Miss Sarah Neita

Preliminary Matters

Service

1. The Notice of Hearing dated 23 February 2022 was emailed by the HCPC to the Registrant’s HCPC registered address. This Notice confirmed that the hearing would take place by video conference today. The Panel is satisfied that there has been good service of the Notice of Hearing, in accordance with Rules 3 and 6 of the Procedure Rules.

Proceeding in private

2. As set out in the HCPTS Practice Note Conducting Hearings in Private, the general rule is that hearings are to be in public. In certain circumstances, it will be in the interests of justice for a hearing to take place wholly, or partly, in private. Ms Welsh submitted that parts of this hearing should be held in private, when the Registrant’s health was to be discussed. The Panel decided that this hearing should be partly in private, under Rule 10 of the Procedure Rules, to protect the private life and the confidentiality of health matters relating to the Registrant.

Background

3. From November 2009 the Registrant was employed as an Occupational Therapist by Lewisham Healthcare NHS Trust (‘the Trust’). The Registrant was primarily responsible for working with children with coordination difficulties in mainstream schools and with children with severe learning and movement disorders within Special Schools.

4. The Registrant’s role was to meet patients and their families on both a one-to-one and group basis, assess patients, and set goals and targets for the development of their coordination. In November 2010, the case of Child 6 was allocated to the Registrant. She carried out an Initial Assessment in November 2010. By October 2011, the Registrant had still not written a report on Child 6 and there were concerns about the Registrant’s performance. Therefore a Performance Management Plan was put in place in May 2011 and satisfactorily completed by her. The Registrant was then promoted to a Band 6 role which required more complex clinical reasoning and assessment and she needed to work at an increased pace. The Registrant had demonstrated further poor record keeping by a failure to complete relevant paperwork following her assessment of three other children. There had been other examples of poor record keeping and failure to complete records within required timescales in June 2010, March 2011, October 2011 and January 2012. In March 2012, the Registrant submitted her resignation to the Trust. She took with her, on leaving, a number of documents which contained confidential information about children allocated to her and their families. These papers included supervision forms, caseload forms, reports and notes of action plans.

The Substantive Hearing on 20 - 28 February 2017

5. The Substantive Hearing panel found there was misconduct and a lack of competence. Particular 2 alleged that the Registrant had not demonstrated satisfactory clinical practice in that, in a particular case, she had failed to follow up on her recommendation for a weighted hand-splint. In the view of the panel, this allegation was linked to the failures of record keeping and amounted to another example of lack of competence. The panel determined that there had been a pattern of failure on the Registrant’s part to take required action on cases in a timely manner. Although health reasons had contributed to the level of the Registrant’s ability to meet the required standards, she was unable sufficiently or consistently to improve the standard of her work.

6. The panel determined that there was no justification for removing confidential documents and that the decision of the Registrant to do so amounted to disrespect of the confidentiality of service users and amounted to misconduct. The panel found the particulars set out above proved and concluded that the Registrant was impaired on both the personal and public components.

7. The panel imposed the following Conditions of Practice on the Registrant for a period of 2 years:

Within six months of the Operative Date you must:

(1) satisfactorily complete a course on data protection/information governance/confidentiality;

(2) forward a copy of your results or course certificate to the HCPC;

(3) write a reflective piece demonstrating your understanding of the importance to service users of maintaining confidentiality.

2. You must send a copy of your reflective piece on confidentiality to the HCPC at least four weeks before the date of the Review Hearing

3. If you engage in professional work as an Occupational Therapist you must place yourself and remain under the supervision of a supervisor and supply details of your supervisor to the HCPC within fourteen days of commencing such work.

4. If you engage in professional work as an Occupational Therapist you must: (a) work with your supervisor to formulate a Personal Development Plan designed to address the following areas of your practice:

(i) Completing written assessments within the required timeframe;
(ii) Completing clinical records within the required timeframe;
(iii) Progressing cases by following up on recommendations for intervention. (b) Within three months of commencing work as an Occupational Therapist you must forward a copy of your Personal Development Plan to the HCPC.

(c) 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.

(d) 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.

5. You must promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.

6. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

7. 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)

8. You will be responsible for meeting any and all costs associated with complying with these conditions.

The first review hearing

8. On 27 October 2017, the Registrant made an application for an early review as she had completed a Data Protection training course on 24 October 2017 and submitted a Reflective Learning piece that she had written for her course. At the time of her review application, the Registrant was employed as a Functional Analyst, but was on long-term sick leave. She stated that she was at risk of losing her job and wanted her case reviewed because the conditions were “harsh” and it was inappropriate for her practice to be subject to any restrictions. She also stated that having a Conditions of Practice Order [redacted] would prevent her from obtaining employment as an Occupational Therapist. [Redacted] due to the Conditions of Practice Order, she was unemployable.

9. The Registrant submitted that the Substantive Hearing in February 2017 related to events which had taken place between 2010 and 2012, and that no service user had ever complained about her conduct or competence. She accepted making errors, albeit she attributed some of them to [redacted] a general lack of support from the Trust. She had learnt from her errors and had taken steps to ensure that she had addressed the issues raised. The Registrant had not applied for a post as an Occupational Therapist; she was employed as a Functional Analyst.

10. The panel found conditions 1 and 2 of the Order could be deleted because the Registrant had successfully completed a Data Protection Course and shown insight in relation to her misconduct. The Registrant had remediated her misconduct in relation to Particular 3, had shown insight and the Conditions imposed in relation to her misconduct were no longer required. However, in relation to the other issues relating to her lack of competence, the panel found that she was still impaired under the components of public protection and the public interest. The panel considered that the Registrant was remorseful and had developed some further insight, but she had not fully remediated and without evidence of remediation and full insight, there was a risk of repetition, if restrictions were not in place upon her practice. The panel therefore extended the Conditions of Practice Order in relation to the remaining six conditions, adapting condition 4.

The second and third review hearings: 21 February 2019, 25 February 2020

11. There was another review of the Conditions of Practice Order on 21 February 2019 and on 25 February 2020. The Registrant represented herself at both these review hearings and made representations to the reviewing panels. The reviewing panel, on the 25 February 2020, determined that the Registrant’s fitness to practise remained impaired. It found that the Registrant was open and honest and that she had recently begun to take active steps to return to work. She had [redacted] health issues and the panel was impressed by her level of commitment, determination and developing insight. However, the panel determined the Registrant's essential failings which had been identified, had still not been remediated. In particular, there was no evidence that she had remediated in relation to her report writing, note taking, completion and submission of records (in a timely manner), and follow-up work and there was a risk of repetition. The panel imposed a further Conditions of Practice Order for 12 months.

The fourth review hearing on 15 March 2021

12. At the fourth review hearing on 15 March 2021, the HCPC submitted that the Registrant’s fitness to practise remained impaired. There was no evidence the deficiencies in her practice had been remedied. The Registrant was unable to present the panel with a Personal Development Plan because she had not been able to obtain employment as an Occupational Therapist.

13. The Registrant gave oral evidence at this review hearing and expressed her remorse. She had reflected on matters and stated that part of the reason she had been unable to find employment as an Occupational Therapist was because Condition number 1 of her Conditions of Practice, was interpreted by potential employers as requiring direct supervision. She submitted that Condition number 1 should require the normal level of supervision of any Occupational Therapist in employment. (This Condition was interpreted by the HCPC, as not requiring direct supervision). The Registrant referred to her numerous job applications and interviews, her medical conditions and how they affected her and how she had to take extended sick leave in order to recover and cope. [Redacted].

14. The panel noted the following:

a) The engagement of the Registrant with the process and her commitment to remaining in the profession;

b) The assessment by her current line manager in her voluntary role in relation to the transferrable skills of her current role.

15. The panel stated they were impressed by the Registrant’s level of commitment to remaining in the profession and her continued engagement with the HCPC process. The Registrant recognised the shortcomings in her practice in relation to timeliness of report writing and assessments, and had insight into those shortcomings. There were no attitudinal issues. An issue remained as to whether she has demonstrated that she had remediated those shortcomings and she is able to safely practise as an Occupational Therapist without restrictions. The panel took into account the employment that the Registrant had as a Functional Analyst and the overlap between that work and the work of an Occupational Therapist. The panel also noted that the Registrant had been on long-term sickness absence from this employment since 2016. The panel took into account the Registrant's medical conditions and considered whether the Registrant had demonstrated that she has taken sufficient steps to remediate and if her health conditions were such that it was safe for her to practise without restrictions, assuming her employer put in place reasonable adjustments.

16. The panel determined that the only concern related to the Registrant's ability to maintain timeliness in her report writing and assessments under pressure, with reasonable adjustments for her health conditions. The Registrant had difficulty obtaining employment as an Occupational Therapist due to the manner in which prospective employers had misinterpreted Condition 1 as requiring 'direct supervision'. The Registrant had been doing voluntary work that required her to create and complete reports and assessments. However, the panel determined that these reports and assessments were not at the level of an Occupational Therapist. The Registrant stated that these reports and assessments, at the highest, would be at the level of Band 2 or Band 3 and she had not been able to demonstrate timeliness of writing reports and assessments at the level of an Occupational Therapist. Therefore the Registrant's fitness to practise remained impaired by reason of her lack of competence.

17. The panel considered taking no action or the imposition of a Caution Order would neither protect the public nor be in the public interest. A Conditions of Practice Order remained appropriate and proportionate to protect the public and was in the public interest.

18. The panel stated the Conditions enable the Registrant to return to unrestricted safe practice because:

a) They only apply if the Registrant is carrying out employment as an Occupational Therapist.

b) The level of supervision that is envisaged is that which would be normal to the Occupational Therapist level at which the Registrant is to be employed.

c) The supervisor does not have to be an Occupational Therapist so long as they are a healthcare professional registered with a healthcare regulator.

19. A sanction of suspension or striking off would be disproportionate in the circumstances where the Registrant has not been able to demonstrate remediation through no fault of her own. A Conditions of Practice Order for a further 12 months would enable the Registrant to obtain employment as an Occupational Therapist and demonstrate that she is no longer impaired.

20. The panel also stated a future reviewing Panel may be assisted by:

a) Testimonials from current or recent employers or supervisors including (if relevant) to comment on the Registrant’s ability to consistently keep satisfactory and timely records. This does not necessarily have to be in the context of employment as an Occupational Therapist. The concerns relate to the Registrant's ability to produce reports and assessments in a timely manner under normal working pressures. Testimonials that address that point, particularly where they also deal with how technical those reports are and the time constraints would be particularly relevant.

b) Evidence that the Registrant continues to keep up to date with the appropriate CPD requirements for the profession.

Today’s hearing

21. In July 2021, the Registrant contacted the HCPC and stated that she felt she was in an awkward position as, although at the last review the panel had clarified Condition 1 around supervision, she had still been unable to find work as an Occupational Therapist. The Registrant stated that she had been applying for positions but had been unable to obtain any work so far. The Registrant stated she was considering going back to her previous employer, but this would not meet the requirements set previously, and so at the next review she would be in the same position. The Registrant stated however that she needed to work to earn a living.

22. In January 2022, the Registrant again contacted the HCPC and stated she had been offered an Occupational Therapy position, but there was a significant pay drop. She wanted to be sure that after she had complied with the Conditions of Practice, she would be free to resume practice. She also stated her previous employer had sent her a letter about a disciplinary investigation, arising from her employment as a Functional Analyst. Her employer had stated that the HCPC contacted him about her Conditions, and he claimed she had been dishonest in not telling him about the HCPC proceedings. The Registrant stated when the HCPC investigation started she had informed her old boss, who had since left. She had not informed her employer about her Conditions of Practice but she had been off work due to health reasons so had not thought to do so, partly due to stress. Her employer had invited the Registrant to an initial meeting in relation to these matters in November 2021 but the Registrant had resigned. She felt her employer’s behaviour had been bullying and unacceptable.

Submissions by the HCPC

23. Ms Welsh summarised the background of the case. She submitted that the current Order should be extended for another 12 months, to enable the Registrant to take the necessary steps to allow a Panel to decide that her fitness to practice is no longer impaired on both the personal and the public components of fitness to practise.

24. 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 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...” The factors to take into account include the steps the Registrant has taken to address any specific failings or other issues identified in the previous decisions, the degree of insight shown and whether this has changed. The steps which the Registrant has taken to maintain or improve her professional knowledge and skills, whether any other fitness to practise issues have arisen and whether the Registrant has complied with the existing Order.

Submissions by the Registrant

25. On the morning of the hearing, the Registrant provided 112 pages of documents. She has obtained an Occupational Therapy position [redacted]. The Registrant gave evidence to the Panel today and explained that in relation to her current employment she has been off work due to ill health since 3 February 2022. She expressed her remorse and apology for her poor record keeping and breach of confidentiality and she fully acknowledged the failings, which gave rise to these proceedings. She acknowledged the risks created to service users and other professionals. It has been difficult for her to obtain her current position in view of her health problems. However, she has always remained confident that she would be able to comply with the current Conditions if she could obtain an Occupational Therapy position. She intends to undertake the necessary updating and re-training for her challenging new role, as demonstrated by the documents she has produced today. She is awaiting the outcome of an Occupational Health Assessment, and hopes to return to Occupational Therapy work soon. [Redacted] The team she will be working with are aware she is returning to Occupational Therapy work after not practising for a significant time and have offered her the necessary support.

Legal Assessor’s advice

26. The Legal Assessor advised that this is a Review under Article 30(1) of the Health Professions Order 2001 and the Panel should take into account the HCPTS Practice Note on Review of Article 30 Sanction Orders. Article 30(1) provides that a Conditions of Practice Order must be reviewed before it expires and the reviewing Panel may extend, or further extend the period for which the order has effect, or make an order which could have been made when the order being reviewed was made. An 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. 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. Given that part of the Panel’s task is to assess whether the fitness to practise of the Registrant remains impaired, the Panel should also take into account the HCPTS Practice Note on Finding Impairment. Also the Practice Note on Drafting Decisions and the HCPC Sanctions Policy. This review process is not a mechanism for appealing against or ‘going behind’ the previous findings that the Registrant’s fitness to practise was impaired. The purpose of this review is to consider if 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. The key issue for the Panel is what has changed since the last review. There is an obligation upon the Registrant to address the concerns previously raised. The Article 30 Practice Note states the reviewing Panel’s task “is to consider whether all the concerns raised in the original finding of impairment... [have] been sufficiently addressed”.

Decision

27. The Panel accepted the advice of the Legal Assessor that there is a persuasive burden on the Registrant to demonstrate to this reviewing Panel that she has taken sufficient steps to remedy her lack of competence. The matters found proved related to a number of issues as set out in the decisions of the previous panels.

28. Since the Substantive Hearing concluded on 28 February 2017, the Registrant has engaged with the HCPC for 5 years. The Panel finds that there has been significant positive change since the last hearing. The Registrant has obtained an Occupational Therapy position from 31 January 2022. Her supervisor is aware that she will need support in her new role. The Registrant gave evidence to the Panel today. She openly explained her concerns and acknowledged that her skills require updating before the Conditions of Practice Order can be removed.

29. The Registrant has demonstrated much fuller insight today and it is not for want of trying that she has not yet complied with the Conditions of Practice. She had not worked as an Occupational Therapist for about 4 years until starting her current employment. Unfortunately, she has been off work due to ill health since 3 February 2022 and has been unlucky to suffer [redacted] health problems, which have prevented her from continuing to work, after 4 days in her new post.

30. A member of the public, in possession of all the facts and information about this case, would be concerned if there were no restrictions on the Registrant’s practice, in light of the lack of competence findings, despite the support and supervision provided to the Registrant. The need to uphold proper professional standards and maintain public confidence in the profession would be undermined if a finding of current impairment is not made today.

31. The Panel therefore concluded that the Registrant’s fitness to practice remains impaired on the personal component. Also on the public component because members of the public would not have confidence in the profession, or in the regulator, if the Registrant is permitted to return to unrestricted practice at present.

32. The Panel has considered the available sanctions in ascending order of severity. To take no action and or to impose a caution would not be appropriate due to the lack of competence findings. A further Conditions of Practice Order is the appropriate sanction option today. The Registrant is genuinely committed to complying with the Conditions of Practice. There has been considerable improvement since the last review and the Panel finds the Registrant is remorseful and determined to return to unrestricted practice. She has demonstrated that she can overcome the obstacles she faces. However, the current Conditions of Practice have not yet been fully addressed.

33. Accordingly, because the Panel finds there has been significant progress in relation to the current Order, the Panel has decided to extend the existing Order for a further 12 months. This is a realistic period to enable the Registrant to complete her 6 month probationary period and demonstrate she has fully complied with the Conditions of Practice. Any lesser sanction would not be sufficient to protect the public or safeguard the public interest. A Suspension Order is not necessary and would be disproportionate.

34. The next reviewing panel will be assisted by the continued engagement with this review process by the Registrant, and:

a) Testimonials from current or recent employers or supervisors including (if relevant) to comment on the Registrant’s ability to consistently keep satisfactory and timely records. This does not necessarily have to be in the context of employment as an Occupational Therapist. The concerns relate to the Registrant's ability to produce reports and assessments in a timely manner under normal working pressures. Testimonials that address that point, particularly where they also deal with how technical those reports are and the time constraints would be particularly relevant.

b) Evidence that the Registrant continues to keep up to date with the appropriate CPD requirements for the profession.

ORDER: The current Conditions of Practice Order for Miss Sarah Neita is to be extended for 12 months upon the expiry of the existing Order:

The Conditions are:

1) If you work as an Occupational Therapist, you must place yourself and remain under, the supervision of a supervisor who must be a healthcare professional registered with any of the healthcare regulators and supply details of your supervisor to the HCPC within fourteen days of commencing such work. For the avoidance of doubt, this condition envisages the level of supervision to be that which would be normal for the Occupational Therapist level at which the Registrant is employed.

2) If you engage in professional work as an Occupational Therapist you must:

a) Work with your supervisor to formulate a Personal Development Plan designed to address the following areas of your practice:

(i) Completing written assessments within the required timeframe;

(ii) Completing clinical records within the required timeframe;

(iii) Progressing cases by following up on recommendations for intervention.

b) Within three months of commencing work as an Occupational Therapist you must forward a copy of your Personal Development Plan to the HCPC.

c) Following the submission of your Personal Development Plan in accordance with (b) above, you must then provide, every three months, an updated Progress Report on your Personal Development to the HCPC, to be endorsed by your supervisor.

3) You must promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.

4) You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

5) 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).

6) You will be responsible for meeting any and all costs associated with complying with these conditions.

The order imposed today will apply from 28 March 2022.

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

History of Hearings for Miss Sarah Neita