Helen M Orme

Profession: Occupational therapist

Registration Number: OT58537

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 09/05/2022 End: 17:00 13/05/2022

Location: Virtual Hearing via Video Conference

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

As a registered Occupational Therapist (OT58537) your fitness to practise is impaired by reason of your caution and/or misconduct. In that:

1. On 15 January 2017, you received a conditional caution for Criminal Damage, namely:

 

a) On or about 30 August 2016 at Lytham St Annes in the county of Lancashire without lawful excuse, damaged an Audi A5 to the value of £2762, intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged; contrary to sections 1 (1) and 4 of the Criminal Damage Act 1971. 

 

2. You did not inform the HCPC within a timely manner that you had received a criminal caution.

 

3. You did not inform your employers, Blackburn with Darwen Borough Council, within a timely manner that you had received a criminal caution.


4. You did not declare in your HCPC registration renewal on or around 5 October 2017, that there had been a change to your good character as you had received a police caution.

 

5. On 4 June 2019, you informed the HCPC that you had received a fine for £10 in respect of your conditional caution, which was incorrect. OFFER NO EVIDENCE 

 

6. Your conduct at paragraphs 2 and/or 3 and/or 4 and/or 5 was dishonest.

 

7. Your conduct at Paragraphs 2 - 6 amount to misconduct.

 

8. By reason of your caution and/or misconduct your fitness to practise is impaired.

 

Finding

Preliminary Matters

Particular 5

1. Mr Lloyd, on behalf of the HCPC told the Panel that the HCPC sought to offer no evidence in respect of Particular 5, and also applied to discontinue that particular. This was on the basis that Particular 5 refers to a £10 fine, while the evidence was that the Registrant had paid a £10 fee, which was a different matter to a fine as set out in the particular and that there was no prospect of the particular being proved.

2. The Panel took into account the advice of the Legal Assessor and was reminded of the HCPTS Practice Note entitled “Discontinuance of Proceedings”. The Panel noted that the HCPC did not pursue this particular on the basis that there was no evidence, and the Panel decided to formally announce decision on this matter when it came to its decision on facts.

Part of the Hearing in Private

3. Mr Lloyd applied for any part of the hearing which dealt with the private family circumstances of the Registrant to be heard in private. The Registrant supported this application.

4. The Panel accepted the advice of the Legal Assessor and took into account the HCPTS Practice Note entitled “Conducting Hearings in Private”. The Panel decided to hear all details of the Registrant’s family circumstances in private in order to protect her private life.

Background

5. The Registrant is a registered Occupational Therapist. On 4 June 2019, the Registrant made a self-referral to the HCPC to declare a Police Conditional Caution which she had received on 15 January 2017. The Registrant had previously renewed her registration with the HCPC online on 5 October 2017 but had not made the declaration. It is also alleged that the Registrant did not inform the Council that she had received the caution until shortly before a DBS check was due.

Decision on Facts

6. The Registrant admitted Particulars 1, 2, 3, and 4. She denied Particulars 5 and 6.

7. The Panel had before it the HCPC final hearing bundle.

8. The Registrant submitted a character testimonial from her former manager at the Council dated 18 October 2021 which attested to her honesty, trustworthiness, and good character which the Panel took into account. The Panel heard submissions on facts from Mr Lloyd. Miss Orme stated that she did not wish to make a final submission on facts.

9. The Panel took into account the HCPTS Practice Direction entitled “Making decisions on a Registrant’s state of mind” and accepted the advice of the Legal Assessor. The Legal Assessor advised that the Registrant should be taken to be a person of good character, and that she is entitled that her good character be taken into account by the Panel when considering her credibility and his propensity to act as alleged. The Legal Assessor referred to the cases Lawrance v GMC [2015] EWHC 586; Ivey v Genting [2017] UKSC 67; Lavis v NMC [2014] EWHC 4083.

10. The Panel was aware that the burden of proof is entirely on the HCPC to the civil standard, namely the balance of probabilities.

11. The Panel heard live evidence from:

i. KW, who was Head of Service of Adult Social Care at the Council at the time giving rise to the allegations and is a registered social worker. The Panel considered KW to be a clear, consistent and balanced witness.

ii. IA, Registration Manager at the HCPC. The Panel considered her to be a clear and consistent witness.

12. The Panel heard live evidence from the Registrant.

13. The HCPC offered no evidence in respect of Particular 5. The Panel therefore found this particular not proved.

14. The Panel retired to deliberate on the facts on the second day of the hearing, 19 October 2021. During its deliberations, an email addressed to the Panel was received from the Registrant dated 19 October 2021 at 21.30. It stated amongst other matters, that she found the hearing “very stressful” and “knowing what I now know I possibly would of sought private legal assistance and guidance [sic]”. She further stated:

“…I believe in the interim stages there was a point where I was asked to allow access to my health records. Which I gave permission.

I openly disclosed that I had suffered with … and … following the birth of my first child… I believe it to be not so long after his birth I sought help from my GP …

I continued to struggle … I attended counselling via the GP. Which I’m sure if you wish you prove, and I give my full authority for you to do so. I have sought private counselling independently also…

I am very appreciative of the kindness you have shown me, but I don’t feel I could of said this to you all today in such a pressurised forum…”.

15. On the third day of the hearing, 20 October 2021, which was the last day of the original three day listing for the hearing, the Panel reconvened to hear submissions from both parties regarding the Registrant’s email. The Panel had already given the indication on the second day, that due to pressure of time, this hearing would not be completed by the third day upon which it was listed to conclude. The Legal Assessor advised in open session that because the hearing was to be adjourned, the Registrant had the option of seeking legal advice and/ or representation if she so wished, for the resuming hearing. Further, if the Registrant wished to raise matters of her health, she had the option of obtaining medical evidence. The Legal Assessor further raised that the issue of asking the HCPC to disclose any medical evidence which it had obtained.

16. Mr Lloyd confirmed that it was open to the Panel to re-open the evidence in the case. He did not dispute that the Registrant had provided the HCPC with her consent for her medical records to be accessed but confirmed that it would appear that the medical information was not obtained. Mr Lloyd proposed that the reasons for that would be communicated in a position statement to be served by the HCPC in advance of the resuming hearing. Mr Lloyd submitted that any deliberations should cease in light of the fact that the evidence was to be re-opened, and that in due course the HCPC would confirm in advance to all parties its position on the relevance or otherwise of health in this case.

17. The Panel decided to accept the Registrant’s email dated 20 October 2021 into evidence.

18. The Registrant did not object to the course of action proposed by the HCPC.

19. In light of the time of day which had been reached on 20 October 2021, the Panel had no option but to adjourn, on the basis that it would receive the information indicated by Mr Lloyd at the resuming hearing.

Resuming Hearing on 13 December 2021

20. The Registrant did not attend, and the Panel was obliged to consider service of the Notice of Hearing.

Service of Notice

21. The Panel had information before it that the Notice of Hearing was sent to the Registrant’s email address on 16 November 2021.

22. Mr Lloyd informed the Panel that the Notice of Hearing was sent 25 or 26 days ago, and therefore less than the 28 days required under Rule 6 of the Conduct and Competence (Procedure) Rules 2003 (the Rules). Thus, he stated, it was accepted by the HCPC that it had not complied with the service requirements, as well as the requirement in Rule 11 that “all reasonable steps” be taken to serve the Notice. Mr Lloyd reminded the Panel that when the Panel canvassed possible dates for re-listing when the hearing was last convened, the first choice had been a different set of dates. Further when the Registrant had been contacted by the HCPC (other than by the Notice) it was only suggested that the hearing may proceed on the dates beginning with today’s date. In all the circumstances, Mr Lloyd submitted that there had not been good service, and the hearing could not properly proceed.

23. The Panel accepted the advice of the Legal Assessor who advised that the 28-day notice period was a mandatory requirement in Rule 6(2) of the Rules, and that because it had not been met, there could not be said to have been good service in this case.

24. The Panel took into account that 28 days’ notice had not been given to the Registrant, and on this basis decided that service had not been effected in accordance with the Rules. Therefore, the Panel could not proceed any further with this hearing.

Resuming Hearing on 9 May 2022

Service of Notice

25. The Panel had before it information that the Notice of today’s hearing was sent on 4 February 2022 to the email address for the Registrant shown on the Register. The Panel accepted the advice of the Legal Assessor.

26. The Panel decided that good service had been effected in accordance with Rules 3 and 6 of the Conduct and Conduct Committee Procedure Rules 2003 (the Rules).

Proceeding in Absence

27. Mr Olphert applied for the hearing to proceed in absence. He referred to an email sent by the Registrant after the conclusion of the last day of the initial three day listing of this hearing, 20 October 2021 at 20.07, which stated as follows:

“After these last few days, I’m absolutely done with this whole process.
I don’t wish to participate in it anymore….”

28. Mr Olphert informed the Panel that the Registrant had repeated this wish not to participate to the Hearings Officer ahead of today’s hearing. Mr Olphert submitted that the Registrant had voluntarily waived her right to attend, that adjourning would not secure her attendance at a later date, and that it would be fair to proceed.

29. The Panel took account of the HCPTS Practice Note entitled “Proceeding in Absence” and accepted the advice of the Legal Assessor. The Panel took into account the Registrant’s position, as communicated by her in the email dated 20 October 2021, as well as the fact that she had not attended the reconvened hearing on 13 December 2021. Further, she had reiterated her wish not to attend today to the Hearings Officer. It was clear to the Panel that she had voluntarily waived her right to attend. The Panel took into account the potential prejudice to her in not being present, but decided that taking into account her clear position in respect of not wishing to attend, on balance, it was in the public interest and indeed in the Registrant’s interest to proceed expeditiously today.

30. The Panel therefore decided it was fair and in the interests of justice to proceed.

Health Matters raised by the Registrant

31. The Panel sought submissions from Mr Olphert in relation to the email from the Registrant dated 19 October 2021 which set out health matters she had, and was, experiencing. The Panel also sought submissions regarding a witness statement from an officer of the HCPC dated 10 December 2021 which was filed and served in advance of the resuming hearing on 13 December 2021 but which had not yet been considered by the Panel on account of the latter hearing not proceeding due to ineffective service.

32. Mr Olphert submitted that the HCPC accepted that the Registrant’s email was relevant although the Panel should approach it with caution because it was not evidence on oath, and the Registrant had not been cross-examined on it. Mr Olphert submitted that the email did not add anything significant to the evidence which the Panel had already heard from the Registrant herself, as well as from KW when she was asked about the Registrant’s health and wellbeing at the time of the matters in the charge. Mr Olphert referred to the HCPC’s decision that this case should be heard by the Conduct and Competence Committee (CCC) as set out in the witness statement from the officer of the HCPC dated 10 December 2021, and referred to the principle that matters may be so serious that they can only be heard by the CCC.

33. The Panel accepted the advice of the Legal Assessor.

34. The Panel took into account that it has a power to refer matters to the Health Committee under Rule 4 of the Rules, where it appears that an allegation would be “better dealt with by the Health Committee”. However, the Panel also took into account that a Health Committee cannot order a Striking Off Order and that should a Panel consider that this was a realistic possibility, such a referral should not be made.

35. In any event, the Panel took into account that there is no medical evidence from the Registrant in the form of a report from a GP or other healthcare professional, and that she was not present at the hearing to make any further submissions or present any medical evidence to supplement her email dated 19 October 2021.

36. The witness statement from the HCPC dated 10 December 2021 explained that the decision had been taken by the HCPC not to obtain medical evidence.

37. The Panel considered that there was no evidence before it which would suggest that the allegations were explained by health concerns experienced by the Registrant at the time, and therefore decided to proceed on the basis of the evidence already before it.

Particular 1 (a)

38. The Registrant admitted this Particular.

39. The Panel took into account the copy of the written Conditional Caution from Lancashire Constabulary, dated 15 January 2017 which the Registrant, in her oral evidence, stated that she had signed.

40. On the basis of the evidence, the Panel found this Particular proved.

Particular 2

41. The Registrant admitted this Particular.

42. The Panel considered the use of the words “timely manner” and decided that they incorporated an element of reasonableness, taking into account the circumstances at the time.

43. The evidence before the Panel was that the Registrant did not inform the HCPC of her Conditional Caution until her self-referral to the HCPC which she made by way of completing a “self-referral form” which is signed by the Registrant and dated 4 June 2019. Therefore, the Registrant did not inform the HCPC until nearly 1 year and 5 months after she received the Conditional Caution. In light of the length of time, the Panel found that this was not done in a timely manner.

44. On the basis of the evidence, the Panel found this Particular proved.

Particular 3

45. The Registrant admitted this Particular.

46. The Panel considered the use of the words “timely manner” and decided that they incorporated an element of reasonableness, taking into account the circumstances at the time.

47. The evidence of KW was that the Registrant did not disclose the Conditional Caution until 18 April 2019, when the DBS renewal was triggered, a process which occurred every 3 years. KW’s evidence was that she informed the Occupational Therapy Clinical Lead of the Caution on that date. The Panel saw a feedback file note outlining the discussion which is dated 18 April 2019. The Panel also saw a letter dated 12 April 2019 to her employer which sets out that she received a Conditional Caution, and the circumstances surrounding it.

48. The Panel took into account the evidence of KW that the date of the Registrant’s disclosure was 18 April 2019. The Registrant also gave evidence that she disclosed it in a verbal conversation with her manager once he told her that the DBS check was soon to take place.

49. Therefore, on the basis of the evidence, the Registrant did not inform the Council of her Conditional Caution for some 15 months following her receipt of it. In light of the length of time, the Panel found that this was not done in a timely manner.

50. The Panel therefore found this Particular proved.

Particular 4

51. The Registrant admitted this Particular.

52. The evidence of IA was that, according to her electronic records, a screenshot of part of which was before the Panel in evidence, the Registrant had completed her HCPC registration renewal online on 5 October 2017. IA’s evidence was that in order for her renewal to be completed online, the Registrant had to have ticked a number of boxes including one (“the good character box”) which confirmed as follows:

“Since my last registration there has been no change relating to my good character (this includes any conviction or caution, if any, that you are required to disclose), or any change to my health that may affect my ability to practise safely and effectively.”

53. Thus, rather than declaring the Caution, she declared that her good character had not changed, despite it being made clear on the renewal form that a Caution was relevant to character.

54. On the basis of the evidence, the Panel found this Particular proved.

Particular 5

55. The Panel found this Particular not proved on the basis that the HCPC sought to offer no evidence, because there was no evidence before the Panel to support this Particular.
Particular 6 in general

56. The Registrant denied this Particular.

57. The Panel took into account evidence which it considered relevant to Particular 6 as it relates to Particulars 2, 3 and 4 as a whole. This is because such evidence is relevant from the time of the receipt of the Caution in 2017 onwards. However, the Panel clearly had in mind that it needed to make separate decisions as to dishonesty in respect of Particulars 2, 3 and 4, which are set out below.

58. The Registrant has been practising as a registered Occupational Therapist for a significant time. While there is no evidence of any work prior to employment with the Council, the Panel noted from the evidence of KW that she was employed as a Band 6 Occupational Therapist between 2 November 2010 and 30 November 2019.

59. The Panel took into account KW’s evidence that there was a “clear expectation” that any staff members employed by the Council who receive police cautions “must disclose this immediately to the Council”. In this regard KW referred to the Registrant’s contractual obligation to inform the Council of the Caution and referred to section 13 of the Contract of Employment which is entitled “Important Information for posts which require a CRB Disclosure:

“The Council recognises the valuable role people employed in a position of trust provide to service users, however it has an overriding duty to provide a safe and healthy environment for its service users and to prevent and detect criminal activity… You are required to notify your line manager of any matters that could reasonably be perceived as affecting the performance of your duties”.

60. The Panel also took into account that, as set out in the evidence of KW, standard 9.5 of the HCPC’s Standards of conduct, performance and ethics (January 2016) states as follows:

“You must tell us as soon as possible if:
⦁ You accept a caution from the police…”

61. The Registrant’s evidence, when asked about her understanding of the HCPC Standards of conduct confirmed that she had an understanding of them, but probably not all of them.

62. What follows is a summary of the relevant parts of the Registrant’s evidence and does not purport to be a verbatim record. The Registrant told the Panel that the circumstances which led to the Caution were a difficult period, and that her lack of disclosure of it to the HCPC and the Council had not been intentional or intended to be deceitful or hide the Caution rather she did not think it through properly as she had tried to bury the problem. She wanted to bury it and did not think about the incident. She stated that she didn’t know why she did not tell the Council as she had a good relationship with her employer. She confirmed that between 2017 and 2019 she did not think to disclose the Caution as she had buried it in her mind. She knew that there would be a DBS check in the future, although in 2017 she did not know that it took place every 3 years. She told the Panel that she buried the incident that happened, and that she supposed that she was trying to push away the issue of disclosure. She stated that she could not remember if she received a notice from the HCPC to renew by post or email nor could she remember if that notice stated the responsibility to declare a change in her character. She stated that she could not remember attending meetings at the Council about DBS checks or professional standards.

63. The Panel also took into account the Registrant’s good character in respect of her credibility and propensity to act as alleged.

Particular 6 in respect of Particular 2

64. The Panel considered the evidence with regard to Particular 6 in general as set out above. The Panel accepted the Registrant’s evidence that she tried to “bury” the incident and the Caution. The Panel took into account that it was a difficult time for her leading up to the Caution and that in order to cope with such difficulties, she had sought to push it away in her mind. However, as an experienced registrant Occupational Therapist, the Panel decided, on the balance of probabilities, that the Registrant knew that she should disclose the Caution to the HCPC in a timely manner. Standard 9.5 made this clear, and it was a fundamental standard of her professional code, which, on the balance of probabilities, taking into account the length of her role as a registered Occupational Therapist, the Panel found she was aware of. Further, on the balance of probabilities, the Registrant’s knowledge that she should do so informed her wish to “bury” the incident and the Caution, and the issue of disclosure. On this basis, the Registrant wished to ignore it, because it was a difficult issue for her knowing that she should disclose it to the HCPC in a timely manner. The Panel decided that this was a wish to conceal it from the HCPC after she had received it.

65. The Committee then considered whether on the basis of the Registrant’s state of mind at the time, her action was honest or dishonest by way of application of the objective standards of ordinary decent people. In considering this question, the Committee decided that, on the balance of probabilities, that her action, in wishing not to inform the HCPC of her Caution in a timely manner would be viewed as dishonest, in light of her motivation to conceal it from the HCPC.

66. The Panel therefore found Particular 6 in respect of Particular 2 proved.

Particular 6 in respect of Particular 3

67. The Panel considered the evidence with regard to Particular 6 in general as set out above.

68. The Panel took into account the Registrant’s evidence that she “panicked” when the DBS check was imminent and then she disclosed the Caution.

69. The Panel took into account the Registrant’s letter to her employer dated 12 April 2019 which explains how upsetting the whole matter was for her and states, for example:

“I just wanted to forget all about it. I did not disclose the matter to my employers at the time as I did not think it was something I needed to as it is not actually a conviction. I did not physically harm anybody and to be honest I just wanted the whole situation to go away. Since researching into this further I am not sure if this matter would show up on a CBS check which is why I have disclosed this to my line manager. I fully accept and realise that this is something I should have told my manager at the time and for that I deeply apologise.”

The Panel also took into account the notes of the meeting between the Registrant and KW on 5 June 2019, her manager. The Registrant referred to the difficult time which led to the Caution. When asked why she did not tell the Council she made a number of statements, including:

“I just didn’t think the incident would affect my job. Just wanted to put it away and not talk about it…It affected my mental state. It was completely out of character…I didn’t purposely not tell you. I just didn’t think at the time”

70. When KW asked what triggered her telling them now, she answered “I just panicked and thought what if it shows up now?”

71. The Panel accepted the Registrant’s evidence that she tried to “bury” the incident and the Caution. The Panel took into account that it was a difficult time for her which led to the Caution and that in order to cope with such difficulties, she had sought to push it away. However, as an experienced Occupational Therapist, the Panel decided, on the balance of probabilities, that the Registrant knew that she should disclose the Caution to the Council in a timely manner. Standard 9.5 made the importance of disclosing to the HCPC clear, and it was, taking into account the length of her role as a registered Occupational Therapist, on the balance of probabilities an obligation to her regulator which she was aware of. As a result of her knowledge of this obligation, and her long-term employment at the Council, the Panel also decided that she knew that she should disclose the Caution to the Council as it was a key requirement of her employment. This knowledge was indicated by the Registrant’s “panic” when the imminence of the DBS check was made known to her.

72. Further, on the balance of probabilities, the Registrant’s knowledge that she should do so informed her wish to bury the incident and the Caution, and the issue of disclosure. On this basis, the Registrant wished to ignore it, because it was a difficult issue for her knowing that she should disclose it to the Council in a timely manner. The Panel decided that this was a wish to conceal the Caution from the Council after she had received it.

73. The Committee then considered whether on the basis of the Registrant’s state of mind at the time, her action was honest or dishonest by way of application of the objective standards of ordinary decent people. In considering this question, the Committee decided that, on the balance of probabilities, that her action, in wishing not to inform the Council in a timely manner of her Caution would be viewed as dishonest, in light of her motivation to conceal it from the Council.

74. The Panel therefore found Particular 6 in respect of Particular 3 proved.

Particular 6 in respect of Particular 4

75. The Panel took into account the evidence of IA that in order to have completed the renewal of registration online on 5 October 2017, a record of which was in IA’s electronic records, she had to have ticked a number of boxes, one of which was the good character box (as set out in relation to Particular 4. Another box which, according to IA, would have had to have been ticked, so as to generate the online renewal which was a declaration of truth as follows:

“I declare that the information provided by me is true and accurate and understand that fraudulently procuring an entry in the HCPC Register is a criminal offence under Article 39 of the Health and Social Work Professions Order 2001”.

76. The Registrant’s evidence was that she did not remember completing the online HCPC renewal form, and thus could not remember what she was thinking when she completed it. However, she accepted that she did so, and that she must have ticked the good character box as well as the box which confirms that she declared that information provided by her in the renewal form was “true and accurate”. She stated that she “must have been on auto filling it in”. She stated that she was not thinking straight and was not trying to purposely be dishonest.

77. Under cross-examination, the Registrant accepted that she “must have” known, when she completed the form that it was not the case that there had been no change to her good character, and also accepted that she “must have” known that the information she had given on the form was not true.

78. The Panel took into account that when ticking the boxes, the Registrant made positive statements which were not true. Clearly, this in itself does not necessarily mean they were dishonest. However, in this context, the Panel also took into account the evidence and its findings in relation to Particular 6 in respect of Particulars 2 and 3, where the Panel found that the Registrant knew that she should have informed the HCPC and the Council of the Caution in a timely manner, and that her wish to bury the Caution (and the incident which led to it) was done in the knowledge that she should have disclosed it to the HCPC and the Council, and, as the Panel has already found, she wished to conceal the Caution from them. The Panel has already found that motivation existed after she had received the Caution. Thus, when she came to renew her registration nearly 9 months after receiving the Caution, her motivation, on the balance of probabilities, was to conceal it from the HCPC when she did not declare it in her registration renewal as something which had changed her good character.

79. The Committee then considered whether on the basis of the Registrant’s state of mind at the time, her action was honest or dishonest by way of application of the objective standards of ordinary decent people. In considering this question, the Committee decided that, on the balance of probabilities, that her action, in wishing not to declare the Caution in the registration renewal as something which had changed her good character, would be viewed as dishonest, in light of her motivation to conceal it from the HCPC.

80. The Panel therefore found Particular 6 in respect of Particular 4 proved.

Decision on Grounds

81. Having found factual Particular 1 proved, which, as a Caution, forms a statutory ground upon which a finding of impairment may be based, the Panel noted that this was a matter which would be addressed in due course in its decision on whether the Registrant’s fitness to practise is currently impaired.

82. With regard to the allegation that Particulars 2, 3, 4 and 6 constituted misconduct, Mr Olphert submitted that the Panel should find misconduct. Mr Olphert relied on Standards 8 and 9, in particular 9.5 of the HCPC Standards of conduct, performance and ethics.

83. In considering whether the facts found proved constituted misconduct, the Panel was aware that there was no burden of proof at this stage and that misconduct was a matter for its own professional judgment. The Panel accepted the advice of the Legal Assessor who referred to the case of Roylance v GMC (No. 2) [2001] AC 311 and Nandi v GMC EWHC 2317 (Admin)

84. The Panel was aware that a breach of professional standards such as those contained in the HCPC Standards of conduct, performance and ethics (“the Standards”) was not necessarily in itself determinative of whether there was misconduct.

85. The Panel was of the view that the Registrant fell below the following standards:
HCPC Standards of conduct, performance and ethics (2016)

“9 Be honest and trustworthy

Personal and professional behaviour

9.1  You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

Important information about your conduct and competence

9.5  You must tell us as soon as possible if:

–  you accept a caution from the police or you have been charged with, or found guilty of, a criminal offence;”

86. With regard to Particular 2, the Panel took into account that the Registrant had, according to Standard 9.5, an obligation to inform the HCPC ‘as soon as possible’ of her Caution. In dishonestly not doing so, she breached her duty to be honest with her regulator, with regard to the serious matter of a Caution received by her for a criminal offence. It was an omission which breached her duty to be honest and transparent with her regulator.

87. The Panel considered that this omission was serious in that it struck at the heart of her relationship with her regulator, and deprived the HCPC from a disclosure to which it was entitled as part of its duty to ensure protection of the public interest, including public protection. As such, her omission fell sufficiently far below the standards expected of her as to constitute misconduct.

88. With regard to Particular 3, the Panel took into account that the evidence of KW was that there was a clear expectation that any employees of the Council who had received a police caution must disclose it immediately to the Council. In addition, the Registrant’s contract of employment with the Council made clear that the Council had a duty to identify any criminal activity as part of its duty to protecting service users. The Council relied on the Registrant to be open and honest in disclosing her Caution. However, the Registrant did not do so until she was aware that the DBS check was soon to take place. The Panel considered that her dishonest omission was serious and breached the relationship of trust she had with her employer.

89. The Panel considered that this omission was serious in that it struck at the heart of her relationship with her employer and deprived the Council from a disclosure to which it was entitled as part of its duty to ensure public protection. As such she fell sufficiently far below the standards expected of her as to constitute misconduct.

90. With regard to Particular 4, as well as the Registrant omitting to inform the HCPC of her Caution, she declared that her good character had not changed, despite it being made clear on the renewal form that a Caution was relevant to character. In so doing, the Registrant dishonestly declared that she had not received a Caution. This once again deprived the HCPC of being given that information, this time on the renewal form, which was designed to allow the HCPC to consider whether there was any adverse implication for its overriding duty to protect the public. Once again, the Registrant’s dishonesty struck at the heart of her relationship with her regulator, and the Panel considered that it fell sufficiently far below the standards expected of her as to constitute misconduct.

91. The Panel therefore found that Particulars 2, 3 and 4 considered in light of Particular 6 as above, constituted misconduct.

Decision on Impairment

92. Mr Olphert submitted that the Registrant’s fitness to practise was impaired on the basis of both the personal and public components. He referred to the HCPTS Practice Note entitled “Fitness to Practise Impairment” dated February 2022.

93. The Panel accepted the advice of the Legal Assessor who referred to CHRE v (1) NMC (2) Grant [2011] EWHC 927. The Panel took into account the HCPTS Practice Note entitled “Fitness to Practise Impairment”. The Panel was aware that impairment is a matter for its own independent judgment and that public protection and the wider public interest should be considered.

94. The Panel took into account that prior to these matters, the Registrant had been a person of good character, and that prior to and subsequent to these matters, she had not been the subject of any disciplinary or regulatory findings.

95. The Panel took into account the questions formulated by Dame Janet Smith in the Fifth Shipman report, as set out in the case of CHRE v (1) NMC and (2) Grant [2011] EWHC 927, which are presented in Grant as a test of impairment and ask whether a practitioner:

“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."

96. The Panel was aware that up until the time when the Registrant had ceased to engage with the hearing process, the oral evidence heard by the Panel from her was in respect of the facts alone, as the Panel had taken the decision that, in order to assist the Registrant, it would hear evidence and decide on the facts stage alone initially before hearing any evidence in respect of later stages. However, the Panel took into account the Registrant’s email dated 19 October 2021, as well as character reference submitted by her dated 18 October 2021.

97. The Panel took the view that the Registrant expressed remorse for her actions. However, because she denied dishonesty, she did not express any insight into her dishonesty. Further, her insight in general was limited in respect of the impact, of any of the matters which she did admit, upon her employer, or upon the public confidence in her or the profession as a whole. Neither was there before the Panel any evidence of any meaningful reflection on what she had done, why it was wrong and what she should do to prevent its recurrence. Further, there was no evidence before the Panel that she had undertaken any remedial action to address the matters found proved, such as steps taken or learning undertaken to ensure that they would not recur.

98. The Panel first considered the Caution received by the Registrant. The Panel decided that, in that respect, the Registrant had not put service users at an unwarranted risk of harm in the past. The Panel considered that while the events that led to the Caution were in the context of a dispute [redacted], and that the act of criminal damage occurred in 2016 [redacted], her receipt of a Caution for a criminal offence, was a serious matter which did in the past bring profession into disrepute, and breached the fundamental tenets of the profession not to act in a way which would undermine the public’s trust in her.

99. When considering whether she was liable to act in such a way in the future in the same or similar circumstances, the Panel considered that while she did show regret and remorse for the actions that led to the Caution, her insight and reflection as a professional was limited. Notwithstanding this, the Panel took into account that the events which led to the Caution were as a result of a specific incident, [redacted], several years ago, and there was no evidence before the Panel that there was a real risk of recurrence. The Panel therefore decided that in the particular circumstances, there was a low risk of repetition and that she was not liable to receive a Caution in the same or similar circumstances in the future.

100. The Panel next considered the misconduct found proved, namely the dishonest behaviour in Particulars 2, 3, 4 and 6. The Panel did not consider that the Registrant’s misconduct put patients at an unwarranted risk of harm, in that it was not associated with any risk to patient safety because this was not dishonesty related to the Registrant’s clinical practice, in relation to her dealings with patients or patient records. Nor did the Panel consider that there was any evidence that the Registrant was liable to put patients at an unwarranted risk of harm in the future.

101. However, the Panel did conclude that the misconduct, which was a dishonest concealment of the Caution from the HCPC and her employer, and a dishonest assertion of good character to the HCPC, brought the profession into disrepute, breached fundamental tenets and was dishonest over a period of time.

102. The Panel next considered whether the Registrant was liable to act in these ways in the future. In the circumstances before it, including the limited insight and lack of remediation shown, as set out above, which did not assist in mitigating against the risk of repetition, the Panel was satisfied that the Registrant was liable to bring the profession into disrepute, to breach fundamental tenets and to act dishonestly in the future.

103. The Panel was therefore of the view that the Registrant’s fitness to practise is currently impaired on the basis of the personal component in respect of the misconduct.

104. The Panel next considered the wider public interest.

105. With regard to the Caution, the Panel took the view that a Caution for Criminal Damage was a serious matter, and that this did have implications for the wider public interest. It was an act of criminal damage for which the Registrant was arrested, taken into police custody, and cautioned. The Panel took the view that the Caution required a finding of Impairment because to do otherwise would undermine the need to uphold proper standards of conduct and behaviour and to maintain public confidence in the profession.

106. With regard to the misconduct, the Panel was of the view that it was serious. It struck at the heart of the Registrant’s duty to be open and honest with the HCPC and her employer, with both organisations relying on her to be honest in disclosing the Caution so that they could consider it and make a risk assessment as to whether it had any implications for patient safety, as they were obliged to do. The Registrant breached the trust placed in her. In the circumstances, the Panel decided that the need to uphold proper standards of conduct and performance, and the need to maintain confidence in the profession would be undermined if no finding of impairment were made.

107. The Panel therefore found the Registrant to be impaired on the basis of the personal component in respect of the Misconduct, and the public component in respect of the Caution and the Misconduct.

Decision on Sanction

108. Mr Olphert referred to the HCPC Sanctions Policy (SP) and reminded the Panel that the purpose of sanction is not to punish, but to uphold the public interest. Mr Olphert reminded the Panel of the principle of proportionality, as well as drawing its attention to various sections of the SP, including the section on serious cases, specifically in relation to dishonesty and Cautions.

109. The Panel read the HCPC’s Sanctions Policy (SP) and accepted the advice of the Legal Assessor. The Panel was aware that the aim of any sanction is not to be punitive. Rather, the fundamental aim is to uphold the public interest which may include protection of the public. Sanction is a matter for the independent judgment of the Panel. The Panel took into account the principle of proportionality in coming to its decision on sanction, which means that the right to practice should not be restricted any more than is necessary to address the risks arising out of the matters found proved.

110. The Panel reminded itself of the fact that prior to her disengagement with the hearing, the Registrant’s oral evidence had been confined to addressing the facts stage, at which she denied all the dishonesty charges. However, the Panel considered her oral evidence, as well as the documentary evidence which she submitted, when considering Sanction. The Panel also reminded itself that due to her disengagement at the end of the facts stage, the Registrant provided no further evidence, which could have assisted the Panel at the Sanction stage.

111. The Panel took into account the health concerns referred to by the Registrant in her oral evidence as well as her email dated 19 October 2021. However, the Panel also took into account that there was no independent evidence of such health matters before it.

112. The Panel identified the following mitigating factors:

i. no previous regulatory findings;

ii. remorse demonstrated and apology given;

iii. positive character testimonial.

113. The Panel identified the following aggravating factors:

i. limited insight and no remediation demonstrated;

ii. breach of the relationship between her and the Council and the HCPC, organisations which relied on her for honest disclosure of the Caution to enable them to carry out their functions of protecting the public and public confidence;

iii. pattern of repeated dishonesty over a period of time.

114. The Panel considered the level of seriousness of the matters found proved.

115. With regard to the dishonesty, the Panel considered the fact that the dishonesty was repeated, over a period of time, and that it involved a positive active act of dishonesty in respect of her answers on the HCPC renewal form, as well as two other occasions in which she sought to conceal the Caution from the Council and the HCPC. In taking into account her breach of her relationship of trust with the Council and the HCPC in being dishonest, the Panel considered that the dishonesty was towards the higher end of the spectrum of seriousness. The Panel also reminded itself that it has already decided that the Registrant is liable to act dishonestly in the future. The Panel was also aware that openness and honesty are fundamental tenets of the OT profession, and if breached, had grave implications for public confidence in the Registrant, and the profession.

116. With regard to the Caution, the Panel took the view that while it was a serious matter to have received a Caution, as set out in it its decision on Impairment, the actual details of the events of the offence were towards the less serious end of the spectrum seriousness. The Panel also reminded itself of its decision that the Registrant was not liable to receive a Caution in the same or similar circumstances in the future.

117. Thus, the Panel considered that the findings of dishonesty were the most serious findings upon which its sanction decision was based, and although there was a need to address the wider public interest in respect of all its findings, this need weighed more heavily in respect of the dishonesty found proved.

118. The Panel was of the view that mediation is not appropriate in light of the nature and seriousness of the case.

119. The Panel discounted taking no further action because it would not address the risk of repetition already identified and would not satisfy the public interest in this case.

120. The Panel also discounted a Caution Order because it would not address the wider public interest.

121. The Panel next considered a Conditions of Practice Order. This was not a case where their findings of clinical performance issues which are conducive to being addressed by conditions. The Panel was unable to formulate conditions which would address the dishonesty and safeguard against the risks arising from it.

122. The Panel next considered Suspension. The Panel took into account that there was evidence of only limited insight from the Registrant, and that there was a real risk of repetition of the dishonesty. However, the Panel also took into account that there was no findings of a clinical nature and that there is no ongoing risk of harm to patients. The Panel took into account that the dishonesty was in principle remediable, and that the lack of engagement from the Registrant at the Impairment and Sanction stage did not mean that the Registrant was unable to remedy her failings. In all the circumstances, the Panel decided that a Suspension Order was sufficient in principle to protect public confidence in the profession and the regulatory process.

123. The Panel decided that a period of 1 year was proportionate in the circumstances, the maximum period reflecting the fact that there was limited insight demonstrated by the Registrant. The period of 1 year was appropriate to mark the seriousness of the findings as a whole, and to uphold the public interest.

124. The Panel did take into account proportionality and that a Suspension Order would prevent the Registrant from practising her profession and may have a financial and reputational impact. However, the Panel decided that the need to uphold the public interest and public confidence in the profession outweighed her interests in this regard.

125. The Panel did consider a Striking Off Order but decided that this would be disproportionate at this time, bearing in mind the reasons why a Suspension Order was proportionate. This does not preclude a future reviewing Panel making a Striking Off Order if it deems it proportionate and appropriate to do so.

126. The Panel also considered that a subsequent reviewing Panel may be assisted by the following:

i. A written reflective statement from the Registrant demonstrating:

⦁ an understanding of the importance of honesty from the perspective of the service user;

⦁ an understanding of the importance of honesty as a member of the OT profession, upholding a fundamental tenet of the profession;

⦁ an understanding of the importance of honesty from the perspectives of both the Council and the HCPC;

⦁ an understanding of the importance of honesty with regard to public perception;

⦁ an understanding of her dishonesty on all parties referred to in the previous bullet points and what steps she can take to avoid acting dishonestly in the future.

ii. Evidence of the Registrant keeping her knowledge of the OT profession up to date;

iii. Any testimonials or references relating to work undertaken by the Registrant, whether paid or voluntary.

 

Order

ORDER: That the Registrar is directed to suspend the registration of Miss Helen M Orme for a period of 12 months from the date this order comes into effect.

Notes

Application for an interim order to cover the appeal period

1.The Panel heard an application from Mr Olphert for an 18-month Interim Suspension Order to cover the appeal period in the Registrant’s absence. He submitted that such an order may be imposed where it is necessary to protect the public and/ or it is in the public interest. Mr Olphert acknowledged the former ground may not be applicable in this case considering the Panel’s decision on the basis for the Sanction.

2. The Panel considered whether or not hear the application for an interim order in the absence of the Registrant. In deciding this issue, the Panel took into account that the Registrant had been informed, in the Notice of hearing dated 4 February 2022, that if this Panel found proved the allegation against her and imposed a sanction which removed, suspended or restricted her right to practise, the Panel may impose an interim order. In addition, the Panel took into account the reasons set out in its earlier decision to commence the hearing in the absence of the Registrant. In the circumstances, and for the same reasons, the Panel determined that it would also be fair, proportionate and in the interests of justice to allow Mr Olphert’s application for the Panel to consider an Interim Order in the Registrant’s absence.

3. The Panel considered the HCPTS Practice Note entitled “Interim Orders” as well as Paragraphs 133-5 of the SP. The Panel accepted the advice of the Legal Assessor.

4. The Panel took into account its previous findings, and adopting its reasons, the Panel came to the conclusion that an interim order is in the wider public interest in order to maintain public confidence in the profession and to uphold proper standards. This is on the basis of the seriousness of the dishonesty, the aggravating features of the case, and the limited insight and lack of remediation shown by the Registrant. Public confidence in the profession and the regulatory process would be seriously harmed if the Registrant were not made subject to an interim order during the appeal period.

5. The Panel was mindful of its decision at the sanction stage that Conditions were not appropriate. The Panel considered that to impose an Interim Suspension Order would be consistent with its finding that a Suspension Order is required.

6. The Panel recognised that the Panel must take into consideration the impact of such an interim order on the Registrant as part of the principle of proportionality, and must balance the impact on the Registrant with the need to uphold the public interest. In the circumstances of the case, the Panel was satisfied that the need to uphold the public interest outweighed the Registrant’s interests in this regard.

7. The Panel decided to impose an Interim Suspension Order for a period of 18 months, a duration which is appropriate and proportionate to allow any appeal which the Registrant brings, to be concluded.

Interim Order: The Panel makes an Interim Suspension Order under Article 31(2) of the Health Work Professions Order 2001, the same being in the public interest. This 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) the final determination of that appeal, subject to a maximum period of 18 months.

 

 

Hearing History

History of Hearings for Helen M Orme

Date Panel Hearing type Outcomes / Status
09/05/2022 Conduct and Competence Committee Final Hearing Suspended
13/12/2021 Conduct and Competence Committee Final Hearing Adjourned
18/10/2021 Conduct and Competence Committee Final Hearing Adjourned part heard