Lucy Gibson-Hill

Preliminary Matters
Service of Notice

1) The Notice of this hearing was sent to the Registrant by email on 9 May 2022 to her registered email address as it appeared on the HCPC Register.
The Notice contained the date, time and venue of today’s hearing. The HCPC has also produced a copy of a confirmation of delivery of the email dated the same day.

2) The Panel accepted the advice of the Legal Assessor and was satisfied that Notice of today’s hearing has been served in accordance with Rule 6(1) of the Conduct and Competence Committee Rules 2003 (the “Rules”) including the Health and Care Professions Council (Coronavirus) (Amendment) Rules 2021.

Proceeding in the absence of the Registrant

3) The Panel then went on to consider whether to proceed in the absence of the Registrant, pursuant to Rule 11 of the Rules. In doing so, it considered the submissions of Ms Bernard–Stevenson on behalf of the HCPC.

4) Ms Bernard–Stevenson submitted that the HCPC had taken all reasonable steps to serve the Notice on the Registrant by email. She stated that there might be some disadvantage to the Registrant if the case proceeded in her absence, but that the Registrant had chosen to voluntarily absent herself. She had not sought an adjournment and two witnesses had attended to give evidence and they would be inconvenienced if the case were not to proceed in her absence. Ms Bernard–Stevenson referred the Panel to an email from the Registrant dated 22 June 2022. In that email, the Registrant stated:

“I will not be attending the hearing.
This issue was considered and responded to by the NHS a year ago, the result of which has now been removed from my HR file.
I am not currently practicing although I was until April….
Iook forward to hearing from you regarding the outcome. [sic]”

5) The Panel accepted the advice of the Legal Assessor. He referred the Panel to the case of R V Jones & Hayward [2002] UKHL 5 and GMC v
Adeogba and Visvardis [2016] EWCA Civ 162. He advised that the Adeogba case reminded the Panel that its primary objective is the protection of the public and the public interest. In that regard, the case of Adeogba was clear that, “where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed”.

6) The Panel was mindful of the need to ensure that fairness and justice were maintained when deciding whether or not to proceed in the Registrant’s absence.

7) In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPTS Practice Note entitled “Proceeding in the Absence of a Registrant”. The Panel weighed its responsibility for public protection and the expeditious disposal of the case against the Registrant’s right to be present at the hearing.

8) The Panel was satisfied that all reasonable efforts had been made by the HCPC to notify the Registrant of the hearing.

9) In reaching its decision, the Panel took into account the following:
• The Registrant had unequivocally stated in her email of 22 June 2020 that she will not be attending the hearing and was expecting to be told of the outcome once concluded;
• The Registrant was not asking for an adjournment;
• There was a public interest in hearings being held expeditiously;
• Two witnesses had attended to give evidence who would be inconvenienced if this hearing did not proceed.

10) The Panel determined that it was unlikely that an adjournment would result in the Registrant’s attendance at a later date. Having weighed the public interest for expedition against the Registrant’s own interests, the Panel decided that the Registrant had voluntarily absented herself and determined that it was appropriate to proceed in the Registrant’s absence.

Application to offer no evidence in relation to particular 1
11) Ms Bernard–Stevenson stated that the HCPC had made the decision to offer no evidence in relation to the original particular 1. That allegation related to concerns about the Registrant’s record-keeping. Having reviewed the Registrant’s notes, the HCPC was satisfied that the evidence it would have otherwise adduced, could not support a finding in respect of this allegation as it showed that the Registrant had made the relevant entries in her records.

12) Having heard and accepted the advice of the Legal Assessor, the Panel concluded that no public interest issues would be raised by allowing the HCPC to withdraw an allegation where it was incapable of proof. It therefore determined that particular 1 be discharged.

Applications to amend the charges
13) Ms Bernard–Stevenson made an application to amend a number of the particulars. The Registrant had been put on notice of the proposed amendments in a letter dated 24 January 2022. In summary, she submitted that the proposed amendments merely added specificity to the particulars. She submitted that any new particulars merely developed allegations that the Registrant already faced and did not change the substance of the allegation against the Registrant, but merely ensured that the allegation better reflected the evidence available.

14) The totality of the proposed amendments are set out above, including those referred to in particular 18 below.

15) No representations have been received by or on behalf of the Registrant.

16) The Panel accepted the advice of the Legal Assessor and carefully considered the HCPC’s application to amend the particulars. The Panel concluded, after reviewing each of the proposed amendments, that it would agree to the particulars being amended for the following reasons:

a) the Registrant had been provided with significant notice of the HCPC’s intention to amend the Allegation, having been put on notice on 24 January 2022, approximately six months before the commencement of the substantive hearing;
b) the Registrant has not objected to the proposed amendments; and
c) the proposed amendments do not materially widen the scope of the allegation, but merely seek to better reflect and particularise the evidence.

17) The Panel concluded that the proposed amendments of the particulars did not materially affect the nature or seriousness of the allegation. In all the circumstances, there was no likelihood of unfairness or injustice to the Registrant. The Panel therefore agreed to the proposed amendments.

18) At the commencement of the second day of the hearing, Ms Bernard– Stevenson made a further application to further amend particulars 2 and 4 of the amended charges to delete reference to ‘unprofessional’ conduct in particular 2 and to substitute ‘inappropriate’ for ‘unprofessional’ in particular 4.

19) She submitted that, albeit that the application was being made late in the day, the amendments were required to avoid the Panel having to address matters relating to professionalism which would be more appropriately dealt with at the misconduct stage if it was reached. She was also mindful that the Registrant was neither present nor represented. However, she submitted that there was no unfairness to the Registrant as the proposed amendments did not change the substance of the allegations the Registrant faced.

20) Having heard and accepted the advice of the Legal Assessor, the Panel was satisfied that the proposed amendments did not change the substance of the allegations the Registrant faced, but better reflected those matters to be dealt with at the facts stage. It concluded that the amendments could be made without any unfairness to the Registrant.

21) The Panel therefore determined to allow the HCPC’s further application in respect of both particulars 2 and 4.

22) In light of the Panel’s decision in respect of the original particular 1, the wording of particular 5 also required amendment as set out above to reflect the amended numbering of the particulars. Ms Bernard-Stevenson did not object to the proposed amendment.

Application to admit further evidence
23) Ms Bernard–Stevenson made an application for the following further evidence to be admitted:

a) Additional medical evidence that had not been sent to the Registrant with the hearing bundle; and
b) An additional screenshot of a Facebook posting, relevant to charge 5c, that had been omitted from the bundle in error.

24) Ms Bernard–Stevenson submitted that, in respect of the additional medical records, the Registrant had been sent these documents by email on 6 June 2020 asking whether she objected to the additional documentation being submitted. The Registrant had responded to that email, making reference to the medical records, but she did not explicitly state whether she objected or not to their inclusion, instead remaining silent on the issue.

25) So far as the additional screenshot was concerned, Ms Bernard–Stevenson submitted that the document was simply omitted in error from the hearing bundle but that the Registrant was aware of its contents as it had been included in the Investigation Committee bundle which the Registrant had seen. In addition, the Registrant had been sent a copy of the screenshot on 24 June 2020 and she had not objected to its inclusion in the bundle.

26) She submitted that in respect of both sets of additional evidence, there was no unfairness to the Registrant in allowing these further documents to be admitted.

27) The Panel heard and accepted the advice of the Legal Assessor.

28) Having done so, it determined that, in relation to the medical notes, there was no unfairness to the Registrant as she had had notice of the additional material, albeit less than 42 days before this hearing as required, she was aware of them, and she had not objected to the medical notes being adduced.

29) So far as the screenshot was concerned, the Panel noted that this additional evidence had only been served the working day before this hearing and therefore the Registrant would have had very limited time to address the issue of its admissibility. The Panel was also mindful that the Registrant is unrepresented.

30) However, given the nature of the additional material, namely that it was a screenshot of the Registrant's own Facebook posting, she would have been aware of the posting and that this was not new material of which she would have been previously unaware. The Panel noted that this screenshot has been included in the Investigating Committee bundle, which the Registrant would have seen.

31) In the circumstances, the Panel was satisfied that that there was no unfairness in allowing the screenshot to be admitted.

32) The Panel therefore granted the HCPC’s application in respect of both the medical records and the further screenshot.

Application to hear part of the hearing in private
33) The Panel heard that matters relating to the Registrant’s and of Person A’s family health may be referred to during the course of the hearing. Ms Bernard-Stevenson submitted that it was appropriate that those parts of the hearing be held in private.

34) The Panel accepted the Legal Assessor’s advice and it noted Rule 10(1)(a) of the Rules whereby matters relating to the private life of the Registrant, the complainant, any person giving evidence or of any patient or client should be heard in private. The Panel therefore agreed that those parts of the hearing where reference was to be made to the Registrant’s health and the health of Person A’s family should be heard in private.

Background
35) The Registrant is a registered Arts Therapist who was employed by North East London NHS Foundation Trust (‘the Trust’) between October 2018 and May 2021.

36) Person A made a formal complaint to the Trust on 5 June 2020 by email, which included screenshots from the Facebook Group called ‘The Harlow Moaning Page’ as supporting documentation. The Facebook Group is for people who live in the local area to speak about the neighbourhood issues. Person A states the Registrant posts under the name ‘Lu Cy’ and ‘Lucy Gibson Hill Worrell’. Person A complained that the Registrant had posted abusive and threatening messages to the Facebook Group. Additionally, it is alleged that the Registrant disclosed confidential service user information.

37) SM was the Investigating Officer for the Trust’s internal investigation. Upon completing a review of the clinical notes the Registrant had recorded, she discovered that the Registrant had not recorded any, or any adequate record of her appointment with Person A or her family on or about 19 August 2019.

38) On 13 September 2020, a referral was made to the HCPC by Person A.

39) On 5 August 2021, a Panel of the HCPC’s Investigating Committee determined that there was a case to answer and that this matter should be referred to the Conduct and Competence Committee.

Decision on Facts

Live evidence heard

41) The Panel heard live evidence from two witnesses, both of whom gave evidence by video link:

• Person A, the complainant; and
• SM, Investigating Officer.

42) The Panel has also had sight of a number of documentary exhibits which included, but was not limited to:

• The fitness to practise referral form dated 13 September 2020;
• Various screen shots of Facebook posts;
• Interview notes with the Registrant dated 4 August 2020;
• Letter of apology from the Registrant to the Complainant dated 21 September 2020;
• Complaint Investigation Report;
• Copy of the Trust’s Social Media Policy;
• Person A’s complaint to EWMHS dated 2 June 2020.

43) The Panel also considered the documentation provided by the Registrant which included:

• An email from the Registrant to the Trust dated 24 August 2020; and
• An email to the HCPC dated 22 June 2022 briefly setting out her explanation for some of the events in question;
• An email dated 7 June 2022 from the Registrant to Kingsley Napley relating to medical notes; and
• An additional undated statement headed “Additional Information”.

Panel’s Approach
44) The Panel was mindful that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything and the individual particulars of the Allegation could only be found proved if the Panel was satisfied that that was the case on the balance of probabilities.

45) In reaching its decision, the Panel took into account the oral evidence of the HCPC witnesses, together with all the documentary evidence as well as the oral submissions made by Ms Bernard-Stevenson. The Panel also accepted the advice of the Legal Assessor which is a matter of record.

46) In reaching its decisions, the Panel draws no adverse inference from the fact of the Registrant not attending this hearing, but has made its determinations on the basis of the evidence presented to it.

Particular 1
47) The Panel found the facts of particular 1 proved for the following reasons.

48) Person A stated that she attended appointments with the Registrant on a number of occasions including 19 August 2019. On each occasion, she stated that she attended with her husband but her children
did not attend every appointment. The appointment on 19 August 2019 was the last appointment Person A had with the Registrant.

49) The Panel also heard evidence from SM, who is currently employed by the North East London NHS Foundation Trust (“the Trust”). She stated that she undertook an investigation into the Registrant’s practice following receipt of the complaint by Person A. She interviewed the Registrant on 4 August 2020 and also reviewed the Registrant’s clinical notes in relation to Person A and her children that had been stored on the SystmOne computer system. A copy of the clinical records has been produced to the Panel.

50) SM stated that it was a mandatory requirement of the Trust’s Electronic and Paper Based Records and Record Keeping Policy that clinical staff records of all appointments that Registrant’s attend with service users are kept and should be completed within 24 hours. The record should include details of who attended the appointment, what took place during the appointment and the clinician’s plan. In her complaint, Person A had stated that she and her husband had attended an appointment with the Registrant on 19 August 2019. SM stated that, having undertaken her review, the Registrant had not recorded the appointment she had with Person A on 19 August 2019 on SystmOne. This she stated, was a breach of the System One recording policy.

51) The Panel considered that the evidence of Person A and SM in relation to this charge was credible and reliable, and was consistent with the documentary evidence presented to the Panel. In the Registrant’s email to the HCPC, dated 7 June 2022, she stated “I did forward the notes to the other clinician working there who had left by the time the NHS had offered a tribunal date”. The evidence from SM was clear that it was the individual’s responsibility to ensure that records were completed in accordance with the Trust’s requirements.

52) However, given the absence of the relevant record, the Panel therefore found the facts of particular 1 proved.

Particular 2
53) The Panel found the facts of particular 2 not proved for the following reasons.

54) The Panel has had regard to the evidence of Person A who attended the Registrant for family therapy for what was to be the final occasion on 19 August 2019.

55) Person A began a sentence by stating “I think autism is caused by….” or words to that effect. She stated that she intended to conclude the sentence by stating that it was caused by evolution. She stated that the Registrant interrupted her and said “yeah, yeah, yeah, the jury is still out on vaccines causing autism”.

56) Person A said that she believed that the Registrant was going to say that there was a causal link between vaccines and autism and that she thought that the Registrant believed that Person A was “like-minded”. This was a view with which she strongly disagreed. She went on to state that she believed that the Registrant was sympathetic to a number of other conspiracy theories.

57) In considering whether this particular was found proved, the Panel has carefully considered the words allegedly used by the Registrant. Having done so it considered that the words allegedly used by the Registrant state that, in effect, the issue of whether vaccines do cause autism was undecided, and that there is mixed opinion on the subject. This, the Panel concluded, despite Person A’s genuinely held belief, was different in nature to the wording of the particular which suggest that the Registrant stated that vaccines do cause autism.

58) In the circumstances, the Panel found that the Registrant did not use words to the effect that “vaccines cause autism”. It has not therefore gone on to consider whether the words allegedly used were inappropriate.

59) The Panel therefore finds the facts of particular 2 not proved.

Particular 3
60) The Panel found the facts of particular 3 proved for the following reasons.

61) Person A produced a number of screenshots from the Registrant’s public Facebook posts. These posts were viewed on a local, but public Facebook group called “The Harlow Moaning Page”. The group enabled local people to discuss neighbourhood issues. Person A stated that in June 2020, the Facebook group had approximately 10,000 members at the time.

62) The Panel has had sight of the various Facebook posts. During a fractious exchange of messages in relation to a cat who allegedly attacked the Registrant’s dog, Person A posted a message stating: ”This is quite chilling, and I frankly find your lack of remorse quite worrying….Given that you work with vulnerable children in a mental health capacity at EWMHS and as an art therapist registered with eth HCPC, in Harlow, I also find your threats to others about saying it to your face…..In response, the Registrant posted: “[Person A] no threats. I said I feel awful for the owner.”

63) Notwithstanding that it was Person A who first made reference to the Registrant being an HCPC registered Art Therapist, the Panel was satisfied that, given the professional relationship between Person A, her four children and the Registrant, the information disclosed by the Registrant in the post was confidential.

64) The Panel has also taken into account that the Registrant, in a letter to Person A dated 21 September 2020, admitted and apologised for her actions, accepting that “It was a mistake”.

65) The Panel therefore finds the facts of particular 3 proved.

Particular 4a-f
66) The Panel found the facts of particular 4 proved for the following reasons.

67) The Panel has had sight of the relevant Facebook postings. Having done so, it found as a matter of fact, that the Registrant posted each of the postings for the following reasons:
• her name appears next to each one as Lu Cy or Lucy Gibson Hill Worrell. The Registrant confirmed in her interview dated 4 August 2020 that those were the names she used for her Facebook profiles;
• the Registrant emailed her manager, Colleague B, on 24 August 2020 confirming that she had deleted her reply on the post;
• The Registrant stated in her document headed “Additional Information” that she had “deleted the post which breached EWMHS policy within 30 seconds of posting and emailed my manager immediately”;
• The Panel heard and accepted the evidence of SM who stated that she had spoken to the Registrant who was mortified and remorseful for what she had done.

68) The Panel then went on to consider whether by making the relevant postings, the Registrant engaged in inappropriate conduct.

69) The Panel has had regard to the language used in the texts, bearing in mind their context in that the thread showed that the Registrant was an HCPC registered Art Therapist. The Registrant’s posts contained a number of expletives and the Panel considered the language used to be abusive and/or threatening and/or confrontational. In addition, the disclosure at particular 4b represented a breach of the Registrant’s duty of confidentiality. The Panel noted that the Registrant accepted in her letter of apology of 21 September 2021 to Person A that her “actions were wrong”.

70) The Panel in all the circumstances therefore concluded that the Registrant’s posts were inappropriate.

71) The Panel therefore found the facts of particular 4a-f proved.

Decision on Grounds
72) On the basis of the facts found proved, the Panel went on to consider whether the Registrant’s conduct amounted to misconduct or a lack of competence. It took into account the submissions made by Ms Bernard-Stevenson.

73) In considering this matter, the Panel exercised its own judgement. The Panel also took into account the public interest, which includes protection of the public, maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour.

74) When considering whether the facts found proved amounted to misconduct, the Panel noted that not all breaches of the HCPC’s Standards of Performance, Conduct and Ethics need amount to a finding of misconduct.

HCPC’s submissions
75) Ms Bernard-Stevenson invited the Panel to bear in mind the explanation of that term given by the Privy Council in the case of Roylance v GMC (No.2) [2000] 1 AC 311, where it was stated that:

“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a … practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the misconduct to the profession ... Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.”

76) Ms Bernard-Stevenson submitted that the Registrant’s conduct marked a serious departure from the standards expected of a registered Art Therapist and was sufficiently serious to amount to misconduct.

77) In relation to particular 1, she submitted that the failure to document appointments was a serious failure as case records enable practitioners to ensure continuity of treatment and to reduce risk. She submitted that whilst it was permissible to ask a colleague to update SystmOne with details of an appointment on one’s behalf, this should only happen in exceptional situations and does not constitute ‘good practice’. In any event, the relevant case record was not made.

78) So far as the allegations relating to the Registrant’s social media posts, she submitted that they breached a number of policies, including in relation to data protection. She submitted that the posts breached the particular regarding ‘inappropriate messages’ in the Trust’s Social Media Policy which states: “Do not post inappropriate or offensive material. Use your professional judgement in deciding whether to post or share something”.

79) She further submitted that the Registrant’s conduct had the potential to impact adversely on the reputation of the profession.

80) She invited the Panel to conclude that the Registrant had breached standards 1, 2, 5, 6, 8, 9 and 10 of the HCPC Standards of Conduct, Performance and Ethics (2016):

“Standard 1: Promote and protect the interests of service users and carers;
Standard 2: Communicate appropriately and effectively;
Standard 5: Respect confidentiality;
Standard 6: Manage risk;
Standard 8: Be open when things go wrong;
Standard 9: Be honest and trustworthy;
Standard 10: Keep records of your work.”

The Registrant’s submissions
81) No specific submissions have been received by, or on behalf of the Registrant.

Decision on misconduct

82) The Panel heard and accepted the advice of the Legal Assessor, which included reference to the cases of: Roylance v General Medical Council (No 2) [2000] 1 A.C. 311, Remedy UK v GMC [2010] EWHC 1245 (Admin),
Nandi v GMC [2004] EWHC 2317 (Admin) and Beckwith v SRA [2020] EWHC 3231 (Admin).

83) In Nandi v GMC [2004] EWHC 2317 (Admin), the Court referred to Roylance v GMC [1999], where the Court described misconduct as “a falling short by omission or commission of the standards of conduct expected among medical practitioners, and such falling short must be serious” such that it would be “regarded as deplorable by fellow practitioners”.

84) The Panel adopted a two-step process in its consideration. Firstly, the Panel considered whether the facts found proved amount to misconduct. Secondly, and only if the facts proved were found to amount to misconduct, would the Panel then go on to consider whether the Registrant’s fitness to practise is currently impaired as a result of that misconduct.

85) The Panel carefully considered all the evidence and submissions presented to it and considered the facts of the case in the round.

86) Given the Panel’s findings in relation to the facts found proved, it has found that the Registrant:

• Failed to maintain adequate records;
• Breached client confidentiality;
• Engaged in inappropriate conduct on social media.

As such, it concluded that the Registrant breached the following standards of the HCPC’s Standards of Conduct, Performance and Ethics:

1.1: You must treat service users and carers as individuals, respecting their privacy and dignity.
1.7: You must keep your relationships with service users and carers professional.
2.1: You must be polite and considerate.
2.7: You must use all forms of communication appropriately and responsibly, including social media and networking websites.
5.1: You must treat information about service users confidential.
5.2: You must only disclose confidential information if:
- you have permission;
- the law allows this;
- it is in the service user’s best interests; or
- it is in the public interest, such as if it is necessary to protect public safety or prevent harm to other people.
6.1: You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.
9.1: You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.
10.1: You must keep full, clear, and accurate records for everyone you care for, treat, or provide other services to.
10.2: You must complete all records promptly and as soon as possible after providing care, treatment or other services.

87) However, the Panel was mindful that a finding of misconduct does not necessarily follow as a result.

88) The Panel carefully considered the seriousness of the Registrant’s failings.
In doing so, it identified the following:

• The Registrant failed to make a record of her meeting on 19 August 2019 with Person A and her husband. The maintenance of accurate records is essential to ensure effective ongoing care and risk management for service users. This was the last meeting the Registrant had arranged with Person A and her family. This made the need for an accurate record of the appointment essential to maintain the efficacy of their ongoing care and for the management of their mental health needs;
• The matters found proved at particular 3 reflect a deliberate breach of the Registrant’s duty of confidentiality on a public social media forum and had the potential to be seen by approximately 10,000 people. Person A stated that many people who knew her and her family would have become aware of the family’s need for mental health service support as a result of the post;
• In relation to those matters found proved at particular 4 of the allegation, the Registrant's posts were repeatedly abusive and/or threatening. The post at particular 4b breached the Registrant’s duty to respect confidentiality.

89) The Panel was mindful that, in relation to particulars 3 and 4, the allegations relate to conduct outside the scope of the Registrant’s clinical practice. The Panel has therefore considered its determination in respect of those particulars in light of the case of Beckwith referred to in the Legal Assessor’s advice.

90) The Registrant’s breach of confidentiality and inappropriate social media use was far from polite and considerate, and consequently failed to uphold the trust and confidence that the public can have in the Registrant and in the profession. The Panel therefore concluded that the matters found proved, albeit that they occurred outside of the Registrant’s clinical practice, nevertheless were demonstrably qualitatively relevant to the standards of conduct expected of an Art Therapist.

91) The Panel therefore concluded that the Registrant’s conduct and subsequent breaches of the HCPC’s Standards of Conduct, Performance and Ethics, both individually and collectively, marked serious departures from the standards expected of an Art Therapist.

92) In all the circumstances, and having carefully considered the advice received from the Legal Assessor, the Panel therefore found that the Registrant’s behaviour fell sufficiently far short of the standard expected of her such that it amounted to misconduct.

Decision on Impairment

93) The Panel went on to decide whether, as a result of her misconduct, the Registrant’s fitness to practise is currently impaired.

HCPC submissions

94) Ms Bernard-Stevenson reminded the Panel to consider the ‘public’ and ‘private‘ components of impairment.

95) She submitted that Art Therapists are expected at all times to act in a professional manner. They must make sure that their conduct at all times justifies both service users’ and the public’s trust in the profession. In this regard, she referred the Panel to the judgement of Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) where, at particular 74, she said:

“In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.”

96) Citing the observations of Dame Janet Smith in the 5th Shipman Report, Mrs Justice Cox went on to say in particular 76:

“Do our findings of fact in respect of the doctor’s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:

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

b. has in the past brought and/or is liable in the future to bring the medical 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 medical profession; and/or

d. has in the past acted dishonestly and/or is liable to act dishonestly in the future”.

97) Ms Bernard-Stevenson reminded the Panel that, in relation to the personal component, the Trust recommended some remedial action but that the extent to which it had been acted upon was unclear.

98) She submitted that the views expressed by the Registrant in her posts reflect the Registrant’s personal perspective, and as such, was harder to remediate. She submitted that it was a matter for the Panel to consider whether the Registrant’s fitness to practise was impaired on the personal component.

99) On the basis of the public component, Ms Bernard-Stevenson submitted that public confidence in the profession would be undermined if a finding of impairment was not made. She further submitted that the allegation at particular 3 amounted to a breach of confidentiality and led to a breakdown in the professional relationship between the Registrant and Person A. In respect of the allegation at particular 4, she submitted that making abusive and/or threatening posts in a social media group which has approximately 10,000 members (and in a context when your professional identity has been revealed), is conduct which is likely to reflect poorly on the Registrant and the profession. She submitted that it remained open to the Panel to determine that the Registrant’s fitness to practise is impaired in respect of all allegations on the basis of the public component.

100) In all the circumstances, she submitted that the Registrant’s fitness to practise is currently impaired.

The Registrant’s submissions

101) No specific submissions have been received by or on behalf of the Registrant. However, the Panel has had regard to the Registrant’s comments made during the interview meeting with the Registrant on 4 August 2020. In response to the question “What would you do differently if something similar happened again?”, she stated:

I would not post on that group again, had previously and it had worked well but on this occasion I was so emotional. I would have liked to find the cats’ owner; however I did not expect the responses, or replies to any of it. Having therapeutic intervention has really helped and I have also developed some learning points which seek to do things differently going forward. I now understand how overwhelmed I was, trying to function at a time when I shouldn’t have been. I now have knowledge and ideas of what to do to look after my wellbeing, work out different ways of working with different people and not to let my emotions take over but seek something using the right ways. Having been on my own for four months, I was looking to find myself a connection on Facebook. Previously I had often only used it for events but I got so involved during lockdown.”

Decision on impairment

102) The Panel had regard to all the evidence presented in this case, including the submissions of Ms Barnard-Stevenson. The Panel heard and accepted the advice of the Legal Assessor and took into account the HCPTS Practice Note on “Finding that Fitness to Practise is ‘Impaired’”.

103) Given its findings regarding ‘seriousness’, the Panel considered that limbs a, b and c of Grant were all engaged by the Registrant’s actions. The Panel had regard to the fact that confidentiality and courtesy were core values of the Art Therapist profession which the Registrant had breached as set out in its determination on facts.

104) However, in assessing future risk, the Panel noted that the Registrant had developed some insight into her failings. She had appreciated that her actions principally in relation to particular 1, were unacceptable and she has apologised for them. There is no information before the Panel to suggest that her misconduct has been repeated. The Panel was mindful that proper record keeping was an essential prerequisite for effective service user care and risk management.

105) In reaching its determination, the Panel has assessed the extent of the Registrant’s insight and steps taken to remediate her failings.

106) In relation to her insight, the Panel has identified the following:

a) That the Registrant promptly removed some of the Facebook posts;
b) She promptly notified her Manager about what she had done;
c) She wrote a letter of apology to Person A apologising for any distress or concern caused, recognising that her actions were wrong;
d) SM stated that, having spoken to the Registrant, the Registrant was
“mortified” at what she had done; and
e) In her interview of 4 August 2020, she explained how she would now do things differently.

107) However, the Panel has also identified the following:

a) Whilst being candid to her Manager and apologising to Person A, the Registrant has not meaningfully demonstrated that she has appreciated and specifically reflected upon the impact of her actions on Person A’s family or the wider profession;
b) In her document headed “Additional Information”, the Registrant’s reflections focussed on the impact of her actions on herself, for example by stating that she had been the victim of slander and that she should obtain a restraining order against Person A who she described as
“aggressive and unpredictable”;
c) The Registrant has not given details of those matters learned (referred to in her interview on 4 August 2020) that would enable her to act differently if faced with a similar situation again;
d) The Registrant has not demonstrated an understanding of the consequences of her failure to maintain adequate records for service user care;
e) The Registrant has not provided evidence that she has undertaken any additional training or taken other meaningful steps to address her failings in relation to record keeping or confidentiality issues.

108) Given the Registrant’s limited insight and lack of demonstrable evidence that she had remediated her failings, the Panel concluded that there remained an ongoing risk of repetition of her misconduct if she found herself in a similar position again in future.

109) In the circumstances, the Panel did not therefore consider that it was highly unlikely that her misconduct would be repeated.

110) In all the circumstances, the Panel therefore determined that a finding of impairment was required on the personal component of impairment and it therefore makes such a finding.

111) The Panel also took into account the overarching objectives of the HCPC to protect, promote and maintain the health, safety, and wellbeing of the public and patients, and to uphold and protect the wider public interest, which includes promoting and maintaining public confidence in the Art Therapist profession and upholding proper professional standards for members of the profession. The Panel therefore considered that, given the nature and breadth of the misconduct, public confidence in the profession would be undermined if a finding of impairment were not made in all the circumstances.

112) Having regard to all of the above, the Panel finds that Registrant’s fitness to practise is currently impaired on both the personal and public components of Impairment.

Sanction

HCPC’s submissions

113) Ms Bernard-Stevenson made submissions to the Panel on sanction. She referred to the HCPC’s 2019 updated Sanctions Policy (“SP”) and reminded the Panel to start from the least restrictive sanction, bearing in mind the need to act proportionately.

114) Ms Bernard-Stevenson reminded the Panel that its role was not to punish a Registrant but to protect the public and the public interest. It was, she submitted, an exercise in addressing public safety and managing the risk to those who use the Registrant’s services. She submitted that the Panel should have regard to the wider public interest, the deterrent effect of any sanction, the reputation of the profession and confidence in the regulatory process. She referred to the available sanctions open to the Panel, reminding it that it should consider these in an ascending order of seriousness, not imposing any more severe a sanction than is necessary to achieve its objective. In doing so, the Panel should balance the public interest with the Registrant’s interests.

115) She invited the Panel to take into account any aggravating and mitigating factors. In relation to aggravating factors, she submitted that the Panel should have regard to the Registrant’s breach of her duty of confidentiality which represented a significant breach of trust with vulnerable service users which had the potential to jeopardise Person A and her family’s access to care. She also reminded the Panel that it had identified within its determination on impairment, that the Registrant had taken only limited steps towards remediating her failings. She also submitted that the Registrant had not provided any supporting references or testimonials and that she had repeated her inappropriate use of social media postings.

116) By way of mitigation, she made reference to the Registrant’s difficult personal circumstances at the time, and that the Registrant had stated how that had impacted on her behaviour. She also reminded the Panel that the Registrant had deleted a number of posts, had promptly informed her Manager as to what had happened, and had sent a letter of apology to Person A which demonstrated a level of contrition for her behaviour.

117) In conclusion, she stated that she was not advocating for any particular sanction but stated that this remained a matter for the Panel’s judgement.

The Registrant’s submissions

118) The Registrant has not made any specific submissions on sanction, but her various emails and statement headed “Additional Information” provided some background as to the Registrant’s difficult personal circumstances at the time and that those had impacted on her behaviour.

Decision on Sanction

119) The Panel accepted the advice of the Legal Assessor who referred it to the SP. He reminded the Panel it should consider any sanction in ascending order, and to apply the least restrictive sanction necessary to protect the public and the public interest. It should also consider any aggravating and mitigating factors and bear in mind proportionality. He reminded the Panel that the primary purpose of imposing a sanction was protection of the public and the public interest and that there was a need to balance those interests with the interests of the Registrant.

120) In reaching its decision on whether to impose a sanction, and if so, which one, the Panel has considered all the information before it. In doing so, the Panel identified the aggravating factors identified at paragraph 107 above. In summary, the Registrant has demonstrated limited insight into her failings, and has taken limited steps towards remediating them. The Panel was mindful that the Registrant’s failings in relation to inadequate record keeping and confidentiality related to vulnerable service users who were entitled to place their trust and confidence in the Registrant. The Registrant’s actions, most notably in relation to the Registrant’s breach of her duty of confidentiality, amounted to a serious breach of that trust, which the Panel considered to be a particularly aggravating feature of this case.

121) In terms of mitigating factors, the Panel identified those factors referred to in paragraph 106 of its determination in that she had made an apology to Person A and shown some contrition, and that she had removed a number of posts and had been candid with her Manager. She had taken some, albeit limited steps to remediate her failings. The Panel also noted the Registrant’s difficult personal circumstances at the time. It also took account of the fact that there have been no previous adverse regulatory findings made against the Registrant.

122) The Panel approached the issue of sanction starting with the least restrictive first, bearing in mind the need for proportionality and to take into account the Registrant’s interests. Having done so, it concluded that taking no further action would not reflect the nature and gravity of the misconduct. The Panel concluded that taking no action would not be adequate to protect the public or the wider public interest of maintaining confidence in both the profession and the regulatory process. Such an outcome was therefore neither appropriate nor proportionate in the circumstances.

123) The Panel next considered mediation, but having had due regard to the circumstances of this case, such an outcome was inappropriate to address the issues of inadequate record keeping and breach of confidentiality. It therefore concluded that this was not an appropriate outcome.

124) The Panel then considered whether to impose a Caution Order and had regard to paragraphs 99-102 of the SP. The Panel concluded that this was also not an appropriate outcome because:

a) For the reasons set out in its determination on misconduct and impairment, the Panel did not consider the Registrant’s conduct to be minor in nature;
b) The Registrant has demonstrated limited insight;
c) The Panel considered that there remained an ongoing risk of repetition given the lack of effective remediation of her failings.

125) The Panel next considered whether a Conditions of Practice Order was appropriate. It had regard to paragraphs 105-109 of the SP. Having done so, it has concluded that such a sanction would neither be appropriate nor proportionate to address the public interest concerns identified because:

a) It would be impracticable to impose conditions where the Registrant was not working and had not expressed a willingness to abide by any conditions that may be imposed on her practice;
b) The issues in relation to the social media posts reflect behavioural concerns rather than specific areas of her practice that would benefit from retraining, and
c) The Registrant had been made the subject of an Action Plan resulting from the Trust’s disciplinary process. Whilst the Registrant had taken some steps to put the recommendations of the Action Plan into effect, for example by coming off Facebook, the Registrant has not demonstrated that she has meaningfully engaged with it and that she has effectively addressed her failings.

126) In the circumstances, the Panel concluded that imposing a Conditions of Practice Order was not the appropriate sanction to impose.

127) The Panel next considered the sanction of suspension. The Panel has borne in mind that this would be an appropriate sanction to impose where, even though the allegation is serious, a striking off order is not merited.

128) The Panel considered that this was the appropriate sanction to impose because:

a) The matters found proved represented a serious breach of the Standards of Conduct Performance and Ethics;
b) The Registrant has demonstrated some insight into her failings by apologising to Person A, being forthright with her Manager and by coming off Facebook;
c) The Panel considered that the Registrant's failings were remediable and were not so serious that they were fundamentally incompatible with remaining on the register. In reaching that conclusion, it had regard to paragraph 121 of the SP which states that a Suspension Order may be appropriate where “there is evidence to suggest that the Registrant is likely to be able to resolve or remedy their failings”. The Panel noted that the Registrant, as stated above, had taken some steps to address her failings, even though that process was not as yet complete.

129) To satisfy itself that a Suspension Order was the appropriate and proportionate sanction to impose, the Panel considered whether a Striking-off Order was justified. It had regard to paragraph 130 of the SP which states that: “A striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts” whilst setting out a non-exhaustive list of applicable circumstances. The Panel was satisfied that the facts of this case were not of such gravity so as to merit such a restrictive sanction. It concluded that the public protection, and the public interest concerns could be adequately met by the imposition of a Suspension Order which would restrict the Registrant’s ability to practise as an Art Therapist until such time as a reviewing panel determined that she was fit to do so.

130) The Panel therefore imposes a Suspension Order for a period of 12 months. The Panel concluded that that was an appropriate and proportionate period of time to reflect the nature and gravity of the misconduct found proved and allow the Registrant an adequate period of time to address her failings.

131) The Panel makes no order pursuant to Article 29(7)(b) of the Health Professions Order 2001.

132) So far as any future review is concerned, the Panel considered a future reviewing panel would be assisted by:

a) Evidence of remediation in relation to record-keeping and confidentiality issues;
b) Evidence of reflection on her conduct demonstrating meaningful insight into the impact of her failings on others;
c) Any other evidence the Registrant considers would assist her to demonstrate that she is suitable to return to unrestricted practice.

ORDER: That the Registrar is directed to suspend the registration of Ms Lucy Gibson-Hill for a period of 12 months from the date this order comes into effect.

This order will be reviewed again before its expiry on 28 July 2023.

Interim Order

The Panel concluded that the appropriate length of the Interim Suspension Order should be 18 months, as the interim order would continue to be required pending the resolution of an appeal in the event that the Registrant submits a Notice of Appeal within the 28-day period. This Interim Suspension Order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) on the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Lucy Gibson-Hill