Mrs Kelly Weir

Preliminary Matters

Service of proceedings

1. There was before the Panel a Notice of Hearing letter from the HCPTS dated 21 June 2022, sent to the Registrant at her registered email address informing her of the details of today’s hearing. Furthermore, there was also before the Panel email correspondence between the Registrant and the HCPC which indicated that the Registrant was aware of today’s hearing.

2. The Panel was therefore satisfied that notice had been served in accordance with the applicable Rules.

Proceeding in absence

3. The Registrant was neither present nor represented at the hearing.

4. The Panel heard an application by Ms Welsh, on behalf of the HCPC, for the hearing to proceed in the Registrant’s absence. Ms Welsh referred the Panel to a telephone conversation which she had with the Registrant in the evening of the day prior to the hearing. Ms Welsh had prepared a file note summary of the conversation which was contained in an on-table document, and which was before the Panel at the hearing.

5. In the file note, the Registrant confirmed that the HCPC correspondence, which had been sent prior to the hearing, had gone into her email spam folder and that she had discovered it by chance when she had been prompted to look there for something else. The Registrant confirmed that she was presently working as a courier and was working shifts in order to support herself. The Registrant stated that, having seen the hearing documents at the last minute and given the nature of her employment, she would risk losing her job if she were to attend the hearing.

6. Ms Welsh invited the Panel to find that the Registrant had voluntarily waived her right to attend and that it would be fair and appropriate to proceed in her absence at the hearing today.

7. The Panel accepted the Legal Assessor’s advice and had due regard to the Practice Note “Proceeding in the Absence of the Registrant” published by the HCPTS.

8. The Panel concluded that the Registrant had voluntarily absented herself from the hearing. There was no reason to suppose that an adjournment of the hearing to a later date would secure the Registrant’s attendance. The Panel also noted that this was a mandatory review and that the current Order would lapse if it were not reviewed before its expiry. The Panel concluded that it was in the Registrant’s interests and in the public interest for the hearing to proceed today.

9. The Panel considered that, in deciding to proceed in her absence, the extent of any disadvantage to the Registrant could be minimised by attaching such weight to the contents of the file note summary as it considered appropriate.

10. For these reasons, having found that the Registrant had voluntarily absented herself, the Panel decided that it was fair and appropriate to proceed in the Registrant’s absence.

Application for part of the proceedings to be in private

11. Ms Welsh applied for that part of the hearing which considered matters relevant to the Registrant’s health to be conducted in private. Ms Welsh observed that this approach had been taken by previous panels which had considered the Registrant’s case.

12. Having heard and accepted the Legal Assessor’s advice, the Panel decided that it was appropriate to convene in private when issues pertaining to the Registrant’s health were raised.

Background

13. The Registrant is a registered Operating Department Practitioner (‘ODP’). On 24-25 July 2019, a panel at a substantive hearing found the facts proved as set out above and that they amounted to misconduct.

14. The substantive panel found this to be a serious act of dishonesty by the Registrant, who was in a position of trust, having access to the Scheduled Drug cupboard. Further, she was found by that panel to be unfit for duty as a consequence of her consumption of Tramadol and/or alcohol.

15. That Panel determined that the Registrant continued to demonstrate a total lack of insight, in that she had not recognised the effect which dishonesty of this nature could have on public confidence in the profession. Further, that to be unfit for duty whilst on call could give rise to risk to patient safety. She further had not demonstrated remorse or any remediation.

16. As a consequence, the panel could not be satisfied that misconduct of this nature would not be repeated.

17. In those circumstances, in regard to the personal component, the panel determined that the Registrant’s fitness to practise was currently impaired. Furthermore, that a finding of current impairment was also required in the wider public interest. This was necessary to declare and uphold proper professional standards. The public would expect an ODP to act in accordance with these standards. Public confidence in the profession and in the HCPC as regulator would be undermined if a finding of impairment were not made.

18. The substantive panel imposed a 12-month Suspension Order.

First review hearing: 14 July 2020

19. On 14 July 2020 the Order was reviewed. The Registrant attended and addressed the panel, which found that she had demonstrated developing insight and had taken “very substantial steps towards resuming unrestricted practice”.

20. However, the reviewing panel regarded her reengagement with the HCPC to be very recent and commented that she had not produced for that review the reflective piece suggested by the substantive panel. The reviewing panel observed that this might have further indicated the extent of her insight and remediation. Further, the Registrant had not produced references and testimonials as suggested.

21. That reviewing panel therefore concluded that the Registrant’s fitness to practice remained impaired. It extended the period of suspension by a further 12 months, referring again to the information suggested as being likely to be helpful at a further review.

Second review hearing: 13 July 2021

22. A second review took place on 13 July 2021. The Registrant was not present at the review hearing, nor was she represented. The panel heard that the Registrant had emailed the HCPC on 15 June 2021 to advise that she was unable to attend the hearing as she had a pre-booked holiday. The hearing proceeded in the Registrant’s absence. The Panel found no material change in circumstances since the first review and determined that the Registrant remained currently impaired. As to sanction, the panel decided that a further 12-month Suspension Order was proportionate. At the end of this period, it was again suggested that a future reviewing panel would be assisted by: the Registrant’s attendance at the review hearing; information about her plans for returning to practice; a reflective piece; references and testimonials; and evidence that the Registrant was maintaining her professional knowledge.

HCPC Submissions

23. Ms Welsh set out the background to this review hearing, together with the findings and reasons of the substantive hearing panel and the panels which had conducted the first and second reviews.

24. Ms Welsh referred the Panel to the file note summary of the telephone call. She submitted that there were some positive indications that the Registrant’s insight was developing and that she was remorseful for her actions. However, there was an absence of evidence of remediation on the Registrant’s part. She had not provided that evidence which was suggested by the substantive hearing panel and the panels which had conducted the first and second reviews. In those circumstances, Ms Welsh invited the Panel to find that the Registrant remained currently impaired. Further, Ms Welsh submitted that, given the Registrant’s ongoing engagement and evidence of some insight on her part, it would be appropriate and proportionate for the Panel to impose a further 12-month Suspension Order. It was Ms Welsh’s submission that in these circumstances, whilst a Striking-Off Order was available to the Panel, it would be disproportionate.

Registrant’s submissions

25. The Registrant’s submissions were contained in the file note summary. The Registrant confirmed that she was working as a courier to provide for herself. She was committed to returning to practice as an ODP. The Registrant’s current employment had left little time in which to prepare a proper reflective piece and collate the necessary evidence to demonstrate that she was fit to return to practice. The Registrant stated that in the near future she would have the time to give her full attention to prepare the evidence that would be necessary for any future reviewing panel.

26. The Registrant stated that she realised now, with the passage of time, that – while she wished to return to practice – she was not ready to do so, personally and professionally, at the present time.

27. The Registrant requested that this Panel extend the current Suspension Order for a further period of 12 months, so that she could “put her best foot forward” at the fourth review hearing.

Decision

28. The Panel considered very carefully all the available documentary evidence, which included the file note summary, together with Ms Welsh’s submissions at the hearing.

29. The Panel heard and accepted the Legal Assessor’s advice. In the course of that advice, the Legal Assessor referred the Panel to its powers at a mandatory review under Article 30(1) of the Health Professions Order 2001, in addition to the Practice Note “Review of Article 30 Sanction Orders” published by the HCPTS.

Impairment

30. The Panel paid careful regard to the contents of the file note summary when addressing the question as to whether the Registrant’s fitness to practise remains currently impaired. The fact that the Registrant had not engaged in these proceedings until the very last minute gave the Panel some cause for concern. However, the Panel was prepared to accept that the reasons given for her late engagement were genuine. There was evidence, from the file note summary, that the Registrant’s insight was developing and deepening. Notwithstanding her difficult personal circumstances at the time, the Registrant expressed remorse for her actions. She also accepted that, while she wanted to return to practice, she was not ready to do so, both personally and professionally.

31. The Panel concluded that, whilst developing, the Registrant still had some way to go in terms of gaining full insight into the seriousness of the matters which had been found proved at the substantive hearing. Further, there was no reflective piece before the Panel nor any evidence attesting to the Registrant’s current professional knowledge or remedial action. Consequently, the Panel concluded that the risk of repetition remained and that it continued to be necessary to make a finding of current impairment in order to protect the public.

32. Further, the Panel decided that it also remained necessary to make a finding of current impairment on public interest grounds; both to declare and uphold proper standards and to maintain the reputation of the profession.

Sanction

33. The Panel first considered whether it would be appropriate and proportionate to make no further order. In light of its findings regarding impairment, the Panel concluded that such a step would be insufficient to protect the public and uphold the public interest. The Panel discounted a Caution Order for the same reasons. In addition, as the Registrant had not been in practice for a considerable period, which she had acknowledged herself, and the misconduct was not related to her clinical skills, the Panel decided that a Conditions of Practice Order was neither adequate to protect the public nor appropriate.

34. The Panel therefore concluded that the most appropriate and proportionate sanction to impose was to extend the current Suspension Order for a further period of 12 months. At the end of this period, at a mandatory review, the Registrant will have an opportunity to provide to a future reviewing panel the information and evidence suggested by previous panels to demonstrate that she is no longer currently impaired in her fitness to practise.

35. In addition, it is open to the Registrant to seek an early review of this Order if there is a change in her circumstances; for example, by providing the information suggested prior to the holding of a mandatory review which demonstrates that she is no longer currently impaired.

36. A future reviewing panel would likely be assisted by the Registrant’s attendance at the hearing, information about her plans for returning to registered practise, and the following:

a. A reflective piece from her in regard to the findings of the original panel;

b. References and testimonials from past employers and any work undertaken recently in any capacity, either paid or voluntary;

c. Evidence that she is maintaining her professional knowledge.

The Registrar is directed to suspend the registration of Mrs Kelly Weir for a further period of 12 months on the expiry of the existing Order.

The Order imposed today will apply from 21 August 2022.

This Order will be reviewed again before its expiry on 21 August 2023.

History of Hearings for Mrs Kelly Weir