Tobias W Barnes
During the course of your employment as an Occupational Therapist at Kent and Medway NHS and Social Care Partnership:
1. Between 27 October 2014 and 5 January you did not ensure that required actions were undertaken in relation to service users on your case load in that you:
a. Did not undertake and/or record a core assessment in relation to Service User B;
b. Did not undertake and/or record a care plan in relation to Service User D;
c. On or around 20 November 2014 you did not update RiO in relation to Service User C.
2. You did not manage your caseload effectively and/or did not communicate appropriately with clients in that:
a. In or around November 2014 you had a heated conversation with Service User A;
b. On or around 18 November 2014 you did not attend a scheduled appointment with Service User B;
c. On or around 3 December 2014 you did not make contact with Service User E in order to undertake an occupational therapy assessment.
3. You did not attend a scheduled appointment with Service User F in or around November 2014 at her GP Practice.
4. Between 27 October and 5 January 2015 you did not provide adequate supervision to a junior member of staff in that you did not arrange supervision meetings.
5. Between 27 October 2014 and 5 January 2015 you did not keep up to date with necessary training, in that you did not complete manual handling object training.
6. You fell asleep at work:
a. On 14 November 2014 during a team meeting; and
b. On 20 November 2014 at your desk.
7. Your actions described in paragraphs 1-6 constitute misconduct and/or lack of competence.
8. By reason of your misconduct and/or lack of competence, your fitness to practise is impaired.
1. The HCPC was represented by Miss Eales, a Barrister, from Kingsley Napley Solicitors.
2. The Registrant did not attend and was not represented.
Notice & jurisdiction
3. The Panel was satisfied that proper notification of this hearing had been given in accordance with the Rules, a notice setting out the date, time and venue of this hearing had been sent to the Registrant’s registered address on 2 September 2016. Accordingly, the Panel had jurisdiction to consider the case.
Proceeding in absence
4. The HCPC made an application to proceed in the Registrant’s absence and the Panel took advice from the Legal Assessor.
5. The Panel was aware that Rule 11 of the Conduct and Competence Committee Procedure Rules 2003 confers discretion to proceed in a Registrant’s absence and that the principles derived from case law such as R v Jones and Tate v Royal College of Veterinary Surgeons confirm that the discretion is not absolute, it is severely constrained and must be exercised with utmost care and caution. The Panel had regard to the Practice Note on Proceeding in Absence.
6. The Panel applied the above principles and exercised discretion in favour of proceeding in the Registrant’s absence.
7. In the Panel’s view all reasonable steps had been taken to notify the Registrant of this hearing. Sending of the Hearing Notice to the registered address, without any information to suggest that the address was incorrect, was sufficient to satisfy the all reasonable steps requirement. In any event further steps had been taken as a copy of the Hearing Notice had been sent to the Registrant by email on the same date.
8. The Panel considered the constrained discretion with reference to the circumstances of the case.
9. The case was scheduled for a Final Hearing on 22 June 2016 when the Registrant failed to attend. The Panel on that occasion was not satisfied that it was appropriate and fair to proceed in the Registrant’s absence and the case was adjourned. There was confidence at the time that the Registrant may attend a future hearing.
10. The Registrant has failed to comply with the Case Management Directions issued by the previous Panel. In particular he has failed to confirm, by 31 July 2016 or at all, that he intends to participate in a Final Hearing either through personal attendance, by way of a telephone link or by submitting written representations. He has also failed to submit any evidence upon which he intends to rely, including his own witness statement, 28 days in advance of this Final Hearing or at all.
11. The Registrant has failed to attend this hearing and there has been no communication from him requesting an adjournment.
12. In these circumstances the Panel concluded that the Registrant’s absence was deliberate and voluntary, and that he had waived the right to be present.
13. The Panel considered that it was unlikely that the Registrant would attend in the future if the case were to be adjourned. The case was adjourned on the last occasion to give the Registrant an opportunity to attend and he has failed to do so. The Panel has no reason to believe that the situation would be any different at a future hearing date.
14. The Panel recognised that the Registrant would be at a disadvantage if the case proceeded in his absence because he would not be able to challenge witnesses, present his own evidence or make oral representations. However, his position is partly ascertainable from the interviews during the internal investigation, and he was given the opportunity to make written representations to the Panel if he so wished. Any disputed issues could be addressed with the witnesses by the Panel and the Legal Assessor.
15. The case involves allegations dating back to late 2014 and early 2015. Further undue delay would have a bearing on the recollection of witnesses which was avoidable by proceeding. Two witnesses were scheduled to give live evidence, now for the second time, who would have to be unnecessarily inconvenienced if the case was adjourned. Three days of hearing time had been allotted to the case and would be unnecessarily lost through an adjournment. In the Panel’s view, these are all relevant factors to take into consideration when balancing the interests of the Registrant with the public interest.
16. It was both in the public and the Registrant’s own interest for the case to be dealt with expeditiously by proceeding.
17. The Panel concluded that the disadvantage to the Registrant was outweighed by significant reasons to proceed in his absence. The Panel determined it was fair and proportionate to proceed.
Application to amend
18. The HCPC made an application to amend the Particulars. The Panel received advice from the Legal Assessor. The Panel invited further submissions in relation to Particular 2(a) and the HCPC amended the application.
19. The Panel granted the application being satisfied that the amendments were non-material. The Registrant had been notified of the HCPC’s intention to pursue this application and there was no response from him. The Panel was satisfied that there was no prejudice to the Registrant by granting the application.
20. In respect of the stem to Particular 1, the amended version correctly described the issues in the sub-Particulars and did not enlarge the allegation.
21. In respect of Particular 1(a), the amendments reduced the allegation from two to one Core Assessment and specified Service User B. The addition of not undertaking and/or recording the Core Assessment was not materially different to it being missing, the reasonable inference being that it was missing due to not being done or recorded.
22. In respect of Particular 1(b), the amendment specified SUD. The addition of not undertaking and/or recording a Care Plan was not materially different to it being missing. The reasonable inference was that it was missing due to either not being done or recorded.
23. In respect of Particular 1(c), the amendment did not alter the underlying allegation.
24. In respect of Particular 2(a) the addition of a date resulted in better particularisation. The unmodified application sought to substitute “confrontational” with “inappropriate”. In the Panel’s view this would have resulted in a lack of precision, did not better reflect the evidence and potentially widened the scope of the allegation. However, the modified application to substitute “confrontational” with “heated conversation” resulted in precision, appears to better reflect the evidence and did not widen the scope of the allegation.
25. In respect of Particular 2(b) the amendment from failing to arrange an appointment to not attending an appointment had the same net effect as the Service user did not benefit from an appointment. The amendment did not result in the allegation being widened in scope or seriousness.
26. In respect of Particulars 2(c) and 2(d), the allegations faced by the Registrant were reduced. The Panel was satisfied that there was insufficient evidence to support these sub-Particulars and as such there was no under prosecution.
27. In respect of Particular 2(c) the amendment clarified the purpose of the appointment and referred to the correct date.
28. In respect of Particular 3 the amendment resulted in the reduction from two to one service user and provided the specific date and venue for the appointment in question.
29. In respect of Particular 4 the amendment resulted in the reduction of the allegation to a junior member of staff rather than being a reference to junior staff in general terms, and thereby brought better specificity to it.
Application to hold part of the hearing in private
30. The Panel granted the HCPC’s application for parts of the hearing to be held in private when references were made to the Registrant’s health.
31. The Panel took account of the general obligation for hearings to be held in public to respect the principle of open justice and transparency. The Panel also took account of the fact that there were references in the written material to the Registrant’s health. In the Panel’s view there would have been a disproportionate interference with the Registrant’s right to a private life if details and the effects of his health were made public. In light of the references to health being limited it was practical to hold parts of the hearing in private. The Panel was mindful that it remained open to it to issue a public determination without frustrating the reasons for a private hearing. With all this in mind the Panel decided that it was appropriate and proportionate to hold parts of the hearing in private.
32. The Registrant was a band 6 Occupational Therapist in the Ashford Community Mental Health Team for Older People (the Team) at Kent and Medway NHS and Social Care Partnership Trust (“the Trust”) at the time to which the allegation relates. The Registrant was subject to a performance management process which arose due to a number of concerns regarding the Registrant’s practice. The process was conducted by DM, Senior Practitioner Occupational Therapist.
33. Miss Eales opened and summarised the HCPC case, relying on a written Opening Note. Miss Eales referred to the evidence in support of the allegations.
34. The Panel heard evidence from the following witnesses for the HCPC: DM (Senior Practitioner Occupational Therapist and the Registrants Line Manager) and KL (Support Worker).
35. The Panel asked questions of the witnesses by way of clarification. The Panel kept in mind the need to address the issues raised by the Registrant within the documentation. In this way the Panel was aware of the evidence on those points.
36. The Legal Assessor had an opportunity to address any points with the witnesses but no additional questions were identified.
37. The Panel heard closing submissions on behalf of the HCPC and received advice from the Legal Assessor.
Decision on facts
38. The Panel was aware that the burden of proving the facts was on the HCPC, that the Registrant did not have to prove anything and that the case was only to be found proved if the Panel was satisfied on a balance of probabilities.
39. The Registrant’s absence did not alter the burden or standard of proof.
40. The Panel took account of all the oral and written evidence, the documents in the case and the submissions.
41. The Panel accepted the evidence of both the HCPC witnesses as their evidence was credible, balanced and persuasive. The Panel found them to be reliable.
42. DM was the Registrant’s Line Manager. She had conducted a proportionate investigation and produced relevant documentary evidence including service user records. DM’s evidence was measured, succinct, and professional. DM was clear when she did not know the answer to a question and did not embellish. DM was clear about the shortcomings in the Registrant’s practise but fairly highlighted positives where they existed.
43. KL’s evidence was clear. She had a good recollection of events. KL was balanced and not over critical. There was no exaggeration or evidence of any hostility towards the Registrant. KL had worked with the Registrant for 13 out of the 16 months of her employment with the Trust. KL was a friend of the Registrant at the time and felt that he was “very knowledgeable” about his work. Overall, the Panel felt that KL’s evidence was honest, straightforward, convincing, objective, fair and balanced.
44. The Panel took into account the inherent limitation associated with hearsay evidence from those who had not provided statements or given evidence. This included SUA. In the Panel’s view, this evidence was not necessary to prove the allegation that there was a heated conversation as KL gave direct evidence of this.
45. The Panel found no evidence that the Registrant was unsupported. It was clear that DM was available to the Registrant on a formal and informal basis which was in addition to the performance management meetings. The Panel found no evidence that the Registrant’s health may explain matters. The Panel noted that the Registrant had an extended period off work from February to September 2014, and ongoing sick leave which DM stated had an impact on the time scales for achieving his set objectives. There is evidence from the Occupational Health Service which showed that the Registrant was fit to return to work. The allegations relate to the time after he returned to work. The Registrant had a significantly restricted caseload of five compared to colleagues at the same level who had caseloads of around twenty. The Panel was thus satisfied that the Registrant’s caseload was manageable.
46. Accordingly the facts were proved on the strength of the HCPC evidence.
47. Particular 1(a) proved. The Registrant did not undertake or record a core assessment in respect of SUB. The first entry by the Registrant on the RiO System in respect of SUB was on 11 November 2014. The Panel inferred that this was the date on which the case was allocated to the Registrant. The core assessment records should have been completed on RiO within 28 days of the assessment. Checks on 17 August 2015 showed that no core assessment had been recorded. This was nearly nine months after the case had been allocated. In the absence of a recording or any evidence that the core assessment had been undertaken the Panel came to the inevitable conclusion that it had not been completed.
48. Particular 1(b) proved. The Registrant did not formulate or record a care plan for SUD. The Panel considered the RiO entries and found that there was no care plan uploaded on RiO for SUD. The Panel considered SUD’s care records and found that the care plan form was blank. This led the Panel to the inevitable conclusion that the care plan was not formulated and it follows that it could not have been recorded.
49. Particular 1(c) proved. The Panel accepted DM’s evidence that the whiteboard showed that the Registrant was visiting SUC on 20 November 2014. The Panel considered the records for SUC and found that there is no record of the visit. In accordance with the Standard Operating Procedures this should have been uploaded within 24 hours of the visit. DM was clear that there is no record of the visit and the documentary evidence supported this.
50. Particular 2(a) proved. The Registrant did speak to SUA in a heated conversation. There was clear and credible evidence from KL who was present at the meeting. SUA was aged 77 at the time and her cognitive functioning was impaired. The Registrant was newly assigned as her care-coordinator. KL had been working with SUA for around five months and attended at a meeting when the Registrant was going to introduce himself. KL was clear that the conversation was heated. She felt that SUA may have misunderstood what the Registrant was saying and was getting irritated. At the same time the Registrant, who she stated was very knowledgeable about matters, was “not backing off and just continuing”. KL felt the need to intervene to bring the conversation to an end. SUA refused to work with the Registrant and was allocated a different care-coordinator. In supervision the Registrant admitted that he had confronted SUA and he was worried about his feelings of negativity about her.
51. Particular 2(b) proved. The Registrant did not attend a scheduled appointment with SUB on 18 November 2014. There was clear documentary evidence that the visit had been scheduled a week earlier for the purpose of carrying out an Activities of Daily Living Assessment. On 18 November 2014 it came to DM’s attention that the Registrant had not attended the appointment. She found the Registrant in the office kitchen area. The Registrant stated that he was not at the arranged appointment because another service user’s family member had visited the office and been irate with him. DM formed the view that the Registrant was blasé about missing the appointment and was concerned that he had not made any efforts or arrangements to contact Service User B to inform them that he would not be attending the arranged appointment. The records for SUB stated that due to a delay earlier in the afternoon the Registrant’s schedule overran and he was unable to attend as previously arranged.
52. Particular 2(c) proved. The Registrant did not, on or around 3 December 2014, contact SUE to undertake an occupational therapy assessment. The records for SUE showed that on 3 December 2014 SUE was referred by a doctor for the assessment. The records also showed that on 2 January 2015 SUE’s daughter called to say that they had not heard from the Registrant.
53. Particular 3 proved. The Registrant did not attend a scheduled appointment with SUF at her GP’s practice in November 2014. SUF’s records for 24 November 2014 showed that she and the Registrant had arranged a meeting at her GP’s practice because she did not want to meet the Registrant in her home. There was hearsay evidence that SUF had contacted another Senior Practitioner to say that the Registrant had attended at her house rather than at the GP’s practice. The Panel attached sufficient weight to this as there was no dispute that the Registrant visited SUF’s home on that occasion. There is documentary evidence that the Registrant admitted that he had missed the appointment and he apologised for missing the appointment at the GP’s practice.
54. Particular 4 proved. The Registrant did not provide adequate supervision to a junior member of staff. There was clear evidence that supervision sessions should have been held monthly. This was set out in the Registrant’s performance management plan. From 27 October 2014 to 5 January 2015 no supervision meetings were arranged. The Panel was satisfied that this meant that formal supervision meetings for the junior member of staff did not occur.
55. Particular 5 proved. The Registrant did not keep up to date with necessary training as he did not complete manual handling object training. The Registrant returned to work on 27 October 2014 after an extended period of sick leave. He was obliged to book and undertake this mandatory training. The Registrant’s training record confirmed that the requirement to carry out manual handling object training was not met. The performance management plan confirmed that the clear training objective had not been achieved.
56. Particular 6(a) proved. The Registrant did fall asleep at work on 14 November 2014 during a team meeting. DM was present at the meeting and was an eye witness. She noticed that the Registrant’s eyes were closed, his head jolted and his papers fell. She had asked the Registrant to leave the meeting. They discussed the matter when the Registrant stated that he was just resting his eyes. The Panel did not accept this to be so. The Panel preferred DM’s clear evidence that the Registrant had in fact fallen asleep.
57. Particular 6(b) proved. The Registrant fell asleep at work on 20 November 2014 at his desk. This was witnessed by PC, from whom there is no statement nor was she called to give evidence. PC reported what she had seen to DM. There was a contemporaneous note taken by DM which was before the Panel. The issue was documented in the performance management plan and in supervision records. The Panel felt able to attach sufficient weight to the hearsay evidence from PC in these circumstances. The Panel used its findings in relation to Particular 6(a) and noted that this was the second occasion on which the Registrant had fallen asleep at work and that both instances were very close in time.
Decision on grounds
58. In the Panel’s assessment the proved facts did not disclose a lack of competence. The Registrant was an experienced Occupational Therapist having been in practise for around 14 years before these incidents occurred. He was employed in a Band 6 level post. This progression from a Band 5 to a Band 6 would have necessitated the need to carry out core assessments, care plans, updating RiO records, managing caseloads, communicating with service users and other professionals and attending mandatory training. The Panel had no evidence that he did not know how to discharge these functions with competence. The Panel did not have before it a fair or representative sample of the Registrant’s work to conclude that he lacked competence.
59. The Panel took into account the guidance from Roylance v General Medical Council  AC 311.
60. The Panel was satisfied that all the proven Particulars amount to misconduct. The Registrant’s actions fell far below the standards that can be expected of a registered Occupational Therapist employed at a Band 6 level.
61. There were departures from fundamental tenets of the profession including the need to act in the best interests of Service Users; the need to communicate properly and effectively with service users; and; to maintain accurate records.
62. The Registrant was obliged to carry out assessments in order to identify and manage the care needs of vulnerable service users. His failure to carry out a core assessment, care plan and an occupational therapy assessment meant that the three vulnerable service users to whom those assessments related were put at the risk of serious harm. There were serious departures from the applicable timescales that are in place to prevent service users remaining unassessed for an unacceptable length of time. For example the core assessment had not been done nine months after the case was allocated to the Registrant.
63. The Registrant failed to communicate effectively with SUA when he was communicating with her in a heated conversation. The registrant was obliged to appreciate that SUA was vulnerable and that her cognitive functioning may have been impaired. He was also obliged to empathise instead of leaving SUA with the impression that he was being critical about the lack of progress prior to his involvement. It should not have required the intervention of a junior non-qualified colleague to defuse the situation. SUA was not willing to further work with the Registrant which shows her lack of confidence in him.
64. The Registrant failed to effectively manage a restricted caseload of five compared to 20 for his colleagues working at the same level.
65. The Registrant’s conduct meant that a junior member of staff did not have any supervision meetings for at least two months. The purpose of such meetings is to ensure that there were no issues to resolve which is ultimately in the best interests of service users.
66. The failure to carry out mandatory training has the potential to be serious. The purpose of such training was to ensure that the Registrant would safely handle objects which is part of the work of Occupational Therapists.
67. It is also serious that the Registrant fell asleep at work on two occasions. He was obliged to pay attention during a team meeting and could have missed important information which could have been to the detriment of service users.
68. In the Panel’s view the totality of the conduct fell far below what can be accepted as proper.
69. The Registrant breached the following HCPC Standards of Conduct Performance and Ethics:
• Standard 1 – You must act in the best interests of Service Users.
• Standard 7– You must communicate effectively.
• Standard 10 – You must keep accurate records.
70. In all the circumstances the Panel’s assessment was that the proved facts amounted to misconduct.
Decision on impairment
71. In considering this aspect the Panel has taken into account that the purpose of these procedures is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise.
72. The Panel took into account the HCPC Practice Note on Finding that Fitness to Practise is “Impaired”. The Panel took account of the guidance in General Medical Council v Meadow  EDCA Civ 1319 and Cohen v General Medical Council  EWHC 581 (Admin).
73. The Registrant’s decision not to attend this hearing or to provide any evidence has meant that the Panel is left with that which was said during the Trust processes and there is no update.
74. In the Panel’s assessment the Registrant’s current fitness to practise is impaired.
75. The established misconduct is serious and involved a number of vulnerable service users who were put at risk of serious harm. The conduct was repeated, it continued over a number of months. There was a high level of support and significantly reduced caseload. Fundamental standards were breached.
76. There is no evidence that the Registrant has taken responsibility for his conduct. There is no evidence of regret or remorse.
77. In terms of insight, the Registrant has not provided any evidence as to why his conduct fell so far below accepted standards during the period in question. He was working in circumstances in which he had a high level of support and with a restricted caseload. Until the Registrant is able to identify why this had occurred, he cannot start the process of reflecting on how such errors can be avoided in the future. He has not provided any such evidence.
78. In the Panel’s view there is no evidence of remorse for the experience of the Service Users or his colleagues who were all affected by his conduct.
79. The misconduct is remediable but there is no evidence of any remediation.
80. The Panel is not satisfied that the Registrant has remedied the misconduct.
81. In considering the likelihood of recurrence the Panel was of the view that the absence of insight, remorse and evidence of effective remedy means that there is a high risk of this Registrant repeating the misconduct.
82. Therefore in addressing the considerations termed as the personal component within the HCPC Practise Note, the Panel concluded that there is no insight, there has been no remediation and there is a risk of recurrence.
83. The misconduct was serious. There was a potential of serious harm to vulnerable service users. The Registrant has damaged public confidence in him. The Registrant has also damaged the confidence that colleagues could have in him as part of a multi-disciplinary team.
84. This Registrant has breached fundamental tenets of the profession to such a degree that his actions certainly negatively affect public confidence in the profession.
85. In such circumstances it is important to make a finding that fitness to practice is currently impaired in order to restore and maintain confidence in both the profession and regulatory process; to send a clear message to both the public and profession that such behaviour is not acceptable.
86. In the Panel’s assessment critically important Public Policy issues are still engaged in this case.
87. Accordingly, the HCPC’s case is well-founded.
Decision on sanction
88. In considering what, if any, sanction to impose the Panel had regard to the HCPC Indicative Sanctions Policy and the advice of the Legal Assessor.
89. The Panel took account of the submissions made by Miss Eales who highlighted the aggravating features of the case. She set out the approach that should be taken with reference to the Indicative Sanctions Policy.
90. The Panel determined that the aggravating features include:
(a) The vulnerable nature of the service users.
(b) The Registrant’s actions exposed service users to the risk of serious harm.
(c) There was a repetition of the serious misconduct in a short space of time.
(d) The Registrant has failed to take responsibility for his misconduct.
(e) There is no evidence of any insight.
(f) There is no evidence of remedial action.
(g) There is a high risk of recurrence.
91. The Panel determined that the mitigating features include:
(a) There is no evidence of a general lack of competence, prior to the time of the allegations.
(b) He qualified as an occupational therapist in 2000.
(c) There was some limited engagement in the past with this process.
(d) This is the first time the Registrant is before his Regulator
(e) He would undoubtedly wish to practice in his chosen profession.
92. The Panel is aware of the high risk of recurrence from which the public need to be protected.
93. There is a need to demonstrate to the public and to practitioners the importance of adhering to the fundamental tenets of practice by declaring and upholding proper standards of professional behaviour.
94. There is also a need to maintain public confidence in the profession and the regulatory process.
95. The lapses were certainly not of a minor nature due to the risk of serious harm to service users.
96. The lapses were not isolated and were repeated within a number of months, there is no evidence of any insight, there is no evidence of any remedial action and there is significant risk of recurrence.
97. Accordingly, the seriousness of this case meant that taking no action was not an option and a Caution Order, even for the maximum duration, was inadequate. As such an Order is suitable for cases that can be regarded as being slightly more serious than those for which no action or mediation is appropriate. Such an outcome would not protect members of the public or provide the required level of public reassurance.
98. The Panel then considered and excluded the imposition of a Conditions of Practice Order on the grounds that such an outcome was insufficient based on the seriousness of this case. The Registrant was aware of what he was required to do and failed to use his knowledge, skills and experience. The high risk of recurrence makes this Order unsuitable. There is no confidence that the Registrant would engage with such an Order given his lack of engagement with this process over the past six months rendering it unworkable. The misconduct in this case is largely attitudinal and as such is difficult to formulate appropriate conditions. There is no information about the Registrant’s current circumstances. Such an Order would not adequately address the public reassurance requirements or act as a sufficient deterrent for others. In addition the misconduct arose during a period when the Registrant was the subject of a performance management plan. As such he had a high level of support and a very restricted caseload, elements of which conditions might mirror. Notwithstanding this, the misconduct nonetheless occurred. With this in mind the Panel was not satisfied that there would be any conditions that could properly protect the public.
99. The Panel then went on to consider the imposition of a Suspension Order and concluded that such an order for 12 months was sufficient.
100. In the Panel’s view this outcome reflects the seriousness of the case.
101. This outcome will sufficiently reinforce the requirement to uphold and declare proper standards of behaviour when fundamental Standards have been breached such as the need to act in the best interest of service users. This is particularly the case here given the Registrant was dealing with vulnerable Service Users.
102. This outcome will act as an adequate deterrent to others who may contemplate departing from fundamental and core duties.
103. This outcome will restore confidence in the profession as members of the public will be aware that those who act contrary to their best interests are temporarily removed from the profession until they can demonstrate at a Review that their fitness to practice is no longer impaired.
104. This outcome will maintain confidence in the regulatory process as members of the public will be reassured by the fact that cases such as this are taken seriously and departures from fundamental and core duties are not tolerated.
105. The Panel noted paragraph 34 of the ISP which states that where the evidence suggests that the Registrant will be unable to resolve or remedy his failings then a Striking Off Order may be the more appropriate option. However, where there are no psychological or other difficulties preventing the Registrant from understanding and seeking to remedy the failing’s then suspension may be appropriate.
106. The Panel also bore in mind paragraph 41 of the ISP relating to Striking Off Orders which states that a Striking Off Order should be used when there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. A Registrant’s inability or unwillingness to resolve matters would suggest a lower sanction might not be appropriate.
107. The Panel concluded that there is no evidence of psychological difficulties and that the mitigating factors suggest that the Registrant may, over time, be capable of understanding, and seeking to remedy his failings.
108. In addition, there was merit in imposing an Order that was capable of being reviewed as it is possible that the Registrant might reflect on the findings against him and develop a willingness to bring about changes to his approach. He can use the time, away from practice, to take steps to reflect, develop insight and remediate the misconduct. A review will give him an opportunity to engage with this process and demonstrate that his fitness to practise is no longer impaired.
109. Balancing the identified paragraphs from the ISP, in these particular circumstances, the proportionate balance lies in favour of giving the Registrant an opportunity to demonstrate insight and remediation.
110. The Panel is reassured in its decision by the fact that the public will be protected by the Suspension Order which will prevent the Registrant from practising until he is able to demonstrate to a reviewing Panel that his fitness to practise is no longer impaired.
111. The Panel also gave careful consideration to whether the wider public interest would be adversely affected by a decision to impose a Suspension as opposed to a Striking Off Order in terms of the deterrent effect and the need to ensure confidence in the profession and regulatory process. On balance the Panel concluded that the wider public interest would be satisfied by the imposition of a Suspension Order.
112. In terms of the length of the Order, the Panel was satisfied that the Registrant requires at least 12 months to develop insight and to remedy the misconduct. Moreover, the wider public interest would require at least that long to mark the seriousness of the misconduct and the need to maintain confidence in the regulatory process.
113. The Panel took account of the fact that the Order is punitive in nature and that it will prevent the Registrant from practising in his chosen profession for the time being. However, this consideration was balanced against the need for public protection and reassurance. The Panel concluded that the public’s rights were dominant.
114. In such circumstances the Panel had an alternative not to invoke the Order of last resort and it was thus not necessary to impose a Striking Off Order. Such an Order would have been disproportionate when a lesser Order satisfied the need for public protection and reassurance. In these circumstances it would be inappropriate to impose an Order that has no review mechanism. It would have been contrary to the public interest to impose a Striking Off Order at this time as it might have resulted in the removal of a competent practitioner from the register that is capable of providing a safe and effective service to members of the public in the future.
115. In all the circumstances the Panel believes a 12 month Suspension Order to be a necessary and proportionate sanction.
116. A reviewing Panel may be assisted by the following:
(a) The Registrant’s personal attendance at the Review Hearing.
(b) Evidence of the Registrant’s reflections on the findings made against him
(c) Evidence of insight and remedial steps.
(d) References or testimonials in respect of paid or voluntary work.
(e) Evidence that the Registrant has kept his knowledge of practice up to date through relevant CPD.
(f) Any other evidence the Registrant considers being relevant.
The order imposed today will apply from 1 February 2017 (the operative date). This order will be reviewed again before its expiry on 1 February 2018 date.
History of Hearings for Tobias W Barnes
|Date||Panel||Hearing type||Outcomes / Status|
|15/12/2017||Conduct and Competence Committee||Review Hearing||Struck off|
|03/01/2017||Conduct and Competence Committee||Final Hearing||Hearing has not yet been held|