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As a registered Chiropodist / Podiatrist (CH21903) your fitness to
practise is impaired by reason of misconduct, in that:
- On one or more occasions between April 2018 and May 2019, you
provided clinical treatment to patients at a private clinic whilst signed
off on long term sick leave from your employer.
- On one or more occasions between April 2018 and May 2019 you put
patients at risk by practising whilst considered not fit to work by
- Between April 2018 and May 2019, you received money for working in
a private clinic in addition to receiving sick pay from your employer.
- In a meeting on 15 April 2019, you initially said you had not been
working at a private clinic whilst on long term sick leave, when this was
not the case.
- In a disciplinary hearing on 28 June 2019, you were not forthcoming
about details of working in a private clinic whilst on long term sick
- Your conduct in relation to particulars 1, 2, 3, 4 and 5 was dishonest.
- The matters set out in particulars 1, 2, 3, 4, 5 and 6 constitute
- By reason of misconduct your fitness to practise is impaired.
Amendment of Allegation
- Mr Tarbert, on behalf of the HCPC, applied to amend the Allegation. He submitted that the amendments sought were consistent with the evidence, and that they served to clarify the allegation by giving further and better particulars and also served to limit the case against the Registrant. One of those amendments was to delete factual particular 3 from the Allegation.
- Mr Buxton, on behalf of the Registrant, did not object to the amendments.
- The Panel accepted the advice of the Legal Assessor, who advised that it was open to the Panel to amend the allegation, provided the Panel was satisfied that no injustice would be caused by the amendments. The Panel considered that the amendments sought did not change the substance of the allegation. The amendments did clarify the allegation and would not cause injustice, as it is always preferable that allegations are as clear as possible so that registrants are clear what is alleged against them in order for them to respond. The Panel therefore allowed the amendments to be made. The amended and renumbered Allegation is as set out above, and the original Allegation is appended to this decision.
- The Registrant has been employed as a Band 6 Podiatrist with London North West University Healthcare NHS Trust (“the Trust”) since September 2006. Following a car accident on the way to work on 20 December 2017, the Registrant sustained injuries that necessitated time off work to recover. A phased return to work (following a plan provided by Occupational Health) commenced from 6 February 2018 (initially on 25% of her usual caseload, increased to 50% on 13 March 2018 and 75% on 20 March 2018).
- At an Occupational Health appointment in early April 2018, the Registrant advised that she continued to suffer from headaches and migraines, needed more breaks during the working day, found 75% of caseload a struggle and that she was only able to provide routine (i.e. non-specialist) clinics. On 11 April 2018 Occupational Health advised the Registrant’s line manager that she was unfit for work at that time and that she would require a sickness certificate from her GP. This certificate was written by her GP on 10 April 2018 stating that the Registrant was unfit for work due to “RTA injury pain in spine, right arm and right thumb”. The Registrant remained on sick leave until her ultimate phased return to work from 9 May 2019.
- In January 2019 the Trust Podiatry Service received information from a member of the public that the Registrant was undertaking private Podiatry appointments from her uncle’s practice during the period when she was on long-term sickness absence. An internal investigation was commissioned.
- An internal Disciplinary Hearing was held by the Trust on 28 June 2019, chaired by Witness 2, and it concluded that the matters be dealt with by a final written warning. At the conclusion of the Disciplinary Hearing, the Registrant self-referred to the HCPC on 11 July 2019.
The Fitness to Practise Hearing
- The Panel heard oral evidence from the following witnesses on behalf of the HCPC:
- Witness 1, who was the Head of Nutrition and Dietetics for the Trust at the time. Witness 1 was appointed the investigating officer of the internal investigation carried out by the Trust into whether the Registrant was undertaking private Podiatry appointments from her uncle’s practice during the period when she was on long-term sickness absence.
- Witness 2, who was the Director of Therapy Services for the Trust at the time. Witness 2 chaired the formal disciplinary hearing of the matters investigated by Witness 1.
- Witness 3, who is a Chiropodist and the owner of the Chiropody Surgery (the “Clinic”)
- The Panel also received a bundle of evidence on behalf of the HCPC, which included:
- The investigation report completed by Witness 1;
- records of formal investigatory interviews carried out by Witness 1 during the course of her investigation;
- various correspondence of the Trust in relation to these matters; and
- the relevant sickness absence policy issued by the Trust
No case to answer submission
- At the end of the HCPC’s case, Mr Buxton on behalf of the Registrant, submitted that there was no case to answer in relation to:
- Particular 3 in that the HCPC evidence, even taken at its highest, was so tenuous such that a Panel properly directed could properly find it proved: and
- the nature of the Registrant’s conduct as set out in Particular 2 was not capable of amounting to dishonest behaviour as alleged by Particular 6.
- The Legal Assessor advised the Panel that the approach it should adopt is to consider each disputed particular and firstly address the following question:
“Is the HCPC’s evidence, taken at its highest, capable of proving Particular 3?”
If the answer is no, then there is no case answer respecting that particular.
- The Panel accepted the advice of the Legal Assessor and had regard to all the available evidence before it. It also had regard to the submissions of both parties.
- The Panel bore in mind that it is for the HCPC to prove the factual particulars alleged and that the requisite standard of proof is the balance of probabilities.
- In coming to its decision, the Panel considered each element of each particular subject to the submission. Firstly, the Panel looked to see if there was any evidence to support the facts alleged. If there was, then the Panel would go on to consider whether the Panel could find the facts proved on that evidence.
- Between April 2018 and May 2019, you received money for working in a private clinic in addition to receiving sick pay from your employer.
- Mr Buxton submitted that there was no evidence that the Registrant received any money for working in the private clinic in question.
- Mr Tarbert did not oppose the submission.
- The Panel considered the evidence of Witnesses 1, 2 and 3. The Panel reminded itself of the evidence of Witness 1 that she did not investigate whether or not the Registrant had received any money when she was working at the Clinic. Her investigation concerned whether the Registrant was carrying out clinical duties whilst she was signed off as unfit for work.
- Witness 2 was emphatic in her evidence that it was not within the remit of the Disciplinary Hearing to inquire into, or determine whether, the Registrant had received payment whilst working at the clinic if she was found to have been working at the clinic.
- Witness 3 who is the owner of the Clinic was clear in his evidence that whilst the Registrant did work at the clinic whilst she had been signed off as unfit for work as Chiropodist / Podiatrist, he had not paid her. This was because the Registrant had told him that she was working at the Clinic partly due to her personal circumstances, which were verified by Witness 1 and Witness 2 and partly to rehabilitate her hands which had suffered injury in a road traffic accident the year before, which had led to her being signed off as unfit for work as a Chiropodist / Podiatrist.
- In the light of the above, the Panel determined that there was no evidence upon which a Panel, properly directed, could find Particular 3 proved.
- Therefore, the Panel determined that there was no case to answer in relation to Particular 3. It follows, that in relation to particular 6, 3 falls.
Particular 6 in relation to Particular 2
- On one or more occasions between April 2018 and May 2019 you put patients at risk by practising whilst considered not fit to work by Occupational Health.
- Your conduct in relation to particulars 1, 2, 3, 4 and 5 was dishonest.
- Mr Buxton submitted that the conduct alleged in Particular 2 was incapable of being dishonest.
- Mr Tarbert did not disagree with the submission of Mr Buxton.
- The Panel considered Particular 2 and the conduct alleged by it. It is clear that a conduct relates to risk to patients and not dishonesty. It determined that the conduct was not capable on its own of amounting to dishonest conduct. There was no allegation of deception.
- In the light of the above, the Panel determined that there was no case answer for Particular 6 in relation to Particular 2.
The Registrant’s case
- The Panel then heard oral evidence from the Registrant. She told the Panel of the personal difficulties she was experiencing at the time of these matters. This had been alluded to and confirmed by Witness 1 and Witness 2.
- The Registrant told the Panel of the impact the road traffic accident had on her hands and her ability to carry out her role as a Chiropodist / Podiatrist. She said that she thought that she would never recover and that her career was over. She told the Panel that the reason why she worked at the Clinic was to rehabilitate her injuries. The Registrant said that her phased return to work had demonstrated that she was unable to cope with the workload expected of Chiropodist/Podiatrists in the NHS. She thought that working in the Clinic would assist her in being able to rehabilitate her injuries as she would be working with less patients and at a slower rate.
- The Registrant also answered questions regarding her knowledge and conduct during the investigation carried out by Witness 1 and the disciplinary hearing chaired by Witness 2.
- The Registrant also provided the Panel with a bundle of documents which included a detailed reflective piece and testimonials from her colleagues and patients, included one from LA, who was her line manager at the time of these matters and for a short period thereafter.
Determination on the factual particulars
- The Panel considered all the evidence in this case together with the submissions made by Mr Tarbert and by Mr Buxton.
- The Panel accepted the advice of the Legal Assessor who reminded the Panel that the burden of proof rests with the HCPC, and that the Registrant need not disprove anything. The Legal Assessor also reminded the Panel that the standard of proof is the civil standard, namely the balance of probabilities.
- It was not in dispute that the Registrant was a registered Chiropodist / Podiatrist at the relevant time.
- Therefore, Panel first considered the factual particulars 1, 2, 4 and 5 as to whether they were proved on the balance of probabilities and if so, whether those that were so proved was dishonest on the balance of probabilities.
- On one or more occasions between April 2018 and May 2019, you provided clinical treatment to patients at a private clinic whilst signed off on long term sick leave from your employer.
- The Registrant admitted this particular at the start of the hearing when it was put to her. That in itself is compelling evidence.
- The Panel also noted the evidence of Witness 1 and Witness 2 that the Registrant had confirmed that she had worked on more than one occasion at the Clinic whilst signed off on long term sick leave. Witness 3 also confirmed that the Registrant had been employed by his Clinic on several occasions during that period.
- Therefore, the Registrant’s admission is consistent with the evidence presented by the HCPC.
- The Panel determined that Particular 1 is proved.
- On one or more occasions between April 2018 and May 2019 you put patients at risk by practising whilst considered not fit to work by Occupational Health.
- The Registrant also admitted Particular 2 at the start of proceedings.
- The Panel heard evidence from the HCPC and the Registrant that on one occasion she had a meeting with Occupational Health who deemed her unfit to work but then the Registrant had never the less gone on to work at the Clinic two days later and several occasions thereafter.
- The Registrant told the Panel that she did so in the hope that she would be able to slowly rehabilitate her hands by working at a slower pace and also with less patients. She told the Panel that she had a phased return to work whereby she started at 25% of her normal workload and at the end of the period of phased return to work she had been able to work at 75% of her normal workload. She said that she had been told by her managers that, following her phased return back to work, if she was unable to cope with 100% of her normal workload then she would have to be signed off sick. She said that she was still suffering severe pain in her hands and that was the reason why she could not cope with 100% of her normal workload and as a result Occupational Health had considered her not fit to work.
- The Registrant told the Panel that as a result she feared that her injuries meant that her career as a Chiropodist / Podiatrist in the NHS was over and therefore attempted to rehabilitate herself by working in at the Clinic for no pay but at a slow past. She said that she took painkillers in order to cope with the pain and treat patients. She accepted that her manual dexterity was affected by her injury.
- The Panel accepted what the Registrant’s explanation. It also agreed with the Registrant’s admission that she had put patients at risk of harm by her conduct. The Panel heard from Witness 1, Witness 3 and the Registrant of the instruments that she would have been required to use to treat patient, many of which require a degree of manual dexterity on the part of a practitioner.
- The Panel determined that patients were put at unwarranted risk of harm by the Registrant treating them using the instruments of chiropody and podiatry whilst her manual dexterity was impaired to a significant degree by pain.
- Therefore, the Panel finds Particular 2 proved.
- In a meeting on 15 April 2019, you initially said you had not been working at a private clinic whilst on long term sick leave, when this was not the case.
- At the start of proceedings, the Registrant also admitted this factual particular.
- The crucial word in the allegation is “initially”. It clear from the record of the meeting on 15 April 2019 that the Registrant did initially say that she had not been working at the Clinic.
- Witness 1 told the Panel that the record of the meeting belongs to LA who was the Registrant’s line manager at the time and who conducted the meeting. The Registrant did not take issue with the content or the accuracy of that. Therefore, the Panel accepted that what was recorded is accurate.
- The Panel determined that Particular 4 is proved on the evidence.
- In a disciplinary hearing on 28 June 2019, you were not forthcoming about details of working in a private clinic whilst on long term sick leave.
- The Panel were told by Witness 2 that during the disciplinary hearing she had to ask the Registrant several times for the details of her work at the Clinic. Witness 2 told the Panel that the Registrant had not been able to provide that information and that the disciplinary hearing had provided several short breaks for the Registrant to obtain the information. Witness 2 told the Panel that the Registrant needed to speak to her Aunt, who was the administrator of the Clinic to obtain the information and that initially the Aunt was not at the clinic and could not access the information. Witness 3 told the Panel that the Registrant did finally get the information and provided it to the disciplinary hearing, and that the number of occasions worked did not tally with the initial number given by the Registrant.
- The Registrant told the Panel that she was unable to provide the information to the disciplinary hearing because she did not have that information with her at the time and she felt that she needed to provide accurate numbers. She said that the initial figure she gave to the hearing was an estimation and that when Witness 2 had pushed for more accurate figures, she needed to speak to her Aunt in order to get those figures. She said that she was not prevaricating but was telling the truth when she told Witness 2 that she did not have the figures.
- The Panel accepted the evidence of Witness 2 and the Registrant. Witness 2 did not appear to dispute that the Registrant did not have that information at the start of the hearing and the number of breaks afforded to the Registrant to obtain that information appear to corroborate that fact.
- It is also not in dispute that as soon as the Registrant obtained that information, she did provide it to the disciplinary hearing notwithstanding the total number of sessions confirmed by the Registrant’s aunt was significantly more than the estimate initially provided by the Registrant.
- In the circumstances, the Panel determined that the Registrant was forthcoming with the disciplinary panel about the details of the sessions she worked at the Clinic during the relevant period.
- Therefore, the Panel determined that Particular 5 is not proved.
- The Panel then went on to consider whether the Registrant’s conduct in relation to Particulars 1, and 4 were dishonest.
- The Panel reminded itself of the advice of the Legal Assessor and of the test as set out in the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords  UKSC 67.
- The Panel also noted that in her oral evidence in these proceedings, the Registrant stated that believed her conduct in relation to particulars 1, 2 and 4 were dishonest.
Dishonesty in relation to Particular 1
- In relation to Particular 1, the Registrant told the Panel in unequivocal terms that she knew she should not have been working for another employer whilst being signed off sick by her main employer.
- Notwithstanding the fact that the Registrant was not being paid by the Clinic for her work and notwithstanding that the Registrant intended her work for the Clinic to help with her rehabilitation, the Registrant accepts that she have told them about the work she was carrying out at the Clinic.
- The Panel was satisfied that that most chiropodists/podiatrists would know not to go to work for another employer whilst being paid sick leave by the NHS.
- The Panel determined that the Registrant should have told her employer that she was willing to work to a certain level and ascertain whether would move from their position that she was required to be able to handle a complete workload before she would be permitted to return to work for them. If they had indicated that latter remained the position, she could have then asked them for permission to do voluntary work at the Clinic and if permission was granted, would not have breached the terms of her employment with the NHS.
- The Panel determined that ordinary and decent people would consider the Registrant’s actions in those circumstances to be dishonest.
- The Panel therefore finds Particular 6 in relation to Particular 1 proved.
Dishonesty in relation to Particular 4
- The conduct of the Registrant was essentially lying about working at the Clinic whilst signed off sick.
- The Registrant told the Panel that she was dishonest when she did that.
- The Panel determined that ordinary and decent people would also agree and consider the Registrant’s actions in those circumstances to be dishonest.
- Therefore, the Panel finds Particular 6 in relation to Particular 4 proved
Determination on Misconduct
- The Panel then went on to consider whether the factual particulars found proved amounted to Misconduct. The Panel heard the submissions of Mr Tarbert on behalf of the HCPC.
- Mr Tarbert submitted that the Registrant actions breached the following paragraphs of the HCPC’s standards of conduct, performance and ethics: 6 (6.1 and 6.2) and 9.1
- Mr Buxton told the Panel that the Registrant accepted that her conduct amounted to misconduct and that she did not seek to dissuade the Panel from making such a finding.
- The Panel accepted the advice of the Legal Assessor. He advised the Panel that there was no burden or standard of proof when determining whether the factual particulars found proved amounted to Misconduct, it was a matter for the judgment of the Panel.
- The Panel was aware that misconduct is “a word of general effect, involving some act or omission, which falls short of what would be proper in the circumstances.” It is also aware that it was stressed that Misconduct is qualified by the word “serious”. It is not just any professional misconduct, which will qualify.
- The Panel was also 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. Therefore, the Panel has had careful regard to the context and circumstances of the matters found proved. The Panel considered each of the factual particulars in the light of the following circumstances demonstrated by the evidence:
- The Registrant was Chiropodist / Podiatrist who had an unblemished record and whose work was assessed as being of high quality by her managers, colleagues and patients;
- There had been no issues regarding the Registrant practice prior to this matter; and
- These matters occurred over a period of several months and were more than a one-off occurrence.
- The Panel determined that in the light of the above factors, the competence of the Registrant was not an issue in this case. It was safe to infer that she was, a competent Chiropodist / Podiatrist.
- The Panel determined that the Registrant had breached the paragraph 6.2 of the HCPC’s standards of conduct, performance and ethics:
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.
9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.
- The Panel considered the nature of the Registrant’s dishonest (Particular 6) conduct set out in Particulars 1 and 4 was directly related to her practice as a Chiropodist / Podiatrist. The Panel determined that her conduct was so serious that it amounted to Misconduct.
- In relation to Particular 2, the Panel determined that Registrant’s conduct had placed her patients unwarranted risk of harm and that was sufficiently serious in the context so as to amount to misconduct.
- Accordingly the Panel finds that the facts found proved amounted to the statutory ground of Misconduct.
Decision on Impairment
- The Panel then went on to consider, whether the Registrant’s fitness to practise is currently impaired by reason of her misconduct. The Panel heard the submissions of Mr Tarbert and Mr Buxton and it accepted the advice of the Legal Assessor.
- The Legal Assessor drew the Panel’s attention to the approach set out in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin) and reminded the Panel that there was a personal and public component when considering whether the Registrant’s fitness to practise was currently impaired.
The personal component of impairment of fitness to practise
- For this purpose, the Panel adopted the approach formulated by Dame Janet Smith in her fifth report of the Shipman inquiry by asking itself the following questions:
“Do our findings of fact in respect of the Registrant’s misconduct 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 service users at unwarranted risk of harm; and/or
b) has in the past brought and/or is liable in the future to bring the Chiropodist / Podiatrist 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 Chiropodist / Podiatrist profession; and/or
d) has in the past acted dishonestly and/or is liable in the future to act dishonestly?”
- The Panel determined that the answers to all the above questions were in the affirmative in relation to past conduct. She had put service users at unwarranted risk of harm and her dishonest conduct breached a fundamental tenet of the profession and brought the profession into disrepute.
- In determining the answers to the above question in relation to future conduct the Panel took into account the following factors:
- The reflective piece by the Registrant demonstrated full insight into her misconduct. Mr Tarbert and the Panel had the opportunity to test the Registrant’s insight and vigorously did so;
- There has not been a repetition of the misconduct nor has there been any reported misconduct since these matters were reported. Indeed, some of the references provide evidence of remediation on the part of the Registrant; and
- The references provided on her behalf that speak highly of the Registrant and that the referees do not have any reason to question the Registrant's honesty and integrity since these matters occurred.
- The Panel reminded itself that dishonesty is one of the most serious allegations that can be levelled against a professional but that it would be wrong to approach the issue of impairment by assuming that any allegation of dishonesty found proved would automatically result in finding of impairment on public interest grounds. A finding of dishonesty does not always lead to impairment of fitness to practise.
- The Legal Assessor had remined the Panel that the court has repeatedly recognised that dishonesty is not necessarily any immovable notion. They have recognised that dishonesty can be a matter of degree and does not necessarily denote a deep-seated attitudinal problem.
- Thus, the Panel also took into account the nature of what occurred, including whether the dishonesty required forethought and planning, the seriousness of the potential outcome of those dishonest actions, and the surrounding circumstances.
- The Panel accepted that the Registrant’s that her continuing impact of her injuries led her to fear that not only her career in the NHS was over as a result, but also that she risked losing her safe place and the attendant risk to her own mental welfare.
- The Panel accepted that the above was what led to the Registrant’s misconduct and not some deep-seated attitudinal problem. The Panel accepted the Registrant’s insight that her lack of communication with her managers about her situation lead to her fears, which in turn led to her misguided dishonest conduct in an effort to address those fears.
- The Panel determined that the Registrant’s dishonest conduct was at the lower end of the spectrum of seriousness. However, the Panel did not consider it to be at the bottom end.
- The Panel determined that on the evidence before it, it was satisfied that the Registrant is not liable in future to put the public at risk of harm, nor is she liable in future to bring the profession into disrepute, nor is she liable in future to breach a fundamental tenet of the profession nor act dishonestly again.
- Therefore, the Panel determined that the Registrant’s fitness to practise was not impaired on the personal component.
The Public Interest component of impairment of fitness to practise
- The Panel then considered whether the Registrant’s misconduct was such that the need to uphold professional standards and public confidence in the professions would be undermined if a finding of impairment were not made in these circumstances.
- Notwithstanding the Panel’s finding that the Registrant’s dishonest behaviour was a the lower end of the spectrum of seriousness in relation to dishonesty, taking into account the fact that the Registrant had put also patients at risk of unwarranted risk of harm by her misconduct, the Panel determined that a member of the public would be shocked an concerned if no finding of impairment were made in these circumstances.
- This is because the Panel does not have a power to issue a warning to the Registrant for her misconduct, and the Panel’s finding of misconduct would not be published without a finding of impairment. The Registrant’s misconduct is serious enough to attract public opprobrium and, at the very least, the finding of misconduct should be published in order to declare and uphold professional standards and public confidence in the profession.
- Therefore, Panel determined that the Registrant’s fitness to practise is currently impaired on the public interest consideration alone.
The Registrar is directed to annotate the register entry of Ms Preena Patel with a caution which is to remain on the register for a period of 3 years from the date this order comes into effect.
No notes available
History of Hearings for Preena Patel
|Date||Panel||Hearing type||Outcomes / Status|
|11/10/2021||Conduct and Competence Committee||Final Hearing||Caution|