information and meet the needs of a group/community”
- The Panel accept that evidence. However, it has seen no evidence, in documentary form or otherwise, of the Registrant’s clinical reasoning or of any risk assessment of individuals in her current practice. It has no evidence that the Registrant has an understanding of a wide range of complex conditions which is required to assess risk, indeed the Panel has found that she failed in core, basic skills.
- The Registrant did not give evidence that she has knowledge of a wide range of complex conditions which she has brought to bear in risk assessment. She has sought to explain a significantly different approach to risk in public health based occupational therapy. She has sought to minimise her professional responsibility to manage risk and to conduct individual risk assessments, an approach which is not supported by LMc’s evidence.
- Whilst some degree of responsibility may lie with carers, that in no way absolves the Registrant from her professional responsibilities to assess and manage risk, and to keep proper and accurate records. That is essential and there is scant evidence demonstrated to the Panel that the Registrant does so in her current practice.
- The Panel considered all the paper work on which the Registrant relies in relation to remediation of her practise. Given the nature of the failing and misconduct found, the documentation provided is limited. It largely relates to the period after the first part of this hearing in 2020. The management policies, treatment plans (one in December 2016 and one in March 2020) and risk assessments are not expressed in occupational therapy terms. They do not contain reasoning or explanations of why the Registrant took or omitted to take particular actions, for example, the paperwork records an element of management, but not clinical reasoning. The paperwork and records from the Registrant appear not to be written in any formal sense and many are set out in emails. There is a notable lack of professional reasoning.
- There is no group protocol for the public health based service, which would have been appropriate, but even that would not diminish the importance of documented and individual risk assessments.
- It is somewhat vague as to the nature of the supervision that took place between the Registrant and LMc. The Registrant suggests that the supervision starts informally and then becomes formalised. The Registrant in her oral evidence stated that LMc had undertaken an audit of her risk assessments over the course of the year. LMc recalled having seen some of the Registrant’s risk assessments. However, no documentation in that regard was provided to the Panel. In respect of the supervision of the Registrant, the Panel was provided with a one page supervision document which was of little assistance.
- Given the nature of the findings of fact and misconduct, the evidence of remediation needed to be in the form not of assurances, no matter how well intentioned, but in the form of contemporaneous documentation and records by the Registrant to demonstrate that she has learned from her failures and is now practising safely and effectively. The Panel has not seen relevant material to support her assurances about remediation.
- In her oral evidence the Registrant seemed to confuse partnership working with a tendency to delegate her responsibilities, for example when she referred to the lady who fell, (at an event organised by Weekday Wow Factor) her response to the Panel regarding the completion of an earlier risk assessment, she said “I cannot take responsibility because if someone requires prompting to use their walking stick as this lady had cognitive impairment I cannot…she has carers in place and it’s their responsibility to ensure she has come to the venue with her walking aid”.
- The Panel, having considered all the documentation and the Registrant’s evidence, concluded that, whilst the Registrant appears to be seeking to develop her practice, she continues to fail to demonstrate basic skills and safe practice. She has not demonstrated an ability to record clinical reasoning and risk assessments. There are significant gaps in the evidence of professional, safe and effective practice by her. There is little evidence that the Registrant has fully recognised and met her duty of care to service users.
- The Panel found that the type of public health based therapy the Registrant conducts requires a rigorous reasoning and risk assessment approach to appropriately manage risk and practice safely. There is no evidence that the Registrant presently does so to a sufficient and safe standard.
- The Panel found the misconduct found was remediable, but it concluded that there is a lack of evidence of remediation and of developed insight. The Registrant is developing insight, but her attitude and explanations in respect of her current practise, and her continuing approach to risk, demonstrated to the Panel that her insight remains limited.
- The Panel consider that the Registrant is making genuine efforts to improve and remediate, and is developing insight but she still has some way to go.
- The Panel concluded that in all the circumstances the Registrant has not remedied her practice and has shown limited insight into her misconduct. She has failed to demonstrate that she now appropriately fulfils her professional duties to make proper records and manage risk. The Panel concluded that there is a significant risk of repetition of the misconduct found.
- The Panel was mindful of its finding of dishonesty. It found that the dishonesty was circumstance specific and that the Registrant does now appreciate that what she did was dishonest, although at the time she did not see it that way. The Panel was satisfied that, in this regard, the Registrant has demonstrated developed, good insight into her dishonesty. It found that there was a low risk of repetition of her dishonesty.
- The Panel considered the wider public interest. The Panel was mindful that the Registrant has practiced for 19 years without any previous referral to her regulator. However, it concluded that the public would be rightly concerned were the Registrant not found to be currently impaired. The findings are serious and included a basic lack of safe practice by an experienced professional who failed to keep proper records and assess risk, placing service users at risk of harm. The Registrant failed to adhere to fundamental and core elements of the profession and was dishonest. The Panel accordingly concluded that a finding of impairment was required to uphold and declare proper standards and to maintain public confidence in the profession.
- The Panel heard an application from Ms McPhee to receive a copy of an email from the witness LMc. She submitted that the email was regarding LMc’s ability to support and provide supervision to the Registrant in an “official” capacity. This information was not previously available and there was no intention to lead any additional evidence on this issue, but the witness was available if required.
- Mr Lloyd advised that the HCPC was neutral on the position. It was not live evidence and would not be tested in evidence. He advised that it was agreed between the parties that this evidence was not an attempt to go behind the previous findings on impairment.
- The Panel accepted the Legal Assessor’s advice on fairness and the approach to hearsay evidence. It decided that the evidence was largely focussed on the sanction stage and was relevant and would be of assistance to the Panel. The Panel concluded that it was fair to admit this limited evidence at this stage and it will attach such weight as is appropriate when assessing the issue of sanction.
The Registrant’s Evidence on Sanction
- The Registrant told the Panel that she accepted the Panel’s decision and understood the decision. She said she had reflected and written a reflective diary. She said she understood that she needed to demonstrate her compliance with the standards required and was now driven to be better in her practice.
- The Registrant said she had considered the findings of the Panel with LMc and that she had now discussed with her the assessment process and as the business was now a registered a charity, she understood it was crucial to get this right. She said that the paperwork would be added to and the personal details form would now be completed in discussion with service users. She also intended to develop the assessment form and group protocol. She said she had a rounded view of her service users including their medical conditions and mobility aids. She told the Panel about her proposal to use an iPad to detail all the required information in a spreadsheet, including hazard markers.
- The Registrant said that the changes she needed to make were now obvious to her. She said that all the records would form part of the spreadsheet. On record keeping, the Registrant said that was crucial and she had to meet the GDPR regulations as well as confidentiality. She said her team included other Occupational Therapists and others who assist her in running Weekday WOW Factor. She said she had a good overview of the sort of medical conditions that she may encounter in her service users, and she would keep her CPD up to date and do any required training.
- With regard to risk assessment, the Registrant said that she is taking ownership of that process and will work in partnership with carers. She said she had used “everyday” language in her records so as not to alienate her service users, but she has realised that she should have used occupational therapy terminology, although that was all “in her head”. She said that she needed to take responsibility for more clinical reasoning and she was discussing this with LMc. She said that her clinical reasoning needed to be embedded in the paperwork. She said she was keen to ensure she fulfilled the basics.
- The Registrant said she accepted her failings and that she needed to address them now. The Registrant told the Panel that her “self concept” was as an Occupational Therapist and she wanted to rectify her failings. She said that a Suspension Order would be “harrowing” and would end Weekday WOW Factor. It was a unique service as it came from the perspective of occupational therapy and she had started it from nothing. She said that what she was doing was making a difference to peoples’ lives and a suspension would be a dis-service to the community who had told her the service was a life-line and a motivating factor for many service users.
- The Registrant said that the optimum result for her was to return to practice and to work with the regulator and her supervisor to get her basics right, and to ensure that it is independently verifiable. On the dishonesty finding, she said that she understood the need for trust. The business was now also a charity and she must be open and honest. That was crucial.
- The Registrant said that she had blamed her employers and the care home at the time, and that when the HCPC proceedings first started she still felt that way. However, she said that as she developed the paperwork for Weekday WOW Factor, her insight and an understanding of her failings had developed. She wanted to inspire confidence in her unique concept.
Submissions on Sanction
- The Panel heard from Mr Lloyd. He referred the Panel to the HCPC Sanctions Guidance. He reminded the Panel that it was looking at the issue of sanction only and could not revisit its findings on impairment. He referred to proportionality and to paragraph 20 of the Guidance.
- Mr Lloyd submitted that the Panel could take account of admissions, insight and apology and referred to paragraphs 34 and 41 of the Guidance. He submitted that there was a risk of repetition and that was an aggravating feature. The Panel should be mindful of the findings of the potential of harm to service users and dishonesty. The failure to work in partnership was also an aggravating feature.
- Mr Lloyd submitted that the HCPC made no formal sanction bid but that this was a case in which taking no action or a Caution Order would not be sufficient or proportionate. He referred to the paragraphs 106 – 109 in respect of imposing a Conditions of Practise Order; to paragraph 121 in respect of a Suspension Order; and to paragraphs 130- 131 in respect of a Striking Off Order. He stressed that sanction was a matter for the Panel.
- Ms McPhee submitted that the primary goal of sanction was to protect the public and the wider public interest. She submitted that proportionality was important and any sanction must be no more than necessary to protect the public. She submitted that the Registrant had shown developing insight and had committed to amending her practice to improve and record individual assessments and plan. The Registrant will also undertake relevant CPD to assist in her assessment and will demonstrate her clinical reasoning and therapeutic results. She will develop a group protocol and ensure independent verifiable evidence.
- Ms McPhee submitted that the mitigating factors were the insight and remorse shown by the Registrant. She said these were crucial and referred to the cases of PSA v General Pharmaceutical Council and Onwunghaula  EWC 252; O v NMC EWHC 2949; PSA v (1) GMC (2) Uppal  EWHC 1304 and GMC v Chaudhary (2017). She said the Panel should take account of the Registrant’s insight. Ms McPhee submitted that with respect to dishonesty this was a single event and the Panel had found there was a low risk of repetition.
- Ms McPhee submitted that Conditions of Practice were the most appropriate and could include formal education and training and she suggested the following conditions:
“ 1. CPD which is verifiable to the regulator the issue of complex conditions which routinely affect this population type of service user which the registration is providing services for.
2.Demonstration of paperwork and recording paperwork respect of the following
- Individual risk assessments and Management Plans
- Environmental Risk assessments
- Treatment plans
- Evidence of discussed risk with Carers and advising of OT adjustments which require to be made
- Formulation of a Group Protocol
- Formalised once a month supervision with her supervisor and reported to the regulator with the above evidence to demonstrate good and safe practice in line with the HCPC Code and to evidence clinical reasoning.
- Evidence of robust record keeping and evidence of required storage and security of said records.”
- Ms McPhee submitted that given the insight and reflection shown by the Registrant, suspension would be wholly disproportionate.
Decision on Sanction
- In considering the appropriate sanction, the Panel had regard to its earlier findings. The Panel accepted the advice of the Legal Assessor who reminded it that it was required to act proportionately and to carefully consider the HCPC Sanctions Policy. It should impose the least restrictive sanction required to protect the public and to balance the interests of the Registrant with the need to protect the public and the wider public interest.
- The Panel has found that the Registrant has shown good insight into the dishonesty found and that it was out of character. It has found that there is a low risk of repetition of this aspect of the misconduct. It accordingly found that dishonesty was not a significant factor weighing on its consideration of sanction.
- The Panel considered the aggravating and mitigating features. The Panel found the following aggravating features:-
- A failure to work in partnership
- A pattern of repeated failures in basic Occupational Therapy skills
iii. A risk of repetition of the misconduct (excluding dishonesty)
- A lack of developed insight
- A lack of successful remediation of her practise
- The Panel found the following mitigating factors :-
- Previous good character
vii. No evidence of any other regulatory concerns in a 19 year career
viii. Genuine remorse and apology
- Early admissions
- Sincere willingness to engage, learn and remediate
- Positive testimonials
- In view of the seriousness of the case, to take no further action or to impose a Caution Order would not be appropriate or proportionate. These would not sufficiently address the seriousness of the misconduct found proved. Further, neither would be sufficient to protect the public, to maintain confidence in the profession and the regulatory process, and would not uphold or declare proper standards.
- The Panel next considered a Conditions of Practice Order. The Registrant is willing and able to comply with conditions. The Panel was mindful that any conditions it formulates must be workable, realistic and proportionate and be sufficient to protect the public and the wider public interest.
- The Panel has evidence confirming that LMc is presently conducting a level of supervision and she has expressed a willingness to engage on a more formal basis in supervision of the Registrant. The Panel has also heard from the Registrant that she is very motivated to learn, to remedy and to improve her professional practice and to work with a Supervisor. The Panel accepted that evidence. It placed particular weight on this mitigating factor having heard the Registrant give extensive evidence at all stages of this hearing. It was struck, despite her failings, by the Registrant’s real passion, goodwill and commitment to her profession and her desire to strive to make a positive difference to people’s lives. She knows however, that she needs to listen, to learn and improve her practice. She also needs a full appreciation of her accountability under the HCPC’s standards and that it cannot be compartmentalised.
- This evidence, coupled with the Registrant’s acknowledgement of her misconduct and her developing insight into her failings, led the Panel to conclude that it was able to devise conditions of practise that are realistic, verifiable, proportionate and sufficient to protect the public and the wider public interest.
- The failure to work in partnership was a part of the findings, particularly so in respect of the incident involving Service User 1. The Panel considered that the Registrant has acknowledged her failings in this regard and she has demonstrated developing insight into this incident. In her evidence at the impairment stage, the Registrant gave the Panel reassurance about this aspect of her misconduct and she recognised her responsibilities. The incident was some time ago and she has since that incident has more experience of working in partnership in her practise with other agencies and with her supervisor, LMc who spoke well of her. There are no issues of bullying or discrimination.
- The Panel has found that the misconduct is remediable and that the Registrant is willing and able to do so. The Panel was satisfied, having considered all of the evidence, that the Registrant understands the need to take meaningful and verifiable steps to remedy her practise, and that she will actively engage with and will do her level best to comply with conditions of practice.
- The Panel was mindful of the need to protect the public. The Panel has formulated stringent conditions of practise that contain both detailed supervision and an extensive personal development plan. It has devised conditions that require frequent supervision in specific areas all linked to the Registrant’s misconduct. The Panel has imposed a requirement for regular and detailed reports from the Supervisor on the Registrant’s progress, which the Registrant is to send to the HCPC.
- The Panel concluded that a well-informed member of the public would not, in light of all the circumstances and the evidence, be concerned that the Registrant, an experienced and passionate practitioner, is returned to practice on the restricted, supervised basis required by these conditions of practice. The Panel concluded that the conditions imposed fairly and proportionately mark and acknowledge the misconduct, serve to uphold and declare proper standards and would not undermine public confidence in the profession.
- The Panel accordingly decided to impose the conditions of practice set out in the Order below. In light of the nature and extent of the findings, and the remediation required, the Panel decided to impose these conditions for the maximum period of three years.
- The Panel carefully considered a Suspension Order. The Registrant has shown a real willingness to engage with conditions and the Panel has been able to devise sufficiently robust conditions that will protect the public and the public interest. Whilst the failings were serious, the Panel concluded that, on balance, and at this stage, that to impose a Suspension Order would go further than was necessary to protect the public and the wider public interest, and would be disproportionate and punitive.
- The Conditions of Practice Order will be reviewed before its expiry. The Panel would encourage the Registrant to ensure the requirements in the conditions are all met and that the documentation and reports required are sent to the HCPC on time in compliance with the conditions. The Registrant must demonstrate and verify her full compliance.
That the Registrar is directed to impose the following Conditions of Practice on Upasana Sallis for a period of 36 months from the date this Order comes into effect: -
1.Within six months of the Operative Date you must:
- satisfactorily complete relevant courses designed to address your occupational therapy (or equivalent health care professions) skills and abilities in the following areas, covering both group and individual practice: -
– Clinical reasoning, assessment plans and treatment plans
– Group and individual risk assessment, including foreseeable risk and continuing risk to ensure service user safety
– Mitigation and management of overall risk
– Electronic record keeping, particularly demonstrating clinical reasoning, care planning and risk assessment
– Working in partnership with colleagues for the benefit of service users and carers
- forward a copy of your successful completion to your Supervisor and the HCPC.
- You must place yourself and remain under the supervision of a Supervisor registered as an Occupational Therapist with the HCPC (of at least Band 7) and supply details of your Supervisor to the HCPC within 35 days of the Operative Date. You must attend upon that Supervisor as required and follow their advice and recommendations.
- You must work with your Supervisor to formulate a Personal Development Plan designed to address the deficiencies in the following areas of your practice:
– Clinical reasoning, assessment plans and treatment plans
– Group and individual risk assessment, including foreseeable risk and continuing risk to ensure service user safety
– Mitigation and management of overall risk
– Electronic record keeping, particularly demonstrating clinical reasoning, care planning and risk assessment
– Working in partnership with colleagues for the benefit of service users and carers
- Within 35 days of the Operative Date you must forward a copy of your Personal Development Plan to the HCPC. You must allow your Supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.
- You must meet with your Supervisor on a 2 weekly basis for the first 6 months, and on a monthly basis thereafter, to consider and review your progress towards achieving the aims set out in your Personal Development Plan.
- You must provide a copy of a report from your Supervisor to the HCPC on a monthly basis. This report must address:
- An update on your Personal Development Plan
- Clinical reasoning, assessment plans and treatment plans including examples of no less than three of your clinical reasoning, risk assessment and treatment plans.
- Group and individual risk assessment, including foreseeable risk and continuing risk to ensure service user safety
- Mitigation and management of overall risk
- Electronic record keeping, particularly demonstrating clinical reasoning, care planning and risk assessment
- Working in partnership with colleagues for the benefit of service users and carers.
- The first report from your Supervisor must be provided by you to the HCPC within 35 days of the Operative Date; and you must make those records available for inspection at all reasonable times by any person authorised to act on behalf of the HCPC.
- You must maintain a weekly reflective practice profile reflecting on the activities of the Weekday WOW Factor, and you must provide a copy of that profile to the HCPC on a monthly basis, the first profile to be provided within 35 days of the Operative Date.
- You must promptly inform the HCPC if you take up any other or further employment as an Occupational Therapist, paid or unpaid.
- You must promptly inform the HCPC of any disciplinary proceedings taken against you by any relevant organisation or employer.
- You must inform the following parties concerned with your occupational therapy practice, that your registration is subject to these conditions:
A. any organisation or person employing or contracting with you to undertake any professional work
on a paid or unpaid basis;
B. any agency you are registered with or apply to be registered with at the time of
C. any prospective, relevant employer at the time of your application.
Right of Appeal
You may appeal to the Court of Session against the Panel’s decision and the order it has made against you.
Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.
Interim Order Application
- In light of its findings on Sanction, the Panel next considered an application by Mr Lloyd for an Interim Conditions of Practise Order to cover the appeal period before the Sanction becomes operative.
- The Panel accepted the advice of the Legal Assessor who referred it to the HCPTS Practice Note on Interim Orders. He reminded the Panel that an Interim Order must be necessary to protect the public, or be otherwise in the public interest. The Panel must act proportionately and balance the interests of the Registrant with the need to protect the public.
- The Panel was mindful of its earlier findings and concluded that an Interim Order is necessary to protect the public during the appeal period. The Panel decided that that it would be wholly incompatible with its earlier findings and with the Conditions of Practise Order imposed to conclude that an Interim Conditions of Practise Order is not necessary for the protection of the public or otherwise in the public interest. Accordingly, the Panel concluded that an Interim Conditions of Practise Order in the same terms should be imposed on both public protection and public interest grounds. It determined that it is appropriate for that Interim Order to be imposed for a period of 18 months to cover the appeal period. When the appeal period expires this Interim Order will come to an end unless there has been an application to appeal. If there is no appeal the Conditions of Practise Order shall apply when the appeal period expires.
History of Hearings for Mrs Upasana Sallis
|Date||Panel||Hearing type||Outcomes / Status|
|09/03/2021||Conduct and Competence Committee||Final Hearing||Conditions of Practice|
|23/11/2020||Conduct and Competence Committee||Final Hearing||Adjourned part heard|
|20/01/2020||Conduct and Competence Committee||Final Hearing||Adjourned part heard|