Mrs Lorna C Carr
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Allegation
Allegation (as amended at Final Hearing, Day One, 14 March 2022)
As a registered Occupational Therapist (OT43332) your fitness to practise is impaired by reason of misconduct. In that:
1. Whilst signed off as unfit to work, and receiving sick pay from West Lothian Council, you provided misleading and/or dishonest information to West Lothian Council in that, you stated:
a) You were unable to go outdoors without polarised lenses;
b) You could only tolerate short periods of daylight;
c) You were rarely able to leave your home environment;
d) You were unable to drive.
2. Whilst employed by West Lothian Council and receiving sick pay, you attended and/or participated in Sensory Sessions classes on the following dates:
a) Wednesday 6 September 2017;
b) Thursday 7 September 2017;
c) Monday 11 September 2017;
d) Monday 30 October 2017.
3. Your actions at paragraphs 1 and 2 were misleading and/or dishonest.
4. The matter’s described at paragraphs 1 to 3 above constitute misconduct.
5. By reason of your misconduct your fitness to practise is impaired.
Finding
Preliminary Matters
Backdrop to the Hearing
1. The Panel convened to consider misconduct allegations against the Registrant following a Joint Minute issued by the Court of Session (‘the Joint Minute’). By this Joint Minute, the decision of the Panel, dated 17 March 2021, whereby the Registrant’s name was struck-off the Register, was quashed. The decision in question was made following a hearing which took place between 15 and 17 March 2021. The Registrant did not attend that hearing and was not represented.
2. In quashing the decision, the Court directed:
‘Under Article 38(3)d) of the Health Professions Order 2001 to remit the case to the same panel of the Conduct and Competence Committee of the [HCPC] with directions that the allegations be re-considered on the basis of;
a. The oral evidence of the [Registrant] (which was not considered at the previous hearing);
b. Cross-examination of the [Registrant] by the HCPC together with any re-examination; and
c. The existing evidence to be considered on the papers.’
Service
3. Notice of the hearing was served by post on the Registrant’s registered address and by email to the Registrant’s registered email address on 11 February 2022. In response and, as set out more extensively below, on 11 March 2022, the Registrant emailed the HCPC to advise that she would not be attending the hearing which had been scheduled to commence on 14 March 2022.
4. The Panel, having heard and accepted the advice of the Legal Assessor, was satisfied that this evidence met the requirement of the applicable Rules which required the Registrant to be notified of the hearing. Accordingly, the Panel was satisfied that service of the proceedings had been effected on the Registrant.
Proceeding in absence
5. The Registrant was neither present nor represented.
6. The Panel heard a submission from Mr Bridges to proceed with the hearing in the Registrant’s absence. Mr Bridges set out the history of the proceedings to date. He reminded the Panel that, in accordance with the directions contained in the Joint Minute, the matter was listed for Hearing on 24 January 2022. On that date, the Panel had received correspondence from the Registrant’s solicitors to the effect that they were no longer instructed on her behalf. As the Panel could not be certain that the Registrant had voluntarily waived her right to attend the Hearing, the Panel had decided that it was unfair and inappropriate to proceed in her absence.
7. Mr Bridges stated that, following the adjournment of the Hearing by the Panel in January 2022, the HCPC had attempted to make contact with the Registrant to ascertain whether she wished to engage with the proceedings. The Registrant had sent an email to the HCPC on 11 March 2022 in which she stated as follows:
‘Thanks for getting in touch with the dates for the hearing and information for next week. Thanks for your time and the opportunity for me to give my side of the case after it went ahead last year in my absence. [redacted], I’ve made the decision not to progress with this.’
8. Mr Bridges submitted that the Registrant’s email evidenced her intention not to attend the Hearing. He invited the Panel to proceed in the Registrant’s absence.
9. The Panel heard and accepted the Legal Assessor’s advice and had regard to the HCPTS Practice Note, ‘Proceeding in the Absence of the Registrant’.
10. The Panel was satisfied that it was fair and appropriate to proceed in the Registrant’s absence. Her email to the HCPC dated 11 March 2022 made plain that she was aware of the hearing dates and contained an unequivocal indication that she did not desire to attend the Hearing. Thus, the Panel was satisfied that the Registrant had voluntarily absented herself from attending the Hearing. Further, there was no basis upon which to suppose that adjourning the Hearing to a later stage would secure the Registrant’s attendance of the attendants of a representative on her behalf.
11. The Panel noted that proceeding in the Registrant’s absence could cause some disadvantage to her. However, the Panel considered that it could attach such weight, as it considered appropriate, to the Registrant’s evidence as contained in the papers as the hearing unfolded.
12. The Panel also considered the other factors which weighed in favour of the hearing proceeding in the Registrant’s absence. The allegations were serious and, as such, the Panel considered that the public interest was engaged in this case.
13. For all the reasons advanced, the Panel considered that it was fair and appropriate to proceed in the Registrant’s absence. In so deciding, the Panel was careful not to draw any adverse inference against the Registrant in relation to her decision not to attend.
Application to admit documents
14. At the Hearing in March 2021, the Panel heard oral evidence from the following witnesses:
a. Witness 1 - Occupational Therapy Manager with the Council and the Registrant’s line manager; and
b. Witness 2 - Senior Counter Fraud & Compliance Officer with the Council.
15. The Panel was told by Mr Bridges that, in accordance with the directions given by the Court in relation to this remitted Hearing, the HCPC did not intend to call either Witness 1 or Witness 2.
16. Mr Bridges applied to admit the following documents in evidence:
a. The final hearing bundle;
b. The Registrant’s written representations to the Investigating Committee of the HCPC in relation to the allegations against her;
c. The written transcript of the oral evidence of Witness 1 and Witness 2 at the March 2021 Hearing;
d. The written transcript of the opening and closing remarks of the Presenting Officer on the facts at the March 2021 Hearing; and
e. The Panel’s determination dated 17 March 2021, in respect of the fact-finding stage of the proceedings, the remainder of the determination being redacted in its entirety.
17. The Registrant was absent from the Hearing. She had made no admission in respect of the Allegation. The burden of proving the Allegation rested on the HCPC. Mr Bridges submitted that the documents which he proposed to admit, together with the format the documents were in, were relevant to the Panel’s proper consideration of the Allegation, while ensuring fairness to the Registrant.
18. The Panel heard and accepted the Legal Assessor’s advice. The Panel was satisfied that the admission of the documents was relevant to the Allegation and it was fair to admit them. The Panel granted Mr Bridges’ application.
Amendment to the Allegation
19. Mr Bridges applied to amend the Allegation.
20. The Panel was told by Mr Bridges that the proposed amendments had been sent to the Registrant in a letter from the HCPC on 1 April 2020. There had been no objection to the proposed amendments by the Registrant.
21. Mr Bridges submitted that the proposed amendments did not alter the substance of the Allegation which the Registrant faced, and that no injustice would be caused to the Registrant if the Allegation was amended in the manner proposed.
22. Having heard and accepted the Legal Assessor’s advice, the Panel granted the application. The Panel was satisfied that the proposed amendments, about which the Registrant was on notice, did not alter the substance of the Allegation nor would the Registrant be caused an injustice if the application was granted.
Application for part of the hearing to be held in private
23. The Panel heard a submission by Mr Bridges for any part of the proceedings that concerned the Registrant’s health to be conducted in private.
24. The Panel, having heard and accepted the advice of the Legal Assessor and having regard to the HCPTS Practice Note, ‘Conducting Hearings in Private’, decided that it would convene in private when such matters were raised.
Background
25. The Registrant is a registered Occupational Therapist.
26. The Registrant was employed by West Lothian Council (‘the Council’), as an Occupational Therapist, from 2005 until 5 April 2018. The Registrant worked in the Social Policy, Community Occupational Therapy Department.
27. In her role, the Registrant was responsible for assessing service users of all age groups with multiple conditions and presentations. She met clients in their home environments and would assess clients in relation to the difficulties they were experiencing. This also included consideration as to how best to support clients, to enable them to continue to live safely in their own homes, including any equipment or adaptations they required in order to meet this objective.
28. From October 2016, the Registrant’s Occupational Therapy Team Manager/ Line Manager, was Witness 1.[redacted]
29. The Registrant’s sickness absence was managed in accordance with the Council’s Managing Sickness Absence Policy (‘the Policy’). As part of the Policy, the Registrant had regular review meetings with Witness 1. During these meetings, the Registrant discussed with Witness 1 her absence from work owing to sickness and, further, the Registrant provided to Witness 1 information regarding the impact which her condition was having on her ability to return to work.
30. In July 2017, information was brought to the Council’s attention that the Registrant, while absent from work owing to sickness, was running her own private business, Sensory Sessions. A referral was made to the Council’s Counter Fraud Team, following which an investigation was commenced. The investigation looked at whether the Registrant had provided incorrect information to the Council regarding symptoms associated with her condition and whether she was working privately while being on sickness absence with the Council. A covert surveillance operation was put in place by the Council and, at a later stage, the Registrant and staff at Sensory Sessions were spoken to by staff from the Council’s Counter Fraud Team (‘CFT’).
31. Following the completion of the investigation by the CFT, a disciplinary investigation was initiated against the Registrant by the Council. The Registrant left her role with the Council before the disciplinary investigation could be completed.
32. Following the initiation of civil proceedings against her by the Council, the Registrant agreed to pay back the full sum of the money paid to her during her sickness absence.
Decision on Facts
33. Before retiring to consider its decision on the facts, the Panel carefully considered all the documentary evidence which had been presented at the Hearing. The Panel heard and accepted the Legal Assessor’s advice.
34. The Panel was reminded that the burden of proof required the HCPC to prove each element of the Allegation on the balance of probabilities. The Panel could only be satisfied that a fact was proved if it was satisfied that it was more likely than not to
have occurred.
35. The Panel then turned to consider the Allegation.
Particular 1
As a registered Occupational Therapist (OT43332) your fitness to practise is impaired by reason of misconduct. In that:
1.Whilst signed off as unfit to work, and receiving sick pay from West Lothian Council, you provided misleading and/or dishonest information to West Lothian Council in that, you stated:
a) You were unable to go outdoors without polarised lenses;
b) You could only tolerate short periods of daylight;
c) You were rarely able to leave your home environment;
d) You were unable to drive.
36. The evidence confirmed that the Registrant's absence from her employment at the Council commenced on 3 March 2017.
37. Sickness absence meetings were held with the Registrant on the following dates: 24 May 2017, 18 August 2017, 13 September 2017, 20 September 2017 and 21 February 2018.
38. At the conclusion of each meeting, Witness 1 sent a letter to the Registrant to confirm what had been discussed at each meeting.
39. Each letter recorded that the Registrant had maintained to Witness 1 that: [redacted]
40. [redacted]
41. [redacted]
42. [redacted]
43. [redacted]
44. The Panel noted that the Registrant had not responded to any of the letters sent to her to correct or make further comment on what Witness 1 had recorded.
45. In her written representations to the Investigating Committee, on the substance of the allegations, the Registrant stated:
[redacted]
46. It was clear to the Panel that in her representations the Registrant did not substantially contradict this part of the Allegation. In the event that there were any differences between the respective accounts, the Panel preferred the evidence of Witness 1 as being more reliable because that evidence was supported by contemporaneous letters written by Witness 1, being the letters sent following the sickness review meetings which are referred to above.
47. On the above evidence, it was clear to the Panel that the Registrant had stated to Witness 1:
a. she was unable to go outdoors without polarised lenses;
b. she could only tolerate short periods of daylight;
c. she was rarely able to leave her home environment; and
d. she was unable to drive
Accordingly, the Panel decided, on the balance of probabilities, that Particular 1 was proved in its entirety.
Particular 2
2. Whilst employed by West Lothian Council and receiving sick pay, you attended and/or participated in Sensory Sessions classes on the following dates:
e) Wednesday 6 September 2017;
f) Thursday 7 September 2017;
g) Monday 11 September 2017;
h) Monday 30 October 2017.
48. The Panel took into account the CFT Report (“the Report”) dated 26 January 2018 prepared by Witness 2. The Report recorded that Sensory Sessions was a business running sensory play classes for babies and toddlers. The Registrant was the sole director of the business and the sole bank account signatory for the business. There had been transfers of money from the business account to the Registrant’s private bank account.
49. The Report went on to record that a covert surveillance operation was undertaken which involved observation of the Registrant’s daily activities and noted:-
6 September 2017
50. Sensory Sessions for that day were scheduled for 10 am, 11.10 am, 1 pm, and 1.30 pm at various locations around Edinburgh. The Registrant was observed leaving her home at 9.16 am [redacted] and not wearing any form of headwear for sun protection. She was wearing a black jumper branding the logo for Sensory Sessions and was seen to get into a car and drive the car “a few feet forward” before she got back out and opened the boot to remove items of equipment. It was recorded that she showed no signs of discomfort.
51. [redacted].
7 September 2017
52. The weather was cloudy but dry. Sensory Sessions classes were scheduled for 10.30am, 1pm and 2.10 pm. At 9.59am the Registrant was observed leaving her home with [redacted]. She was then observed putting on [redacted]. Those were [redacted]. She was wearing a black jumper branding the logo for Sensory Sessions. She showed no sign of discomfort.
53. At 2.25pm on the same day, the Registrant was observed being collected by her husband in a car from a church hall. In a subsequent interview the Registrant confirmed she was at the Sensory Sessions class for between one and a half to two hours supporting a member of Sensory Sessions staff and “chatting to some of the mums”. She was asked if that was her normal practice and she replied “Yes, some days, it depends on a lot of variables”. The Report noted that the Registrant had described the lighting in the hall as “brilliant”.
11 September 2017
54. The weather was bright and sunny. Sensory Sessions for that day were scheduled for 10 am, 11.10 am, 1 pm and 1.30 pm at various locations. [redacted] She was wearing a black jumper branding the logo for Sensory Sessions. She was driven by her husband to a parish church. They arrived at 9.24am and unloaded equipment into a room at the rear of the building. The Registrant’s husband then left the venue without her.
55. At 2.02pm the Registrant’s husband returned to the venue and at 2.25pm the Registrant left the venue and entered the passenger seat of the car. At that time the weather was very bright with a mixture of blue sky and white clouds. [redacted]
56. The vehicle was followed to a business park. Because the surveillance team felt they would be noticed the team returned to the Registrant’s home address to await her return. At 3.37pm the Registrant’s husband returned to the home address by car without the Registrant. The surveillance operation ended at 4pm with no sighting of the Registrant returning to her home address. By that point the Registrant had been out of her house for more than 7 hours.
57. In a subsequent interview the [redacted]. She was asked how she had been able to spend that amount of time at the venue. She replied, “It’s dependent on a number of variables”. She accepted she had not told her line manager about the feature of variability.
30 October 2017
58. A visit was made by members of the CFT on 30 October 2017 to a church hall with the object of interviewing a Sensory Sessions member of staff. [redacted] She was noted to be “cheerfully conversing with the parents and tidying the toys on the floor”. The church hall was noted to be bright with mirrored, fluorescent ceiling lights. The windows had blinds that were fully rolled up letting in the daylight. The team members noted that during the initial conversation with the Registrant she was not visibly in distress due to the room or window lighting.
59. Within the Registrant’s representations to the HCPC Investigating Committee, the Registrant commented on the occasions referred to above. She said:
“Whilst employed by West Lothian Council & receiving sick pay I worked for Sensory Sessions on 6th September, 7th September, 11th September & 30th October.
On the days in question, I did attend sensory sessions groups. [redacted] As an occupational therapist I know how important activity is for wellbeing. I wasn’t the class leader at any of the groups which was confirmed in the counter fraud team investigation when they saw others present, I was there in a shadowing capacity to get me out of the house and give me the opportunity to talk to people. At any point I could have been collected by my husband or father and my involvement was minimal. [redacted] Attendance at the group is in no way comparable to being able to complete my role as an occupational therapist with the Council, [redacted] Occupational health requested that it be considered about whether there were any alternative roles that I could do and I would have gladly been seconded within the council if they had been able to find a suitable role”.
60. There was no dispute between the parties that the Registrant did attend the Sensory Sessions events on the dates as asserted in Particular 2. On that basis alone the Panel found Particular 2 proved in respect of each of the dates mentioned
61. The Particular also alleged that the Registrant “participated” in Sensory Sessions classes. The Panel took into account what the Registrant had said in her written representations. She said that she was “sitting on a mat chatting and talking about baby development”. She made that comment as a description of her general involvement in the sessions being run.
62. The report from the CFT in respect of 30 October 2017 noted that the Registrant was “cheerfully conversing with the parents and tidying the toys on the floor”.
63. The Panel was satisfied that the accounts given both on behalf of the HCPC and the Registrant were not inconsistent, and both served to show that the Registrant’s general practice was to “participate” in the classes on each of the dates mentioned.
Accordingly, the Panel decided, on the balance of probabilities, that Particular 1 was proved in its entirety.
Particular 3
3. Your actions at paragraphs 1 and 2 were misleading and/or dishonest.
64. In respect of this Particular, the Panel noted that the Registrant was entitled to sick pay in respect of her absence from work from March 2017 until 2018 when her employment ended. A factor in her continuing entitlement to sick pay was the information she provided to Witness 1 in the sickness review meetings.
65. The Particular asserted that the actions of the Registrant were “misleading and/or dishonest”. The HCPC has invited the Panel to accept that “to mislead” means “to cause someone to believe something is not true” and, further, that a person can mislead either intentionally or unintentionally. The Panel has accepted that as accurate.
66. In respect of “dishonesty” the Legal Assessor gave advice on the guidance given by the Supreme Court in the case of Ivey v Genting [2017] UKSC 67 at paragraph 74 of the judgment:
“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective)
standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest”.
67. Particular 3 asserted that the actions of the Registrant, as those are contained in Particulars 1 and 2, were misleading and/or dishonest. Therefore, it was necessary to examine Particulars 1 and 2 separately in the context of allegedly misleading and/or dishonest conduct on the Registrant’s part.
68. So far as Particular 1 was concerned, the Panel considered all of the evidence regarding what was said by the Registrant to Witness 1 in the five sickness review meetings. Particular 1 asserted that the Registrant was misleading and/or dishonest in maintaining that:
a. she was unable to go outdoors without polarised lenses;
b. she could only tolerate short periods of daylight
c. she was rarely able to leave her home environment
d. she was unable to drive.
69. The Panel also took into account what the Registrant said in this respect in her written representations:
“Providing false information – I was accused of providing false information to the Council and I strongly deny this. I think that my mistake was not saying to my manager that I was trying to get out of the house more by attending the mother and baby groups. I honestly didn’t think that it was an issue as HR had not been interested at all in my voluntary role and I didn’t think about mentioning it at all, I wasn’t at any point purposefully withholding information. At the time that the investigations were ongoing [redacted].
70. The Panel put to one side, for the moment, the last factor in Particular 1, regarding the inability to drive. With regard to the other factors in Particular 1 at a) to c) inclusive, the Panel took into account all of the evidence referred to above including that [redacted] was supported by sick notes from her GP. The Panel was satisfied that with regard to the factors at a) to c) inclusive, the Registrant maintained those positions to Witness 1 over a number of months. She was sent letters which recorded what Witness 1 had understood to be the Registrant’s accounts of restrictions resulting from her medical condition. Those claimed
restrictions had contributed to the Registrant being paid sick pay. It was clear to the Panel that the repeated accounts given by the Registrant to Witness 1 in respect of the factors at a) to c) inclusive were (despite the sick notes from the GP [redacted]) false and inaccurate to a substantial degree and that the Registrant knew that to be the case. The observations of the Registrant made by the CFT, as recorded above, show that the Registrant:
a) was able to go outdoors without polarised lenses;
b) could tolerate more than short periods of daylight; and
c) was regularly able to leave her home environment.
71. The Panel took into account what the Registrant had said about the variability of her condition and its symptoms. However, the Panel also took into account that on each of the four occasions when the CFT observed the Registrant, the Registrant exhibited behaviour which contradicted the claim made by the Registrant that over a period of months she had not been able to go outdoors without polarised lenses, that she could not tolerate more than short periods of daylight and that for most of the time she was not able to leave her home environment.
72. The Panel concluded that it was most unlikely that the Registrant’s [redacted] was limited only to the four occasions when she was observed by the CFT. The Panel was satisfied on the balance of probabilities that the Registrant knowingly gave an incorrect account of the restrictions caused by her medical condition at each of the sickness review meetings conducted by witness 1 in so far as Particular 1 a), b) and c) was concerned.
73. The Panel considered what was, subjectively, the actual state of the Registrant’s knowledge or belief as to the facts when she gave her accounts to Witness 1 in the context of the matters referred to in Particular 1, sub-particulars a), b) and c). The Panel concluded that in giving those accounts the Registrant knowingly gave false accounts of the negative impact of her medical condition and its restrictions on her daily life. Also, she knowingly failed to provide information as to her Sensory Sessions activities which she knew to be relevant in any assessment by the Council of her unfitness to carry out her work. The Panel was satisfied that the Registrant both knowingly gave false accounts of the impact of her medical condition and knowingly failed to provide relevant information with the intention of either qualifying for sick pay or, at least, increasing her prospects of doing so.
74. The Panel considered what ordinary, decent people would make of the Registrant’s false accounts and failure to provide relevant information in connection with her entitlement to sick pay as those relate to Particular 1 a), b) and c). The Panel concluded that ordinary, decent people would consider the actions and failures of the Registrant in those respects to be dishonest.
75. The Panel considered Particular 1 d), being the claimed inability to drive, in the context of “misleading and/or dishonest”.
76. The Panel took into account the witness statement from a member of the Council’s staff who claimed to have seen the Registrant driving a brown metallic Volkswagen Golf car on 15 August 2017. The witness stated he was about 2 metres away from the Registrant whilst she was driving a moving car. He said he had seen the Registrant “for a few seconds” in clear visibility and if it was not the Registrant it was someone identical. He sent a text to Witness 1 to say he thought he had seen the Registrant driving a car.
77. The Panel also took into account what the Registrant said in an interview on 19 October 2017. She said that she had never even sat in such a car. Her own car was a different make. She knew no-one who owned a brown Volkswagen Golf. She “categorically denied” being present on the occasion claimed.
78. In assessing this evidence, the Panel has noted what are known as the “Turnbull guidelines”, derived from the case R v Turnbull [1977] QB 224. The Panel has also taken into account that the observation by the witness was fleeting (“only a few seconds”) and was made whilst the person said to be the Registrant was driving a moving motor vehicle. This matter has to be determined on the balance of probabilities. The Panel concluded that the HCPC had not shown on the balance of probabilities that it was the Registrant who was driving the motor vehicle on the occasion in question.
79. Therefore, Particular 3, insofar as it asserts that the Registrant’s account that she was unable to drive was dishonest, now rests solely upon the observation of the Registrant made by the CFT on 6 September 2017 when she was said to have sat in a car whilst it moved “a few feet forward”.
80. If the HCPC case in this respect were taken at its highest, then it may be said that the Registrant misled Witness 1 when she said she was unable to drive. That is because the Panel can accept that, on the balance of probabilities, the Registrant was, in a strict legal sense, driving a car even though it was just for “a few feet”.
81. However, this case is all about the assertion that over a period of time the Registrant gave misleading or dishonest information regarding the effects of her medical condition and the outcome of doing so was payment of sick pay to which the Registrant was not truly entitled. The view of the Panel was that, when all of the other circumstances of this case were taken into account, the question of whether or not the Registrant drove a few feet on a single occasion had minimal to no impact on the decision to pay sick pay. The Panel was satisfied that it was the other factors of being [redacted] that contributed to the decision to pay sick pay.
82. The Panel took the view that the decision to pay sick pay was taken on the basis of the other claimed limitations put forward by the Registrant. The Panel did not accept that the failure by the Registrant to mention this single and very limited occasion of driving served to “mislead” anyone. On that basis, the Panel concluded that this single event, lasting just moments, did not serve to show that the Registrant misled witness 1 either intentionally or unintentionally.
83. Separately, the Panel considered whether the Registrant was dishonest in this aspect. The Panel is satisfied that the likelihood is that when the Registrant was being interviewed by Witness 1 the Registrant would not have considered the event of driving a car “a few feet” as being an event of driving so far as a lay person was concerned. The Panel found that she would not have had the knowledge or belief that that event constituted an act of driving. Ordinary, decent people would not consider this single, very limited occasion of driving, in circumstances where the Registrant would not herself have considered this to be an act of driving, as being sufficient to show that the Registrant had been dishonest by saying she was unable to drive.
84. The Panel went on to consider whether the Registrant’s actions in attending and participating in the Sensory Sessions classes as set out in Particular 2 were misleading and/or dishonest. The Panel was satisfied that the attending and participating in Sensory Sessions involved the Registrant in carrying out actions that she had repeatedly told Witness 1 she could not do. The attending and participating involved the [redacted] The Panel was satisfied that the attending and participating involved the Registrant in engaging in activities which she knew was contrary to the information she had been providing to Witness 1. It was clear to the Panel that ordinary, decent people would regard the Registrant’s activities in this respect, which were carried out in the knowledge that the activities were contrary to the information given to her line manager, were dishonest.
Accordingly, the Panel decided, on the balance of probabilities, that Particular 3 was proved in respect of Particular 1 - sub-particular a), b) and c) but not proved in respect of sub-particular d); and Particular 3 was proved in respect of Particular 2 in its entirety.
Decision on Grounds - Misconduct
85. Mr Bridges submitted that the Registrant’s actions were serious and amounted to misconduct. He further submitted, applying the personal and public components, that the Panel should make a finding of current impairment of the Registrant’s fitness to practise by reason of her misconduct.
86. The Panel heard and accepted the advice of the Legal Assessor.
87. In relation to the statutory ground, namely, misconduct, the Panel was reminded of the definition of that term provided in Roylance v GMC (No2) [1999] UKPC 16.
88. The Legal Assessor advised that, in approaching the question of impairment, the test is expressed in the present tense: ‘is impaired’ (GMC v Meadow [2006] EWCA Civ 1319).
89. As for the factors to be taken into account at the impairment stage, the Panel was advised to have regard to the guidance provided by the relevant authorities and, in particular, the cases of Cohen v GMC [2008] EWHC 581 (Admin) and CHRE v NMC and Grant [2011] EWHC 927 (Admin) (‘Grant’).
90. In the Panel’s judgement, the Registrant had acted in a manner that was deplorable and which would be regarded as such by patients, the public and her professional colleagues. She had wilfully misrepresented the seriousness and extent of her medical condition to her employer. Over a protracted period, she received sickness pay from the Council on the grounds that she was unable to work while, at the same time, attending and participating in a business in which she had an active interest.
91. By her actions, the Panel considered that the Registrant had breached the following applicable standard of the HCPC’s ‘Standards of Conduct, Performance and Ethics’:
‘Standard 9
– Be honest and trustworthy’
92. The Panel was satisfied that the Registrant’s actions, which had fallen significantly short of the standards to be expected of a registered Occupational Therapist, were serious.
Decision on Impairment
93. The Panel first considered the personal component.
94. The Panel considered that dishonest conduct, such as that engaged in by the Registrant, while capable of remedy was nevertheless difficult to remediate. In the view of the Panel, detailed evidence, addressing how the dishonest conduct came about together with comprehensive evidence to demonstrate that it would not be repeated in the future, would have been required to have been placed before the Panel by the Registrant in order to reassure it that effective steps had been taken by her to adequately remediate her dishonesty. The Registrant had not placed such evidence before the Panel in this case.
95. The Registrant had engaged in serious dishonesty over a protracted period. While there was a suggestion in the background facts that the Registrant had repaid the monies which she had wrongfully received in sickness pay, as a result of civil proceedings taken against her by the Council, there was no evidence presented at the Hearing that she had in fact done so. In addition, the Registrant had not chosen to furnish to the Panel evidence of insight into the seriousness of her actions and evidence to reassure the Panel that there would be no repeat of them. Accordingly, in the absence of evidence of insight on the Registrant’s part, the Panel decided that the risk of repetition of the behaviour complained of was high.
96. The Panel considered the formulation provided by Dame Janet Smith in the Fifth Report to the Shipman Inquiry (cited with approval by Cox J in Grant) as follows:
“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:
1.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
2.has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or
3.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
4.has in the past acted dishonestly and/or is liable to act dishonestly in the future.”
97. Having regard to its observations about the absence of evidence of insight on the Registrant’s part and the high risk of repetition, the Panel concluded that limbs two, three and four of the formulation were engaged in this case.
98. Accordingly, the Panel decided that the Registrant's fitness to practise is currently impaired on the basis of the personal component.
99. The Panel next considered the public component.
100. The public expect Occupational Therapists to act with decency, honesty and integrity. The Registrant by her actions undermined confidence in the profession. Over an extended period, the Registrant dishonestly misrepresented her medical condition to her employer and obtained some financial benefit to which she may not have been entitled. The evidence available to the Panel at the Hearing demonstrated that the Council, at the material time, had some difficulty in meeting its occupational therapy workload. There was therefore a basis upon which to infer that there could have had a negative knock-on effect in terms of the service available to patients and the additional pressures faced by the Registrant’s professional colleagues, as a result of the Registrant’s protracted absence from work.
101. Accordingly, applying the public component, the Panel decided it was necessary to make a finding of current impairment of the Registrant's fitness to practise in order to declare and uphold proper standards of conduct in the Occupational Therapy profession, as well as maintaining confidence in and the reputation of the profession.
Decision on Sanction
102. In his submission, Mr Bridges informed the Panel that the HCPC’s position was that it adopted a neutral position on what, if any, sanction the Panel should impose in respect of the Registrant’s registration. He referred the Panel to the seriousness of the misconduct and the need for a nuanced approach to dishonesty.
103. The Panel heard and accepted the advice of the Legal Assessor. The Panel, he advised, should exercise its judgement to arrive at a proportionate sanction that would adequately protect the public and uphold the public interest. The Committee was also advised to have regard to the Sanctions Policy (‘the SP’) issued by the HCPC (Last updated March 2019).
104. The Panel, in accordance with paragraphs 25-41 of the SP, considered the mitigating factors. The Panel identified the following:
a. Evidence to suggest that the Registrant had entered into an arrangement with the Council to repay the sick pay which she wrongfully received. However, it was noted that there was no evidence to show that the arrangement had been fulfilled. The Panel considered that the extent to which it could extend credit to this element of the case was very limited.
105. The Panel, in accordance with paragraphs 42-55 of the SP, considered the aggravating factors. These were:
a. The Registrant’s dishonest actions had taken place over a protracted period and amounted to a pattern of behaviour;
b. Repeated acts of dishonesty;
c. A lack of insight by the Registrant into the seriousness of her misconduct and lack of evidence of remediation; and
d. No recognition by the Registrant as to the extent that her misconduct could damage the reputation of her profession and public confidence in Occupational Therapists.
Consideration of Sanction
106. The Panel first considered the sanction of Mediation and concluded that it was not appropriate - the matter was too serious to be resolved in this way. The Panel was of the same view in relation to the conclusion of the proceedings by taking no action.
107. The Panel next considered a Caution Order. Such a sanction, in accordance with paragraphs 101 and 102 of the SP, was deemed to be appropriate where:
“the issue is isolated, limited, or relatively minor in nature; there is a low risk of repetition; the Registrant has shown good insight; and the Registrant has undertaken appropriate remediation.
A caution order should be considered in cases where the nature of the allegations mean that meaningful practice restrictions cannot be imposed, but a suspension of practice order would be disproportionate.”
108. In light of its findings, the Panel considered that the imposition of a Caution Order would fail to adequately protect the public, nor would such a sanction protect the public interest. Accordingly, the Panel concluded that a Caution Order would be neither appropriate nor proportionate.
109. The Panel next considered whether a Conditions of Practice Order would be appropriate and proportionate. In considering a Conditions of Practice Order, the Panel had particular regard to paragraphs 107 to 109 of the SP which states as follows:
“107. Conditions will only be effective in cases where the Registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so. Therefore, conditions of practice are unlikely to be suitable in cases in which the Registrant has failed to engage with the fitness to practise process or where there are serious or persistent failings.
108. Conditions are also less likely to be appropriate in more serious cases, for example those involving: • dishonesty…;
109. There may be circumstances in which a panel considers it appropriate to impose a conditions of practice order in the above cases. However, it should only do so when it is satisfied that the Registrant’s conduct was minor, out of character, capable of remediation and unlikely to be repeated. The panel should take care to provide robust reasoning in these cases.”
110. The Panel had no up-to-date information as to the Registrant’s current employment status. There was no evidence before the Panel to suggest that she would comply with any conditions imposed upon her practice and therefore the Panel was led to the conclusion that, against a background of her non-
engagement at this hearing, it was unlikely that the Registrant would be willing or able to comply with any conditions.
111. However, the most important factor when addressing the appropriateness of a Conditions of Practice Order was the seriousness of the findings which had been made against the Registrant. To the Panel’s mind, the seriousness of those findings combined with an absence of evidence on the Registrant’s part of insight and remediation, were such that the Panel was unable to formulate workable, enforceable, verifiable and measurable conditions which would adequately protect the public and uphold the public interest. Accordingly, the Panel concluded that a Conditions of Practice Order would be neither appropriate nor proportionate.
112. The Panel next considered imposing a Suspension Order and noted paragraph 121 of the SP which states:
“121. A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the Registrant to be struck off the Register. These types of cases will typically exhibit the following factors:
• the concerns represent a serious breach of the Standards of conduct, performance and ethics;
• the registrant has insight;
• the issues are unlikely to be repeated; and
• there is evidence to suggest the Registrant is likely to be able to resolve or remedy their failings.”
113. The Panel had no evidence from the Registrant or any assurance by her that her dishonest conduct would not be repeated, particularly given her lack of insight. There was no evidence to suggest the Registrant was able or willing to address her failings.
114. The Panel assessed the gravity of the Registrant’s misconduct. The Panel’s view was that the Registrant’s conduct was extremely serious and had the potential to damage the reputation of Occupational Therapists and undermine the public’s trust and confidence in the profession.
115. Taking into account the guidance in paragraph 121 of the SP, the Panel concluded that a Suspension Order was not an adequate or appropriate sanction in this case.
116. The Panel noted the guidance in the SP that a Striking-Off Order is a sanction of last resort for serious, persistent, deliberate or reckless acts including dishonesty.
117. At paragraph 131 of the SP, it states:
“A striking off order is likely to be appropriate where the nature and the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where is the registrant:
• lacks insight;
• continues to repeat the misconduct;
• is unwilling to resolve matters.”
118. There was no evidence before the Panel to demonstrate that the Registrant had insight into the seriousness of her misconduct. Further, there was no evidence of a willingness on the part of the Registrant to resolve matters.
119. The Panel had careful regard to paragraphs 56 to 58 of the SP, which states:
“56. The Standards of conduct, performance and ethics require registrants to be honest and trustworthy (Standard 9). Dishonesty undermines public confidence in the profession and can, in some cases, impact the public’s safety.
57. Dishonesty, both in and outside the workplace, can have a significant impact on the trust placed in those who have been dishonest, and potentially on public safety. It is likely to lead to more serious sanctions. The following are illustrations of such dishonesty:
• […];
• […];
• […];
• fraud, theft or other financial crime.
58. Given the seriousness of dishonesty, cases are likely to result in more serious sanctions. However, panels should bear in mind that there are different forms, and different degrees, of dishonesty, that need to be considered in an appropriately nuanced way. Factors that panels should take into account in this regard include:
• whether the relevant behaviour took the form of a single act, or occurred on multiple occasions;
• the duration of any dishonesty;
• whether the Registrant took a passive or active role in it;
• any early admission of dishonesty on the Registrant’s behalf; and
• any other relevant mitigating factors.”
120. The Panel carefully considered the seriousness of the Registrant’s misconduct. The Registrant had engaged in multiple acts of dishonest conduct over a protracted period. There was an absence of evidence of insight, remorse or remediation on the Registrant’s part.
121. The Panel concluded, for these reasons, that the Registrant’s actions were at the uppermost end of the spectrum of seriousness and that no lesser sanction, other than a Striking-Off Order, would be appropriate or proportionate to protect the public and uphold the public interest.
122. In making its decision, the Panel considered the severity of the impact of a Striking-Off Order on the Registrant but concluded, having regard to all the circumstances, that her interests were outweighed by the need to protect the public and uphold the public interest.
123. Accordingly, the Panel decided that the only appropriate and proportionate sanction to impose, in all the circumstances, was a Striking-Off Order.
Order
ORDER: The Registrar is directed to strike the name of Mrs Lorna C Carr from the Register on the date this Order comes into effect.
Notes
Application for Interim Order
124. Mr Bridges applied for an interim order on the grounds that such an order was necessary for the protection of members of the public and was otherwise in the public interest.
125. The Panel was satisfied that in the Notice of Hearing dated 11 February 2022 the Registrant had been put on notice that, in the event that the Panel imposed a substantive order, such as a Striking-Off Order, an interim order application might be made. It was in the public interest to hear the application as soon as possible. The Panel was satisfied that it was fair to proceed in the absence of the Registrant.
126. The Legal Assessor advised the Panel that an interim order could only be made if the Panel was satisfied that one or more of the statutory grounds were present:
• it is necessary for the protection of members of the public; and/or
• it is otherwise in the public interest; and/or
• it is in the interests of the registrant concerned.
127. If a Panel found that one or more of the statutory grounds was present, the Panel could make either an interim conditions of practice order or an interim suspension order. Such an order could run for a maximum period of 18 months, but the Panel should exercise its discretion in identifying the appropriate period.
128. The Panel took into account that the Striking-Off Order made today will not take effect until, at least, 28 days from now. That period may be longer if the Registrant decided to appeal against the Panel’s decision within the appeal period.
129. The Panel considered all of its findings and conclusions as above. The Panel was satisfied that it was necessary to impose an interim order to protect the public from a Registrant who was found to have acted dishonestly by the Panel. The Panel was also satisfied that it was in the public interest to impose an interim
order, as members of the public would be concerned if there were no restrictions on the Registrant’s practice pending the final determination of any appeal.
130. Accordingly, the Panel was satisfied that an interim order was necessary both for the protection of members of the public and was otherwise in the public interest.
131. The Registrant had not attended the hearing, and accordingly the Panel had no assurance that an interim conditions of practice order would be complied with, nor would such an order adequately protect the public.
132. In those circumstances the Panel concluded that it was appropriate and proportionate to make an interim suspension order.
133. The Panel was satisfied that it was appropriate and proportionate to make such an order for the maximum available period, namely for a period of 18 months to cover any possible appeal.
Hearing History
History of Hearings for Mrs Lorna C Carr
Date | Panel | Hearing type | Outcomes / Status |
---|---|---|---|
14/03/2022 | Conduct and Competence Committee | Final Hearing | Struck off |
24/01/2022 | Conduct and Competence Committee | Final Hearing | Adjourned |