Maria Efthymiou

Preliminary Matters

Application for the hearing to be held partly in private

1. Ms Khan on behalf of the HCPC applied for the hearing to be held partly in private to protect the private life of the Registrant as matters relating to the health of the Registrant may be referred to.

2. The Panel was referred to the HCPTS Practice Note on ‘Conducting Hearings in Private’, which states that as a general rule hearings are to be in public in accordance with the ‘open justice’ principle. However, in certain circumstances it is in the interests of justice for the hearing to take place wholly or partially in private to protect the private life of the Registrant where matters relating to health are to be referred to.

3. The Panel considered the representations made and determined it was appropriate for the hearing to be heard partly in private where details of the Registrant’s health and / or private life were to be referred to.

Background

4. The Registrant is a HCPC registered Occupational Therapist (‘OT’).

5. The Registrant was employed by Manx Care, for the Isle of Man Government as a Band 7 Advanced Wheelchair Occupational Therapist from January 2015 until 15 August 2018. Prior to this, she worked for the same employer as a Band 6 Occupational Therapist from 9 August 2006 until 23 January 2015.

6. On 13 April 2017, the Registrant was suspended from work pending an investigation into concerns raised.

7. On 4 September 2017, the HCPC received a self-referral from the Registrant. On 20 October 2017, the HCPC received documentation from the Registrant’s employer Manx Care.

8. In January 2017, concerns regarding the Registrant’s practice had come to light after it was reported that one of her patients, Patient A, had developed a pressure ulcer from his wheelchair.

9. In April 2017 a second unrelated complaint had also come to light relating to an assessment of a child, Patient B. The employer confirmed that the concerns being investigated were as follows:

a) Poor clinical record keeping;

b) Outstanding assessments/actions;

c) Poor communication between the Registrant and the contractor;

d) Inadequate assessment of patients;

e) Inadequate monitoring of a patient;

f) No routine monitoring of wheelchairs or pressure cushions;

g) Inability to draw on appropriate knowledge and skills to inform practice.

10. At a substantive hearing the panel found 1a(i), 1a(ii), 1a(iii), 1a(iv), 1a(v), 1b, 1c, 2 proved, that they amounted to misconduct and that the Registrant’s fitness to practise was impaired. A Suspension Order was imposed for a period of 12 months. The Order is due to expire on 19 June 2024 and this is a review of that Order.

Submissions

11. Ms Khan on behalf of the HCPC provided the Panel with details of the background to the case which led to the finding of impairment on 22 May 2023. It was stated that the substantive hearing panel had made findings that the Registrant had failed to undertake assessments, there was poor clinical record keeping, poor communication with service users and that the Registrant had failed to maintain professional standards.

12. Ms Khan submitted on behalf of the HCPC that the Registrant’s fitness to practise is still impaired as she has failed to demonstrate a full understanding of the failings which led to the original finding of impairment, has not fully remediated and therefore there is a risk of repetition.

13. Ms Khan stated that the Registrant had not worked in the profession since 2017 and that she has not developed full insight as the Registrant has stated in her submissions that she did not know what she would do differently. Ms Khan further indicated that there had been no evidence of remediation, and this means that there is a high risk of repetition which would place patients at risk of harm.

14. Ms Khan commended the Registrant in relation to her engagement with the regulatory proceedings and her continuing professional development. However, she expressed concern that the Registrant has not worked as an OT since 2017 and has not ensured her competencies are up to date, as a result it was submitted that the Registrant no longer has the skills and knowledge to undertake the role effectively.

15. Ms Khan on behalf of the HCPC invited the Panel to consider, as a minimum, a Conditions of Practice Order should they find that the Registrant’s fitness to practise remains impaired to enable her to develop the skills and experience in the workplace to undertake the role of an OT as it is submitted that there is no evidence to suggest that the Registrant is fit to return to unrestricted practice. Ms Khan stated that a Conditions of Practice Order would allow the Registrant time to retrain under supervision.

16. Ms Khan on behalf of the HCPC invited the Panel to consider whether public confidence in the regulatory process would be undermined if there was no finding of impairment bearing in mind that the Registrant has been out of practice for some time.

17. The Registrant gave evidence on affirmation and acknowledged the concerns raised and accepted that in her role she had a duty of care to undertake a clinical assessment.

18. The Registrant referred the Panel to a flow chart which reflected her understanding at the time of responsibility for undertaking assessments. The Registrant stated that she had no prior knowledge or experience in neurology or paediatrics.

19. The Registrant accepted that the Band 7 role as an Advanced Wheelchair Therapist was beyond her experience, and she stated that she was unsupported in her role. The Registrant stated that should she return to practise she would require support, supervision and training.

20. The Registrant [Redacted] stated that a postural assessment requires two people, but she was a lone worker, and it requires two hours to undertake an assessment which she didn’t have.

21. The Registrant stated that she worked as an Orthopaedic OT for a number of years and was good at it. She considers that neurology and paediatrics are specialist areas, and she reported her concerns to her manager regularly. The Registrant considers that she was unsupported in her role.

22. The Registrant expressed a wish to return to practice on a part time basis if her health permitted. She stated that she would need to undergo some refresher training and do research and considers that she could go back to work as an orthopaedic OT tomorrow although her heart is in Community OT.

23. The Registrant pointed out that she had worked as an OT for 18 years without any issues or concerns, and that Patients A and B were 2 out of around 900 patients.

24. The Registrant confirmed that she had not considered working in a more junior role and had not had time to read the ‘returning to practice’ guidance issued by the HCPC.

Legal Assessor’s Advice

25. The Legal Assessor advised that this is a Review under Article 30(1) of the Health Professions Order 2001, and the Panel should consider the HCPTS Practice Notes on ‘Review of Article 30 Sanction Orders’ and ‘Fitness to Practise Impairment’ as well as the ‘Sanctions Policy’. The Panel was reminded that Article 30(1) of the Health Professions Order 2001 provides Panels with a power to:

- Confirm or extend the period for which the order has effect;

- make an order which could have been made when the order being reviewed was made;

- replace a suspension order with a conditions of practice order;

- revoke the order; or

- let the order lapse upon expiry.

26. The Panel was reminded that the review process is not a mechanism for appealing against or ‘going behind’ the original finding that the registrant’s fitness to practice is impaired. The purpose of the review is to consider:-

• Whether the registrant’s fitness to practise remains impaired; and

• If so, whether the existing Order or another order needs to be in place to protect the public.

27. The key issue which needs to be addressed is what, if anything, has changed since the current Order was imposed. The factors to be taken into account include:

• the steps which the registrant has taken to address any specific failings or other issues identified in the previous decision;

• the degree of insight shown and whether this has changed;

• the steps which the registrant has taken to maintain or improve their professional knowledge and skills; and

• whether any other fitness to practice issues have arisen.

28. The reviewing Panel’s task “is to consider whether all the concerns raised in the original finding of impairment...[have] been sufficiently addressed”. Abrahaem v GMC [2008] EWHC 183 (Admin). There is a ‘persuasive burden’ on the registrant to demonstrate at a review hearing that she has fully acknowledged the deficiencies which led to the original finding and has addressed that impairment sufficiently “through insight, application, education, supervision or other achievement...”.

29. The decision reached must be proportionate, striking a fair balance between interfering with the registrant’s ability to practise and the overarching objective of public protection.

30. The HCPC’s overarching objective is protection of the public and the purpose of fitness to practise proceedings is not to punish registrants for their past acts and omissions, but to protect the public from those who are not fit to practise. It does this by:

• protecting, promoting and maintaining the health, safety and well-being of the public;

• promoting and maintaining public confidence in the professions it regulates;

• promoting and maintaining proper professional standards and conduct for members of those professions.

31. In determining fitness to practise, Panels must take account of two broad components: the ‘personal’ component: the current competence and behaviour of the registrant concerned; and the ‘public’ component: those critically important public policy issues.

32. In making proportionate decisions on sanction, panels need to strike a balance between the competing interests of the registrant and the HCPC’s overriding objective to protect the public. Therefore, decisions should deal with the concerns raised, but be fair, just and reasonable. Sanctions are not intended to be punitive. Panels should only take the minimum action necessary to ensure the public is protected. This means considering the least restrictive sanction available to them first, and only moving on to a more restrictive sanction if it is necessary to protect the public.

Decision on Impairment

33. In reaching its decision today the Panel considered all the information before it. The Panel first considered whether the Registrant’s fitness to practise remains impaired. The Panel was aware that the persuasive burden is upon the Registrant to demonstrate that her fitness to practise is no longer impaired. The Panel had regard to the decision of the substantive panel. However, it comprehensively reviewed the matter and exercised its own judgment in reaching its decision.

34. The Panel had regard to the HCPTS Practice Notes ‘Review of Article 30 Sanction Orders’ and ‘Fitness to Practice Impairment” and accepted the advice of the Legal Assessor.

35. The Panel first of all considered whether the Registrant’s fitness to practise is currently impaired looking at both the personal component and the public component. The Panel acknowledged the comments of the panel who heard the substantive matter in their decision and heard at length from the Registrant. The Panel took into account the Registrant’s bundle of 27 pages which included her critical evaluation and details of CPD undertaken.

36. The Panel concluded that the Registrant had failed to discharge the persuasive burden to demonstrate that she has fully acknowledged the deficiencies which led to the original finding and has addressed that impairment sufficiently “through insight, application, education, supervision or other achievement...”.

37. The Panel came to this conclusion due to the fact that the Registrant has not demonstrated full insight into the failings as there are attempts to deflect responsibility and no clear vision of how she would tackle an issue of working outside the scope of her practice in the future. Whilst the Registrant has demonstrated some insight it is not fully developed.

38. The Panel considers that the failings are remediable but that remedial action has not been taken due to the lack of willingness to accept her failings.

39. The Panel noted the comments of the previous panel at paragraphs 105 and 106 and noted that these concerns still apply as the Registrant was not familiar with the HCPC Return to Practice process and had not specifically addressed the element of working outside the scope of practice within her CPD.

40. In considering the risk of repetition the Panel concluded that due to the lack of fully developed insight there is a high risk of repetition. The Registrant’s ability to develop her knowledge and skills and return to the workplace has not been tested and the Panel cannot be assured that if the Registrant was in a similar situation in the future that she is equipped with the knowledge of how to deal with that. Further work is required by the Registrant to demonstrate that appropriate strategies have been put in place and implemented, if and when necessary, for the Panel to be satisfied that there is no risk of repetition and to safeguard potentially vulnerable service users.

41. It was determined that on the personal component the Registrant’s fitness to practise remains impaired.

42. The Panel went on to consider the public component. Due to the identified risk of repetition and insight not being complete, there inevitably remains a risk to the public and there is a need to protect the public from risk of harm.

43. In considering the public component the Panel found that members of the public would be concerned, and would not have confidence in the profession, or in the regulator, if the Registrant is permitted to return to unrestricted practice at present. Accordingly, the Panel found that the Registrant’s fitness to practise was impaired on the public component also.

44. The Panel concluded that the Registrant’s fitness to practise is currently impaired on both the personal and the public component and must go on to consider the issue of the appropriate sanction to address the concerns identified.

Decision on Sanction

45. The Panel looked at the Sanctions Policy considering the least restrictive sanction available to them first, and only moving on to a more restrictive sanction if it is necessary to protect the public. The Panel was aware that the sanction is not a punishment for the Registrant but that it may have a punitive effect. The Panel was aware that once they reached a tentative view that an appropriate sanction has been identified, two further considerations should be made. One is to consider the next more severe sanction to the one identified in order to ensure that it sufficiently addresses the aims of a sanction. The other is to be satisfied that it is proportionate in the sense that it is no more severe than is required. As the finding in the present case is one of misconduct, the entire sanction range, including striking off, is available.

46. The Panel does not seek to repeat the aggravating features set out in the previous decision at paragraphs 117 and 118.

47. The Panel first considered mediation or taking no action and determined that these were not appropriate due to the serious nature of the concerns and the risk of repetition identified. The Panel has concerns about the Registrant’s ability to practise safely and those risks could not be managed through mediation or taking no action. In addition, these outcomes would not satisfy public confidence in the profession or the regulatory process.

48. The Panel was satisfied that it was appropriate to impose a sanction.

49. The Panel then considered whether a Caution Order would be appropriate and had regard to paragraph 101 of the Sanctions Policy. The Panel concluded that the concerns found proved were serious in nature. The Panel found that there is a risk of repetition, and as a consequence of that there is a risk of harm to the public which would not be effectively managed by a Caution Order. In addition, public confidence in the profession and its regulation would not be maintained by the imposition of a Caution Order. For these reasons the Panel concluded that a Caution Order would not be appropriate.

50. The Panel went on to consider a Conditions of Practice Order and had regard to paragraphs 106 - 109 of the Sanctions Policy.

51. The Panel were mindful that whilst the Registrant’s insight has developed that it is not yet fully developed. The Panel shared the concerns of the previous panel at paragraph 121 as follows “However, for conditions to be workable, the Registrant would need to recognise the need for supervision and the Panel had concerns that the Registrant appears to be of the view that abrogating her responsibility for patients is acceptable. The Panel was not confident that the Registrant would comply with conditions for this reason. Further, due to the Registrant’s very limited insight and lack of judgement as to how patients may be exposed to harm, any conditions would need to be stringent in relation to oversight and supervision, such that they may effectively be tantamount to suspension. For these reasons the Panel determined that conditions of practice are not appropriate in this case”.

52. This Panel has concerns that any conditions of practice would not be workable due to the inability of the Registrant to acknowledge her failings. The Panel could not be confident at this time that the Registrant would comply with any conditions and due to this it cannot be said that conditions would mitigate the risk of repetition and consequently there is a risk of harm to service users.

53. The Panel commends the Registrant for her engagement in the regulatory process, however, there is still some work which needs to be done in relation to acceptance, reflection, knowledge and insight before she can be considered for a return to practice.

54. The Panel next went on to consider a Suspension Order and referred itself to paragraphs 118 – 129 of the Sanctions Policy. The Panel consider that the concerns represent a serious breach of the HCPC’s Standards of conduct, performance and ethics, that there is a risk of repetition due to the limited insight and there is the likelihood that the Registrant can remedy her failings.

55. The Panel went on to consider whether a strike off would be appropriate and concluded that due to the Registrant’s engagement and desire to return to the profession that a Strike Off Order would be disproportionate.

56. The Panel concluded that a Suspension Order is the appropriate sanction in this case. Such an order would allow the Registrant a period of time to more fully develop her insight and remediate, with a view to a potential return to practice in the future. A Suspension Order would also meet the public interest as such an order would give members of the public confidence that the matters in this case have been taken seriously and that the Registrant would not be permitted to return to practice until her shortcomings have been addressed.

57. The Panel therefore imposed a Suspension Order for a period of 12 months. This Order will be reviewed prior to its termination, and the Panel considered that the reviewing panel will be assisted by the Registrant providing evidence of:

• A reflective piece addressing:

- the issues which led to the failings, how and why they occurred, and the potential consequences for those involved;

- risk of harm to service users;

- what action you would take in the future if presented with a situation where you were required to work outside the scope of your practice to ensure that there is no risk of repetition – how would the Registrant demonstrate that she was able to work within her knowledge and skills;

- how the failings impact upon the profession, the reputation of the profession and public perception.

• Research and development on the HCPC Return to Practice procedure for those who have not worked in the profession for some time;

• CPD addressing the specific areas of OT work which the Registrant seeks to return to.

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

The Order imposed today will apply from 19 June 2024.

This Order will be reviewed again before its expiry on 19 June 2025.

History of Hearings for Maria Efthymiou