Obianuju Onuigbo

Preliminary Matters:

Virtual hearing

1.In line with the current guidance from HM Government in relation to the COVID-19 (Coronavirus) pandemic, this hearing was conducted by video conference in accordance with Rule 2A of the Health and Care Professions Council (Conduct and Competence Committee) Rules 2003, as amended (the Rules).

Application to amend the Allegation

2. Ms Sheridan, on behalf of the HCPC, applied to formally amend two particulars of the Allegation, namely 5(a) and 6 as follows:

• In relation to particular 5(a), Ms Sheridan explained that, upon receipt of the defence bundle, it had become clear that it was a colleague of the Registrant’s who had transferred Service User 20 temporarily to a non-rebreathe mask. Accordingly, Ms Sheridan invited the Panel to amend the particular to state, “After Service User 20 had been temporarily transferred to a non-rebreathe mask…”
• In relation to particular 6, Ms Sheridan explained that the October 2016 date in the stem of this particular was incorrect and should be amended to 23 October 2016.

3. Ms Sheridan submitted that these proposed amendments do not materially change the case; rather, they better reflect the evidence obtained and would not cause unfairness to the Registrant.

4. On behalf of the Registrant, Mr Henry confirmed that the Registrant had no objection to the proposed amendments to the Allegation.

5. The Panel accepted the advice of the Legal Assessor who advised that the Panel should have regard to the merits of the case, the fairness of proceedings and consider whether the requested amendments can be made without injustice. The Panel should consider the wider public interest in ensuring that allegations accurately reflect the evidence that has been adduced.

6. In the Panel’s judgment, the proposed amendments were fair and were made on the basis of the material gathered during the HCPC’s investigation. The Panel was of the view that the amendments sought did not change the substance of the Allegation, served to clarify it, would better reflect the evidence and would not cause injustice. Accordingly, the Panel acceded to Ms Sheridan’s application and allowed the amendments to be made. The amended Allegation is as set out above.

Conducting the hearing partly in private

7. The Panel heard that matters relating to the Registrant’s health and private life were to be discussed during this hearing.

8. The Panel considered the HCPTS Practice Note on Conducting Hearings in Private and accepted the Legal Assessor’s advice. It had regard to Rule 10(1)(a) of the Rules, whereby matters pertaining to the health and/or private life of the Registrant, the complainant, any person giving evidence or of any patient or client should be heard in private.

9. The Panel was satisfied that, to safeguard the Registrant’s private life, any references to her health or private life should be heard in private. All other parts of the hearing would be in public session.

Documents

10. The Panel received a bundle of documents from the HCPC comprising a case summary, witness statements and exhibits running to 1429 pages. The Presenting Officer also provided a written Evidence Matrix to the Panel.

11. At the outset of the hearing in June 2021, the Registrant provided a witness statement (‘the Registrant’s First Statement’) in which she addressed each particular of the Allegation, and two bundles of documents. When the hearing resumed in August 2021, and having heard the evidence of the HCPC witnesses in June 2021, the Registrant produced a further statement entitled Registrant’s reflections (‘the Registrant’s Second Statement’) in which she set out her background, her knowledge and experience as a registered physiotherapist, including at the Trust, and again addressed each particular of the Allegation. The Registrant also provided the Panel with a table of formal admissions and denials to the Allegation.

Admissions

12. At the outset of the hearing, the Registrant, via her representative, admitted the following factual particulars of the Allegation: 1 (a)(b)(c); 2(a); 2(f)(iii); 3(a)(b)(c); 4(a)(b)(d); 5(a)(b); 6(a)(b)(c)(d)(e); 7(a)(c); 8(c); 10(b); 13(c); 14(c); 15(b)(c); 16; 18(a)(b) (later in the hearing denied); and 20(a).

13. The Registrant also admitted that factual particulars 6(a)(b)(c)(d), 7(c) and 15(c) amounted to the statutory ground of lack of competence.

14. The Registrant denied that her fitness to practise is currently impaired.

Background:

15. The Registrant, a registered Physiotherapist, was employed by University Hospitals of North Midlands NHS Trust (the Trust) between 24 February 2014 and 31 August 2017, initially as a Band 3 Therapies Technical Instructor and then as a Band 5 Rotational Physiotherapist. The Trust’s Band 5 physiotherapists are expected to rotate through different specialist services, each rotation lasting 4 months. The Registrant’s rotations included Cardiothoracics, Respiratory Medicine, Critical Care, Emergency Portals, Musculoskeletal (MSK) Trauma Out-patients and MSK Trauma Inpatients. The Registrant was managed and supervised by advanced therapists during each of her specialist rotations.

16. The Registrant secured a fixed term, full time Band 5 Rotational Physiotherapist post in October 2014, where her first rotation was working at a step-down rehabilitation unit. She was subsequently asked to undertake a placement for assessment as a Band 5 at the Royal Stoke, working on Critical Care for two weeks before beginning her first full respiratory rotation on Cardiothoracics in February 2015. The Registrant was successful in gaining a permanent Band 5 Rotational Physiotherapist position at the Trust in March 2015.

17. Initial concerns regarding the Registrant’s performance came to light in February 2015 during a Band 6 respiratory physiotherapist interview, when the Registrant struggled to provide answers to the case-based scenario questions. In March 2015, Colleague NT also picked up on the Registrant’s development requirements during her cardiothoracic rotation. In conjunction with the Registrant, a competence development package which included 1:1 Band 7 supervision was developed to enable her to develop skills within the respiratory speciality and meet the role requirements of a Band 5 physiotherapist. During this stage of the process, the Registrant was advised that she would be supervised by a senior clinician on a 1:1 basis during all respiratory interventions with patients, but that she could continue to see patients independently for mobility input. At ‘Week 5’ of that process, Colleague NT relaxed those conditions to give the Registrant an opportunity to trial independent caseload management and to undertake a respiratory assessment without direct supervision. However, during ‘Week 5’ the Registrant’s supervisors observed unsafe practices which led to the modification of that package under Stage 1 of the Trust’s Modified Capability Procedure on or around the 10 June 2015. This process put in place a more structured, detailed and supportive package to help the Registrant improve her standard of performance, involving a 7-week learning plan. The Registrant was rotated onto respiratory medicine.

18. Following a period of sickness, the final review meeting under Stage 1 of the Modified Capability Procedure took place on 14 August 2015. During the meeting it became apparent that, despite several modified versions of the competency development framework, with learning opportunities and 1:1 supervision put in place over a 16 week period, the Registrant had not achieved sufficient and consistent progress and the shortfalls in her clinical practice identified in April 2015 remained. As the required improvement in her performance to the required standards had not been achieved or maintained consistently, the decision was made to proceed to Stage 2 of the Modified Capability Procedure.

19. Following that meeting, the Registrant was absent from work from 17 August 2015 to 2 September 2015, as a result of stress. Upon her return, Occupational Health in their report continued to deem the Registrant fit to continue through Capability Management.

20. At the final review hearing on 19 October 2015 the panel recommended that Therapies support the Registrant’s development through a further 3-month period of 1:1 supervision and training to enable her to achieve her SMART objectives.

21. The Registrant was due to sign off her SMART objectives and complete the competency package on 13 January 2016, but was involved in an unsafe clinical incident concerning Service User 20. It was recommended that the Registrant complete an additional capability review period and that Therapies reassess her against her SMART objectives. The Registrant completed these in August 2016 within the Critical Care rotation; she spent time consolidating her respiratory skills in this area and came off capability management.

22. The Registrant rotated into the Physiotherapy Out-patient team on Monday 3 October 2016, where a period of induction including a reduced clinic list was undertaken. Initial concerns regarding the Registrant’s performance within the musculoskeletal speciality came to light on 13 January 2017. Colleague AH, Principal Physiotherapist, identified a safety incident that had occurred with one of the patients the Registrant had been treating (Service User 1) in the outpatient department, where the concern was that she had not followed the post-operative instructions written on the Order Comms/Clinic letter, which could have compromised the patient’s meniscal repair. The nature of the safety incident called into question the Registrant’s standard of performance at the level of a Band 5 Physiotherapist and her ability to work unsupervised. This then triggered the requirement for a review under the informal stage of the Trust’s Capability policy.

23. Therapies collaboratively produced a comprehensive development pack which included 1:1 supervision. It had been explained to the Registrant in the meeting on 13 January 2017 that she would work under supervision at all times. Due to the nature of work in the out-patient department it was not possible to facilitate this level of 1:1 supervision in the outpatient physiotherapy department; therefore Therapies made the decision that the Registrant should rotate to work on the inpatient musculoskeletal wards, where she could work under the supervision of Colleagues VT and SC, both Advanced Physiotherapists.

24. The package was designed to address three key areas of concern where the Registrant’s performance was said to have been consistently poor, as identified throughout the Capability management process, and were:

• Recognising signs and symptoms during the Registrant’s assessment or intervention with patients that should indicate an action is required on her part to prevent or manage a situation.
• Demonstrating the ability to read and interpret post-operative notes and apply post-operative instructions appropriately, whilst identifying any conflicting or missing information.
• Demonstrating an ability to safely and independently manage the Registrant’s own caseload of patients and appropriately identify patients who require a senior review and escalate accordingly.

25. Due to further unsafe clinical events being identified during this informal process, Therapies escalated the Registrant’s capability management to the first formal stage of the Trust’s Policy in May 2017.

26. Further instances of unsafe clinical practice that put patients at risk of harm (Service Users 10 and 11) cut short the First Formal Stage of the capability process.

27. Given the potential serious nature of these incidents and the potential for significant harm to the health of patients, it was agreed on or around 31 May 2017, that progression to the second formal stage of Capability management was appropriate and, in the meantime, the Registrant would remain under close clinical supervision.

28. The final second formal review meeting took place on 23 June 2017, when it was recognised that there had been further unsafe clinical incidents identified during the second formal review period. On the basis of these unsafe clinical incidents, Therapies decided that the Registrant had not demonstrated a significant improvement in her clinical practice in the key areas during the two-week second formal Capability review period. A number of clinical incidents had been identified during the Capability review process since February 2017, despite support to address concerns and learn from these incidents the Registrant had not demonstrated a significant change in her clinical practice.

29. The Capability Hearing was held on 3 August 2017 and the Registrant was referred to the HCPC on 4 August 2017 in relation to alleged issues spanning 2015 to 2017.

30. On 16 May 2019, a Panel of the Investigating Committee considered the case against the Registrant and determined that there was a case for the Registrant to answer.

Decision on Facts:

31. The Panel heard oral evidence from a number of witnesses called by the HCPC and from the Registrant. The Panel considered the credibility and reliability of each witness called, including the Registrant.

32. The HCPC heard oral evidence from nine witnesses of fact, all of whom confirmed and adopted their witness statements as their evidence in chief. Their oral evidence was consistent with their witness statements and the associated documentary evidence, and the Panel considered their evidence to be credible and balanced. The Panel considered that the witnesses did their best to assist the Panel and had no reason to mislead it. The Panel did not perceive any malice towards the Registrant on their part, or any motive to make false allegations against her. Taking all these aspects into account, the Panel was satisfied that it could place significant reliance and weight upon the HCPC witnesses’ evidence.

33. The HCPC also heard oral evidence from expert witness EC, Advanced Physiotherapy Practitioner who had provided an expert report in relation to these matters. Witness EC gave short answers to the questions asked of her during the hearing and, in the Panel’s view, lacked some confidence and clarity in the giving of her evidence. As such, the Panel considered that her oral evidence added limited value to her expert report.

34. The Registrant was in attendance and represented. She provided two detailed written statements that were a combination of evidence and representations, and gave oral evidence to the Panel. When considering her evidence, the Panel acknowledged that the Registrant was initially emotional and appeared to be under significant stress, especially when remembering events pertaining to those factual particulars of the Allegation that she had admitted to but, as the hearing progressed, the Registrant became more settled. The Registrant had made a number of factual admissions within the statements and, whilst the Panel considered that the Registrant admitted in oral evidence when she had not done certain things, her written admissions were not always backed up by her oral evidence, the Registrant appearing to change her story on occasions. She also suggested that several of her colleagues must be mistaken in their recollections of events. The Panel noted that she had difficulty in focusing on and answering direct questions and, on occasion, she spoke of what she thought she would have done in the circumstances, rather than what she actually did. The Panel considered that the Registrant presented a rather confused and sometimes inconsistent account and the Panel considered her to be broadly not credible when giving evidence and found her to be an unreliable witness.

35. The Panel accepted the advice of the Legal Assessor. The standard of proof in HCPC proceedings is the civil standard, on the balance of probabilities, meaning that before finding a fact proved the Panel must be satisfied it is more likely than not that the alleged event occurred. The burden of proof was upon the HCPC which brought the Allegation, it was not for the Registrant to prove her innocence. Although the Registrant admitted some of the particulars relating to factual matters, the Panel recognised that it had to be satisfied that those particulars of fact were capable of proof.

36. The Panel proceeded to consider each particular and sub-particular separately, taking account of the documentary and oral evidence available to it and the submissions of both parties. The Panel made the following findings:

Particular 1 – found proved in its entirety

On or around 15 May 2015, in relation to Service User 23, you:
a) Did not obtain an adequate patient handover;
b) Did not complete a timely and/or appropriate assessment;
c) Did not provide timely and/or appropriate treatment.

37. This patient was a post-operative cardiac surgery patient who had developed a stroke post-surgery, was bed-bound and was struggling with his breathing.

38. In making its decisions in relation to Particular 1, the Panel relied on the evidence of Colleague NT who was supervising the Registrant at this time; Colleague NT’s Statement of Clinical Capability Concerns; the Patient Session Record dated 15 May 2015; and the Registrant’s evidence.

Particular 1(a)

39. The Panel took into account the evidence in the witness statement of Colleague NT that, “[On 15 May 2015] …the team were paged during lunch break to request urgent Chest physiotherapy for a patient whose oxygen levels were dropping despite being on oxygen. The page was answered by [the Registrant], however she did not ask for any information about the patient’s clinical condition. All she noted was the patient’s name and the ward they were on. This had happened on the day before as well, and [the Registrant] had failed to take an appropriate patient handover. I had personally discussed with her the importance of asking for relevant information regarding patient’s condition so that we can assess the urgency of the treatment need and she had stated that she understood.” Colleague NT’s oral evidence was consistent with her written statement and was not challenged in cross examination.

40. The Registrant admitted this factual allegation. In her First Statement, she accepted that she should have asked for more information in relation to this patient, beyond obtaining their name and ward location. In her Second Statement, the Registrant contended that she was holding the pager and that, when the bleep went off, she answered it, asked the nurse for a handover but the nurse said that she had handed over to Colleague NT. In oral evidence, the Registrant gave different evidence again, contending that she had not been trained to answer a bleep and that her “biggest regret” was that she undertook that rotation when she was not trained. Her contention of a lack of training had neither been put to the HCPC witnesses in cross-examination, nor raised in her two Statements.

41. The Panel preferred the unchallenged evidence of Colleague NT that, on or around 15 May 2015, when the pager bleep sounded, the Registrant answered it and only took the name of the patient and the name of the ward. She did not ask for any further information, even though she had been advised on this before.

42. The Panel was satisfied that, on the evidence of Colleague NT, the documentary evidence before it, and the Registrant’s evidence which was consistent with her admission at the outset of the hearing, the HCPC had established factual sub-particular 1(a) to the required standard.

Particular 1(b)

43. The Panel noted Colleague NT’s evidence that, on arrival for Chest physiotherapy intervention, “the patient was receiving 35% oxygen via facemask, his oxygen saturations were 96% and he was showing signs of increased work of breathing. He also kept saying, “I can’t breathe.” …Although it was clear on arrival that the patient was struggling with his breathing, [the Registrant] took a long time to complete a full respiratory assessment. The patient had been seen the previous day by senior physiotherapist and had been treated with mechanical insufflator-exsufflator also known as the cough machine - which helps in clearing secretions from the lungs, followed by suctioning. However, when discussing the possible treatment options available to treat the patient, [the Registrant] only mentioned repositioning the patient upright in bed. It took a lot of prompting in the limited time that we had for [the Registrant] to understand that we would not be delivering optimal treatment with just repositioning.… I felt that given the patient’s clinical condition, it was necessary to take prompt action to help the patient clear the secretions from this chest to ease his breathing and prevent further deterioration. I felt that the Registrant should have recommended the mechanical insufflator-exsufflator as a treatment option at the start, considering that she had read the notes, therefore was familiar that it was used the previous night with good results.” In cross-examination, the Registrant did not challenge Colleague NT’s evidence in this regard.

44. In oral evidence, Colleague NT told the Panel that, on reflection, as the Registrant was under a capability process, she should not have been caring for this patient.

45. The Registrant admitted this factual allegation in her First Statement. As to the whether the assessment that she conducted was “appropriate” as alleged, the Registrant stated, “Given SU23’s inability to breathe, a standard respiratory assessment was not indicated.” As to whether she completed a “timely” assessment, the Registrant accepted in oral evidence that she did not appreciate the urgency of the situation. She said that she was trying not to make mistakes as she was under a capability assessment and did not want it to look as if she had omitted anything.

46. In light of the above, the Panel was satisfied that the Registrant did not complete either a timely or appropriate assessment of Service User 23 and that the HCPC had established factual sub-particular 1(b) to the required standard.

Particular 1(c)

47. The Panel noted the evidence of Colleague NT that, “After reading the notes, [the Registrant] recommended repositioning SU23. The first thing that she should have done was to use suction first and then use the machine to clear secretions. The treatment [the Registrant] recommended in this case was inadequate.” The Panel noted that the Registrant did not challenge any of the contents of this part of the witness statement from Colleague NT before the Panel.

48. The Registrant admitted this factual allegation. The Registrant accepted in her witness statement that, “I should have dealt with Service User 23’s secretions first before undertaking any kind of assessment.” The Registrant also accepted in cross-examination that the treatment that she provided was not to the required standard.

49. In light of the above, the Panel was satisfied that the Registrant did not provide either timely or appropriate treatment to Service User 23 and that the HCPC had established factual sub-particular 1(c) to the required standard.

Particular 2 – found proved in relation to 2(a), 2(c), 2(e)(i) and 2(f)(iii); found not proved in relation to 2(b), 2(d), 2(f)(i) and (ii)

On or around 19 May 2015, in relation to Service User 24, you:
a) Did not adequately consider the medical notes and/or history;
b) Did not undertake and/or record a blood pressure check;
c) Did not complete and/or record an adequate and/or accurate clinical assessment in that you assessed the service user as having equal air entry to both lungs;
d) Did not communicate appropriately with the other healthcare professionals involved;
e) Did not formulate and/or record an appropriate treatment plan in that you:
i) recommended breathing exercises ahead of draining the effusion;
f) Did not complete accurate and/or adequate records in that:
i) the blood pressure reading was incorrectly transcribed; and/or
ii) you did not document where the blood pressure reading was taken from; and/or
iii) you did not document the plural effusion and consolidation that was present.

50. Particular 2 of the Allegation relates to the Registrant’s care for a patient who had been referred to the team due to recurrent Lower Respiratory Tract Infections.

51. In its consideration of each of these sub-particulars separately, the Panel relied on the Registrant’s patient records dated 19 May 2015; the Patient Session Record completed by Colleague RC also dated 19 May 2015; the evidence of Colleague RC; Colleague RC’s Statement of Clinical Capability Concerns; the expert opinion of Witness EC; and the Registrant’s evidence.

Particular 2(a)

52. Colleague RC’s evidence was that the Registrant “was advised to go and gain the full history of the patient’s presentation and objective history prior to completing her treatment of the identified physiotherapy problems.” Colleague RC’s evidence was that the Registrant’s physiotherapy entry in the medical notes “did not show any acknowledgement of reading the medical notes nor summarised the key features of the medical status of the patient.” Colleague RC stated that the Registrant should have reviewed this service user’s chest x-ray.

53. The Registrant admitted this factual allegation in her First Statement. Although she said that she did read the service user’s notes, she accepted that she did not adequately consider the medical notes and/or history. She said in her First Statement that she had wanted to view further detail about Service User 24 on the computer, such as x-rays, but this was not possible as the nearest computer was in use by a doctor at the time. In oral evidence, however, the Registrant’s stance differed significantly. She stated that she did not agree with Colleague RC that the x-ray would have informed her assessment of the service user and that, in any event, she did not know how to read x-rays. The Registrant contended that in Nigeria, where she had undergone her training, physiotherapists do not read x-rays.

54. The Panel did not accept the Registrant’s oral evidence which wholly contradicted that contained in her First Statement. The Panel preferred Colleague RC’s evidence that the Registrant should have reviewed the service user’s medical notes.

55. In light of the above, the Panel was satisfied that the Registrant did not adequately consider the service uses medical notes and/history and that the HCPC had established factual sub-particular 2(a) to the required standard.

Particular 2(b)

56. At the close of the HCPC’s case, the Presenting Officer stated that the HCPC offered no evidence in relation to the recording aspect of this sub-particular. The Presenting Officer conceded that it was clear from the documentary evidence that the Registrant had recorded a blood pressure check but that the HCPC contended that she had not undertaken that check herself. The Panel accepted the HCPC’s submission in this regard and determined to consider only the evidence around whether the Registrant did or did not undertake a blood pressure check on Service User 24.

57. The Panel noted the evidence of Colleague RC that the observation chart does not indicate that the Registrant measured the patient’s blood pressure prior to her interventions with him. Colleague RC also stated that the Registrant’s notes do not clearly identify her taking an observation herself and that she remembered at the time that the Registrant had stated verbally that she had not measured Service User 24’s blood pressure herself. Colleague RC contended that the Registrant likely took the blood pressure recording from the observation chart and her notes should have stated that.

58. The Registrant denied that she did not undertake a blood pressure check on Service User 24, stating in her First Statement that her blood pressure reading for this service user “is recorded as 96/66” and that, apart from the service user’s temperature, which she transcribed from his observation chart, “all other observations recorded in my notes were taken by me.” The Registrant’s evidence was that there was no recording of 96/66 on the nurses’ observation chart and that, therefore, she would have taken it herself.

59. The Panel heard evidence from expert witness EC that, although difficult to ascertain, her opinion was that it was more likely than not that the Registrant took the blood pressure reading herself.

60. Having reviewed the nurses’ observation chart, the Panel was unable to identify a recording of 96/66. Moreover, it noted that Colleague RC’s Statement of Capability Concerns made no reference to the Registrant not undertaking a blood pressure check. On balance, the Panel accepted the Registrant’s evidence on this point and determined that it was more likely than not that she undertook the blood pressure check herself.

61. In light of the above, the Panel was not satisfied that the HCPC had established to the required standard that the Registrant took the reading from another chart, rather than undertaking the blood pressure check herself. It therefore found this sub-particular 2(b) not proved.

Particular 2(c)

62. The Panel heard the evidence of Colleague RC that the Registrant recorded equal air entry of both lungs which, Colleague RC contended, would not have been possible for a patient in this condition with a pleural effusion.

63. The Panel had sight of the Registrant’s completed patient records for Service User 24, dated 19 May 2015, and noted that the Registrant’s treatment notes recorded, “chest expansion equal on both sides.”

64. The Registrant denied that she did not complete and/or record an adequate and accurate clinical assessment in that she assessed the service user as having equal air entry to both lungs. The Panel had regard to the Registrant’s First Statement in which she contended that Colleague RC was incorrect and that, in fact, “I have recorded that the AUSC breath in the whole lungs was good air entry but that it was “worse” on the right side of the lungs”. In cross-examination, however, the Registrant appeared to accept that her findings were not consistent with a finding of pleural effusion.

65. The Panel relied upon the Registrant’s treatment notes and her recording that the patient’s chest expansion was equal on both sides. The Panel was satisfied that, although it might be argued that the Registrant had performed an ‘adequate’ assessment, in that she had recorded air entry and expansion, the Registrant’s clinical assessment was simply wrong; she had not identified a pleural effusion and, as such, her assessment was not ‘accurate’.

66. In light of the above, the Panel was satisfied that the HCPC had established factual sub-particular 1(c) to the required standard.

Particular 2(d)

67. Colleague RC contended that simply to inform the doctor of this patient’s low blood pressure was insufficient information, in light of the fact that a drop below 100 meant that the blood pressure medication was to be withdrawn. Colleague RC’s evidence was that the Registrant should have expanded on this further and told the doctor this detail as well, because it was noted that the medication was requested by the medical review that took place before her treatment.

68. The Registrant denied that she did not communicate appropriately with the other healthcare professionals involved, stating in her witness statement that she discussed with a doctor the service user’s “lower than normal blood pressure from my reading.” The Registrant contended that the doctor “came in to see the patient with me”, assessed him and took both blood pressure and temperature recordings.

69. The Panel accepted the Registrant’s evidence that she communicated her concerns to the doctor and the Panel was satisfied that that was the limit of her responsibility as a physiotherapist in these circumstances, and that the doctor should have been aware of the implications of low blood pressure for that patient. It did not accept Colleague RC’s evidence that the Registrant should have provided detailed evidence to the visiting doctor to prompt action of a timely review and possible omission of the medication.

70. In light of the above, the Panel was not satisfied that the HCPC had established factual sub-particular 2(d) to the required standard.

Particular 2(e)(i)

71. The Panel noted the Registrant’s completed patient records which stated, “March on the spot x 40-50 c/x seated rest + DBExs in-between.” The Panel considered this patient record to be the Registrant’s recorded plan of treatment for Service User 24.

72. The Panel noted the evidence of Colleague RC that the breathing exercises recommended by the Registrant were ineffective without first draining this patient’s effusion. Colleague RC contended that breathing exercises would not cause harm but, as this patient had a lower respiratory tract infection and the consolidation in the lung had not shifted, they would not be an effective treatment and showed a lack of understanding of the whole medical picture. Colleague RC said that the patient was due to have a pleural tap of the effusion and that she would probably not have expected the Registrant to do any treatment at this time, only to monitor the patient.

73. The Registrant denied this sub-particular, contending in her First Statement that breathing exercises were an appropriate treatment plan and that, “Draining an effusion is not something a physiotherapist does” and, “As Service User 24 had decreased air entry she needed breathing exercise to get more air into her lungs which is why I recommended this.”

74. The Panel noted the entry in the patient notes to reflect that, on the following day, another registered physiotherapist (Band 6) had performed the same treatment on the patient as the Registrant had, albeit the patient was stable then.

75. The Panel noted the evidence of the expert witness EC that she would expect a Band 5 registered Physiotherapist to identify the issue and then seek guidance but not necessarily to know about the implications of, or the management of, pleural effusion.

76. It was clear to the Panel that the Registrant had not identified a pleural effusion in this patient and was satisfied that, as a consequence, she had not formulated or recorded an appropriate treatment plan. The Panel accepted the evidence of Colleague RC that breathing exercises recommended by the Registrant would be ineffective until the effusion was drained.

77. In light of the above, the Panel was satisfied that the Registrant did not formulate or record an appropriate treatment plan and that the HCPC had established factual sub-particular 2(e)(i) to the required standard.

Particular 2(f)(i)

78. The Panel noted the evidence of Colleague RC that the Registrant’s notes did not clearly identify her taking an observation herself and that there was a difference in values recorded between charting and her medical notes.

79. The Registrant denied this sub-particular, contending that she did not transcribe this reading at all; rather she took the blood pressure reading herself.

80. In light of the Panel’s finding in relation to sub-particular 2(b), that it is more likely than not that the Registrant took the blood pressure reading herself as opposed to transcribing it from the observation chart, the Panel was not satisfied that the HCPC had established factual sub-particular 2(f)(i) to the required standard. It therefore found this sub-particular not proved.

Particular 2(f)(ii)

81. The Registrant denied this sub-particular, again on the basis that she had not transcribed the blood pressure reading and therefore did not need to document where the reading was taken from.

82. The Panel considered that the wording of this allegation implied that the Registrant had taken the blood pressure reading from an observation chart. The Panel recalled the evidence of Colleague RC that it was important to document where a blood pressure reading was taken from.

83. Again, in light of the Panel’s finding in relation to sub-particular 2(b), that it was more likely than not that the Registrant took the blood pressure reading herself as opposed to transcribing it from the observation chart, the Panel was not satisfied that the HCPC had established factual sub-particular 2(f)(ii) to the required standard. It therefore found this sub-particular not proved.

Particular 2(f)(iii)

84. The Registrant admitted this factual allegation but, dealing with it briefly in her witness statement, contended that, “it was not for a physio to manage an effusion.”

85. The Panel had sight of the Registrant’s patient notes and was satisfied that she had not documented the plural effusion and consolidation that was present and, as a consequence, the records were neither accurate nor adequate. As previously recorded in this determination, it was clear to the Panel that the Registrant had not identified a pleural effusion in this patient.

86. In light of the above, the Panel was satisfied that the HCPC had established factual sub-particular 2(f)(iii) to the required standard.

Particular 3 – found proved in its entirety

On or around 20 May 2015, in relation to Service User 21, you:
a) Did not complete and/or record an accurate clinical assessment.
b) Did not formulate an appropriate treatment plan.
c) Did not obtain and/or record prior investigations of the Service User.

87. This patient had a collapsed lung following surgery and subsequent consolidation. The Registrant said that she was attending to do a mobility assessment.

88. When considering each of these sub-particulars, the Panel relied upon the evidence of Colleague NT; her Statement of Clinical Concerns; and the Patient Session Record dated 21 May 2015. The Panel also had sight of the Registrant’s clinical notes for 20 May 2015 and took into account the Registrant’s evidence.

89. Colleague NT accepted that she was not present during the treatment of this patient, that the Registrant’s actions were reported to her afterwards and that she spoke to the Registrant, likely the following day, about the concerns raised.

Particular 3(a)

90. The Panel had sight of the Registrant’s patient notes which recorded that she had completed her respiratory assessment of this patient at 12.25. The Registrant noted that the patient’s oxygen levels were within normal limits and that the patient’s chest moved equally bilaterally. She noted no significant findings in the patient’s breath sounds.

91. The Panel noted the evidence of Colleague NT that, “At 12.50 another physiotherapist was asked to see the same patient by a senior nurse consultant as the chest x-ray done at 10:44 showed that the patient had a collapsed left lung. The second physiotherapist carried out his assessment at 12.50 and noted that the patient’s oxygen levels were low and his breath sounds were altered on the left side - both of these findings were not identified during [the Registrant’s] assessment or documented in her notes from less than half an hour before.” The Panel accepted Colleague NT’s evidence that the Registrant had been unable to identify that there was a collapse of the left lung and that she had a clear lack of understanding of what a collapsed lung could imply.

92. The Registrant admitted this factual allegation, accepting that she undertook a respiratory assessment which noted that, “Service User 21’s oxygen levels were normal, with their chest moving equally and the breath and sound sounding equal and normal.” She said in her First Statement that, “I accept that in a lung collapse situation the breath was unlikely to be equal and I would not hear air entering the collapsed left lung that Service User 21 had,” and that, “it is more likely that my reading was incorrect.” In oral evidence, she accepted that she was not aware of the severity of this patient’s condition, stating, “I accept that I did not pick up on a key issue.” Her evidence was that she had attended to mobilise the patient, but she accepted that she did a chest examination and had not waited for a handover from the nurse as she felt under time pressure.

93. In light of the above, the Panel was satisfied that the Registrant did not complete or record an accurate clinical assessment of Service User 21 and that the HCPC had established factual sub-particular 3(a) to the required standard.

Particular 3(b)

94. The Panel noted the evidence of Colleague NT that the Registrant’s treatment plan for this service user involved asking him to take deep breaths; recommending that the nurses sit the service user up the next day; and to continue marching on the spot. Colleague NT explained her concerns that, in implementing a treatment plan, the patient’s response should be assessed and that, “I felt we should have implemented the treatment plan, see how it goes, then let the nurses carry on.” Colleague NT said that she would have marched the patient on the spot, observed his oxygen levels to see if they dropped significantly and, based on that, she would have decided how often she needed to see the patient.

95. The Registrant admitted this factual allegation in her witness statement and her oral evidence, accepting that her treatment plan was not correct due to the patient’s collapsed lung that she was not aware of at the time.

96. In light of the above, the Panel was satisfied that the Registrant did not formulate an appropriate treatment plan and that the HCPC had established factual sub-particular 3(b) to the required standard.

Particular 3(c)

97. Colleague NT told the Panel that there was no evidence that the Registrant had reviewed the patient’s x-ray and, had she done so, it would have been apparent that his lung had collapsed as the lung was “totally white, whereas it should have been black.”

98. The Registrant admitted this factual allegation, explaining that she “could only do simple things such as listen to the chest, I was not supposed to check an x-ray unless I was under direct supervision.”

99. The Panel accepted the evidence of both Colleague NT and the Registrant and considered that a prior x-ray would be included within the remit of “prior investigations” drafted into this sub-particular. Accordingly, the Panel was satisfied that the HCPC had established factual sub-particular 3(c) to the required standard.

Particular 4 – found proved in its entirety

On or around 21 May 2015, in relation to Service User 22, you:
a) Did not obtain a patient handover without prompting and/or consider the service user's care plan;
b) Did not recognise Service User 22's unsafe positioning and/or take steps to ensure Service User 22’s safety.
c) Did not carry out and/or record an accurate clinical assessment.
d) Did not correctly attach Service User 22's facemask.

100. This patient was a post-operative cardiac patient who had been on the ward, their condition had deteriorated and had been returned to critical care. Colleague NT accompanied the Registrant to the treatment session as part of the Registrant’s 1:1 supervision.

101. When considering each of these sub-particulars, the Panel relied upon the evidence of Colleague NT; her Statement of Clinical Concerns, written contemporaneously; and the Patient Session Record dated 21 May 2015. The Panel also took into account the Registrant’s evidence.

Particular 4(a)

102. In relation to sub-particular 4(a) the Panel noted Colleague NT’s evidence that she expected the Registrant to take the lead at the treatment session as part of her learning. Colleague NT’s evidence was that the Registrant should have consulted the patient’s care plan (which, she contended, was placed by the patient’s bedside and was easily accessible) as part of the assessment and obtained a handover from the nursing staff, but that the Registrant did neither. Colleague NT’s evidence was that the Registrant commenced her assessment of the patient, “however she failed to take a handover from the nursing staff or read the medical notes which stated that the patient had deteriorated when on the ward in the early hours of that morning and had to be transferred back to critical care… I had to inform [the Registrant] regarding the handover from the nursing staff and the medical notes to formulate an effective and safe treatment plan.”

103. The Registrant admitted this factual allegation, accepting that she had neither reviewed the patient’s care plan, nor obtained a patient handover, before starting her assessment of the patient. The Registrant explained in her First Statement that she tried to obtain a handover from the patient’s nurse but that this was not possible as the nurse was busy with another patient. In oral evidence, the Registrant agreed that she should have waited for the nurse; that a handover was particularly important in this patient’s case; that the importance of handovers had been discussed with her previously; and that she now regarded her actions as foolish. She explained that, at the time, she was fearful of the capability process that she was working under.

104. In light of the clear evidence before it, the Panel found this sub-particular of the Allegation proved.

Particular 4(b)

105. In relation to particular 4(b) Colleague NT explained to the Panel that, she and the Registrant mobilised the patient out of bed onto the chair. It was Colleague NT’s evidence that the Registrant failed to notice that the patient was slipping out of the chair during this process. Colleague NT stated, “At this point I had to intervene as without that, the patient would have slipped off the chair onto the floor…The Registrant was unable to identify what would be considered unsafe positioning in the chair and without my intervention would have caused the patient to slip and land on the floor.”

106. The Registrant admitted this factual allegation, accepting that Colleague NT had to intervene to stop the patient from sliding down on the chair. She accepted that she had missed that Service User 22’s back had shuffled to the back of the chair. In oral evidence, the Registrant told the Panel that she was nervous about the capability assessment and that she was feeling stressed at the time.

107. In the circumstances, the Panel was satisfied that the Registrant had neither recognised the patient’s unsafe positioning in the chair, nor taken steps to ensure the patient’s safety and, accordingly, it found this sub-particular of the Allegation proved.

Particular 4(c)

108. Colleague NT’s evidence was that, in performing the clinical assessment of Service User 22, the Registrant “listened to his chest and she said that his chest sounded clear. She then said that she felt a tactile fremitus…[which] is secretions on the chest. This was conflicting information. [The Registrant] did not understand that you cannot have both a chest that sounds clear as well as have a tactile fremitus.”

109. The Panel had regard to the evidence provided by the Registrant in her statement. She accepted that she told Colleague NT that she felt a tactile fremitus and that the patient’s chest sounded clear. Although she did not disagree that this was conflicting information, she contended that, as each lung has three zones, the left can be clear and she should have explained that it was possible that the chest was clear on one side but not on the other. The Registrant therefore did not accept that she did not carry out and/or record an accurate clinical assessment.

110. The Panel preferred the evidence of Colleague NT and was satisfied that, on the balance of probabilities, the Registrant did not carry out or record an accurate clinical assessment. It therefore found that the HCPC had established factual sub-particular 4(c) to the required standard.

Particular 4(d)

111. Colleague NT’s evidence was that this patient was on non-invasive ventilation via a face mask to help with his breathing and that this mask needed to be fitted tightly onto the patient’s face for it to be effective. Colleague NT’s evidence was that, after the treatment, the Registrant “just left the mask on the patient’s face without strapping it on, even though there were straps attached to the mask.”

112. The Registrant admitted this factual allegation in her First Statement, explaining that the facemask was of a new type that she had not come across before. She accepted that she did not know that the mask needed to be strapped on to sit properly on the face. In her oral evidence, the Registrant changed her account and said that Colleague NT had interrupted her when fitting the mask, implying that this had distracted her.

113. The Panel preferred the evidence of Colleague NT, which the Registrant had not challenged during cross-examination. It also took into account the Registrant’s admission to this allegation and, in light of the evidence before it, the Panel found this sub-particular of the Allegation proved.

Particular 5 – found proved in its entirety

On or around 13 January 2016, in relation to Service User 20, you:
a) After Service User 20 had been temporarily transferred to a non rebreathe mask, did not reconnect Service User 20's oxygen delivery device to the wall oxygen supply.
b) Did not hand over to a doctor for an urgent medical review.
c) Did not include in your handover to the nursing staff the urgent need for a medical review.

114. In its consideration of this particular of the Allegation, the Panel relied on the medical notes for this patient, the evidence of Colleague SW, including the notes of an Investigation Meeting on 12 May 2016, and the Registrant’s evidence.

Particular 5(a)

115. The Panel accepted the unchallenged evidence of Colleague SW that the Registrant did not reconnect this patient’s oxygen delivery device to the wall oxygen supply. She stated, “This became apparent when SU20 went into a cardiac arrest. [The Registrant] was the last person to leave this patient and she should have checked that the oxygen was connected to the wall supply. Instead she left SU 20 connected to a portable cylinder, which ran out of oxygen.”

116. The Registrant admitted this factual allegation, accepting that she did not reconnect Service User 20’s oxygen delivery device to the wall oxygen supply. In her First Statement, the Registrant stated, “This was a genuine oversight that I regret.” She did not challenge Colleague SW’s account in cross examination but, in oral evidence, the Registrant contended that she was told by Colleague SW to allow the patient to rest and, as a result, she did not think about the oxygen. She further contended that as Colleague SW had removed the patient from the oxygen wall supply, SW should have replaced it. Moreover, it was the Registrant’s case that she had handed over to a nurse and that a medical team would have attended “in minutes”, so she did not need to reconnect the patient.

117. The Panel considered that the Registrant’s admission in relation to this charge was unequivocal, despite her conflicting explanations as to why she did not reconnect the patient’s oxygen delivery device to the wall oxygen supply. In light of all of the evidence before it, the Panel was satisfied that the HCPC had established factual sub-particular 5(a) to the required standard.

Particular 5(b)

118. The Panel noted and accepted the evidence of Colleague SW that this patient required an urgent review by a doctor because his condition had deteriorated, and his oxygen requirements had increased. Colleague SW told the Panel that, before she left the patient’s bedside, she told the Registrant that the patient needed a doctor and that the Registrant should speak to the doctor. Colleague SW’s evidence was that, “Furthermore she should have also spoken to a nurse to make them aware of the situation.”

119. The Registrant did not challenge Colleague SW’s evidence in this regard. She accepted that she did not hand over to a doctor for an urgent medical review and admitted this factual allegation. The Registrant’s evidence was that she rushed out to get a doctor to undertake a medical review but that, on the AMU ward, “it was very difficult to find doctors and I did not do so.” The Registrant contended that she handed over to an experienced nurse the key information needed, to ensure that the patient received an urgent medical review.

120. In light of all of the evidence before it, the Panel was satisfied that the HCPC had established factual sub-particular 5(b) to the required standard.

Particular 5(c)

121. It was Colleague SW’s evidence that she told the Registrant to speak to the nurse and get a doctor’s review because the patient had deteriorated. Colleague SW said that she did not know what happened from that point, “until the crash bell went off.”

122. The Registrant denied this sub-particular, her evidence being that she handed over to an experienced nurse “the key information needed to ensure that the patient received an urgent medical review.” The Registrant’s evidence in her First Statement was that she told the nurse “everything that had happened with Service User 20 and explained that the patient needed medical review.” The Panel had sight of the Registrant’s notes which recorded, “Liaise [with] medic re:? mucus plugging.” The Registrant’s evidence was that by recording this, she meant that the patient needed a medical review because of the mucus plugging, which is why the patient was de-saturating and their oxygen levels were dropping. In oral evidence, however, the Registrant admitted that she had not “explicitly” told the nurse that the patient was on portable oxygen. The Registrant’s stance was that she “regretted” that the nurse in question did not notice the portable oxygen supply and that the nurse had seen the patient on a non-rebreathe mask.

123. The Panel had before it the Transcript of Interview notes of the Trust’s interview on 26 May 2016 with the nurse that the Registrant contends that she handed over to. The nurse’s evidence in that interview was that the Registrant told her that the patient was “on 15 litre non-rebreathe” but did not mention at any point that the patient was on bottled oxygen, rather than on the wall oxygen supply.

124. The Panel considered all of the evidence before it, including the Registrant’s recording around mucus plugging in the medical notes and her acceptance that she did not mention to the nurse that the patient was on portable oxygen. In the particular circumstances of this patient’s oxygen requirements having increased, and the Registrant having accepted that she did not mention that the patient was on portable oxygen, the Panel concluded that it was more likely than not that the Registrant did not include in her handover to nursing staff the urgent need for a medical review.

125. In light of all of the evidence before it, the Panel was satisfied that the HCPC had established factual sub-particular 5(c) to the required standard.

Particular 6 – found proved in its entirety

6. On or around 23 October 2016 and/or 17 November 2016, in relation to Service User 1, you:
a) Took the service user through active range of movement;
b) Did not advise and/or record advising the service user regarding partial weight-bearing;
c) Recommended inappropriate exercises;
d) Did not advise and/or record advising the service user regarding their knee brace;
e) Tested stress on Service User 1's ligaments, which was not clinically indicated.

126. Particular 6 of the Allegation concerns the Registrant’s professional practice, at two appointments, in relation to a young post-operative patient with a meniscal tear and a hinged knee brace set at 0-40 degrees.

127. In its consideration of this particular of the Allegation, the Panel relied on the Registrant’s clinical notes for this patient, the evidence of Colleague AH, including an Informal Capability Close Supervision record, and the Registrant’s evidence.

128. The Registrant admitted each of these sub-particulars of the Allegation. She stated in evidence that, “In hindsight I should have rejected this rotation [in MSK Outpatients] due to my insufficient training. However, at the time I had just come out of a capability and disciplinary hearing and I was afraid and I just carried on.”

Particular 6(a)

129. The Panel had sight of the post-operative instructions for this patient which provided, “Patient is to partially weight bear and is to have a hinged knee brace 0-40 degrees.” The Panel also had sight of the Registrant’s clinical notes for both of the pertinent dates, 23 October 2016 and 17 November 2016.

130. Colleague AH stated, “During the first physiotherapy session with SU1 on 23 October 2016 [the Registrant] took the patient’s knee through from 0 to 100 active range of movement, which was against the post-operative advice… putting the knee of SU1 through the active range of movement meant that she put the repair provided during the surgery under more pressure.”

131. The Registrant admitted this factual allegation. The Panel noted that, on the information before it, the Registrant did not challenge any of the contents of this part of the witness statement from Colleague AH before the Panel. In oral evidence, she said that she had not come across a knee brace during her training in Nigeria. She explained that the patient was late to the appointment, leaving her little time to assess and treat him. The Registrant said, though, that she took full responsibility for her actions, accepted that her actions had the potential to impede the patient’s recovery and that they fell seriously short of the standards expected of her as a registered physiotherapist.

132. In the circumstances, the Panel found this sub-particular of the Allegation proved.

Particular 6(b)

133. Colleague AH’s evidence was that, “[The Registrant’s] notes do not mention anything in relation to the weight-bearing status. Specifically, they do not mention any advice that was given by her to Service User 1 on the enforcement of the recommended partial weight-bearing. [The Registrant] should have discussed this with Service User 1, to ensure they were compliant with partial weight-bearing.”

134. The Panel had sight of the Registrant’s clinical notes for this patient, which did not make any mention of the patient’s weight-bearing status.

135. The Registrant admitted this factual allegation and, on the information before the Panel, did not challenge any of the contents of this part of the witness statement from Colleague AH.

136. In all of the circumstances, the Panel found this sub-particular of the Allegation proved.

Particular 6(c)

137. Colleague AH’s evidence was that, “[the Registrant] recommended specific exercises for SU1, which involved one exercise to stretch the joint and an exercise for a two times knee extension. She did not provide any strengthening exercises for SU1. One exercise was going beyond the range of recommended movements for SU1, which was incorrect… described in this patient’s notes as an ‘auto assisted knee flexion with 10 sec hold x 2 reps to left knee”; and further accepted Colleague AH’s evidence that, “during the 17 November 2016 session, [the Registrant] …recommended squats, which is a full weight-bearing exercise and therefore incorrect for this patient.”

138. The Registrant admitted this factual allegation and, on the information before the Panel, did not challenge any of the contents of this part of the witness statement from Colleague AH.

139. In light of all of the evidence before it, the Panel was satisfied that the Registrant recommended inappropriate exercises to the patient and that the HCPC had established factual sub-particular 6(c) to the required standard.

Particular 6(d)

140. The Panel noted the evidence of Colleague AH that, “During the 17 November 2016 session, [the Registrant] should also have also re-assessed the requirement for the patient to wear braces. She noticed and made a note of the fact that the brace was not locked. She should have given further advice as to what Service User 1 should have done with the braces.”

141. The Registrant admitted this factual allegation and, on the information before the Panel, did not challenge any of the contents of this part of the witness statement from Colleague AH before the Panel. The Panel further noted that the Registrant’s clinical notes recorded that the knee brace was not locked but did not record any advice in that regard.

142. In the circumstances, the Panel was satisfied that the Registrant did not advise and/or record advising the service user regarding their knee brace and, accordingly, found this sub-particular of the Allegation proved.

Particular 6(e)

143. The Panel noted the evidence of Colleague AH that, “The Registrant tested stress on SU1’s ligaments. There was no requirement to test it as the cartilage had been damaged. There was no clear clinical reasoning for this.”

144. The Registrant admitted this factual allegation and, on the information before the Panel, did not challenge any of the contents of this part of the witness statement from Colleague AH. The Panel also had sight of the Registrant’s clinical notes which recorded that she tested the integrity of the ligaments.

145. In the circumstances, the Panel accepted the evidence of Colleague AH and was satisfied that the Registrant tested stress on Service User 1’s ligaments, which was not clinically indicated and, accordingly, found this sub-particular of the Allegation proved.

Particular 7 – found proved in relation to 7(a) and 7(c); found not proved in relation to 7(b).

7. On or around 30 November 2016, in relation to Service User 2 you:
a) Did not conduct and/or record an adequate assessment in that you did not record the service user's passive range of movement measurement;
b) Inappropriately recommended and/or taught the service user assisted exercises;
c) Did not ensure that Service User 2 was scheduled for timely physiotherapy follow- up.

146. Service User 2, 85 years old, had had recent shoulder surgery.

147. In coming to its decisions in relation to Particular 7, the Panel relied on the records completed by the Registrant and her evidence; the Patient Session Record dated 30 November 2016; and the evidence of Colleague RWi who was supervising the Registrant at this time.

Particular 7(a)

148. The Panel had sight of the Registrant’s clinical notes which recorded, “limited and painful ++ in extension abduction.”

149. The Panel accepted the evidence of Colleague RWi that, “[The Registrant] noted that SU2’s passive range of movement was limited and painful, but she did not note what the passive range of movement measurement was.” It further noted Colleague RWi’s evidence that if the patient was in pain, she would not push the range of movement through any further but would still document what the range of movement was and that this would have been a baseline for further assessments.

150. The Registrant admitted this factual allegation, accepting that she did not record the passive range of movement measurement “because my attempt to carry out a passive range of movement elicited moderate pain on Service User 2 in extension and abduction as noted…which is why I stopped to avoid inflicting pain on her.” It was the Registrant’s evidence that she recorded the active range of movement carried out by the patient herself and that, in her view, this was sufficient to ascertain treatment progress. The Registrant accepted, however, that, “it would have been better to have recorded the passive range of movement.”

151. In the circumstances, the Panel determined that the Registrant did not conduct, and therefore did not record, the service user’s passive range of movement measurement, and accordingly found this sub-particular of the Allegation proved.

Particular 7(b)

152. It was Colleague RWi’s evidence that, “SU2 was reviewed post operatively by the ward physiotherapy team and taught basic exercises to begin to mobilise her shoulder. On the referral form…it clearly states that the patient struggles to complete active assisted exercises…[The Registrant] then proceeded to teach SU2 active assisted exercises despite being advised on the referral form that SU2 struggles with these exercises, i.e. with using her non-operated arm to assist with the movement, as this is limited in movement due to previous surgery.”

153. The Panel had sight of the MSK Physiotherapy Referral Form which stated, “Pt struggles AA ROM exs.” The Panel noted that this Form was dated a week prior to the Registrant’s assessment of the patient on 30 November 2016.

154. Colleague RWi explained in oral evidence that, she would expect a patient who has undergone surgery to this extent to complete their exercises at least three times a day because of the risk of deterioration and risk of the shoulder getting stiff if not taking it through its functional range. Colleague RWi stated that, as SU2 needed her brother to assist with the exercises, but the service user and brother did not live together, Colleague RWi was concerned that the Registrant was teaching exercises to the service user that “they potentially are not able to fulfil.” Colleague RWi accepted, however, that the Registrant’s exercise notes recorded that they were to be done three times a day and that, if the patient’s brother had been aware of this and agreed to assist with the exercises three times a day for the next three weeks, this would have been acceptable. Colleague RWi stated, “It is not an inappropriate exercise to have taught a patient, it is just it would be more appropriate if there is a relative there to help or if the patient is able to support themselves to do it.” It was Colleague RWi’s evidence that table sliding exercises would have been more appropriate and that “they were actually the exercises that were taught on the ward on discharge.”

155. The Registrant denied this allegation, accepting that she recommended and/or taught the patient assisted exercises, but contended that it was not inappropriate to recommend them. The Registrant recalled that the patient had attended the treatment session with her brother and that the Registrant had gone through the exercises in the session with the patient and her brother. Whilst the Registrant was aware that the patient and brother did not live together, the Registrant’s evidence was that the brother had assured her that he could help her with the assisted exercises that the Registrant had suggested. In oral evidence, the Registrant further contended that there was no table in the outpatients department upon which to practise table-top exercises, and she was of the view that the patient may not have a table of the correct height at home.

156. The Panel accepted the Registrant’s evidence around the patient and her brother having attended the physiotherapy session and that the brother had assured the Registrant that he could help with the exercises. The Panel could not be satisfied that the exercises recommended by the Registrant were inappropriate under those circumstances, or in the light of RWi’s evidence, that the Registrant ‘inappropriately’ recommended and/or taught the service user assisted exercises. It therefore found this sub-particular 7(b) not proved.

Particular 7(c)

157. It was Colleague RWi’s evidence that the Registrant’s decision to see Service User 2 in three weeks was an incorrect approach, explaining that after a delay in attending for her first physiotherapy session, the patient had “globally reduced movement and struggled to complete the exercises independently.” Colleague RWi contended that, “Routinely such patients…should be seen for a follow up session the following week and it is not clear why [the Registrant] did not schedule her to come in within 2 weeks, as she had free slots in her diary…” and that, as the patient could only complete her exercises with assistance, Colleague RWi had explained her concerns about the risk of deterioration with no direct physiotherapy contact. Colleague RWi stated in oral evidence that she could not recall the Registrant’s response. It was Colleague RWi’s further evidence that, on reviewing Service User 2, the consultant was unhappy with the patient’s range of movement and queried why she had only had one session of physiotherapy since her surgery.

158. The Registrant admitted this factual allegation, accepting that her arrangement for this patient to be reviewed every three weeks was not appropriate, even though it was in line with the Trust protocol, which specified a three-weekly review for patients with certain conditions. It was the Registrant’s evidence that, if they were to go outside of the protocol, she would need to discuss this with a senior. Her evidence was that, “I was not told that I could go outside the protocol.” The Registrant accepted in her First Statement, however, that, “In hindsight for Service User 2 I agree that a weekly review would have been more appropriate.”

159. The Panel bore in mind that the patient had called the hospital to say that she was in pain but that the Registrant did not apply clinical judgment and did not take any action. The Panel was satisfied, on the evidence before it, that it was more likely than not that the Registrant did not ensure that the patient was scheduled for timely physiotherapy follow-up and, accordingly, found this sub-particular proved.

Particular 8 – found proved in its entirety

8. On or around 16 December 2016, in relation to Service User 3, you did not complete and/or record an adequate assessment and treatment plan in that you:
a) Did not record which joints you assessed;
b) Recommended exercises which were not clinically indicated based on your assessment.
c) Did not document the specifics of the exercises you prescribed.

160. Service User 3, an 11 year old child, had had hip surgery 12 weeks prior to these alleged matters.

161. In coming to its decisions in relation to Particular 8, the Panel relied on the records completed by the Registrant and her evidence; the witness statement of Colleague RWi who was supervising the Registrant at this time; and the expert opinion of Witness EC.

Particular 8(a)

162. Colleague RWi’s evidence was that, in the Registrant’s assessment, she documented that the patient had equal active and passive range of movement in both her left and right side, “in all joints”, but that it was not clear what the Registrant actually assessed or what the range of movement was. Colleague RWi contended that, “No specific joint was identified, as would be the case in any basic physiotherapy assessment. [The Registrant] had not accurately documented her assessment in this patient at all.”

163. The Registrant’s evidence was that she did record the joints that she assessed for this patient and thus denied this sub-particular.

164. The Panel had sight of the patient records completed by the Registrant which stated that she had undertaken a lower limb assessment of “hips + knees + ankles” and recorded “AROM - Lt = Rt in all jts.”

165. The Panel accepted the evidence of Colleague RWi and was of the view that, although the Registrant had undertaken some sort of lower limb assessment, she had not identified which joints she had assessed or the range of movement. Accordingly, the Panel determined that the Registrant had not completed or recorded an adequate assessment and, accordingly, found this sub-particular proved.

Particular 8(b)

166. Colleague RWi’s evidence was that, on muscle testing of this patient, the Registrant “identified minimal weakness in SU3’s hip flexor strength bilaterally and found all other lower limb muscle power to be full. [The Registrant] then recommended hip, knee and ankle strengthening, but this does not logically flow from her assessment, in which she did not indicate any particular weakness, other than a slight limp, at which she also put a question mark.” Colleague RWi further explained that on her own assessment of the patient, although she found her to have “some weakness in her calf bilaterally,” the main issue was more psychosocial and that the patient required a structured plan to engage in treatment.

167. The Panel took account of the patient records completed by the Registrant, which recorded her assessments of various muscle groups to be at full strength, “5/5”. The patient notes record that the Registrant gave the patient basic strengthening exercises for the hip, knee and ankle joints, despite there being only a light deficit, assessed as “4/5”, in the hip flexor strength; further that the Registrant gave seven ankle exercises, despite the patient’s ankle strength being recorded as being at full strength.

168. The Registrant denied this sub-particular. She stated that she believed that the exercises she recommended were clinically indicated based on her assessment of the whole lower limb, hip, ankle and hip flexor. The Registrant stated that she recorded that there was weakness in the hip flexor and gave exercises to improve strength. She further recorded an ache at the surgery site in the ankle and recorded that the ankles were not as strong as they could be, so ankle exercises were indicated from her findings at that point.

169. The Panel preferred the evidence of Colleague RWi in this regard, which was supported by the Registrant’s own notes for this patient. The Panel was satisfied that it was more likely than not that the Registrant recommended exercises which were not clinically indicated based on her assessment of the patient and, accordingly, found this sub-particular proved.

Particular 8(c)

170. The Registrant admitted this factual allegation. Her evidence in the First Statement was that as the patient’s mother was in a hurry to leave, the Registrant did not teach the exercises and, “As I did not teach the exercises, I could not write the exercise specifics as I normally did when teaching the exercises.” The Registrant contended that she told the patient’s mother how many times to repeat each exercise but did not record the number of repetitions on the exercise sheet which, she accepted, was an omission.

171. The Panel noted that the Registrant’s patient records did not document any specifics of the exercise that she prescribed. In light of the documentary evidence before it, together with the Registrant’s admission, the Panel was satisfied that the HCPC had established factual sub-particular 8(c) to the required standard.

Particular 9 – found proved

9. On or around 10 January 2017, in relation to Service User 4, you did not take appropriate action after Service User 4 reported concerns about his wound.

172. Service User 4 had a post-operative wound infection in the shoulder.

173. The Panel relied on the records completed by the Registrant and her evidence; the witness statement of Colleague RWi who was supervising the Registrant at this time; and Case Notes dated 18 January 2017 recorded by RWi.

174. It was not disputed between the parties that the Registrant saw this patient on 10 January 2017, that the patient reported to the Registrant that, the previous day, the wound on his shoulder had burst open, and that the Registrant had advised him to contact the fracture clinic about this. The Panel had sight of the patient records completed by the Registrant which stated, “Lt Shoulder - wound dressing clean and dry, swelling, redness…pt advised to contact the clinic re. burst wound.”

175. Colleague RWi told the Panel in evidence that, although the Registrant advised the patient to contact the fracture clinic himself, it would have been the treating physiotherapist’s responsibility to contact the fracture clinic because “we have got the means to get them in there straightaway and really they shouldn’t be sent home, they should be sent straight to get a check.”

176. The Panel also took into account the Case Notes recorded by RWi which stated that the patient had called the unit on 17 January 2017, said that he was unhappy with the Registrant’s advice and felt that she had not wanted to get involved with his wound and that he had, in fact, gone straight to A&E on 10 January 2017 and was admitted to hospital for a wound infection, where he remained for a week on IV antibiotics.

177. The Registrant denied this particular, contending that she assessed the patient based on her competency and knowledge, that she did not observe any oozing on his wound and that her advice to the patient to attend the fracture clinic was appropriate. The Registrant’s evidence was that her supervisor in MSK had told her that a patient with a wound should go to the fracture clinic and that it was not the role of a physiotherapist to check wounds. In oral evidence, she initially told the Panel that she did not know that she needed to make a referral herself, that there was no relevant referral form to complete, and that she had never made a referral before. In cross examination, however, the Registrant appeared to accept that her lack of action on this occasion was a failing on her part and that a Band 5 physiotherapist would be supposed to know how to make a referral.

178. The Panel found the Registrant’s evidence, which changed during the hearing, inconsistent and contradictory. The Panel preferred and accepted the evidence of Colleague RWi that it would have been the Registrant’s responsibility, as treating physiotherapist, to contact the fracture clinic. It was satisfied that the Registrant did not take appropriate action after the patient reported his concerns about his wound to her and, accordingly, found this sub-particular proved.

Particular 10 – found not proved in relation to 10(a); found proved in relation to 10(b)

10. On or around 07 February 2017, in relation to Service User 19, you did not:
a) Reach an appropriate conclusion in respect of Service User 19's rehabilitation potential;
b) Liaise with Service User 19's residential care home regarding their discharge.

179. Service User 19 had undergone surgery for a fractured neck of femur, had a diagnosis of dementia and was a resident in a care home. The patient had been moved to the Registrant’s ward from another ward.

180. The Panel relied on the records completed by the Registrant [710-711] and her evidence; the evidence of Colleague SC; and documentary evidence including a Statement of Capability Concerns and the Patient Session Record dated 14 February 2017.

Particular 10(a)

181. Colleague SC did not supervise the Registrant’s treatment session but explained to the Panel that another colleague from the discharge team had brought the treatment plan to Colleague SC’s attention. Colleague SC said that it was upon reading the Registrant’s patient notes that she became concerned, particularly that the Registrant had written in the notes “a strong statement” that this patient did not have rehabilitation potential. Colleague SC’s evidence was that this was a case of careless note writing with potential implications for the patient. She explained that this patient had dementia, was in an unfamiliar setting in hospital and that, in her view, the Registrant should have recognised this and taken it into account when discussing the potential for physiotherapy, stating, “It was possible that in the residential home, if we were to follow with the community therapy, that treatment potential would have changed. [The Registrant] should have recognised all these factors.”

182. The Registrant denied this factual allegation. Her evidence was that she conducted her own assessment of the patient and thought that the patient did not have any rehabilitation potential and, as such, there was no need for physiotherapy to keep going to see her on that ward. The Registrant’s evidence was that “I was not saying that Service User 19 should never be seen again by physiotherapy at all,” noting that she did record to liaise with colleagues about the potential need for the patient to have further assessment in an assessment bed.

183. On balance, the Panel preferred the evidence of the Registrant in this regard. The Panel had sight of the Registrant’s notes for this patient which specifically recorded under the Assessment section that this treatment session was Day 18 post-surgery, that the patient was not engaging with treatment and “does not have rehab potential.” In the Plan section of the patient notes that followed, the Registrant had written, “Liaise with senior colleague re need for physio,” further that the patient was possibly for an assessment bed. The Panel accepted the Registrant’s evidence that her assessment of the patient as not having rehabilitation potential was referring to the patient on the ward at that specific time. The Panel also bore in mind Colleague SC’s acceptance in cross-examination that the Registrant should have noted that her conclusion was her assessment on that day, on that ward, which the Panel considered, in fact, to be what the Registrant had done.

184. In light of all of the evidence, the Panel was not satisfied that the HCPC had established factual sub-particular 10(a) to the required standard and found it not proved.

Particular 10(b)

185. The Registrant’s patient notes recorded that Service User 19 was possibly for an assessment bed and that the plan should be to liaise with a senior colleague regarding the patient’s need for physiotherapy.

186. Colleague SC stated in evidence that, instead of the Registrant writing down that she would further discuss this case, she should have simply liaised with the care home. Instead, the Registrant had not contacted the residential home and her plan had not addressed discharge issues for the patient.

187. The Registrant accepted that she did not liaise with the patient’s residential care home regarding her discharge and therefore admitted this factual allegation. In relation to the context, however, the Registrant explained that, at the time, there was a dedicated SPEED team at the Trust, whose role was “to specifically arrange the discharge of patients,” and that this team was already involved with this patient.

188. In light of all of the evidence, the Panel was satisfied that the HCPC had established factual sub-particular 10(b) to the required standard and found it proved.

Particular 11 – found partially proved in relation to 11(a); found proved in relation to 11(b)

11. On or around 10 February 2017, in relation to Service User 6, you:
a) Did not read the operative notes and/or identify the discrepancies in the operative notes;
b) Did not provide appropriate support to the service user during physiotherapy, in that you did not prevent them from full weight bearing on their feet.

189. The Panel relied on the evidence of Colleague SC; Colleague SC’s Patient Treatment Record signed by both SC and the Registrant on 14 February 2017; Colleague SC’s Statement of Clinical Capability Concerns; and the Registrant’s evidence.

190. Service User 6 was a post-operative patient who had undergone surgery for ganglion removal. It was not in dispute that the Registrant attended the patient together with Colleague SC on 10 February 2017.

Particular 11(a)

191. Colleague SC’s oral evidence was that the Registrant was leading the session and should have reviewed the patient’s operative notes prior to the treatment session. Colleague SC explained that, in these operation notes, there were two different sets of information around weight-bearing status, one in writing stating “to mobilise FWB [full weight-bearing]” and one circled to indicate “HWB [heel weight-bearing]”, but that the Registrant failed to identify this discrepancy. It was SC’s evidence that, when she asked the Registrant if she had read the operation note, the Registrant replied that she had not seen this. SC told the Panel that she would have expected the Registrant to identify the discrepancy and to read the notes thoroughly.

192. The Registrant denied this sub-particular. Her evidence was that Colleague SC was the treating physiotherapist for this patient and that her own role in attending the patient together with Colleague SC was to assist in getting the patient walking. In relation to the first part of the allegation - that she did not read the operative notes - the Registrant appeared to accept in her First Statement that she read the patient’s notes at the end of the treatment session, stating, “At the end of the treatment Service User 6 asked me about how to elevate her leg. I said I would check in the notes as I was only supporting [Colleague SC].” In her Second Statement, the Registrant’s position was that, prior to the treatment session, Colleague SC gave her a verbal handover of the patient’s condition and that “I asked to see the patient’s post-op note…Then [Colleague SC] picked [up] the patient’s note, which [she] had already read before requesting my assistance. [Colleague SC] flipped through the notes and showed me the name of the surgery and the post-op instruction which read HWB (heel weight-bearing) on that page. [Colleague SC] and I then attended the Service User 6 successfully.” In oral evidence, the Registrant confirmed that she was only briefly shown the Operation Notes by Colleague SC, that she had not read the middle section but that she felt she had read what she needed to. In relation to the second part of the allegation the Registrant disputed that Colleague SC had had to highlight the discrepancy to her and suggested that Colleague SC had misremembered what had happened. The Registrant contended that she had identified the discrepancies herself and that she used a jotter pad to do so. When challenged in cross-examination as to why she had apparently accepted Colleague SC’s feedback around her failings as set out in the Patient Treatment Record, the Registrant said that she had “let it pass” and that she had “foolishly accepted it [the feedback].”

193. The Panel considered that, on the evidence before it, it was more likely than not that the Registrant read the operation notes, but not fully or carefully, before the treatment session. It therefore found the first part of the allegation - that the Registrant did not read the operative notes - not proved. In relation to the second part of the allegation - around identifying the discrepancy - the Panel preferred the evidence of Colleague SC who was both consistent and balanced throughout and found that it was more likely than not that the Registrant had not read the middle section of the notes and, as a result, had not identified the discrepancies. It therefore found this factual allegation partially proved on the balance of probabilities.

Particular 11(b)

194. Colleague SC’s evidence was that, on first meeting with this service user, the Registrant correctly explained to the patient that she would be heel weight-bearing only and began to teach the patient a correct walking technique for this. Colleague SC explained, however, that she had to intervene on numerous occasions to correct the patient’s weight-bearing because “this patient continued putting full weight on her feet” and that “the Registrant should have noticed SU6’s incorrect technique and she should have corrected it herself.” In oral evidence, Colleague SC confirmed, “I had to say a couple of times, remember to stay on your heel.”

195. The Panel had sight of the Patient Treatment Record, written by Colleague SC and signed by the Registrant, in which Colleague SC had noted that the Registrant “required guidance to prompt the patient to ensure she was HWB [heel weight bearing].”

196. The Registrant denied this sub-particular. She contended that Colleague SC was the treating physiotherapist, whilst she was “only helping” and was “not doing the treatment.” When asked in cross-examination whether she had explained to the patient that they should be heel weight-bearing only, the Registrant stated that she did not remember who said what to whom, “but I wouldn’t have done it;”. She appeared to accept, though, that she had shown the patient how to walk using heel weight-bearing only and contended that, “if someone is close up to you, you’d do it.”

197. The Panel considered that the Registrant’s evidence in relation to this sub-particular was confused and inconsistent. The Panel was in no doubt that the Registrant was the clinician leading the session and was responsible for the patient’s weight-bearing. The Panel preferred the evidence of Colleague SC, which it found to be clear and compelling. The Panel was satisfied that the HCPC had established factual sub-particular 11(b) to the required standard and found it proved.

Particular 12 – found proved in its entirety

12. On or around 10 February 2017, in relation to Service User 7, you:
a) Did not recognise that Service User 7 was becoming unwell during assessment.
b) Did not demonstrate an awareness of the need to modify Service User 7’s treatment;
c) Did not recognise and/or act upon the report by the service user of a new symptom.

198. It was agreed that the Registrant attended Service User 7 together with Colleague SC on 10 February, which was Day 1 post-surgery.

199. The Panel relied on the Registrant’s evidence; the evidence of Colleague SC; and the Patient Session Record completed by Colleague SC on 14 February 2017.

Particular 12(a)

200. The Panel took into account the Patient Session Record completed by Colleague SC in which she stated, “Appeared to fail to recognise the patient’s non-verbal communication as she became a little wobbly/quiet after completing the therapy ax stairs once”, and that the Registrant asked the patient if she would like to try the stairs again. Colleague SC said that a second stair assessment at this time was inappropriate and that she had to step in and ask the Registrant to bring the wheelchair, to safely and quickly sit the patient down.

201. The Registrant denied this factual allegation. In her First Statement the Registrant clearly stated, “I did recognise that Service User 7 was becoming unwell during the assessment;” she recalled that the patient was becoming hot and that she offered the patient some water. The Registrant contended that her notes recorded “dizziness, light-headedness and feeling faint on standing.” The Registrant noted that a wheelchair was brought forward for the patient as she wanted to sit. In oral evidence, however, the Registrant stated that her notes in fact recorded “no dizziness” and “no light-headedness” and that this record of no symptoms would have referred to the patient prior to her undertaking the stair assessment.

202. The Panel found that the Registrant’s evidence was both confused and contradictory. It preferred the clear and consistent evidence of Colleague SC, supported by her Statement of Concerns signed 4 days after the treatment session. Accordingly, the Panel found this sub-particular proved on the balance of probabilities.

Particular 12(b)

203. The Panel had regard to Colleague SC’s oral evidence, supported by her Statement of Clinical Capability concerns, that when the patient displayed “signs of a potential faint and becoming unsteady”, Colleague SC had been required to step in, ask for the wheelchair to be brought and stop the treatment session. She stated that, by asking the patient to complete a further stair assessment, the Registrant both failed to observe the patient’s cues and pace the treatment session according to the patient’s acute presentation.

204. The Registrant denied that she did not demonstrate an awareness of the need to modify Service User 7’s treatment, believing that she “may have said” to the patient that “we could do their assessment later.” The Registrant contended that, if she had said that they could do the assessment there and then, she believed it would have been as a question, to judge whether an assessment was appropriate then or later. The Registrant said that she could not recall the exact words that she used.

205. The Panel preferred the clear evidence of Colleague SC and considered that the evidence before it was that the Registrant had carried on with the initial plan. Accordingly, the Panel was satisfied that the HCPC had established factual sub-particular 12(b) to the required standard and found it proved.

Particular 12(c)

206. Colleague SC’s evidence was that, on meeting with the patient, SU7 “reported a reduced sensation in her hand. [The Registrant] did not seem to recognise this statement as crucial and I do not know if she did not hear or understand it, but SU7 repeated it.” This was supported by the Statement of Concerns and that, when the patient repeated the symptoms, “[the Registrant] reported these symptoms may improve with time.”

207. The Registrant denied that she did not recognise and/or act upon the report by the service user of a new symptom. The Registrant’s evidence was that the patient’s reported numbness in the thumb, index and middle fingers was not a new symptom, had already been flagged by the patient to the consultant and the consultant had already provided advice upon it. The Registrant’s evidence was that the patient told her that the consultant thought that this might be due to a trapped nerve in the elbow. The Registrant stated that, “I responded to say that this should improve with time.”

208. The Panel preferred the evidence of Colleague SC and considered that the Registrant did not act upon the report of new symptoms by simply advising that the symptoms should improve with time. Accordingly, the Panel found this sub-particular proved.

Particular 13 – found proved in its entirety

13. On or around 17 February 2017, in relation to Service User 8, you:
a) Did not recognise and/or act upon Service User 8's change of symptoms until prompted.
b) Required prompting to complete an adequate and/or safe assessment;
c) Required prompting to await review by the spinal team before commencing treatment.

209. Service User 8 had had lumbar spine surgery and had developed upper limb symptoms. It was agreed that the Registrant saw this patient on 17 February 2017, together with Colleague SC and that, on assessment, Service User 8 reported some new upper limb symptoms, namely a tingling sensation and numbness.

210. The Panel relied on the Registrant’s evidence; the evidence of Colleague SC; and both the Patient Session Record and the Statement of Clinical Capability Concerns completed by Colleague SC.

Particular 13(a)

211. Colleague SC’s evidence was that when the patient reported upper limb pins and needles, the Registrant only briefly questioned her about it, even though the patient had reported that the symptoms had worsened since mobilising with elbow crutches with the nursing staff prior to the physiotherapy session. Her evidence was that at no point did it become apparent that the Registrant was thinking she may test the patient’s upper limb myotomes, ask special questions or look to her for guidance, although the Registrant did ask if the nurses and doctors were aware.

212. The Registrant denied this factual allegation, contending that she did recognise and act upon the patient’s change of symptoms without prompting. Her evidence was that when the patient told her that she had tingling in her fingers that was not present before surgery, the Registrant thought that these symptoms had resulted from her positioning during lumbar spine surgery and, “I expressed a view that the new upper limb symptoms were very likely positional.” The Registrant explained that, in her view, Colleague SC had just been “playing devil’s advocate” by asking if they needed to consider anything else, such as an upper limb myotome assessment, before assessing a transfer.

213. The Panel preferred the evidence of Colleague SC who was concerned that the patient would be required to mobilise using elbow crutches and that the Registrant appeared not to recognise the importance of this. Although the Registrant denied this sub-particular of the Allegation, the evidence presented to the Panel was that she did not ask the patient appropriate questions with regard to the new upper limb symptoms until she was specifically prompted to do so. Accordingly, the Panel found this sub-particular proved.

Particular 13(b)

214. Colleague SC’s evidence was that the Registrant should have conducted a myotome and dermatome assessment, both involving muscle power and sensation testing. She stated that the Registrant did conduct this assessment, but only after prompting from Colleague SC, after she suggested that the new symptoms needed to be investigated.

215. The Registrant denied this factual allegation, contending that she did not require prompting to complete an adequate and safe assessment. The Registrant’s evidence was that Colleague SC asked if she was planning to assess the patient and the Registrant said that she was not, “as I believed that the symptoms were related to her position in surgery and would subside with time as the nerves in her neck relaxed.” The Registrant accepted that Colleague SC prompted her to undertake a myotomal assessment, which she did. She noted, however, that in Colleague SC’s record about this session, Colleague SC said that she would not necessarily expect the Registrant to identify it as appropriate and to automatically assess myotomes.

216. There was clear evidence before the Panel that the Registrant was prompted by Colleague SC to ask the patient more questions about her new upper limb symptoms. The Panel did not accept the Registrant’s evidence that no further assessment was necessary in light of the patient’s new symptoms. It did not consider that simply assuming that the patient’s new symptoms were due to her positioning during surgery was an adequate response. Accordingly, the Panel found this sub-particular proved.

Particular 13(c)

217. Colleague SC said that these were unusual symptoms for the patient to report and that she wanted the spinal consultants to review her on the ward round before they assessed her mobility further. Colleague SC said that she had to tell the Registrant that they needed to wait for the spinal team to review the patient before treating her.

218. The Registrant admitted this factual allegation and that she required prompting by Colleague SC to contact the spinal team for its review before commencing treatment. The Registrant explained that she did not contact the spinal team without prompting because, “in my own mind a review was not needed.”

219. In light of all the evidence before the Panel, including the Registrant’s admission, the Panel was satisfied that the HCPC had established factual sub-particular 13(c) to the required standard and found it proved.

Particular 14 – found proved in relation to 14(a) and 14(c); found not proved in relation to 14(b)

14. On or around 19 May 2017, in relation to Service User 9, you:
a) Did not adequately review the operation notes and/or did not correctly identify the procedure Service User 9 underwent;
b) Did not demonstrate adequate and/or appropriate clinical reasoning in your intervention with Service User 9 in that you proposed conducting a bed transfer;
c) Did not measure the service user's lower leg and/or delegate the task to the technicians team.

220. The Registrant attended this Service User 9 with Colleague VT on 19 May 2017. The patient had had hip surgery for a fractured neck of femur and this was the first day after surgery.

221. When considering these sub-particulars, the Panel relied upon the medical records for this patient; the evidence of the Registrant; the evidence of Colleague VT; Colleague VT’s contemporaneous Reflection document; and the Statement of Clinical Capability Concerns. The Panel also had sight of a Capability Process Learning Log dated 19 May 2017 which was a learning exercise that Colleague VT set for the Registrant after the incident as part of the capability process.

Particular 14(a)

222. Colleague VT’s evidence was that the Registrant reported that the patient had undergone a hemiarthroplasty procedure of the right hip and was for full weight-bearing whereas, in fact, the patient had received a total hip replacement. Colleague VT contended that the Registrant did not read the operation notation correctly, interpreted the note as a hemi arthroplasty and only became aware that this patient had undergone a total hip replacement during the course of the session, and following Colleague VT’s prompting. Colleague VT stated, “I informed the Registrant of my findings and allowed her to continue to lead the treatment session with this new information. The Registrant advised the patient of the hip precautions as the treatment continued.” It was Colleague VT’s view that this was an example of the Registrant failing to read properly and understand the patient notes before commencing treatment.

223. The Registrant denied this sub-particular, stating that that she believed that she was aware that this patient had undergone a total hip replacement. She referenced her own patient notes, where she recorded “precautions explained and sheet given” which, she contended, referred to a printed sheet of precautions given to a patient who has undergone a full hip replacement, as opposed to a hemi arthroplasty. It was the Registrant’s view that Colleague VT was mistaken, even when it was put to her in cross-examination that a Learning Log had been set by Colleague VT, with the first learning point being to correctly identify the procedure.

224. The Panel preferred the evidence of Colleague VT to that of the Registrant. Colleague VT’s evidence was consistent with her Statement of Clinical Capability Concerns and, on balance, the Panel was of the view that if the Registrant had correctly identified Service User 9’s procedure, then “hip replacement prosthesis” would not have been included as the first learning point in the Learning Log discussed on 24 May 2017.

225. In light of all the evidence before it, the Panel determined that it was more likely than not that the Registrant neither adequately reviewed the operation notes, nor correctly identified the procedure that the patient underwent. The Panel was satisfied that the HCPC had established factual sub-particular 14(a) to the required standard and found it proved.

Particular 14(b)

226. It was agreed by both the Registrant and Colleague VT that the Registrant proposed a bed transfer. The Registrant denied that this did not demonstrate adequate and/or appropriate clinical reasoning.

227. The Registrant contended that she had successfully mobilised the patient and wanted to undertake a bed transfer as she thought the patient could carry on as she was not elderly, was engaging well and had no signs of fainting or tiredness. The Registrant stated that, when Colleague VT advised against a bed transfer, she did not proceed.

228. Colleague VT explained that as this was the first day after major surgery, a bed transfer was “too much too soon” due to the “potential for fatigue”, and that, in her view, the patient should have returned to the chair to rest. Colleague VT said that she interjected by asking the Registrant, “Is that the best thing to be doing right now?” Colleague VT further expanded that, “the bed transfer isn’t wrong” but at this stage in a patient’s care, “it would be less indicated.”

229. The Panel noted that in Colleague VT’s Statement of Clinical Concerns, she recorded that the Registrant regularly asked the patient how she was feeling and if she was tired.

230. In light of all of the evidence, including the Registrant’s reasoning around the patient’s age and presenting condition, and Colleague VT’s evidence that the bed transfer was not wrong, the Panel did not consider that the Registrant had not demonstrated adequate and/or appropriate clinical reasoning in her proposal to conduct a bed transfer. It was not satisfied that the HCPC had established factual sub-particular 14(b) to the required standard and found it not proved.

Particular 14(c)

231. The Registrant admitted this factual allegation. There was no dispute that the Registrant did not measure Service User 9’s lower leg. The Registrant contended that she “had no training in measurement so could not have done it” and that this was an Occupational Therapist’s (OT) duty. The Registrant stated that she “hadn’t done OT competencies and so didn’t think of bringing [this task] to their attention.”

232. Colleague VT’s evidence was that, historically OTs took the lead in taking the measurement but that different therapists work as a multi-disciplinary team and that, “any of us are able to take this measurement.” Colleague VT could not recall teaching the Registrant herself how to take measurements but contended that the Registrant would have been aware of the importance of a knee to floor measurement. She contended that, if the Registrant felt that she didn’t have enough understanding, “we would have expected her to say.”

233. In light of the above, including the Registrant’s admission, the Panel was satisfied that the HCPC had established factual sub-particular 14(c) to the required standard.

Particular 15 – found proved in relation to 15(a),(b),(c) and (d); found not proved in relation to 15(e)

15. On or around 26 May 2017, in relation to Service User 10, you:
a) Did not recognise that the service user's sling was not in place during the first physiotherapy session;
b) Did not recognise the absence of a documented orthopaedic management plan regarding the service user's shoulder and/or independently take steps to ascertain the orthopaedic management plan for Service User 10's shoulder;
c) Did not record adequate clinical reasoning within the medical notes following the first physiotherapy session regarding management of the service user's shoulder alongside their hip;
d) Did not record an adequate plan for future physiotherapy intervention;
e) Did not adequately assess a way to safely mobilise the service user.

234. Service User 10, who had a diagnosis of dementia, had undergone hemiarthroplasty surgery following a humerus fracture. It is agreed that the Registrant initially went to see Service User 10 by herself. Colleague VT said that the Registrant was going to lead on the treatment session and had gone ahead to review the patient’s notes.

235. When considering these sub-particulars, the Panel relied upon the Registrant’s evidence; Colleague VT’s evidence; the Patient Session Record signed by Colleague VT on 30 May 2017, her contemporaneous Patient Reflection Discussion held on 30 May 2017, and the Statement of Clinical Capability Concerns. The Panel also had sight of a Capability Process Learning Log which was a learning exercise that Colleague VT set for the Registrant after the incident as part of the capability process and the Minutes of the First Formal Capability Review Meeting held on 31 May 2017.
Particular 15(a)

236. Colleague VT stated that the Registrant told her that this patient had recently broken her arm. Colleague VT’s evidence was that, when she arrived at the treatment session, Service User 10 was sitting in a chair with an arm sling at the end of her bed, not on her arm. Colleague VT said that the Registrant encouraged the patient to stand up from the chair, with Colleague VT and the Registrant standing either side of her, and the frame in front. Colleague VT stated, “It was unclear to me during this what [the Registrant’s] intended plan of weight bearing was for the right upper limb. No attempt was made to fit the sling to the right arm or verbally communicate to the patient not to weight bear through the arm…”

237. The Registrant denied this factual allegation. In her First Statement, she explained that she did not attempt to put the sling on the patient during her first contact because the patient was confused and aggressive and asked not to be touched. The Registrant said that she recorded in her notes that the patient declined mobilisation and that, because of the patient’s stance, she had not planned a physical treatment at that time. In oral evidence, however, the Registrant initially said that she had tried to put the sling on the patient before Colleague VT arrived, but that the patient had refused. In cross-examination, she conceded, “I did not physically attempt [it] really as [Service User 10] was aggressive but I was aware she had a sling to put on later.” The Registrant accepted that she did not tell Colleague VT that she knew that the patient needed a sling but that the patient had refused.

238. The Panel noted that the Minutes of the Capability Review Meeting recorded that the Registrant “acknowledged that as per the advice in the patient’s clinic letter she should have recognised the patient was not wearing their sling and ensured the patient had their sling in situ.” Further, the Patient Reflection Discussion held on 30 May 2017 recorded the Registrant’s acceptance that she “could and should” have replaced the patient’s sling prior to undertaking the examination.

239. The Panel considered that the Registrant’s evidence was inconsistent. It was of the view that, if the Registrant’s position was that she identified the sling but had decided not to try and put it on the service user on account of her aggression, it would have expected her to have mentioned that explanation when the matters were being discussed with her at the time. The Panel was satisfied that it was more likely that the Registrant did not recognise that Service User 10’s sling was not in place during the first physiotherapy session and, accordingly, found this sub-particular proved.

Particular 15(b)

240. The evidence of Colleague VT was that, “[The Registrant] told me that Service User 10 broke her shoulder recently, but she did not instigate looking for any further details around how it had been managed, even though it was crucial in assessing and treating SU 10 following the most recent surgery. This indicated to me that [the Registrant] did not demonstrate an understanding of the importance of knowing the orthopaedic management of SU10’s shoulder injury. Specifically, she did not understand that the orthopaedic management was not documented in the written notes which she reviewed, and therefore she needed to do some further investigation.”

241. The Registrant admitted this factual allegation. She explained in her First Statement that when Colleague VT joined her and started to ask questions, the Registrant was still reading the patient’s notes. The Registrant said that Colleague VT asked her if she could find information on this patient’s orthopaedic management plan, and the Registrant said that she could find information in the post-operative notes. She accepted that she had not yet found the orthopaedic management plan because she was still reading the A&E Fracture NOF Pathway notes. In oral evidence, however, the Registrant’s position was that at that time, and as a Band 5 Physiotherapist, she was not aware that she could find the information on a computer and that she needed to be prompted to do so.

242. In light of the above, including the Registrant’s admission, the Panel was satisfied that the HCPC had established factual sub-particular 15(b) to the required standard.

Particular 15(c)

243. The Panel had sight of the Registrant’s records for this patient, dated 26 May 2017. Colleague VT’s evidence was that the Registrant’s documentation of the previous intervention at 10.10 did not include “any clinical reasoning of the right upper limb” or an adequately detailed plan for future physiotherapy intervention in light of the humeral fracture management. Colleague VT considered this to be inadequate information, creating unnecessary inefficiency and risk for physiotherapy colleagues, especially for non-qualified therapy staff.

244. The Registrant admitted this factual allegation and that her notes for this first session did not have adequate documentation for the therapy team to make a safe follow up assessment.

245. In light of the above, including the Registrant’s admission and Colleague VT’s evidence, which the Panel accepted, the Panel was satisfied that the HCPC had established factual sub-particular 15(c) to the required standard.

Particular 15(d)

246. Colleague VT’s evidence was that the Registrant completed independently the documentation of the treatment session and that, “a detailed plan for future therapy interventions was considered to be inadequate. Only following significant prompting from me did [the Registrant] complete a more detailed plan…” This stance was supported by the Statement of Clinical Capability Concerns in which Colleague VT recorded that the Registrant’s documentation of the previous intervention at 10.10 did not include “an adequately detailed plan for future physiotherapy intervention in light of humeral fracture management.” She further recorded that the entry by the Registrant of “Avoid WB to Rt UL” (avoid weight-bearing to right upper limb) was added following the second patient session discussion with the Registrant. This evidence was not challenged in cross-examination. Colleague VT further confirmed in her evidence that when she discussed this with the Registrant, she did not recall the Registrant offering an explanation as to why she had not included in the records the need for Service User 10 to avoid weight-bearing to her right upper limb on account of the fracture.

247. The Registrant denied that she did not record an adequate plan for future physiotherapy intervention, contending in her First Statement that she reviewed the patient for mobility early that afternoon, and that her notes recorded that the patient required handheld assistance of two, with the aim of progressing to a walking stick/tetrapod, and recorded that the patient should be referred to ICT.

248. The Panel preferred the clear, detailed and consistent evidence of Colleague VT and was satisfied that it was more likely that the Registrant did not record an adequate plan for future physiotherapy intervention. Accordingly, the Panel found this sub-particular proved.

Particular 15(e)

249. Colleague VT’s evidence was that the Registrant “failed to fully assess the best way of assisting this patient to move…” in that she demonstrated a lack of initiative to consider the use of walking and transfer aids and an underestimation in the amount of support that Service User 10 would need to take steps. Colleague VT explained that the Registrant’s assessment and subsequent decision that handheld assistance was appropriate, “was not necessarily easily and safely replicable by the patient with the support of other staff on the ward...” and that the better option of treatment in this case was to consider a walking aid or a transfer device, such as a turner. In answer to questions in cross-examination, Colleague VT accepted that the Registrant’s intention to mobilise with hands-on support was “not wrong” but that because the patient was struggling to weight-bear through her legs, a transfer device would have offered greater support.

250. The Registrant denied that she did not adequately assess a way to safely mobilise the service user for the same reasons as set out in relation to 15(d).

251. The Panel bore in mind that Colleague VT conceded that the Registrant’s proposal for treatment was “not wrong”. It was of the view that the Registrant had assessed a way to safely mobilise the patient and that the HCPC had provided insufficient evidence to prove that it was not adequate. The Panel was therefore not satisfied that the HCPC had established this factual sub-particular 15(e) to the required standard and found it not proved.

Particular 16 – found proved

16. On or around 30 May 2017, in relation to Service User 11, you did not know the meaning of clinical terminology in the service user's notes and/or attempt to ascertain the meaning of the clinical terminology in the service user's notes.

252. When considering this particular, the Panel relied upon the patient notes recorded by a number of practitioners, including the Registrant; the evidence of the Registrant; and the evidence of Colleague VT, together with her Statement of Clinical Capability Concerns.

253. The Panel had sight of the patient notes of 30 May 2017, completed by another healthcare practitioner, which recorded, “Imp: Known IHP - R/O ACS, R/O PE” and that a number of tests were planned, including an ECG and various blood tests, including “Trop I and D-dimer.”

254. Colleague SC’s evidence was that the Registrant was able to tell her what the abbreviations IHP and PE stood for. She said, however, that she specifically asked the Registrant about the term ACS, as well as what the tests in the patient’s notes indicated, specifically what Trop I and D-Dimer tests were for, and the Registrant did not know. Colleague VT contended that these terms are quite common and not unique to trauma and orthopaedic patients and that she would have expected a Band 5 Physiotherapist with three years’ experience and a Master’s degree in Physiotherapy to have this knowledge. Further, Colleague VT’s evidence was that, “At no point through our initial conversations after she had viewed the patient’s notes did [the Registrant] ask me what the…abbreviations meant or exactly what was meant by them, and I believe she would have gone to this patient and potentially assessed his transfers had I not intervened.”

255. The Registrant admitted this sub-particular of the Allegation. She accepted that she did not know that ACS stood for Acute Cardiac Syndrome. She said that she did know what a Trop I or D-Dimer test was but that she was “questioned on the spot at the nurse’s station” and that, “due to my anxiety I was unable to articulate this clearly to [Colleague SC].” The Registrant contended that she would have checked the back of the patient notes pathway if Colleague SC had allowed her to do so.

256. In light of the above, including the Registrant’s admission and Colleague VT’s evidence, which the Panel accepted, the Panel was satisfied that the HCPC had established factual sub-particular 16 to the required standard.

Particular 17 – found proved in its entirety

17. On or around 02 June 2017, in relation to Service User 12, you:
a) Directed Service User 12 to reposition herself in a way that was unsafe.
b) Were unable to clinically reason how Service User 12 could be repositioned in a way that was safe.

257. Service User 12 had undergone a total hip replacement. It is agreed that Colleague SC and the Registrant went to see this patient to provide a post-operative standard treatment.

258. When considering these sub-particulars, the Panel relied upon the evidence of Colleague VT, including her Patient Treatment Record and the Statement of Clinical Capability Concerns; and the evidence of the Registrant.

Particular 17(a)

259. It was Colleague SC’s evidence that, for a patient following a hip replacement, there should not be flexion above 90 degrees, but that the Registrant asked the patient to reposition herself by leaning forward and bending her knees. Colleague SC stated, “This was not correct as it would bring more than 90-degree flexion at the hip joint, so I had to intervene. The position was unsafe due to the risk of dislocation. When I asked [the Registrant] how SU12 should be repositioned given the movements that needed to be avoided, she was not able to provide an answer.”

260. Colleague SC told the Panel that she discussed the matter with the Registrant following the session and, on the same day, wrote up the Patient Treatment Record. The Panel took into account Colleague SC’s Patient Treatment Record, which stated, “Following this incident I have discussed this in more detail with [the Registrant]. [The Registrant] is fully aware of the hip precautions and can clearly list these when asked but today’s treatment session still identifies a difficulty in applying this to the environment the patient is in.” In oral evidence, Colleague SC expressed her view that the Registrant knew the theory but was not able to put it into practice - something that she would expect a Band 5 to be able to do.

261. The Registrant’s evidence was that she does not recall this patient and that she neither admits nor denies these sub-particulars of the Allegation. In oral evidence, she stated that she could not remember but had many similar patients and that, “from my other patients, I would have lowered the head of the bed.”

262. The Panel preferred the clear and detailed evidence of Colleague SC, which was supported by the contemporaneous Patient Treatment Record and was not challenged in cross-examination. It was satisfied that the HCPC had established factual sub-particular 17(a) to the required standard. Accordingly, the Panel found this sub-particular proved.

Particular 17(b)

263. Colleague SC’s evidence was that she intervened to stop the patient from moving in a way that would go beyond the 90-degree angle at the hip joint and asked the Registrant what should be done first to help the patient reposition herself to carry out the exercise safely. Colleague SC contended that the Registrant “was unable to answer/ clinically reason that the head of the bed should be lowered as this decreases the angle at the hip joint, but also makes it a lot easier for a patient to reposition themselves on a bed.”

264. The Registrant’s evidence was that she does not recall this patient, but had many similar patients, and that, “from my other patients, I would have lowered the head of the bed.”

265. Again, the Panel preferred the clear and detailed evidence of Colleague SC, which it found to be persuasive, and which was not challenged in cross-examination. It was satisfied that the HCPC had established factual sub-particular 17(b) to the required standard. Accordingly, the Panel found this sub-particular proved.

Particular 18 – found not proved in relation to 18(a) and (d); found partially proved in relation to 18(b); and found proved in relation to 18(c)

18. On or around 15 June 2017, in relation to Service User 13, you:
a) Completed a repeat mobility assessment when this was not required and/or clinically justified;
b) Suggested that a repeat stair assessment should be completed when this was not necessary and/or clinically justified;
c) Were unable to complete an accurate assessment of Service User 13's range of movement without instruction;
d) Did not recognise that Service User 13 met the criteria for discharge.

266. The Registrant attended Service User 13 together with Colleague RWa, an Advanced Occupational Therapist. Service User 13 had had a total knee replacement, had been approved for discharge and Colleague RWa was supervising the Registrant during the treatment session.

267. When considering these sub-particulars, the Panel relied upon the evidence of Colleague RWa; Colleague RWa’s Treatment Session Record dated 21 June 2017 and her Statement of Clinical Capability Concerns; the Total Knee Replacement protocol; and the evidence of the Registrant.

Particular 18(a)

268. It was Colleague RWa’s evidence that the Registrant, who was leading the treatment session, began by carrying out a repeat mobility assessment, decided to progress the patient onto elbow crutches and then carry out a step assessment, despite being told the plan from the morning session for the patient to return home using Zimmer frames. Colleague RWa contended that the Registrant carried out an unnecessary repeat mobility assessment with no valid justification for this.

269. The Registrant initially admitted this sub-particular in her First Statement, explaining that she tested mobility again “to avoid troubling the consultant.” When giving evidence, however, the Registrant changed her stance, contending that the patient was “too good” for a Zimmer frame and so she moved the patient onto elbow crutches to give her better function. The Registrant stated that, as an autonomous physiotherapist, she undertakes her own assessments and that, she “felt it was safer and functionally better to use elbow crutches, rather than a Zimmer frame. It was based on my own findings.” The Registrant apologised that her newly stated denial and rationale in relation to this allegation had not been put to Colleague RWa in cross-examination earlier in the hearing.

270. The Panel bore in mind that the Registrant had noted in her First Statement that she had been able to progress Service User 13 to crutches and that the patient became more mobile on the ward before discharge. It further noted from the documentary evidence that the patient was, in fact, sent home with two pairs of crutches. The Panel also considered that, as an Occupational Therapist, Colleague RWa would have been focusing primarily on the safety of the patient’s discharge; whereas the Registrant, as a Physiotherapist, was primarily considering the progression of the patient’s mobility.

271. The Panel considered that the Registrant had a clear rationale for completing a repeat mobility assessment and, on balance, determined that whether the repeat assessment was required was a question for the Registrant as an autonomous professional. The Panel also took the view that the repeat assessment was, in fact, clinically justified and beneficial for the patient, who was then discharged with a second pair of crutches.

272. In light of the above, the Panel could not be satisfied that the HCPC had established factual sub-particular 18(a) to the required standard and found the allegation not proved.

Particular 18(b)

273. Colleague RWa’s evidence was that the Registrant was going to do a stairs assessment with this patient with one rail and one elbow crutch despite RWa reminding her that the patient had two rails at home. Colleague RWa explained that the patient had already been assessed on the stairs with two rails, deemed safe, and had been using two rails at home before the operation. RWa said that this information had been handed over to them prior to their treating the patient, as well as being documented in the notes. It was Colleague RWa’s evidence that the patient had been deemed safe on the stairs and “being on elbow crutches did not alter this.”

274. Initially, the Registrant admitted that she suggested that a repeat stair assessment should be completed when this was not necessary and/or clinically justified, contending that she did so because of the uncertainty over whether the patient should be discharged. When giving evidence, however, the Registrant changed her stance and denied that the repeat stair assessment was not required and/or clinically justified. She said that, as an autonomous professional, she decided that the repeat stair assessment was necessary as she understood that the patient was going to be discharged with only one pair of crutches and have to carry them on the stairs.

275. The Panel was persuaded that the Registrant’s suggestion that the patient repeat a stair assessment was well-intentioned and a clinically-reasoned next step. It was of the view that the suggestion was clinically justified but was not “necessary” as the patient had been deemed safe on the stairs and, as the solution was to give her two pairs of crutches, there was no need for her to practise on the stairs. In light of the above, the Panel was satisfied that the HCPC had partially established factual sub-particular 18(b) to the required standard on the basis that the repeat stair assessment was not necessary.

Particular 18(c)

276. Colleague RWa’s evidence was that the Registrant needed instructions on how to carry out a more accurate assessment of this patient’s range of movement and that, without prompting from her, would have had a 30° discrepancy in the measurement. Her evidence was that the Registrant initially took a measurement of 55° with the patient sitting on the bed; then took a measurement of 65° with the patient “resting” in a chair with a cushion; then, after Colleague RWa advised her to re-measure with no cushion in place and encouraging the patient to flex her knee as far as she could before taking the measurement, the Registrant measured the flexion at 85°. Colleague RWa contended that measuring range of movement using a goniometer “is taught as a core skill at undergraduate PT level, as well as being a skill that [the Registrant] would have had experience of during her previous clinical experiences in outpatients at UHNM and during this rotation.”

277. The Registrant denied this sub-particular. In her First Statement she did not deal with the specifics of her undertaking an accurate assessment of range of movement without instructions. In oral evidence, when asked if she had removed the cushion from the chair to re-measure the range of movement of the knee, the Registrant was not able to give a clear answer, despite being asked the question twice. She was not able to provide a proper explanation as to why she had measured the range of movement with the service user sitting on the bed, in circumstances where she agreed that the measurements should be taken with a service user sitting in a chair.

278. The Panel found that the Registrant’s evidence was confused and unclear. It preferred the evidence of Colleague RWa which it considered to be consistent and credible. In light of all of the evidence before it, the Panel was satisfied that the HCPC had established factual sub-particular 18(c) to the required standard and found the allegation proved.

Particular 18(d)

279. There was a conflict in the evidence between the HCPC witnesses regarding the discharge criteria. Whilst Colleague RWa’s evidence was that a patient is safe for discharge if they have a minimum of 70° knee flexion, the induction material provided to the hearing by Colleague CB, supported by Colleague VT’s evidence, was that a patient should be achieving knee flexion of 90° before discharge.

280. The Registrant denied this sub-particular. She explained that, from the notes, she realised that the patient’s knee-flexion was less than 90° and that the patient had no straight leg raise. She contended that these two limitations meant that, in accordance with the TKR protocol, further clarification from the consultant was needed before physiotherapists could make the decision to discharge the patient. The Registrant stated, “The protocol is the reason I wanted to clarify from the nurse if the consultant was happy for physiotherapists to discharge the patient who had less than 90 degrees knee flexion, no SLR and no IRQ. I explained my decision for making this clarification to [Colleague RW]. When I spoke to the nurse, I discovered that they had no instruction on limitations from the consultant.”

281. No documentary evidence of a protocol or training setting a flexion of 70° was provided to the Panel. The Panel preferred the evidence of the Registrant that a 90° knee flexion should be achieved before discharge, supported by both Colleagues CB and VT and by documentary evidence of the induction material. The Panel could not be satisfied that the HCPC had discharged the burden of proof in respect of this sub-particular and, accordingly, found it not proved.

Particular 19 – found proved

19. On or around 22 June 2017, in relation to Service User 16, you did not respond appropriately and/or in a timely manner when Service User 16 became unwell during mobilisation.

282. The Registrant attended Service User 16 with Colleague VT. Service User 16, a 27-year-old rugby player, had undergone open reduction/ internal fixation left tibia plateau surgery. He was struggling to put weight onto his left foot.

283. When considering this particular, the Panel relied upon the evidence of Colleague VT; Colleague VT’s “Reflection and Feedback” document drafted on the day of the treatment session, and her Statement of Clinical Capability Concerns; and the Registrant’s evidence.

284. Colleague VT stated that the patient was leaning forward with his forearms on the frame, which concerned her. She explained that, in her view, the Registrant needed to ask the patient why he was leaning forward but that the Registrant did not ask and instead spoke to the patient about ways to improve the range of movement in his ankle, including the use of a TheraBand or cord. Colleague VT’s evidence was that the Registrant responded to the patient’s request for water and was asking how he felt, “but had not verbalised or indicated a plan to return to the bed at this point.” Colleague VT said that she gave the Registrant a fair opportunity to act, but intervened when she saw the patient deteriorating further and potentially being at risk of either fainting or falling. She said that the Registrant directed the patient back to the bed space but required Colleague VT to question whether the bed or the chair was more appropriate. Colleague VT stated that the Registrant said the chair but that, in light of the signs of the patient’s deterioration, VT considered that the bed was a better clinical option. In cross-examination, Colleague VT contended that, “What was lacking was subjective assessment gathering - observing those things happening she should have asked him, to question him, so there was clarity as to whether he was simply in pain or feeling faint… Meanwhile the patient’s presentation was continuing to change in front of us. [The Registrant] wasn’t picking up those non-verbal cues.”

285. The Registrant denied this factual allegation, contending that the patient had not become unwell and was simply in pain. The Registrant accepted in her First Statement that, when he put his left foot flat on the floor, Service User 16 felt pain in the left calf, “bent forward for a couple of seconds then straightened himself.” The Registrant stated that she calmed the patient, apologised to him for the pain and explained the cause of it to him. She contended that there was no sign or symptom of faintness from the patient and that she refuted that he had become unwell, although she accepted that he asked for water. The Registrant stated that there were “protocols for a faint patient” that she would have followed if she had thought that Service User 16 was in pain or faint. In oral evidence, the Registrant denied that the patient leant on his forearms on a Zimmer frame; her evidence was that “he bent forwards on the crutches and self-corrected” and that she explained to the patient “what had happened and that he should focus on ankle exercises.” In cross-examination, the Registrant contended, “The fact that the patient was bending forward and asking for water do not necessarily indicate a deterioration. I look for colour change and breathing etc. He did not go pale.”

286. The Panel was of the view that the Registrant’s evidence in relation to the patient feeling faint or feeling pain was rather confused and was undermined by the fact that the Registrant accepted that the patient asked for water, rather than being offered it. It was concerned that the Registrant’s account had not been put to Colleague VT in cross-examination earlier in the hearing and, when challenged about this, she stated, “I don’t remember the questions that were put to [Colleague VT].”

287. The Panel preferred the evidence of Colleague VT in relation to this allegation, which the Panel considered to be clear and consistent. The Panel further noted that the Registrant appeared to have accepted Colleague VT’s contemporaneous feedback of 22 June 2017 and found that it was more likely than not that the Registrant did not respond appropriately or in a timely manner when Service User 16 became unwell. Accordingly, the Panel found this particular proved.

Particular 20 – found proved in its entirety

20. On or around 20 June 2017, in relation to Service User 17, you:
a) Had to be prompted to adequately review the operation notes;
b) Did not recognise and/or appropriately respond to the contradiction in the surgical notes.

288. The context of this particular of the Allegation is that this patient had been identified as going for major surgery that day. The Registrant was looking at the patient’s operation notes to determine whether surgery had happened or whether the patient was back on the ward. As the senior clinician on the ward that day, Colleague VT had overarching responsibility.

289. When considering these sub-particulars, the Panel relied upon the evidence of Colleague VT; Colleague VT’s Statement of Clinical Capability Concerns; the clinical notes and operation notes for the patient; the Clinical Care Pathway for total hip replacement notes; and the Registrant’s evidence.

Particular 20(a)

290. The Panel noted the evidence of Colleague VT that, when she asked the Registrant to look at this patient’s notes, the page that the Registrant looked at “was a blank page in the care pathway operation notes section, which the surgeon had not used to document his operation or post- operative plan. In this case the common sense approach would be to look for the completed operation note elsewhere, as the entire page was completely blank. On that blank page none of the two boxes were ticked, from which [the Registrant] concluded that the patient was not an enhanced recovery patient. This is what she told me when I asked her what she saw after reading the notes. The post operative notes are provided on a separate page, and titled Corporation Note. Without prompting, the Registrant would not have looked elsewhere in the notes for this documentation. The Registrant made a clinical decision not to treat, based on a blank piece of paper that she had looked at. When we looked through the documentation together, we located the typed operation note on a loose piece of paper.” In oral evidence, Colleague VT told the Panel, at that time, it was not uncommon to find operation notes done by hand and that staff were aware that they needed to be vigilant and look for operation notes elsewhere. Colleague VT stated that, “I shared my concern that [the Registrant] had not been able to independently establish that she had not read all the information regarding the operation procedure and demonstrate the knowledge to look for an operation note placed somewhere else within the notes.” This concern was also highlighted in the Statement of Clinical Capability Concerns that was before the Panel.

291. The Registrant admitted this factual allegation, stating in oral evidence, “I admit that [Colleague VT] asked me to look at the operation notes.” She accepted in her First Statement that Colleague VT asked why she had not checked the patient’s typed operation note and the Registrant explained that she had not done so because Enhanced Recovery had not been indicated on the note in the patient’s pathway. The Registrant accepted the fact that this blank page could have put her on notice to look elsewhere. She said that she was aware that consultants sometimes use typed operation notes.

292. In light of all of the evidence before the Panel, including the Registrant’s admission, the Panel found this sub-particular of the Allegation proved.

Particular 20(b)

293. The Panel noted and accepted the evidence of Colleague VT that the post-operative plan was ambiguous in that the surgeon had requested immobilisation of the patient for 24 hours but had also asked for enhanced recovery protocol rehabilitation. In Colleague VT’s view, she would have expected the Registrant to discuss this contradiction with her, “as this would have called for a more senior decision. Instead, prior to me joining the scene, the Registrant was making decisions not to treat that day based on the blank page.” Colleague VT said that she was “shocked” and did not comprehend the Registrant’s conclusion from the Operation Pathway notes (the blank page), asking her to repeat it. Her evidence to the Panel was that, “I found it amazing that there was no appreciation that the document had not been utilised by the surgeon.” Colleague VT further explained that, “my concern is that we didn’t even get to the operation notes. The Registrant was drawing her conclusion based on what she was showing me which was the Operation Pathway blank page.”

294. The Registrant denied this factual allegation. She stated that she recognised that there were contradictions in the typed operation note, that she pointed this out to Colleague VT and not putting the patient on the list was an appropriate response. The Registrant contended that, “the patient was not for treatment at that time and I was simply compiling a list rather than treating them. Had the patient to be for treatment, I would have checked the whole note.”

295. On balance, the Panel preferred the evidence of Colleague VT in this regard and determined that it was more likely than not that the Registrant neither recognised nor responded to the contradiction in the surgical notes. Accordingly, the Panel was satisfied that the HCPC had established factual sub-particular 20(b) to the required standard.

Decision on Grounds:

296. The Panel went on to consider, on the basis of the facts found proved, whether the statutory grounds of misconduct and/or lack of competence were established. The Panel noted that there is no burden or standard of proof at this stage. It bore in mind the Registrant’s acceptance, at the outset of the hearing, that admitted factual particulars 6(a)(b)(c)(d), 7(c) and 15(c) amounted to the statutory ground of lack of competence, but the Panel exercised its own professional judgement in determining the matter, keeping at the forefront of its consideration the overarching objectives of the HCPC.

297. Ms Sheridan provided written submissions on the statutory grounds and addressed the Panel in relation to both lack of competence and misconduct. Ms Sheridan submitted that lack of competence was the appropriate statutory ground to be applied in this case in light of the evidence. Ms Sheridan referred to the relevant HCPC Standards of Proficiency for Physiotherapists (2013) as being paragraphs 1, 2, 3, 4, 8, 10, 11, 14 and 15. In respect of particulars 1-4, she referred to paragraphs 1, 5, 6, 7, 10 and 12 of the HCPC Standards of Conduct, Performance and Ethics (2012); in respect of particulars 5-20, Ms Sheridan submitted that paragraphs 1, 2, 3, 6, 9 and 10 of the HCPC Standards of Conduct, Performance and Ethics (2016) were engaged.

298. Mr Henry submitted that the Registrant accepted that there were failings in her clinical practice and that she understood the seriousness of these failings. Mr Henry did not make any specific submissions on the distinction between misconduct and lack of competence, but submitted that the Registrant accepted that the standard of her practice was below what was expected, but it was for the Panel to determine if it was well below the required standard.

299. The Panel accepted the advice of the Legal Assessor, who reminded it of the guidance in relation to misconduct and lack of competence and referred the Panel to Roylance v GMC (No. 2) [2000] 1 AC 311, R (Calhaem) v GMC [2007] EWHC 2606 (Admin) and Holton v GMC [2006] EWHC 2960 (Admin). The Legal Assessor advised the Panel that, in order to find lack of competence, it would need to have considered a fair sample of the Registrant’s work and that it should consider whether the Registrant had the knowledge, skills and judgment to practise safely. Lack of competence could be distinguished from misconduct in that it indicated an inability to work at the required level and connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances), has been demonstrated by reference to a fair sample of a Registrant’s work. Misconduct, on the other hand, was a different ground and required a serious departure from the proper professional standards that had caused or could cause real harm to patients, the public, or the wider public interest. The Legal Assessor reminded the Panel that a breach of the professional standards alone does not necessarily constitute misconduct.

300. The Panel concluded that the Registrant’s actions breached the following paragraphs of the HCPC Standards of Conduct, Performance and Ethics (2012 and 2016):

2012

1 You must act in the best interests of service users.

7 You must communicate properly and effectively with service users and other practitioners.

2016

2.6 You must share relevant information, where appropriate, with colleagues involved in the care, treatment or other services provided to a service user.

6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.

6.2 You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.

The Panel also concluded that the Registrant breached the following Standards of Proficiency for Physiotherapists (May 2013):

1.1 know the limits of their practice and when to seek advice or refer to another professional

2.1 understand the need to act in the best interests of service users at all times

4.1 be able to assess a professional situation, determine the nature and severity of the problem and call upon the required knowledge and experience to deal with the problem

4.2 be able to make reasoned decisions to initiate, continue, modify or cease techniques or procedures, and record the decisions and reasoning appropriately

4.3 be able to initiate resolution of problems and be able to exercise personal initiative

4.5 be able to make and receive appropriate referrals

8.1 be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, colleagues and others

8.5 be aware of the characteristics and consequences of verbal and non-verbal communication and how this can be affected by factors such as age, culture, ethnicity, gender, socio-economic status and spiritual or religious beliefs

10.1 be able to keep accurate, comprehensive and comprehensible records in accordance with applicable legislation, protocols and guidelines

14.3 be able to gather appropriate information

14.4 be able to select and use appropriate assessment techniques

14.5 be able to understand and record a thorough, sensitive and detailed assessment, using appropriate techniques and equipment

14.7 be able to analyse and critically evaluate the information collected

14.9 be able to demonstrate a logical and systematic approach to problem-solving

14.10 be able to use research, reasoning and problem solving skills to determine appropriate actions

14.11 be able to formulate specific and appropriate management plans including the setting of timescales

14.12 be able to apply problem solving and clinical reasoning to assessment findings to plan and prioritise appropriate physiotherapy

14.13 recognise the need to discuss, and be able to explain the rationale for, the use of physiotherapy interventions

14.14 be able to set goals and construct specific individual and group physiotherapy programs

14.17 know how to position or immobilise service users for safe and effective interventions

14.18 be able to select and apply safe and effective physiotherapy specific practice skills including manual therapy, exercise and movement, electrotherapeutic modalities and kindred approaches

301. The Panel had careful regard to the context and circumstances of the matters it found proved. The Panel took into account that the Registrant was subject to informal and formal Capability Procedures at the Trust for approximately two years (including a period of suspension) and that, therefore, the Trust was dealing with concerns about the Registrant’s practice as competency issues. Despite ample opportunity and support to address the concerns with her practice - including extensive one-to-one supervision, adjusted working hours, allocated time during the day for dedicated non-clinical time and adjustments made to the supervision process to respond to her feeling under pressure - the Registrant continued to demonstrate instances of unsafe practice that put patients at risk of harm and failed to consistently demonstrate adequate clinical reasoning. Balanced against this, however, the Panel bore in mind the Registrant’s evidence in her Second Statement that, “Prior to my employment at UHNM, I had never had any complaint about my ability to work as an autonomous physiotherapist, instead I got good feedback for my knowledge, skills and character.”

302. The Panel first considered whether the facts proved amounted to a lack of competence. The Panel considered that it had been provided with a fair sample of the Registrant’s practice over a period of time, in that the material before it related to a two-year timeframe, from May 2015 to June 2017, and comprised 20 service users. The evidence within the bundles and the oral evidence given by the 9 Trust witnesses for the HCPC and by the Registrant herself also supported that the case, as set out in the Allegation, represented a fair sample of the Registrant’s work.

303. When considering whether the Registrant’s proficiency in practice had been found to be unacceptably low, the Panel judged the Registrant on the basis of her role as a Band 5 Physiotherapist, which was summarised in her job description as: “Examining, treating and advising patients, their relatives and carers under the guidance of a higher grade physiotherapist.”

304. The Panel found that the evidence indicated that there were four key areas in which the Registrant’s practice and performance were unacceptably low:

• Failing to recognise signs and symptoms during assessment or intervention that should have indicated an action was required to prevent or manage a situation;
• Failing to consistently read and interpret medical notes including post-operative instructions and applying those instructions whilst identifying any conflicting or missing information;
• Failing to demonstrate the ability to consistently and independently operate at a safe level of practice and escalate accordingly; and
• Poor time management and the consequent rushing of patient treatment sessions/taking shortcuts.

305. The Registrant was involved in treating, and was often the lead clinician (under supervision) for, service users who were extremely vulnerable and often acutely unwell. Although the Panel found evidence in the documentation of some good practice by the Registrant, she demonstrated a lack of knowledge throughout her work at the Trust and made similar mistakes, despite being corrected and guided through the process. For example, in respect of particulars 1, 3, 4, 11, 14, 20, the Registrant failed to read, interpret or act on the information recorded within the medical notes. In respect of particulars 4, 11, 12, 13, 15, 19, she appeared to be conducting her assessments without proper regard to and/or responding to the demeanour and behaviour of her patients.

306. The Panel was of the view that the need to read, interpret and act upon the information recorded in the medical notes, to escalate where necessary, and to conduct appropriate assessments was set out in the Registrant’s job description. Those aspects of her role formed part of the core set of competencies for Physiotherapists, emphasised and underlined by the training the Registrant received at the Trust and reiterated in her supervisions, and was fundamental to the work undertaken by Physiotherapists in respect of service users in whatever capacity. Collectively, failures to read and interpret medical notes, to escalate and to undertake proper assessments and interventions may have left the service users’ needs unidentified and therefore unsupported, which had the potential to cause a stagnation in their treatment and deterioration in their health. Furthermore, the Registrant’s failure to report information to other staff or departments could have put service users at risk of harm.

307. The Panel took account of the fact that although the Registrant worked in a challenging environment, she had a significantly reduced caseload and had been provided with a great deal of support and assistance. In the Panel’s judgment, the Registrant was unable to consistently meet the standards required of her in her role throughout the relevant time and her proficiency in professional practice fell well below the minimum acceptable level of a Band 5 Physiotherapist, working in the circumstances faced by her at that time. In the Panel’s view, her clinical judgment was poor, and she did not manage to fulfil the fundamental responsibilities that she had towards her service users and colleagues. In the circumstances of the case, the Panel therefore concluded that the Registrant was not competent to work as a Band 5 Physiotherapist to the required standard and that the lack of competence was well founded in respect of particulars 1(b), 1(c), 2(c), 2(e)(i), 2(f)(iii), 3(a), 3(c), 4(c), 4(d), 6(e), 7(a), 8(b), 8(c), 11(a), 11(b), 12(a), 12(b), 12(c), 13(a), 13(b), 13(c), 14(a), 15(a), 15(b), 15(c), 15(d), 16, 17(a), 17(b), 18(c), 19, 20(a), 20(b).

308. The Panel next considered whether any of the remaining facts it had found proved could amount to the statutory ground of misconduct. The Panel was aware that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC standards, would be sufficiently serious such as to amount to misconduct in this context. The Panel exercised its professional judgment and was mindful of the guidance in the Roylance case. It also considered Nandi v GMC [2004] EWHC 2317 where the court said misconduct was “conduct which would be regarded as deplorable by fellow practitioners”. In Meadow v GMC [2007] 1 All ER 1 the court said that misconduct should not be viewed as anything less than “serious professional misconduct”. The Panel was mindful that misconduct must be sufficiently serious misconduct in the exercise of professional practice that it can be properly described as misconduct going to fitness to practise.

309. The Panel concluded that its factual findings in relation to particulars 4(b), 8(a), 10(b), 14(c) and 18(b) were not sufficiently serious to amount to misconduct.

310. The Panel was of the view, however, that the facts it had found proved in particulars 1(a), 2(a), 3(b), 4(a), 5(a), 5(b), 5(c), 6(a), 6(b), 6(c), 6(d), 7(c) and 9, amounted to misconduct. The Panel took the view that, in relation to these incidents, the Registrant was aware of the standards expected of her but failed to adhere to them. By way of example, in relation to particular 2(a) and the Registrant’s failure to adequately consider Service User 24’s medical notes and/or history, the evidence before the Panel was that the Registrant knew that she needed to read the notes, intended to do so, but did not, which the Panel concluded was behaviour that fell seriously short of what was proper in the circumstances. In relation to particulars 4(a) and 5(c), concerning service users who were acutely unwell, the Panel considered that the Registrant knew that a handover was required, that the importance of handovers had been discussed with her previously, but she disregarded that advice and did not put the patients first. The Panel was in no doubt that the Registrant’s practice in relation to particular 5(a), where the Registrant was the treating clinician, did not reconnect Service User 20’s oxygen delivery device to the wall oxygen supply and attempted to deflect blame to Colleague SW, would be considered by fellow registrants to be nothing short of deplorable and was sufficiently serious to amount to misconduct. In relation to particular 7(c), the Panel was of the view the Registrant’s failure to act upon the telephone call made by the 86-year-old patient to express the extent of her pain and the impact that this was having upon her, was a basic and serious failing, and that there was no reason to expect that the Registrant did not have knowledge or skill to take the required action. The Panel was confident that her conduct on that occasion would be regarded as deplorable by fellow registrants. The Panel further considered that in relation to particular 9 when, again, the Registrant failed to take appropriate action after Service User 4 reported concerns about his shoulder wound which had burst, the Registrant demonstrated a fundamental lack of patient-centred care and placed the patient at serious risk of harm which, again, the Panel was in no doubt would be regarded as deplorable by fellow practitioners.

311. The Panel was of the view that the Registrant’s actions and inactions found proved in particulars 1(a), 2(a), 3(b), 4(a), 5(a), 5(b), 5(c), 6(a), 6(b), 6(c), 6(d), 7(c), and 9 were serious, fell far below the standards expected of the Registrant and amounted to misconduct.

Decision on Impairment:

312. The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of her lack of competence and/or her misconduct.

313. The Registrant chose not to give additional evidence at this stage of the hearing. Through her legal representative, Mr Henry, the Registrant accepted current impairment on both the personal and public components.

314. Ms Sheridan submitted that the Registrant’s fitness to practise was and remains impaired. In terms of insight, she submitted that the evidence provided by the Registrant at the previous stages of the hearing demonstrates very little understanding of her failings and does not amount to evidence of sufficient, developed insight. Although Ms Sheridan acknowledged that the Registrant made some admissions to the charges, she submitted that, during the course of the hearing, the Registrant suggested that, in respect of a number of clinical incidences, either her colleagues were mistaken in their recollections, or that she had not been given sufficient training by her employer. Ms Sheridan further submitted that, at times during her oral evidence, the Registrant was evasive, unwilling to accept responsibility for basic errors and was unable to provide a proper explanation for her failings. Ms Sheridan reminded the Panel of Colleague CB’s evidence that, at the conclusion of the Formal Capability Process, the Registrant had, “no recognition around our concerns, no willingness to take on board the clinical reasoning or evidence in front of her that helped paint a picture, no willingness to undertake or accept there might be some learning needs which is quite scary after the process we’d been through...In the 2017 hearing I asked [the Registrant] how she thought her practice was and she said ‘Grade A’.”

315. Ms Sheridan submitted that the extent of the Registrant’s remediation and remedial steps was “a consideration of great importance” for the Panel and that there was “very little” evidence before it to demonstrate that the Registrant has taken action to address her failures in a manner which remedies any past harm and avoids any future repetition. She reminded the Panel that the Registrant was subject to informal and formal Capability procedures at the Trust for approximately two years and that, in spite of ample opportunity and support, she failed to demonstrate the core set of competencies for Physiotherapists and made a number of basic, serious failings that put patients at risk of harm. In respect of the factual particulars that the Panel found amounted to misconduct, Miss Sheridan submitted that the Registrant has not provided a proper explanation as to why those failings occurred.

316. Mr Henry told the Panel that the Registrant accepts the findings of the Panel thus far. He asked the Panel to consider the context in which these matters arose - that the Registrant started as a Band 5 Physiotherapist who required training; that she accepts making mistakes during that training; that the Registrant completed the Trust’s first Capability Process but made further mistakes; and that, although the Registrant began the second formal Capability Process, she did not complete it prior to the termination of her employment. Mr Henry said that the Registrant also accepts that, since her employment at the Trust ended, she has not been able to work as a Physiotherapist and has not been able to carry her own caseload to demonstrate remediation.

317. Mr Henry invited the Panel to take into account a number of documents submitted into evidence by the Registrant from fellow practitioners, attesting to the Registrant’s good practice in 2015 and 2016. He also referred the Panel to a letter dated 1 August 2018 from a senior Physiotherapist whom the Registrant observed on five separate occasions in 2018, with a view to improving her own clinical reasoning and confidence to treat patients with musculoskeletal complaints. Mr Henry submitted that this demonstrated that the Registrant has “some insight” into her deficiencies which, he said, could be described as “developing insight”. With regard to remediation, Mr Henry submitted that the deficiencies identified are remediable but that, to date, it has been “impossible for [the Registrant] to take remedial action.” As such, he accepted on his client’s behalf that there is a risk of repetition.

318. The Legal Assessor referred the Panel to the HCPTS Practice Note ‘Fitness to Practise Impairment’ (December 2019) and to the guidance on the assessment of impairment and consideration of the public interest in the case of CHRE v NMC and Grant [2011] EWHC 927 (Admin). She reminded the Panel that it should consider the Registrant’s insight, her remorse, any steps taken to remediate and the risk of repetition of the behaviour leading to the facts found proved. The Panel should at all times keep at the forefront of its mind the central importance of the need to protect the public and the wider public interest.

319. The Panel had careful regard to all of the evidence before it and to the submissions of both parties. It accepted the advice of the Legal Assessor and had particular regard to the HCPTS Practice Note “Fitness to Practise Impairment.” The Panel had to consider whether the past misconduct and/or lack of competence leads to the Registrant’s fitness to practise being impaired now. Although the test of impairment is expressed in the present tense in relation to the need to protect the public against the acts and omissions of those who are not fit to practise, this cannot be achieved without taking account of the way a person has acted or failed to act in the past. There are two component parts of the test for impairment. First, there is what may be termed the personal component of this decision. The Panel should consider the proven past misconduct together with all the other evidence the Panel has in respect of the Registrant (for example, insight, any evidence of the remedying of the deficiencies, the risk of repetition, and the risk to the public presented by any repetition of misconduct). Second, the Panel must also consider what may be termed the public component, namely, what would be the effect of not finding current impairment on the wider public interest? That wider public interest includes the maintenance of public confidence in the profession and its regulator and the declaring and upholding of proper standards of conduct.

320. The Panel adopted the approach formulated by Dame Janet Smith in her Fifth Shipman report of the Shipman Inquiry by asking itself the following questions:
Do our findings of fact in respect of the Registrant’s misconduct and/or lack of competence show that her fitness to practise is impaired in the sense that she:

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

b) has in the past brought and/or is liable in the future to bring the Physiotherapist profession into disrepute; and/or

c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession; and/or

d) has in the past and/or is liable in the future to act dishonestly?

321. In all these circumstances, the Panel determined that limbs (a), (b) and (c) were engaged in this case. It considered that the Registrant had, in the past, placed patients/service users at unwarranted risk of harm, had brought her profession into disrepute and breached fundamental tenets of promoting and protecting the interests and safety of patients and managing risk. In considering whether she would be liable in the future to place patients at unwarranted risk of harm, to bring the profession into disrepute or to breach one of the fundamental tenets of the profession, the Panel had careful regard to matters of insight, remorse and remediation and the risk of repetition.

322. The Panel first considered whether the Registrant had demonstrated any remorse for her failings. The Panel was of the view that the limited remorse demonstrated by the Registrant was qualified and self-focused. For example, the Registrant stated that she regretted that she had not asked for additional training at the Trust. Further, the Panel reminded itself that, in relation to Service User 20, and the failure to reconnect the oxygen supply to the wall, the Registrant had appeared to try to deflect the blame to her colleague, telling the Panel that her greatest regret about the incident was that she was unaware that her colleague did not notice that the non-breathe mask was connected to the portable oxygen. The Panel was not able to identify patient-focused reflection and remorse on the Registrant’s part.

323. The Panel next considered the Registrant’s level of insight into her failings. It took into account the HCPTS guidance around insight, particularly that, “Insight is a registrant’s genuine understanding and acceptance of the concerns which have been raised in relation to their conduct.” In making admissions to some of the factual charges and acknowledging that, in relation to some of her admissions, she did not perform to the standard required of her, the Panel considered that the Registrant had demonstrated a very limited degree of insight. However, in the Panel’s view, what was missing on the Registrant’s part was any demonstrated understanding of the extent to which patients under her care were exposed to risk of harm. The Panel had serious concerns about the Registrant’s professional abilities and judgment and considered that, on the information before it, the Registrant has by no means fully accepted the severity of her failings and her responsibilities to patients, colleagues, her employer and the profession. The Panel was of the view that it had no evidence of deep reflection on the Registrant’s part and that the focus of the Registrant’s written representations was on her position, the strain caused to her by the Trust’s Capability Processes, and her own personal challenges, rather than the impact of her actions and omissions upon patients. The Panel considered that the Registrant’s written statements and oral evidence failed to show a well-developed level of insight and reflection and concluded that she had demonstrated minimal insight thus far.

324. The Panel next had careful regard to Silber J’s guidance in Cohen v General Medical Council [2008] EWHC 581 (Admin) that panels should take account of:

• whether the conduct which led to the charge is easily remediable;
• whether it has been remedied; and
• whether it is highly unlikely to be repeated.

325. The Panel was mindful that the Registrant has not worked as a registered Physiotherapist since she left the Trust. Save for a qualification completed by the Registrant in 2018 in relation to Dementia Care, the Panel had no evidence before it of any training or re-training and only minimal continuing professional development undertaken by her. In light of all the information before it, the Panel found no evidence of remediation of either the Registrant's misconduct or her lack of competence. In the circumstances there is inevitably a risk of repetition of the serious shortcomings of the sort that have been found by the Panel in the present case. This conclusion results in a finding of current impairment of fitness to practise in relation to the personal component.

326. The Panel then went on to consider whether a finding of impairment is necessary on public interest grounds. In addressing this component of impairment, the Panel had careful regard to the critically important public issues identified by Silber J in the case of Cohen when he stated, “Any approach to the issue of whether.... fitness to practise should be regarded as ‘impaired’ must take account of…the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour.” The Panel was satisfied that, given the number of failings, their potential seriousness and the present risk of repetition, informed members of the public would be dismayed at the prospect of the Registrant being permitted to practise without restrictions. It considered that a reasonable and informed member of the public would be concerned if there were no finding of impairment in a case where a registrant’s pattern of serious errors had put patients at risk of unwarranted harm. The Panel also considered that the need to declare and uphold proper standards of conduct and behaviour required that same conclusion. Public confidence in the Physiotherapist profession and in the regulation of that profession would be seriously diminished were no finding of current impairment of fitness to practise made.

327. Accordingly, the Panel determined that the Registrant's fitness to practise is currently impaired on both the personal and public components.

Decision on Sanction:

328. The Registrant gave sworn evidence at this stage of the hearing. She asked the Panel to take into account her written “Reflections” statement which, she confirmed, set out her current position. Mr Henry referenced the part of the statement in which the Registrant set out her plans to “brush up” her skills in six identified areas (Trainings, Communication, Assessments, Treatment, Notes and Self-development) and the Registrant explained, by referring to the particular incidents that had formed the basis of the HCPC referral, how and why she fell short, the consequential impact and risks of falling short, and what she would change going forward.

329. The Registrant told the Panel that, on many occasions, it was her anxiety and fear, exacerbated by being subject to the Trust’s Capability processes and under direct supervision, that caused the problems, rather than it being a question of her not knowing what to do, stating, “I was trying not to lose my job.” The Registrant told the Panel that, contrary to the Panel’s belief that she had not demonstrated remorse, she had in fact suffered a good deal of distress when thinking about the pain, both physical and emotional, that she had caused to several patients in her care (citing Service Users 1, 2 and 4 by way of example.)

330. The Registrant addressed the Panel in relation to the difficulties that she has had in undertaking professional development activities after leaving the Trust. She explained that, save for attending an MSK clinic in an observational role and undertaking a course in Dementia care, both the interim order on her practice and the difficulties with her immigration status and visa, had meant that she was unable to secure a “hands-on” role. Further, the Registrant told the Panel that she had made enquiries into professional courses but that these had been prohibitively expensive, including an adaptation course costing £1400. She said that she felt “paralysed” by her inability to move forwards. With regard to her future intentions, the Registrant explained that she would like to work in a non-acute setting, that her professional interest lies in elderly or intermediate care and that she had received positive feedback in that area prior to her employment at the Trust.

331. The Registrant said that she wished to apologise to the Panel. She said that she had always taken full responsibility for her actions and that she was “devastated” by the death of Service User 20. She reiterated that it had been very difficult for her to remediate her practice, having not been allowed to work in a clinic, that she hoped to work-shadow in the first instance and asked the Panel to be “merciful” in making its decision on sanction.

332. In cross-examination, the Registrant accepted that the six identified areas for improvement encompassed the core competencies of a registered Physiotherapist. She accepted that “some” (but not all) of the areas had been covered in the Trust’s formal and informal Capability processes but said that a Capability process was not a normal way of learning and that “lots of what happened happened out of fear.” She further stated that the fact that she did not perform well in some specialist areas “does not mean that I can’t perform well in another.” In relation to the current interim conditions on her practice, in place since October 2018, the Registrant said that the condition requiring direct supervision by a Band 6 Physiotherapist or above “has made it impossible for employers.” She said that she believed that she would be safe to work without direct supervision if she were to ease into clinic sessions by work-shadowing and then progressing to take on responsibilities. She assured the Panel that she was aware of her limitations and that it could trust her.

333. The Panel invited the parties to address it as to sanction.

334. Ms Sheridan referred the Panel to the Sanctions Policy (SP) adopted by the HCPC. She reminded the Panel that the purpose of imposing a sanction was not to punish the Registrant but to ensure that the public was protected, to promote public confidence in the profession and to provide a deterrent to other registrants. The Panel should address the sanctions in ascending order and identify the most appropriate and proportionate means of addressing the concerns identified, acknowledging that this was a matter for the Panel’s judgment. Ms Sheridan addressed each of the possible sanctions in turn. Following the Registrant’s comments in relation to her current interim conditions and what the Registrant considered to be the “impossibility” of securing work as a registered Physiotherapist under direct supervision, Ms Sheridan reminded the Panel of paragraph 115 of the SP that, “Where the panel believes that stringent conditions are required, and it has concerns these effectively suspend the registrant’s practice, it should consider whether or not conditions are an appropriate sanction...If it is not able to draft workable conditions that achieve this, it may need to consider imposing a suspension order.” Finally, Ms Sheridan referenced the judgment in Bolton v The Law Society [1994] WLR 512, in which Sir Thomas Bingham said, “the reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price.”

335. Mr Henry submitted that the SP is “general guidance,” that it is not possible to “shoe-horn every case into the Policy” and that the Panel should take into account all of the circumstances of this particular case, highlighting the Registrant’s challenges with her health and visa status. He reminded the Panel of the evidence before it of positive feedback about the Registrant’s practice, including her “contributing fully to team development”, although he acknowledged that this was from a period prior to the Registrant’s employment at the Trust. Mr Henry said that this evidence suggests that the Registrant is willing to address issues and “pro-actively better herself” such that the Panel could have some confidence that she would take the steps that she says she will. He reminded the Panel that as she has been out of practice for 4 years, the Registrant will be required to undertake a Return to Practice course, which will, of itself, require 30 days of “updating” and “upskilling”.

336. Mr Henry conceded that, in light of the Panel’s findings, it may determine that the sanctions of no further action or a Caution Order may not be appropriate in this case. In relation to a Conditions of Practice Order, Mr Henry asked the Panel to consider the workability of direct supervision over an indefinite period and submitted that any requirement for direct supervision would need to be time-limited, “in order to convince an employer to take [the Registrant] on.” In relation to the SP guidance around a Striking-off Order, Mr Henry submitted that the Registrant has faced the concerns, is willing to resolve matters, and has attempted to take steps to remedy her failings but has been defeated by funding issues.

337. The Panel heard and accepted the advice of the Legal Assessor who advised it to firstly consider whether any sanction was necessary and, if it was, to consider sanctions in ascending order, settling with the least restrictive that met the Panel’s concerns. When determining the appropriate level of sanction, the Panel must be proportionate so that the sanction:

a) is appropriate in the circumstances;

b) secures the protection of the public;

c) takes account of the wider public interest;

d) is the least restrictive means of securing public protection;

e) is proportionate and strikes a proper balance between the rights of the Registrant and the protection of the public.

338. The Legal Assessor reminded the Panel that although it was not open to it to strike the Registrant from the HCPC Register on the basis of her lack of competence, all sanctions were available to the Panel in this case in light of its findings on the statutory ground of misconduct. She advised the Panel that it could only make a striking-off order if it decided that the Registrant’s misconduct (not her lack of competence) was sufficiently serious to justify such an order.

339. In considering the appropriate and proportionate sanction in this case the Panel considered the guidance set out in the HCPC Sanctions Policy. The starting point for the Panel was that the Registrant’s misconduct and lack of competence were extremely serious and repeated; her actions and inactions either caused actual harm to those in her care or placed patients at risk of harm. Crucial to the Panel’s consideration, in light of the numerous serious breaches and the wide nature of her failings, was the Registrant’s ongoing lack of insight. The Panel considered very carefully the HCPC’s description of insight as:

“a registrant’s genuine understanding and acceptance of the concerns which have been raised in relation to their conduct or competence. It is likely to be demonstrated by:

• a genuine recognition of the concerns raised;
• an understanding of the impact or potential impact of their actions; and demonstrable empathy for the service user(s) involved.”

In the Panel’s view, even at this sanction stage, the Registrant has not demonstrated any appreciable insight into her lack of competence and misconduct, and their possible effects on patients, colleagues, the Trust and her profession. The Panel considered that the Registrant continues to demonstrate a lack of genuine recognition of the concerns raised and that, although in evidence she said that she was answering questions asked of her by referencing the specific incidents and patients concerned, her answers were theoretical and lacked substance. Moreover, the Registrant has accepted that she has not remediated her failings and, in the Panel’s view, she has not addressed them in any meaningful way. As such, the Panel concluded that she continued to pose a current risk of harm to the public and the wider public interest.

340. The Panel identified the following mitigating factors in this case:

• the Registrant has no previous regulatory findings against her;
• the Registrant made a number of admissions at the outset of the hearing (although a number of these admissions were then qualified by the Registrant in oral evidence.)

341. The Panel then looked at the aggravating factors and identified the following:

• the Panel considered the principal aggravating factor in this case to be the actual and potential harm caused to a significant number of patients by the Registrant’s actions and inactions, with a further impact upon their families and carers;
• the shortcomings identified were wide-ranging, in fact covering all of the core competencies of a registered Physiotherapist and spanned a two-year period;
• the lack of competence and misconduct was repeated as there were several similar breaches, despite the Registrant being subject to the Trust’s Capability processes, both informal and formal, over a sustained period;
• moreover, the Panel was appalled by the Registrant’s attempts, in evidence, to deflect blame in relation to a number of the incidents, especially that involving Service User 20;
• ongoing lack of insight;
• no remediation.

342. The Panel considered the available sanctions in ascending order of seriousness. A Caution Order is appropriate in cases where the failing is isolated, relatively minor in nature or where the risk of recurrence is low. The Panel was in no doubt that taking no action or imposing a Caution Order would not be appropriate or proportionate, given the seriousness of the lack of competence and misconduct concerned, which involved both actual harm and the potential of harm to patients. The lack of competence and misconduct were not isolated incidents and could not be described as relatively minor - the Panel viewed them as very serious. The Panel has found that there is a significant risk of repetition such that a Caution Order would be inappropriate in this case and would not protect the public or satisfy the public interest. In these circumstances, the Panel considered that to protect the public and ensure that public confidence in the profession is not undermined, it must consider a more serious sanction.

343. The Panel considered a Conditions of Practice Order and, in particular, the matters set out in paragraph 106 of the Sanctions Policy which states:

“A conditions of practice order is likely to be appropriate in cases where:

• the registrant has insight;
•  the failure or deficiency is capable of being remedied;
• there are no persistent or general failures which would prevent the registrant from remediating;
• appropriate, proportionate, realistic and verifiable conditions can be formulated;
• the panel is confident the registrant will comply with the conditions;
• a reviewing panel will be able to determine whether or not those conditions have or are being met;
• the registrant does not pose a risk of harm by being in restricted practice”.

344. The Panel has found that the Registrant has not demonstrated appreciable insight into her shortcomings and that the matters found proved in this case are persistent and general failures which would, in the Panel’s view, prevent the Registrant from remediating. The Panel also noted that Conditions must be workable and measurable and there must be a potential for meaningful compliance. The Panel bore in mind that the Registrant was subject to conditional practice at the Trust over a lengthy period and was unable to demonstrate sustained improvement; further that she has been subject to interim Conditions of Practice since October 2018 and has addressed the Panel in relation to her belief that a requirement for ongoing direct supervision in the workplace is unworkable. It considered that the concerns are so broad and wide-ranging in this case that Conditions could not be formulated to adequately address the risks posed by the Registrant. Further, the Panel determined that Conditions of Practice, in the current circumstances, would not address the public interest and the need to uphold standards and declare proper standards of conduct and behaviour.

345. The Panel went on to consider whether a period of suspension would be appropriate in this case. It took account of the relevant paragraphs in the Sanctions Policy, including paragraph 121 which states:

“A suspension order is likely to be appropriate where there are serious concerns which cannot reasonably be addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register.”

346. The Sanctions Policy sets out that a period of suspension would be appropriate in circumstances where the misconduct and/or lack of competence is of a serious nature, but where “the registrant has insight”, “the issues are unlikely to be repeated,” and “there is evidence to suggest that the registrant is likely to be able to resolve or remedy their failings.” Apart from the fact that the misconduct concerns identified represent serious breaches of the Standards of conduct, performance and ethics, in other respects the circumstances of this case did not meet the suggested factors. The Panel bore in mind the Registrant’s stated willingness to remedy her misconduct and lack of competence and balanced this with what the Panel considered to be a woeful lack of insight and genuine understanding around the severity of the concerns. Fundamentally, the Panel concluded that the Registrant was incapable of gaining insight into her misconduct and lack of competence. Furthermore, there was no evidence to suggest that the Registrant is likely to be able to resolve or remedy her failings. The Panel therefore rejected the making of a Suspension Order as appropriate disposal.

347. It followed from the rejection of other lesser sanctions that the Panel considered whether a Striking Off Order should be made, mindful that it could only impose this sanction of last resort in relation to the misconduct it had found, not the lack of competence. In the Panel’s judgment, the seven incidences of misconduct, over an 18-month period, were very serious and were underscored by a lack of insight on the Registrant’s part. It was this lack of appreciable insight, prior to and throughout the course of this lengthy hearing, that caused the Panel to conclude that the misconduct was not capable of being remedied by the Registrant and, as such, was fundamentally incompatible with ongoing registration. The Panel recognised the significant impact such a sanction has upon a registrant but is nonetheless persuaded that, in all the circumstances, no lesser sanction would be sufficient to protect the public, nor would a lesser sanction sufficiently address public confidence or the need to declare and uphold proper professional standards. Taking all these factors into account, the Panel decided that the appropriate and proportionate sanction in this case is striking off.

Order: The Registrar is directed to strike the registration of Miss Obianuju Onuigbo from the register from the day this Order comes into effect.

Determination on Interim Order

1.The Panel heard an application from Ms Sheridan to cover the appeal period by imposing an 18-month interim suspension order on the Registrant’s registration. She submitted that such an order is necessary to protect the public and is otherwise in the public interest.

2. Mr Henry said that he had no observations in relation to the application.

3. The Panel heard and accepted the advice of the Legal Assessor. It had careful regard to Paragraphs 133-135 of the SP and to Paragraph 7 of the HCPTS Practice Note on Interim Orders, which offers guidance on interim orders imposed at final hearings after a sanction has been imposed.

4. The Panel recognised that its power to impose an interim order is discretionary and that the imposition of such an order is not an automatic outcome of fitness to practise proceedings in which a Striking Off Order has been imposed, and that the Panel must take into consideration the impact of such an order on the Registrant. The Panel was, however, mindful of its findings in this case, the significant public protection concerns and the risk of repetition.

5. The Panel decided to impose an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001. The Panel was satisfied that an interim suspension order is necessary for the protection of the public and is otherwise in the public interest. In reaching its decision to impose an interim order, the Panel has had regard to the nature and gravity of the conduct it has found proved, the Registrant’s lack of insight and remediation, and the resulting public protection concerns and the full reasons set out in its decision for the substantive order. In the circumstances, it also considered that public confidence in the profession and the regulatory process would be seriously undermined were the Registrant allowed to remain in practice as a Physiotherapist during the appeal period.

6. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined.

7. If no appeal is made, then the interim order will be replaced by the Striking Off Order 28 days after the Registrant is sent the decision of this hearing in writing.

8. That concludes this determination.

 

History of Hearings for Obianuju Onuigbo

Date	Panel	Hearing type	Outcomes / Status
02/11/2021	Conduct and Competence Committee	Final Hearing	Struck off