1. The Notice of Hearing was sent to the Registrant, by email, to her email address, on the 7 January 2022. The HCPC wrote to the Registrant again on 19 January 2022.
2. The Registrant’s Solicitors, BLM, wrote to the HCPC on 8 February 2022 to state that the Registrant would not be attending today’s hearing nor would she be represented.
3. In light of the factors set out above, the Panel is satisfied that the Registrant has had Notice of today’s hearing.
Proceeding in the absence of the Registrant
4. Ms Welsh applied for the hearing to proceed in the absence of the Registrant.
5. The Panel accepted the advice of the Legal Assessor and took into account the HCPTS Practice Note on “Proceeding in the Absence of the Registrant”.
6. In deciding whether to proceed in the absence of the Registrant, the Panel took into account the following factors:-
• The Registrant was aware of the hearing date.
• Her solicitors wrote to the HCPC’s yesterday, stating that she would not be attending nor would she be represented.
• There was no request for an adjournment of the hearing. There was no evidence that the Registrant would attend a hearing on a future occasion.
• This is a mandatory hearing and it is necessary for the protection of the public for the hearing to go ahead. The Order is due to expire on 6 March 2022.
7. In light of the factors set out above, the Panel has concluded that the Registrant has voluntarily absented herself and that no useful purpose would be served by an adjournment. It found that it is proportionate and in the interests of justice for today’s hearing to proceed.
8. Following her graduation from University after studying psychology, the Registrant obtained employment in a special needs nursery where she worked as a learning assistant, and subsequently as a speech and language assistant. Her application to study speech and language therapy in order to become a Speech and Language Therapist (“SLT”) was supported by that employer. The Registrant completed her post- graduate diploma in speech and language therapy in 2013. During that training she completed three placements, one of which was undertaken with the East Kent Hospitals University NHS Foundation Trust (“the Trust”).
9. The Registrant commenced employment as a Band 5 SLT with the Trust on 1 September 2014. She was based at the Queen Elizabeth the Queen Mother Hospital in Margate (“the Hospital”). The Registrant’s employment continued until she submitted her resignation on 10 October 2017. Her last official working day was 7 November 2017, but she was on sick leave for some of the period between the submission of the resignation and the end of the employment.
10. The line management and formal supervision of the Registrant by JH from November 2016 will be described below when the Panel explains the role of the witnesses who attended the hearing to give evidence. However, before that date the supervision of the Registrant had been, at best, patchy, and for lengthy periods non-existent. By May 2017 JH had begun to notice significant concerns about the Registrant’s practice. This resulted in JH instigating an informal performance review from 24 May 2017 that lasted until 29 August 2017. An action plan was set up under this informal procedure. When it was believed that the informal procedure had not achieved the goals set, a formal review meeting was scheduled for 29 September 2017 in line with the Trust’s HR Guidance for Performance Reviews. A further action plan was set under the formal procedure. The Registrant submitted her letter of resignation on 10 October 2017.
11. The incidents alleged in respect of the four patients, as reflected in the four principal particulars being considered by the Panel, are not advanced in chronological order. Listed in chronological order, the incidents are as follows:
• Patient 2, on or around 4 April 2017.
• Patient 4, on or around 25 September 2017.
• Patient 3, on or around 26 September 2017.
• Patient 1 on or around 23 October 2017.
The substantive hearing
12. At the substantive hearing, the panel found all of the facts proved.
13. Although the Registrant did not attend the substantive hearing, she provided a statement, dated 28 January 2020, in which she accepted most of the allegations against her.
14. The panel at the substantive hearing found that the incidents, both individually and taken together, amounted to misconduct. In so doing, the panel found that the:-“knowledge and skills required to act appropriately with regard to each patient were fundamental. None of them was unusual or specialised and the failings were serious”.
15. The decision continued: “For the avoidance of doubt, there were no factual particulars that the Panel considered to be too insignificant to be included in this finding. Furthermore, the Panel was satisfied that no issue of lack of competence arises”.
16. The panel found breaches of the HCPC Standards of Conduct Performance and Ethics, in respect of standards 2.3, 2.6, 3.1 & 3.2 6.1, 6.2 &10.1.
17. In relation to impairment, the panel found that the Registrant was impaired in respect of both the private and public component.
18. In respect of the personal component, the panel noted:-
• The witnesses called by the HCPC accepted that the Registrant was hard working, caring and had a genuine regard for her patients and wished to advance their interests.
• The Registrant had shown some insight and had admitted many of the failings found proved.
• There was a likelihood of repetition as the Registrant had not been working and she would need to undergo training and supervision, if she were to return to work.
19. In respect of the public component, the panel found that the public “would be dismayed if a practitioner against whom these serious findings have been made, and who has not remediated the shortcomings, were to be permitted to return to practise without restriction. Furthermore, if the Panel did make a finding of current impairment of fitness to practise it would be failing in its obligation to declare and uphold proper professional standards”.
20. The panel imposed a two year Conditions of Practice Order which included the following conditions:
1. You must not accept any offer of employment for which your HCPC registration is required unless the post to which you would be appointed offers you weekly face to face supervision until such time as your Newly Qualified Practitioner (“NQP”) Competencies are signed off as having been met by your supervising SLT who must be working at Band 7 or above.
2. You must not work alone with the following categories of patients:
• patients with dysphagia;
• patients with acute onset;
• end of life patients; and,
• patients with tracheostomies.
To the extent that you need to see patients falling into these prohibited categories in order to satisfy competencies, you are to shadow and/or be directly supervised by a practitioner working at Band 7 or above.
3. You are to attend and satisfactorily complete a Royal College of Speech and Language Therapists (“RCSLT”) accredited course on dysphagia.
4. You are to successfully complete the RCSLT NQP Competencies, starting that task afresh.
5. You are to successfully complete the RCSLT Dysphagia Training Competency Framework at Level B.
6. You are to complete a significant event analysis, using the RCSLT CPD Toolkit, in relation to the four patients concerned in this case.
7. You must provide not less than 28 days before the date of the review of this Order, the following documents:
• A certificate of completion of the course required to be undertaken by condition 3.
• Proof that your RCSLT NQP Competencies have been signed off by your supervising SLT.
• A certificate of completion of the Dysphagia Training Competency Framework at Level B required by condition 5.
• Copies of the significant event analyses required by condition 6.
• A report from your supervisor commenting specifically on your progress since this Order was made and your readiness to practise without restriction.
• Your CPD portfolio, demonstrating adherence to the five HCPC’s CPD standards.
8. You must promptly inform the HCPC if you take up any employment for which your HCPC registration is required.
9. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.
10. 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).
21. The Registrant did not file any evidence for today’s hearing. Her solicitor wrote two letters to the HCPC yesterday. The first letter began in the following manner:-
“We are the solicitors instructed on behalf of Jennifer Ward (neé Carlaw) in respect of this matter. We have been on record with the HCPC as acting for Ms Ward since prior to the Investigating Committee stage and we acted on her behalf at the time of the Conduct and Competence Committee hearing. We are therefore extremely disappointed that you wrote directly to our client to provide her with notice of the upcoming review scheduled for 9 February 2022 without copying your correspondence to us”.
22. The letter went on to state that the Registrant has not worked as a Speech and Language Therapist. It continued that the Registrant considered it “ unlikely that she will wish to return the profession of Speech and Language therapy” The Registrant’s solicitor stressed that the Registrant meant no disrespect to the Panel by her failure to comply with the Conditions of Practice or her failure to attend today’s hearing.
23. The second letter stated that the Registrant wished to make it plain that her failure to comply with any of the conditions imposed by the previous panel was not intended as disrespect for the earlier findings. It continued that she “acknowledges that there were failures in her practice and is wholly understanding of the conditions that she would need to meet in order to practice”.
24. The Panel heard submissions from Ms Welsh. She invited the Panel to find that the Registrant’s fitness to practice remained impaired. She said that the Registrant had not addressed any of the failings found at the substantive hearing. The Registrant had not worked since November 2017, and it therefore followed that, she remained impaired in respect of both the private and public component.
25. Ms Welsh invited the Panel to extend the current Conditions of Practice Order for a further 12 months. She stated that the Registrant could use this period to consider her position, either to take steps to recommence her practice and begin to meet the conditions, or to apply for Voluntary Removal from the Register.
26. The Panel heard and accepted the advice of the Legal Assessor.
27. In reaching its decision, the Panel has considered that this is a mandatory review under Article 30 (1) of the Health and Social Work Professions Order 2001 (The Order). The Panel is aware that the process under Article 30 (1) of the Order is one of review and not one of appeal. Its function is to determine whether the Registrant’s fitness to practice is still impaired, and, if so, whether the Conditions of Practice Order under review remains the appropriate and proportionate means of public protection or should be varied or replaced by some other Order.
28. The Panel first considered whether the Registrant’s fitness to practise remains impaired. It has taken account the submissions made by Ms Welsh, and has noted that the Registrant has not worked since November 2017. The Registrant has not complied with any of the conditions imposed by the previous panel. In light of these factors, the Panel has concluded that the Registrant’s fitness to practise remains impaired.
29. Through her solicitor the Registrant has acknowledged that the conditions imposed by the substantive hearing panel were necessary and appropriate. She has acknowledged that there were significant failings in her practice. In light of this, the Panel has concluded that, in all the circumstances, a restriction on the Registrant’s ability to practise is still necessary in order to protect service users and also to sustain public confidence in the profession of Speech and Language therapy and in the HCPC as its Regulator.
30. In considering the appropriate sanction, the Panel had regard to the Sanctions Policy (SP) published in March 2019, and accepted the advice of the Legal Assessor. The Panel has applied the principle of proportionality.
31. The Panel is aware that the purpose of sanction is not to be punitive but that it must consider the risk the Registrant may pose to service users in the future and determine what degree of public protection is required.
32. The Panel has considered the sanctions available in ascending order of severity. The Panel considered that to take no action or to impose a Caution Order would not be sufficient or appropriate, as neither outcome would afford the necessary public protection or satisfy the public interest.
33. The Panel next considered whether a Conditions of Practice Order would be proportionate. It noted that the Registrant has not practised since the end of 2017 and has not complied with any of the Conditions of Practice imposed by the last panel. The HCPC invited the Panel to extend the current order, which it deemed sufficient to protect the public.
34. As the Registrant has not practised for a long time, and has not taken steps to begin to remediate over the last two years, the Panel considered whether the Conditions of Practice Order imposed by the panel at the substantive hearing was still appropriate, and proportionate.
35. The conditions imposed by the panel, who heard the substantive appeal were stringent and involved considerable refresher training. The decision to impose a Conditions of Practice Order was made because the Registrant had shown insight into her failings and was considered by her colleagues to be hardworking, wishing to advance the interests of her patients and caring. There were questions over the adequacy of the supervision that she had received, and the panel found that her failings were remediable with training.
36. The real issue today is whether the Registrant wishes to return to practice as a Speech and Language Therapist. It is also aware that she has indicated that she is unlikely to return to work as a Speech and Language therapist. It is regrettable that the HCPC did not send the Notice of Hearing to her solicitor, on 7 January 2022. It is unclear whether the Registrant had full legal advice before today’s hearing and the Panel wish to ensure that she is not prejudiced by this.
37. Having balanced all of the competing interests, the Panel has concluded that the current order is sufficient to protect the public. It finds that notwithstanding, the fact that the Registrant has not worked or attempted to take practical steps to update her knowledge, that it should maintain the status quo. The Registrant should use the next 12 months to consider her position. If she no longer wishes to remain on the Register, she should seek advice from her solicitor and take steps to apply for voluntary removal. In the event that the Registrant decides that she does wish to return to practice, the conditions imposed by the previous panel are sufficiently stringent to protect the public. In conclusion, the Conditions of Practice Order under review remains the appropriate and proportionate means of public protection.
38. The Panel therefore extends the current Conditions of Practice Order for a period of 12 months.