Sarah Newman

Preliminary Matters

Conduct of Hearing in Private

1. Ms Johnson applied for the Panel to use its discretion to hold part of the hearing in private if or when any health or non-relevant personal matters arose in relation to the Registrant. Ms Johnson said this approach would be consistent with the approach taken by the Panel on the last occasion when the matter was considered for potential Voluntary Removal.

2. Ms Newman supported the application.

Panel Approach

3. The panel took into account the advice of the Legal Assessor and the Health and Care Professions Tribunal Service practice note ‘Conducting Hearings in Private’ dated March 2017. The panel accepted the submissions made by Ms Johnson.

4. The panel acknowledged that there is a strong public interest in ensuring that hearings are conducted in public for transparency. However, the Panel agreed with the HCPC that the parts of the hearing relating to the Registrants physical or mental health should be heard in private to protect her privacy.

Background:

5. The Registrant is an Occupational Therapist who was employed by the Cambridgeshire County Council (‘the Council’) between 5 June 2017 and 31 May 2019. The Registrant managed a clinical caseload of patients who were elderly, frail, had a physical disability, suffered from learning disabilities, or had dementia. The Registrant’s role involved conducting moving and handling assessments, prescribing occupational therapy equipment, and working alongside the Social Care Team to ensure that necessary care packages were in place for those patients.

6. On 4 April 2019, Person R, Occupational Therapy Team Manager at the Council, conducted a review of 21 cases that were in the Registrant’s caseload at the time. Person R then discovered that the Registrant allegedly failed to complete essential documentation and that there were concerns about the fact that:

a) The Registrant had issued equipment without the required documentation.

b) The Registrant had failed to write her notes in respect of assessments carried out on a number of patients.

c) The Registrant wrote assessment notes after the appointments, which meant that the notes were not contemporaneous.

7. In April 2019, the Council commenced an investigation into concerns that have emerged about the Registrant’s conduct. The Council’s internal investigation was completed on 12 July 2019. On 5 September 2019, the Council made a referral to the HCPC.

8. At its meeting on 17 March 2021, a Panel of the Investigating Committee of the HCPC determined that there was a case to answer in relation to an allegation of impairment of the Registrant’s fitness to practise.

9. Following the outcome of the Investigating Committee, Kingsley Napley LLP was instructed by the HCPC to undertake an investigation in relation to the allegation detailed above. As part of this investigation, a witness statement was obtained from Person R and multiple exhibits were provided by Person R and the Council in support of the concerns and its own investigation.

10. The Registrant, in correspondence with Kingsley Napley LLP indicated that she wished to deal with the case against her by way of voluntary removal from the HCPC’s register. A Voluntary Removal Agreement was signed by both parties. The case was listed for a Voluntary Removal Agreement Hearing which was considered by a Conduct and Competence Committee Panel on 25 July 2022. Prior to the hearing, the Registrant made written submissions indicating that she wished to return to practice as an Occupational Therapist.

11. At the outset of the hearing the Panel Chair, raised with the Registrant that there appeared to be a mismatch between firstly, documentation which had been submitted on behalf of the Registrant which outlined remediation she had undertaken, including further training, and which indicated that she wished to return to the profession, and secondly, the Voluntary Removal Agreement which she had entered into, which stated that she wished to be removed from the register.

12. It appeared to the Panel hearing the Voluntary Removal Agreement matter that the Registrant had concluded that because she was not able to show that she had applied her remediation in the workplace, because she had not practised for some three years, she had believed that this meant she should enter into a Voluntary Removal Agreement. During the hearing the Registrant withdrew her consent from Voluntary Removal Agreement after considering other options available to her.

13. The Registrant completed a Consensual Disposal Request Pro-Forma confirming that she admitted the substance of the allegation made against her and that her fitness to practise is currently impaired by reason of her misconduct/lack of competence. The form stated that she wished for the matter to be dealt with by way of the HCPC imposing a Conditions of Practice Order. The Registrant had already provided documentation in support of her application for an agreed disposal including, a response to the Council’s investigation, certificates of training, and character references.

14. On 25 August 2022, Kingsley Napley LLP confirmed to the Registrant its instructions from the HCPC to accept and agree that her case is suitable to be disposed of by way of consent, with a proposal of a twenty-four-month Conditions of Practice Order. The correspondence explained to the Registrant that a Panel would still need to meet to consider her case, but at the hearing the HCPC would ask the Panel to agree to a Conditions of Practice Order. The Panel will decide whether it is appropriate to deal with the case in this way. The correspondence advised that the Registrant should be aware that it is ultimately up to the Panel to decide whether it is appropriate to dispose of the case via a Conditions of Practice Order. If the Panel does not feel that this is appropriate, a further Panel will be convened to hear the case in full.

15. On 8 September 2022 the Registrant responded to Kingsley Napley LLP attaching the completed application for disposal by consent form (dated 7 September 2022). On 19 September 2022, the Registrant confirmed that she agreed with the proposed draft Conditions of Practice and the duration of the Order as proposed by the HCPC.

Submissions

16. The HCPC produced a written skeleton argument which was provided to the Panel in advance of the hearing. The written submissions were adopted by Ms Johnson in her oral submissions. The written submissions of the HCPC are:

‘The HCPC submits that disposing of the matter by way of consent would be an appropriate and proportionate method of concluding the matter, as the Registrant has admitted the substance of the allegation and that her fitness to practise is currently impaired by reason of her misconduct and lack of competence. The Registrant’s completed consensual disposal request pro-forma dated 7 September 2022 and full correspondence in this regard is produced at Appendix G and Appendix F.

The HCPC proposes to impose Conditions of Practice on the Registrant for a period of twenty-four months with effect from the date of the hearing. The Consent Order is proposed on the basis that the Registrant has admitted that her fitness to practise is currently impaired by reason of her misconduct and/or lack of competence. The Registrant has also demonstrated insight by fully reflecting on her previous failings, as well as continuing to reflect on her practise and having undertaken further training. In particular the Registrant has completed two record keeping courses and also a course in respect of GDPR in healthcare since the allegations, despite not working as an Occupational Therapist. These documents appear as Appendix D and Appendix I. The Registrant has therefore already started to take steps to address the shortcomings in her practice. The Registrant also acknowledges and accepts that further training, under the supervision that conditions of practice the HCPC submit would allow, would be necessary and assist the Registrant in continuing to address the issues and ensure that she can achieve the required standards to return safely as fit to practice as an Occupational Therapist. As such, it is submitted that twenty-four months is a sufficient period of time to enable the Registrant to continue to address these issues under appropriate supervision. It is further submitted that the public will be protected by such an order, which is proportionate in the circumstances.

The second limb of the test is that disposing of the case by way of consent would not be detrimental to the wider public interest. The case of Cohen v GMC [2008] EHWC 581 (Admin) held that the public component test must be considered; specifically, the need to protect service users, declare and uphold proper standards of behaviour, and maintain public confidence in the profession. In this case, the wider public interest is sufficiently protected by the Registrant agreeing to adhere to the proposed Conditions of Practice for a period of twenty-four months given the level of supervision of the Registrant and reporting to the HCPC required by the conditions.

It is also submitted that if the case were to proceed to a final contested hearing a Conditions of Practice Order is a potentially realistic and likely outcome in light of the circumstances. The Order is proportionate in that it adequately protects the public and gives the Registrant an opportunity to improve her practice whilst under the close supervision of an HCPC registered supervisor. A copy of the draft Consent Order can be found at Appendix H.’

17. Ms Johnson supplemented the written submissions with additional oral submissions. She confirmed that the Registrant has had full opportunity to consider the proposed Conditions of Practice Order and that the Registrant has been in regular correspondence with Kinglsey Napley LLP to ensure that she completely understands the parameters of the proposed Order.

18. Ms Johnson submitted that the proposed Conditions of Practice address the record keeping practices which are the substance of the allegation. The proposed Conditions of Practice are workable, not intrusive and are reflective of steps required in returning to safe practice. They will enable the Registrant to get the support she needs and will enable her to raise any concerns she has and mark her progress.

19. Ms Johnson submitted that whilst the process of enabling a Panel to make a consent order is to expedite matters, these matters date back over four years. If the Panel approve the Consent Order today it would bring to an end lengthy proceedings and allow the Registrant, who has valuable occupational therapy skills and experience, to return to practice therefore providing a public benefit.

20. The Registrant took the affirmation and gave evidence to the Panel. The Registrant stated that she agreed with the submissions made by Ms Johnson on behalf of the HCPC.

21. The Registrant drew the panel’s attention to the documents she had already provided in the bundle. She stated that she has always accepted the allegations and regretted her actions. Since that time, she has updated her skills, reflected on her actions, and identified areas of development. She said that she was also more self-aware in relation to her coping abilities and strategies she could use to assist should similar situations start to arise.

22. The Registrant told the Panel that she had considered a return to practice before but with her health issues and the Covid pandemic she had not felt it was the optimum time to return. She is now actively seeking to return to occupational therapy practice. She remains working in a school which involves using transferable skills relating to safeguarding and child development. In relation to occupational therapy skills, the Registrant said that she is undertaking self-directed study, attending lectures by the RCOT, and reading relevant journals. She has been, and remains, committed to her profession for over twenty years.

23. The Registrant told the Panel that she has remediated and believes a Conditions of Practice Order will allow her to return safely to the profession. She has been looking for roles but without the clarity of what the conditions of practice will be, it has been difficult to know which jobs might meet the requirements.

24. In response to questions, the Registrant clarified that she was aware of how to access occupational therapy supervision which includes the possibility of accessing private supervision. She has done this in the past and was provided with skills knowledge and counselling. The Registrant said that her personal development plan would concentrate on ensuring she makes timely recordings on the relevant system. Also it would include refreshing her clinical skills given the changes that have occurred during the past few years whilst she has not been in practice. She told the Panel that she has already developed strategies to assist her in the workplace such as diary management and time management skills.

Panel Approach

25. The Panel accepted the advice of the Legal Assessor. It also took account of the HCPCT’s practice note ‘Disposing of Cases by Consent’ dated March 2018. The Panel reminded itself of its over-arching objective to protect the public and the wider public interest.

26. The Panel considered whether the HCPC has provided a clear, appropriately detailed, and objectively justified explanation within its supporting skeleton argument of why the matter is suitable for disposal by consent on the terms set out in the draft Consent Order; and whether the HCPC has made clear to the Registrant that co-operation and participation in the consent process will not automatically lead to a Consent Order being approved.

Decision:

27. The Panel was satisfied that the HCPC’s case was well founded in the light of the information and evidence before it. Owing to the wide range of failings occurring over a fifteen-month period, concerning several patients, and which had been admitted and accepted by the Registrant, the Panel decided that the Registrant’s conduct did constitute a lack of competence and misconduct. The Panel were satisfied that the evidence before them reflected a fair sample of the Registrant’s work.

28. Noting the Registrant’s acceptance of current impairment and her own acknowledgement of a lack of competence relating to timely record keeping, the Panel was satisfied that the Registrant is currently impaired. The Panel determined that whilst the Registrant has demonstrated insight, remorse, and has undertaken steps towards remediation, taken in context, her actions were serious enough that a finding of impairment based on the public component was necessary to protect service users and required to maintain public confidence in the profession. Her failings potentially impacted on nineteen vulnerable service users, as well as her colleagues and co-professionals who were left to try and unravel what had or had not taken place given the lack of recording on files.

29. The Panel had in its mind that the purpose of sanctions was not to punish the Registrant, but to protect the public, maintain public confidence in the profession and maintain proper standards of conduct and performance. The Panel was also aware of the need to ensure that any sanction is proportionate.

30. The Panel then considered what would be the likely range of sanctions that could be imposed in light of the evidence in this case and compared that with the proposed course indicated in the Consent Order. In doing so, the Panel took into consideration the following factors:

(a) The Registrant has fully engaged with the HCPC and the process.

(b) The Registrant has made full admissions at the earliest opportunity.

(c) That whilst the Registrant had demonstrated a lack of competence and misconduct, she has taken significant steps to remediate her lack of knowledge and understanding, including self-directed learning and various professional development courses for which attendance evidence was provided to the Panel.

(d) The admission by the Registrant that her failings/actions amounted to a lack of competence and misconduct and that her fitness to practise is impaired by reason of that.

(e) The supportive references from Occupational Therapists’ attaining to the Registrant’s excellent skills and knowledge within the health and social care sector.

(f) The Registrant is of previous good character.

(g) The level of insight and remediation demonstrated by the Registrant.

(h) The character reference from the Assistant Headteacher at the school the Registrant currently works for, which states, ‘Sarah uses the system efficiently and we have no concerns regarding her diligence in exercising her safeguarding responsibilities and completing the necessary “paperwork” (albeit electronic) that goes along with that.’

31. The Panel took into consideration the Indicative Sanctions Policy issued by the HCPTS. The Panel started its consideration of the matter from the bottom of the scale of possible sanctions.

32. The Panel considered that taking no action would not be appropriate in this instance. The Panel was of the view that taking no action would not provide the requisite level of public protection that this case necessitated.

33. The Panel moved on to consider a Caution Order and was of the view that it would be insufficient to mark the seriousness of the matters that led to its finding of lack of competence and misconduct. The Registrant’s conduct was not isolated but occurred for over a year across multiple cases. Therefore, the Panel was not satisfied that a Caution Order would accurately reflect the seriousness of the Registrant’s failings or provide public protection.

34. In light of its findings, the Panel was of the view that this case was a suitable case for a Conditions of Practice Order to be imposed. Whilst there were several areas of the Registrant’s practice, as an Occupational Therapist, which had been identified as deficient, the Panel was satisfied that appropriate conditions could be imposed which would afford the requisite level of public protection whilst allowing the Registrant to remain in practice.
35. The Panel was satisfied that the Registrant’s failings were remediable and that whilst she had already taken some steps towards remediation, further supervision in respect of her practice was necessary to ensure public safety and confidence in the profession. Having heard oral evidence from the Registrant, the Panel were satisfied that she would co-operate with any conditions imposed and would be genuinely committed to resolving the issues highlighted by the allegation.

36. The Panel determined that, in this case, the public interest would be met with the imposition of a Conditions of Practice Order as a sanction. The Panel were satisfied that a member of the public, who was fully informed of the facts of the case, would not be concerned if a Conditions of Practice Order was imposed in these circumstances. A Conditions of Practice Order is not an insignificant sanction and will appear on the Registrant’s online register entry for the specified period.

37. Having determined that a Conditions of Practice Order was sufficient the Panel determined that a Suspension Order would neither be a just nor an appropriate sanction in this case as it would be excessive and punitive in nature. The Panel agreed with the HCPC that there is a public interest in allowing skilled Occupational Therapists such as the Registrant, to return to practice where that return can be undertaken safely and with the benefit of the oversight that conditions of practice afford.

38. The Panel noted that the maximum duration of a Conditions of Practice Order is three years. The Panel determined that, because the Registrant had been away from practice for over three years, a period of twenty-four months was the appropriate duration for the Conditions of Practice Order and that should be sufficient to allow the Registrant to address the issues identified under supervision and offer protection to the public. A duration of anything above twenty-four months would be disproportionate considering the nature and circumstances of this case.

39. In all the circumstances, the Panel was satisfied that the terms of the Conditions of Practice Order would:

(a) protect the public; and

(b) would not undermine public confidence in the profession or the regulatory process.

40. Notwithstanding the above, the Panel also considered whether this case was so serious that a public substantive hearing was necessary in the wider public interest. It determined that this case was not so serious as to make a public substantive hearing necessary.

41. The Panel therefore allows this matter to conclude by way of consensual disposal as set out in the terms of the Consent Order before it.

The Registrar is directed to annotate the HCPC Register to show that, for a period of 24 months from the date that this Order takes effect (“the Operative Date”), you, Sarah L Newman, must comply with the following conditions of practice:

1) You must keep the HCPC informed about anywhere you are working as an HCPC registered Occupational Therapist by:

a) Telling the HCPC within seven days of accepting or leaving any employment; and

b) Giving the HCPC your employer’s contact details.

2) You must immediately give a copy of these conditions to:

a) Any organisation or person employing or contracting with you to undertake professional work which requires registration with the HCPC or another statutory regulator;

b) Any agency you are registered with or apply to be registered with (at the time of application); and

c) Any prospective employer (at the time of application).

On your return to practising as an HCPC registered Occupational Therapist:

3) You must place yourself and remain under the supervision of a workplace supervisor registered by the HCPC or other appropriate statutory regulator and supply details of your supervisor to the HCPC within one month of you returning to practice. You must attend upon that supervisor as required and follow their advice and recommendations.

4) You must work with the workplace supervisor to formulate a Personal Development Plan designed to address the deficiencies in your record-keeping practices.

5) Within one month of commencing work as an Occupational Therapist you must forward a copy of your Personal Development Plan to the HCPC.

6) You must meet with the workplace supervisor on a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.

7) You must request that your workplace supervisor provides a report to the HCPC at least 14 days before any review of this conditions of practice order.

8) You must allow the workplace supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan. Your workplace supervisor must report to the HCPC on a quarterly basis. This report must show your progress towards achieving the aims set out in your Personal Development Plan.

9) You must promptly inform the HCPC of any capability or disciplinary proceedings taken against you by your employer.

10) The conditions listed at 1 – 9 above shall remain in place for the duration of twenty- four months from the Operative Date.

Right of Appeal

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

Interim Order:

Application

42. Ms Johnson made an application on behalf of the HCPC for an Interim Conditions of Practice Order as the sanction order will not come into effect until the expiry of 28 days from service of the determination or the end of an appeal.

43. The Registrant was aware from preliminary discussions with the Legal Assessor and the presenting officer, which took place prior to the hearing starting, that if the Panel agreed with the Consent Order, the HCPC would apply for an Interim Order to cover the appeal period.

44. The Registrant told the Panel that she had no objections to an Interim Conditions of Practice Order being imposed. She thanked the Panel for its time today and said she was fully committed to returning to the profession that she loves.

45. The Legal Assessor referred the Panel to the HCPTS Practice Note on Interim Orders which it paid regard to.

Panel Decision:

46. The Panel was satisfied that the Registrant had been given opportunity to make informed representations in respect of the application.

47. The Panel had regard to the nature of the allegation and the fact that a Conditions of Practice Order had been imposed. The Panel determined that the allegation is of sufficient seriousness that public confidence in the profession would be harmed if the Registrant was allowed to remain in unrestricted practice, in light of the finding that the Registrant’s practice is impaired, until the imposition of the substantive Order.

48. The Panel took into account that eighteen months should not be regarded as a default position. However, having listened to the submissions about delays with appeal courts, it decided that eighteen months was proportionate.

49. The Panel makes an Interim Conditions of Practice Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest for the same reasons already outlined above. The Interim Conditions of Practice are the same as those set out in the Substantive Order, above. The Panel also considered that the Interim Conditions of Practice Order will be in the Registrants interests as it would allow her, with immediate effect, to be clear with potential employers and agencies the parameters of the conditions of practice.

50. 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.

History of Hearings for Sarah Newman