Miss Sarah Neita

: Occupational therapist

: OT52913

: Final Hearing

Date and Time of hearing:10:00 20/02/2017 End: 17:00 28/02/2017

: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Conditions of Practice

Allegation

Between 5 May 2010 and 28 March 2012, during the course of your employment as an Occupational Therapist at the Lewisham Healthcare NHS Trust:

 

1. You demonstrated poor record keeping and/or record keeping that was not undertaken within the required timescales, in that:

a. On or around 17 October 2011, you:

(i) had not written the initial assessment notes and/or a report for a child who had been allocated to you on or around 11 November 2010;

(ii) had not written any notes and/or reports for Child 8 who you saw in/around July and August 2011;

b. In January and February 2012 created and/or back dated reports for the following children that you saw in/around July and August 2011:

(i) Child 7

(ii) Child 9

(iii) Child 10

c. In March 2012 you did not complete the relevant paperwork following assessments with 4 children for 4 weeks or more;

d. In relation to Case 1:

(i) You did not write the notes for a school visit which you carried out on or around 11 March 2010 until 5 May 2010;

(ii) You did not send the Occupational Therapy report to the child's school

in time for the child's annual review on or around 30 June 2010;

(iii) After documenting in an occupational therapy plan dated 28 October 2010 that a school visit was required, you did not carry out a school visit until on or around 28 March 2011; and

(iv) You did not write any progress notes regarding the school visit you made on or around 28 March 2011.

e. In relation to Case 2, allocated to you on or around 11 August 2011:

(i) You did not complete the required assessments until 5 October 2011; and

(ii) You did not send the child's report until on or around 18 January 2012.

f. In relation to Case 3, you did not write any notes for the handwriting groups which were held on or around 13 June 2011 and 22 June 2011.

g. In relation to Case 4, four crystal circuit interventions had taken place by

11 April 2011, but you did not send the reports until on or around 28 June 2011.

h. In relation to Case 5, you attended a Team Around the Child (TAC) Meeting on or around 11 July 2011, but did not submit the TAC actions.

i. On or around 27 February 2012, a review of 16 of your cases revealed that you had not progressed the cases in a timely manner;

 

2. You did not demonstrate satisfactory clinical practice in that in relation to Case 1, you failed follow up on your recommendation for a weighted handsplint.

 

3. Did not respect the confidentiality of service users, during the course of your employment and after you had resigned from Lewisham Healthcare NHS Trust you:

a. Took with you a number of documents which contained confidential children/family information and kept them at your home;

 

4. Your actions in relation to allegation 1b were dishonest

 

5. The matters described in paragraphs 1, 2 and 4 constitute misconduct and/or lack of competence.

 

6. The matters described in paragraph 3 constitute misconduct.

 

7. By reason of that misconduct and/or lack of competence, your fitness to practise is impaired.

 

Finding

Preliminary Matters


Abuse of Process

1. On behalf of the Registrant Mr Perhar made an application based on the ground of abuse of process that the Panel should order a stay of the proceedings. He explained that his application was made under the second category of case in R v Maxwell [2011] 1 WLR 1837 on the basis that if the case continued it would offend the Panel’s sense of justice and propriety. He did not submit that it was impossible for the Registrant to have a fair trial due to delay. Mr Perhar’s application was based on all the circumstances of the case including:

• the allegation covers the period May 2010 to March 2012 (Mr Perhar’s submission focussed on the effect of the delay since 2012 rather than the reasons for that delay; he did not submit that the delay was due to the fault of the HCPC);

• five years have elapsed and during the majority of that period the Registrant has been engaged or employed as an Occupational Therapist without a restriction on her practice;

• the HCPC has acted in a partisan manner, has adopted a “tick-box” approach, has not properly considered the substance of the case, and its decision to continue the case was oppressive in all the circumstances particularly in the light of the guidance in the HCPC Practice Notes “Finding that Fitness to Practise is Impaired” and “Discontinuance of Proceedings”;

• the imposition of any sanction on the Registrant would be unfair in the current circumstances and therefore continuation of the case was inappropriate and oppressive.

2. Ms Mitchell-Dunn outlined a brief chronology. The case was referred to the HCPC June 2014. The case was first listed for a hearing in July 2016. The Registrant wrote to the HCPC in May 2016 requesting a postponement of the July 2016 hearing due to health reasons. The case was then re-listed for today’s date.

3. Ms Mitchell-Dunn submitted that there is no abuse of process because a fair trial remains possible and it would not be unfair to proceed with the case.

4. The Panel accepted the advice of the Legal Assessor.

5. The Panel noted the basis of Mr Perhar’s submission which was the second limb of R v Maxwell which requires the Panel to consider the justice and propriety of continuing with the case and involves the balancing of competing interests. The Legal Assessor reminded the Panel that it is an exceptional step to stay a case on the ground of abuse of process. The Panel should not make findings of fact in relation to the Allegation and should bear in mind the differences between an application to stay a case on the ground of abuse of process and an application that there is no case to answer.

6. The Panel noted there is a lengthy gap of approximately five years between the period covered by the Allegation and today’s Hearing. The Registrant’s position during this period of time may be relevant if the Panel reach the stage of considering whether or not the Registrant’s current fitness to practise is impaired. However, the Panel did not consider that the consequences of the delay in this case meant that it was oppressive or unjust for this hearing to continue. The Panel did not accept Mr Perhar’s submission that the outcome of the case is self-evident, and therefore it is oppressive for the HCPC to continue to present the evidence. The Panel balanced the importance of fairness for the Registrant against the Panel’s primary duty to protect the public, and decided that the public interest outweighed the Registrant’s interest. The continuance of the case did not offend the Panel’s sense of justice and propriety, nor would it bring the regulatory system into disrepute.

7. The Panel therefore decided not to order a stay on the ground of abuse of process.

Application to amend

8. Ms Mitchell-Dunn made an application to amend the Allegation. The Registrant was not given prior notice of the application to amend. The application was to amend particular 1(a)(i) to delete the words “the initial assessment notes and/or”. This proposed amendment was because the evidence is that the Registrant completed the relevant initial assessment notes. The other amendments were to substitute 3 in place of 4 in particulars 1(c) and 1(g). These proposed amendments reduce the scope of the Allegation.

9. Mr Perhar did not submit that the Registrant was prejudiced by the proposed amendments. He commented that it was inappropriate for an application to be made to amend the Allegation at this stage of the process.

10. The Panel accepted the advice of the Legal Assessor. The Panel noted Mr Perhar’s comments about the late timing of the application to amend. However, the Panel was satisfied that the Registrant is not prejudiced by the proposed amendments and decided to exercise its discretion to allow the amendments.

Application by the HCPC to admit evidence

11. During the presentation of the HCPC case, Ms Mitchell-Dunn made an application to admit further evidence. She explained that witness AR, who had completed her evidence the previous day, had afterwards telephoned her and provided additional information relating to particulars 1(b) and 4. The additional information related to the computer system and the effect of transferring a file from the C-Drive (stored solely on the disc of Registrant’s computer) to the S-Drive (stored on the shared drive and accessible to other professionals). Ms Mitchell-Dunn suggested that the further evidence might be provided to the Panel either by recalling AR to give further evidence or by additional documents.

12. Mr Perhar opposed the application to admit further evidence. He submitted that it would be prejudicial to the Registrant to admit the evidence described by Ms Mitchell-Dunn at this stage of the process. He submitted that the proposed evidence would potentially raise a number of issues and he gave examples of the questions and difficulties that might arise. He submitted that in the circumstances it would be unfair to admit the evidence.

13. Ms Mitchell-Dunn and Mr Perhar made submissions relating to the date on which the Registrant’s draft statement was provided to Kingsley Napley and the date the redacted statement was provided to Ms Mitchell-Dunn.

14. The Panel accepted the advice of the Legal Assessor. The Panel decided not to exercise its discretion to admit the evidence outlined by Ms Mitchell-Dunn. The Panel balanced the public interest against the interests of the Registrant. The Panel’s view was that there was a significant risk that the evidence described by Ms Mitchell-Dunn would prejudice the Registrant if it was introduced at this stage of the hearing. The Panel had regard to the nature of the evidence. It is of a technical nature, and the Registrant has not had an opportunity to consider the evidence, to investigate any matters that may arise from the evidence, and prepare her response. The Panel concluded that it would not be fair to admit the evidence.

Background

15. The Registrant was employed as an Occupational Therapist at the Lewisham Healthcare NHS Trust (the Trust) from November 2009. The Registrant was primarily responsible for working with children with co-ordination difficulties in mainstream schools and with children with severe learning and movement disorders within Special Schools. The Registrant’s role was to meet patients and their families on both a one-to-one and group basis, assess patients, and set goals and targets for development of their coordination.

16. The Registrant was appointed in November 2009 in a Band 5 role. From August 2010 she was supervised by AR who was at that time a Band 7 Clinical Specialist. AR had concerns about the Registrant’s performance as soon as she began to supervise the Registrant. An informal performance management meeting took place in October 2010. In March 2011 a further informal management meeting took place due to a number of concerns and an action plan was created. In May 2011 this performance management plan ended when it was satisfactorily completed.

17. In April 2011 the Registrant was promoted to a Band 6 role. AR was a member of the committee who made the decision to promote the Registrant. The promotion took place while the Registrant was continuing to work under the informal performance management plan. The Registrant performed well during the interview and AR believed at the time that the promotion would motivate the Registrant to improve the quality of her administrative work. The Band 6 role was similar to the Band 5 role, but required more complex clinical reasoning and assessment, and it required the Registrant to work at an increased pace.

18. In November 2011 AR was promoted to the position of Team Lead. She continued to conduct clinical supervision sessions with the Registrant. An informal performance management meeting took place in November 2011 and it was decided that a formal management process would begin. AR was responsible for the management of the formal management process.

19. Witness NA began working for the Trust as a Band 7 Clinical Specialist Occupational Therapist in December 2011. AR took the view that the supervision sessions between herself and the Registrant had become negative, that there were communication problems, and that it would therefore be appropriate for NA to carry out clinical supervision with the Registrant. AR remained responsible for the management of the formal management process.

20. Following a supervision session with NA on 28 March 2012, the Registrant submitted her resignation. The Registrant later asked to retract her letter of resignation, but this was not agreed by the Trust. On 16 April 2012 the Registrant lodged a formal grievance against AR. The Registrant’s letter stating her concern that NA had expressed inappropriate opinions was treated as a grievance against NA.

21. The Registrant’s grievance against AR included a complaint of disability discrimination.

22. The Registrant presented a complaint of unfair dismissal and disability discrimination to the Employment Tribunal. At the Employment Tribunal hearing in January 2014 the Registrant represented herself. In the hearing she produced Trust documents that she had taken to her home. Some of these documents included confidential information about service users. In the course of the hearing the Tribunal Judge required the Registrant to hand over to the Trust all confidential documents she had with her in the Tribunal building.

23. AR and NA made the decision to refer the Registrant to the HCPC in June 2014 after they had received a copy of the Employment Tribunal Judgement.

Decision on Facts

24. The Panel heard evidence from AR, NA and the Registrant.

25. The Panel considered Mr Perhar’s submission that AR and NA were motivated to refer the Registrant to the HCPC because she had made a complaint to the Employment Tribunal which included a complaint of disability discrimination. The Panel decided that there was no improper motivation. AR and NA were reluctant to make a referral to the HCPC while serious allegations against them were ongoing in the Employment Tribunal. When the proceedings ended, they reviewed the position, and decided to make the referral. Although it would have been preferable if the referral had been made at an earlier date, the Panel was satisfied that their action in referring the Registrant to the HCPC was not vindictive.

26.  The working relationship between AR and the Registrant deteriorated during the course of the Registrant’s employment. By February 2012 it had reached the point that the communication between AR and the Registrant was extremely poor. The Panel was aware of this background when assessing the evidence of AR and the Registrant’s evidence. The Panel found that AR gave an honest account of events from her perspective. The Panel found that NA was a credible witness. She demonstrated a willingness to reflect on past events.

27. The Panel found that the Registrant was an honest witness who had a good recollection of the details of some of the past events, despite the passage of time.

Particular 1(a)(i)

28. The Panel found that particular 1(a)(i) is proved.

29. The Registrant carried out an initial assessment for Child 6 on 11 November 2010. This is recorded in the Registrant’s handwritten notes for Child 6. There is no record in the handwritten notes that the Registrant wrote a report following the initial assessment. When AR noticed that a report had not been completed she asked another Occupational Therapist to carry out a repeat assessment. This was completed over a year after the initial assessment on 9 December 2011.

30. The Registrant’s completed child reports would be stored either in the child’s paper file in the filing cabinets, or on the S-Drive so that other professionals could access them. AR was unable to locate Child 6’s report in either location.

31. The Registrant’s evidence in her witness statement and her oral evidence was that she believes that she completed the report. She states that there is evidence that she started to write the initial assessment report. The Registrant has no specific recollection of completing the report, but she suggests a possible explanation for the missing report. This suggestion is that she wrote the report on her C-Drive, but it became lost in the computer system on 28 September 2011. On 28 September 2011 a member of the administration staff (TG) transferred reports from the Registrant’s C-Drive to the S-Drive. The Registrant was unable to find some of her reports on the S-Drive after this transfer and she believes that this was due to the way in which she had saved some reports on the C-Drive without identifying the child in the saved name of the file.

32. The Panel decided that it was not likely that the Registrant had completed the report, but that it had remain on her C-Drive from November 2010 to 28 September 2011, and was lost in the system on that date. If she had completed the report it would have been printed and placed in Child 6’s paper file or transferred to the S-Drive long before 28 September 2011.

33. The Registrant’s failure to complete the report for Child 6 is poor record keeping. The report was not available for the use of other professionals, and it was not sent to the referrer which would usually be the school and the parents of the child.

Particular 1(a)(ii)

34. Ms Mitchell-Dunn informed the Panel that the HCPC offered no evidence on this particular. The Panel found that particular 1(a)(ii) is not proved.

Particular 1(b)

35. The Panel found that particular 1(b) is not proved.

36. Particular 1(b) relates to the reports of for Child 7, Child 9 and Child 10. All three reports are dated 23 September 2011. On an unknown date after the Registrant had left the Trust, AR examined the computer record for Children 7, 9 and 10. The record showed that the report for Child 7 dated 23 September 2011 was “created” on the S-Drive on 7 February 2012. Similarly the report for Child 9 was “created” on 11 January 2012 and the report for Child 10 was “created” on 21 February 2012. On the basis of these documents AR concluded that the Registrant had written the reports on the “created” dates and backdated them to 23 September 2011.

37. The Panel carefully considered all the documentary evidence, particularly the Registrant’s handwritten notes for children 7, 9 and 10. The Registrant’s handwritten notes are inconsistent with AR’s belief that the reports were not written until the “created” dates in January and February 2012. For example there is a handwritten note for Child 9 dated 19 December 2011 which states that the report was not sent out to parents previously, and was sent by the Registrant that day. This note is inconsistent with the suggestion that the reports were backdated. A report could have been sent to the parents on 19 December 2011 if the Registrant had printed the report and placed it in the child’s paper file in the filing cabinet.

38. The Panel accepted the Registrant’s explanation that the “created” dates in February 2012 were the dates the reports were transferred or entered to the S-Drive, not the dates the reports were written by the Registrant. The Panel did not agree with Ms Mitchell-Dunn’s submission that the Registrant’s account is not credible because all reports on the Registrant’s C-Drive were transferred to the S-Drive by an administrator (TG) on 28 September 2011. The Registrant’s explanation is consistent with her contemporaneous handwritten notes.

Particular 1(c)

39. The Panel found that particular 1(c) is proved.

40. The HCPC case is that the relevant paperwork was not completed until it had been signed and was ready to send to the relevant individuals. The Registrant’s evidence is that for two of the three children, she had completed the paperwork in draft within the four week period, and she was waiting for her supervisor or manager to review and approve her report. The Panel decided that the paperwork is not “complete” until it is in the form of a report that can be sent to the relevant individuals and accessed by other professionals.

41. The documents show that for Child 11 the Registrant carried out the initial assessment on 15 March 2012. In early April the report was “completed in draft form”. The report was created on the S-Drive on 25 April 2012 and revised on 2 May 2012. The report was discussed and reviewed in supervision on 30 April 2012. There was a gap of approximately six weeks between the initial assessment and the completion of the report.

42. The documents show that for Chid 12 the initial assessment was carried out on 2 March 2012. The handwritten notes show that the report was completed in draft for checking on 30 March 2012. The report was saved to the S-Drive on 24 April 2012 and there is a handwritten note that it was sent to relevant individuals on that date. There was a gap of approximately two months between the initial assessment and the completion of the report.

43. Child 13 was assessed on 1 March and the report is dated 29 March 2012. This is a gap of four weeks.


44. The Registrant’s failure to complete the paperwork in less than four weeks is poor record keeping. The initial assessment report is not particularly difficult to write and it should normally be written on the same day as the initial assessment. Occupational Therapists were expected to carry out the initial assessment and write up the reports for two children in one day. The aim within the team was to send out initial assessment reports within two weeks.

Particular 1(d)(i)

45. The Panel found that particular 1(d)(i) is not proved.

46. Child 1 had a diagnosis of Autistic Spectrum Disorders and functional difficulties including difficulties with dressing and using cutlery, pencils and scissors.

47. The Registrant carried out a school visit on 11 March 2010. In the handwritten notes for Child 1 she wrote an entry dated 5 May 2010 “In retrospect of SV 11.03.2010 Re-written due to misplaced continuation sheet”. The Registrant’s evidence was that she wrote the notes for the school visit on the day of the visit, but could not find the file for Child 1. She placed the notes in her drawer and did not make an entry into the notes until 5 May 2010 when she had a conversation with her supervisor which reminded her of the need to make an entry in the handwritten notes. She copied the notes she had previously made into the entry for 5 May 2010.

48. The Panel accepted the Registrant’s account of events.

49. The HCPC allegation is that the Registrant did not write the notes for the school visit. Although the notes were not recorded correctly in the child’s file, they were written by the Registrant. Therefore, the Panel found that particular 1(d)(i) is not proved.

Particulars 1(d)(ii), (iii) and (iv)

50. Particulars 1(d)(ii), 1(d)(iii) and 1(d)(iv) were admitted by the Registrant. The Panel found sub-particulars 1(d)(ii) and 1(d)(iv) proved by the Registrant’s admission, the evidence of the Registrant, the documentary evidence and the evidence of AR and NA. The Panel found sub-particular 1(d)(iii) not proved.

51. The Panel considered the stem of particular 1 in relation to each sub-particular.

Particular 1(d)(ii)

52. The reason the Registrant did not send the Occupational Therapy report to the child’s school in time for the child’s annual review was because she had not completed the report in sufficient time to ensure that the report would be received in time. The failure to send the report in time therefore demonstrated record keeping that was not completed within the required timescales.

Particular 1(d)(iii)

53. The failure to carry out a school visit until on or around 28 March 2011 does not demonstrate poor record keeping or record keeping that was not undertaken within the required timescales. The Registrant correctly documented that a school visit was required on 28 October 2010. There was a delay of five months before the Registrant carried out this required visit.

Particular 1(d)(iv)

54. The failure to write any progress notes regarding a school visit made on or around 28 March 2011 demonstrated poor record keeping.

Particular 1(e)

55. Particular 1(e)(i) and 1(e)(ii) were admitted by the Registrant. The Panel found that they are proved by the Registrant’s admission, the evidence of the Registrant, the documentary evidence, and the evidence of AR and NA.

Particular 1(e)(i)

56.  The Registrant should have carried out both parts of the coordination assessment during her session with the child on 25 August 2011. There is no explanation within the notes of any special circumstances, or the need for the second part of the assessment to be completed. The Registrant did not make a booking for the second part of the assessment during the session on 25 August 2011. The failure to complete and record a full assessment caused a delay in the decision on the appropriate treatment plan for the child. The failure to complete the required assessment therefore demonstrated poor record keeping and record keeping that was not within the required timescales.

Particular 1(e)(ii)

57. The Registrant’s failure to send the child’s report until 18 January 2012 was due to the fact the report was not completed in draft form until 16 January 2012 and not discussed with AR until 18 January 2012. The Registrant explained that the delay in completing the report was due to her being busy, sickness absence and awaiting her supervisor’s feedback.  The failure to send the child’s report until 18 January 2012 was because the report was not completed. It therefore demonstrated record keeping that was not undertaken within the required timescales. 

Particular 1(f)

58. The Panel found that particular 1(f) is proved.

59. The Registrant’s evidence is that she did not write notes for the handwriting groups for Child 3 on 13 June 2011 and 22 June 2011 and she cannot remember why she did not do so. The Panel found that it is proved by the Registrant’s admission, the evidence of the Registrant, the documentary evidence, and the evidence of AR and NA.

60. The Registrant’s failure is poor record keeping. The notes should be recorded after each session to ensure that the next session can be planned adequately to ensure that it is beneficial for the child.

Particular 1(g)

61. Particular 1(g) was admitted by the Registrant. The Panel found this sub-particular not proved.

62. The file note for Child 4 records that the Registrant had completed the summary report on 15 April 2011 and had filed it under Occupational Therapy reports in the child’s file. The normal practice was for reports to be sent out within two weeks of an intervention. Regrettably, the Registrant did not record in the file note her “request” to the administration team that the completed report should be sent out. Although the Registrant did not record in the file note that she had requested the administration team to send out the report, she states that she had asked them to send the report. When she looked at the file on 28 June 2011 she noted that the report had not been sent out because there was no documentation from the administration team that they had done so, and so she sent it on that date.

63. The Panel found that the Registrant’s recollection of events was clear, detailed and credible. There was, on her account, no causal connection, in this instance, between the delay in sending out the report, and the Registrant’s own record keeping. Therefore particular 1(g) is not proved in relation to the stem of particular 1.

Particular 1(h)

64. Particular 1(h) was admitted by the Registrant. The Panel found this sub-particular not proved.

65. The Registrant made accurate notes of the meeting which she placed in the child’s file on the same day the meeting was held. A detailed minuted account of the meeting was made later on the basis of her notes by another member of staff. The Panel found that not submitting the TAC actions is not encompassed by the stem of particular 1.

Particular 1(i)

66. The Panel found that particular 1(i) is not proved.

67. This particular is based on a written review carried out at the request of AR by a Highly Specialist Occupational Therapist who reviewed a number of the Registrant’s cases. The two page written review is hearsay evidence. The report is written in a summary form and it is not explanatory. It is unclear from the report how many children are covered by the report and it is not clear in relation to each case whether there are any record keeping issues or whether the Registrant is responsible for any record keeping issues. Some of the children are the same as those dealt with in other parts of the Allegation. The Panel did not give weight to this hearsay evidence.

Particular 2

68. The Panel found that particular 2 is proved.

69. The Panel reviewed the file notes for Child 1. They show that in August 2010 the Registrant trialled a weighted handsplint for Child 1 at a group intervention. However, the Registrant’s entry states Child 1 became “distracted by the splint and therefore difficult to ascertain any benefit or not”.

70. The Registrant prepared a report following the group sessions dated 28 October 2010. In this report she noted Child 1’s distraction and that a “group environment may not be conducive to [Child 1’s] preferred learning style”. The Registrant set out her plan which was to complete a school visit to assess Child 1’s handwriting skills “while wearing a weighted hand splint and provide advice for school as appropriate”.

71. The Registrant did not follow up this plan, nor did she document any reason for not doing so. This was unsatisfactory clinical practice because the Registrant herself had identified the need for further assessment because the trial in the group session may not have been appropriate for Child 1’s learning style. There was no intervention for the child until July 2012.

Particular 3

72. The Panel found this particular proved.

73. The Registrant admits that she took with her a number of documents which contained confidential information about children and families and kept them at home. She does not admit that this action did not respect the confidentiality of service users.

74. The confidential documents were in the Registrant’s possession at home because she had picked them up when she visited the Trust to clear her desk following her resignation. Her oral evidence was that she did so “thoughtlessly”. There was no clinical reason for the Registrant to have the information at home and she did not have permission from anyone at the Trust to take or keep the papers at home. The papers included supervision forms, caseload forms, reports, and notes of action plans.

75. The Trust has a clear Information Governance policy which states that records “shall only be taken outside the Trust in exceptional circumstances or if they are needed to provide care elsewhere”. There were no exceptional circumstances which justified the Registrant’s decision to remove documents containing confidential information from her employer. Her decision to do so did not respect the confidentiality of service users.

Particular 4

76. Particular 4 is based on particular 1(b) and therefore is not proved.

Decision on Grounds

77. The question of whether the proven facts constitute misconduct or a lack of competence is for the judgment of the Panel and there is no burden or standard of proof.

78. There is no statutory definition of misconduct, but the Panel had regard to the guidance of Lord Clyde in Roylance v GMC (No2) [2001] 1 AC 311: “Misconduct is a word of general effect, involving some act or omission which falls short of what would be 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 …practitioner in the particular circumstances”. The conduct must be serious in that it falls well below the required standards.

79. A lack of competence is a standard of work which is unacceptably low. The standard required is that of an Occupational Therapist working at the level of seniority which the Registrant was working at, at the time of the alleged events that is Band 5 or Band 6. A lack of competence will usually be demonstrated by a fair sample of the Registrant’s work.

80. The Panel found that particulars 1(a)(i), 1(c), 1(d)(ii) and 1(d)(iv), 1(e)(i) and 1(e)(ii) and 2 constituted lack of competence and that particular 3 constituted misconduct. The Panel did not find that particular 1(f) constituted misconduct or lack of competence.

81.  The Panel was satisfied that the proved particulars 1(a)(i), 1(c), 1(d)(ii) and 1(d)(iv), 1(e)(i) and 1(e)(ii), and 2 represent a fair sample of the Registrant’s work. There are multiple examples over a period of almost two years. They cover approximately [8/9] children and in some instances there are multiple failures. The Panel did not accept Mr Perhar’s submission that the sample was not fair because it covers a period during which the Registrant was subject to disability discrimination or because of the deterioration of the relationship between AR and the Registrant.

82. Particular 1(a)(i) is the failure to write a report following an initial assessment for a child allocated on 11 November 2009. The Registrant had been employed by the Trust for 12 months in November 2009. It is a basic requirement of an Occupational Therapist to ensure that reports are completed for service users. If the report is not completed there is a risk that the necessary interventions do not take place and consequently a risk of harm to the child. The Panel accepted the evidence of AR that it is important in these cases that records are kept up to date because this leads to timely follow up and interventions. The assessment and intervention for a child should be timely to ensure it is relevant for that child’s development. A delay in intervention could have a serious impact on the child’s development.

83. Particular 1(c) concerns the failure complete the paperwork following assessments for three children within four weeks or more. For two of the children (11 and 12) the delay in completing the reports was lengthy. In the case of Child 13, the file note shows that the Registrant complied with the four week deadline she was given by her supervisor. However, the Registrant was at that time subject to a formal performance management process. Her caseload had been reduced and she was being given longer to produce the reports than was the expectation within the department. The Registrant was aware that the expected standard within the department was that the reports should be completed within a maximum of two to three weeks.

84. The Registrant’s explanation for the delay in completing the reports for Child 11 and Child 12 was the breakdown in her professional relationship with AR and NA, which explains the delay in obtaining their approval of the content of the reports. The Panel accepted that the relationship had become very strained by this time and that it would have been difficult for the Registrant to approach AR or NA other than in formal supervision. Nevertheless, the standard the Panel is applying is that of a Band 6 Occupational Therapist. The Registrant had been in the Band 6 role for approximately 11 months. This requires the ability to work autonomously. It would be expected that a Band 6 Occupational Trust would either be completing their reports without requiring a review, or would be using their own initiative and acting in the best interests of the child to ensure that the reviews took place in a timely manner.

85. Particulars 1(d)(ii) and 1(d)(iv) are failures to reach acceptable professional standards of timely and appropriate record keeping. The Registrant’s report was not available for the use of another professional at the child’s annual review. It is a basic requirement of an Occupational Therapist to ensure that reports are timely and that progress notes are made so that other professionals are aware of the child’s progress.

86. Particulars 1(e)(i) and 1(e)(ii) concern the failure to complete the coordination assessment and the delay in sending the child’s report which demonstrate poor record keeping and record keeping that was not undertaken within the required timescales. The Registrant suggests in her evidence that Child 2’s case was too complex for her level of skills and knowledge at the time and that he was inappropriately allocated to her. However, the Registrant acknowledges that the case was allocated to her. Thereafter, her role was to carry out her own responsibilities towards the child to a satisfactory standard. There was a potential risk of harm to the child because the Registrant’s delays could have led to delay in the necessary interventions.

87. Particular 2 is the failure by the Registrant to follow up on the recommendation she made in her plan dated 28 October 2010. She should have followed up either by trialling the hand-splint at a school visit, or by clearly documenting a change in her assessment in the appropriateness of this intervention. The Registrant’s failure led to a lack of clarity in the plan for the child.

88. The Registrant’s failures which demonstrated poor record keeping in particulars 1(a)(i), 1(c), 1(d)(ii), 1(d)(iv), 1(e)(i), 1(e)(ii) are a breach of the HCPC Standards of Conduct, Performance and Ethics (2008) Standard 1 “you must act in the best interests of service users” and Standard 10 “you must keep accurate records”. The failure in particular 2 is a breach of Standard 1. The failure in particular 3 is a breach of the Standards of Proficiency for Occupational Therapists Standard 1(a)3 “understand importance of and be able to maintain confidentiality”. In the Panel’s judgment these failures in record keeping and the single failure to demonstrate satisfactory clinical practice are not sufficiently serious to constitute misconduct. Record keeping failures may be sufficiently serious to constitute misconduct in some cases. However, in this case the Registrant was endeavouring to meet the required standards. She had been promoted to a Band 6 position, even though there were concerns about her ability at that time to meet the standards required of a Band 5 position.  She was engaged in the informal performance management process and she completed this process to the satisfaction of her supervisor. There were health reasons that contributed to the level of the Registrant’s ability to meet the required standards.

89. In the Panel’s judgment the failures listed above (paragraph 88) constitute lack of competence. The Registrant’s failure in particular 2 is linked to the failures in particular 1. There is a pattern of failure to take the required action on cases in a timely manner. The Registrant was not managing the administration of her cases to the standard required of a Band 5 Occupational Therapist and this persisted despite the interventions of the Registrant’s supervisors including informal and formal performance management processes. The Registrant was not able to sufficiently or consistently improve the standard of her work.

90. The Panel next considered particular 3, the failure to respect the confidentiality of service users. This is a breach of the HCPC Standards of Conduct, Performance and Ethics Standard 2: “you must respect the confidentiality of service users”. In the Panel’s judgment the conduct is sufficiently serious to constitute misconduct. The Registrant’s conduct was a serious breach of the Trust’s Information Governance policy. At the Trust there were regular reminders of the importance of protecting the confidentiality of service user information by computer screen messages and e-mails. It is a fundamental tenet of the profession to maintain the confidentiality of service users at all times. The Registrant was aware of the importance of confidentiality. In 2011 AR spoke to her about confidentiality issues arising from the use of her C-Drive rather than the S-Drive. The Registrant’s thoughtless action in taking the documents home with her was a serious breach of her professional responsibilities.

91. Particular 1(f) concerns the Registrant’s failure to write the notes for the handwriting groups held on 13 June 2011 and 22 June 2011. The Registrant did write the notes for the other four sessions of the handwriting group. The Registrant admits that it was her responsibility to write the notes, and that she failed to do so. However, she states that she had sufficient information from the other sessions to write a summary for Child 3 and to ensure that the appropriate next steps were taken. The Registrant states that it was an extremely busy period in which she was running more than one group and had responsibility for keeping up to date with a number of children.

92. The Registrant did not make file notes of the two sessions. However, she did reflect the learning from those sessions and the previous sessions in the report following the intervention which she wrote for Child 3. She noted that Child 3 had attended all the sessions and produced a detailed record of the child’s achievements during the intervention which enabled follow on recommendations to be made.

93. The Panel found that, while best practice was not followed in this case, given the mitigating circumstances and the fact that there was no harm to the child, this particular does not constitute misconduct, nor did it demonstrate a standard of work which was unacceptably low to constitute lack of competence.


Decision on Impairment

94. The Panel applied the guidance in the HCPC Practice Note “Finding that Fitness to Practise is impaired” and accepted the advice of the Legal Assessor. The Panel considered the Registrant’s fitness to practise at today’s date.

95. After her departure from the Trust the Registrant undertook a number of Locum Occupational Therapist roles. She worked from August 2012 to November 2012 at Guys & St Thomas’s NHS Trust paediatric services. She worked intermittently as a locum contractor in different children services from January 2013 to 2014. In late January 2014 she was engaged as a locum Band 6 community Occupational Therapist for the Lewisham and Greenwich NHS Trust for approximately three months. The Registrant was then offered a fixed term contract as a Band 5 paediatric Occupational Therapist with Medway Community Healthcare from May 2014. The contract was initially for three months and extended for a further three months. The Registrant was promoted to a Band 6 Specialist Paediatric Occupational Therapist. The Registrant is currently employed in a permanent position as a Functional Analyst. She is not currently working as an Occupational Therapist, but is employed in a role that requires her to be a registered health professional.

96. The Registrant has not received complaints about her work performance in any of the roles she has undertaken.

97. The Registrant is currently on long term sickness absence.

98. The Panel first considered the personal component which is the Registrant’s current conduct and competence. The lack of competence and misconduct found by the Panel in this case are remediable. The Panel noted that the Registrant acknowledges that there were issues with her work five years ago. She has taken steps with her managers since the events which led this Allegation to manage her disability of dyslexia better. It is positive that the Registrant has been working successfully as an Occupational Therapist, but the Panel was concerned that there is little independent evidence save for one probationary review form to confirm that the Registrant is consistently maintaining good standards in her record keeping.

99. The Panel recognised that the Registrant faced a number of difficulties in the period 2010 to 2012.

100. The Registrant does not currently face the same difficulties, but the Panel was nevertheless concerned that the Registrant has not demonstrated a sufficient level of insight. Although the Registrant admitted a number of the factual particulars, she did not demonstrate insight into the fact that her failures to meet the required standards of competence had the potential to put service users at risk of harm. The service users involved in this case are children, and the Registrant’s failures of record keeping could delay interventions and progress for the children and could cause difficulty for other professionals.

101. The Registrant also failed to demonstrate that she fully understands the importance of respecting the confidentiality of service user records. Although the Registrant states that she has learned from her mistake, the Registrant nevertheless produced a document for this hearing which included confidential information. The Registrant redacted the document herself. When she was challenged in cross examination the Registrant explained that she did not have this document with her at the Employment Tribunal Hearing and therefore did not hand it to the Trust. Despite the Registrant being alerted to the confidentiality of the documents at the Employment Tribunal, the Registrant did not take steps to return all the documents at her home to the Trust.

102. The Panel’s assessment of the Registrant’s current level of insight was the basis for its conclusion on the risk of repetition. The Panel identified that there is a risk of repetition, both of record keeping failures and of a failure to respect confidentiality. The Panel therefore found that the Registrant’s current fitness to practise is impaired, considering the personal component.

103. The Panel next considered the critically important public policy issues which include the need to protect service users, to uphold and maintain standards of conduct and behaviour and to maintain public confidence in the profession.

104. The Panel has identified in its decision risk to service users, particularly a risk that there are delays in interventions and therefore delays in the progress for a child. The Panel has also found a breach of standards which are fundamental for Occupational Therapists. The breach of confidentiality is a serious breach. It is also a breach in the public domain because of the Employment Tribunal Judgement. The finding of misconduct in this case would be of concern to members of the public, who would expect the Regulator to take action in these circumstances. A member of the public would also be concerned that the Registrant does not have full insight and has continued to retain documents which include confidential information. A finding that the Registrant’s current fitness to practise is impaired is therefore required in order to uphold and maintain standards of conduct and behaviour and to maintain public confidence in the profession.

105. The Panel found that the Registrant’s fitness to practise is currently impaired on the basis of the personal component and the public component.

106. The Panel heard submissions from Ms Mitchell-Dunn and Mr Perhar. The Panel also heard submissions from the Registrant.

107. The Panel accepted the advice of the Legal Assessor and applied the guidance in the HCPC Indicative Sanctions Policy (ISP). The primary purpose of a sanction is to protect the public. The Panel should also give appropriate weight to the wider public interest, which includes the deterrent effect to other registrants and the need to maintain public confidence in the profession and the regulatory process.

108. In his submissions on sanction Mr Perhar made submissions which challenged the decision previously reached by the Panel that the Registrant’s fitness to practise is currently impaired. The Panel decided that its previous decision should stand.

109. Mr Perhar submitted that it was inappropriate for the Panel to conclude that the Registrant currently lacks full understanding of the need to respect the confidentiality of service users. He submitted that the HCPC had provided the Registrant with documents which contain confidential information as part of these proceedings and that it was therefore unfair to criticise the Registrant for her use of documents which also contain confidential information. The Panel recognises that documents (appropriately redacted) which contain confidential information may be used by either party in a fitness to practise hearing. Registrants may make a request for relevant documents which may include confidential information in order to present their case. The point raised in the Panel’s decision is not that the Registrant used a document in these proceedings, but that she retained it at home without informing the Trust or expressly acknowledging that it included confidential information. The Panel was not reassured that the Registrant understood why she should not have retained this document.

110. Mr Perhar also submitted that the Panel had stepped outside the scope of the Allegation in its finding that the Registrant’s breach of confidentiality was in the public domain. The Panel’s decision on current impairment was limited to the finding of fact in particular 3 that the Registrant did not respect the confidentiality of service users by taking confidential documents and keeping them at home. The relevance of the Employment Tribunal Judgment is that this finding of fact is not a matter solely between the Registrant and the Trust, but also became known in the public domain.

111. Mr Perhar also made submissions on the length of this hearing. The Panel did not consider that this submission was relevant to their decision on the appropriate sanction.

112. Mr Perhar submitted that it was relevant that that no Interim Order had been made against the Registrant. The Panel decided that the absence of an Interim Order was not material to its current decision on sanction. The Panel has made findings of fact and reached a conclusion on current impairment, and its decision on sanction should be based on those decisions.

113. In his submissions Mr Perhar made a number of arguments the Panel has taken into account in its deliberations on sanction. They include the impact of a sanction on the Registrant, the Registrant’s practice as an Occupational Therapist before and after the period covered by the Allegation, the Registrant’s disability, and the impact of delay.

114. The Panel also took into account the Registrant’s submissions. She submitted that the process has been an ordeal for her. She submitted that she can function well as an Occupational Therapist in the right atmosphere and with the right support. She wishes to be an active member of staff, and not a burden. Currently she cannot identify anything further she can learn from the process, and she therefore cannot see the benefit in imposing any sanction.

115. The Panel identified the following aggravating circumstances:

• a pattern of failures in record keeping;

• risk of harm for service users and consequences for colleagues;

• lack of sufficient insight and consequent risk of repetition.

116. The Panel identified the following mitigating circumstances:

• the Registrant’s health and personal circumstances;

• the Registrant’s successful work record as an Occupational Therapist after resigning from the Trust;

• the Registrant’s high level of engagement with the process and her respect for the decision of the Panel.

117. The Panel also considered the five year delay between the dates covered by the Allegation and today’s date. The delay is a factor in the Panel’s assessment of the proportionality of any sanction. The Panel acknowledges that the delay in this case is relevant to the Registrant’s perception of the imposition of any sanction as a punishment. Nevertheless, the Panel decided that the delay is not so long that it would be disproportionate to impose a sanction. This is not a case where the delay is due to the fault of the Regulator, and the Panel has found that there is a risk of repetition and therefore a need for regulatory action to protect the public.

118. One consequence of the delay in this case is that there has been a change in the Registrant’s position. The Registrant has developed a bilateral visual impairment and she is currently on long term sickness absence. The Registrant’s impairment is likely to be a disadvantage to the Registrant if she is in the labour market. The Panel therefore considered very carefully the impact on the Registrant of a sanction, taking into account her economic interests and her interests in continuing to practise in her chosen profession. It is in the Registrant’s interests that she remains employed by her current employer, who has been supportive during her long term sickness absence.

119. The Panel considered Mr Perhar’s submission that the imposition of any sanction in this case would result in the Registrant losing her current employment. This submission was not supported by evidence from the Registrant’s employer, evidence of any policy operated by the Registrant’s employer, or evidence from the Registrant that she has discussed the matter with her employer. The Panel was unable to accept this submission without supporting evidence. There is no evidence that the Registrant’s current employer is not a responsible employer. The Panel would expect a responsible employer to consider the circumstances of the case on an individual basis, taking into account all the Panel’s findings, including the mitigating circumstances.

120. The Panel considered the available sanctions in ascending order of severity. The Panel decided that it would not be sufficient to impose no sanction in the circumstances of this case. The Panel has found that there is a risk of repetition and therefore there is a need for a sanction to protect the public.

121. The Panel considered the guidance in the ISP on a Caution Order. A Caution Order is unlikely to be appropriate where the Registrant lacks insight. In the Panel’s judgment the current level of the Registrant’s insight is not sufficient for a Caution Order. This case does not involve an isolated lapse and the Panel has found that there is a risk of repetition. A Caution Order would permit the Registrant to practise unrestricted. The Panel decided that a Caution Order would not be sufficient to protect the public.

122. The Panel considered a Conditions of Practice Order. The Panel decided that the issues the Panel has identified are capable of correction. The Panel did not consider that there were attitudinal issues in this case which would mean that conditions are inappropriate. The Registrant is fully engaging with the process and the Panel has confidence that the Registrant will comply with conditions. The Registrant’s apparently successful work record since 2012 indicates that there are no persistent issues which would prevent the Registrant remedying the issues the Panel has identified.

123. The Panel was able to formulate realistic and workable conditions which are sufficient to minimise the risk of repetition and therefore to protect the public. The Panel is aware that the Registrant is not currently employed as an Occupational Therapist, but in a role which requires her to be registered as a health professional. It was nevertheless possible to draft conditions, some of which will only apply if the Registrant is engaged in work as an Occupational Therapist in the future.

124. The Panel decided that a Conditions of Practice Order would be proportionate. It would strike an appropriate balance between the interests of the Registrant and the need to protect the public. In reaching this decision the Panel took into account the impact of the conditions on the Registrant, including her economic interests and the impact of her disability.

125. The Panel decided that the Conditions of Practice Order should include a requirement for the Registrant to attend a course on data protection and provide the HCPC with a reflective piece demonstrating the importance to service users of maintaining confidentiality. This condition is linked to particular 3 and the Panel’s finding that the Registrant’s current fitness to practise is impaired. The Panel also decided that a supervision requirement and a requirement to develop a Personal Improvement Plan are appropriate if the Registrant works as an Occupational Therapist. These conditions are linked to particulars 1 and 2 and the Panel’s finding that the Registrant’s current fitness to practise is impaired.

126. The Panel decided that the Conditions of Practice Order should be for a period of two years. The Panel decided that this period was appropriate, taking into account the Registrant’s circumstances. The Registrant is currently on long term sickness absence. Her current focus is understandably on returning to work for her current employer. There is uncertainty as to when she may be able to return. It may take time for the Registrant to be in a position to demonstrate to a review Panel that she has remedied the issues identified by the Panel. The Registrant may apply for an early review of the Conditions of Practice Order, if appropriate.

127. The Panel considered a Suspension Order, but decided that it would be disproportionate in the circumstances of this case, including the impact of delay and the Registrant’s disability. A Conditions of Practice Order provides a sufficient measure of protection for the public and the wider public interest. In the Panel’s judgment, the findings in this case are not so serious that a Suspension Order is required to maintain public confidence in the profession and the regulatory process.

128. The Panel concluded that the appropriate and proportionate Order is a Conditions of Practice Order for a period of two years.

129. The Conditions of Practice Order will be reviewed before it expires. A future reviewing Panel may be assisted by:

(a) testimonials from current or recent employer or supervisor including (if relevant) comment on the Registrant’s ability to consistently keep satisfactory and timely records;

(b) evidence that the Registrant has kept up to date with developments in the profession.

 

Order

Order: The Registrar is directed to annotate the HCPC Register to show that, for a period of two years from the date that this Order takes effect (“the Operative Date”), you, Sarah Neita, must comply with the following conditions of practice:


1. Within six months of the Operative Date you must:

(1) satisfactorily complete a course on data protection/information governance/confidentiality;

(2) forward a copy of your results or course certificate to the HCPC;


(3) write a reflective piece demonstrating your understanding of the importance to service users of maintaining confidentiality.

2. You must send a copy of your reflective piece on confidentiality to the HCPC at least four weeks before the date of the Review Hearing

3. If you engage in professional work as an Occupational Therapist you must place yourself and remain under the supervision of a supervisor and supply details of your supervisor to the HCPC within fourteen days of commencing such work.

4. If you engage in professional work as an Occupational Therapist you must:

(a)  work with your supervisor to formulate a Personal Development Plan designed to address the following areas of your practice:

(i) Completing written assessments within the required timeframe;

(ii) Completing clinical records within the required timeframe;

(iii) Progressing cases by following up on recommendations for intervention.

(b) Within three months of commencing work as an Occupational Therapist you must forward a copy of your Personal Development Plan to the HCPC.

(c) You must meet with your supervisor on a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.

(d) You must allow your supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.


5. You must promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.

6. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

7. You must inform the following parties that your registration is subject to these conditions:

A. any organisation or person employing or contracting with you to undertake professional work
B. any agency you are registered with or apply to be registered with (at the time of application); and
C. any prospective employer (at the time of your application)

8. You will be responsible for meeting any and all costs associated with complying with these conditions.

Notes

A Final Hearing of the Conduct and Competence Committee took place at

405 Kennington road, London from Monday 20 February 2017 to Tuesday

28 February 2017.  

Hearing history

History of Hearings for Miss Sarah Neita

Date Panel Hearing type Outcomes / Status
27/10/2017 Conduct and Competence Committee Review Hearing Conditions of Practice
20/02/2017 Conduct and Competence Committee Final Hearing Conditions of Practice