Kelly Weir

Preliminary Matters

Proceeding partly in private

1. Ms Khorassani submitted that in order to ensure that matters relating to the health of the Registrant or that of members of her family, remained private, such matters should be received in private; but that otherwise this should be a public hearing. Having heard and accepted the advice of the Legal Assessor, the Panel determined that those matters that relate to the health of the Registrant or of members of her family, should be received in private, but that otherwise this was a public hearing. The written determination will reflect this ruling.

Service

2. The Panel has seen the Notice of today’s hearing dated 13 June 2023 which the HCPC sent by email to the Registrant at her registered email address. The Notice of Hearing made clear that this hearing would take place today as a virtual hearing. The Notice informed the Registrant of the time and date of this hearing. The Panel has seen an electronic communication dated 13 June 2023 which confirmed delivery of the Notice of hearing.

3. Having heard and accepted the advice of the Legal Assessor, the Panel was satisfied that good service of the Notice of Hearing has taken place.
Proceeding in the absence of the Registrant

4. The Hearings Officer Ms Josephine Sesay informed the Panel that earlier this morning she had an extensive telephone conversation with the Registrant. Ms Sesay informed the Panel that she had made a note summarising that conversation. That note is in the following terms:

“Reg called me this morning at 09:05am. She said she doesn’t know who to speak to but she won’t be attending the hearing and she would like to give a statement.
I said she can email me a statement, but she said she’d rather say it verbally over the phone as she doesn’t have the glasses and she’s not good at typing.

I do still want my registration; I do still want to work for the NHS.

[redacted]

Single parent, family live in Leicester. Registrant lives in Exeter, so she’s alone.

[redacted]

Not ready to Back into work in the NHS for the moment as all her time is spent dealing with her son.

She doesn’t want it to look like she’s not taking this seriously, and that’s why she’s calling [redacted]

I asked if she wanted to attend, we could possibly push the start time back for her. She said no [redacted]

Is she able and capable to go back into practice at the moment, probably not, [redacted]
She would welcome another 12-month suspension order, really doesn’t want her licence to be taken away (struck off) though as she does want to return to work eventually.

[redacted].”

5. Ms Khorassani reminded the Panel that the determination of the third review hearing conducted on 26 July 2022 shows that the Registrant did not attend and was not represented at that hearing. However, the Registrant’s submissions were available to that panel [the third review panel] as they were contained in a file note summary.

6. Ms Khorassani informed the Panel that by an email dated 27 June 2023 she had reminded the Registrant of today’s hearing. In that email Ms Khorassani further reminded the Registrant of the guidance given by the panel at the third review hearing as to what was likely to assist a subsequent reviewing panel. Ms Khorassani invited the Registrant to provide any relevant documents by 12.00 noon on 06 July 2023.

7. Ms Khorassani told the Panel that by a further email dated 27 June 2023 she had sent the Registrant the documents on which the HCPC intends to rely at today’s hearing.

8. Ms Khorassani told the Panel that the Registrant responded by email the same day. The Registrant stated that she was currently in the process of being assessed [redacted] and was awaiting the next assessment. She asked that the case be put back [redacted] as this “could change a lot of things”. When asked to confirm when the assessment was to take place, she said that there had been no date set and that it could be any time within the next 3 months.

9. The Hearings Team Manager sent the Registrant a further email on 3 July explaining that the order had to be reviewed before its expiry date on 21 August 2023 and that if the adjournment was refused she could attend on 17 July to further address the Panel about the impending assessment. She was asked to provide further details and submissions in order to assist the adjournment decision process. She did not do so.

10. By a determination dated 11 July 2023 the Chairman of the Panel refused the Registrant’s application for an adjournment of today’s hearing. His reasons are fully set out in his written determination.

11. Ms Khorassani submitted that the Panel should consider the case in the absence of the Registrant. She relied on the matters set out above. She submitted that good Notice of today’s hearing had been effected. She said that the Registrant is aware of this hearing. This was a statutory review; it is in the public interest and in the interests of the Registrant for it to proceed today. She further said that the Registrant has had ample time in which to make submissions and to provide relevant documents for the consideration of the Panel. Ms Khorassani also referred to the telephone conversation that the Registrant had this morning. She said that the Registrant was content for this hearing to proceed in her absence and had informed the Panel as to the outcome that she was seeking.

12. The Panel heard and accepted the advice of the Legal Assessor.

13. The Panel was aware that a decision to proceed in the absence of the Registrant was one to be taken with great care and caution. However, the Panel has decided to proceed in the absence of the Registrant. The reasons are as follows:

• Service of the appropriate notice of this hearing has been properly effected and the Registrant is clearly aware of this hearing.
• The Registrant has had ample time in which to submit such submissions and documents that she deems relevant.
• The Panel has kept in mind the guidance contained in the Practice Note issued by the HCPTS as regards proceeding in the absence of a Registrant.
• There is no reason to suppose that an adjournment would result in the future attendance of the Registrant.
• This is a mandatory review and it is in the public interest that it should proceed.
• Having read the note of the conversation that had taken place this morning between the Registrant and Ms Sesay, the Panel noted that the Registrant was content for today’s hearing to proceed in her absence and had indicated the outcome which she sought.
• In these circumstances it is reasonable to conclude that the Registrant has voluntarily absented herself.

Background as set out in the determination of the third review hearing conducted on 26 July 2022

The Substantive hearing

14. The Registrant is a registered Operating Department Practitioner (‘ODP’). On 24-25 July 2019, a panel at a substantive hearing found the facts proved as set out above and that they amounted to misconduct.

15. The substantive panel found this to be a serious act of dishonesty by the Registrant, who was in a position of trust, having access to the Scheduled Drug cupboard. Further, she was found by that panel to be unfit for duty as a consequence of her consumption of Tramadol and/or alcohol.

16. That panel determined that the Registrant continued to demonstrate a total lack of insight, in that she had not recognised the effect which dishonesty of this nature could have on public confidence in the profession. Further, that to be unfit for duty whilst on call could give rise to risk to patient safety. She further had not demonstrated remorse or any remediation.

17. As a consequence, the panel could not be satisfied that misconduct of this nature would not be repeated.

18. In those circumstances, in regard to the personal component, the panel determined that the Registrant’s fitness to practise was currently impaired. Furthermore, that a finding of current impairment was also required in the wider public interest. This was necessary to declare and uphold proper professional standards. The public would expect an ODP to act in accordance with these standards. Public confidence in the profession and in the HCPC as regulator would be undermined if a finding of impairment were not made.

19. The substantive panel imposed a 12-month Suspension Order.

The first and second review hearings

20. Reviews of the substantive Suspension Order were conducted on 14 July 2020, at which the Registrant attended, and 13 July 2021, at which the Registrant did not attend. Both review panels determined that the Registrant’s fitness to practice was still impaired and imposed further periods of suspension, on both occasions for 12 months.

The third review hearing on 26 July 2022

21. A further review was conducted on 26 July 2022. The Registrant was not present but her submissions were available to the third review panel and were summarised in the determination of that panel in the following terms;

“The Registrant’s submissions were contained in the file note summary. The Registrant confirmed that she was a single parent and was working as a courier to provide for herself and her child. She was committed to returning to practice as an ODP. The Registrant’s current employment and childcare commitments had left little time in which to prepare a proper reflective piece and collate the necessary evidence to demonstrate that she was fit to return to practice. The Registrant stated that, as her child got older and entered childcare, she would have the time to give her full attention to prepare the evidence that would be necessary for any future reviewing panel.”

“The Registrant stated that she had not been in a good place during the material time and realised now, with the passage of time, that – while she wished to return to practice – she was not ready to do so, personally and professionally, at the present time.”

“The Registrant requested that this Panel extend the current Suspension Order for a further period of 12 months, so that she could “put her best foot forward” at the fourth review hearing”

22. The third review panel concluded that the Registrant’s fitness to practise was still impaired. It imposed a further period of suspension of 12 months. It also made recommendations as what was likely to be of assistance to a future reviewing panel. Its decisions and recommendations were in the terms set out below. For ease of reference the paragraph numbers of the determination of the third review panel have been retained but are shown in brackets.

‘(30) The Panel paid careful regard to the contents of the file note summary when addressing the question as to whether the Registrant’s fitness to practise remains currently impaired. The fact that the Registrant had not engaged in these proceedings until the very last minute gave the Panel some cause for concern. However, the Panel was prepared to accept that the reasons given for her late engagement were genuine. There was evidence, from the file note summary, that the Registrant’s insight was developing and deepening. Notwithstanding her difficult personal circumstances at the time, the Registrant expressed remorse for her actions. She also accepted that, while she wanted to return to practice, she was not ready to do so, both personally and professionally.

(31) The Panel concluded that, whilst developing, the Registrant still had some way to go in terms of gaining full insight into the seriousness of the matters which had been found proved at the substantive hearing. Further, there was no reflective piece before the Panel nor any evidence attesting to the Registrant’s current professional knowledge or remedial action. Consequently, the Panel concluded that the risk of repetition remained and that it continued to be necessary to make a finding of current impairment in order to protect the public.

(32) Further, the Panel decided that it also remained necessary to make a finding of current impairment on public interest grounds; both to declare and uphold proper standards and to maintain the reputation of the profession.
Sanction

(33) The Panel first considered whether it would be appropriate and proportionate to make no further order. In light of its findings regarding impairment, the Panel concluded that such a step would be insufficient to protect the public and uphold the public interest. The Panel discounted a Caution Order for the same reasons. In addition, as the Registrant had not been in practice for a considerable period, which she had acknowledged herself, and the misconduct was not related to her clinical skills, the Panel decided that a Conditions of Practice Order was neither adequate to protect the public nor appropriate.

(34) The Panel therefore concluded that the most appropriate and proportionate sanction to impose was to extend the current Suspension Order for a further period of 12 months. At the end of this period, at a mandatory review, the Registrant will have an opportunity to provide to a future reviewing panel the information and evidence suggested by previous panels to demonstrate that she is no longer currently impaired in her fitness to practise.

(35) In addition, it is open to the Registrant to seek an early review of this Order if there is a change in her circumstances; for example, by providing the information suggested prior to the holding of a mandatory review which demonstrates that she is no longer currently impaired.

(36). A future reviewing panel would likely be assisted by the Registrant’s attendance at the hearing, information about her plans for returning to registered practise, and the following:

a. A reflective piece from her in regard to the findings of the original panel;
b. References and testimonials from past employers and any work undertaken recently in any capacity, either paid or voluntary;
c. Evidence that she is maintaining her professional knowledge.’

The decisions of the Panel made on 17 July 2023 [the fourth review hearing]

Submissions on behalf of the HCPC

23. Ms Khorassani submitted that the Registrant’s fitness to practise is still impaired by reason of her misconduct. Ms Khorassani summarised the chronology which has led to this hearing. She referred to the previous hearings. She took the Panel through the findings, conclusions and recommendations of previous panels. She referred the Panel to the note of the conversation between the Registrant and Ms Sesay. With regard to the outcome of this hearing, Ms Khorassani said that the position of the HCPC was one of neutrality. In support of her overall submissions, Ms Khorassani said;

• The persuasive burden of establishing that her fitness to practise is no longer impaired rested on the Registrant. She has failed to discharge that burden.
• The Registrant has not complied with any of the suggestions that the third review panel made as to what might assist a subsequent reviewing panel. These are set out in paragraph (36) of the determination of that panel.
• There is no evidence that the Registrant has successfully addressed her failings. She has not engaged with these proceedings in a manner helpful to the Panel.
• Appropriate Conditions of Practice could not be formulated. Whilst a Striking Off Order was available to the Panel, the Panel should give serious consideration to a further Suspension Order.

Representations by or on behalf of the Registrant

24. The Panel took into account the contents of the telephone conversation between the Registrant and Ms Sesay, together with the submissions that the Registrant had made to the third review panel.

25. The Panel heard and accepted the advice of the Legal Assessor.

26. The Panel is aware that it has all the powers that are set out in Article 30 [1] of the Health and Social Work Professions Order 2001 [The Order] and which are set out in the email sent to the Registrant giving notice of this hearing.

27. The Panel is aware that the process under Article 30 [1] of the Order is one of review and not one of appeal and that its function is to determine whether the Registrant’s fitness to practise remains impaired and if so whether the Suspension Order under review remains appropriate and proportionate or should be varied or replaced by some other order.

Decision of the Panel on Impairment

28. Having taking account of the submissions made by Ms Khorassani and taking account of what the Registrant had said to Ms Sesay this morning, the Panel has concluded that the Registrant’s fitness to practise remains impaired. Its reasons are essentially the same as those given by the previous panels and in particular the third review panel. The Registrant has not complied with any of the suggestions made in paragraph (36) of the determination of the third review panel. Prior to this morning the Registrant has not engaged substantively with this review hearing. The Panel has concluded that there is a risk of repetition. It also concludes that public confidence in the profession and in the HCPC as its regulator, would be gravely undermined if the Panel was to determine that the Registrant’s fitness to practise was not now impaired and the Registrant was permitted to return to unrestricted practice. The Panel also noted that the Registrant herself does not think that at present she is able to return to practice. Consequently, and also for the same reasons that are set out in paragraphs (31) and (32) of the determination of the third review panel, the Panel determines that the Registrant’s fitness to practise remains impaired on both the personal and the public components.

Decision of the Panel on Sanction

29. In considering the appropriate order the Panel had regard to the HCPC’s Sanctions Policy updated in March 2019, to the submissions of Ms Khorassani and to the advice of the Legal Assessor. The Panel has also taken account of the Registrant’s stated desire to return to work with the NHS at some time in the future. The Panel also noted that the Registrant told Ms Sesay that she did not want her registration to be terminated and would welcome another 12 month suspension.

30. The Panel has applied the principle of proportionality. The Panel is aware that the purpose of sanction is not to be punitive and that it must consider the risk of repetition and public confidence in the profession and its regulator.

31. The Panel has considered the sanctions available in ascending order of restriction. The Panel considered that to take no action or to impose a Caution Order would be wholly inappropriate. The Panel further concluded that a Conditions of Practice Order would not address the Registrant’s behaviour which did not relate to her clinical skills. The Panel noted that the Registrant has not engaged substantively with the HCPC as regards this hearing. The Panel has no information as to the Registrant’s current professional knowledge and skills. In these circumstances the Panel has no confidence that appropriate conditions could be formulated or that the Registrant would comply with conditions.

32. The Panel next considered a continuation of the Suspension Order. It has concluded that a further period of suspension for 12 months would be both appropriate and sufficient to address the concerns set out above and which are reflected in the Panel’s finding of current impairment. The Panel determined that at this stage a Striking Off Order would be disproportionate. The Panel’s reason for coming to these conclusions include the following;

• The Panel has taken account of the personal and health issues which the Registrant described in this morning’s conversation with Ms Sesay. It noted that the Registrant has professed a desire to return to her career as an ODP and that she would welcome another 12 month suspension.
• The Panel had regard to the contents of the Sanctions Policy. It concluded that in principle the Registrant’s conduct is capable of being remedied and is not fundamentally incompatible with her remaining on the Register. The Panel concludes that a further 12 month period of suspension would provide the Registrant with sufficient time to address her conduct and establish that it would not be repeated. It would also give the Registrant to provided evidence of the steps that she had taken to maintain her professional skills and to find a way back into an active role as an ODP.

33. This Order will be reviewed before it expires on 21 August 2024. The Panel repeats and stresses the importance of the Registrant complying with the suggestions made by the third review panel on 26 July 2022. In the opinion of the Panel, a future reviewing panel would likely be assisted by the Registrant’s attendance at the hearing, information about her plans for returning to registered practise, the steps that she has taken to maintain her professional skills and those that she has taken to find a path back into an active role as an ODP. In addition, the following would be helpful to a reviewing panel.

a) A reflective piece from the Registrant in regard to the findings of the original panel;
b) References and testimonials from past employers and any work undertaken recently in any capacity, either paid or voluntary;
c) Evidence that she is maintaining her professional knowledge.

34. The Registrant should understand that a continued failure to comply with the above suggestions could lead to a Striking Off Order. The Panel is very conscious that the matters that gave rise to the findings of the substantive panel occurred many years ago and that in the meantime there is no evidence that the Registrant has addressed the issues that have been identified. Repeated reviews in the absence of evidence that the Registrant is seriously addressing the matters that have been identified in this determination are not in the public interest.

ORDER: The Registrar is directed to suspend the registration of Mrs Kelly Weir for a further period of 12 months on the expiry of the existing order.

The Order imposed today (17 July 2023) will apply from 21 August 2023.
This Order will be reviewed again before it expires on 21 August 2024.

History of Hearings for Kelly Weir