Mr David W H Morris
Allegations (as amended at Final Hearing)
Between 22 August 2014 and 27 January 2015, during the course of your employment as a Speech and Language Therapist at Chatting Independently:
1. In relation to Service User A:
(a). Between August 2014 and November 2014 you did not ensure that Service User A was receiving thickened fluids and/or a mashed diet, despite being informed of the eating requirements of this service user;
(b). You did not demonstrate the required knowledge of dysphagia when asked about your reasons for not ensuring that Service User A received thickened fluids and/or mashed food and/or refer Service User A to a specialist speech and language therapist;
(c). On or around 3 October 2014, you stated that “staff hadn’t had time" to thicken fluids for Service User A and/or that you were “confident that Service User A would not aspirate", or words to that effect.
(d) You made significant changes to Service User A's diet, which was contrary to the advice of Service User A’s previous speech and language therapist and/or without consulting with this practitioner;
(e) Between August 2014 and November 2014 you did not undertake and/or record a mental capacity assessment;
2. Your actions described in paragraph 1 put Service User A at risk.
3. On or around 22 August 2014, whilst managing Chatting Independently, you did not ensure that qualified staff were available to administer medication to Service User B.
4. The matters set out in paragraphs 1 – 3 constitute misconduct and/or lack of competence.
5. By reason of your misconduct and/or lack of competence, your fitness to practise is impaired.
Service of Notice
1. The notice of this hearing was sent to the Registrant at his address as it appeared in the register on 19 October 2016. The notice contained the date, time and venue of today’s hearing.
2. The Panel accepted the advice of the Legal Assessor and is satisfied that notice of today’s hearing has been served in accordance with the rules.
Proceeding in absence
3. The Panel then went on to consider whether to proceed in the absence of the Registrant pursuant to Rule 11 of the Conduct and Competence Committee Procedure Rules. In doing so, it considered the submissions of Mr Claxton on behalf of the HCPC.
4. Mr Claxton submitted that the HCPC has taken all reasonable steps to serve the notice on the Registrant. He further submitted that the Registrant had stated in an email to the HCPC dated 31 March 2016 that he would not be attending the final hearing nor would he be represented. Mr Claxton submitted that the Registrant’s absence from the hearing was voluntary and that he had waived his right to attend and/or to be represented, that an adjournment would serve no useful purpose and there was a public interest in this matter being dealt with expeditiously. He advised that two witnesses were in attendance for day one of this hearing and were present, with two further witnesses scheduled for day two.
5. The Panel accepted the advice of the Legal Assessor. He advised that if the Panel is satisfied that all reasonable efforts have been made to notify the Registrant of the hearing then the Panel had the discretion to proceed in the absence of the Registrant. He advised the Panel that this discretion was to be exercised with care and caution as set out in the case of R v Jones  UKHL 5. The Legal Assessor also referred the Panel to the case of GMC v Adeogba and Visvardis  EWCA Civ 162 and advised that the Adeogba case reminded the Panel that “where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed”.
6. It was clear from the principles derived from case law that the Panel was required to perform a balancing exercise to ensure that fairness and justice was maintained when deciding whether or not to proceed in a Registrant’s absence. The Panel was satisfied that all reasonable efforts had been made by the HCPC to notify the Registrant of the hearing. It was also satisfied that the Registrant was aware of the hearing.
7. In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPC practice note entitled ‘Proceeding in the Absence of a Registrant’. The Panel weighed its responsibilities for public protection and the expeditious disposal of the case with the Registrant’s right to a fair hearing. In reaching its decision the Panel took into account the following:
• The Registrant has not made an application to adjourn today’s hearing;
• There is a clear indication that the Registrant does not wish to attend the hearing and there is no reason to believe that an adjournment would serve any useful purpose;
• A number of witnesses have attended to give evidence;
• There is a public interest that this matter proceeds expeditiously.
8. The Panel was satisfied that the Registrant had voluntarily absented himself from the hearing and had waived his right to be represented. It determined that it was unlikely that an adjournment would result in the Registrant’s attendance at a later date. Having weighed the public interest in the expeditious disposal of this case with the Registrant’s own interest, the Panel decided to proceed in the Registrant’s absence.
Amendment to the allegation
9. Mr Claxton made an application to amend the particulars of the allegation in various respects. Notice of the proposed application to amend was sent to the Registrant by letter dated 17 September 2015. The Registrant did not respond to this letter. In the Panel’s judgment, the proposed amendments served to clarify the particulars of the allegation without materially altering its substance. No injustice would be caused to the Registrant by making the amendments. The application was therefore granted. The particulars as amended are set out above.
Background and summary of the witness statements:
10. The Registrant was employed as a Speech and Language Therapist and Manager at Chatting Independently, a residential rehabilitation centre for clients with learning difficulties and complex physical needs. Service Users A and B were both clients at Chatting Independently with speech and language therapy needs. The Registrant was the only registered Speech and Language Therapist at Chatting Independently and it is the HCPC’s case that as a result he was responsible for the care or Service Users A and B. Following a whistleblowing concern a safeguarding investigation commenced into Chatting Independently in August 2014. Service User A was transferred to Chatting Independently from Treloar College shortly after the safeguarding investigation started. Service User B had been a resident at Chatting Independently for a number of years before the safeguarding investigation.
11. The safeguarding investigation was led by Witness 2, a Senior Community Learning Disability Nurse and Safeguarding Practitioner within the Fenland Learning Disability Team. In this role, she attended a number of safeguarding meetings and carried out visits to Chatting Independently. On 19 September 2014 Witness 2 contacted Witness 1, a Speech and Language Therapist, whose role involves providing Speech and Language Therapy assessments and interventions for adults with learning disabilities. Witness 2 reported her concerns regarding the treatment Service User A had been receiving at Chatting Independently. As a result, Witness 1 visited Chatting Independently and met Service User A on two occasions. Service User A had complex needs, suffering from physical disabilities and learning difficulties. He has dysphagia, a disorder which affects an individual’s ability to chew and swallow which results in difficulties eating and drinking. The main risks associated with this condition are choking and aspirating which can be life threatening.
12. During these visits to Chatting Independently Witness 1 became concerned about the level of care Service User A was receiving. At his previous placement at Treloar College Service User A had been prescribed a specific diet of thickened fluids and mashed foods because of his dysphagia. This had been put in place by Witness 3, a Highly Specialist Speech and Language Therapist at Treloar College. During the safeguarding investigation Witness 3 provided details of this specific diet, although due to an administrative error the full details of this had not been given to Chatting Independently when Service User A was transferred.
13. According to Witness 3 Service User A was prone to silent aspiration and therefore at risk of chest infections. Witness 3 explained that silent aspiration means that when food or drink passed into Service User A’s lungs he does not cough but instead he will become teary, blink a lot and/or his face will redden. Witness 3 confirmed that a transition meeting had not occurred prior to Service User A transferring to Chatting Independently despite efforts to arrange one by Treloar. A transfer meeting did take place on 30 September 2014.
14. Witness 4, at the relevant time employed as the Acting Locality Manger, Clinical Lead, for the West Hampshire Continuing Healthcare Team, was appointed to work with the safeguarding investigation when West Hampshire CCG received an email from Witness 2 attaching the minutes of a safeguarding meeting held on 8 August 2014. The email was sent as Service User A, a client of West Hampshire, was due to transfer Chatting Independently on 12 August 2014. Witness 4 had a number of conversations with the Registrant and had exchanged emails with him before she conducted a visit to Chatting Independently on 13 October 2014. During this visit, Witness 4 noted that staff were not following Service User A’s Eating and Drinking Profile which had been handed to the Registrant on 30 September 2014. She observed Service User A being fed food that was not mashable. In this visit she discussed the Registrant’s dysphagia knowledge with him. The Registrant informed Witness 4 that he was not qualified in dysphagia management and that his most up to date training was when he first qualified many years previously. When she became aware that Service User A was being asked to make choices about his diet Witness 4 challenged the Registrant about Service User A’s capacity to make these choices. From the Registrant’s answers it became apparent to Witness 4 that a Mental Capacity Act assessment for Service User A had not been completed and that neither the Registrant nor the staff at Chatting Independently were trained in the Mental Capacity Act.
15. The concerns in relation to Service User B became apparent during a safeguarding meeting on 3 October 2014. Chatting Independently is split into two sites which were approximately 500 yards apart. Service User B receives medication through a PEG tube which requires flushing to ensure that the tube does not block and medication is delivered. Witness 2 was told that on 22 August 2014 most staff at Chatting Independently were taking part in a First Aid Training Course at one site, leaving only three agency staff to care for six service users, including Service User B, at the other site. The agency staff reported that they were not confident to flush Service User B’s PEG which resulted in Service User B being brought to the other site so the qualified staff could flush his PEG.
16. The matter was referred to the HCPC. As a result of the safeguarding investigation all clients were moved out of Chatting Independently.
Decision on Facts:
17. The Panel considered all the evidence in this case together with the submissions made by Mr Claxton on behalf of the HCPC. The Panel accepted the advice of the Legal Assessor who reminded the Panel that the burden of proof rests with the HCPC, and that the Registrant need not prove or disprove anything. The Legal Assessor also reminded the Panel that the standard of proof is the civil standard, namely the balance of probabilities. This means if the Panel is satisfied that it was more likely than not that a factual particular occurred as alleged or is true, then it must find that Particular proved.
18. The Panel heard oral evidence from Witnesses 1, 2, 3 and 4. The Panel found these witnesses to be honest, clear, consistent and fair. They did not attempt to speculate when they could not recall matters, and what they could recall was consistent with their statements, as summarised above, and other evidence in the case.
19. The Panel also received a bundle of documentary evidence, which included the relevant notes of safeguarding meetings, safeguarding action plans, summaries of visits to Chatting Independently by the safeguarding team, the available records from Treloar College and the available records from Chatting Independently.
20. The Registrant submitted written representations in advance of the hearing and three character references. The Panel gave full consideration to the Registrant’s submissions and put these to the HCPC’s witnesses following their evidence in chief. In summary, the Registrant’s position is as follows:
• The allegations made against him are based on the fact that Service User A was prone to silent aspiration when there was no evidence of that in the documentation from Treloar College.
• At Chatting Independently Service Users were given as long as they needed to eat thereby reducing the risk of choking.
• He denied that he had changed Service User A’s diet and had never said staff were too busy to make thickened liquids
• The problems with Service User A’s chest were not the result of aspiration or silent aspiration but rather due to the structure of his chest.
• He had never claimed to be a specialist in dysphagia and if he thought a Service User required a dysphagia assessment he would refer the Service User to a specialist speech and language therapist working in the NHS as he had done in the past.
• In relation to the mental capacity of Service User A he stated that the documentation from Treloar demonstrated that Service User A could make decisions on a day to day basis and showed good understanding of the environment around him.
• In relation to Service User B he submitted that Chatting Independently operates on two locations separated by about 500 yards and training was being given at one of those sites leaving only agency staff in the location Service User B was in. He stated he acted as a responsible manager in asking Service User B to come to the other site where qualified staff flushed his PEG and that he did not miss out on medication.
“Between August 2014 and November 2014 you did not ensure that Service User A was receiving thickened fluids and/or a mashed diet, despite being informed of the eating requirements of this service user;”
21. The Panel received evidence from the HCPC’s witnesses that they had observed Service User A being fed inappropriate or unmashable food and unthickened fluids. This was also recorded in the written records of visits to Chatting Independently during the safeguarding investigation. During her visit to Chatting Independently on 22 September 2014, Witness 1 noted from Service Users A’s records that he had been fed ‘pizza, sausages, garlic bread, toast and marmite’. She stated that there was no indication in the records that these foods had been modified to suit Service User A’s requirements. During a visit to Chatting Independently on 10 October 2014, Witness 2 noted in Service Users A’s records that he had been given unthickened fluids. Witness 4 gave evidence that during a visit to Chatting Independently on 13 October 2014 she saw Service User A being fed a ‘casserole, which was not mashable’. This visit occurred after Chatting Independently had received a copy of the eating and drinking profile supplied by Treloar College. In her notes of this visit Witness 4 records that Service User A’s daily logs show his diet over the previous two days consisted of ‘KFC Chicken strips, roast chicken and Yorkshire pudding’. At a safeguarding meeting on 14 November 2014 it was noted that “SUA was seen eating foods that are not suitable for him such as spaghetti and sausages, these are a risk to him.’ Whilst there was some evidence that Chatting Independently started to give Service User A thickened fluids towards the end of the safeguarding investigation there was no such improvement in relation to the food given to him. The Panel finds that there is overwhelming evidence that the Registrant did not ensure that Service User A received thickened fluids, for most of the relevant time, or a mashed diet.
22. The Panel accepted that Chatting Independently had not received the Eating and Drinking Profile prepared by Treloar when Service User A was first transferred and did not until 30 September 2014. However, the Panel is satisfied that the Registrant would have been aware of Service User A’s eating and drinking requirements given that these are set out in Service Users A’s Leavers Report from Treloar College. This report was entitled ‘Speech and Language Therapy Report’. The Panel had sight of an email dated 15 July 2014 sent to the Registrant by Witness 3. She explained that the email was sent to the Registrant in response to him expressing disagreement over Service Users A’s cognitive ability which was detailed in the same Leavers Report. From this it is reasonable to infer that the Registrant received the Leavers Report and therefore the information about Service Users A’s eating and drinking requirements. In any event the documentary and oral evidence shows that the Registrant was reminded of the eating and drinking requirements of Service User A on a number of occasions during the safeguarding process, but that this was largely ignored. For example, an action point arising from the safeguarding meeting on 03 October 2014, at which the Registrant was present, states, “Chatting Independently to review SUA eating and drinking and amend guidelines immediately and use profile provided by Treloar.” The Panel finds that particular 1(a) is proved in its entirety.
“You did not demonstrate the required knowledge of dysphagia when asked about your reasons for not ensuring that Service User A received thickened fluids and/or mashed food and/or refer Service User A to a specialist speech and language therapist;”
23. In her witness statement Witness 4 recorded a conversation she had directly with the Registrant. “DM admitted that he is not qualified in dysphagia management and that his most up-to-date training was when he qualified”. This is also recorded in a safeguarding report dated 7 November 2014. In her statement Witness 1 confirms that during the safeguarding investigation the Registrant asked her for advice regarding suitable post graduate training. Other comments attributed to the Registrant, for example that he ‘was confident Service User A wouldn’t aspirate’ demonstrated to the Panel that the Registrant did not have the required knowledge of dysphagia when asked about Service User A’s eating and drinking requirements. Furthermore, the Panel finds it reasonable to infer that if the Registrant had the required knowledge he would have referred to it and would have acted upon it. In his submissions, the Registrant stated:
“The allegations are based on the wrong premis(sic) and assumption that as a speech and language therapist I was trained in dysphagia. I did have my original training as a speech and language therapist but if I required more detailed training I would have referred the person to a more experienced speech and language therapist.”
24. The Panel finds that this makes it clear that the Registrant did not have the required knowledge of dysphagia. There was no evidence that that the Registrant referred Service User A to a specialist speech and language therapist. Indeed, this is accepted by the Registrant even though in his submissions he confirmed he had made such referrals previously for other service users. The Panel finds this particular proved in so far as the Registrant did not demonstrate the required knowledge of dysphagia and did not make the necessary referral.
“On or around 3 October 2014, you stated that “staff hadn’t had time" to thicken fluids for Service User A and/or that you were “confident that Service User A would not aspirate", or words to that effect.”
25. In their evidence Witnesses 1 and 2 say they were present when these comments were made by the Registrant at the safeguarding meeting held on 03 October 2014. There was also a written record of this meeting including these comments within the case papers. The written record of the meeting was sent to the Registrant at the time and no challenge was made to its accuracy. The Panel notes that the Registrant denies making these comments but the Panel prefers the accounts of the witnesses, supported by the documentary evidence, to that given by the Registrant. The Panel finds both parts of this particular proved
“You made significant changes to Service User A's diet, which was contrary to the advice of Service User A’s previous speech and language therapist and/or without consulting with this practitioner;”
26. Much of the evidence in relation to this particular also related to particular 1(a). The Panel has already provided examples of significant changes to Service User A’s diet made by the Registrant in its findings on 1(a). Having considered the evidence of Witness 3 the Panel finds it more likely than not that these changes were made contrary to her advice. Witness 3’s evidence was that she gave the Registrant advice about Service User A’s eating and drinking needs at a meeting on 30 September 2014 but that this advice had not been followed. In his own submission, the Registrant accepts that he did not seek specialist advice in relation to Service User A’s eating and drinking requirements, instead relying on the Service User’s apparent wishes. The Panel finds both parts of this particular proved.
“Between August 2014 and November 2014 you did not undertake and/or record a mental capacity assessment;”
27. In her evidence Witness 4 states that the Registrant told her that neither he nor the staff at Chatting Independently were trained in The Mental Capacity Act. Corroboration of this lack of training in the Act at Chatting Independently is provided in the notes of safeguarding action plan on 3 October 2014. The Registrant was present at this meeting. There was evidence from Witness 4 that she had advised the Registrant that he needed to complete a Mental Capacity Assessment for Service User A in an email she sent him on 18 August 2014. In his submissions, the Registrant stated ‘As for the Mental Capacity of this service user it states in the documentation from Treloar College that he can make decisions on a day to day basis and knew when he was thirsty although he may not ask for a drink’. The Panel heard evidence from the HCPC’s witnesses about the importance of ensuring that Service Users with complex needs effectively understand the questions they are being asked and can answer them appropriately. It was the clear view of Witness 3, a Highly Specialist Speech and Language Therapist, who had cared for Service User A for a number of years at Treloar College that Service User A could not understand the risks associated with eating different types of food and so could not make safe choices. The Panel accepted that her view was soundly based and considered that the evidence clearly demonstrated that any contrary view would need to be supported by a mental capacity assessment. The Registrant’s submissions demonstrate that he has a lack of understanding of what a mental capacity assessment actually is. The Panel finds that there is overwhelming evidence that a mental capacity assessment was not undertaken in relation to Service User A. As one was not undertaken, it follows that it could not have been recorded. The Panel finds the first part only of this particular proven.
“Your actions described in paragraph 1 put Service User A at risk.”
28. All of the witnesses called by the HCPC gave evidence that the care Service User A received at Chatting Independently put him at risk. That risk included the possibility of aspirating, whether silently or not, which in turn left the Registrant open to the risk of choking and to chest infections. There were eating and drinking plans to mitigate these risks to Service User A but these were not followed by the Registrant or the staff for whom he had responsibility. The Registrant’s lack of knowledge of dysphagia, coupled with his failure to refer Service User A for specialist assessment added to this risk. The risk to Service User A was further compounded by the Registrant’s reliance on Service User A’s responses to questions about his eating and drinking requirements without conducting a mental capacity assessment. The witnesses gave evidence that during his relatively short time at Chatting Independently Service User A suffered three chest infections, whereas for the previous 3 years at Treloar these had been avoided. The Panel appreciated that there was no medical evidence that the care Service User A received at Chatting Independently caused these infections, but they add weight to the evidence that the care he received did put him at risk. The Panel finds this particular proven.
“On or around 22 August 2014, whilst managing Chatting Independently, you did not ensure that qualified staff were available to administer medication to Service User B.”
29. The Panel noted out that there is a typographical error in witness 4’s statement concerning this particular. She refers to the relevant date as being 22 September 2014. It is clear from the supporting documentation that the correct date is 22 August 2014 as set out in the charge. The Registrant has responded to this particular in his written submissions and it is apparent he knows the date of the incident. This typographical error has not materially affected the Panel’s decision. The Registrant submitted that because staff were at the other site, about 500 yards away, and were able to flush Service Users B’s PEG there, that he had acted as a responsible manager. The Panel were not persuaded by this. Service User B required his medication to be administered by the PEG and so there should have been staff capable of performing this in close proximity to Service User B at all times. It is not enough, in the view of this Panel, to say that appropriately qualified staff were ‘nearby’ and therefore available. Witness 2 gave evidence that Service User B would likely need his PEG flushed two to three times per day and the Panel considers that there would be a risk that this would not happen if there were no qualified staff present and available in the facility where he lived. The Panel finds this particular proved.
Decision on Grounds:
30. The Panel recognised that it must first consider whether, on the facts found proved, the Registrant’s behaviour constituted a lack of competence and/or misconduct, and secondly, if applicable, whether his fitness to practise is currently impaired by reason of that lack of competence and/or misconduct. Mr Claxton stated that his focus in his submissions was that the Registrant’s actions amounted to misconduct, although he appreciated that it was open to the Panel to decide that some or all of the facts, if found proved, would amount to a lack of competence. The Panel accepted the advice of the Legal Assessor.
31. The Panel exercised its own judgement in determining the issue before it. In considering the Registrant’s fitness to practise, the Panel reminded itself of its duty to protect the public and of its wider duty to protect the public interest, which included the declaring and upholding of proper standards of conduct and behaviour, and the maintenance of public confidence in the profession and the regulatory process. The Panel reminded itself of the advice of the Legal Assessor, who had advised the Panel that misconduct is “a word of general effect, involving some act or omission, which falls short of what would be proper in the circumstances.” He stressed that misconduct is qualified by the word “serious”. It is not just any professional misconduct, which will qualify. He also advised that a lack of competence connotes a standard of work that is unacceptably low and should usually be demonstrated by a fair sample of the Registrant’s work.
32. The Panel considered that on the facts found proved the Registrant had breached the following paragraphs of the HCPC’s standards of conduct, performance and ethics:
1. You must act in the best interests of service users.
5. You must keep your professional knowledge and skills up to date
6. You must act within the limits of your knowledge, skills and experience and, if necessary, refer the matter to another practitioner.
8. You must effectively supervise tasks that you have asked other people to carry out.
33. The Panel reminded itself that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC standards would be sufficiently serious such as to amount to misconduct in this context. Therefore, the Panel has had careful regard to the context and circumstances of the matters found proved.
34. Having done so the Panel finds that the actions and omissions of the Registrant, both collectively and individually, were serious. Both service users were vulnerable and required a high degree of structured and appropriate care. It is apparent that the Registrant’s actions placed both service users at risk of harm.
35. The Panel considered the failings of the Registrant in the light of the evidence and the circumstances of this case to decide whether they amount to misconduct or a lack of competence. Having done so, the Panel finds that particular 1(b), in so far as it refers to the Registrant’s failure to demonstrate the required knowledge of dysphagia, more accurately reflects a lack of competence on the part of the Registrant. The failings of the Registrant in relation to this were not wilful, but demonstrated a lack of professional knowledge. However, his failure to refer Service User A to a specialist speech and language therapist in the remainder of particular 1(b) amounts to misconduct. He had previously appreciated the need to refer other service users but did not do so for Service User A, this was therefore a wilful act. The Panel found that the Registrant’s actions in relation to particular 1(e) demonstrated a lack of professional knowledge rather than a wilful disregard for what was required. The Registrant lacked knowledge of the Mental Capacity Act and did not appreciate the need to undertake a mental capacity assessment of Service User A, despite this service user’s needs. The Panel’s finding of fact in relation to particular 1(e) therefore amounts to a lack of competence. The Panel appreciates that its findings of a lack of competence related to one service user only. However, the findings involve fundamentally important areas in which a speech and language therapist would be expected to have knowledge, or at least appreciate that he or she lacked such knowledge. As such the Panel finds that the failings in these significant areas of practice are sufficient to qualify as the statutory ground of a lack of competence even though they may not represent a fair sample of the Registrant’s work.
36. The Panel was satisfied that all the remaining particulars amounted to misconduct. The Registrant chose to ignore eating and drinking guidelines specifically devised for Service User A and therefore acted wilfully. He decided to make changes to Service User A’s diet despite the risks of such changes being explained to him on a number of occasions. He decided to pursue his own course rather than listen to the advice he was being given by the safeguarding team. All the HCPC’s witnesses stated that the changes to Service User A’s diet represented a risk and potentially a life threatening one. Their evidence was that the Registrant had been warned of the potential consequences for Service User A but that these were largely not heeded by the Registrant. He based his treatment of Service User A on his own mis-placed confidence that Service User A would not aspirate despite the obvious risk of this being set out in the documentation provided to him by Treloar College. His failure to ensure that suitably qualified staff were available to administer medication to Service User B was a wilful and serious action which presented obvious and avoidable risks for this service user. The fact that suitably qualified staff may have been about 500 yards away does not mitigate the seriousness of the Registrant’s failing. In regards to particulars 1(a), the second part of 1(b), 1(c), 1(d), 2 and 3 the Registrant’s failings related to fundamental areas of practice for a registered speech and language therapist and therefore amount to misconduct.
Decision on Impairment:
37. The Panel then went on to consider, on the basis of the misconduct and lack of competence found, whether the Registrant’s fitness to practise is currently impaired by reason of these failings. The Legal Assessor drew the Panel’s attention to the test set out in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin), and reminded the Panel that there was a personal and public component when considering whether the Registrant’s fitness to practise was currently impaired.
38. For this purpose, the Panel adopted the approach formulated by Dame Janet Smith in her fifth report of the Shipman inquiry by asking itself the following questions:
"Do our findings of fact in respect of the doctor's misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:
a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or
c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession;
39. The Panel determined that the answers to all the above questions were in the affirmative in relation to past, and future possible conduct. In coming to its decision, it took into account the following factors:
a) There has been no evidence of any action taken by the Registrant to remediate his misconduct and lack of competence. His current circumstances are unknown and he has not provided any evidence of steps taken to rectify the failures in his practice identified by the safeguarding team.
b) There is no evidence that the Registrant has insight into his failings. His lack of insight was further compounded in his submissions to this Panel. He continues to deny any failings in his practice despite having had over two years to reflect on the events of August to November 2014. There is nothing to indicate that the Registrant has looked at his conduct with a self-critical eye, he has not acknowledged fault and there has been no apology or expression of remorse. The Panel therefore finds that there is a high risk of repetition of the Registrant’s actions.
c) The Registrant’s failings were repeated even when the safeguarding investigation was ongoing and covered fundamental areas of speech and language therapy skills.
40. The Panel also determined that the Registrant’s misconduct was such that the need to uphold professional standards and public confidence in the professions would be undermined if a finding of impairment were not made in these circumstances. In deciding this the Panel were mindful that the Registrant’s misconduct/lack of competence presented a real risk of harm to both service users.
41. Therefore, the Panel determined that the Registrant’s fitness to practise is currently impaired on both personal and public interest considerations.
Decision on Sanction:
42. The Panel heard the submissions of Mr Claxton with regard to sanction and accepted the advice of the Legal Assessor. The Panel had regard to all the evidence presented, and to the Council’s Indicative Sanctions Policy. The Panel reminded itself that a sanction is not to be punitive although it may have a punitive effect. The Panel bore in mind the principles of fairness and proportionality when determining what the appropriate sanction in this case should be.
43. The Panel took into account the following mitigating factors:
• There are no previous regulatory findings against the Registrant during his lengthy professional career.
• The Registrant’s motives, although misguided and based on ignorance, appear to have been benign.
• The three testimonials provided by fellow professionals indicate that the Registrant is a caring individual.
44. The Panel also took into account the following aggravating factors:
• The misconduct arose largely as a result of the Registrant’s ignorance of the concept of mental capacity, a basic and fundamentally important aspect to much of his work.
• The Registrant ignored the advice and concerns of fellow professionals, expressed over a period of some months and, without any justification, maintained an attitude of ‘I know better’.
• The Registrant’s actions put vulnerable service users at serious risk of harm.
• The Registrant continues to display a lack of insight into his failings.
45. In considering the matter of sanction, the Panel started with the least restrictive and first considered taking no action or imposing a caution order but concluded that, given the seriousness of the Registrant’s misconduct and his lack of competence, this would be wholly inappropriate. His failings were not at the lower end of the spectrum of impairment and taking no action or imposing a caution order would not address the risk the Registrant poses to the public or protect the public interest.
46. The Panel next considered the imposition of a Conditions of Practice Order. Despite the lack of engagement by the Registrant the Panel attempted to identify conditions that would address the risk the Registrant poses to the public whilst allowing him to continue to practice. However, given the Registrant’s lack of insight the Panel could have no confidence that he would be willing or able to comply with conditions. Furthermore, he ignored the advice and recommendations given to him throughout the safeguarding investigation which makes the likelihood of him complying with conditions imposed by his regulator more remote. The Panel concluded that a Conditions of Practice Order would not therefore adequately address the risk posed by the Registrant, and in doing so protect service users, colleagues and the public during the period they are in force.
47. The Panel went on to consider whether a period of suspension would be appropriate in this case. The Panel finds that a Suspension Order will provide the necessary degree of protection that the public requires in light of the seriousness of the Registrant’s misconduct and lack of competence. There is some indication that the Registrant may be unable to address his failings but the Panel finds that this is not necessarily the case at this stage. The Panel was mindful that the Registrant appears to have worked effectively in his profession for approximately 30 years. It is against this background that the Panel finds that the Registrant deserves a chance to rectify his failings and show that they were an aberration. The Panel did go on to consider whether a Striking Off Order would be appropriate and proportionate and found that, to a degree such an order could be merited in this case. However, the Panel has decided that, at this stage, such an order would be premature and therefore disproportionate.
48. In deciding to impose a Suspension Order the Panel then went on to consider the length of order required. The Panel has decided that a period of suspension for 12 months is appropriate and proportionate. This will allow the Registrant time to attempt to remedy the serious failings in his practice which involved basic and fundamentally important areas of the professional work of a registered speech and language therapist.
49. This Order will be reviewed before its expiry. The Panel has identified the following matters which the Registrant should address and which may assist the reviewing panel:
• The Registrant will need to ensure that he has fully addressed the major gaps in his knowledge and understanding of the Mental Capacity Act, and dysphagia to the extent of understanding the implications of this condition for his work.
• The Registrant must demonstrate the development of full insight into the failings in his professional practice in this case. It may assist him in doing so if he could provide a comprehensive reflective piece on the issue.
• The Registrant’s attendance at the review hearing.
50. The Panel stresses the importance for the Registrant in taking the opportunity afforded him by the imposition of a Suspension Order. A Striking Off Order was a real possibility in this case and will be again when the case is reviewed.
The order imposed today will apply from the expiry of the appeal period of 28 days.
This order will be reviewed by the Committee no later than 29 March 2018 or earlier if new evidence which is relevant to the order becomes available after it was made.
History of Hearings for Mr David W H Morris
|Date||Panel||Hearing type||Outcomes / Status|
|12/01/2018||Conduct and Competence Committee||Review Hearing||Voluntary Removal agreed|
|27/02/2017||Conduct and Competence Committee||Final Hearing||Suspended|