Ms Michelle A Hughes

Profession: Occupational therapist

Registration Number: OT31564

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 13/02/2023 End: 17:00 16/02/2023

Location: Virtual Via Video Conference

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

As a registered Occupational Therapist (OT31564) your fitness to practise is impaired by reason of your misconduct. In that:


1. On 10 July 2021 and 12 July 2021, when working for Sussex Mental Health Line, you did not complete a mental health assessment and/or safety plan when speaking to Service User A, who was waiting for an ambulance.


2. On or around 10 July 2021, when working for Sussex Mental Health Line, you told Service User A that they could ‘go beyond Mirtazapine, the Mirtazapine is just surface garbage’ or words to that effect.


3. On or around 10 July 2021, when working for Sussex Mental Health Line, you told Service User A that they need ‘spiritual health’, or words to that effect.


4. Between 12 July 2021 and 13 July 2021, when working for Sussex Mental Health Line, you did not ensure the confidentiality of personal information in that you copied the personal contact details of Service User A from the clinical system for personal use.


5. On one or more occasions between 12 July 2021 and 3 September 2021, you did not maintain appropriate professional boundaries in relation to Service User A in that you engaged in text and/or telephone conversations with Service User A using your personal mobile telephone, and:
a) One or more of the text messages and/or telephone conversations with Service User A were flirtatious and/or sexual in content.

b) One or more of the text messages and/or telephone conversations with Service User A involved discussions on the Bible, prayer, Indian Philosophy, spiritual thinking and/or death.


6. On 17 August 2021, you visited Service User A’s home address despite Service User A asking you not to so do.


7. Your conduct at 5a was sexually motivated.


8. The matters set out at particulars 1 – 7 amounts to misconduct.


9. By reason of your misconduct, your fitness to practise is impaired.

Finding

Preliminary Matters

Documents

1.     The Panel received electronic versions of:

 -     The HCPC’s main hearing bundle (127 pages)

 -     Representations from the Registrant (37 pages)

 - Statement and Addendum statement dated 14 February 2023 from the Registrant.

-        Supplementary statement of Witness TF dated 10 February 2023 (3 pages)

-        Mental health case note entries of Service User A (15 pages)

-        Service bundle (7 pages)

-        Production statement of Witness LL (2 pages).

Application to amend the allegation

2.     Ms Sheridan applied to amend the dates alleged in particulars 2 and 3 from “On or around 10 July 2021” to “On 12 July 2021”.  She submitted that the document referred to in support of these particulars confirmed that the correct date in both cases was 12 July 2021 and that the amendment should be made in the interests of fairness to the Registrant and of accuracy.

3.     The Registrant confirmed she did not object to the application.

4.     The Panel took advice from the Legal Assessor. The Panel considered that the amendments sought would ensure that the particulars were accurate.  The Panel was satisfied that no unfairness or prejudice was caused to the Registrant, who had confirmed she had no objection.   The Panel therefore determined that it was appropriate for the amendments to be made.

Application for privacy

5.     Ms Sheridan made an application that, should it be necessary during the hearing to refer to matters relating to the Registrant’s private life, those matters should be heard in private.  The Panel was referred to the provisions relating to public hearings in Rule 10(1)(a) of the (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”).

6.     The Registrant confirmed she agreed with the application.

7.     The Panel took advice from the Legal Assessor.  It bore in mind the important principle that the default position is that HCPTS hearings should take place in public. However, it was satisfied it would be appropriate and in accordance with the exception in Rule 10(1)(a) to hear any matters relating to the Registrant’s private life in private.  

The Registrant’s response to the allegation

8.     The allegation was read. The Registrant confirmed that she denied the facts of allegations 1 and 7.  She admitted the facts of allegations 2, 3, 4, 5(a) and (b) and 6. 

Background

9.     The Registrant is a registered Occupational Therapist.  During the period referred to in the charges, the Registrant worked as a bank worker for Sussex Mental Health Line (“SMHL”), a 24-hour mental health helpline.  SMHL is run by the Sussex Partnership Foundation Trust (“the Trust”).  The Registrant was a Mental Health Senior Clinician (Band 6).

10. On 2 September 2021, SMHL received a complaint from Service User A alleging that the Registrant had called Service User A, visited his property and sent him something in the post. Service User A was a caller who was previously known to the helpline and was considered to be vulnerable due to his complex mental health needs.  When contacted by the investigating officer, TF, the Registrant informed her that the allegations were true. The Registrant had ended her employment with SMHL on the 19th of August 2021.

11. On 10 September 2021, the HCPC received a referral from SMHL. On 13 September 2021 the HCPC received a self-referral from the Registrant.

The HCPC’s evidence.

12. The HCPC called two witnesses, TF, SMHL Investigating Officer and CB, SMHL Service Manager. A witness statement from LL, a trainee solicitor at Kingsley Napley LLP, was admitted by agreement and dealt with the production of documentary evidence in the hearing bundle.

13. The following are summaries of the witnesses’ evidence:

Witness TF

  1. TF was a Team Manager at SMHL. She supervised 15 staff members and oversaw training, auditing, serious untoward incidents, investigations and dealt with complaints. TF explained the training given to staff including bank staff. This included training on the Trust mental health database. There was also training on the Storm telephone system and the Carenotes electronic records system which were specific to SMHL. Staff new to the SMHL would also listen to calls and shadow shifts as part of their induction. Induction training also included information governance and GDPR issues.
  2. Staff were advised not to give out personal information during calls and were made aware to maintain professional boundaries and client confidentiality. TF explained that from March/April 2020, and at the time of these events, all staff were working remotely.
  3. TF explained that the audio of every call into SMHL was recorded on the Storm system. For every call there also would be an entry in Carenotes made by the call handler dealing with what the presenting issue was, the risk identified and the overall plan at the end.
  4. TF produced the audit document she had prepared. She confirmed that in preparing the audit she had listened to the audio recording of relevant calls from the Storm system. She had made a contemporaneous entry on the log about each call she listened to as she went along. 
  5. TF stated that the original audio recordings were no longer available as at the relevant time in 2021, the external provider was only retaining the recordings for three months rather than the ten years for which it was understood they were being retained and for which they are now kept.
  6. TF confirmed that the Registrant was a bank worker at SMHL and said that she had had little contact with her prior to this matter.
  7. TF stated that Service User A was already known to the service before the calls in September 2021 with the Registrant. He had diagnoses of autistic spectrum condition, alcohol dependency and Emotionally Unstable Personality Disorder (“EUPD”). He had difficulties with communication, making friends and expressing himself.  His mood could range from being highly distressed to very angry and could change quickly.  This would be apparent from previous Carenotes entries and previous clinic letters which would be accessible. 
  8. TF confirmed that Service User A was vulnerable as he had chronic mental health diagnoses, had been unwell and required acute treatment and had threatened to take his life on a few occasions. He had expressed violent intentions but TF did not think he had carried them out. He was quite chaotic and was vulnerable.
  9. TF explained that the complaint of Service User A came to SMHL’s attention when he contacted the service and told an operator that a member of staff kept contacting and texting him. The operator was concerned that this was inappropriate and escalated the matter to the management team. Initially they did not know which member of staff was involved, but eventually Service User A called back and gave TF the mobile number of the staff member, which TF took as clear evidence that the staff member had been contacting him. Service User A also said that the Registrant had visited his house and had sent him a book on that day. 
  10. TF stated that Service User A was clear that the contact from the Registrant was unwanted and was putting extra stress on him. He did not want the contact but it had continued.
  11. TF said that by this time the Registrant had left SMHL. She took steps to ensure that the service user had support in place as she was aware that he was a vulnerable adult due to his mental health needs.
  12. TF made the appropriate senior staff at SMHL aware of the incident and raised a safeguarding concern form. A fitness to practise referral form was submitted to the HCPC concerning the matter.
  13. TF referred to her audit of the conversations relating to the calls with Service User A on 10 and 12 July 2021. In relation to the call on 10 July 2021, the first part was appropriate. However, her concern was that the purpose of the call had not been established, there were no questions around risk and there was no indication of a plan and no indication as to what support the service user had in place.  Whilst the Registrant had indicated the risk level was “G”, TF thought she would have assessed him as “E”.
  14. In relation to the call on 12 July 2021, the call was escalated to the Registrant as the clinician and most senior person on the shift by a Band 4 call handler. Service User A was quite high risk and was saying he had called an ambulance 30 minutes previously. TF’s concerns having listened to the call on the Storm system were that the Registrant had not established why he had called the ambulance.  There was no de-escalation of the risk, and it was not established what coping or support mechanisms the service user had in place.  There was nothing to indicate what was going to happen next.  In cross-examination, TF said she would still have expected this call not to exceed 20 minutes.  In this case, the ambulance service could have been contacted to see what was happening and also the service user’s line would have been cleared so that the ambulance service would be able to contact the service user.    
  15. In relation to the reference to Mirtazapine in the call, TF said that the service is very clear that they do not advise callers on medication as they are not qualitied to do so. When the service user raised concerns about the effect of his medication on him, he should have been advised to discuss his medication with his GP.
  16. In relation to the discussion about “spiritual health”, TF said that the service would listen if service users raised such matters, but should not give their views. The call should be about the service user, not the call handler.
  17. TF said it was absolutely unacceptable for the Registrant to have obtained the service user’s contact details from the system. There was a policy that the service would never call a service user back, unless there was an emergency situation. TF said that the role is difficult and it is important to hold appropriate boundaries. In a twenty-minute call, the service could not unpack a service user’s lifetime of trauma and past treatment and then “re-package it “at the end of the twenty-minute call.  TF said her reaction when she learned of the content of the call was that she was appalled and then disappointed that the service user deserved a good call and had not received one. 
  18. In relation to the text messages, TF confirmed that she did not see the content. Service User A had declined to provide them to the Trust. Service User A had informed her directly about the Registrant’s comment about just having had sexual intercourse.

Witness CB

  1. CB was employed by the Sussex Partnership Foundation Trust as Service Manager for SMHL and as Service Manager for Sussex Staff in Mind Clinical
  2. CB told the panel that SMHL is a listening and support service and provides a 24/7-hour helpline available to anyone in Sussex. Service users can call if they have concerns about mental health or need advice about another service, or if they have concerns about a friend or family member. It is not a crisis line but supports crisis so for instance a call might require them to call an ambulance for a service user.
  3. Calls would usually deal with mental health issues, for example people experiencing suicidal thoughts, anxiety, low mood, depression, isolation and loneliness.
  4. CB said that calls were supposed to be 20 minutes long but an initial call may take longer to obtain background information and to undertake an initial assessment of the issues and could be up to 45 minutes.
  5. CB said that the Registrant was a Mental Health Senior Clinician (Band 6). Senior Clinicians provided a point of escalation for risky or complex calls taken by the Band 4 operators. The Registrant was a bank worker and so not a permanent member of staff.  She would fill shifts that were vacant on an ad hoc basis.  As a bank worker the Registrant did not have a direct line manager, but would report to the management team or to another senior clinician if she had any concerns.
  6. CB became aware of the incident relating to Service User A and the Registrant when one of the clinicians informed her that the service user had made a complaint and then alerted the management team.
  7. CB explained that it was necessary to establish which call handler the service user had been referring to. The complaint was then given to TF Witness 2, to investigate.
  8. At this time, the Registrant had left her employment at SMHL and they held no contact details for her.
  9. When the investigation commenced and the allegations had become clear, CB e-mailed the Registrant asking to speak to her. The Registrant was on holiday abroad at the time. When CB spoke to her she explained that allegations had been made by the service user.  CB said the Registrant knew who she was referring to.  The Registrant said that she had contacted the service user outside of work and that they had engaged in phone calls and text messages.  She said that this was why she had left the service.  The Registrant stated that she and Service User A had never met in person.  They had arranged to meet but the meeting was subsequently cancelled.
  10. CB said that the Registrant was very honest about what had taken place and told her that she would not have any further contact with the service user because it had had a negative impact on a both her and him. CB said that the service user had become quite distressed in his complaint to SMHL.
  11. CB said that she told the Registrant she would be raising a safeguarding concern and that the matter would be referred to the HCPC. The Registrant said that she understood and that she would also refer herself. CB said that she had no further contact with the Registrant and the complaint was taken forward by TF.

The Registrant’s evidence

  1. The Registrant gave evidence on her own behalf. She did not call any further witnesses. The Registrant had submitted several written statements, including her self-referral to the HCPC and a statement dated 14 February 2023 and an addendum statement of the same date. She adopted these as her evidence in chief. The Panel read and took account of all the Registrant’s statements. The following is a summary only of the Registrant’s accounts.
  2. The Registrant stated that she took three calls from Service User A at SMHL in the period concerned. She allowed the third call to continue for 2 hours which she accepted was not within the remit of the service. She took an interest in Service User A, who was from the same area that she was from and was of a similar age, a year younger. The service user expressed an interest in spirituality which the Registrant shared and at the time she was living in a spiritual centre. The service user had been asking to speak to her when he called previously and she said “I can only say I fell for him”.
  3. Prior to the calls the Registrant said she had no intention to remain working for the helpline and no intention to renew her HCPC registration which was due to lapse on 31 October 2021 but, she said, “I knew this didn’t make it OK to do what I did”. She was well aware of the service user’s diagnoses, and he appeared to seek mental health input when his relationships and support were threatened. She stated that she contacted the service user using her personal mobile and took his number and address from the SMHL clinical system. She was well aware that this was an information governance breach and that the service user was deemed a vulnerable adult.
  4. Several days after the long call on the 12 July 2021, the Registrant had offered to meet the service user via text. He later contacted her by calling her and they conversed and texted on several occasions over the following two weeks. She did not always initiate the contact.  She was flattered by the service user’s attention and response.  She suggested they move to WhatsApp and then sent a picture of herself and two video messages on this platform.  The service user sent her photos of himself via SMS text.
  5. The Registrant said that the service user “mirrored my own emotional and psychological profile although to a somewhat lesser extent”. She felt they got on well and had a lot in common. The Registrant shared further personal information about herself as the service user said he knew nothing about her.
  6. The Registrant said when she sent her photo she underestimated the level of the service user’s drinking. She knew that he had a history of binge drinking, but not to what extent. He made comments that she “got him” and that she could see through him and did not take seriously stories he would recount about having a violent history and making threats to people physically to make them go away which she described as “classic personality disordered behaviour I could relate to given my clinical experience and history”. On 12 to 13 August 2021, they talked for 5 hours on the phone over the course of the evening after much back and forth texting.
  7. The Registrant said that she became aware that she could not maintain the boundaries in the work-based situation which she found difficult and could see the service user also struggled with. She said this highlighted “my own attachment issues” and “my desire to have some direct contact with him became somewhat of a preoccupation, becoming entranced by the attention and interest he showed and wished/ pushed to meet up”.
  8. On 16 August 2021 the service user was drunk when they conversed on the telephone and became abusive towards her, threatening physical violence and using multiple expletives. They had arranged to meet the following day. The Registrant visited the town where the service user lived and she had a friend who lived there. They texted and the service user told her not to come and she said “OK” but called at his property anyway. The service user did not answer the door.
  9. The Registrant took this as “somewhat of a wake-up call” and questioned whether having contact was causing the service user to drink “because of his self-view not being congruent with my interest in him”.
  10. The Registrant apologised for causing so much confusion and inadvertently creating a conflicting state. She decided not to have further contact with the service user. She sent a film link without any personal message that day and sent by post a spiritual reference book “A Course In Miracles” with a spiritual quote handwritten on a card without any personal message.  She then deleted all text correspondence from her phone and deleted the service user’s number.
  11. The service user subsequently contacted the Registrant out of the blue on 1 September 2021. He was apologetic for the previous call and thanked her for the book. The Registrant asked if they could catch up by phone the following day after her (non-NHS) work ended.  The service user agreed but continued to text her as she drove home.  They arranged to meet for coffee in a neutral space the following day, after she finished work.  The Registrant said “although in honesty I took the control out of his hands and pushed for it to happen rather than allow him to lead and therefore feel more safe”.  They texted again the following day when the service user was due to attend a mental health assessment at 11.00.  He began texting her while she was on her way to work.  She kept her responses friendly and acknowledging.  Early in the afternoon he made personal derogatory comments to her by text when she thought he was under the influence of alcohol.  She did not respond.  At around 20.30 he texted to ask if she was going to call round or not.  She replied that she was at home and did not feel safe to meet him when he had had a drink.  He answered “Whatever”.
  12. On the following day she sent him some photos of home-made bread she had intended to give him the previous evening. He responded by calling her “a f….ing lunatic” and said he had reported her. The Registrant was very shocked and blocked his number on her phone and had not made or received any further contact from the service user.
  13. The Registrant said she was not completely surprised when she was contacted by her former service manager and informed of the complaint. She acknowledged the inappropriateness of her actions. She said she wished to apologise to the service user for causing him any distress, discomfort or confusion related to her contact.  She said that her intention was not to hurt him and that her affection for him was real.
  14. The Registrant said that she had apologised for bringing the profession into disrepute by her actions and she acknowledged that it was likely that the helpline team were confused and concerned for the service user and herself. She wished to apologise to them, especially the call operator who took the service user’s call when he reported the allegation which she recognised must have been extremely concerning.
  15. In cross examination in relation to denied allegation 1, the Registrant said the service user had had calls with her on four previous occasions and she understood what his risk was. In respect of the contact on 10 July 2021, she made entries in Carenotes and had assessed the service user in accordance with the “5 Ps” system.  She said she had assessed the service user as “G”, a lower risk category. She accepted that not all her comments in the call as recorded by TF were of a clinical nature. She thought service users need to be spoken to as human beings.  She accepted that she did not record any risks during the call and said that sometimes it was necessary to listen to service users in order to allow validation.  Service User A was a dominating character of whom it was difficult to ask questions.  The Registrant did not challenge the accuracy of TF’s recording of the conversation in her audit document.  However, the Registrant said that she thought her entries in Carenotes were adequate.
  16. In relation to the call on 12 July 2021, the Registrant acknowledged that the fact that the service user was saying he had called an ambulance was mentioned at the handover given to her by the previous call handler. The Registrant said she had been able to access records from Service User A’s previous contacts with the service. She believed that he may have been escalating his risk of harm as this was a behaviour seen in patients with a diagnosis of Emotionally Unstable Personality Disorder who would escalate their risk in order to get their needs met.
  17. The Registrant accepted that the call lasted 94 minutes but that during that time she had not asked why the service user had called an ambulance. She accepted it would have been appropriate and helpful to ask.
  18. In relation to denied allegation 7, the Registrant denied that the text message and conversations were sexually motivated. She accepted sending the sexually explicit message referring to just having had sexual intercourse was very regrettable in hindsight, but it was meant as humour. She accepted it was inappropriate and had not appealed to the service user.  The Registrant said that at the time she was conscious that “red flags were popping up” and she ignored them, but she said her actions were not sexually motivated.  She said she had not been seeking a sexual relationship at this time. 
  19. The Registrant accepted she had attended at Service User A’s address on 17 August 2021 and whilst she must have been aware of the inappropriateness, said that her desire to meet him was very strong. She accepted she had sent him the book. She accepted that she had taken the service user’s details from the system knowing this was a breach of confidentiality and information governance.  When asked if these allegations went to the heart of her role as a health professional the Registrant said they did and she did not know why she had “sabotaged” her own career, but thought it may have been so that she would no longer be able to work in the NHS.  
  20. In answer to questions from the Panel as to how she would deal with a similar situation if she were able to practise in the future, the Registrant said at this stage that she had not considered practising again and she had not expected that the decision in the case could go in her favour. When asked about any remediation, she indicated she had not undertaken any remediation and had not undertaken any CPD as she has not been working in a professional capacity using her Occupational Therapy registration.
  21. In respect of her current employment, in her statement dated 14 February 2023 the Registrant stated that she is currently working independently for a care for the elderly facility and does not require occupational therapist registration for her post. She works in the catering department and has minimal contact with service users. The Registrant said that the service is aware of the HCPC’s investigation.  She does not currently have access to any patient records in her role. 

 

Submissions of the HCPC

  1. Ms Sheridan reminded the Panel of the admissions made by the Registrant. She summarised the factual evidence called by the HCPC in respect of each allegation. In relation to allegation 7, Ms Sheridan referred to the guidance on the meaning of the term “sexual motivation” in the authorities Basson v GMC [2018] EWHC 505 (Admin) and Haris v GMC [2020] EWHC 2518 (Admin).
  2. Ms Sheridan submitted that the Panel should find the factual allegation proved applying the burden of proof and the civil standard of proof.
  3. In relation to the alleged ground of misconduct, Ms Sheridan submitted that if proved, the conduct of the Registrant fell far below expected standards. She submitted the relevant HCPC Standards were 1.7, 2.7, 6.2 and 9.1
  4. Ms Sheridan submitted that the Registrant took and mis-used the contact details of Service User A, who was known to be vulnerable and at risk. The Registrant contacted the service user outside of her professional role and failed to respect appropriate boundaries. She prioritised her own needs over those of a vulnerable service user.  Her actions were pre-meditated and she acted knowing that they were wrong.
  5. Ms Sheridan submitted that the Panel should find that the Registrant’s fitness to practise is currently impaired in respect of both the personal and public components of impairment. She noted that the Panel should conclude that the Registrant had not satisfied the Panel that her actions would not be repeated in the future.      

Further application to amend – allegation 1

  1. Following the HCPC’s submissions on the facts, Ms Sheridan made an application to amend allegation 1. This was on the basis that this allegation should have been drafted as two separate allegations, as there was no evidence to support that Service User A had been waiting for an ambulance on the first date, 10 July 2021, only in relation to the second date, 12 July 2021. Ms Sheridan applied to split the allegation into two, to read as follows:
  1. When working for Sussex Mental Health Line:

 

  1. On 10 July 2021, you did not complete a mental health assessment and/or safety plan when speaking to SUA;
  2. On 12 July 2021, you did not complete a mental health assessment and/or safety plan when speaking to SUA, who was waiting for an ambulance.

 

  1. The Registrant did not object to the amendment.

 

  1. The Panel took advice from the Legal Assessor. The Panel considered the requirement of fairness to the Registrant and also took into account the HCPC’s overarching duty to protect the public and the public interest. This included ensuring that allegations properly brought by the HCPC could be considered and determined by the Panel.

 

  1. The Panel was mindful this was a late application, made in order to correct a drafting issue. The Panel was satisfied that no prejudice or unfairness would be caused to the Registrant, as the amendment would not change the allegation or add to its seriousness. It was a matter of re-formulation of the existing allegation to ensure clarity and that all aspects of the allegation could be properly considered. The Panel therefore agreed to the amendment sought.     

 

Submissions of the Registrant

 

  1. In her closing submissions the Registrant indicated her acceptance of the case against her and that she understood that the allegations were likely to be upheld by the Panel and that some restriction was likely to be placed on her right to practise further.

 

 

 

  1. The Registrant said she felt that she had had “a light bulb moment” where she realised that she had not offered the service which NHS service users were entitled to expect. She offered her appreciation to those involved in this hearing. She expressed remorse and apology to TF who had observed the hearing and asked her forgiveness for her unacceptable behaviour.  The Registrant expressed again how she now wished to go forward.

 

 

 

 

The Panel’s decisions

 

  1. The Panel, by agreement with the parties, heard submissions on the facts, the ground and impairment of fitness to practise together, but was mindful that it must consider and reach its decision on each stage separately and sequentially.

 

Facts

 

  1. In relation to the facts alleged, the Panel accepted the advice of the Legal Assessor who reminded the Panel that the burden of proof is on the HCPC and the Registrant does not have to prove anything. The standard of proof in these proceedings is the civil standard, the balance of probabilities. This means in order to find a fact proved, the Panel must be satisfied it is more likely than not that it occurred. The Panel was advised it could take account of the admissions made by the Registrant.

 

  1. In relation to the allegation of sexually motivated conduct (allegation 7), the Panel was referred to the HCPTS Practice Note, Making Decisions on a Registrant’s State of Mind. The Legal Assessor reminded the Panel of the decision in the case of Basson v General Medical Council [2018] EWHC 505 (Admin) in which Mostyn J stated “A sexual motive means that the conduct was done either in pursuit of sexual gratification or in pursuit of a future sexual relationship”.

 

  1. Mostyn J further stated that sexual motivation is a state of mind and that “the state of a man’s mind is to be proved in the usual way by the necessary body of evidence on the balance of probabilities …However, the state of a person’s mind us not something that can be proved by direct observation. It can only be proved by inference or deduction from the surrounding circumstances”.
  2. In considering the facts alleged, the Panel had careful regard to the oral evidence of the witnesses called on behalf of the HCPC and that of the Registrant. The Panel examined and considered the documents relevant to the individual particulars contained in the exhibits bundle. The Panel considered the submissions of Ms Sheridan for the HCPC and those of the Registrant.
  3. The Panel took into account the admissions made by the Registrant (as set out above), but also gave its own consideration to the evidence presented by the HCPC and in reaching its determinations on the facts:

 

 

  1. When working for Sussex Mental Health Line:

 

  1. On 10 July 2021, you did not complete a mental health assessment and/or safety plan when speaking to SUA;
  2. On 12 July 2021, you did not complete a mental health assessment and/or safety plan when speaking to SUA, who was waiting for an ambulance.

 

  1. This allegation was denied by the Registrant. She maintained that her entries in the Carenotes system showed that she had assessed the Service User according to the “5 P’s” system and assessed him as a grade G risk level. The Panel preferred the evidence of the HCPC’s witnesses, TF and CB, both of whom it found to be clear and credible in their evidence.  TF, who had conducted the investigation on behalf of SMHL, had a clear recollection of the detail. She gave evidence of the audit she undertook of the telephone calls between the Registrant and Service User A, in particular those on 10 and 12 July 2021. The audio recordings of the calls were no longer available, but TF told the Panel that as she listened to the recordings, she made contemporaneous notes in her audit document.  The Panel accepted TF’s evidence and accepted her audit to be a reliable record of the conversations.

 

  1. TF explained the nature of the SMHL helpline, that it was a “crisis” helpline where calls were intended to last around 20 minutes, where the call handler would ask questions to obtain information about the caller’s presenting problem, their current medication and what current support they had. The last part of the call would be putting in place a plan to deal with the immediate situation. The Registrant had done none of these things in her calls with Service User A on 10 and 12 July 2021. On 12 July, she was made aware that Service User A had said he had called an ambulance in the last 30 minutes.  The Registrant did not ask questions to establish why the service user had needed to call an ambulance.

 

  1. The Panel accepted the evidence of TF and was satisfied that allegations 1(a) and 1(b) were proved.

 

  1. On 12 July 2021, when working for Sussex Mental Health Line, you told Service User A that they could ‘go beyond Mirtazapine, the Mirtazapine is just surface garbage’ or words to that effect.

 

  1. The Registrant admitted this allegation. The Panel had reference to the record of the call in the audit document prepared by TF.
  2. TF told the Panel that it was clear that whilst call handlers might discuss medication with service users on the SMHL helpline, they should not advise service users as they were not qualified to do so and were not psychiatrists. If Service User A had concerns regarding his prescribed medication, the Registrant should have advised him to discuss them with his GP.
  3. On the basis of the Registrant’s admission and the evidence, the Panel found allegation 2 proved.

 

  1. On 12 July 2021, when working for Sussex Mental Health Line, you told Service User A that they need ‘spiritual health’, or words to that effect

 

  1. The Registrant admitted this allegation.

 

  1. The Panel considered the record of the conversation on 12 July 2021 in the audit document. TF’s evidence was that if a service user raised issues relating to religion or spiritual health, the call handler could listen but it was not appropriate for them to give their personal view or to take the lead in raising such matters. The Registrant had admitted that she took the lead and directed the conversation with Service User A.

 

  1. On the basis of the Registrant’s admission and the evidence, the Panel found this allegation proved.

 

  1. Between 12 July 2021 and 13 July 2021, when working for Sussex Mental Health Line, you did not ensure the confidentiality of personal information in that you copied the personal contact details of Service User A from the clinical system for personal use.

 

  1. The Registrant admitted this allegation. She admitted that she had taken Service User A’s mobile number during the conversation on 12 July 2021 and put it into her personal mobile. The call log showed a very short call of 1 second duration in the log of the Registrant’s telephone calls. She later obtained his address from his records.

 

  1. TF stated that in his complaint to SMHL, Service User A had indicated that the Registrant had called and texted him and had visited his address. He had made his complaint because this contact was, or had become, unwanted and he described it at the time of his complaint as “harassment”. The Registrant admitted that she was fully aware her actions in taking the Registrant’s contact details were a breach of confidentiality and of the Trust’s information governance policy.

 

  1. On the basis of the Registrant’s admission and the evidence, the Panel found allegation 4 proved.

 

  1. On one or more occasions between 12 July 2021 and 3 September 2021, you did not maintain appropriate professional boundaries in relation to Service User A in that you engaged in text and/or telephone conversations with Service User A using your personal mobile telephone, and:

 

  1. a) One or more of the text messages and/or telephone conversations with Service User A were flirtatious and/or sexual in content.

 

  1. The Registrant admitted this allegation. There was no direct evidence before the Panel as to the content of the text messages, as the Panel was told that Service User A had declined to provide copies of the texts to the Trust. In his complaint the Service User had referred to such texts and the Registrant admitted there had been such texts and calls and that they had a flirtatious aspect.

 

  1. The Panel accepted the evidence of TF that Service User A had described the Registrant sending him a message saying that she had just had sexual intercourse. Whilst the Registrant sought to explain the context of the sending of the text and that it was intended as humour, she accepted that she had sent it. She also told the Panel that she had sent photograph of herself, a headshot, via WhatsApp and then Service User A sent two photos of himself to her.  Neither were of an explicit nature.
  2. On the basis of the Registrant’s admission and the evidence, the Panel found this allegation proved.

 

  1. b) One or more of the text messages and/or telephone conversations with Service User A involved discussions on the Bible, prayer, Indian Philosophy, spiritual thinking and/or death.

 

  1. The Registrant admitted this allegation.

 

  1. The Panel considered the records in TF’s audit document of conversations between the Registrant and Service User A on these subjects. From the Registrant’s evidence to the Panel, it was apparent that these subjects were of particular interest to her and she accepted that she had not only listened to the Service User, but had directed and led the conversation. 

 

  1. On the basis of the Registrant’s admission and the evidence, the Panel found allegations 5(a) and 5(b) proved.

 

  1. The Panel was also satisfied that, as alleged in the stem of allegation 5, the Registrant had engaged in text or telephone conversations on these topics with the Registrant using her personal mobile and in so doing, she had failed to maintain appropriate professional boundaries in her professional relationship with Service User A.

 

  1. On 17 August 2021, you visited Service User A’s home address despite Service User A asking you not to so do.

 

  1. The Registrant admitted this allegation.

 

  1. The hearsay evidence of TF relating to Service User’s A’s complaint to the Trust, and the evidence of the Registrant, confirmed that the Registrant visited Service User A’s home address, having obtained that address from his health records. The Registrant admitted being aware at the time that he did not wish her to do so, but proceeded nonetheless.  She did not meet Service User A, as he did not answer the door. 

 

  1. On the basis of the Registrant’s admission and the evidence, the Panel found this allegation proved.

 

  1. Your conduct at 5a was sexually motivated.

 

  1. The Registrant denied this allegation.

 

  1. The Panel took account of the test set out in the case of Basson v GMC (above) and referred to the guidance in the HCPTS Practice Note, Making decisions on a Registrant’s state of mind. The Panel considered all the evidence about the circumstances.  The conduct alleged and found proved related to texts and telephone conversations between the Registrant and Service User A which were of a flirtatious or sexual nature. There was no suggestion that any relationship had involved any physical sexual contact. The conduct was not clinically appropriate or justified.  Latterly at least, it was contact which was not wanted by the service user.

 

  1. The Panel considered it was clear from the evidence and from the Registrant’s own accounts that she had sought to pursue some form of relationship with the service user by means of contacting him, communicating with him and trying to meet with him. The Registrant’s explanations of her motivation were confusing. She denied that she was seeking any form of sexual relationship at the time, including with Service User A, but she was unable to give a clear rationale for pursuing contact with him.  However, the Registrant admitted she found Service User A attractive, found him interesting and found him familiar because he came from the same area as she did.  She liked his sense of humour and was flattered by his interest in her. She sent a photo of herself and at least one message that was sexually explicit. She said that she “fell for” Service User A and that she was entranced by the attention he paid her. She described a strong desire to meet with him. 

 

  1. The Panel considered that the Registrant’s explanations were confused and that she may have had a number of motives for pursuing contact with Service User A. However, taking account of the above factors from the surrounding circumstances, and the Registrant’s own accounts, the Panel was satisfied on the balance of probabilities that one aspect of her motivation was the possibility of pursuing a future sexual relationship with Service User A.
  2. The Panel concluded on the balance of probabilities that the Registrant's conduct as proved in allegation 5(a) was sexually motivated and found allegation 7(a) proved.

 

Misconduct

  1. Having found the allegations proved in their entirety, the Panel considered whether the Registrant’s conduct amounted to misconduct.
  2. The Panel accepted the advice of the Legal Assessor.  The Panel was referred to the HCPTS Practice Note, Fitness to Practise Impairment. The Legal Assessor referred the Panel to the relevant legal authorities relating to misconduct. The Panel considered all the evidence and submissions it had heard.
  3. The Panel was mindful that misconduct is a matter for its own judgement, rather than the application of the legal standard of proof, and before making a finding of misconduct, the Panel must be satisfied that there has been a serious falling short of the HCPC’s Standards of Conduct, Performance and Ethics.
  4. The Panel’s starting position was that the issues in this case were serious. On two dates, the Registrant had failed in her duty of care towards a service user whom she knew to be a vulnerable and damaged individual who had called SMHL, a helpline, seeking help and support. The Registrant failed to take the action required of her in her role at SMHL, which was to ask questions of the service user and obtain current information from him, to assess risk, to find out what support mechanisms he had in place and to ensure there was a plan in place at the end of the call. Instead, the Registrant relied on assumptions rather than seeking current information. On the occasion on 12th July 2012, the service user was understood to have called an ambulance and the Registrant did not seek to establish what had caused him to do so. 
  5. In relation to the further allegations, the Registrant breached professional boundaries and abused her position of trust in a serious way. The Registrant inappropriately brought her own views and interests into the care of the service user by expressing her views on his medication and directing the conversion towards her views on spiritual health which it is clear from her evidence is a particular interest for her.
  6. The Registrant obtained the service user’s personal contact details from the SMHL system, being fully aware that this was a breach of information governance requirements and a breach of confidentiality. She then used these details to pursue contact and a relationship with the service user for her own reasons and purposes.  The service user later made it known that the contact was unwelcome, but the Registrant continued, including visiting the service user’s address.   The Panel had found that there was a sexual element to this, as part of her motivation was to pursue a potential future sexual relationship with him. Significantly, the Registrant was aware what she was doing was wrong throughout.  She knew that Service User was a vulnerable individual.  She placed her own interests above his.  Although she has sought to tell the Panel about sensitive personal issues in her past which she believed impacted on her actions, she has not given a credible or meaningful explanation of why she acted as she did in the case of Service User A when clearly aware that what she was doing was wrong.
  7. In the light of the above, the Panel concluded that the following HCPC Standards had been breached by the Registrant’s actions:

1.7

You must keep your relationship with service users and carers professional.

2.2

You must listen to service users and carers and take account of their needs and wishes.

2.7

You must use all forms of communication appropriately and responsibly, including social media and networking websites.

5.1

You must treat information about service users as confidential.

6.1

You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.

6.2

You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.

9.1

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

9.4

You must declare issues that might create conflicts of interest and make sure that they do not influence your judgment.

 

Impairment of fitness to practise

  1. The Panel next considered whether the Registrant’s fitness to practise is currently impaired by reason of her misconduct. The Panel received and accepted the advice of the Legal Assessor.  The Panel considered all the information before it, the evidence presented and the submissions of the parties.
  2. The Panel kept in mind that the question of impairment is a matter for its own judgement. The Panel had regard to the HCPTS Practice Note, Fitness to Practise Impairment, which confirms that the purpose of fitness to practise proceedings is not to punish a registrant for past acts or omissions, but to protect the public from those who are not fit to practise. 
  3. The Panel had regard to the conduct of the Registrant, the nature, circumstances and gravity of the findings and the critically important public policy issues, in particular the need to protect the public, to declare and uphold proper standards of behaviour and to maintain public confidence in the profession.
  4. The Panel first considered the personal component of current impairment, that is, the current competence and behaviour of the Registrant. The Panel had made findings of serious misconduct which indicated breaches of a number of key HCPC Standards. The Panel acknowledged the admissions made by the Registrant in relation to the allegations and her recognition, expressed in particular in her closing submissions, of the gravity of her past actions in the case of Service User A. The Panel concluded that the Registrant’s understanding had developed significantly over the course of this hearing.
  5. The Panel concluded that the misconduct in this case is potentially capable of being remedied. However, having listened carefully to the Registrant’s evidence and submissions, the Panel considered that, as the Registrant herself recognises, she has not yet attempted any meaningful attempt at remediation. At the beginning of this hearing, the Registrant indicated she may not wish to maintain her HCPC registration although by the time she made her closing submissions, she seemed to express a hope of continuing in her profession in the future.   
  6. The Panel concluded that the Registrant has now developed some insight into her past misconduct. However, this is at an extremely early stage and she is far from having full insight. The Panel remained concerned that although in her submissions the Registrant expressed remorse towards Service User A for her actions, and towards TF, as a representative of her peers in the healthcare profession, the Registrant nevertheless remains very focussed on herself and her own issues rather than fully understanding the implications of her actions for service users and for her profession. The Panel concluded that at present there would be a risk of repetition of the conduct if the Registrant’s fitness to practise were not found to be impaired.
  7. In her closing submissions the Registrant was very frank about highly personal and sensitive matters in her history which she suggested may be underlying triggers for her actions in this case. Whilst the Panel listened carefully and appreciated the Registrant’s openness and honesty, it concluded that these were primarily matters of personal mitigation to which it could give little weight to at this, the impairment stage. However, the Panel would consider and take matters of personal mitigation into account at the next, sanction stage, if reached.    
  8. The Panel concluded that the Registrant’s fitness to practise is currently impaired in respect of the personal component.
  9. In relation to the public component of current impairment, the Panel was satisfied that members of the public would be shocked if a finding of current impairment were not made in this case, where the Registrant has abused her professional position as an Occupational Therapist in relation to a vulnerable and damaged service user who called a mental health helpline for professional help. Given the scope and nature of the Panel’s findings of misconduct, the Panel concluded that public confidence in the profession and in the HCPC as its regulator would be seriously undermined if a finding of current impairment were not made in this case. 
  10. The Panel determined that the Registrant’s fitness to practise is currently impaired in respect of the public component of impairment.
  11. In relation to risk, the Panel was of the view that the Registrant continues to present a risk of harm to service users as she has not yet taken any meaningful steps to remedy her past misconduct. The Panel concluded that the Registrant’s misconduct has brought the Occupational Therapist profession into disrepute and that she has breached a fundamental tenet of the profession in relation to the breach of her duty of care to the service user.
  12. The Panel’s conclusion is that the Registrant’s fitness to practise is currently impaired in respect of both the personal and public components of current impairment.

 

Submissions on sanction

 

  1. Ms Sheridan addressed the Panel on the issue of sanction. She reminded the Panel of the proper approach to its consideration of sanction.

 

  1. Ms Sheridan did not seek a particular sanction in this matter. She referred to the HCPC Sanctions Policy and identified aggravating and mitigating factors which she said were present.  Ms Sheridan also referred the Panel to a number of sections of the HCPC Sanctions Policy of March 2019 which were applicable in the light of the Panel’s findings in this case.

 

  1. The Registrant provided further written submissions, dated 15 February 2023. These reflected the submissions she had put forward in her oral submissions at the previous stage of the hearing.

 

  1. The Registrant told the Panel that she fully accepted all of its findings in her case, including those issues which she had disputed at the outset. She said she now understood why the findings had been made. She again expressed her remorse and apology to Service User A, to her former colleagues and to her profession.  She had now reached a position where she believed with the support of EMDR therapy she could begin to address her issues.  She said she was willing to accept any measures the HCPC might consider were required in relation to her registration.

 

Decision on sanction

 

  1. The Panel received and accepted the advice of the Legal Assessor. The Panel was aware that the purpose of a sanction is not to be punitive, though a sanction may have a punitive effect. The Panel bore in mind that its primary function at this stage was to protect the public, while reaching a proportionate sanction, taking into account the wider public interest and the interests of the Registrant.

 

  1. The Panel considered the submissions of the parties. It took into account the Registrant’s personal mitigation evidence which had been given at the previous stage of the hearing.

 

  1. The Panel referred to the HCPC’s Sanctions Policy and applied it to the Registrant’s case on its own facts and circumstances. The Panel had particular regard in this case to the sections entitled Abuse of Professional Position, Breach of Trust, Vulnerability, Impact and Sexual Misconduct.
  2. The starting point for the Panel was that the Registrant’s misconduct had been serious. The issues had involved both clinical issues in relation to her breach of duty of care towards Service User A and pursuance of her own needs and interests in pursuing an inappropriate and sexually motivated relationship with him.
  3. The Panel first considered the mitigating and aggravating factors present in the case.

 

  1. The Panel identified the following aggravating factors:
  • The Registrant was a senior Occupational Therapist of some 15 plus years’ experience;
  • The allegations involved abuse of the Registrant’s professional position and a breach of trust;
  • The Service User was a vulnerable individual with a complex mental health background;
  • Harm, in the form of distress, was caused to the service user;
  • The Registrant made deliberate decisions to act as she did in the knowledge that her actions were wrong;
  • The Registrant has not undertaken any meaningful remediation and the Panel found the risk of repetition remained;
  • At this stage the insight the Registrant has shown is limited and at an early stage.
  1. The Panel identified the following mitigating factors:
  • The Registrant has not previously been the subject of any regulatory findings;
  • The Registrant has engaged fully with the HCPC proceedings.
  • In these proceedings the Registrant explained issues in her personal and family background, and in her unstable social circumstances at the time, which the Panel accepted as real and genuine. The Registrant believed that these issues have caused her trauma which she believes surfaced in the course of her interactions with Service User A;
  • The Registrant has reached a position over the course of this hearing where she has now frankly admitted all her past failings and has shown remorse and offered apologies, which the Panel accepts are genuine, to the Service User and to her former colleagues and to her profession;
  • The Panel also concluded that she has now begun to demonstrate real insight, albeit this is recent and is at an early stage.

 

  1. The Panel weighed the mitigating and aggravating factors and concluded that the aggravating factors must necessarily carry greater weight in this case. However, the Panel was also mindful that although the issues in relation to Service User A could not properly be described as a single incident, they did relate to interaction with one service user in a long and otherwise blemish free career. The Panel was satisfied that the Registrant’s issues may be capable of remedy, in particular in the light of the greater insight she has begun to show in the later stages of this hearing.
  2. The Panel moved to consider the issue of sanction, taking a proportionate approach and considering the available sanctions in ascending order of seriousness:

Mediation

This was not appropriate, as the issues found proved were too serious to be addressed by means of mediation.

No Further Action

Given the nature and seriousness of the Panel’s finding in this case, the matter was too serious for no further action to be appropriate;

Caution

The factors indicating that a Caution Order may be appropriate were not present.  The misconduct was not minor in nature. The Panel was not reassured that the risk of repetition was low and, at this time, meaningful remediation has not taken place.  The Panel also considered that a Caution would be insufficient to mark the seriousness of the Panel’s findings and to maintain the confidence of the public and the profession.

Conditions of Practice Order

The Panel did not consider this was a case in which conditions of practice were appropriate.  It was not of the view that suitable conditions which would adequately protect the public could be formulated.  The Panel decided that a Conditions of Practice Order would not be effective in marking the seriousness of the findings or protecting the public interest.

Suspension

The Panel gave very careful consideration to whether a period of suspension would be a sufficient response in the light of its serious findings in this case. The Panel referred to the HCPC Sanctions Policy as to when a suspension order is appropriate. In this case, the concerns found proved do represent a serious breach of the Standards of Conduct.  The Panel has not found that they are unlikely to be repeated.  However, the Panel has concluded that the Registrant has shown that she is developing fuller insight into her actions in Service User A’s case. The Panel observed that she has gained much greater insight over the course of this hearing and today in her submissions she has indicated her full acceptance of the gravity of the situation and full acceptance of the Panel’s findings.  She has now shown a willingness to engage and resolve the issues involved in the misconduct.

The Panel was fully mindful of the range and gravity of the aggravating factors it had identified.  However, the Panel was mindful that the Registrant has had a long career of some 15 years plus as an Occupational Therapist and has no previous history of fitness to practise findings.  The Panel considered that although it has received no psychological or medical evidence, the Registrant’s personal issues, which she has described fully and frankly, played a part in the circumstances at the time of this case. The Panel was satisfied in particular that the Registrant has gained significant insight in the latter stages of this hearing.

The Panel was of the view that with application and determination the Registrant may be able address and remediate her misconduct and demonstrate that she still has skills and experience to offer the profession.

The Panel was satisfied that an order for suspension would be a proportionate response which would protect the public and maintain public confidence in the profession whilst at the same time enabling the Registrant to work on remedying her currently impaired fitness to practise.

The Panel did give thorough consideration to whether a striking off order was the only appropriate and proportionate sanction which would protect the public.  In considering the Sanctions Policy, the Panel was satisfied that the Registrant has now started to show a higher level of insight and accepts that she is willing to engage to resolve matters. The Panel was satisfied after extensive consideration, that a striking off order would be disproportionately punitive and was not necessary to protect the public or the public interest as this could be achieved in this case by an order of suspension.

  1. In these circumstances, the Panel concluded that a Suspension Order for a period of twelve months was the appropriate and proportionate sanction which would protect the public interest and demonstrate the seriousness of the matter to the profession and the public.
  2. This Order will be considered at a review hearing before a panel of the Conduct and Competence Committee before the expiry of the 12-month period.
  3. Whilst this Panel is not able, and would not seek, to bind the future review panel, it recommends to the Registrant that the future panel may be assisted by the Registrant providing evidence to the HCPC (sufficiently in advance of the review hearing) to demonstrate that she has:
    1. Engaged in suitable therapy to address her personal issues;
    2. Engaged with a professional occupational therapy mentor;
    3. Prepared a reflective piece dealing with her personal issues and how they interact with her professional duties;
    4. Undertaken appropriate Continuing Professional Development, if necessary, with the aid of a mentor;

Put support mechanisms in place to ensure no similar situation occurs in the future.

Order

Order: That the Registrar is directed to suspend the registration of Michelle A Hughes for a period of 12 months from the date this order comes into effect.

Notes

No notes available

Hearing History

History of Hearings for Ms Michelle A Hughes

Date Panel Hearing type Outcomes / Status
07/02/2024 Conduct and Competence Committee Review Hearing Struck off
13/02/2023 Conduct and Competence Committee Final Hearing Suspended
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