Dr Gina Fearn

: Practitioner psychologist

: PYL30951

Interim Order: Imposed on 07 Oct 2016

: Final Hearing

Date and Time of hearing:10:00 22/05/2017 End: 17:00 31/05/2017

: Novotel Glasgow, 181 Pitt Street, Glasgow, G2 4DT

: Conduct and Competence Committee
: Conditions of Practice

Allegation

(as amended at Substantive Hearing):


During your employment as a Practitioner Psychologist for St Mary’s Kenmure:


1. In relation to Service User A, you:


a. Agreed with your line manager that you would support Service User A for a transition period until approximately the end of August 2015 but you continued seeing the service user after this time;

b. On or around 31 March 2016, you:


i. took Service User A on a trip involving an overnight stay in a shared hotel room
ii. bought and/or gave alcohol to Service User A
iii. were observed to be under the influence of and/or smelled of alcohol in the presence of Service User A


c. On unknown dates between August 2015 and April 2016 you:


i. invited Service User A to stay at your home;
ii. initiated the involvement of your family in supporting Service User A;
iii. facilitated Service User A to stay at your family members’ homes


d. Did not inform your employer that:
i. you were acting as Service User A’s ‘Pathway supporter and/or coordinator’;
ii. you were taking Service User A on the trip referred to in paragraph 1b)


e. Did not inform the Social Work team involved with Service User A that you were taking him on the trip as referred to in paragraph 1b)


f. Misled the Social Work team to believe that your employers were aware of your continued involvement with Service User A;

 

2. Your actions as described at paragraph 1a)-c) were a breach of professional boundaries.


3. Your actions as described at paragraphs 1d)-1f) were dishonest.


4. The matters described in paragraphs 1-3 constitute misconduct.

Finding

Preliminary matters

1. At the beginning of the hearing Ms Watts on behalf of the HCPC applied to amend paragraph 1(b)(iii) by adding the words ‘were observed to be’ at the beginning of the paragraph and adding the words ‘and/or smelled of’ between the words ‘of’ and ‘alcohol’. She also applied to amend paragraph 1(e) by adding the word ‘as’ between the words ‘trip’ and ‘referred’. These amendments were notified to the Registrant in a letter dated 29 November 2016. Ms Watts submitted that the proposed amendments did not widen the scope of the allegations but served rather to clarify the allegations. She also submitted there was no prejudice or injustice posed to the Registrant by making the proposed amendments, rather they introduced clarity and lessened the gravity of the charges against the Registrant. Mr Milner on behalf of the Registrant did not oppose this application. The Legal Assessor advised that the allegation could be amended provided that the Panel was satisfied that no injustice was thereby caused. The Panel accepted the advice of the Legal Assessor and concluded that there was no injustice to the Registrant, and therefore approved the proposed amendments.


2. Ms Watts then indicated that the HCPC intended to offer no evidence in relation to paragraphs 1(a), 1(c), 1(d), 1(e), 1(f) and 3. She said the HCPC would only offer evidence in relation to particulars 1(b) and 2 in so far as it related to 1(b). She said that even if the remainder of particular 1 was proved they could not amount to a breach of professional boundaries, dishonesty or misconduct. Mr Milner on behalf of the Registrant agreed with this course of action. The Panel accepted the advice of the Legal Assessor that there was no provision within the HCPC Rules to withdraw particulars but that this was a matter it should consider when making its decisions on the facts. It could only make such a decision at the close of the fact finding stage.

Background


3. The Registrant was employed by St Mary’s Kenmure (SMK) as a registered Practitioner psychologist. SMK is a secure unit in Scotland for vulnerable young people. Through her employment at SMK she met Service User A, who was one of her clients. Following his discharge from SMK in 2015 it was agreed that the Registrant would continue to see Service User A for a transitional period of 6 to 8 weeks to complete Service User A’s therapeutic interventions. This had been agreed with the Registrant’s line manager, JC.


4. Following this transitional period, the Registrant ceased working with Service User A as his psychologist and took on the role of Pathway Supporter, at the behest of Service User A and with the agreement of Social Services. The role of Pathway Supporter is broadly defined in a two page document (which was provided to the Registrant) and it involves providing general support, advice and assistance to a young person and attending multi-agency pathway planning meetings where the young person’s progress is reviewed.


5. On 31 March 2016, SMK received a report from a paramedic that police had been called by hotel staff and Service User A had been arrested as a result of a disturbance in a hotel in Preston. The Registrant and Service User A were sharing a room in the hotel.


6. An internal disciplinary hearing was held by SMK. Following the hearing, the matter was referred to the HCPC. The Registrant had also self-referred in the intervening period.

Decision on Facts


7. Particulars 1(b) and 2 of the allegation were read out. Both of these particulars were admitted by the Registrant. The Panel acknowledged the fact that these admissions had been made and bore them in mind when determining whether both particulars being considered had been proved or not. The Panel considered and accepted the Legal Assessor’s advice that the burden of proof rests with the HCPC and that the standard of proof is the civil standard. It considered each particular separately.


8. The Panel first considered the evidence of the witnesses. The HCPC called 5 witnesses, who adopted their witness statements and answered supplementary questions about the facts in relation to particulars 1(b) and 2 relating to 1(b).

9. The HCPC witnesses were:
• GS – Investigating Officer for SMK
• JC – Registrant’s line manager at SMK
• DB – Investigating Police Officer
• TD – Service User A’s Pathway Co-Coordinator
• RH – Young Person’s Practitioner for Service User A


10. The Panel found all of the witnesses to be credible, honest and fair minded.

11. At the close of the HCPC’s case the Panel was asked to consider the status of particulars 1(a), 1(c), 1(d), 1(e), 1(f) and 3, where the HCPC had offered no evidence. Both parties and the Legal Assessor asked the Panel to make a decision as to whether it accepted the HCPC’s position that these particulars should be found not proved as no evidence had been offered. The HCPC submitted there was insufficient evidence in relation to those particulars, and that even if the facts had been found proved, they could not have amounted to misconduct and subsequent impairment.


12. The Panel accepted the submissions put forward and the legal advice, and determined that particulars 1(a), 1(c), 1(d), 1(e), 1(f) and 3 were found not proved on the basis of the lack of evidence. The Panel also considered that if sufficient evidence had been put forward to factually prove an individual particular, there was no ‘realistic prospect’ that those facts, if found proved, were sufficient to have amounted to a breach of professional boundaries or dishonesty and therefore could not have amounted to misconduct or subsequent impairment.


13. The Panel then considered the individual particulars. 


Particular 1(b)(i)
14. The Panel found this particular proved. In reaching this decision, the Panel took into account the evidence given by DB, the contemporaneously recorded notes made on the date of the incident and the admissions made by the Registrant.


Particular 1(b)(ii)
15. The Panel found this particular proved. In reaching this decision it relied upon the admissions made by the Registrant.


Particular 1(b)(iii)
16. The Panel found this particular proved. In making this decision it relied upon the evidence given by DB, who was present at the incident on 31 March 2016, his contemporaneous notes and the admissions made by the Registrant.


Particular 2 in relation to Particular 1(b)
17. The Panel finds this particular proved. In making this finding the Panel accepts the admissions made by the Registrant that she breached professional boundaries. The Panel also took into account the evidence given by RH and TD. Although the role of ‘Pathway supporter’ was not clearly defined, it was clear that the Registrant was still governed by her own professional standards. There was a general professional duty to protect the best interests of Service User A which the Registrant accepted she breached.

Decision on Grounds


18. On the basis of the facts proved, the Panel went on to consider whether those facts amounted to misconduct. It bore in mind the evidence given by the Registrant and presented on her behalf in the bundle, the submissions made by Ms Watts, on behalf of the HCPC, the evidence of the Registrant and HCPC witnesses and the submissions of Mr Milner, on behalf of the Registrant. The Panel accepted the advice of the Legal Assessor. The questions of misconduct and impairment are matters for the Panel’s independent judgement.

19. The Panel first considered whether the facts found proved amounted to misconduct. The Panel bore in mind that that misconduct does need to be serious or behaviour that is dishonourable or disgraceful such that fellow practitioners would have regarded it as deplorable. The Panel takes account of the definition of misconduct provided by Lord Clyde in Roylance v GMC (No 2) ([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.”

20. The Registrant is a fully qualified forensic Practitioner psychologist. She was at the time of the events a highly trusted professional. Although she was relatively new in the job in which she was working at SMK, she had undergone rigorous training in all aspects of her role as forensic psychologist. The Panel has heard evidence from the Registrant that she was briefed on her role as Pathway supporter prior to the events taking place in Preston in March 2016. The Panel has heard evidence and found that the Registrant clearly failed to recognise the blurring of boundaries between her personal and her professional relationship with Service User A. The Registrant had worked with Service User A as his forensic psychologist from December 2014 until August 2015. She had then become Service User A’s Pathway supporter from September 2015 until shortly after the incident in question. The Registrant was aware of Service User A’s difficulties and vulnerabilities. The Registrant had planned to take him away for two nights and shared a hotel room with him. The Registrant drank alcohol in his presence and bought Service User A alcohol, despite knowing the damage that might be caused to him. When Service User A was arrested, the Registrant remonstrated with the police and told them he was a suicide risk but made no efforts to ensure his safety despite being aware of his vulnerability to being locked up in confined places. The Registrant did not inform Social Services or her employer until the afternoon of the following day when she was driving back to Glasgow with Service User A. The Registrant also did not report these matters in private but allowed Service User A to speak to his young person’s practitioner, RH, via the speaker phone in her car. All of these are serious matters.

21. The Panel has considered that her behaviour was a serious breach of the HCPC’s Standards of conduct, performance and ethics (1 August 2012) and in particular standards:

1- You must act in the best interests of service users

You are personally responsible for making sure that you promote and protect the best interests of your service users. You must respect and take account of these factors when providing care or a service, and must not abuse the relationship you have with a service user…You must treat service users with respect and dignity. If you are providing care, you must work in partnership with your service users and involve them in their care as appropriate. You must not do anything, or allow someone else to do anything that you have good reason to believe will put the health or safety of a service user in danger. This includes both your own actions and those of other people. You should take appropriate action to protect the rights of children and vulnerable adults if you believe they are at risk, including following national and local policies. You are responsible for your professional conduct, any care or advice you provide, and any failure to act. You are responsible for the appropriateness of your decision to delegate a task. You must be able to justify your decisions if asked to. You must protect service users if you believe that any situation puts them in danger. This includes the conduct, performance or health of a colleague. The safety of service users must come before any personal or professional loyalties at all times. As soon as you become aware of a situation that puts a service user in danger, you should discuss the matter with a senior colleague or another appropriate person.

3- You must keep high standards of personal conduct.
You must keep high standards of personal conduct, as well as professional conduct. You should be aware that poor conduct outside of your professional life may still affect someone’s confidence in you and your profession.


13 -You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.
…You must not get involved in any behaviour or activity which is likely to damage the public’s confidence in you or your profession.
22. The Registrant’s behaviour also demonstrated non-adherence to the Standards of proficiency for Practitioner psychologists and in particular standards: 1a.1 1a.6 and 1a.8. (2012 standards).

23. The Registrant’s behaviour did take place on one occasion, nevertheless it did not amount to mere negligent behaviour by her. The trip had been in the planning for a period of time. The Registrant had booked a room which she would be sharing with Service User A. Once at the hotel she made decisions to purchase and consume alcohol and allow its consumption by Service User A. The Panel does not consider that there was any question of an intimate relationship between the Registrant and Service User A, however, it is in no doubt that there was a total blurring of boundaries with regard to the personal and the professional relationship between them. The failure of the Registrant to maintain appropriate boundaries was serious. The Panel therefore concludes that the findings of fact made in this case amounted to misconduct.

Decision on Impairment     

    
24. Having found that the matters found proved amounted to misconduct, the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. It bore in mind the evidence given by the Registrant and presented on her behalf in the bundle, the submissions made by Ms Watts, on behalf of the HCPC and Mr Milner, on behalf of the Registrant.

25. The Panel also took into account the advice of the Legal Assessor and the HCPTS practice note on ‘Finding that Fitness to Practise is impaired’. The Panel took account of the factors identified in the case of CHRE v Grant [2011] in which panels are reminded of the need to consider the public interest when deciding whether a Registrant’s fitness to practise is impaired.

26. The Panel considered the two component parts relating to impairment, the ‘personal’ component and the ‘public’ component. It first considered the ‘personal’ component, taking into the account the advice of the Legal Assessor, and considered whether the conduct was remediable, whether it had been remedied and whether it was likely to be repeated.

27. The misconduct identified in this hearing took place over a short period of time, however, it was conduct that went to the heart of the Registrant’s professional responsibilities. She had a duty to look after those Service Users put in her care particularly Service User A. She failed in that duty. In her oral evidence, the Registrant did not always respond directly to questions put to her. She did not satisfactorily demonstrate insight into the extent of the risks to Service User A, herself or other members of the public arising from her actions. The Registrant failed to recognise the need to immediately report the incident to appropriate authorities. When she was asked about the unsuitability of sharing a hotel room with Service User A, she said very little about the risks to either Service User A or herself arising from the sharing. After further questioning, she finally accepted that it was not appropriate to share a room with Service User A but suggested that her sister could be a suitable person to share a room with Service User A. The Registrant seemed therefore to be saying that, on reflection, sharing a room with Service User A was not appropriate for her, but it was alright for her sister or another member of her family. She demonstrated a lack of insight into the inherent risks associated with that situation. The Panel noted the evidence given by RH that, as a professional, he would not, and did not think it was appropriate to, share a room with a service user. Although the Registrant had demonstrated some insight by accepting all of the facts alleged against her, the Panel considers that her evidence demonstrates that she still does not fully understand the extent of the risks and danger that her actions caused to Service User A and the risks other members of the public were exposed to. Therefore, the Registrant has not demonstrated full insight.

28. The Panel does consider that the matters found proved, which led to the finding of misconduct, are capable of being remedied. In the Panel’s view, the Registrant has not remediated these failings fully. Therefore, there is still a risk of repetition. The Panel concludes that the Registrant’s fitness to practise is impaired on the basis of the ‘personal’ component of impairment.

29. The Panel is aware that it must also look to the public component of impairment. It notes the passage in the practice note on ‘Finding that Fitness to Practise is impaired’ as follows: “It is important for panels to recognise that the need to address the critically important public policy issues identified in Cohen - to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession - means that they cannot adopt a simplistic view and conclude that fitness to practise is not impaired simply on the basis that, since the allegation arose, the registrant has corrected matters or “learned his or her lesson”.”

30. Because of the serious nature of the misconduct found the Panel does conclude that this public element also applies in this case. The matters found proved involved a vulnerable service user being put into a position of risk. The Registrant had a responsibility for his care and welfare. She breached her duty and made poor decisions which put Service User A, the public and her at risk of harm. The Panel is of the view that the breach took place because the Registrant found herself unable to differentiate between her professional duty and relationship with Service User A and her personal relationship with him. The public, knowing the facts and findings in this case would be caused great concern and their confidence in the profession would be undermined if a finding that the Registrant’s fitness to practise was impaired was not made.

31. The Panel therefore also finds that the Registrant’s fitness to practise is impaired on the basis of the ‘public’ component.

Decision on Sanction


32. Having found that the Registrant’s fitness to practise is currently impaired the Panel went on to consider the question of sanction. The Panel then heard submissions as to the approach it should take on submissions on sanction. The Panel considered the HCPTS Indicative Sanctions Policy and heard and accepted the advice of the Legal Assessor. The Panel noted that the question of sanction is a matter for the Panel exercising its professional judgement. The Panel also noted that the purpose of a sanction is not to be punitive, but may have a punitive effect.

33. The Panel took into account the following aggravating and mitigating factors:

34. Aggravating features:
• the seriousness and non-spontaneous nature of the allegation;
• Ill-considered pre-planned actions;
• the potential degree of harm caused to a vulnerable service user;
• the Registrant’s failure to realise the difference between her personal and professional duty to Service User A.

35. Mitigating factors:

• the length of time since the allegation;
• undertaking therapy to address the underlying causes of her actions;
• the Registrant’s good character and no previous incidents;
• the Registrant’s admissions and acceptance of responsibility;
• the Registrant’s co-operation with the HCPC process;
• the acknowledged positive support she provided for Service User A in her role as Pathway supporter;
• the role was only loosely defined, although the regulatory procedure for Pathway supporters has changed since the time of this allegation in order to prevent such behaviour occurring in the future.

36. The Panel has taken into account the principle of proportionality, balancing the interests of the public, which includes the protection of service users and maintaining the reputation of the profession and the HCPC as its regulator, with those of the Registrant.  It approached the question of sanction from the least restrictive progressing towards the most restrictive.
37. The Panel concluded that in the light of the seriousness of the allegation and the nature of the misconduct, a sanction is required. 
38. Further, the Panel does not consider that a Caution Order or remediation is a proportionate response to the misconduct in this case.
39. The Panel then considered a Conditions of Practice Order. Such an order must be appropriate, measurable and workable.
40. The Panel considers that:
• the issues identified in this case are capable of correction;
• there is no persistent or general failure which would prevent the registrant from doing so;
• appropriate, realistic and verifiable conditions can be formulated;
• the registrant can be expected to comply with them; and
• a reviewing panel will be able to determine whether those conditions have or are being met.

41. The Panel has taken into account the effects the interim period has had on the Registrant’s health and financial circumstances. The Panel also took into account the positive testimonials and character references provided on the Registrant’s behalf.

42. Given the above, the Panel considers a Conditions of Practice Order to be the proportionate and appropriate response to the risks identified in this case. Conditions of Practice will also provide sufficient protection to the public.

43. The Panel considered a Suspension Order but found it was not proportionate to the circumstances in this case and would be merely punitive.

44. The period of Conditions of Practice Order will be 12 months. The Panel considers that this affords the Registrant sufficient time to gain employment, and to show to any reviewing panel that she has adequately addressed the deficiencies in her practise.

Order

ORDER: The Registrar is directed to annotate the Register to show that, 12 months from the date that this Order comes into effect (“the Operative Date”), you, Dr Gina Fearn, must comply with the following conditions of practice:

1. You must notify the HCPC promptly of any professional appointment you accept and provide the contact details of your employer or any organisation for which you are contracted to provide psychological services.

2. 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).

3. You must place yourself and remain under the supervision of a clinical supervisor registered by the HCPC or other appropriate statutory regulator and supply details of your supervisor to the HCPC within 14 days of his/her appointment. You must attend upon that supervisor as required and follow their advice and recommendations.

4. You must confine your professional practice to service users over the age of 18.

5. You must maintain your Continuing Professional Development (CPD) log as required by the HCPC and produce a copy one month prior to a review hearing. It will be important to focus on professional boundaries, risk assessment and risk management.

Notes

The Order imposed today will apply from 23 June 2017 (the Operative Date).


This Order will be reviewed again before its expiry on 23 June 2018.

Hearing history

History of Hearings for Dr Gina Fearn

Date Panel Hearing type Outcomes / Status
22/05/2017 Conduct and Competence Committee Final Hearing Conditions of Practice