Mrs Patience Stella Ncube

 

 

1. The Panel was convened to undertake a final hearing of the HCPC’s Allegation against the Registrant, Mrs Patience Ncube, an Occupational Therapist.

 

2. An unusual feature of the case was that it was apparent that there had been an earlier attempt to conduct the final hearing. The Panel was not informed of the reason why the earlier attempt had not concluded; it was neither appropriate nor necessary for the Panel to be given any information about the earlier hearing, and no detail of what occurred at that hearing, or the stage reached, was disclosed to the present Panel.

 

3. At the commencement of the hearing some preliminary issues were raised as follows:

 

• An application by the HCPC that it should be permitted to rely on hearsay statements made by Patient A.

 

• Whether it would be appropriate to direct that part of the hearing should be conducted in private in the event that the Registrant wished to give evidence relating to her health or other acutely personal matter.

 

• Whether it would be appropriate for the Panel initially to reach a decision on the facts, leaving other elements of the allegation to be decided subsequently in the event that relevant facts were to be proven.

Reliance on the hearsay statements of Patient A

 

4. As is apparent from the terms of the allegation, issues concerning Patient A lie at the heart of this case. After Patient A’s allegations concerning the Registrant became known to Northampton General Hospital NHS Trust (“the Trust”), an investigation was launched. In the course of that investigation, on 28 February 2019 a written statement was made by Patient A. The statement was written by the Trust’s Head of Therapies, but was signed by Patient A. In the context of the HCPC’s fitness to practise proceedings, a witness statement was made by Patient A on 30 July 2020. The final paragraph of that latter statement states, “I believe that the facts stated in this witness statement are true.” The penultimate paragraph states, “I am willing to attend a hearing in this matter to give evidence.  Due to my health, I will not be able to attend the hearing in person as I currently use a wheelchair however, I am happy to attend by telephone.”  Sadly, Patient A died on 12 November 2020, a fact demonstrated by the production in the exhibits bundle of a copy of the Death Certificate.

 

5. The HCPC’s application to rely on the written statements made by Patient A was founded on the fact that she is not available to give evidence, yet it is important that her evidence should be considered.  The Registrant stated that she did not object to the introduction of the statements, although she made it clear that she did not agree with important elements of them.

 

6. The Panel accepted the advice of the Legal Assessor, that it was necessary for it to be satisfied that it would be fair for the statements to be introduced; it would not be sufficient to rely solely on an acknowledgement that the weight to be given to the statements could be considered given their hearsay nature.  Having carefully considered the issue of fairness, the Panel concluded that it would be fair for the statements to be introduced in evidence. The Panel reached this decision on the basis that the statements were not comments that had been made casually. They had been made in formal contexts when it was apparent that Patient A knew the purposes to which they would be put. It was important that Patient A’s version of events should be considered.

 

7. Having decided that the statements could be introduced in evidence, the Panel kept in mind the fact that the hearsay nature of them would demand that they should be treated with caution when applied to the process of decision making.

Part of the hearing in private

 

8. The Panel was asked by the Legal Assessor to consider whether it would be sensible to direct at the outset of the case that in the event of the Registrant wishing to refer to a specific health matter, or to any other issue of an acutely personal nature, she should be permitted to inform the Panel that she was about to and for the hearing to move seamlessly into private session. The Presenting Officer did not object to this suggestion, and the Panel agreed to make the direction sought in order to protect the Registrant’s private life.

Making decisions on the facts before considering any other issues

 

9. The Panel was of the view that fairness to the Registrant, who was unrepresented at the hearing, required it initially to reach decisions on the factual elements of the case. The stages of misconduct and current impairment of fitness to practise would be considered later in the event that relevant facts are proven.

 

 

10. When the allegation was read into the record and the Registrant was offered an opportunity to respond to it, she stated that the HCPC’s contentions were untrue.

The course of hearing

 

11. The hearing before this Panel was scheduled to take place over six hearing days from Monday, 20 June 2022 to Monday, 27 June 2022 inclusive.

 

12. The consideration of preliminary matters, the Presenting Officer’s opening and the evidence of the three witnesses called by the HCPC were all concluded in the first two days of the hearing.  On the second day of the hearing, the Registrant informed the Panel that she was experiencing some ill-health (a problem identified to the Panel in private it is not necessary to refer to in this determination) which might require her to leave the hearing at short notice.  Subject to possibly having to leave the hearing, the Registrant stated that she was content for the hearing to continue. The Panel informed the Registrant that in the event that she needed to leave, she should simply leave the hearing, which would be paused until she felt able to return.  She should not consider that she would be required to return until she felt able to do so comfortably.  In the event, on that second day of the hearing, the Registrant did in fact need to leave the hearing on several occasions, and the hearing was paused as the Panel had stated it would be. On the third day of the hearing, when it was expected that the Registrant would give evidence, at the commencement of the day she informed the Panel that she did not feel able to continue. The health issue that had impacted on her ability to remain in the hearing continued and had been added to by another issue. Furthermore, she stated that she had not had time to complete her preparations for what she wished to say. After the Presenting Officer took instructions on the matter and informed the Panel that the HCPC did not submit that the hearing should continue in these circumstances, the Panel agreed that it would not be proper to continue given the Registrant’s indisposition. The hearing was therefore adjourned to the fourth day of the hearing, with a later starting time.  At the commencement of the fourth day, the Registrant stated that she felt better, was able to continue and had completed her preparations. She therefore gave evidence, was cross-examined by the Presenting Officer and asked questions by the Panel on that day.  On the fifth day of the hearing, closing submissions were received, legal advice was received from the Legal Assessor and the Panel began its deliberations on the factual elements of the case.

 

13. In the event, the dates originally scheduled for the hearing proved to be insufficient for the case to be concluded.

 

• The Panel’s written determination on the facts was handed down on Monday, 27 June 2022, the sixth day of the hearing originally scheduled.

 

• The hearing was then adjourned to be heard over five days commencing on Monday 6 March 2023.  During these days the Panel received submissions on misconduct and current impairment of fitness to practise, and handed down its written determination on those issues.  As the Panel reached a finding of impairment of fitness to practise, consideration of the issue of sanction was necessary.

 

• The Panel received the Presenting Officer’s submissions on sanction during the session of the hearing that commenced on Monday 6 March 2023, but by Friday 10 March 2023, it was apparent that there would be insufficient time for the case to be concluded.  Accordingly, the hearing was again adjourned to allow time for the Registrant to formulate her submissions on sanction and for the Panel to reach its decision on that issue.  As the Registrant was at that stage unrepresented, the Legal Assessor put his advice to the Panel on sanction in writing to assist her in formulating her submissions.

 

• In the event, when the hearing recommenced for two days on 15 June 2023, the Registrant was represented by Mr Summers who made submissions on sanction on behalf of the Registrant.

 

 

14. Between 3 April 2017 and 23 November 2018, the Registrant worked on a locum basis as a Band 6 Occupational Therapist at the Trust.

 

15. Patient A was a lady who suffered from a number of serious health conditions, including renal failure.  In April 2018 she was admitted to the Trust and remained for approximately 13 weeks, the immediate cause of her admission being sepsis.  At the time the loan alleged by the HCPC was requested and made, Patient A was an in-patient on a rehabilitation ward, and it was on that ward that she had contact with the Registrant.

 

16. The circumstances surrounding the passing of money to the Registrant will be explained when the Panel explains its decisions on the HCPC’s contention that a loan was requested and made.  However, by way of background, certain dates that are established either by documentary exhibits or are not disputed, and also to explain the roles of other people who were involved, should be briefly explained:

 

• 12 January 2018, the Registrant booked return flights from the UK to Zimbabwe. She departed from Birmingham Airport during the evening of 16 July 2018 and returned at lunchtime on 23 August 2018.

 

• Patient A had a goddaughter, Person B, who visited Patient A very frequently when the latter was in hospital.

 

• On 12 July 2018, Person B withdrew £1,000.00 from her account at Nationwide Building Society.

 

• Patient A’s daughter, Person C, lived some considerable distance from Northampton and was a less frequent visitor.

 

• After the Registrant returned from Zimbabwe, both Person B and Person C had contact with her, chasing repayment of the alleged loan.

 

• Another person who had professional contact on the ward was Ms RM, a Therapy Assistant. Ms RM is has not been relied upon by the HCPC as a witness in this case, but documents recording her involvement were included in the evidence.

 

• By the beginning of February 2019, the Registrant had made payments totaling £500.00 to Patient A.

 

• On 7 February 2019, Patient A made contact with Ms RM, stating that she had become distressed at her inability to secure repayment of what she alleged was a loan made to the Registrant. The following day, Ms RM reported what she had been told to Ms PW, the Trust’s Deputy Head of Therapies, who in turn escalated the matter to her immediate superior, Ms EA, the Head of Therapies.  An investigation ensued. Ms PW was called by the HCPC as a witness in this case. Ms EA was not a witness.

 

• Subsequently in February 2019, the Registrant’s husband called upon Patient A at her home, when he paid the balance of the sum that Patient A had contended was the total of the loan.

 

 

 

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

 

18. Throughout its deliberations the Panel applied the fundamental principle that the factual elements of the case are to be proved by the HCPC against the Registrant on the balance of probabilities. At no stage was it appropriate to consider whether the Registrant had disproved a matter alleged against her. Furthermore, consistent with the Registrant’s evidence that she had not behaved in the way alleged against her in the past, the Panel treated her as a person of good character. The Panel regarded her good character as relevant to both her credibility as a witness and as to propensity to behave in the manner alleged.

 

19. The HCPC called as witnesses before the Panel, Ms PW (the Trust’s Deputy Head of Therapies to whom Ms RM referred the complaint she received from Patient A), Person B (Patient A’s goddaughter) and Person C (Patient A’s daughter). In addition the HCPC produced a bundle of documentary exhibits.

 

20. The Registrant gave evidence in her own defence.

 

21. The evidence of Patient A is to the effect that she found the Registrant to be friendly towards her on the ward. She claimed that the Registrant told her a number of times that she was going to visit her home country, Zimbabwe, and that she was excited about the visit. However, one day the Patient A stated that the Registrant looked out of sorts, and, when asked why that was, the Registrant told her that a family member had been taken ill and had gone to hospital, and that she, the Registrant, needed money to pay for medical treatment. In the context of that conversation, Patient A claims that the Registrant asked for a loan of £1,500.00. Patient A’s response was that she couldn’t do that, but she could let her have £1,000.00.  Patient A’s account is that this conversation took place during the school summer holiday period. Patient A claimed that she asked Person B to withdraw money from her (Patient B’s account) to fund the loan of £1,000.00, Patient A’s account was that Patient B was present in the hospital when that request to withdraw money was made. Patient A claimed that Person B gave her the money in an envelope, and that she (Patient A) then gave the envelope to the Registrant. Following the Registrant’s return from Zimbabwe in late August 2018, there was no face-to-face contact between Patient A and the Registrant, but Patient A stated that on a number of occasions extending over many months she telephoned the Registrant to chase repayment of the loan. Patient A’s evidence can be briefly summarised as being that she felt that she was being fobbed off by the Registrant. Some payments were received, a cheque that “bounced” was sent and eventually, as already stated, the Registrant’s husband called upon her to pay the balance of the £1,000.00 loaned.

 

22. The Registrant denies asking for a loan, or indeed having any conversation with Patient A concerning money. Her account is that on the day she travelled to Zimbabwe, 16 July 2018, Person B handed her an envelope.  No explanation was proffered by Person B when she handed over the envelope.  She (the Registrant) put the envelope in a pocket of her trousers and went from the hospital directly to the airport.  When, at the airport, she went to change out of her work trousers she recalled that she had the envelope and saw that it contained bank notes.  She travelled to Zimbabwe where she lost the bag in which she had kept the money, during street disturbances. She accepted that payments were made to Patient A in the months that followed her return to the UK, and she accepts that her husband visited Patient A to make the final payment in February 2019.  The circumstances in which the Registrant contends her husband made that visit will be described when the Panel explains its decision on Particular 2.  In relation to Patient A’s assertion that she was asked for a loan and in relation to the manner in which the money was passed to her, the Registrant advanced a case that it would not have been possible for Person B to pass the envelope containing the bank notes to Patient A, and also that it would not have been possible for Patient A, as an in-patient, to have retained the envelope for future onward transmission to her, the Registrant.  The Registrant also advanced a case that she never had contact with Patient A when there was no other member of staff present, contending that that was so because there was a history of Patient A making false assertions against staff.

 

23. There was another matter of a general nature that was advanced by the Registrant in her closing submissions to the Panel, namely that she believed the allegations against her to have been made maliciously.

 

24. The Panel considers it to be appropriate to deal with three of the points raised in the Registrant’s evidence and arguments before addressing the detail concerning the particulars. They are (i) that the allegations are being made as a result of malice, (ii) the impossibility of Person B having an opportunity to hand over to Patient A an envelope containing cash on the ward and/or Patient A being able to retain the envelope for a period of time, and (iii) that she never saw Patient A without another staff member being present. The Panel rejects each of these points. The Panel carefully considered whether there was any evidence of malice, but concluded that there was not. The Panel also considered that on a busy rehabilitation ward it was simply unrealistic to contend that a person in the position of Person B, someone who visited Patient A many times per week for long periods of time, would not have been able to hand over an envelope. There was no evidence before the Panel as to the denomination of the bank notes comprising the £1,000.00, but the Panel was completely unpersuaded that a patient on the ward would not have been able to retain an envelope containing such a sum in her bag or locker. Each of Patient A, Person B and Person C acknowledged that, prior to the passing of the money to her, the Registrant had been careful, helpful and empathetic in her dealings with Patient A, going above and beyond what was expected of her as an Occupational Therapist. One particular respect in which the Registrant’s caring attitude was made was also an example of why the Panel did not accept that the Registrant never saw Patient A without another member of staff being present, namely that she would go out of her way to obtain food from local takeaways for Patient A. Having rejected each of these points, the Panel found that the evidential value of the of their rejection was neutral; as they were not accepted, they did not assist the Registrant’s case, but the Panel did not consider that an unsuccessful attempt to put distance between herself and Patient A had the consequence of bolstering the HCPC’s case.

 

Particular 1 – “On or around 15 July 2018, borrowed £1,000 in cash from Patient A, who was an inpatient at Northampton General Hospital.”

 

25. The Panel carefully considered the evidence that supported the contention that the £1,000.00 represented a loan that had been requested by the Registrant. The evidence of Patient A has already been described, and the contention that a loan was requested is contained in both of the statements the Panel decided at the outset of the case could be relied upon as hearsay evidence. The evidence of Person B, Person C and Ms RM was that the money was paid as a loan, but the source of the information given by each of those individuals originated from Patient A. In other words, none of those individuals was present when any discussion between Patient A and the Registrant concerning money took place. It follows that there is no corroboration of Patient A’s account; that she told other people that she had agreed a loan demonstrates that she was consistent in that assertion, as do the contents of the two hearsay statements, demonstrating consistency on that issue on the part of Patient A.

 

26. Had the matter been confined to the hearsay evidence, albeit consistent hearsay evidence, of Patient A that the Registrant had requested a loan that she had agreed to, the Panel could have had difficulty in finding that the HCPC had discharged the burden of proof in proving Particular 1.  This is so for a number of reasons:

 

• Generally, the need to exercise caution when considering hearsay evidence.

 

• The evidence of both Person B and Person C that, on occasions, Patient A could not be “with it”.

 

• The doubtfulness of the accuracy of Patient A’s recollection that the request for a loan was made during the school summer holiday period; any such request must have been made before 12 July 2018, when the money was withdrawn from Person B’s account, and, in the absence of direct evidence on the matter, the Panel is entitled to conclude that the school holidays are unlikely to have commenced that early.

 

• The direct conflict in the accounts of Person B was when she was requested by Patient A to withdraw the cash. The clear and emphatic evidence of the former (evidence that the Panel accepted) was that she was at home when she received a telephone call from Patient A when the request was made. As has already been described, Patient A stated that Person B was visiting her at the hospital when she made the request.

 

27. However, the matter was not confined to the hearsay evidence of Patient A, and in the judgement of the Panel the following findings are relevant to the decision on Particular 1:

 

• The Panel found Person B to be a careful and compelling witness whose evidence could be relied upon. She was clear that she was at home when she received the request, and that Patient A stated that she would not give an explanation for the request then, but would explain on a later occasion. The cash was withdrawn the following day. The copy of Person B’s Nationwide Building Society account included in the documentary exhibits demonstrates that the cash was withdrawn on 12 July 2018.  It follows that the request was made on 11 July 2018.  Person B delivered the cash to Patient A at the hospital the day after she withdrew it, namely on 13 July 2018.

 

• There is therefore a correlation between Patient A’s request made to Person B to withdraw the cash and the Registrant’s long-arranged plans to travel to Zimbabwe. The journey commenced five days after Patient A request Person B to withdraw the case and three days after Person B delivered the cash to Patient A.

 

• The Panel rejects the Registrant’s account that Person B had any involvement in the handing over to her of the envelope containing the money. The Panel accepted the evidence of Person B that she did not do so.

 

• It follows from the facts (i) that Person B handed the money to Patient A, (ii) that the Registrant received the money, but (iii) did not receive it from Person B, that the Registrant received the money from Patient A.

 

• As the Registrant received the money from Patient A, the Panel concluded that the reason why she must have been handed the money must have been clear to the Registrant; had it not been, the Registrant would undoubtedly have asked why she was being handed it.

 

• The Panel rejected the Registrant’s account that she was handed the envelope by Person B, not only because it accepted Person B’s account that it did not happen, but also because the Registrant’s account that she was given the envelope by Person B without any explanation and without any prior discussion with either Patient A or Person B about money lacked any credibility. 

 

• The Registrant’s account was implausible for another reason. Had the envelope been given to her in the circumstances she claimed, and had only been discovered at the airport shortly before departure that the envelope contained a considerable sum of money, then the Panel is satisfied that the Registrant both could and would have registered such an astonishing turn of events either before departure from the UK or very shortly after her arrival in Zimbabwe.  The Panel does not consider it necessary to review in detail the evidence about mobile telephones and WhatsApp messages that was given at the hearing. Without underestimating the communication difficulties for a traveller when abroad, with a matter of such gravity, it would have been possible to communicate with someone connected to the hospital to record the fact that a very large gift had been made by either a patient or a close associate of a patient. Not only was no such communication made by the Registrant when she made the discovery at the departure airport, but neither was it made during the period of over a month when the Registrant was in Zimbabwe.  Furthermore, no such communication was made upon her return to the UK in late August 2018.

 

• What the Registrant did do in the months following her return to the UK, however, was commence making payments to Patient A. That behaviour was consistent with having requested and received a loan.

 

• Not only did the Registrant make payments to Patient A, eventually returning the entirety of the £1,000.00 she received, but she received a number of requests made by telephone and text messages to repay what was described as the loan that had been made to her. The Panel accepted the direct evidence of Person B and Person C that they made these requests, and, having accepted that evidence, the Panel also accepts the hearsay evidence of Patient A to the same effect. Not once when these repeated requests were made over a number of months did the Registrant challenge the assertion that there had been a loan she was liable to repay. When asked why she had not challenged the assertions made to her that a loan had been made, the Registrant did not have an answer.

 

28. The Panel concluded that the points made in the preceding paragraph supported Patient A’s account that she had been requested to, and did in fact, make a loan. They also resulted in the case advanced by the Registrant being one that completely lacked credibility when viewed in isolation. In circumstances where there is no question but that £1,000.00 was received by the Registrant, and that sum must have represented either a requested loan or an unsolicited gift, the Panel has concluded that the former option is the only realistic one.  In the light of all these circumstances the Panel concluded that the HCPC had discharged the burden of proving that on or around 15 July 2018 the Registrant borrowed £1,000.00 in cash from Patient A, who was an inpatient at Northampton General Hospital.

 

29. Particular 1 is proven.

 

Particular 2(a) – “Disclosed confidential details about Patient A to your husband, Person A, including Patient A’s home address.”

 

30. It has already been explained that the fact that the Registrant’s husband visited Patient A at home to make the final repayment is not in dispute. The Panel is satisfied that it could properly be inferred that his ability to visit Patient A at home required him to know her address, and that the details of her address came either from Patient A herself or from the Registrant; there has been no evidence or suggestion that he could have obtained the address from anyone else.

 

31. The Registrant had the opportunity to know the Registrant’s address because of the following:

 

• It would be likely to have been included in Patient A’s hospital notes.  In relation to this, it is only fair to record that by the time the Registrant’s husband visited Patient A’s home, the Registrant had ceased to work at the Trust for approximately four months.

 

• The Registrant visited Patient A’s home to assess its suitability for her following discharge from hospital.

 

• The Registrant wrote Patient A’s address on an envelope when posting a cheque to Patient A.

 

32. In relation to the home visit, whilst accepting that she made the visit, her evidence was that she did not know the address because she travelled in a taxi that had been booked by Ms RM, the Therapy Assistant.  In relation to writing the address on an envelope, the Registrant stated that Patient A provided the address, she wrote it on an envelope to post the cheque, but did not retain a note of the address.

 

33. The Panel was not persuaded by the Registrant’s evidence that she did not know the address of Patient A.  However, just as the Panel did not treat its rejection of the Registrant’s evidence that sought to distance herself from the loan request and receipt did not bolster the HCPC’s case on those issues, so too does the Panel find that the rejection of her case on the knowledge of the address prove that she provided it to her husband.

 

34. The element of the case advanced by the Registrant in relation to this Particular that merits closer examination is that it was Patient A herself who provided the address.  In relation to this issue the following elements of the evidence before the Panel are relevant:

 

• The Panel considered that it was fair to have regard only to Patient A’s evidence on this issue; there was no reason to believe that any other person (whether, Person B, Person C or Ms RM) would have any account to give that would not have originated with Patient A.

 

• In her statement made to the Trust on 28 February 2019 (i.e. approximately three weeks after the Registrant’s husband called upon her), Patient A referred to the visit but did not question how he might have known her address.

 

• Patient A’s witness statement for the HCPC’s fitness to practise proceedings was made on 31 July 2020. The Panel has carefully considered paragraphs 24 to 27 of that witness statement and noted what Patient A said about knowledge of her address and the visit by the Registrant’s husband.

 

• Person B exhibited text message exchanges she had with the Registrant on 7 February 2019.  To the extent that is material for present purposes these messages read as follows:

 

Person B: [Patient A] has asked if you’ve posted the money/cheque that you owe her.

Registrant: I’m in hospital.

Person B: But has the money been sent?

Registrant: I don’t know.

Hubby will liaise with mother [i.e. Patient A]. 

Person B: …I am sitting right next to her [i.e. Patient A] and am messaging on her behalf, as you know she can’t.  She has asked which hospital you are in and for you to ask your husband.”

 

35. When the Panel reviewed all of the evidence relating to this issue, the Panel considered that it was possible that the Registrant told her husband where Patient A lived.  However, the terms of the text message exchanges have the consequence that the involvement of the Registrant’s husband in the making of the repayment was not an after the event fabrication by the Registrant after he had paid an unexpected visit. The Panel has not ignored Patient A’s evidence that she was not expecting the Registrant’s husband to call, but the opening words of paragraph 24 of the later witness statement, (“Shortly after Patience Ncube and her husband said that the cheque was not sent from the right account ….”) make it impossible to exclude the possibility that there was direct contact between Patient A and the Registrant’s husband. When the Panel addressed the question whether the HCPC had discharged the burden of proving on the balance of probabilities that she did so, the conclusion of the Panel was that the burden had not been discharged.

 

36. Accordingly, Particular 2(b) is not proven.

 

Particular 2(b) – “Disclosed confidential details about Patient A to your husband, Person A, including Patient A’s name.”

 

37. Had the Panel been able to find that the Registrant’s husband had known Patient A’s name, it would have decided that the matter was not proven on the same basis that Particular 2(a) is not proven.

 

38. In fact, the Panel was not able to find any evidence that the Registrant’s husband knew Patient A’s name. The payment he was making was cash, not a cheque that would have required a name. In most circumstances a person calling upon a person of whom they had no prior knowledge would require a name, but in the unusual circumstances of this case, where the Registrant’s husband clearly knew the address he was visiting, the Panel did not feel able to infer that he would also have required to know the name of the person he was visiting. That is particularly so, given that Patient A was typically referred to as “mother”, there being documentary evidence to that effect (one example is quoted in the text message exchanges between Person B and the Registrant quoted above, another in a text message to the Registrant sent by Ms RM). The description of Patient A as “mother” was also confirmed by the oral evidence of Person B during the present hearing.

 

39. Particular 2(b) is not proven.

 

Particular 2 stem – “Disclosed confidential details about Patient A to your husband, Person A, including (a) ……”

 

40. The use of the word “including” immediately preceding Particular 2(a) would suggest that there might have been other elements of information allegedly provided to the Registrant’s husband that could have constituted the disclosure of confidential details concerning Patient A. In fact none were suggested on behalf of the HCPC, and accordingly the Panel’s finding in relation to the stem is that it too is not proven.

 

 

41. The Presenting Officer provided the Panel with a copy of written submissions on both misconduct and current impairment of fitness to practise. Her oral submissions accorded with those that had been provided in this document. She submitted that Patient A was an individual who should be regarded as vulnerable as she was an elderly lady and bed-bound in hospital. She submitted that the Registrant’s actions in asking for and obtaining a loan constituted a breach of trust and abuse of position; the Registrant had been enabled to do so by having contact with Patient A as an Occupational Therapist working in the hospital where Patient A was an in-patient. The Presenting Officer submitted that the Registrant’s behaviour fell far below the standards to be expected of a registered healthcare professional as it amounted to breaches of several standards the Registrant should have been observing.  Included in the standards on which the HCPC relied were standards 1.1, 1.7, 6.1 and 9.1 of the Standards of conduct, performance and ethics, as well as provisions of the Standards of proficiency for Occupational Therapists. In relation to current impairment of fitness to practise, the Presenting Officer’s oral submissions on current impairment of fitness to practise were again consistent with her written submissions. She submitted that the Registrant had not shown any insight into her actions, had expressed no remorse and had demonstrated no remediation. In these circumstances, it was submitted, the likelihood of repetition is real and on-going.  In relation to the public component of impairment of fitness to practise, the Presenting Officer submitted that the protection of service users, the need to declare and uphold proper professional standards and the maintenance of confidence in the profession of Occupational Therapy, additionally required a finding on that basis

 

42. The Registrant made her submissions to the Panel under affirmation.  Consistent with the approach that had been indicated by the Panel, she also made her submissions on the two issues to be decided together, indicating when she moved from misconduct to impairment of fitness to practise. She submitted that she did not believe that she had breached standards by which she was expected to practise and did not consciously set out to breach any standards. However, it is important to underline that the premise of the Registrant’s submissions was that she maintained her case in relation to the factual elements of the case, denying that she had asked Patient A for money. One consequence of the fact that the Registrant maintained her position in relation to the factual elements of the case was that not only did she not acknowledge that Patient A was the aggrieved party, but that she considered herself to be the victim. At one stage in her submissions she stated (speaking of herself in the third person), “The Registrant did not abuse her position, but she was abused because of her position.”

 

 

43.    The Panel accepted the approach it was advised to take by the Legal Assessor in deciding whether misconduct was established.  It followed that it was for the Panel to decide if the proven Particular 1, and that matter alone, crossed a threshold of seriousness properly to be described as misconduct.

 

44.    The Panel considered whether the borrowing of £1,000 in cash from Patient A in mid-July 2018 when Patient A was a hospital inpatient gave rise to any breaches of HCPC Standards.  Not only was the sum of money a considerable one, but Patient A was vulnerable as a consequence of a number of factors; she was a hospital in-patient, she was elderly and there was evidence that her medical problems on occasions clouded her judgement.

 

45.    The conclusion of the Panel is that the following standards of the HCPC’s Standards of conduct, performance and ethics were breached, namely:

 

• Standard 1.1, “You must treat service users and carers as individuals, respecting their privacy and dignity.” Patient A’s financial resources were clearly a private matter, and requesting and receiving a loan from her necessarily breached the right she had to preserve that aspect of her life private.

 

• Standard 1.7, “You must keep your relationships with service users and carers professional”. Borrowing money from a service user clearly breached this standard.

 

• Standard 6.1, “You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.” In the judgment of the Panel the borrowing of a significant sum of money from Patient A was something that gave rise to a clear and obvious risk that she would be harmed, and it was included in the evidence before the Panel that she was in fact upset by the transaction.

 

• Standard 9.1, “You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.”  Seeking and obtaining a loan from a hospital inpatient was conduct that would obviously undermine the confidence of the public (not only potential patients, but also their families and carers) in the Registrant and other members of the Occupational Therapy profession.

 

46.    The Panel acknowledged that a breach of a standard, or breaches of a number of standards, should not be treated as automatically translating to a finding of misconduct. However, when the Panel stood back and asked itself how serious these breaches were, the answer was that they were very serious; the Registrant’s behaviour amounted to a failing that fell far below the standard that was expected of her. The Panel was satisfied that it was behaviour that fellow Occupational Therapists would consider to be deplorable.

 

47.    The Panel found that Particular 1 amounted to misconduct.

 

 

 

48.    The Panel heeded the advice it received and applied the guidance contained in the relevant HCPTS Practice Note.  Accordingly, it considered both the personal and public components relevant to the issue.

 

49.    So far as the personal component was concerned, the Panel had regard to the totality of the Registrant’s submissions. However, as has already been stated, those submissions were predicated on the basis that the Registrant had not acted as the Panel has found she had. Given the fact that it was not accepted that the Registrant had in fact sought a loan from a hospital inpatient, the assertion that standards were always adhered to carried little, if any, weight. There was no reflection on what had occurred and no acknowledgement of wrongdoing (the Registrant stated that she accepted poor judgement led from one event to another due to pressure).  There was no meaningful apology or recognition of the effect on Patient A (as already stated, the Registrant considered herself to be a victim). There was no evidence that matters found proved by the Panel had been addressed by the Registrant, still less resolved.  It followed from these findings that there had been no remediation. That being the case, the Panel concluded that the risk of repetition of similar behaviour is significant and real.

 

50.    It followed from these findings that the Panel concluded that, upon consideration of the personal component, the Registrant’s fitness to practise is currently impaired.

 

51.    When the Panel considered the public component of impairment of fitness to practise, the risk of repetition necessarily meant that the protection of service users was engaged. In addition to that factor, the Panel also considered that the declaration and upholding of proper professional standards required a finding of current impairment of fitness to practise.  Furthermore, the Panel was satisfied that public confidence in the Occupational Therapy profession and the regulation of it would be seriously diminished were no finding of impairment of fitness to practise made.

 

52.    For all these reasons, the Registrant’s fitness to practise is currently impaired in relation to the public component.

 

53.    The result of these findings is that the allegation is well-founded with the consequence that the issue of sanction must be considered.

 

 

 

54. The Presenting Officer presented her submissions on sanction in writing.   She reminded the Panel of that part of the judgment of Sir Thomas Bingham M.R. in Bolton v The Law Society [1993] EWCA Civ 32, when he stated that the reputation of a profession is more important than the fortunes of any individual member, that being one of the prices paid by professionals for the benefits gained by membership. She also referred to standards incorporated within the HCPC’s Standards of conduct, performance and ethics that it was submitted the Registrant had breached.  In submitting that the breaches were very serious, and that there was no evidence that the matters had been addressed or resolved despite many years having passed since the incident, she submitted that there was a real and significant risk of repetition of similar behaviour. The Presenting Officer submitted that there were no conditions of practice that would be appropriate and concluded her submissions by contending that public confidence in the profession of Occupational Therapy would be diminished were the Registrant to remain in practice.

 

55. In advance of the recommencement of the hearing on 15 June 2023, the Panel received from Mr Summers, and read, the judgment of Kerr J. in Ahmedsowida v G.M.C. [2021] EWHC 3466 (Admin.).

 

56. The Panel intends no discourtesy to Mr Summers in briefly summarising his helpful submissions on sanction.

 

• He submitted that the Registrant unreservedly accepted the Panel’s judgement. He submitted that the Panel’s findings represented a crass misjudgment that led the Registrant to fall short of the standards expected of her in that she breached professional boundaries and trust with a vulnerable patient.  When asked by the Panel whether the Registrant’s acceptance was of the Panel’s decision in relation to its findings, or whether she now accepted the factual basis of those findings, Mr Summers took instructions from the Registrant and replied that her acceptance was of the legitimacy of Panel’s decision.

 

• Mr Summers reminded the Panel that the relevant incident occurred some considerable time ago, and he informed the Panel that the Registrant had been the subject of an Interim Suspension Order for a period of 3 years and 9 months, and he submitted that this was a factor the Panel could properly apply to its sanction decision.

 

• He submitted that the incident could be viewed as a dreadful error of judgement and that a repetition would be unlikely.

 

• Nevertheless, it was accepted by Mr Summers that the Panel would consider the case to be a serious one, and that the guidance contained in the Sanctions Policy relating to abuse of professional position would be considered to be engaged.

 

• It was also accepted that a Conditions of Practice Order would be unlikely to be thought appropriate.

 

• Mr Summers submitted that a Suspension Order would represent a proper and proportionate response to the Panel’s findings; he submitted that to go beyond suspension and decide upon a Striking Off Order would be to impose an order that would be disproportionate in the circumstances. As to the length of a Suspension Order, he submitted that it should be the shortest period consistent with the Registrant having an opportunity to take steps to satisfy a reviewing panel that she should be permitted to return to practice.

 

 

57. The Panel accepted the advice it received in relation to the decision it was required to make on sanction. Accordingly, it applied the principle that a sanction should not be imposed to punish a registrant against whom a finding has been made.  Rather, any sanction imposed should be the least restrictive outcome consistent with the need to protect the public and to maintain a proper degree of confidence in the relevant profession. To ensure that any sanction is no more restrictive than demanded by these proper considerations, a panel is first required to consider whether any sanction is required at all.  If it is decided that a sanction is required, then the available sanctions must be considered in an ascending order of seriousness until one is reached that satisfies the goals just identified.  The Panel confirms that it applied this approach in the present case and has paid close attention to the HCPC’s Sanctions Policy.

 

58. The Panel began its deliberations by considering whether there were any factors which aggravated its findings, and any factors that it would be proper to put in the balance in favour of the Registrant.

 

59. The Panel considered that its finding in relation to Particular 1 amounted to an abuse of the Registrant’s professional position.  As stated in paragraph 67 of the Sanctions Policy, “The relationship between a registrant and service user or carer is based upon trust, confidence and professionalism. However, it is also a relationship in which there is an unequal balance of power, in favour of the registrant. Whilst registrants should endeavour to have positive relationships with service users and carers, it is essential that they remain aware of this dynamic and take care not to abuse their position”. As recognised by paragraph 69 of the same document, that abuse of professional position can involve inappropriate financial transactions with service users. It is also of significance in this case that Patient A was a particularly vulnerable service user.

 

60. Against these factors the Panel considered that it was appropriate to have regard to several factors. They could not be considered mitigating in the true sense of that word because they did not lessen the seriousness of the finding of misconduct made in relation to Particular 1, however it is fair to record that dishonesty was neither alleged by the HCPC or found by the Panel.  Furthermore, the transaction with Patient A in July 2018 was a single incident, and there is no suggestion that the Registrant has behaved in a similar manner with regard to other service users.  Furthermore, the money borrowed was eventually repaid.  Also, the Panel accepts that these fitness to practise proceedings have had an adverse affect on the Registrant’s health.

 

61. To explain the Panel’s decision it is necessary to explain what factors are relevant to the sanction decision. There are two:

 

• The risk of repetition. In its decision on impairment of fitness to practise the Panel stated this: “There was no evidence that matters found proved by the Panel had been addressed by the Registrant, still less resolved.  It followed from these findings that there had been no remediation. That being the case, the Panel concluded that the risk of repetition of similar behaviour is significant and real”.  The reply to the Panel’s question as to what it was the Registrant was unreservedly accepting demonstrated that, although she was accepting the legitimacy of the Panel’s decision, she did not accept the factual basis of the findings made. The Registrant is entitled to defend herself as she chooses; a finding is not being made against her because of the way she has chosen to defend the case or because of the case she has advanced. However, the Panel is required to address the question of whether there is a risk of repetition, and when a person does not accept that they have behaved in a particular manner in the first place a hurdle is placed in the way of finding that they would not behave in a like manner in the future. Similarly, an absence of recognition of the effect of behaviours on service users and the reputation of the profession has the same consequence. The duty of the Panel is to ensure that a registrant who is likely to breach professional boundaries is restricted in their ability to practise.

 

• The marking of the seriousness of the findings.  Quite apart from the disquiet members of the public would feel at the prospect of an Occupational Therapist returning to unrestricted practice when there is a risk that they would breach professional boundaries, there is also a need to declare and uphold proper professional standards.

 

62. With these various factors in mind, the Panel first considered whether this was a case in which it would be proper to impose no order.  The conclusion of the Panel was that the finding is far too serious for that outcome.  

 

63. With regard to a Caution Order, the Panel reminded itself of the factors suggested in paragraph 101 of the Sanctions Policy, and with the exception of the fact that the issue in this case is isolated, concluded that none of those factors applied. The Panel rejected a Caution Order as an appropriate sanction.

 

64. The Panel next considered whether a Conditions of Practice Order should be imposed. The Panel agreed with the submissions of both the Presenting Officer and Mr Summers that a Conditions of Practice Order is not appropriate in this case.  It would not be appropriate to restrict a practitioner from breaching professional boundaries by conditions of practice as the requirement to observe them is a fundamental requirement of registration.

 

65. It followed that the Panel next considered the appropriateness of a Suspension Order.  In that context regard was had to paragraph 121 of the Sanctions Policy. That paragraph reads as follows:

“A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors: 

 

• the concerns represent a serious breach of the Standards of conduct, performance and ethics;

 

• the registrant has insight; 

 

• the issues are unlikely to be repeated; and 

 

• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings”.

 

66. Applying the factors identified in the bullet points to the present case, the case does represent a serious breach of the Standards of conduct, performance and ethics that cannot be addressed by the imposition of a Conditions of Practice Order.  However, for the reasons already explained, the Registrant does not have full insight and, for that reason, it cannot be said that the issues are unlikely to be repeated. The question whether the Registrant is likely to be able to resolve or remedy their failings is a somewhat open question. The Panel’s initial deliberations were that it would be necessary to pass to the final and ultimate sanction of striking off.

 

67. However, the Panel was mindful of the fact that the finding concerns a single, albeit serious, breach. After careful thought the Panel concluded that a Striking Off Order should not be imposed while there remains a residual prospect that the Registrant will choose to demonstrate that she has a proper understanding of the importance of proper professional boundaries and her ability to comply with them. For that reason the Panel decided that a Suspension Order should be made despite the fact that the case does not meet all of the factors suggested in paragraph 121 of the Sanctions Policy.

 

68. It is very important that the Registrant should understand just how close she came today to being struck off the HCPC Register. The reason why she should understand that is because the Suspension Order will be reviewed before it expires, and, when it is reviewed, the reviewing panel will have all the sanction powers that were available today, including the power to make a Striking Off Order. The order that will be made on that review will be for the reviewing panel making the decision, but the Registrant would be well advised to approach the review on the basis that without some positive input from her, a Striking Off Order is a likely outcome.

 

69. The present Panel acknowledges that it is customary for guidance to be offered as to steps that a suspended registrant might take to provide evidence to the reviewing panel. This Panel consciously does not make any such suggestions; after consideration of this determination, the Registrant will understand that it has been necessary to make a Suspension Order because of the risk that professional boundaries will be breached in the future.  It will be for the Registrant to decide on the steps she should take to demonstrate to the reviewing panel that she recognises proper professional boundaries, understands why it is important that they are maintained and how she can demonstrate that in future she will observe them. The Registrant may also consider it sensible to demonstrate that steps have been taken to refresh her professional knowledge and skills given the length of time she has been away from practice.

 

70. As to the length of the Suspension Order, the Panel does not accede to the submission of Mr Summers that it should be for a short period. In the judgement of the Panel, a number of factors demand that it should be for a period of 12 months. One is that a very short period would not reflect the gravity of the findings made in this case.  Another is that the Registrant has not yet commenced the task of taking the steps that realistically will be required of her; she must first achieve the composure that will enable her to evaluate what she must do, and then she must undertake the tasks. In the view of the Panel, the imposition of too short a period would be to set up the Registrant to fail in a task of the first importance if she is to regain her career as an Occupational Therapist.

 

 

ORDER: The Registrar is directed to suspend the registration of Mrs Patience Stella Ncube for a period of 12 months from the date this Order comes into effect.

 

 

 

 

 

1. After the Panel announced that a Suspension Order for a period of 12 months would be imposed, the Presenting Officer applied for an Interim Suspension Order to cover the appeal period. She submitted that such an order is necessary for protection of members of the public and in the public interest.

 

2. On behalf of the Registrant, Mr Summers acknowledged that an application for an Interim Order in these circumstances was a routine application and that he had no observations on whether an order should be made. He did, however, suggest that a period of 12 months would be a sufficient length of the order.

 

3. The Panel was satisfied that it had jurisdiction to consider the making of an interim order because the Registrant was informed that an application for an Interim Order might be made in the notice of hearing email sent on 27 April 2023.  Accordingly, the Registrant had been afforded an opportunity of making representations on the issue of whether such an order should be made.

 

4. The Panel approached its decision on whether an Interim Order should be made by accepting that the default position is that when a substantive sanction is imposed a Registrant’s ability to practise should remain unrestricted while their appeal rights remain outstanding.

 

5. However, in the present case the Panel has concluded that there is a risk of repetition of behaviour that would constitute a breach of proper professional boundaries, and that accordingly the Registrant would present an unacceptable risk to service users. This means that an interim order is necessary for protection of members of the public and is otherwise in the public interest.

 

6. The Panel considered whether conditions of practice imposed on an interim basis would provide an adequate degree of protection and sufficiently maintain public confidence while the Registrant’s appeal rights remain outstanding.  However, having carefully considered the matter, the Panel concluded that interim conditions of practice are not appropriate for the same reasons already expressed by the Panel for rejecting substantive conditions of practice as a substantive sanction outcome.

 

7. The result of these findings is that the Panel concluded that an interim suspension order is the necessary and proportionate order to make.

 

8. It is appropriate for that Interim Order to be made for a period of 18 months.  Such a period is appropriate because the interim order will automatically fall away if the initial 28 day period passes and the Registrant does not appeal, yet if she does appeal, it could be 18 months before that appeal is finally determined.

 

The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public, being otherwise in the public interest and being in the Registrant’s own interests.  This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.