Miss Elaine Miller

: Chiropodist / podiatrist

: CH16235

Interim Order: Imposed on 09 Mar 2017

: Final Hearing

Date and Time of hearing:10:00 09/03/2017 End: 17:00 10/03/2017

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

: Conduct and Competence Committee
: Suspended

Allegation

Allegation (as amended)

During the course of your employment as a Podiatrist with South Tyneside NHS Foundation Trust, between 19 July 2004 and 06 November 2015, you:

1. On 03 February 2014 provided treatment to patient 6, and you:

(a) recorded on the System 1 patient record that you had conducted a monofilament test when you had not, in fact, done so;

(b) recorded on the System 1 patient record that you had conducted a tuning fork test when you had not, in fact, done so;

(c) recorded on the System 1 patient record that you had conducted a Doppler test when you had not, in fact, done so.

2. On 07 April 2015 provided treatment to Patient 5, and recorded on the System 1 patient record that you had conducted a Doppler test when you had not, in fact, done so.

3. On 22 April 2015 provided treatment to Patient 1, and you:

(a) recorded on the System 1 patient record that you had conducted a monofilament test when you had not, in fact, done so;

(b) recorded on the System 1 patient record that you had conducted a tuning fork test when you had not, in fact, done so.

4. On 23 April 2015 provided treatment to Patient 2, and you:

(a) recorded on the System 1 patient record that you had conducted a monofilament test when you had not, in fact, done so;

(b) recorded on the System 1 patient record that you had conducted a tuning fork test when you had not, in fact, done so.
5. On 23 April 2015 provided treatment to Patient 3, and you:

(a) recorded on the System 1 patient record that you had conducted a monofilament test when you had not, in fact, done so;

(b) recorded on the System 1 patient record that you had conducted a tuning fork test when you had not, in fact, done so;

(c) did not record on the System 1 patient record that the Patient had suffered a haemorrhage during treatment;

(d) did not record on the System 1 patient record that you had provided Patient 3 with sterile dressing and/or advice for the haemorrhage;

(e) did not record on the System 1 patient record that the Patient had developed a corn.

6. On 28 April 2015 provided treatment to Patient 4, and you:

(a) recorded on the System 1 patient record that you had conducted a monofilament test when you had not, in fact, done so;

(b) recorded on the System 1 patient record that you had conducted a tuning fork test when you had not, in fact, done so;

(c) recorded on the System 1 patient record that you had conducted a Doppler test when you had not, in fact, done so.

7. The matters described in paragraphs 1, 2, 3, 4, 5 (a)-(b) and 6 were dishonest.

8. The matters set out in paragraphs 1 - 7 constitutes misconduct and/or lack of competence.

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

Finding

Preliminary Matters

Service

1. The Panel had sight of a letter dated 4 January 2017 sent to the Registrant at her registered address, giving notice of today’s hearing, and determined that service had been complied with in accordance with Rule 3 of the Health Professions Council Rules 2003 (“the Rules”).

Proceeding in absence

2. Ms Eales applied to proceed in the absence of the Registrant.

3. The Panel accepted the advice of the Legal Assessor, who took the Panel to the Practice Note on Proceeding in the Absence of the Registrant, to Rule 11 and to the guidance given in the cases of Tait –v The Royal College of Veterinary Surgeons [2003] UKPC 34, Jones (2003) 1 AC 1 and GMC –v- Adeogba [2016] EWCA Civ 162.

4. The Panel was informed that the Registrant had completed a Response Proforma dated 8 April 2016 in which she stated that she did not intend to appear in person at her hearing nor did she intend to be represented. She had subsequently completed a Notice to Admit dated 25 April 2016. There had been no further engagement from her since that date.

5. The Panel concluded that the Registrant had been aware of the hearing and had chosen not to attend. She had not made an application to adjourn and the Panel concluded that it was unlikely that she would attend if the matter were to be adjourned. The Panel had been informed that the HCPC intended to call a witness to give evidence today and the Panel was mindful that an adjournment would cause inconvenience to this witness. The Panel concluded that it was in the public interest for the matter to be heard expeditiously and that it would be right for the matter to proceed in the absence of the Registrant.

Application to hear matters in private

6. Ms Eales applied for details regarding the Registrant’s health to be heard in private, and this was granted pursuant to Rule 10.

Application to amend the allegation

7. Ms Eales applied to amend the allegation. The Registrant had been notified of the proposed amendments.
8. The Panel decided to allow the amendments in their entirety because they were technical in nature and to do so was in the interests of justice and caused no injustice to the Registrant.

Witnesses

9. The Panel heard from the following live witness:
- Witness 1 – employed at the relevant time as Podiatry Clinical Operations Manager by South Tyneside NHS Foundation Trust (“the Trust”)

Background

10. The Registrant had been employed by the Trust as a Band 6 Podiatrist since 19 July 2004.

11. In February 2014, the Trust received a complaint from Patient 6 about the treatment that he had been provided by the Registrant. This was followed on 23 April 2015 by a complaint of a similar nature from Patient 1.

12. As a result of the complaints, Witness 1 conducted a review of six patients, including the two complainants, who had attended the Registrant’s clinics between 3 February 2014 and 28 April 2015, Patients 1, 2,3,4,5 and 6. Witness 1 contacted each patient individually by phone to ask for their recollection of the treatment they had received, and then compared their account with the entry that the Registrant had entered onto the electronic records system, “System 1”, of the treatment that she purported to have provided.

13. It was alleged that in relation to all six patients the treatment provided by the Registrant did not correlate with the record of care that the Registrant had entered onto System 1. It was alleged that the Registrant had acted dishonestly by stating that she had carried out tests when in fact she had not carried out those tests.

14. Specifically, it was alleged that the Registrant had dishonestly recorded on System 1 that she had conducted the following tests on patients when she had not in fact done so:

• Monofilament and tuning fork testing in relation to Patient 1 on 3 February 2014 and 22 April 2015, Patient 2 on 23 April 2015, Patient 3 on 23 April 2015 and Patient 4 on 28 April; and

• Doppler testing in relation to Patient 1 on 3 February 2014, Patient 5 on 7 April 2015 and Patient 4 on 28 April 2015.

15. It was also alleged that the Registrant had provided treatment on 23 April 2015 to Patient 3 and had not recorded on System 1 that Patient 3 had suffered a haemorrhage during treatment, nor that she had provided a sterile dressing and/or advice for the haemorrhage, nor that Patient 3 had developed a corn.

16. Witness 1 informed the Panel that the Registrant had been absent from work on sick leave from 5 February 2014 to 11 August 2014. She had returned on a phased return to work which consisted of reduced working hours and a reduced case load.

17. Witness 1 informed the Panel that it had been brought to her attention after the investigation that the Registrant had complained to other work colleagues about certain health issues which had affected her ability to perform her role. Witness 1 told the Panel that the Registrant had given no indication that her health had impacted on her ability to work, despite the fact that she had held a return to work interview with the Registrant as recently as 23 April 2015.

18. The Panel heard that the six patients particularised in the Allegation had all required a neuro-vascular assessment, which meant checking the nerve function and blood flow in the foot.

19. Witness 1 explained that there were a number of tests involved in these checks, namely the monofilament test, tuning fork test and Doppler test.

20. Witness 1 claimed that all of these tests required patient engagement, such that the patients would have been aware that the test was being conducted. Witness 1 explained that the standard approach for the nerve function test would have been to inform the patient the test was about to be conducted, explain what it was for and what was about to happen and perform a trial test on the hand.  The test would then be conducted on the feet with the patient’s eyes closed and the patient would be asked to comment when they felt sensation.

21. The Panel heard that nerve function is tested using a monofilament which has the appearance of a pen and is used to touch four specific points on the foot.  The patient is asked to respond verbally if pressure exerted by the monofilament can be felt.

22. The Panel heard that the monofilament test is often accompanied by the tuning fork test to determine whether a patient can feel vibration.  The Panel heard that this procedure involves the podiatrist tapping the tuning fork, touching the patient on the hand and asking the patient whether the vibration can be felt.  This is then repeated on the foot.

23. The Panel heard that the Doppler is a piece of equipment used to check blood flow.   Gel is applied to the foot and a probe is used to listen to the pulsed blood flow. The patient is then able to hear the resulting sound.

24. Witness 1 informed the Panel that when she telephoned Patients 1, 2,3,4,5 and 6 for their account of the treatment that they had received the description they gave did not match the treatment recorded by the Registrant.

25. On 29 April 2015 Witness 1 met with the Registrant to discuss the concerns.  The Panel was provided with a note of the discussion compiled by Witness 1. The note recorded that the Registrant denied the allegation, claiming that the patients were lying. The Registrant also suggested that she was “probably doing the monofilament test so fast that the patients did not realise that she was doing it”. She claimed that “there might be a possibility on the last one (Doppler patient) that she had been on auto pilot and just clicked all the boxes by mistake” and not actually done the tests”. She asked “If I admitted that I have done something wrong would it be better and not go formal”. As she was leaving the meeting room she is alleged to have said “I promise I’ll do everything right from now on. I don’t want to lose my job man”.

26. Witness 1 produced a note of a telephone call made by the Registrant the next day, 30 April 2015, in which the Registrant asked what would happen next and whether Witness 1 had “told ‘them’ about what she had told (her) about doing things wrong and that she had admitted doing things wrong”.

27. On 11 May 2015 Witness 1 met with the Registrant again, together with the Divisional Personnel Manager of the Trust. The Registrant was taken through the allegation that was to be investigated. When she was asked why the tests had appeared to be documented but not carried out the Registrant is noted to have said that she “felt that not all patients were being truthful however she did note that she had been taking medication for her….condition which on reflection may be impairing her abilities at work”. 

28. The Registrant later submitted a HCPC Notice to Admit dated 25 April 2016 in which she admitted the allegation in its entirety.

Decision on Facts

29. The Panel accepted the advice of the Legal Assessor.
30. The Panel concluded that Witness 1 was a credible and reliable witness. She was an experienced practitioner who gave evidence competently. She appeared sympathetic and supportive towards the Registrant. The Panel therefore had no reason to suppose that she had either fabricated or exaggerated her evidence.

31. The Panel appreciated that the patients’ evidence amounted to hearsay evidence. However, the Panel accepted that the patients had provided Witness 1 with evidence that was both reliable and credible. The Panel had not been provided with any reason to suppose that the patients may have fabricated or exaggerated evidence against the Registrant. The notes of the conversations that Witness 1 had had with each patient, which had been written up by her immediately after each phone call, appeared to be realistic and were often written in the vernacular. Witness 1 had not informed the patients that she was conducting an investigation, only that she was conducting an audit, and there was no good reason for any patient to invent evidence to the Registrant’s disadvantage. Furthermore, the Panel concluded, on the basis of the evidence that had been provided regarding the procedure involved in conducting the monofilament, tuning fork and Doppler tests, documented earlier in this determination, that it was highly unlikely that any patient had failed in his or her recollection of the use of such tests if such tests had been carried out. 

32. The Panel therefore worked on the basis that the evidence provided by Patients 1, 2,3,4,5 and 6 was both credible and accurate.

Particular 1 - Patient 6

33. Witness 1 informed the Panel that Patient 6 was seen by the Registrant on 3 February 2014. Witness 1 said that when she phoned Patient 6 on 16 June 2014 Patient 6 stated that the Registrant had looked at his foot and said that she could not do anything. He confirmed that no further assessment or treatment was provided.

34. Witness 1 claimed that that this did not correlate with the clinical information recorded on System 1 which recorded that the monofilament test, tuning fork test and Doppler tests had been used. She took the Panel to a copy of the relevant record made by the Registrant.

35. On the basis of the evidence set out above, including the admission made by the Registrant to this Particular, the Panel found Particular 1 proved.

Particular 2 - Patient 5

36. Witness 1 informed the Panel that Patient 5 was seen by the Registrant on 7 April 2015. Witness 1 said that Patient 5 rang the service to complain that she had not had a full diabetes test performed at the last appointment. When Witness 1 spoke to Patient 5 on 29 May 2015 and 3 June 2015 Patient 5 categorically stated that no Doppler test was carried out in the appointment with the Registrant
37. Witness 1 claimed that that this did not correlate with the clinical information recorded on System 1 which recorded that the Doppler test had been used. She took the Panel to a copy of the relevant record made by the Registrant.

38. On the basis of the evidence set out above, including the admission made by the Registrant to this Particular, the Panel found Particular 2 proved.

Particular 3 - Patient 1

39. Witness 1 informed the Panel that Patient 1 was seen by the Registrant on 22 April 2015. Patient 1 called the clinic on 23 April 2015 to complain that she had had treatment the day before but felt that her nails were still long. She stated that the Registrant “did not do much” and, when Witness 1 asked if she had any testing carried out, she said that the Registrant had only cut her nails.

40. Witness 1 informed the Panel that this did not correlate with the clinical information recorded on System 1 which recorded that the monofilament test and tuning fork test had been used. She provided the Panel with the relevant records.

41. The Panel disregarded the Registrant’s admission on this occasion as the date had been amended since the time of the making of the admission. It was clear from the documentary evidence that when the patient attended on 23 April 2015 the patient had complained that “my nails were not cut short enough yesterday – my nails were uncomfortable in my shoes”. This related to the treatment conducted on 22 April 2015. The record made by the Registrant recorded carrying out tuning fork and microfilament tests when, according to the patient, the Registrant had not done so.

42. On that basis the Panel found Particular 3 proved.

Particular 4 - Patient 2

43. Witness 1 informed the Panel that Patient 2 was seen by the Registrant on 23 April 2015. Witness 1 said that when she phoned Patient 2 on 24 April 2015 Patient 2 stated that the Registrant filed her nails and did not do any tests with the tuning fork
44. Witness 1 claimed that that this did not correlate with the clinical information recorded on System 1 which recorded that the monofilament test and tuning fork test had been used. She took the Panel to a copy of the relevant record made by the Registrant.

45. On the basis of the evidence set out above, including the admission made by the Registrant to this Particular, the Panel found Particular 4 proved.

Particular 5 - Patient 3

46. Witness 1 informed the Panel that Patient 3 was seen by the Registrant on 23 April 2015. Witness 1 said that when she phoned Patient 2 on 24 April 2015 Patient 3 stated that the Registrant had done no tests at all.

47. Witness 1 claimed that that this did not correlate with the clinical information recorded on System 1 which recorded that the monofilament test and tuning fork test had been used

48. On the basis of the evidence set out above, including the admission made by the Registrant to this Particular, the Panel found Particulars 5 (a) and 5 (b) proved.

49. Witness 1 said that Patient 3 also claimed that the Registrant had cut her toe, applied a dressing to the cut and advised her to remove the dressing in the evening as she had a corn.

50. Witness 1 claimed that no information relating to care provided for a cut, dressing a corn or the existence of a haemorrhage was recorded on System 1. She took the Panel to a copy of the relevant record made by the Registrant.

51. On the basis of the evidence set out above, including the admission made by the Registrant to this Particular, the Panel found Particulars 5(c), 5(d) and 5(e) proved.

Particular 6 - Patient 4

52. Witness 1 informed the Panel that Patient 4 was seen by the Registrant on 28 April 2015. Witness 1 said that when she phoned Patient 4 on 28 April 2015 Patient 4 said: “with the Doppler? No. She didn’t check my feet today. I’ve had it done in the past, and from the nurses from my leg ulcers, but definitely wasn’t done today. She didn’t test with the needle or the tuning fork either”.

53. Witness 1 claimed that this did not correlate with the clinical information recorded on System 1 which recorded that the monofilament test, tuning fork and Doppler test had been used. She took the Panel to a copy of the relevant record made by the Registrant.

54. On the basis of the evidence set out above, including the admission made by the Registrant to this Particular, the Panel found Particular 6 proved.

Particular 7 - Dishonesty

55. The Panel heard that System 1 involved the use of clinical templates with drop downs, click boxes, and free text boxes.

56. The Panel heard that in relation to the monofilament test and tuning fork test, System 1 had a drop down box separated for the right and left foot and should be marked off to show that the test had been conducted. The drop down box allowed a podiatrist to select “normal” or “abnormal”. The podiatrist was also then expected to mark the sensation graded between one and four in the free text box.

57. The Panel heard that the Doppler Test was recorded on System 1 using a drop down box and a text box to record the finding.

58. The Panel concluded from this information that a deliberate action had to be taken in order to record the information that the Registrant had recorded. The fact that incorrect information had been entered in relation to 6 patients, as found proved in Particulars 1 to 6 inclusive, meant that it was highly unlikely that the Registrant had made inadvertent errors whilst on “auto-pilot” as mooted by the Registrant in the last of her two discussions with Witness 1. The Registrant would have had to click on drop down boxes to record her clinical findings, or enter free text. The Panel concluded that on the balance of probabilities the Registrant could not have made her erroneous records accidentally.

59. The Panel concluded that the Registrant had acted deliberately and dishonestly in seeking to show that she had done tests which she had not in fact done
60. On the basis of the evidence set out above, including the admissions made by the Registrant, the Panel found Particular 7 proved.

Decision on Grounds

61. The Panel accepted the advice of the Legal Assessor who took the Panel to the case of Roylance –v- General Medical Council No 2 [2001] 1 AC. The Panel was aware that a finding of misconduct was for the Panel’s professional judgement.

62. The Panel considered whether the facts found proved amounted to misconduct, and concluded that they did.

63. In reaching this conclusion, the Panel considered that Paragraphs 1,10 and 13 of the HCPC ‘Standards of Conduct, Performance and Ethics’ had been breached, together with Standards 2,10,12 of the Standards of Proficiency for Podiatrists.

64. The Panel concluded that in dishonestly recording treatment that had not in fact been provided the Registrant’s conduct had fallen seriously below the standards expected of her and clearly amounted to misconduct.

65. In light of its finding on misconduct the Panel was not asked to make a finding of lack of competence.

Decision on Impairment

66. The Panel accepted the advice of the legal assessor who addressed the Panel on the meaning of impairment and referred to the case of Grant ([Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery council (20 Paula Grant [2011] EWHC 927]).

67. In fabricating patient records the Registrant had acted dishonestly and put patients at risk. The Panel had been provided with no evidence of insight or remediation. Accordingly, it was the judgment of the Panel that there was a risk that the Registrant would repeat her misconduct.

68. Further the Panel concluded that the Registrant’s dishonest actions were very serious and had brought the profession into disrepute. She had breached the trust placed in her by both her patients and her employer.

69. It was the judgment of the Panel, for those reasons, that the Registrant’s fitness to practise is clearly currently impaired both on the basis of the personal and public components.

Sanction

70. In considering what sanction, if any, to impose, the Panel accepted the advice of the Legal Assessor and referred to the Indicative Sanctions Policy.

71. The Panel bore in mind that its purpose was not to be punitive, but to protect the public interest. It understood that it must act proportionately, balancing the interests of the Registrant with those of the public. It considered the range of available sanctions in ascending order of seriousness, starting with the option of taking no action.

72. The Panel found, by way of aggravating factors, that the dishonest behaviour had amounted to an abuse of trust in relation to six patients.  The dishonest recording of the assessments on System 1 when those assessments had not taken place put those patients at risk. Furthermore, this would have impacted adversely on those patients’ continuity of care.

73. The Panel found by way of mitigation that the Registrant had no previous adverse findings against her name and had admitted the allegation in full. It appeared from the investigation that the Registrant may have been experiencing health issues which were limiting the range of duties she could perform.

74. In view of the seriousness of the case, to take no further action or to impose a caution order would not be sufficient to protect the public or maintain public confidence in the profession and in the regulatory process. The behaviour had not been isolated, limited or minor in nature.

75. The Panel concluded that conditions of practice would be insufficient in light of the seriousness of the allegation and would be unworkable in light of the findings of dishonesty and the breach of trust, and because the Registrant had not indicated that she would be willing to abide by any conditions the Panel might seek to impose.

76. The Panel gave careful consideration to a suspension order and concluded that this would be the appropriate order in light of the Registrant’s admissions and previous good character. This would protect the public and would provide the Registrant with the opportunity to engage with her regulator and remediate her failings.

77. The Panel gave consideration to a striking off order but concluded that this would be disproportionate in light of the Registrant’s previous lengthy unblemished career and admissions.

78. The Panel concluded that a future Panel would be assisted by a reflective piece setting out what steps the Registrant intends to take to remediate her misconduct together with character references.

Order

That the Registrar is directed to suspend the registration of Elaine Miller for a period of 12 months from the date this order comes into effect.

Notes

An Interim Order of Suspension was imposed to cover the appeal period.

The Order will be reviewed before its expiry.

Hearing history

History of Hearings for Miss Elaine Miller

Date Panel Hearing type Outcomes / Status
09/03/2017 Conduct and Competence Committee Final Hearing Suspended