Carolyn J Brown

: Occupational therapist

: OT14918

: Final Hearing

Date and Time of hearing:10:00 15/12/2014 End: 17:00 18/12/2014

: Health and Care Professions Council, Park House, 184 Kennington Park Road, London, SE11 4BU

: Conduct and Competence Committee
: Conditions of Practice

Allegation

During the course of your employment as an Occupational Therapist at the

Dudley Group NHS Foundation Trust [“the Trust”] between 1 June 2009

and 28 February 2013, you:

1. Were not able to practise as an autonomous practitioner, in that you

required a high level of supervision in order to ensure that your caseload

was managed safely and effectively;

2. Did not demonstrate appropriate clinical reasoning skills in that you:

(a) Were unable to identify which occupational therapy assessments were

required without support, in that you would:

(i) Not carry out assessments that were required, or

(ii) Carry out assessments that were not required;

(b) Did not carry out assessments in a timely manner;

(c) Were unable to identify a "problem list";

(d) Were unable to formulate appropriate treatment and discharge plans;

3. Did not complete patient records accurately or in a timely manner;

4. Were unable to communicate effectively with:

(a) Colleagues, or

(b) Patients;

5. Did not demonstrate appropriate manual handling skills in that you

required prompting as to appropriate positioning during therapy

assessments;

6. Were unable to identify when or in which cases referrals should be

made to other services or agencies;

7. Were unable to prioritise your caseload;

8. Were unable to delegate tasks appropriately;

9. The matters set out in paragraphs 1 - 8 constitute lack of competence.

10. By reason of your lack of competence your fitness to practise is

impaired.

The reasons for the Committee’s decision are set out in the enclosed

document.

Finding

1. The Registrant was employed as a Band 5 Occupational Therapist (“OT”) by the Dudley Group NHS Foundation Trust (“Trust”) from 1 June 2009 until she resigned with effect from 28 February 2013. It is alleged that during her employment the Registrant did not perform at the level of a Band 5 OT, requiring heavy supervision throughout, including undergoing the Trust’s three Stage Capability Process from September 2009 on the basis of her lack of competence. The Registrant ended her employment prior to the completion of that Capability Process.
Preliminary Matters
Service
 
2. The Registrant did not attend and was not represented.

3. The Panel was satisfied on the proof of service documentation provided that the Registrant had been served by first class post on 19 November 2014 with an amended notice of hearing to her registered address in accordance with Rule 3(1) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”), and Article 31(15) of the Health and Social Work Professions Order 2001, as amended.

Proceeding in the absence of the Registrant

4. Ms Wilkes on behalf of the Council applied to proceed in the absence of the Registrant on the grounds that the Registrant had voluntarily absented herself and had waived her right to be represented. The Panel had an email dated 12 December 2014 from the Registrant’s solicitors which stated “We have received instructions from our client not to attend the hearing listed for Monday, 15 December 2014. We also understand that our client will not be attending the hearing.” Before the hearing had commenced, the Panel requested the HCPC’s solicitors to contact the Registrant’s solicitors to confirm the contents of that email. Ms Wilkes informed the Panel that the Registrant’s solicitors had given that confirmation and that they had said that the Registrant had been fully advised on the implications of the decision not to attend or be represented. Ms Wilkes also pointed out that the Registrant had provided full and detailed responses to the allegations in her signed witness statements dated 13 October 2014 and 22 November 2014. Ms Wilkes submitted that in these circumstances the public interest required the hearing to proceed.

5. The Panel accepted the advice of the Legal Assessor that it should approach the decision with the utmost care, and took account of the HCPC’s Practice Note “Proceeding in the Absence of the Registrant” August 2012. The Panel was satisfied that all reasonable efforts had been made to serve the Registrant under Rule 11, the Registrant was clearly aware of the hearing date, had been legally represented until last week, and her solicitors’ email of 12 December 2014 and the further information provided by her solicitors to the HCPC’s solicitors on 15 December 2014, showed that she had voluntarily absented herself and waived her right to be represented. The Registrant had provided full written responses to the allegations. The Panel determined that the public interest required the Panel to hear the Allegation expeditiously, it was also in the Registrant’s interests to have the Allegation resolved, and it was therefore appropriate to proceed with the hearing in all the circumstances.

Amendment of Allegation
 
6. Ms Wilkes applied for the amendment of the Allegation notified in the original notice of hearing dated 2 October 2014 to that set out in the amended notice of hearing served on the Registrant dated 20 October 2014. The proposed amendments had arisen upon further evidence having been obtained by the HCPC since the initial framing of the Allegation. Ms Wilkes directed the Panel to the fact that the Registrant had provided her written responses to the Allegation as it was proposed to be amended, and submitted that there would therefore be no prejudice to the Registrant arising from the amendment.
 
7. The Panel accepted the Legal Assessor’s advice that the Panel had an inherent power to allow an amendment of the Allegation where there is no injustice to the Registrant. The Panel accepted that the HCPC had good reason to seek the amendments, and noted that the Registrant was fully aware of the proposed amendments and had responded to them. The Panel determined in these circumstances to allow the amendment of the Allegation sought by the HCPC.
Decision

8. Ms Wilkes proceeded to make her opening submissions and provided the Panel with a written note of her opening. She said that the Panel would hear from the three witnesses from the Trust who had provided written statements that were within the hearing bundles. She submitted that the Registrant had admitted all of the factual allegations in her own written witness statements that were also within the hearing bundles. 

9. The Panel first heard from Ms CB, a registered OT and Therapy Manager in the Trust with overall responsibility for the management of Physiotherapy and Occupational Therapy in the acute setting at Russells Hall Hospital in Dudley. She told the Panel that she knew of the invoking of the Capability Process for the Registrant and, as manager, had kept herself informed of its progress. She did not have day-to-day contact with the Registrant, but she had eventually been responsible for preparing the Trust’s management report in respect of the Capability Process moving to a hearing under Stage Three of that process.  CB told the Panel that, as manager, the clear understanding she had from September 2012 onwards was that the Registrant needed constant daily supervision and, whilst on occasion her competence level would be brought up to the required standard, any such improvements would only be sustained for a few weeks and then regress, despite the continued close supervision.

10. The Panel then heard from Ms LW, a registered OT and Team Leader at the Trust for the Medicine and Rehabilitation Therapy Team. She explained to the Panel that she met with the Registrant regularly whilst the Registrant was on the Medicine Team, and this occurred both formally and informally.  LW was involved with the implementation of the Stage Two Capability Process and its review on 11 May 2012. There were further Stage Two reviews on 28 September and 1 October 2012, at which the Registrant had accepted that her compliance with the improvement plan had been inconsistent.

11. LW explained the continual daily support provided by the Trust in the form of assistance from a Band 6 OT. The Registrant’s duties were reduced on the many days that the Registrant did not feel well enough to work at Band 5 level. LW had to become involved with the supervision, formal and informal, of the Registrant which would normally be done by a Band 6, and she did this daily. This was exceptional because LW normally expected a Band 5 to only need monthly supervision from a Band 6 OT. LW’s last involvement concerned the Registrant’s phased return to work following sickness and a sickness review meeting with the Registrant on 11 January 2013. The Registrant had returned to half days on 3 January 2013, and was being supported clinically by LW at this time on a daily basis.

12. The Panel also heard from Ms SA, a registered OT and the Band 6 OT at the Trust who was the Registrant’s main supervisor on the Acute Medical Ward from March 2012 until February 2013. She told the Panel that she would meet with the Registrant several times each day to support her in triaging patients and in assessing patients. SA also explained that the level of support for the Registrant was at an unusually high level for a Band 5 OT. SA said the relationship with the Registrant was difficult because the Registrant wanted to work more autonomously and would not generally seek support from SA, which required SA to usually be the one to initiate support. Overall, SA felt that the Registrant did not make any sustained improvements during the period that she worked on that Ward. SA said that patient care was at risk because the Registrant was slow in all her tasks and assessments, and often needed prompting to do things correctly.

13. The Legal Assessor advised that the burden of proof rested on the HCPC in respect of each and every fact set out in the allegation, and that the standard of proof required was the civil standard – the balance of probabilities. Each paragraph of the allegation should be considered separately with the Panel weighing up the oral and documentary evidence, and the submissions made, in relation to each. No adverse inference should be made against the Registrant by reason of her non-attendance at the hearing.
 
14. The Panel accepted the advice of the Legal Assessor. The Panel carefully considered all the evidence, the submissions of Ms Wilkes and the written statements of the Registrant. The Panel made no adverse inference by reason of the Registrant’s absence from the hearing, but took into account that it had not had the benefit of hearing from or questioning, the Registrant herself when determining what weight to give to her submitted written evidence.

15. The Panel found the oral evidence given by the three Trust witnesses called by the HCPC to be credible and reliable, and accepted their evidence. The Panel found SA in particular to have given her oral evidence in a balanced, fair, thoughtful and open way. The Panel accordingly gave considerable weight to her evidence in respect of the need to heavily supervise the Registrant across all tasks, often twice daily, and on occasion more than that, to ensure the adequate care of patients. The Panel accepted the oral evidence that this was a case of the Trust having provided an enormous amount of support for the Registrant over more than three years, but that the Registrant had not consistently performed at a Band 5 level, and any improvements were short-lived. 

16. The Panel carefully considered all the documentary evidence that had been presented and was of the view that it was entirely consistent with and supported in all respects the oral evidence of the three witnesses from the Trust. The Panel noted that the Registrant had clearly admitted nearly all of the allegations in her written submissions, and had not denied any of the allegations that had not been clearly admitted.

17.  In all the circumstances the Panel was satisfied on the balance of probabilities that all the allegations in paragraph 1 through to paragraph 8 of the amended Allegation had been proved.

Paragraph 1 – found proved
SA’s oral evidence, her record of daily supervision from August to November 2012, together with the CB’s supervision notes of 22 March 2012 and 26 April 2012 established the high level of supervision required. Admitted by the Registrant in her written statement dated 22 November 2014.

Paragraph 2 – found proved
All aspects of the alleged deficiencies and inconsistent practice within sub-paragraphs (a) through to (d) were covered by SA’s oral evidence, and to a more limited extent by the oral evidence of CB and LW, which the Panel accepted. In addition, the various supervision notes during 2012 corroborated that oral evidence regarding the Registrant’s lack of appropriate clinical reasoning skills in the particulars alleged. Admitted by the Registrant in her written statement dated 22 November 2014.

Paragraph 3 – found proved
LW’s oral evidence and her notes from March and September 2012, and SA’s oral evidence and her supervision notes from March to August 2012, established the Registrant’s failure to consistently complete patient records accurately or in a timely manner. Admitted by the Registrant in her written statement dated 22 November 2014.

Paragraph 4(a) and (b) – found proved
The failure to consistently communicate effectively with colleagues and patients was shown by SA’s oral evidence and her supervision notes from March to October 2012. Admitted by the Registrant in her written statement dated 22 November 2014.

Paragraph 5 – found proved
This was established by SA’s oral evidence and her record of daily supervision from August to November 2012. Admitted by the Registrant in her written statement dated 22 November 2014.

Paragraph 6- found proved
This was clear from SA’s oral evidence and her supervision note of 21 September 2012, and from LW’s oral evidence and her notes of September and October 2012. Admitted by the Registrant in her written statement dated 22 November 2014.

Paragraph 7 – found proved
This was shown by SA’s oral evidence and her supervision note of 3 May 2012, together with the Improvement Schedule dated 11 May 2012 prepared by CB and LW. Admitted by the Registrant in her written statement dated 22 November 2014.

Paragraph 8 – found proved
SA’s oral evidence and her record and notes of supervision from March to November 2012 detail the Registrant’s failure to consistently delegate tasks appropriately. Admitted by the Registrant in her written statement dated 14 October 2013.
Decision on Ground:

18. Ms Wilkes submitted that the proven facts in this case indicated a lack of competence on the part of the Registrant. She submitted that the Registrant had ongoing performance failures which meant that she was not consistently performing at the level of a competent OT. In particular, Ms Wilkes submitted that, on the proven facts, the Registrant did not consistently meet the standards required as set out in paragraphs 1a6, 1a7, 1b1-3, 2a1-4, 2b1-3 and 2b5 of “Standards of proficiency – Occupational therapists” (2007). Further, Ms Wilkes submitted that the Registrant had failed to consistently meet the standards set out in paragraphs 1, 7, 10 and 12 of the HCPC’s publication “Standards of conduct, performance and ethics” (2008 with amendments 2012).

19. The Legal Assessor advised that these were matters for the judgement of the Panel in relation to the proven facts. The ground of the lack of competence would usually require the examination of evidence concerning a representative sample of the Registrant’s work.
 
20. The Panel accepted the Legal Assessor’s advice and carefully considered all the evidence, the oral and written submissions of Ms Wilkes and the written submissions of the Registrant. The Panel noted that the evidence referred to the Registrant’s practice over a significant period.
 
21.  The level of supervision required to maintain safe practice by the Registrant was far beyond that required by a competent and autonomous practitioner. The Registrant only occasionally self-managed her health with regard to her practice, it generally required her supervisor or manager in the Trust to enquire of the Registrant about initiating appropriate measures. This inconsistent approach by the Registrant did not create a safe clinical environment for treating patients.

22. The Panel considered that the proven facts did amount to breaches of the standards required as set out in paragraphs 1a6, 1a7, 1b1-3, 2a1-4, 2b1-3 and 2b5 of “Standards of proficiency – Occupational therapists” (2007) and of paragraphs 1, 7, 10 and 12 of the HCPC’s publication “Standards of conduct, performance and ethics” (2008 with amendments 2012). Accordingly, the Panel determined that the statutory ground of lack of competence was established.

 

 

Decision on Impairment:


23. Ms Wilkes submitted that the Registrant’s fitness to practise was currently impaired by reason of the Registrant’s lack of full insight into her lack of competence demonstrated by the little evidence provided by the Registrant of remediation and safe on-going management of her health as it affected her safe practice. In these circumstances she submitted that a finding of current impairment of fitness to practise was justified both on public protection grounds and also on the wider public interest ground of maintaining public confidence in the profession.
 
24. The Legal Assessor advised that impairment was a matter for the professional judgement of the Panel. The test was in respect of current impairment by reason of the lack of competence. The Panel must look forward bearing in mind all that it knows about the Registrant and her practice, including remediation of the lack of competence, and the risk of repetition of the lack of competence. The Panel might be assisted by considering the HCPC Policy Statement “Fitness to practise: what does it mean” August 2012. The Panel should also bear in mind the contents of the HCPC’s Practice Note “Finding that Fitness to Practise is “Impaired” “ July 2013 which drew attention to both the personal component of the test and the public component.

25. The Panel accepted the advice of the Legal Assessor and carefully considered all the evidence and the submissions of both Ms Wilkes and the Registrant. The Panel noted that the Registrant submitted that her fitness to practise was not currently impaired. She had produced various documentary support for that in the bundle submitted with her written statement of 22 November 2014, including evidence that she had been working as a locum Band 6 OT for various organisations through an agency.

26. The Panel carefully considered all the evidence, including all that provided by the Registrant. The Panel was not satisfied by the Registrant’s documentary evidence that the remedial action so far taken would be sufficient to avoid the risk of repetition of the lack of competence as found in the proven facts in this case. The written references provided were not addressed to the specific areas of lack of competence. The Panel was concerned from the documentation provided by the Registrant that it was not apparent that her recent employers and her referees were aware of these proceedings and of the full circumstances relating to them. The Panel had not had the opportunity of hearing from, and questioning, the Registrant upon her insight and remediation actions undertaken.

In all the circumstances, the Panel was concerned about the risk of repetition because the Panel was not satisfied that, going forward, the Registrant would be able to recognise how and when her health might affect her performance and put in place appropriate measures to protect patients. The Panel therefore determined that the Registrant’s fitness to practise is currently impaired both on public protection grounds, and on the wider public interest
ground of maintaining public confidence in the profession.

Decision on Impairment:

27. Ms Wilkes submitted that the Registrant’s fitness to practise was currently impaired by reason of the Registrant’s lack of full insight into her lack of competence demonstrated by the little evidence provided by the Registrant of remediation and safe on-going management of her health as it affected her safe practice. In these circumstances she submitted that a finding of current impairment of fitness to practise was justified both on public protection grounds and also on the wider public interest ground of maintaining public confidence in the profession.
 
28. The Legal Assessor advised that impairment was a matter for the professional judgement of the Panel. The test was in respect of current impairment by reason of the lack of competence. The Panel must look forward bearing in mind all that it knows about the Registrant and her practice, including remediation of the lack of competence, and the risk of repetition of the lack of competence. The Panel might be assisted by considering the HCPC Policy Statement “Fitness to practise: what does it mean” August 2012. The Panel should also bear in mind the contents of the HCPC’s Practice Note “Finding that Fitness to Practise is “Impaired” “ July 2013 which drew attention to both the personal component of the test and the public component.

29. The Panel accepted the advice of the Legal Assessor and carefully considered all the evidence and the submissions of both Ms Wilkes and the Registrant. The Panel noted that the Registrant submitted that her fitness to practise was not currently impaired. She had produced various documentary support for that in the bundle submitted with her written statement of 22 November 2014, including evidence that she had been working as a locum Band 6 OT for various organisations through an agency.

30. The Panel carefully considered all the evidence, including all that provided by the Registrant. The Panel was not satisfied by the Registrant’s documentary evidence that the remedial action so far taken would be sufficient to avoid the risk of repetition of the lack of competence as found in the proven facts in this case. The written references provided were not addressed to the specific areas of lack of competence. The Panel was concerned from the documentation provided by the Registrant that it was not apparent that her recent employers and her referees were aware of these proceedings and of the full circumstances relating to them. The Panel had not had the opportunity of hearing from, and questioning, the Registrant upon her insight and remediation actions undertaken.

In all the circumstances, the Panel was concerned about the risk of repetition because the Panel was not satisfied that, going forward, the Registrant would be able to recognise how and when her health might affect her performance and put in place appropriate measures to protect patients. The Panel therefore determined that the Registrant’s fitness to practise is currently impaired both on public protection grounds, and on the wider public interest
ground of maintaining public confidence in the profession.
Decision on Sanction:
 
31. Ms Wilkes submitted that sanction was a matter for the Panel having taken account of all the evidence relating to the proven facts, and such issues as the Registrant’s insight into the lack of competence. The Panel should also bear in mind the principle of proportionality, balancing the public interest with the Registrant’s interests.
 
32. The Legal Assessor advised the Panel that sanction was a matter for the professional judgement of the Panel and that sanctions were not intended to be punitive, but to protect the public and the wider public interest. The Panel should apply the HCPC’s “Indicative Sanctions Policy” October 2014. He reminded the Panel that if an order was necessary, the principle of proportionality required the Panel to impose the least sanction that was sufficient to protect the public and the public interest in the circumstances of the case.

33. The Panel accepted the Legal Assessor’s advice and the HCPC’s “Indicative Sanctions Policy” October 2014. It considered all the evidence and the oral submissions of Ms Wilkes, and the written submissions of the Registrant.

34. In accordance with the principle of proportionality the Panel first considered whether any order was required. The Panel felt that there would be no protection for the public or the public interest if it made no order. The Panel considered that the lack of competence in this case was too serious for it to be appropriate to make no order.

35. For the same reasons the Panel determined that a caution or mediation would not be appropriate.

36. The Panel determined that a conditions of practice order for 3 years would provide sufficient protection to the public and the public interest and would be a fair balance of those interests with the Registrant’s right to practise her chosen profession. The period of 3 years was necessary because of the pattern of inconsistency in the Registrant’s competence, and a substantial period of consistently adequate practice needs to be established before the review of the order. The Panel was of the view that the sanction of suspension would be disproportionate and an unnecessarily heavy sanction in all the circumstances.

37. The Registrant will therefore be subject to the following order for a period of 3 years

Order

ORDER: The Registrar is directed to annotate the Register to show that, for a period of 3 years from the date that this Order comes into effect (“the Operative Date”), you, Carolyn J Brown, must comply with the following conditions of practice:

1.  You must inform the following parties that your registration is subject to these conditions:
A. any organisation or person employing or contracting with you to undertake professional work;
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 your application).
2. You must register with and remain under the care of a general practitioner and inform him or her that you are subject to these conditions.
3. You must place yourself and remain under the guidance of an Occupational Therapist registered by the HCPC and supply details of this Occupational Therapist to the HCPC within 3 months of the Operative Date. You must attend upon that Occupational Therapist every 2 weeks for the first 2 months and thereafter every month, follow his/her advice and recommendations, and consider your progress towards achieving the aims of your Personal Development Plan.
4. You must work with this Occupational Therapist to formulate a Personal Development Plan designed to address the deficiencies in the following areas of your practice:
a. Case and caseload management;
b. Clinical reasoning;
c. Maintaining patient records;
d. Application of manual handling techniques;
e. Communication with patients and colleagues; and
f. Task delegation.
5. You must not undertake work in a community setting without first having completed 2 months’ work in other settings.
6. Within 3 months of the Operative Date you must forward a copy of your Personal Development Plan to the HCPC.
7. You must allow this Occupational Therapist to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.
8. You must demonstrate to this Occupational Therapist that your employers’ policies for professional supervision are being applied in practice.
9. You will be responsible for meeting any and all costs associated with complying with these conditions.
10.  Any condition requiring you to provide any information to the HCPC is to be met by you sending the information to the offices of the HCPC, marked for the attention of the Director of Fitness to Practise or Head of Case Management.

 

Notes


Hearing history

History of Hearings for Carolyn J Brown

Date Panel Hearing type Outcomes / Status
05/12/2017 Conduct and Competence Committee Review Hearing Adjourned
15/12/2014 Conduct and Competence Committee Final Hearing Conditions of Practice