Mrs Joanne L Lee

: Physiotherapist

: PH57092

: Final Hearing

Date and Time of hearing:10:00 01/03/2017 End: 17:00 03/03/2017

: Novotel Cardiff Centre, Schooner Way, Cardiff, CF10 4RT

: Conduct and Competence Committee
: Suspended

Allegation

Whilst registered as a Physiotherapist and employed by Betsi Cadwaladr University Health Board, you:

1. In or around February 2013, removed approximately 814 patient records from Betsi Cadwaladr University Health Board premises without consent.

2. Between approximately February 2013 and 16 July 2014, in breach of confidentiality, stored the patient records described in particular 2:

a) at your previous home address; and/or

b) at the home address of Colleague A; and/or

c) in a manner whereby Mr A could access and/or remove the records

3. The matters described at paragraphs 1 -2 constitute misconduct.

4. By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary matters
Service of Notice
1. The Panel had before it evidence that Notice of the hearing had been sent by first class post to the Registrant’s address as shown on the Register and also to an address which the Registrant had provided to the HCPC in April 2016. The Panel was content that the Notice letter contained all relevant information and had been sent in sufficient time in advance of the hearing.

2. Whilst the Panel decided that there had been good service it was comforted by the information that the bundle of documents sent to the alternative address by registered post on a different date had been successfully delivered as there was proof that this letter had been duly signed for on receipt with a signature of ‘J Lee’.

Proceeding in the Registrant’s absence
3. The HCPC made an application to proceed with the hearing in the Registrant’s absence. The Panel has already decided that there had been good service. Having evidence of safe receipt of the hearing bundle evidenced the fact that the Registrant was aware of today’s hearing.

4. The Registrant has given no reason for her non-attendance today. In support of its application the HCPC highlighted the Registrant’s very limited engagement in the HCPC process, which amounted to one telephone call. It was stressed that this indicated that there was little, if any, likelihood of the Registrant attending should this matter be adjourned. Further, there was public interest in this matter proceeding and the HCPC had two witnesses present and ready to give evidence.

5. The Panel received the Legal Assessor’s advice on this matter and after careful consideration concluded that on the evidence before it the Registrant had made an informed decision not to attend. The Panel therefore decided that it would proceed with the hearing and that it was in the public interest to do so.

Amendment of the Allegation
6. The HCPC made an application to amend the Allegation in two regards. First, to change 814 to 817, which reflected the retrieval of three further files from Mr A, in December 2014. Secondly, the changed phrasing of, and period during which, the service user files had been in the possession of the Registrant. It was argued that both amendments better reflected the evidence and aided clarity. It was argued that neither were prejudicial to the Registrant. Further the Registrant has been put on notice of these proposed amendments and has not raised any objection.

7. The Panel was advised that any amendment to the Allegation is limited to correction, clarification or the addition of detail rather than to introduce a new strand to the case which did not benefit from a case to answer determination by the Investigating Committee.

8. The Panel considered that the two changes did not enlarge the nature of the Allegation faced by the Registrant; that they rectified any conflict between the evidence and the Allegation; and, added clarity of what was alleged. The amendments were therefore approved.

Background
9. The Registrant was a Band 6 Physiotherapist who commenced employment with the Betsi Cadwaladr University Health Board (“the Health Board”) on 20 September 1999.

10. The Registrant held a specialist role within obstetrics and gynaecology, which involved assessing, diagnosing and treating patients. In July 2014, concerns were raised about the Registrant removing patient records from the Health Board’s premises without consent. She ceased employment with the Health Board on 1 March 2016 when the matter was referred to the HCPC.

Decision on facts
11. The Panel had before it a bundle of documents on which the HCPC relied in support of the live testimony of its two witnesses. The first, Ms Owen, had undertaken the investigation on behalf of the Health Board. Her evidence covered the admissions which had been made by the Registrant in the investigatory meetings. The second, Colleague A, provided evidence of her personal and professional relationship with the Registrant and the fact of the retention of service user files at her home by the Registrant whilst the Registrant was temporarily staying with her. The Panel considered these witnesses’ evidence to be consistent with their sworn statements and the supporting documentary evidence. Both witnesses gave their testimony in a calm, considered and balanced way. The Panel considered them to be honest and credible witnesses.

Particular 1 – found proven
12. The Registrant admitted removing the service user files from the office in an interview with Ms Owen. This removal is further evidenced by the retrieval of 814 files from Colleague A’s home and the return of 3 further files by Mr A. The Registrant admitted that there had in fact been two occasions that service user files had been removed from the office. First, when the office was being refurbished and she had fears that workmen would have access to the files. On this occasion, she took them to her then marital home. Secondly, removal to her temporary home with Colleague A when she had concerns that the files which she had returned to the office in various plastic bag carriers, would be the subject of scrutiny and criticism by her head of department on an office tour. On neither occasion had she sought permission for the removal of the service user files.

The Panel finds these Particulars proven.

Particular 2(a) and 2(c) – both proven
13. These Particulars were admitted by the Registrant in formal interview. In addition Mr A, the former husband of the Registrant, had taken a photo of service user files on a bedspread at the Registrant’s former marital home which identified their location and the fact that Mr A had access to them. The fact that Mr A subsequently returned most of the files to the Registrant and then 3 further files to the Health Board supported the part of limb 3(c) relating to ‘access and/or remove the records’. The Panel therefore finds the stem of the Particular and these two limbs, including their alternatives, proven.

Particular 2(b) – proven
14. Colleague A had not known about nor personally seen the files retained at her home. When an anonymous communication was received by the Health Board, which indicated that files had been removed, the Clinical Lead Operations for Physiotherapy had undertaken an informal interview with the Registrant. At this interview the Registrant confirmed that files were at that time being stored at Colleague A’s home. In a later formal interview with Ms Owen, the Registrant had stated that she had initially taken the files to her former home and then back to the office but when she became aware that the Head of Physiotherapy was to undertake a tour of the office she had removed the files to Colleague A’s home. On the evidence before the Panel it finds this limb of the Particular proven.

Decision on grounds
15. Having determined that the factual basis of Particulars 1 and 2 had been established to the relevant standard of the common law, namely the balance of probabilities, the Panel moved on to consider whether those factual Particulars, individually or collectively, amounted to misconduct.

16. The Panel heard that the Registrant’s role was in a specialist area of practice and she was the only Physiotherapist who would, within her Region of the Health Board, have the conduct of complicated gynaecological and obstetric cases. In her absence, access to her files, current and historic, would have been crucial to those required to deal with her caseload during any period of her absence. For a period of twenty-two months those files had been unavailable and by the Registrant’s own admission, many of the ‘loose notes’ had been stored in her desk drawer and not properly filed in individual service user files.

17. The Registrant admitted that she had moved this large quantity of files and loose paperwork three times without seeking permission for her actions. First to her home, then back to the office, where they had still not been properly filed and catalogued, and then finally to Colleague A’s home from where they were retrieved. This covered a period which in total was 22 months. The Panel noted that the Registrant’s line manager was in the office three days a week and readily available to give permission or guidance on the issue of removal and safe keeping of service user files. The Panel considered that the transfer of so many files on three occasions and over such a period was very serious. It was a breach of the fundamental tenet of client confidentiality and good record keeping. There had been a candid acknowledgement by the Registrant that she knew the correct procedures for the retention and safe-keeping of service user files. It was therefore all the more remarkable that she had so blatantly ignored those procedures and done so on more than one occasion.

18. In the Panel’s view the Registrant’s behaviour had fallen seriously short of that expected of a Physiotherapist. The fact that the Registrant was an experienced practitioner made it all the more unacceptable. Her conduct was, in the Panel’s view, in breach of standards 1, 2 and 10 of the Standards of Conduct, Performance and Ethics which state:
1. You must act in the best interests of service users;
2. You must respect the confidentiality of service users;
10.  You must keep accurate records.

19. The Registrant’s actions had not resulted in any reported service user harm or complaint. This potential harm may, however, not have been readily or easily identifiable in that historic service user files which were not on site may have been required at a future date, uncertain. The service user files being unavailable had however resulted in the Health Board undertaking either full re-assessment, or further assessment, of service users. This further assessment may have unnecessarily resulted further intimate or invasive re-examinations, which in turn may have caused additional physical and emotional distress for some service users.

20. In the Panel’s view this conduct was not only serious and unprofessional but also had the potential to result in service user harm. The Panel therefore finds that the Registrant’s behaviour amounts to serious misconduct.

Decision on impairment 
21. As noted earlier, the Registrant has not engaged in the HCPC process. This is unfortunate as it has resulted in the Panel having nothing before it that would inform it of the Registrant’s current state of mind on these events which took place in 2013 and 2014. It has no personal nor professional references nor any information on what the Registrant has been doing professionally since March 2016 or by what means she has kept her knowledge and skills up-to-date.

22. The HCPC reminded the Panel that in relation to the personal component of its decision the Panel should identify whether the misconduct is capable of remedy, has been remedied, and whether there is a likelihood of a repetition of the misconduct identified. In the HCPC’s view the actions of the Registrant are capable of remedy although there is no evidence that she has taken any steps to so remedy them. The HCPC also acknowledged that within the paperwork before the Panel there was evidence of the personal factors and stressors that may have contributed towards the unusual behaviour displayed by this Registrant at this time on her career. However, the HCPC argued that in relation to the public component of the Panel’s decision, the removal of so many files from the office on two occasions and their absence over such a period would seriously undermine the public’s confidence in the Physiotherapy profession.

23. The Panel was mindful of the HCPC guidance issued on this topic of impairment. It took and accepted the advice of the Legal Assessor on the matters that it should take into account at this stage of the proceedings.

24. The Panel was aware of the need to not only assess the personal abilities of the Registrant and whether her fitness to practise is currently impaired but also to uphold and maintain the public’s confidence in the regulatory process.

25. In the absence of any information from the Registrant that would assist the Panel in assessing her current abilities or state of mind on these events the Panel came to the view that on the personal component her fitness to practise is impaired.  Further the Panel considered that the matters found were so serious that notwithstanding whether the Registrant had undertaken any measures to remedy her behaviour a finding of impairment was required in the public interest. The Panel therefore concluded that there was current impairment of the Registrant’s fitness to practise on the personal and the public components.

26. The Panel noted that within the paperwork there were various references to the difficult family situation which existed at the time of these events.

27. The Panel also noted that there had been long gaps between supervision sessions, a matter which the Health Board had not taken issue with and had apparently now addressed for current staff. The Panel also noted that the process of annual record audit had been based on files which the individual practitioner had chosen for selection. Again this process has been changed by the Health Board.

Decision on sanction
28. In reaching its decision the Panel accepted the advice of the Legal Assessor; received the HCPC’s representations; and took into consideration the terms of the Indicative Sanctions Policy issued by the HCPC.

29. The Panel appreciated that in undertaking its task it was weighing and balancing the interests of service users, the wider public and the Registrant’s ability to remain in her profession and if appropriate her return to safe practice. The Panel has taken into account the totality of the information before it at this stage in its process.

30. As advised the Panel noted the various aggravating and mitigating factors that would assist it in reaching a decision which is proportionate.

Mitigating factors
31. The Panel noted that within the paperwork there were various references to the difficult family situation which existed during the time of these events. The Registrant had however acknowledged that before the files were removed there had been an amount of unfiled loose papers that had not been adequately or safely stored.

32. The Panel also noted that there had been long gaps between supervision sessions, a matter which the Health Board had not taken issue with and the Panel was told had now been addressed. The Panel also heard that the process of annual record audit had been changed in that registrants no longer choose which files should be reviewed.

33. The Registrant when questioned had made a full and immediate admission of the facts. She had given reasons for her actions but had not made any attempt to deny what she had done or to claim that she was unaware that it was in breach of the record management procedure.

34. The Registrant expressed and demonstrated remorse for her actions.

35. This is the first time that the Registrant has faced a complaint to her regulator and there is no information before this Panel of any service user complaints or prior concerns about the Registrant’s practice.

Aggravating features
36. The length of time over which this inappropriate behaviour continued. It was nearly two years before the absence of the files had been discovered and during this time service users’ right to confidentiality had been breached and there was the potential for harm to result from this situation.

37. The Registrant’s misconduct was very serious and was repeated by three stages of transit of a large volume of files.

38. The Registrant at the time, and to date, has shown no insight into how serious her misconduct was. The fact that her former husband had access to and had been left in the sole care of so many files was reckless. Having then taken back custody of the vast majority of the files to remove them to another insecure location was a blatant disregard for her professional responsibilities. The Registrant’s action of returning the files to the Health Board and then removing them again whilst knowing that this was wrong demonstrated a total lack of understanding of the risks she was exposing her service users to.

39. Taking these matters into consideration the Panel has decided that taking no further action is inappropriate; that Mediation is not a suitable sanction in this instance; that a Caution Order will provide no service user protection and is therefore inadequate.

40. In relation to the imposition of a Condition of Practice Order, the Panel had no information from the Registrant that would assist the Panel. It is unknown if the Registrant is working and if, or how, she has kept her skills and knowledge up-to-date. Constructing conditions in such a situation would be very difficult. Notwithstanding this, the Panel considered that this level of sanction would not be proportionate in the circumstances of this case given that the Registrant’s actions were so serious: public confidence in the profession would not be restored by such a measure.

41. The Panel gave careful consideration as to whether the Registrant’s actions were fundamentally incompatible with remaining on the Register. Whilst the Registrant has shown a level of recklessness that is unacceptable in an experienced professional, the Panel considered that a Strike-off Order would be punitive and disproportionate given that the Registrant’s failings had been identified by the Panel as being remediable and the Registrant has shown remorse for her actions. In all the circumstances of this case the Panel considers that this is an appropriate and proportionate and which reflects and addresses the publics concerns arising from the Registrant’s serious misconduct.

42. The Panel therefore decided that a period of suspension is appropriate and proportionate in this instance. The period of suspension is for twelve months. This Suspension Order will be reviewed before it expires. At a review hearing the Registrant will be given the opportunity to provide evidence to that reviewing Panel. This Panel cannot restrict or influence the information that this reviewing Panel may consider appropriate however the Registrant should be aware that the following information may assist that reviewing Panel in their task.

43. The Registrant’s attendance at the hearing. In this regard the Registrant should be aware that she may request a hearing close to her home or agree to a hearing in another part of the UK outside of Wales that is more convenient for her to travel to from her home.

44. An extensive piece of reflective writing which demonstrates that the Registrant has gained an understanding of the importance of good record-keeping and the need at all times to maintain service user confidentiality which includes the safe and secure storage of service user notes. The Registrant should demonstrate that she has understood fully how serious a breach of service user confidentiality is and how service user harm can flow from such a breach.

45. Information on all work she has undertaken since the time of the allegation, either paid or unpaid, and either contractual or voluntary. References from those who she has worked with, for or alongside in these positions, giving information on her abilities and qualities in those roles.

46. Personal references and professional references attesting to the Registrant’s personal qualities. The Registrant may also wish to consider providing any historic references or commendations she has received from past colleagues or service users.

Order

That the Registrar is directed to suspend the registration of Mrs Joanne L Lee for a period of 12 months from the date this order comes into effect.

Notes

The order imposed today will apply from 30 March 2017 (the operative date).

This order will be reviewed again before its expiry on 30 March 2018.

Hearing history

History of Hearings for Mrs Joanne L Lee

Date Panel Hearing type Outcomes / Status
01/03/2017 Conduct and Competence Committee Final Hearing Suspended