Miss Jennifer Rankin

: Chiropodist / podiatrist

: CH32157

: Final Hearing

Date and Time of hearing:10:00 20/02/2017 End: 17:00 22/02/2017

: Radisson Blu Hotel Edinburgh, 80 High Street, Edinburgh, EH1 1TH

: Conduct and Competence Committee
: Suspended

Allegation

(As amended)
During the course of your employment as a Chiropodist/Podiatrist at Barefoot Chiropody and Podiatry between 2013 and 28 August 2015 and at McDonald Footcare between 28 August 2015 and 14 September 2015, you:
1) Did not make records of the treatment you provided to:
a) Patient A on 31 August 2015.
b) Patient B, on:
i. 06 August 2015; and/or
ii. 11 September 2015. – No evidence offered in relation to this particular
c) Patient C, on:
i. 27 July 2015; and/or
ii. 14 September 2015. – No evidence offered in relation to this particular
d) Patient D, on:
i. 27 July 2015; and/or
ii. 14 September 2015. – No evidence offered in relation to this particular
e) Patient E, on:
i. 03 August 2015; and/or
ii. 14 September 2015. – No evidence offered in relation to this particular
f) Patient F, on:
i. 17 August 2015; and/or
ii. 14 September 2015. – No evidence offered in relation to this particular
g) Patient G, on:
i. 06 August 2015; and/or
ii. 14 September 2015. – No evidence offered in relation to this particular
h) Patient H on 13 July 2015;
i) Patient I on 11 August 2015;
j) Patent J on 07 September 2015; – No evidence offered in relation to this particular
k) Patient K on 07 September 2015; – No evidence offered in relation to this particular
l) Patient L on 03 August 2015;
m) Patient M, on:
i. 10 July 2015; and/or
ii. 21 August 2015.
n) Patient N on 24 July 2015;
o) Patient O on 10 June 2015;
p) Patient P on 10 July 2015;
q) Patient Q on 10 August 2015;
r) Patient R on 13 May 2015;
s) Patient S on 15 July 2015;
t) Patient T on 30 July 2015;
u) Patient U on 22 July 2015;
v) Patient V on 13 August 2015;
w) Patient W on 03 August 2015;
x) Patient x on 06 August 2015;
y) Patient Y on 05 August 2015; – No evidence offered in relation to this particular
z) Patient Z on 18 August 2015;
aa) Patient AA on 18 August 2015;
bb) Patient BB on 28 August 2015; – No evidence offered in relation to this particular
cc) Patient CC on 03 August 2015;
dd) Patient DD on 10 August 2015;
ee) Patient EE on 18 August 2015;
ff) Patient FF on 18 August 2015.
2) Recorded the notes for Patient GG and Patient HH on the same record card.
3) Recorded the notes for Patient JJ and Patient KK on the same record card.
4) Inappropriately stored the following patient records in a location other than the clinic:
a) Patient II; – No evidence offered in relation to this particular
b) Patient LL;
c) Patient MM.
d) Patient A
5) Did not create files and/or record treatments for approximately 65 patients.
6) The matters set out in paragraphs 1 - 5 constitute misconduct and/or lack of competence.
7) By reason of your misconduct and/or lack of competence your fitness to practise is impaired.

Finding

Preliminary matters:
Service:
1. The Panel was satisfied that good service had been effected at the Registrant’s home address. 
Proceeding in absence:
2. The Registrant did not appear and had not responded to attempts to contact her in relation to these proceedings.  On behalf of the HCPC, Ms Eales applied for the hearing to be conducted in the absence of the Registrant on the basis that the Registrant had been notified of the date, time and location of the hearing at her registered address.   Ms Eales submitted that it was in the public interest for the hearing to proceed expeditiously.
3. Having considered the revised Practice Note on proceeding in absence and the advice of the Legal Assessor on the case of GMC v Adeogba [2016] EWCA Civ 162 (“the fair, economical, expeditious and efficient disposal of allegations against medical practitioners is of real importance”), the Panel was satisfied that the Registrant had received reasonable notice of the hearing.  The Registrant had not applied for an adjournment and not engaged with the regulatory process.  There was no indication that she would attend at a later date if today’s hearing were to be adjourned.  The Panel noted the overriding public interest in dealing with matters in a timely manner and the fact that the witness had attended the hearing.  The Panel could ensure fairness by testing the evidence with their own questions. The Panel therefore decided that the matter should be heard in the absence of the Registrant.
Application to amend the allegation:
4. The HCPC applied to amend the allegation to delete five particulars where the evidence no longer supported the charge, to correct dates in other particulars, and to add one further particular.  The Panel accepted the advice of the Legal Assessor and allowed the application on the basis that the Registrant had been given sufficient notice of the proposed amendments, many of which were technical in their nature, and because there was no apparent prejudice to her position if the amendments were permitted.
Background:
5. Ms Eales, for the HCPC, gave the Panel an overview of the evidence.  The Registrant worked as a Podiatrist at Barefoot Chiropody and Podiatry between 2013 and 28 August 2015 and its successor, McDonald Footcare, between 28 August 2015 and 14 September 2015.
6. The referral to the HCPC was made by the business owner, who raised concerns in relation to files of multiple patients, who had been treated by the Registrant, being incomplete or missing.  There were therefore no notes available when some of the patients attended for routine or follow up appointments.   The Registrant had also kept files at home, contrary to the terms of her contract and accepted practice as to the secure storage of confidential files.
The evidence:
7. The sole witness was the business owner, LM.  LM adopted her detailed witness statement, dated 19 April 2016, and gave further evidence at the hearing.  What follows is a summary of her written and oral evidence. 
8. LM is a self-employed Podiatrist, trading as McDonald Footcare since 2009.  She has worked in private practice since July 2007 and at her own clinic at West Calder since August 2009. LM acquired another clinic, then trading as Barefoot Chiropody and Podiatry Limited, on 28 August 2015 from its then owner who was moving to Australia. 
9. The Registrant had worked as an associate Podiatrist on a self-employed basis for the previous owner.   There was very little other information before the Panel about the Registrant, but she had expressed an interest in buying the business herself, a fact that suggests she had significant experience in podiatry practice.
10. Before buying the business, LM met with the Registrant on 11 August 2015 to discuss the working arrangements.  It was agreed between them that the Registrant would continue to work for the business for 3½ days per week. They signed an agreement on the terms of her work.   The agreement expressly provided that the Registrant was to maintain full and accurate records of patient treatment and to keep the records securely on the premises.  The agreement was viewed by the Panel.
11. LM attended the clinic on Monday 31 August 2015 in order to gain an understanding of the business and to ensure that both her clinics were being run in the same way.   A patient arrived on that day whose appointment was not in the diary as it should have been. It was shown as a cancellation under another patient’s name.  
12. LM noticed that 22 patient files were missing when she worked at the clinic on Wednesday 2 September 2015 and 9 September 2015.  She therefore undertook a thorough review of the missing files before meeting again with the Registrant at the clinic on 11 September 2015 to ask about the missing files. LM took legal advice before this meeting because she was concerned to make sure that she was conducting matters properly.  LM also made detailed contemporaneous notes of the meeting. 
13. The Registrant was adamant that the files should be in the filing cabinet, but she then suggested they may have been misplaced by someone doing work experience or that they had been cleared out when the previous owner left for Australia.  She also said that she had home-visiting files at her home.  LM expressed concern at the absence of files and the lack of treatment notes in the first fortnight of her ownership and requested the safe return of all files at her home.   LM had serious concerns about patient data protection and confidentiality of the files that had not been returned to the clinic.  The Registrant did not make any admission of fault or offer any explanation or apology for the missing files or absence of notes.
14. LM had by this stage lost confidence in the Registrant.  She requested the return of the keys to the clinic and subsequently instructed her lawyer to draft a letter, dated 16 September 2015, expressing her concerns and giving notice of the termination of the Registrant’s contract.   LM’s letter, viewed by the Panel, pointed out that her failure to maintain full and accurate records of all treatments and her failure to retain those records on the premises were flagrant breaches of both her contract and the professional standards required by her regulatory body.  Her view was that the Registrant’s failure to meet accepted and agreed professional standards had placed the practice and the patients at risk.
15. LM also found that files were missing or incomplete for regular or longstanding patients who attended the clinic every 4-6 weeks.  She prepared a table listing her patients to show where notes of treatment were missing.  When giving evidence, LM produced the clinic’s diary. A tick against the name of the patient in the appointments diary showed that they had attended the clinic for treatment on the relevant date, but there were no corresponding notes of patient treatment in the clinical records for each patient. 
16. With one exception, the Registrant was the Podiatrist responsible for administering treatment and making notes in the case of Patients A to FF as set out in the particulars.   Only in the case of Patient T was there any uncertainty as to whether the Registrant was responsible for treatment and note taking.
17. In two instances, there were no separate records for the offspring of two patients (particulars 2 and 3).  Patient HH is the mother of Patient GG.  They often attended the clinic together.  LM discovered that Patient GG’s notes were on the same record card as that for Patient HH.  The record contained no medical history or background for Patient GG, a minor who required strong treatments.  Each patient should have had their own record card so that there is an accurate account of their medical history and a clear record of treatments they have received.
18. Patient KK is the mother of Patient JJ.  They often attended the clinic together.  LM discovered that Patient JJ’s notes were on the same record card as that for Patient KK.  They should have had their own record cards for the reasons stated in the paragraph above.  
19. LM also gave evidence to confirm that patient records were missing in the cases of Patients LL, MM and A (particular 4).   The Registrant’s husband returned the files to the clinic on the 11 September 2015.  A copy of a receipt to confirm the fact was produced.  LM told the Panel that she expected patient records to be kept on the premises in accordance with the Registrant’s contractual duties.  A failure to maintain patient confidentiality would have a detrimental effect on the reputation of the profession. The Registrant made no further contact with LM after the 11 September 2015 other than a request for outstanding payment.
20. LM produced a table that showed that the Registrant had failed to create files or record treatment for 65 patients (particular 5).   Records had subsequently been discovered for two of those patients so the eventual total number was 63.
Decision on Facts:
21. The Panel found the witness to be clear, reliable and experienced.  She had a clear recollection of events and made concessions when it was fair to do so, for example in the case of who had treated Patient T.  The Panel found that her evidence was compelling and credible.
22. The Panel found, on the balance of probabilities, that the evidence of the appointments diary and the absence of treatment notes in the patient records proved that the Registrant had failed to make treatment records for all the patients (A to FF) listed in particular 1 of the amended allegation, save for in the case of Patient T.  There was no certainty that the Registrant was the responsible Podiatrist in the case of Patient T, so that specific particular was not proved.   The Panel was satisfied that the ticks in the appointment diary showed that the patients had attended for treatment, but that no record had been made by the Registrant.
23. The Panel found particulars 2 and 3 proved.  An examination of the patient records clearly shows the reference to two separate patients on the same record card in each case.  The Panel found particular 4 to be proved on the evidence of the signed receipt in respect of each missing file that was returned.  The Registrant’s contract confirmed the necessity to keep the patient records at the clinic.   The Panel was convinced by the evidence of LM’s meticulous audit of her patient records and therefore finds particular 5 to be proved.
Decision on grounds:
24. The Panel bears in mind the submissions of the HCPC and the advice of the Legal Assessor.  The Panel also has in mind the definition of misconduct in the case of Roylance v GMC [2011] 1 AC 311:  Misconduct is “some act or omission which falls short of what is proper in the circumstances.  The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances.”
25. By reason of the Panel’s finding on the facts, the Registrant is found to have breached the following standards of the HCPC Standards of Conduct, Performance and Ethics:-
• 1 - You must act in the best interests of service users;
• 2 - You must respect the confidentiality of service users;
• 10 - You must keep accurate records.
26. The Panel also finds that the Registrant has breached standard 10 of the Standards of Proficiency for Chiropodists and Podiatrists which provide that practitioners must be able to keep accurate, comprehensive and comprehensible records in accordance with applicable legislation, protocols and guidelines (10.1) and recognise the need to manage records and all other information in accordance with applicable legislation, protocols and guidelines (10.2).
27. The Panel finds that the Registrant knew what to do and failed to perform her professional duties.  All her training and practice would have reinforced the importance of record keeping, the need for confidentiality and secure records. She failed to safeguard confidentiality and make records of the treatment that she provided to numerous patients. Accordingly, the Panel finds that her professional failings were such as to amount to misconduct.
28. In making a finding of misconduct, the Panel notes the two particular cases in which records of patient treatment were kept on their parent’s patient record.  This specific failing undermines the important principle of individual patient care and risk assessment.  The Panel finds it to be a particularly troubling instance of unsafe and unprofessional practice.
Decision on impairment:
29. The Panel bears in mind the submissions of the HCPC and the advice of the Legal Assessor.  The Panel also reminded itself of the public component in Cohen v GMC [2008] EWHC 581: “the need to protect the individual and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect…and that the public interest includes, amongst other things, the protection of service users and the maintenance of public confidence in the profession.”
30. There is no evidence of insight or remediation before the Panel.  The Registrant has made no admission or expression of remorse.  The Panel therefore finds that the Registrant’s fitness to practise was impaired at the time of the allegations and, in the absence of any evidence of insight, remains currently impaired. 
31. This finding is made on the basis of the need to protect the public and in the wider public interest in order to maintain confidence in the profession and the regulatory process.  A reasonable member of the public would expect a finding of impairment given the gravity of the breaches in this case.
Decision on Sanction:
32. The Panel considered the Indicative Sanctions Policy of the HCPC and the advice of the Legal Assessor.   The Panel considered the potential mitigating factors and the aggravating features in this case in reaching its decision on sanction.
33. The principal aggravating feature is the persistence and regularity of the Registrant’s failings in the maintenance and safe storage of multiple patient records.  There was a potential risk of harm in relation to a large number of patients, including two minors, where the risk was exacerbated by the mixing of the patient records.  Some records have not yet been traced and thus the risk to patient confidentiality is unresolved.  The Registrant has therefore failed to discharge her duty of care to her patients.  There was no evidence of remorse or insight, so there remains a real risk of recurrence if her failings are not resolved.
34. The Panel has struggled to find mitigation in this case, principally because the Registrant has failed to attend the hearing or otherwise engage in the regulatory process, and thus failed to provide any information about her current circumstances and employment. The Panel accepts that there is no evidence of actual harm to service users.  The Panel infers from the evidence at the hearing that the Registrant is an otherwise experienced and clinically competent podiatrist and assumes, in fairness to her, that nothing is known to her detriment.
35. The extent and duration of the misconduct is too serious to make no order or to consider mediation.  The Panel considered whether to impose a Caution Order, but decided that it was inappropriate, because this was not an isolated occurrence and there was no insight or remediation.
36. The Panel then considered carefully whether a Conditions of Practice Order was appropriate or workable, but concluded that the absence of any information about her current circumstances made such an order impossible to formulate.  A Conditions of Practice Order requires commitment on the part of the Registrant, but there has been no such engagement in this case.  The Panel also found that such an order would not meet the gravity of the misconduct.  
37. The Panel concluded that a Suspension Order of 12 months duration was the appropriate and proportionate sanction that best reflects the gravity of the misconduct. The Panel is satisfied that this order will protect the public and maintain the confidence of the public in the regulator and the profession.  The Registrant’s failings are capable of remedy, so it is not necessary to impose a more severe sanction. 
38. The Panel considered that the sanction of last resort of Striking-Off was unnecessary and disproportionate, bearing in mind the absence of actual harm to service users and that the identified failings remain remediable.   It was also in the public interest that the Registrant should be able to resume work in her profession if she can engage with her regulator and overcome her issues with the proper maintenance and safe storage of records.

Order

That the Registrar is directed to suspend the Registration of Jennifer Rankin for a period of 12 months from the date this Order comes into effect.

Notes

Interim Order:
The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.  This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

Hearing history

History of Hearings for Miss Jennifer Rankin

Date Panel Hearing type Outcomes / Status
20/02/2017 Conduct and Competence Committee Final Hearing Suspended