Lucy Gibson-Hill

Preliminary Matters

1. The Panel has been convened to undertake the review under the provisions of Article 30 of the Health Professions Order 2001, of a suspension order imposed in respect of the Registrant, Ms Lucy Gibson-Hill, an Arts Therapist.

2. At the commencement of the hearing the Panel directed that any mention of the Registrant’s health should be heard in private. The Panel was satisfied that such a direction was necessary for the protection of the Registrant’s private life. In the event there were some limited occasions when it was necessary to direct the Transcriber to include evidence in a private transcript. However, it has not been necessary for any of that evidence given in private to be referred to in this written determination which is a public document.

Background

3. The Registrant is registered as an Arts Therapist and was previously employed by North East London NHS Foundation Trust (“the Trust”). That employment lasted from October 2018 until May 2021.

4. Person A, along with her husband and children, had attended family therapy with the Registrant under the Emotional Wellbeing and Mental Health Service (“EWMHS”) from February 2019 to August 2019. At an appointment on 19 August 2019 words were spoken that were the subject of a complaint by Person A. It is not necessary for that issue to be further developed at the present time, as the final hearing panel did not find the complaint proven.

5. On 5 June 2020, Person A made a formal complaint to the Trust. She did so by email and included screenshots from a Facebook Group called “The Harlow Moaning Page”. That Facebook Group is for people who live in the local area and discuss neighbourhood issues. Person A complained that the Registrant had posted threatening and abusive messages to the Facebook Group and also that the Registrant had disclosed confidential service user information, specifically that Person A’s children were under the care of EWMHS.

6. When the matter was investigated on behalf of the Trust, and in that context SM reviewed the Registrant’s clinical notes, it was discovered that there was no, or no adequate record of the appointment that had taken place on 19 August 2019.

7. On 13 September 2020, a referral was made to the HCPC by Person A.

8. On 5 August 2021, a panel of the Investigating Committee determined that there was a case to answer in relation to an allegation that the Registrant’s fitness to practise was impaired by reason of misconduct. The particulars of misconduct, as considered by the final hearing panel (and excluding Particular 2, which was found not proven by that panel) is set out at the head of this document.

The final hearing at which the suspension order was imposed.

9. The final hearing of the HCPC’s allegation took place between 27 and 30 June 2022. The Registrant did not attend that hearing, but on 22 June 2022 wrote an email to the HCPC in which she stated:

‘I will not be attending the hearing.
This issue was considered and responded to by the NHS a year ago, the result of which has not been removed from my HR file.
I am not currently practicing [sic] although I was until April ….
look forward to hearing from your regarding the outcome.”

10. The hearing proceeded in the Registrant’s absence. The panel conducting it heard evidence from two witnesses, Person A and SM, who conducted an investigation on behalf of the Trust. That panel was also provided with documentary exhibits including Person A’s complaints, various screenshots of Facebook posts and the notes of an interview conducted with the Registrant on 4 August 2020. Furthermore, the panel had documents provided by the Registrant which it identified in paragraph 43 of its written determination.

11. In relation to the factual findings made by the final hearing panel:

• In relation to particular 1, the Panel accepted the evidence of SM that there was no record made by the Registrant of the appointment on 19 August 2019, and it did not accept the Registrant’s explanation that she had forwarded the notes to another clinician as a satisfactory explanation for not making a record.

• In relation to particular 3, it accepted Person A’s evidence that at the relevant time the Facebook Group had approximately 10,000 members. In response to a message by Person A that had referred to the Registrant’s professional work, the Registrant replied to “[Person A] no threats. I said I feel awful for the owner. Please don’t call me out or we cant see your 4 children in EWMHS because it will be a conflict of interests [sic].” The reference to Person A’s children was a disclosure of confidential information.

• In relation to particulars 4(a) to (f), the final hearing panel had sight of the relevant Facebook postings, and it found that each of them had been posted by the Registrant, that they contained the words complained of in the allegation and that they were inappropriate.

12. When it considered whether the proven facts constituted misconduct, the final hearing panel reviewed the relevant standards of the HCPC’s Standards of Conduct, Performance and Ethics. It found that both individually and collectively, the Registrant’s conduct represented serious departures from the standards expected of an Arts Therapist. It found that the behaviour fell sufficiently far short of the standard expected to amount to misconduct.

13. With regard to impairment of fitness to practise, the final hearing panel acknowledged that the Registrant had removed offending posts, informed her manager promptly, written a letter of apology to Person A, and was said by SM to have been “mortified” at what she had done. However, that panel considered that there was nevertheless limited insight demonstrated by the Registrant for a number of reasons. She had not reflected upon the impact of her actions on Person A’s family or the wider profession, her reflections had focused on the impact of her actions on herself, had not given details of the matters learned that would enable her to act differently if again faced with a similar situation, had not demonstrated an understanding of the consequences for Service User A and had not provided evidence that she had undertaken any additional training or taken other meaningful steps to address her failings in relation to record keeping or confidentiality issues. This limited insight resulted, so the final hearing panel found, in there being a risk of repetition, and that fact required a finding on the personal component of impairment of fitness to practise. The panel also found public component impairment fitness to practise.

14. When the final hearing panel considered the issue of sanction, it rejected a caution order as an appropriate disposal, finding that the breaches were not minor in nature, that there was limited insight on the part of the Registrant and that accordingly there was a risk of repetition. So far as a conditions of practice order was concerned, the final hearing panel stated that it believed the social media postings represented attitudinal behaviour rather than specific areas of practice that would benefit from retraining. Furthermore, that panel noted that in the Trust’s internal process, the Registrant had been made subject to an action plan, and that although she had made some steps to put the action plan into effect, she had not demonstrated that she had meaningfully engaged with it and effectively addressed her failings. For these reasons a conditions of practice order was rejected, and, accordingly, the final hearing panel considered making a suspension order. The Panel found that its findings represented serious breaches of the Standards of Conduct, Performance and Ethics, but that the breaches were conceptually remediable. It acknowledged that the Registrant had taken some steps to address her failings and shown some insight, although that insight was incomplete. The panel considered that the public could be properly protected by the imposition of a suspension order until such time as a reviewing panel could determine that the Registrant was fit to return to practise as an Arts Therapist.

15. The suspension order was imposed for a period of 12 months and is due to expire on 28 July 2023. It is the order currently being reviewed.

16. In the final paragraph of its determination (paragraph 132) the final hearing panel stated this:

“So far as any future review is concerned, the Panel considered a future reviewing panel would be assisted by:

(a) Evidence of remediation in relation to record-keeping and confidentiality issues;

(b) Evidence of reflection on her conduct demonstrating meaningful insight into the impact of her failings on others;

(c) Any other evidence the Registrant considers would assist her to demonstrate that she is suitable to return to unrestricted practice.”

17. On 25 May 2023 (less than 8 weeks before the date of this review), an HCPC Presenting Officer wrote to the Registrant explaining the nature of a review hearing. The first page of that letter included the following:

“I am also writing to explain the nature of the review hearing and remind you of the previous Panel’s recommendations.

Suspension Order

I have attached a copy of the previous decision for your reference within the HCPC bundle. I refer you to the Panel’s previous recommendations that would assist at a future review:

• Evidence of remediation in relation to record-keeping and confidentiality issues;

• Evidence of reflection on her conduct demonstrating meaningful insight into the impact of her failings on others:

• Any other evidence the Registrant considers would assist her to demonstrate that she is suitable to return to unrestricted practice.”

FTP89812

18. Both the HCPC’s hearing bundle and the opening explanation of the background in the Presenting Officer’s submissions contained information concerning issues that are being considered by the HCPC under the reference FTP89812. In view of the Panel’s ruling as to the relevance of those matters to the review currently being undertaken, it is sufficient to record the fact that they concern an allegation that the Registrant practised in breach of the terms of the suspension order being reviewed. It should also be stated that the Registrant disputes the contention.

19. As already stated, the Presenting Officer explained to the Panel the nature of the concerns that had been communicated to, and were being investigated by, the HCPC. She informed the Panel that although the HCPC had decided that the allegation met the threshold to be considered as an allegation, the investigations were still on-going; no formal allegation had yet been drafted and, accordingly, the Investigating Committee had not been asked to make a “case to answer” decision in relation to it.

20. The Panel considered that it was necessary for it to decide if it would be appropriate to consider any of the contentions made in relation to FTP89812 before the Registrant was given the opportunity of advancing her case on the review of the suspension order. It would not be fair to expect the Registrant to deal with those contentions, and/or potentially to be cross-examined on them, if the view taken by the Panel was that it would simply not be appropriate to consider them.

21. The Panel therefore retired and considered the issue. The conclusion of the Panel was that it would not be appropriate to consider the FTP89812 issues, and it would not be fair to the Registrant to do so. The reasons for this decision were as follows:

• The Registrant disputed the contention that she had breached the suspension order.

• Although the HCPC had accepted the allegation as one it considered appropriate, for the reasons already stated, the HCPC’s investigations were incomplete. The Panel could not accept that it would be appropriate for it to form a view against the Registrant on the basis of the documentation included in the bundle (some of which was hearsay upon hearsay) when it had to be assumed that the HCPC did not take the view that that same information was sufficient for it to be even able to formulate draft allegations to be put before an Investigating Committee for a case to answer decision. The position when a review of a substantive sanction is being reviewed is not the same as that when an interim suspension order is being sought, when the issue is necessarily decided on the basis of a risk assessment of an allegation without findings being made.

• Even if the evidence had been more developed than it was, the Panel would have had reservations about the appropriateness of coming to a concluded view on an allegation that the Registrant had breached the suspension order when at some future stage there was a realistic prospect of substantive fitness to practise proceedings being advanced in which the very same issues would need to be decided; the scope for conflicting decisions would be real and undesirable.

• The Panel did not overlook the fact that two of the non-exclusive list of factors to be considered, bulleted in the HCPTS Practice Note entitled, “Review of Article 30 Sanction Orders”, are, “whether any other fitness to practise issue have [sic] arisen”, and, “whether the registrant has complied with the existing order ….”. In the view of the Panel there would need to be more than the mere contention of a fitness to practise issue, and of non-compliance with the existing order for these factors to be applied to a review.

• Finally, the Panel considered the view it took on this issue did not leave the HCPC without remedy; there would be no reason why, if it considered the circumstances merited it, the HCPC could not apply for an interim order on the basis of the allegation it advances by FTP89812.

22. The Panel therefore announced in the hearing before the Registrant was invited to advance her case that it would not be considering the FTP89812 issues, and it would not expect the Registrant to be asked questions about them. The entire issue of FTP89812 was therefore wholly excluded from the Panel’s consideration.

Submissions made by the parties at this review hearing

23. The HCPC hearing bundle contained a skeleton argument dated 25 May 2023. The oral submissions made by the Presenting Officer at the hearing accorded with those contained in that document. An element of the HCPC’s submission involved reliance on FTP89812, which for the reasons already explained did not register with the Panel. However, by paragraph 59 of the written submissions, it was contended that the Registrant had not yet demonstrated complete insight into the failings identified by the final hearing and that there was insufficient evidence that could persuade the Panel that the failings had been sufficiently addressed or that the risk of repetition had been reduced. The HCPC invited the Panel to order that a further period of suspension for a period of 6 months should be made.

24. The Registrant gave evidence before the Panel on affirmation. The Panel will comment below on the evidence given by the Registrant. Included in the hearing bundle was a document headed, “Response to case information received 4/3/23 to be heard 6/4/23”. This document was largely concerned with the FTP89812 issues, but the Panel considered it to the extent that it referred to activities that could be relevant to steps taken to address the final hearing findings. At the hearing the Panel was provided with a seven page document headed, “Dear HCPC Response to index bundle – case updates post final hearing: FTP. 80008 & New investigation FTP89812”. The Registrant’s position was that she considered that her fitness to practise was not impaired at the present time, but at the same time she stated that she was content to made subject to a further period of suspension for a period of 6 months as requested by the HCPC.

Decision

25. The Panel approached the decision it was required to make on the basis that it was required to accept the findings on the facts made by the final hearing panel, and that those facts constituted misconduct. It was, of course, a matter of record that the final hearing panel found the Registrant’s fitness to practise to be impaired in June 2022, but the first task for the present Panel was to decide if the misconduct arising from the established facts is impairing the Registrant’s fitness to practise at the present time, mid-July 2023. The decision on impairment of fitness to practise was required to be made in accordance with the guidance contained in the HCPTS Practice Note entitled, “Fitness to Practise Impairment”. In deciding whether the Registrant’s fitness to practise is impaired at the present time, the Panel accepted the guidance contained in the HCPTS’s Practice Note on Article 30 reviews (based on the case of Abrahaem v GMC) that there is a persuasive burden on the Registrant to demonstrate full acknowledgement of the identified deficiencies, and that those matters have been addressed.

26. In order for the Panel’s assessment of the Registrant to be fully understood, it is necessary to state that the Registrant is clearly an intelligent and articulate person. She qualified as an Arts Therapist in 2012 and has held a position in Child and Adolescent Mental Health Services (“CAMHS”) that involved management responsibilities. Putting to one side for the moment how a person with that background behaved in the manner found by the final hearing panel that she did, once that finding had been made, she had the ability to understand both what that earlier panel had found and suggested and what she needed to do to address those findings.

27. In fact, the Panel found the Registrant’s attitude towards these fitness to practise proceedings to be, at best, one of indifference. When she was asked by the Panel if she had read the determination of the final hearing panel, there was hesitation in her reply when she said that she probably had. When asked if she was familiar with the recommendations made by that panel (as set out in paragraph 16 above), she said that she was not familiar with them, despite the reminder of them referred to in paragraph 17 above. Of the activities referred to on pages 4 and 5 of the Registrant’s seven page document referred to in paragraph 24 above, many of them were activities undertaken before the final hearing (rather than in response to it), they were unspecific and not focused on the identified fitness to practise concerns. They were also wholly unsupported by accompanying documentation. When asked by the Presenting Officer what she thought the impact of her actions on the individuals had been, the reply the Registrant made was limited in its scope expressing a simple apology. She did not go on to address the impact of her misconduct on Service User A, instead focusing upon the impact to herself and her NHS team.

28. The Panel found that the Registrant’s insight into her actions and the consequences of them is woefully lacking, and her remediation of the failings seriously wanting. The Panel concluded that the Registrant had an ingrained attitudinal deficit in her willingness to address the concerns identified by the final hearing panel. These factors mean that there is a significant risk of her committing inappropriate behaviour in the future. This requires a finding that her fitness to practise is impaired in respect of the personal component.

29. The risk of repetition would itself require a finding of public component impairment of fitness to practice impairment. However, the Panel finds that the need to declare and uphold proper professional standards is another factor that requires that finding. The Panel is satisfied that public confidence in the profession of Arts Therapy and the regulation of it would be seriously diminished were no finding of impairment of fitness to practise made.

30. The continuing impairment of the Registrant’s fitness to practise necessitates a further sanction when the present period of suspension ends on 28 July 2023. In determining what that sanction should be, the Panel paid close attention to the HCPC’s Sanctions Guidance. As the finding is one of misconduct, the sanction powers available to the present Panel are all those powers that were available to the final hearing panel, including the making of a striking off order.

31. The Panel rejected a caution order as an appropriate response; the findings in the present case are far too serious and such an order would not protect future service users from the risk of repetition of inappropriate conduct.

32. The Panel also rejected a conditions of practice order as appropriate. The need to observe proper standards of professional behaviour derives from the ordinary requirements of registration; they do not require bespoke conditions to be formulated. Furthermore, as identified by the final hearing panel, conditions of practice are not appropriate when the problem is an attitudinal one.

33. The Panel therefore arrived at the consideration of a further period of suspension. The present Panel agreed with the final hearing panel that the failings identified in 2022 were of a type that are capable of remediation. That being so, the present Panel also agreed with the final hearing panel that so long as there was a realistic prospect that the failings would in fact be remediated, it would not be appropriate to go beyond the making of a suspension order. This is reflected in the guidance contained in paragraph 121 of the Sanctions Policy where it is suggested that a factor in a case resulting in a suspension order would be one where, “there is evidence to suggest that the registrant is likely to be able to resolve or remedy their failings.” The problem in the present case is that the past year has provided an answer to the question whether the Registrant will be able (or willing) to resolve or remedy her failings. She did not accept her fitness to practice was presently impaired. She has not, and has shown no real willingness to do so in the future. Her response in fact was to say that a further six months suspension would facilitate her with time to build up her business. She made no reference to using a further suspension period to address the issues of remediation. In the judgement of the Panel this, in turn, answers the question whether a suspension order should be made. In the judgement of the Panel it should not because the position at the end of any further period of suspension would be no different to the position now.

34. The Panel therefore considered making a striking off order. Paragraph 131 of the Sanctions Policy is in the following terms:

“A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:

• lacks insight;

• ….

• is unwilling to resolve matters."

This is a case where a lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in this regulatory process, and the Registrant does lack insight and has demonstrated an unwillingness to resolve matters.

35. The Panel concluded that a striking off order should be made. The Panel considered whether that was a proportionate response, and in that regard, the Panel makes it clear that it does not take the view that findings of the sort made in this case must inevitably result in a striking off order. As has been stated, a suspension order would be appropriate were there to be a realistic prospect of a registrant being able to demonstrate steps taken that would result in them being permitted to return to unrestricted practice. It is the absence of that prospect in this case that results in the striking off order being proportionate response.

ORDER: The Registrar is directed to strike the name of Lucy Gibson-Hill from the Register upon the expiry of the existing Suspension Order, namely on 28 July 2023.

No notes available

History of Hearings for Lucy Gibson-Hill