Josephine M Noble

: Physiotherapist

: PH34576

: Final Hearing

Date and Time of hearing:10:00 28/04/2015 End: 17:00 28/04/2015

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

: Health Committee
: Conditions of Practice

Allegation

1. By reason of your physical and / or mental health, your fitness to practise as a Physiotherapist is impaired.

Finding

Preliminary Matters:


1. The Panel found that there had been correct service of the proceedings, by Notice dated 16 March 2015.

2. The Panel next considered whether to proceed with the hearing in the absence of the Registrant. The Panel was advised by the Legal Assessor to consider the guidance in the HCPC Practice Note entitled Proceeding in the Absence of the Registrant and followed that advice.

3. Ms Berridge submitted that the hearing should proceed in the absence of the Registrant. She referred to e-mail correspondence with the Registrant’s
representative. This correspondence deals with a proposal for a Consent Order. The last e-mail dated 27 April 2015 confirms that neither she nor the Registrant will attend the hearing tomorrow, but would be available to be contacted by telephone. Ms Berridge submitted that the Registrant has agreed that the hearing should proceed today and that both parties are seeking disposal by consent. The Registrant would not be disadvantaged if the hearing proceeded.

4. The Panel decided to proceed in the absence of the Registrant for the reasons set out by Ms Berridge. The Registrant is aware of the hearing and has agreed that it should proceed today. During the hearing the Registrant’s representative was contacted by telephone to obtain further information about the Registrant’s current employment.

5. Ms Berridge advised the Panel that her presentation to the Panel would not include any details relating to the Registrant’s health. The Panel therefore decided that the whole of the hearing should be heard in public. The Panel applied the advice of the Legal Assessor and the guidance in the HCPC Practice note entitled Conducting Hearings in Private and decided that the parts of its decision which relate to the Registrant’s health should be private in order to protect the Registrant’s private life.

Background:


6. The Registrant was employed by North Tees and Hartlepool NHS Foundation Trust (the Trust) from 1992 until October 2012. The Registrant is a Band 6
Physiotherapist working in the speciality of muscoskeletal physiotherapy. In May 2012 a colleague of the Registrant raised concerns regarding the lack of
content in a set of patient’s notes with FH, the Registrant’s line manager because the notes did not contain sufficient or appropriate information. FH
completed a review of the Registrant’s notes and identified 19 sets of notes which gave cause for concern.

7. A disciplinary investigation was requested by senior management and MW was appointed as Investigating Officer. During the investigation the Registrant
admitted that the allegation was accurate, apologised for her actions, and prepared a statement which made connections between her poor record keeping and her health. A disciplinary hearing was held on 3 October 2012 and the Registrant was dismissed from her employment.

8. The Trust referred the Registrant to the HCPC on 2 November 2012. An Investigating Committee of the HCPC referred the case to a Conduct and
Competence Committee of the HCPC on 7 February 2013.

9. The HCPC engaged Dr Humphries to provide a medical report into the Registrant’s health which was produced on 6 March 2014. The Registrant
provided a supplementary medical report from Dr Hughes dated 16 January2015.

10. On 30 January, on the application of the Registrant, the case was transferred from the Conduct and Competence Committee to a Health Committee,
pursuant to Rule 4(1) of the HCPC (Conduct and Competence Committee)(Procedure) Rules 2003.

11. The medical reports provide information that the Registrant was working for an agency as a Physiotherapist in locum positions, each lasting five to six
weeks. The Registrant is reported as enjoying these positions and being in a much better state of health.

12. The Panel requested updated information on the Registrant’s current position. The Registrant is still employed by an agency and has been on a continuous
locum contract working at Band 6 with Northumbrian Trust since April 2014 working in different locations. This is not a permanent position.

Proposed Consent Order


13. Ms Berridge referred the Panel to the proposed Consent Order. She advised the Panel that the HCPC were satisfied that the proposed Order secured the
appropriate level of public protection. The proposed conditions are for a prolonged period of monitoring and this is appropriate because of the risk of a recurrence in the Registrant’s health problem. She referred the Panel to condition 5 which requires the Registrant to provide a report from her GP every six months and condition 6 which requires the Registrant to provide a quarterly report to the HCPC on her ability to keep records to the required standard.

Decision


14. The Panel received and accepted the advice of the Legal Assessor. The Panel may decide to deal with the case in an expedited manner by approving the proposal set out in the draft Consent Order or it may reject the proposal. The Panel must exercise its own judgment and it must be satisfied that the appropriate level of public protection is being secured. The Panel must also
consider the wider public policy issues including the need to maintain confidence in the profession and the regulatory process. The Panel should not approve the consent order unless they are satisfied that doing so would not be detrimental to the wider public interest. The Legal Assessor also referred the Panel to the guidance in the HCPC Indicative Sanctions Policy.

15. The Panel noted that this is a case where there is no suggestion in the evidence that the issues were not related to the Registrant’s health. Therefore the key issue in the case is the monitoring of the Registrant’s health and the risk of a recurrence of her health problem. If there was a recurrence of the health problem, there would be a risk of a recurrence of similar work
performance issues. Such issues could lead to, among other things, delayed referrals and therefore delayed treatment. The Panel have made a careful assessment of this risk and whether the proposed conditions of practice are sufficient to address the risk.

16. The available evidence indicates that the Registrant has a responsible attitude. The Panel’s assessment is that she has demonstrated insight. During the disciplinary investigation into her conduct she very quickly acknowledged her failings. At that time she did not fully understand the reasons for her failings, but she did believe that they were linked to her health. Her insight has developed further with the benefit of medical treatment. The Registrant has also recognised that there needs to be long term monitoring of her health by her agreement to a proposed three year Conditions of Practice Order.

17. The Panel’s judgment was that any proposed sanction which was less restrictive than a Conditions of Practice Order would not adequately address the risk of a relapse in the Registrant’s symptoms, which both consultants had warned about, and therefore would not adequately protect the public. It would also not be sufficient to maintain confidence in the profession and the
regulatory process.

18. The Panel considered that there were a number of reasons why a Conditions of Practice Order was appropriate in principle. The Registrant is now in a
stable locum position and this means that conditions can be workable and verifiable. There is no attitudinal issue and the Registrant has demonstrated insight. The Panel considered carefully whether there were any reasons why a conditions of practice order might not be appropriate in principle. The Panel considered the point that there was a risk that other people working with the
Registrant might not appreciate that she was unwell. This was so when the Registrant worked at the Trust. This is a risk that is less easy to address by conditions because the Registrant may wish to keep details about her health private and this is understandable. The Panel’s judgment was that this risk was covered, to the extent that it can fairly be covered, by the condition to disclose the terms of the Order to employers and prospective employers. The Panel’s judgment was that conditions of practice were appropriate in this case taking into account the level of the risk and Registrant’s insight.

19. The Panel considered the more serious sanction of a Suspension Order. The Panel’s view was that it would be disproportionate. The Panel noted that the Registrant had been working satisfactorily as a locum for the past two years.

20. The Panel next considered the proposed conditions in the proposed Consent Order in detail. Proposed condition 1 and 2 are straightforward and require
the Registrant to inform her GP of the conditions and to follow the advice and recommendations of her GP. These conditions are not easily verifiable.
However, this is a case involving health, not misconduct and the Panel was content that the Registrant can be trusted to comply with the conditions. The requirement on the Registrant to comply with the advice of her GP reduces the risk because the medical evidence available to the Panel indicates that various treatment options can assist in improving the Registrant’s symptoms.

21. The Panel was content that condition 3 requires the Registrant to allow her GP to exchange information with the HCPC. The Panel decided that the GP was the appropriate person to receive and collate information from any other health practitioners who may be involved. This condition is workable to allow flexibility or changes in the nature of any treatment the Registrant may receive.

22. Under condition 4 the Registrant is required to inform employers and prospective employers or agencies of the conditions. In the Panel’s view this
condition is important in reducing the risk because employers will be aware of the need to monitor the Registrant’s patient notes, as deterioration in her
record keeping has previously been an indicator of emerging health issues.

23. The Panel noted that conditions 3 and 6 would not apply if the Registrant was self-employed. The Panel carefully considered the risks that might arise if the
Registrant were to be self-employed. The Panel’s view was that if the Registrant were self-employed she would have control over her work and would manage her workload. This ability to control her work would mean that there was less pressure on the Registrant and therefore a reduced risk of a relapse in her symptoms. Despite this the Panel considered whether it was
necessary for there to be a condition restricting the Registrant from working in a self-employed capacity. The Panel decided that this would be disproportionate to the residual risk. The Panel also considered the possibility of a restriction on self-employment that the Registrant undergo regular supervision. The Panel decided that this was unnecessary, given their assessment of the risk, and that it would not be a workable condition in private practice.

24. Condition 5 requires the Registrant to furnish the HCPC with 2 medical reports a year which confirm her ability to practise her profession safely and effectively. The Panel’s view is that this is a sufficient and not excessive requirement. The Panel noted that conditions 5 and 6 are verifiable conditions and that if the Registrant is in breach of these conditions the HCPC may apply for a review of the Consent Order. The Panel’s view was that this verification provided an important element of public protection because if the information provided by the Registrant does not satisfy the HCPC, then further action can be taken.

25. The Panel’s view was that condition 6 which requires quarterly reports from the employer is sufficient to provide protection without being too onerous. It strikes an appropriate balance between the protection of the public and the interests of the Registrant. The Panel raised during the hearing whether there was a need for condition 6 to specify that the quarterly report should be from an HCPC registered practitioner. The Panel considered this point in its deliberations. The Panel’s view was that in practice the information needed to comply with this condition would come from an HCPC practitioner who had access to the records. However, the Panel’s view was that it would be sufficient for the information to be collated by another individual, perhaps from the HR department or the agency and supplied to the HCPC by that individual. The Panel decided that there was a need for flexibility to ensure that the condition is workable. Again the Panel were aware that the HCPC will be monitoring compliance with this condition and can take action if the condition is not met. This gave the Panel reassurance that this condition
provides an important element of public protection.

26. Having considered the conditions separately the Panel stepped back and considered the conditions in the round. In the Panel’s view the conditions are proportionate in striking an appropriate balance between the protection of the public and the interests of the Registrant. The Panel emphasises that the responsibility for ensuring that all conditions are met to the satisfaction of the HCPC rests with the Registrant who will need to be proactive in ensuring that all relevant reports are both adequate and timely.

27. The Panel next considered the wider public interest considerations particularly the need to maintain confidence in the profession and the regulatory process.
The Panel has did not identify any reasons why the proposed Consent Order would be detrimental to the public interest. The Panel’s view was that the proposed order was sufficiently restrictive to maintain the necessary confidence. Therefore the Panel decided to approve the proposed Consent Order.

28. The Consent Order will be reviewed before it expires. The Panel considered but did not identify any information in addition to the information referred to in
conditions 5 and 6 which may assist a reviewing Panel.

Order

The Registrar is directed to annotate the register to show that, for a period of 3 years from the date that the order comes into effect (“the operative date”), you, Josephine Noble must comply with the following conditions of practice.
 
1. You must place yourself under the care of your GP, attend upon them as required by them, and follow their advice and recommendations.
 
2. You must inform your GP that you are subject to a conditions of practice order under the HCPC's fitness to practise procedures, and disclose these conditions to them.
 
3. You must allow your GP to exchange information about your health, treatment and compliance with this conditions of practice order with the HCPC.

4. 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 work as a HCPC registered physiotherapist;
 
b)    Any agency you are registered with (at the time of application); and
 
c)    Any prospective employer (at the time of application).
 
5. You must furnish HCPC with 2 medical reports a year which attests to your ability to practise your profession safely and effectively.
 
6. You must furnish HCPC with quarterly reports from your employer which attests to your ability to keep records to the required standard.

Notes

Health Committee Final hearing to take place at the HCPC on Tuesday 28 April 2015.

Hearing history

History of Hearings for Josephine M Noble

Date Panel Hearing type Outcomes / Status
05/01/2018 Health Committee Review Hearing Hearing has not yet been held
01/12/2017 Health Committee Review Hearing Adjourned
15/01/2016 Health Committee Review Hearing Conditions of Practice
28/04/2015 Health Committee Final Hearing Conditions of Practice