Mr Stephen G Morgan

Preliminary Matters

1. This is a Review Hearing under Article 30 (1) of the Health Professions Order 2001, which requires the review of a substantive order prior to its expiry. The Registrant has not attended this hearing which has been conducted by video link, and nor has he been represented.

Service of Notice of Hearing

2. The certificate of the Registrant’s registration shows both a postal address and an email address for the Registrant. The Panel is satisfied that on 24 August 2021 a notice of hearing was sent to the email address of the Registrant.

3. The notice informed the Registrant that this review of the current Order would take place today by video conference and email confirmation that the email to the Registrant had been delivered and was received. The Panel was satisfied there had been good service of the hearing notice to an email address of the Registrant.

Proceeding in the absence of the Registrant

4. On behalf of the HCPC, Mr D’Alton asked the Panel to proceed in the absence of the Registrant under Rule 11 of the Procedure Rules and to take into account the HCPTS Practice Note on Proceeding in the Absence of the Registrant. He stated it was in the public interest for this statutory review hearing to proceed. The Registrant engaged with the original hearing and the first review hearing and was voluntarily absent today. The Panel must balance the overriding interest of public protection with fairness to the Registrant.

5. The Registrant has provided a statement to the Panel apologising for not attending this hearing. He states it was not until he received a telephone call from Mr D’Alton that he was aware that a hearing had been arranged for today. He states his email account was hacked and he had opened another email account but he had not updated his registration profile at the HCPC. This was an oversight and is in the process of being updated.

6. The Panel has considered the advice of the Legal Assessor and the HCPTS Practice Note: Proceeding in the Absence of the Registrant. There is a burden on a registrant to engage with their regulator. There is a statutory requirement for the Order to be reviewed, before it expires. The HCPC is inviting the Panel to extend the existing Order today. The Panel has concluded that the fair and appropriate step is to continue the hearing in the absence of the Registrant today. There is a duty to conduct proceedings expeditiously and an adjournment would not serve any useful purpose as ultimately there is no dispute between the parties as to which order they are seeking.

Proceeding in private

7. The Panel accepted the Legal Assessor’s advice and had regard to the HCPTS Practice Note on ‘Conducting Hearings in Private’. The Panel was satisfied that there was a need to protect the Registrant’s right to a private life. The Panel determined that the parts of the hearing pertaining to the Registrant’s private life and health should be considered in private, in accordance with the Rules.

Background

8. The Registrant is registered with the HCPC as an Occupational Therapist. He was employed by the Cambridge and Peterborough NHS Foundation Trust (‘the Trust’) from February 2005 until March 2017, as a Band 6 Occupational Therapist working in the Trust’s Inpatient Rehabilitation department.

9. In 2015 the Trust underwent a restructure and a number of separate teams (neighbourhood team, community nurses, occupational therapists and mental health workers) were formed.

10. In November 2015, an informal performance investigation was commenced into the Registrant’s record keeping, duty of care, collaborative working, communication, patient safety and professionalism. This progressed to a formal investigation in May 2016; and the Registrant’s case was referred to the HCPC. The Trust dismissed the Registrant in March 2017. The Registrant appealed against the Trust’s decision, and it was then agreed that the Registrant could leave his position on the grounds of ill health, in July 2017.

11. In November 2018, the Registrant appeared before a panel of the Conduct and Competence Committee. The particulars were found proved, save for Particular 2. The HCPC relied on the evidence of two witnesses who provided statements and exhibits including case notes of service users. The witnesses also gave oral evidence at the substantive hearing. The Registrant also gave evidence at the hearing and the Panel had regard to his evidence.

12. The substantive hearing panel found that Particulars 1(a), 1 (b), 4, 5(a), 5(b), 6, 7(a), 7(b), 8, 9(a), 9(b), 10, 11(a), 11(b), 12(a), 12(b) and 12(c) each amounted to misconduct, and that Particulars 3(a), 3(b), and 13 amounted to a lack of competence.

13. The matters found proved included failings in the Registrant’s record-keeping, his actions following assessments of patients’ needs, his communication with colleagues, and his clinical reasoning. The substantive panel heard and found proved that the Registrant had not achieved the required levels of competence with record-keeping, communication, clinical reasoning, and interpersonal relationships, including poor quality and sometimes inaccurate information handed over to colleagues; the Registrant consistently failed to take responsibility for himself and was unable to effectively manage his own time.

14. The substantive panel concluded that the Registrant’s conduct was remediable. However, that panel was not convinced by the Registrant’s assertion that he had developed the requisite skills as a result of a course he had taken two weeks before the substantive hearing. Nor was the substantive panel persuaded that the Registrant’s role as a Healthcare Assistant had required him to implement this learning to the same standard as that required of an Occupational Therapist.

15. The substantive panel was not satisfied that the Registrant had developed any insight into his failings, in relation to clinical reasoning and his inability to make the judgments required when making a clinical decision. The substantive panel was also concerned about his lack of insight into the impact of his actions, or inactions, on the Trust and service users. Despite the Trust’s support, the Registrant still associated his conduct and competence with his working environment. The conclusion reached was that the Registrant’s failings were highly likely to reoccur.

16. The substantive panel concluded that the Registrant’s fitness to practise was impaired both on grounds of public protection and on grounds of the wider public interest. The substantive panel concluded that a Conditions of Practice Order for a period of 18 months was the appropriate sanction.

17. The Registrant attended the substantive review hearing on 15 September 2020 and provided a reflective statement. At the commencement of his evidence the hearing had to be adjourned due to problems with the Registrant’s internet connection. The hearing resumed on 30 September 2020, when the Registrant provided a second reflective statement and gave evidence before the Panel.

18. The Registrant had been working as a Healthcare Assistant since October 2017, and the last time he worked as an Occupational Therapist was in March 2016. He had been looking for work as an Occupational Therapist but had been unsuccessful, although he was determined to return to work in his profession when a post became available.

19. He said, in relation to Condition 3, it had been his understanding that the Condition would only come into effect if he secured a position as an Occupational Therapist. He admitted that he had not immediately informed his employers of the existence of his Conditions of Practice, but that he had now done so, after this Condition had been explained to him.

20. The Registrant said he was doing well in his current employment. He had been permitted to stand in, for senior health carers when they were not available. This had given him greater confidence, and he was now able to delegate decisions effectively and communicate positively with members of staff. He asked for an opportunity to demonstrate his abilities as an Occupational Therapist.

Decision of the first reviewing panel

21. The Panel concluded that the Registrant’s fitness to practise remains impaired. He had not practised as an Occupational Therapist since the imposition of the Conditions of Practice Order or remediated his failings and his insight was at an early stage of development. It was the judgment of the panel that there remains a high risk that the Registrant will repeat his failings, if permitted to practise unrestricted and he remains impaired on public protection grounds. Furthermore, the public interest demands a continued finding of impairment to uphold standards and confidence in the profession and the Regulator.

22. The aggravating and mitigating factors that were found by the substantive panel remained, namely:

a) Aggravating: repeated failings in relation to a number of separate service users over a significant period of time; a failure to comply with important timescales which were there to safeguard vulnerable service users; evidence of actual and potential physical and emotional harm to particularly vulnerable service users.

b) Mitigating: no previous disciplinary record in his career as an Occupational Therapist; personal circumstances, related to his health, that may have impacted upon his ability to work to the required standard; a challenging time at work in which the team was supported by a number of locum staff; delays in receiving his specialist computer equipment and an inability to access that equipment when he needed it; and some remorse shown by the Registrant.

23. The reviewing panel concluded that to take no action or to impose a Caution Order would be insufficient in light of the seriousness of the allegation and a Conditions of Practice Order remained the appropriate and proportionate order in the circumstances. An extension of 12 months would be sufficient to enable the Registrant to develop the necessary insight and to remediate his deficiencies and it would be appropriate to add one further condition to the existing order, which would now become Condition 11. Accordingly, the panel varied the Conditions of Practise Order and extended the Order for a period of 12 months. The current conditions are:

1. You must inform the HCPC, within 7 days, if you cease to be employed by your current employer or take up any other or further employment.

2. You must inform the HCPC, within 7 days of any disciplinary proceedings taken against you by your employer.

3. You must inform the following parties that your registration is subject to these conditions:

a. any organisation or person employing or contracting with you to undertake professional work;

b. any agency you are registered with or apply to be registered with (at the time of application); and

c. any prospective employer (at the time of your application).

4. You must confine your professional practice to that of a Band 5 Occupational Therapist.

5. You must place yourself and remain under the supervision of a workplace Occupational Therapist supervisor at Band 6 or above registered with the HCPC and supply details of your supervisor to the HCPC within 14 days of taking up a position as an Occupational Therapist. You must attend upon that supervisor and follow their advice and recommendations.

6. You must work with your supervisor to formulate a Personal Development Plan designed to address the deficiencies in the following areas of your practice: a. Clinical reasoning; b. Record keeping; c. Report writing; d. Effective time management; and e. Making referrals.

7. Within three months of taking up employment as an Occupational Therapist you must forward a copy of your Personal Development Plan to the HCPC.

8. You must meet with your supervisor on a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.

9. You must allow your supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.

10. You must produce a written reflective piece reflecting on the implications of the findings of the Panel, including an account as to how your actions impacted service users and their families, your colleagues, the Trust and the wider profession. The reflective piece should also demonstrate an understanding of collaborative working, effective communication and clinical reasoning. This should be submitted to the HCPC at least 28 days prior to any future reviewing panel.

11. You must produce evidence of any relevant CPD and Return to Practice training you have undertaken. This should be submitted to the HCPC at least 28 days prior to any review.

Submissions at today’s hearing

24. Mr D’Alton submitted that the Registrant’s fitness to practise remained impaired. He submitted that it would be appropriate to extend the current order for a further 12 months to enable the Registrant to develop his insight and remediate his failings. He summarised the findings of the previous panels, including serious misconduct. The Registrant’s misconduct was found to be remediable, but he has not undertaken the necessary remediation. His current role is as a Healthcare Assistant from October 2017. This is not the same as an Occupational Therapist and he has not worked as an Occupational Therapist since March 2017.

25. The HCPC accepts that the Registrant has faced personal and health difficulties. He has failed to engage with the Conditions imposed on him. He breached the fundamental tenets of the profession and he has not demonstrated that his fitness to practise is no longer impaired under the personal and public components. The HCPC invites the Panel to further extend the current Conditions of Practice Order, for a period of 12 months. The Order will be reviewed again, before it expires. If at the next review the Registrant has failed to demonstrate adequate insight or remediation the only appropriate Order in accordance with the HCPC Sanctions Policy is likely to be a Striking-off Order.

26. The Registrant’s written statement supplied to the Panel today states he has not practised as an Occupational Therapist since the last hearing. He states that since he has been given a second chance, to meet the criteria and prove that he was competent to be an Occupational Therapist, he set a plan and targets to accomplish this. The way he set out to do this was to take each section in turn and to plan and write a statement of how he was going to achieve this.

27. The first step he took was to look at the code of conduct for HCPC and the College of Occupational Therapists and look at the areas that he needed to comply with, under the order that had been made. He did write to six hospitals, three did not reply, two replied stating that they were not recruiting due to the current COVID restrictions at that time. He had one reply expressing a willingness to discuss his return to work, either as a member of the team or as a supernumerary and to bring his skills up to date. A Teams meeting was arranged with a clinical lead in relation to the fitness to practice issues and what he had to achieve to satisfy the conditions of practice. He had an honest and open discussion and was directed to a government website about returning to work. He did not hear anything further and tried to contact them without success. His current employer had an opening for an Occupational Therapist. He spoke to the general manager about the conditions of practice and gave a copy to the board of
the company, but they were not willing to support him, as it was a small team and they would not have the time to supervise him to the standard required. He had an opportunity to be a team leader and with encouragement from colleagues and managers put himself forward. He stood in for the team leader when they were absent and the feedback he was given stated he would be a success in that role. He had an interview but was unsuccessful, and many of his colleagues were disappointed.

28. He would have been able to demonstrate some of the criteria that he was seeking to attain, such as working with the multidisciplinary team, writing some reports, completing tasks within a timely manner, delegating, communicating and taking responsibility for the actions of the team.

After these disappointments and rejections, his confidence deteriorated and he became despondent and considered giving up trying to comply with the conditions and his email account was hacked. He set up a new email account but did not update his HCPC account.

Advice of the Legal Assessor

29. The Panel is dealing with a Review under Article 30(1) of the Health Professions Order 2001 and should take into account the HCPTS Practice Note: Review of Article 30 Sanction Orders.

30. Article 30(1) provides that a conditions of practice order or suspension order must be reviewed before it expires and that the reviewing Panel may: extend, or further extend the period for which the order has effect; make an order which could have been made when the order being reviewed was made; or, replace a suspension order with a conditions of practice order.

31. Any order made following an Article 30(1) review only takes effect from the date on which the order under review expires, so the Registrant must continue to comply with the expiring order until then.

32. The review process is not a mechanism for appealing against or ‘going behind’ the original finding that the Registrant’s fitness to practise is impaired. The purpose of review is to consider: whether the Registrant’s fitness to practise remains impaired; and, if so, whether the existing order or another order needs to be in place to protect the public.

33. The key issue which needs to be addressed is what, if anything, has changed since the current order was last reviewed. The factors to be taken into account include: the steps which the Registrant has taken to address any specific failings or other issues identified in the previous decision; the degree of insight shown and whether this has changed; the steps which the Registrant has taken to maintain or improve his or her professional knowledge and skills; whether any other fitness to practise issues have arisen; whether the Registrant has complied with the existing order and, if it is a conditions of practice order, has practised safely and effectively within the terms of that order.

34. As is noted in the Practice Note the reviewing Panel’s task: “is to consider whether all the concerns raised in the original finding of impairment...[have] been sufficiently addressed”. The decision in Abrahaem v GMC [2008] EWHC 183 (Admin) states there is a “persuasive burden” on the Registrant to demonstrate at a review hearing that he or she has fully acknowledged the deficiencies which led to the original finding and has addressed that impairment sufficiently “through insight, application, education, supervision or other achievement...”

35. The decision reached today must be proportionate, striking a fair balance between interfering with the Registrant’s ability to practise and the overarching objective of public protection. The Panel’s task is to assess whether the fitness to practise of the Registrant remains impaired.

Decision

36. The Panel accepted the advice of the Legal Assessor. There has been some engagement on the part of the Registrant with the HCPC but he has not complied with the suggestions of the previous panels as to what may be helpful steps to take in respect of this review hearing.

37. There is no evidence of any material change in the Registrant’s circumstances. There is a persuasive burden on the Registrant to demonstrate that the risk of harm has been addressed.

38. The Panel today has concluded that the Registrant’s fitness to practise still remains impaired under the personal component. That is because the Registrant has not yet provided evidence of the development of insight or adequate remediation to show that he would not cause a risk of harm to members of the public, if he was permitted to return to unrestricted practice. He has not supplied a reflective piece or evidence of CPD. He is not currently working as an Occupational Therapist and the previous panels have identified fundamental failings in his previous practice. There is insufficient evidence before the Panel today to show that the Registrant has addressed the concerns and the findings of the earlier panels.

39. The Panel today has also concluded that the Registrant’s fitness to practise still remains impaired under the public component. That is because members of the public would not have confidence in the profession or this regulatory process, if the Registrant was permitted to return to unrestricted practice, in view of the seriousness nature of the findings made by the previous panels.

40. The Panel has also concluded that an extension to the current Order is appropriate because the Registrant has engaged with this further review hearing and there have been personal issues in relation to his health. He is currently employed as a Healthcare Assistant.

41. However, nothing has changed since this matter was before the review panel in September 2020. The Registrant knew that this review was due to take place. His fitness to practise remains impaired, under the personal and public components. The Registrant must urgently obtain a relevant position to enable him to comply with the Conditions of Practice imposed on him, before the next review hearing. This is likely to be a last chance to demonstrate that he has acknowledged his deficiencies and addressed his impairment sufficiently.

42. The Panel notes he is under a duty to cooperate with his Regulatory body and that the previous panels were careful to balance the interests of the Registrant and the public interest by affording a clear opportunity to the Registrant to return to practise.

43. The Panel has decided that the fair decision today is to further extend the current Conditions of Practice Order, for a period of 12 months. The Order will be reviewed again, before it expires. If at the next review the Registrant has failed to demonstrate adequate insight or remediation. The only appropriate Order in accordance with the HCPC Sanctions Policy is likely to be a Striking-off Order.

ORDER:

The Registrar is directed to further extend the period of the Conditions of Practice Order against the registration of Mr Stephen G Morgan for a further period of 12 months on the expiry of the existing order. The Conditions are:

1. You must inform the HCPC, within 7 days, if you cease to be employed by your current employer or take up any other or further employment.

2. You must inform the HCPC, within 7 days of any disciplinary proceedings taken against you by your employer.

3. You must inform the following parties that your registration is subject to these conditions:

a. any organisation or person employing or contracting with you to undertake professional work;

b. any agency you are registered with or apply to be registered with (at the time of application); and

c. any prospective employer (at the time of your application).

4. You must confine your professional practice to that of a Band 5 Occupational Therapist.

5. You must place yourself and remain under the supervision of a workplace Occupational Therapist supervisor at Band 6 or above registered with the HCPC and supply details of your supervisor to the HCPC within 14 days of taking up a position as an Occupational Therapist. You must attend upon that supervisor and follow their advice and recommendations.

6. You must work with your supervisor to formulate a Personal Development Plan designed to address the deficiencies in the following areas of your practice: a. Clinical reasoning; b. Record keeping; c. Report writing; d. Effective time management; and e. Making referrals.

7. Within three months of taking up employment as an Occupational Therapist you must forward a copy of your Personal Development Plan to the HCPC.

8. You must meet with your supervisor on a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.

9. You must allow your supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.

10. You must produce a written reflective piece reflecting on the implications of the findings of the Panel, including an account as to how your actions impacted service users and their families, your colleagues, the Trust and the wider profession. The reflective piece should also demonstrate an understanding of collaborative working, effective communication and clinical reasoning. This should be submitted to the HCPC at least 28 days prior to any future reviewing panel.

11. You must produce evidence of any relevant CPD and Return to Practice training you have undertaken. This should be submitted to the HCPC at least 28 days prior to any review.

The Order imposed today will apply from 22 October 2021.

This Order will be reviewed again before its expiry on 22 October 2022.

History of Hearings for Mr Stephen G Morgan