1. Did not identify and/or undertake the appropriate assessment based on the service users' presenting condition;
2. Did not conduct assessments in an appropriate manner in that you:
a) Asked inappropriate and/or irrelevant questions;
b) Gave inappropriate and/or incorrect advice;
c) Diagnosed service users' conditions when you should not have;
3. Recommended and implemented adaptations which were not
4. Did not demonstrate a basic level of competency in:
a) Problem solving;
b) Analysis of complex information;
c) Manual handling;
d) Technical knowledge in relation to clinical reasoning;
e) Report writing;
f) Record keeping;
g) Decision making;
5. Did not communicate properly and effectively with service users and/or carers;
6. The matters set out in paragraphs 1 - 5 constitute a lack of competence.
7. By reason of your lack of competence your fitness to practise is impaired.
Service of Notice:
1. The notice of today’s hearing was sent to the Registrant at her address as it appeared in the register on 19 May 2016. The notice contained the date, time and venue of today’s hearing.
2. The Panel accepted the advice of the Legal Assessor. The Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”) require that a notice of hearing must contain the above information and be sent to the registrant at his address not less than 28 days before the date of the hearing starting.
3. Accordingly the Panel is satisfied that notice of today’s hearing has been served in accordance with the rules.
Proceeding in the absence of the Registrant:
4. The Panel then went on to consider whether to proceed in the absence of the Registrant. In doing so, it considered the submission of Ms Brzezina on behalf of the HCPC.
5. Ms Brzezina submitted that the HCPC has taken all reasonable steps to serve the notice on the Registrant. She further submitted that the Registrant has engaged with the process and is aware of today’s proceedings. Ms Brzezina presented the Panel with the letter received, via email, from the Registrant on the 20 June 2016. The Registrant has indicated that she will not be attending today nor would she be represented, and contained within that letter were representations that she wished the Panel to take into consideration. Ms Brzezina also provided the Panel with the File Note of the conversation with the Registrant’s Representative. The Representative was specifically asked if the Registrant wished to make an application for an adjournment of today’s hearing and she was clear that she did not. Further, the Registrant’s implicit expectation is that today’s hearing will proceed in her absence and that the Panel takes into consideration her representations. Ms Brzezina submitted that the Panel can be satisfied that the Registrant’s absence today is voluntary and that she has waived her right to attend and/or to be represented. An adjournment would serve no useful purpose and there was a public interest in this matter being dealt with expeditiously.
6. The Panel accepted the advice of the Legal Assessor. He advised that if the Panel is satisfied that all reasonable efforts have been made to notify the Registrant of the hearing then the Panel has the discretion to proceed in the absence of the Registrant. He reminded the Panel that it should exercise that discretion with the utmost care and caution. He drew the Panel’s attention to the principles to be considered when exercising the discretion to proceed in the absence of the Registrant as outlined in the case of R v Jones  UKHL 5. He further advised that the Panel must consider the nature and circumstances of the Registrant absenting herself, in particular whether the decision was voluntary and, if so, whether the Registrant has waived her right to be present and/or represented; and the general public interest that Substantive Order is reviewed today.
7. The Legal Assessor referred to the case of GMC v Adeogba and Visvardis  EWCA Civ 162. That case reminded the Panel that its primary objective is the protection of the public and of the public interest. In that regard, the case of Adeogba is clear that the “fair, economical, expeditious and efficient disposal of allegations made against medical practitioners is of very real importance”.
8. The Legal Assessor reminded the Panel that the HCPC represents the public interest in relation to standards of health and social care. Registrants should not be permitted deliberately to frustrate the process and thereby incur additional costs and delay. However, as stated Sir Brian Leveson P in his judgment in Adegoba, “where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed”.
9. It is clear from the principles derived from case law that the Panel is required to perform a balancing exercise to ensure that fairness and justice is maintained when deciding whether or not to proceed in a registrant’s absence.
10. The Panel was satisfied that all reasonable efforts had been made by the HCPC to notify the Registrant of today’s hearing. It is also satisfied that the Registrant is aware of today’s hearing.
11. In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPC practice note entitled ‘Proceeding in the Absence of a Registrant’. The Panel weighed its responsibilities for public protection and the expeditious disposal of the case with the Registrant’s right to a fair hearing.
12. In reaching its decision the Panel took into account the following:
• The Registrant has specifically not made an application to adjourn today’s hearing and implicit in her letter received 20 June 2016 is an expectation that proceedings today proceed in her absence;
• The Registrant has submitted written representations which the Panel will take into consideration;
• There is a public interest that this substantive order is reviewed before it expires.
13. The Panel was satisfied that the Registrant had voluntarily absented herself from the hearing and has waived her right to be represented. It determined that it was unlikely that an adjournment would result in the Registrant’s attendance at a later date. The Panel would not draw any adverse inference from her non-attendance. It determined that there would be no injustice to the Registrant with proceeding in her absence. Having weighed the public interest in the expeditious disposal of this case with the Registrant’s own interest, the Panel decided to proceed in the Registrant’s absence.
14. Ms Kelly Coburn qualified as an occupational therapist (“OT”) in 2005. She previously worked at Gwent NHS trust as a band 5 OT in a mental health setting.
15. On 30 June 2008 Ms Cockburn was appointed as a community occupational therapist (“COT”) in the Adaptations and Community Equipment Team of Rhondda Cynon Taff County Borough Council (“the Council”).
16. In her role as a COT Ms Coburn assessed patients in the community to find out whether they needed any equipment or housing adaptations to assist them with their daily living. She also was expected to take the needs of carers into consideration. The patients Ms Coburn worked with had long term health conditions and/or substantial disabilities.
17. Ms Coburn’s role involved assessing and balancing the risks to service users and their carers in a way that promoted the independence of service users and assisted their carers. Ms Coburn played a part in managing the process by which decisions about the allocation of resources were made. Ms Coburn was required to account for her actions through effective and accurate recording of her assessments, decisions, plans and outcomes.
18. Ms Coburn was diagnosed with a health condition whilst she was at university. She did not disclose her diagnosis on her application form for employment with the Council.
19. At the start of her employment Ms Coburn was allocated MW, senior Occupational Therapist, as her supervisor. As her supervisor MW was responsible for authorising formal assessment documentation and clarifying the clinical reasoning it contained where appropriate. In the first three months of Ms Coburn’s employment MW became aware of issues concerning Ms Coburn’s report writing. These were primarily to do with the structure, spelling and grammar of Ms Coburn’s reports.
20. In a supervision session in October 2008 Ms Coburn disclosed her diagnosis of a health condition to MW. MW shared that information with the Team Manager, Mrs HT. Ms Coburn was referred to the Council’s Occupational Health department who confirmed a diagnosis of a health condition and referred her to the Workstep programme on 21 January 2009. The Workstep programme was designed to offer support to qualifying employees in the workplace. A number of recommendations were made to assist Ms Coburn at that time including the provision of a Dictaphone and read back software.
21. Ms Coburn undertook a range of training during the course of her employment with the Council. In November 2008 she completed modules C, D and F of the “All Wales Manual Handling Passport Training”. The passport training scheme was a national scheme designed to ensure consistency in manual handling training within the NHS in Wales. Module C of the course concerned ‘sitting, standing and walking’; module D ‘bed mobility’ and module F ‘hoisting’.
22. In January 2009 Ms Coburn also received manual handling training delivered by the Council’s own manual handling team.
23. Attempts had been made to introduce Ms Coburn to the manual handling elements of the OT role. She had undertaken a number of manual handling assessments. Ms Coburn made a number of high risk errors whilst on manual handling visits with her supervisor MW and with Mrs TM, a senior OT who oversaw manual handling practice within the team. As a result of these errors from 26 July 2009 Ms Coburn was not permitted to undertake the manual handling elements of her role.
24. In April 2009 concerns were raised by the Council’s Private Sector Housing Unit about the accuracy of Ms Coburn’s recommendations for the installation of stair lifts. Further concerns were raised in June 2009 which included concerns that Ms Coburn often did not complete the necessary functional assessments on visits but nevertheless proceeded to make recommendations for service users.
25. As a result of these concerns it was agreed that MW would check Ms Coburn’s written work before it was uploaded to patient files. Ms Coburn was encouraged to use a camera to assist in her analysis of adaptation requests; provided with a typed summary of the Council’s processes which she could refer to during her assessment visits and advised to contact the team’s advice line if issues arose while she was away from the office.
26. Ms Coburn commenced a period of maternity leave on 11 September 2009. During her absence her cases were allocated to other OTs and further concerns came to light. The Council was required to resolve eight cases where ineffective adaptations had been made on Ms Coburn’s recommendation, many of which needed to be removed. As a result of these matters HT resolved that Ms Coburn should be more closely supervised on her return to work from maternity leave.
27. Ms Coburn returned to work on 28 June 2010. She attended a return to work meeting where she was allocated a new supervisor, Ms JJ and was advised of the concerns that had arisen in her absence. At the return to work meeting Ms Coburn agreed that the key areas of her development needs were: making clinical decisions, critical evaluation of information and assessment. It was agreed that Ms Coburn would benefit from revisiting the COT process from the beginning building up to the full range of OT duties and responsibilities, including manual handling, in the long term.
28. Ms Coburn was willing to participate in the development work. She acknowledged the importance of becoming a fully rounded OT and remained willing and enthusiastic in working towards achieving these goals.
29. Ms Coburn was allocated OT assessments in respect of minor works, known as Community Care Worker Assessments, when she first returned to work. These assessments could be undertaken by staff that were not qualified OTs and generally involved less complex cases with minor aids and adaptation referrals.
30. By October 2010 Ms Coburn was working on the less complex OT assessments such as Adapted Housing Assessments. These required full functional assessments and recommendations in respect of future housing having regard to patient needs. All of the cases allocated to Ms Coburn were carefully screened to ensure that she could practise elements of her role without placing patients at undue risk. Ms Coburn continued to work on these less complex cases until she ceased to work as a COT and was redeployed in July 2012.
31. Between June and December 2010 further concerns were raised about Ms Coburn’s practice following a number of observed visits known as L20 observations. The Department’s policy required all OTs to undertake two such visits each year where a senior OT would observe them. Issues highlighted on these visits included a lack of knowledge in relation to medical conditions and OT skills, poor listening and interviewing skills and the production of subjective rather than factual functional assessment reports and documents.
32. In December 2010 Ms Coburn and HT held a number of meetings to discuss her work. It was agreed that Ms Coburn could type and edit her assessments before submitting them to her seniors. It was also agreed that observed visits would continue and seniors would intervene only where it was essential to do so.
33. On 2 February 2011 Ms Coburn was referred to occupational health for an urgent assessment of her abilities to undertake the role of COT. Ms Coburn was reviewed by occupational health (“OH”) on 15 February 2011 and referred for a thorough psychological assessment “to try and work out what her capabilities are and what adaptations would be required to keep her in the workplace.”
34. The assessment took place on 15 June 2011 and a report was produced dated 22 June 2011.
35. Following on from this report Ms Coburn was assessed by ‘Access to Work’ on 4 July 2011 and further recommendations as to equipment which might assist her were made.
36. On 19 July 2011 the Council received further OH advice which indicated that on balance some of the performance issues identified in relation to Ms Coburn were due to her underlying medical condition and supported the provision of various pieces of IT equipment to Ms Coburn. By 4 November 2011 the adaptations recommended in the Access to Work assessment had been provided to her.
37. TM attended observational visits with Ms Coburn on 16 and 21 December 2011 and on 11 January 2012. MW attended observational visits with Ms Coburn on 12, 14 and 15 December 2011. As a result of the observations made Ms Coburn was asked to undertake the even less complex work of disabled parking bay assessments.
38. Ms Coburn was on sick leave between 17 January 2012 and 8 February 2012. HT invited Ms Coburn to a meeting in March 2012 under the Council’s Capability procedure to discuss issues relating to her work performance. Her letter identified the issues which she wished to discuss at the meeting. They were:
• Gathering and recording factual assessment information;
• Clinical judgment/rationale and risk analysis to support recommendations;
• Conduct of the assessment; and
• Imparting accurate information to the client in respect of the grant/adaptation process.
39. HT conducted an informal capability interview with Ms Coburn and her trade union representative on 8 March 2012, an action plan was formulated and a support contract agreed on 14 March and both were put in place with effect from 21 March 2012. It was agreed that Ms Coburn would seek to demonstrate sound clinical reasoning and identify, justify and rationalise clinical decisions made in relation to client needs during the course of observed visits, two way reviews, discussions of recommendations and rationale on assessment reports. There would be constructive critique of the visits, outcomes and reflections. It was also agreed that supervisors would offer support by reviewing referral documents and assessment outcomes before Ms Coburn signed off her reports.
40. TM undertook further observational visits with Ms Coburn on 27 March and 30 April 2012. MW also undertook further observational visits with Ms Coburn on 22 March and 27 April 2012.
41. The action plan was reviewed at a meeting on 30 April 2012. At the meeting HT confirmed that Ms Coburn had not yet met an acceptable competency level in relation to the areas of concern. She told Ms Coburn that she could not consider any request to allocate her more complex cases because of a risk to clients.
42. On 2 May 2012 the informal capability process was suspended at Ms Coburn’s request so that she could consider redeployment. On 15 May 2012 Ms Coburn met with HT, accompanied by her trade union representative and confirmed that she wished to be redeployed. In that meeting Ms Coburn accepted that she was unable to carry out her full role as an OT and confirmed that she had not worked across the full range of OT duties since 2011.
43. On 12 July 2012 Ms Coburn accepted a post as a support worker in the Council’s mental health team. She subsequently brought employment tribunal proceedings against her employer and left her employment with the Council under the terms of an agreed settlement of her claims. She has not worked as an OT since 2012 and is now running a child minding business.
44. On 3 May 2013 the Council’s OT department referred Ms Coburn to the HCPC.
45. The Panel at the Final Hearing found that the particulars of the allegation found proved amounted to a lack of competence, and that the Registrant’s fitness to practice was impaired by reason of her lack of competence. On 1 July 2015, that Panel determined that the appropriate and just sanction was a Suspension Order for a period of 12 months.
46. Ms Brzezina, on behalf of the HCPC outlined the background of this case to the Panel. She submitted that the Registrant has not yet demonstrated full insight into the shortcomings in her practice, nor presented any evidence of any remedial action taken by her to address such shortcomings. Ms Brzezina presented the letter from the Registrant, which contains the latest representations from the Registrant, to the Panel. Ms Brzezina submitted that the contents of that letter are indicative of the lack of full insight on the part of the Registrant. She submitted that the Registrant continues to blame others for her lack of competence and does not appear to accept responsibility for the shortcomings in her practice found proved by the Panel. Ms Brzezina also pointed out that there is no reference to any remedial action taken by the Registrant. She submitted that the Panel cannot be satisfied that the Registrant’s fitness to practise is no longer impaired.
47. The Panel accepted the advice of the Legal Assessor. The Legal Assessor reminded the Panel that its purpose today was to conduct a comprehensive appraisal of the Registrant to determine if she is fit to return to unrestricted practice, and, if not, what the appropriate sanction should be at this point in time. Its role is not to conduct a rehearing of the allegations nor is it to go behind the previous findings. He advised that in carrying out this assessment, the Panel must exercise its own independent judgment.
48. The Legal Assessor advised that the Panel might find the questions formulated in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin) of some assistance, albeit slightly modified for these proceedings:
‘Does the evidence before the Panel today show that the Registrant’s fitness to practice remains impaired in the sense that she:
a) is liable in the future to act so as to put a service user at unwarranted risk of harm; and/or
b) is liable in the future to bring the Occupational Therapist profession into disrepute; and/or
c) is liable in the future to breach one of the fundamental tenets of the profession;
49. The Legal Assessor advised the Panel that if it determined that the Registrant’s fitness to practise remained impaired then it must go on to consider whether any sanction should be imposed in order to protect the public and/or is otherwise in the public interest. He advised the Panel that it should bear in mind the principle of fairness and proportionality and have regard to the Indicative Sanctions Policy document issued by the HCPC. He reminded the Panel that any order that it makes under Article 30 should not be punitive in purpose, and that it should be the least restrictive order that would suffice to protect the public and/or is otherwise in the public interest. He reminded the Panel that the most severe sanction open to the Panel today is a Suspension Order.
50. The Panel first considered whether the Registrant’s fitness to practise is currently impaired. The Panel took into consideration all the documentation before it, and the submissions of Ms Brzezina. In particular it noted the following factors:
a) This is a case of Lack of Competence and hence this is a case where remedial action on the part of the Registrant is of greater importance.
b) The lack of evidence of any remedial action on the part of the Registrant since the imposition of the Suspension Order.
51. There is no evidence before the Panel today that could satisfy it that the Registrant’s fitness to practice was no longer impaired. Furthermore, the letter from the Registrant demonstrates only limited insight on the part of the Registrant as to the shortcomings in her practice. She does not appear to realise that she has the responsibility for her own practice, and that the impact that others may have on her abilities cannot be a complete excuse. She has not demonstrated what she would do if faced with a similar situation in the future. There is no evidence to suggest that there had been any significant change in the circumstance of the case since the substantive hearing.
52. The risks identified at the Final Hearing in relation to service user safety and the wider public interest remains extant. There is no evidence that the Registrant has deepened her insight or taken steps to address the inadequacies in her professional performance.
53. In the light of all the above, the Panel determines that the Registrant’s fitness to practise remains impaired.
54. The Panel then went on to consider what, if any, the appropriate and proportionate sanction should be. It had regard to the Indicative Sanctions Policy issued by the HCPC and considered the available sanctions in order of severity, starting with the least restrictive. In the light of the lack of remediation and insight on the part of the Registrant, the Panel determined that it was not appropriate to take no further action.
55. The Panel also determined that it not appropriate for conditions of practice to be imposed. In her letter, the Registrant has indicated that she is currently working as a self-employed child-minder, and that presently she intends to continue working the career of child-minding. She indicates that she may want to continue pursuing a career in Occupational Therapy. The Panel did not consider it possible to formulate any workable conditions that would be proportionate without amounting to a suspension by another name.
56. The Panel considered a further period of suspension which would be adequate to provide protection for Service Users, as well as giving the Registrant a further opportunity to demonstrate appropriate insight and to consider whether or not she might wish to return to the Occupational Therapy profession in the future. It took into account that the Registrant’s practice has been suspended for almost a year, and her representations made in her letter. She has indicated that she may in the future seek to return to practice as an Occupational Therapist. She states that she appreciates that if this was the case, she would have to obtain the necessary training/qualifications, along with the relevant placement experience in order to regain her fitness to practice. In the light of her representations and the fact that this is the first review, the Panel determined that a further period of suspension would be appropriate as it would allow the Registrant an opportunity to demonstrate full insight into the shortcomings in her practice, and also to demonstrate her commitment to remaining in the profession by remediating the shortcomings in her practice.
57. In the light of the above, the Panel determined that the appropriate and proportionate sanction is to make a further Suspension Order for a period of 12 months.
58. This Suspension Order will be reviewed prior to its expiry. The Panel conducting that review may be assisted by the following:
• The Registrant’s attendance at the hearing
• Evidence of insight into her inadequate professional performance, and the associated risks for service users.
• A clear statement by the Registrant concerning her intent to practicing in the future as an OT.
• Evidence of training and other activities undertaken to maintain and improve her professional skills as an OT.
• Any other evidence that the Registrant considers will assist the reviewing Panel.
This order will be reviewed again before its expiry on 29 July 2017.