Miss Janine Santos

: Physiotherapist

: PH103674

Interim Order: Imposed on 01 Jun 2017

: Final Hearing

Date and Time of hearing:10:00 30/05/2017 End: 17:00 02/06/2017

: Clayton Hotel Cardiff

: Conduct and Competence Committee
: Suspended

Allegation

Whilst employed as a Physiotherapist by Hywel Dda University Health Board:

1. You did not attend for work on the following dates when you were on call:

a) 28 March 2015;

b) 29 March 2015;

c) 12 April 2015;

2. On or around 14 April 2015, you claimed payment for the following sessions which you did not work:

a) Two sessions on 28 March 2015;

b) Two sessions on 29 March 2015;

3. Your actions described in particular 2 were dishonest;

4. Your actions described in particulars 1, 2 and 3 constitute misconduct;

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

Finding

Preliminary Matters

Proof of Service

1. The Panel was provided with a signed certificate as proof that the Notice of Hearing had been posted on 20 January 2017 by First Class post, to the address shown for the Registrant on the HCPC register. The Notice was also sent to the Registrant by email on the same date. The Panel was satisfied that Notice had been properly served in accordance with the Rules and that the HCPC had taken all reasonable steps to bring notice of this hearing to the Registrant’s attention.

Proceeding in Absence

2. Having determined that service of the Notice of Hearing had been properly effected, the Panel went on to consider whether to proceed in the Registrant’s absence. The Panel was advised by the Legal Assessor and followed that advice. The Panel also took into account the guidance as set out in the HCPC Practice Note “Proceeding in the absence of the Registrant”.

3. The Panel determined that it was fair, reasonable and in the public interest to proceed in the Registrant’s absence for the following reasons:

a) The Registrant has not engaged with the regulatory process at any stage and there is no indication that she is unable to attend due to ill health or for any other reason. In these circumstances, the Panel was satisfied that it was reasonable to conclude that the Registrant has chosen not to attend the hearing. Therefore the Panel was satisfied that the Registrant’s absence demonstrated a voluntary waiver of her right to be present.

b) There has been no application to adjourn and no indication from the Registrant that she would be willing or able to attend on an alternative date and therefore re-listing this final hearing would serve no useful purpose.

c) The HCPC has made arrangements for three witnesses to give evidence during this hearing. In the absence of any reason to re-schedule the hearing the Panel was satisfied that the witnesses should not be inconvenienced by an unnecessary delay.

d) The allegations date back to events that took place in 2015 and there is a strong public interest in ensuring that the final hearing is commenced and considered expeditiously.

Background

4. The Registrant is a registered physiotherapist. She qualified in 2012 and commenced employment as a Band 5 physiotherapist and placed on a respiratory rotation at Hywel Dda University Health Board (‘Health Board’) on 28 July 2014. The Respiratory Physiotherapy Service at the Health Board operated an ‘on call’ service and part of the Registrant’s role involved undertaking ‘on call’ shifts. The ‘on call’ service during weekdays simply required staff to be on stand-by after hours to attend the hospital if required. The ‘on call’ service at the weekend, however, required staff to attend hospital and provide treatment to any patients who had been assessed as likely to be at risk of deterioration of respiratory function if left until the next normal working day.

5. On Saturday 28 March 2015 and Sunday 29 March 2015 the Registrant allegedly did not attend her ‘on call’ shifts. Allegedly, the Registrant subsequently made a claim for payments for these dates. It was further alleged that the Registrant also did not attend an ‘on call’ shift on Sunday 12 April 2015.

6. The Health Board instigated an internal fact finding investigation and the Registrant was suspended from ‘on call’ duties pending the outcome. The investigation was initially conducted by AE who interviewed key witnesses, including the Registrant who was interviewed on 3 June 2015. Witness PE subsequently took over conduct of the investigation, after the interviews had taken place, and he delivered an investigation report dated 7 September 2015 which recommended disciplinary action be taken. A disciplinary hearing took place on 14 December 2015 and on 17 December 2015 the Health Board made a referral to the HCPC.

Assessment of Witnesses

Witness LGW – Team/Operational Lead for Acute In-patient Care and On call co-ordinator

7. The Panel found the evidence of Witness LGW to be both credible and reliable. Witness LGW was the Registrant’s senior colleague during her four month Band 5 rotation in Acute Care and was the ‘on call’ co-ordinator. Witness LGW provided the Panel with a clear and consistent explanation of what is expected from physiotherapists ‘on call’ over the weekend. She also explained the arrangements for swapping ‘on call’ shifts and the steps she took after routinely reviewing the weekend ‘on call’ list on Monday 30 March 2015. The Panel had no reason to doubt that Witness LGW’s evidence represented her genuine recollection of the events that took place. Witness LGW was fair and readily acknowledged that the Registrant was a competent physiotherapist, who was apologetic when the ‘on call’ issues were raised and appeared remorseful.

Witness PE – Former Investigations Manager

8. Witness PE was an experienced investigator of employment related issues. Having taken over the investigation into the Registrant’s conduct he relied on the interviews conducted by his colleague AE. He did his best to assist the Panel and made it clear when something was outside his knowledge. The Panel had no reason to doubt that he was anything other than a credible and reliable witness.

Witness AE – Physiotherapist

9. The Panel found the evidence of Witness AE to be clear and balanced. She was able to assist the Panel in understanding the events that took place regarding the ‘on call’ shift for 12 April 2015.  The Panel found Witness AE’s evidence to be credible and reliable.

Decision on facts

Panel’s Approach

10. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything and the individual particulars of the Allegation could only be found proved, if the Panel was satisfied, on the balance of probabilities that what is alleged to have occurred, did occur.

11. In reaching its decision the Panel took into account the oral evidence of the HCPC witnesses, the written and documentary evidence, including the Health Board’s internal investigation, as well as the oral submissions of Mr Kewley, on behalf of the HCPC.

12. The Panel noted that the Registrant made certain ‘admissions’ in her reflective statement dated 1 April 2015 and during the fact finding interview that took place on 3 June 2015. However, as the Registrant has not engaged with the regulatory process the Panel proceeded on the basis that none of the allegations were admitted.

13. The Panel drew no adverse inferences from the Registrant’s absence.

Particulars 1(a) and 1(b) – Found Proved
‘You did not attend for work on the following dates when you were on call:
a) 28 March 2015;
b) 29 March 2015;

14. The Panel accepted the evidence of Witness LGW. She informed the Panel that it is her role to produce the ‘on call’ rotas, which she compiles a couple of months in advance. She also explained that the rotas are subject to change as the physiotherapists often swap shifts amongst themselves and that although such changes do not require management approval the switchboard should be notified of any amendments to the rota.  

15. Witness LGW as part of her witness statement exhibited the ‘on call’ rota for March 2015. The entry for Saturday 28 March 2015 contains the name ‘Janine’ which the Panel accepted was a reference to the Registrant and indicated that she was the physiotherapist ‘on call’ for two sessions on that date. The Panel accepted that the Registrant was scheduled to be ‘on call’ on Saturday 28 March 2015 and no change had been made to the rota for that date. In her witness statement Witness LGW stated that the physiotherapist originally scheduled to cover the Sunday 29 March 2015 shifts was CM. The Panel had sight of an email exchange between CM and the Registrant in which the Registrant in an email, dated 12 February 2015, accepted an offer to cover the evening ‘on call’ shift and volunteered to cover the day shift as well. In an email, dated 13 February 2015, CM confirmed that she was happy with the proposed arrangement. On the basis of this email exchange the Panel was satisfied that the Registrant was required to be ‘on call’ on Sunday 29 March 2015.

16. The Panel accepted the evidence of Witness LGW that she checked the ‘on call’ list on Monday 30 March 2015 and identified that there was no documented attendance by the Registrant at the hospital on 28 and 29 March 2015. The Panel also accepted Witness LGW’s evidence that she telephoned the Registrant about her non-attendance. The Registrant told Witness LGW that she had not recorded her ‘on call’ dates in her diary and therefore she was completely unaware that she was ‘on call’ during the weekend of 28 and 29 March 2015. The Panel noted that the minutes of the investigation interview record that the Registrant accepted that she should have attended the hospital on 28 and 29 March 2015. Although the Registrant did not sign the minutes the Panel accepted the evidence of Witness PE that the handwritten note, ‘Received hr 29/7’ on the transcript indicated that the Registrant had returned the transcript that had been sent to her by Human Resources and that the handwritten amendment in the body of the document was either made by the Registrant or on her behalf. Therefore, the Panel was satisfied that the Registrant was aware of the contents of the transcript. Furthermore, in her reflective statement, dated 1 April 2015, the Registrant accepted that she was ‘on call’ on 28 and 29 March 2015, and described herself as being “unaware” that she was ‘on call’ on those dates and therefore did not attend the hospital.

17. The Panel was satisfied on the basis of the evidence of Witnesses LGW and PE and the supporting documentary evidence that the Registrant was ‘on call’ on 28 and 29 March 2015, but did not attend for work.

18. Accordingly Particulars 1(a) and 1(b) were found proved.
Particular 1(c) – Found Proved
‘You did not attend for work on the following dates when you were on call:
c) 12 April 2015;’

19. The Panel accepted the evidence of Witness AE. Witness AE informed the Panel that she had initially agreed to cover the ‘on call’ session on Sunday 12 April 2015 on behalf of TB. However, as she had taken annual leave the week before, she emailed the ‘on call’ list to find alternative cover for 12 April 2015 and another date. The Panel had sight of an email from the Registrant, dated 24 February 2015, in which she confirmed that she was willing to ‘do both’. Although the email exchange that was produced did not include the original email request the Panel accepted the evidence of Witness AE that the offer and acceptance related to the ‘on call’ session for 12 April 2015. The evidence of Witness AE was corroborated by the text messages exchanged between her and the Registrant on 12 April 2015. Witness AE explained by text that the Registrant was supposed to be covering her shift and as there was no response from the Registrant she had been called in by the Intensive Care Unit to see a patient who was particularly unwell. In response to a further text from Witness AE the Registrant texted, ‘No totally my fault! Agreed to on calls and didn’t write them down! Thought I had the weekend off! Lol. So sorry x’

20. The Panel was satisfied on the basis of the evidence of Witness AE and the supporting documentary evidence that the Registrant was ‘on call’ on Sunday 12 April 2015, but did not attend for work.

21. Accordingly Particulars 1(c) was found proved.

Particulars 2(a) and 2(b) – Found Proved
‘On or around 14 April 2015, you claimed payment for the following sessions which you did not work:
a) Two sessions on 28 March 2015;
b) Two sessions on 29 March 2015;’

22. The Panel accepted the evidence of Witness PE. He exhibited a copy of a signed claim form dated 14 April 2015. The Panel noted that the form was in the name of the Registrant, was signed by her and included a claim for two sessions on 28 and 29 March 2015. In her oral evidence Witness LGW informed the Panel that weekend ‘out of hours’ sessions are from 4.30pm Friday to 8.30am Monday and that a standby session on Saturday and Sunday is from 8.30am to 8.30am which amounts to two 12 hour shifts. When the Registrant was interviewed on 3 June 2015 she appeared to accept that she had submitted the claim form to obtain payment for the shifts on 28 and 29 March 2015.

23. The Panel was satisfied on the basis of the evidence of Witnesses AE and PE and the supporting documentary evidence that the Registrant submitted the claim form in anticipation that she would be paid for two sessions on 28 and 29 March 2015. The Panel took into account its findings in relation to Particulars 1(a) and 1(b) and was satisfied that the Registrant had not worked during any of these sessions.

24. Accordingly Particulars 2(a) and 2(b) were found proved.
Particular 3 (Dishonesty) – Found Proved

25. During her oral evidence, Witness LGW informed the Panel that on a Friday a list would be compiled of patients assessed as requiring physiotherapy input at the weekend. It is the responsibility of the ‘on call’ physiotherapist to make themselves aware of which patients need to be seen over the weekend. Witness LGW stated that the physiotherapist ‘on call’ should telephone the respiratory clinical team to check if there are any patients on the planned list but she acknowledged that this does not routinely happen. If there are patients on the planned list the expectation is that the ‘on call’ physiotherapist would attend the hospital at 8.30am on Saturday to treat the patients and thereafter leave the hospital but remain on standby for the remainder of the session(s). Witness LGW informed the Panel that if there are no patients on the planned list over the weekend the physiotherapist would be contacted by telephone to let them know.

26. Witness LGW informed the Panel, during her oral evidence, that an ‘on call’ shift on a Saturday or Sunday would generate an entitlement to one or two payments, (i) a claim for hours worked following actual attendance at the hospital and/or (ii) a standby claim for each 12 hour session. She stated that if there was no actual attendance she would expect the physiotherapist to submit a standby claim only.

27. In assessing whether the Registrant was entitled to receive standby payments for the ‘on call’ shifts on 28 and 29 March 2015, the Panel took into account the telephone conversations she had with Witness LGW on 30 March 2015. The Panel accepted the evidence of Witness LGW that during the initial telephone conversation the Registrant stated that she had been unaware that she had been ‘on call.’ The Panel also accepted that during a later telephone conversation that same day the Registrant apologised to Witness LGW and explained that she had not documented her ‘on call’ dates in her diary. The Panel accepted the evidence of Witness PE that the Registrant had not made contact with the respiratory clinical team on the Friday to ascertain if there were any patients on the planned list and had not attended the hospital either. The combined effect of these omissions supported the Registrant’s ‘admission’ that she was unaware that she was ‘on call’. Had the Registrant telephoned and/or attended the hospital she would have been aware that there were two patients on the planned list for that weekend. The Panel also noted that the Registrant stated during her telephone conversation with Witness LGW that she had been in the local area and would have been contactable. However, the Panel took the view that this assertion demonstrated an inability or an unwillingness to acknowledge the purpose of being on standby. The Panel was satisfied that to be on standby a practitioner must know that they are on standby and it is that knowledge that entitles the practitioner to the standby payment. The payment is to compensate the practitioner for making themselves available and in recognition that being ‘on call’ causes inconvenience. The Panel took the view that as the Registrant did not know she was ‘on call’ until after the shift was over and she was therefore not entitled to a standby payment.

28. Having determined that the Registrant was not entitled to a standby payment the Panel went on to consider whether by making such a claim she had acted dishonestly.

29. Following the Registrant’s telephone conversation with Witness LGW on 30 March 2015 the Registrant was asked to complete a reflective statement. In the reflective statement the Registrant reiterated that she had been unaware that she was ‘on call’. However, when the Registrant was interviewed, as part of the internal investigation on 3 June 2015, she stated that in her mind she was ‘in on the weekend’ and did not know whether she should ‘put in’ for being on standby. Although being completely unaware that she was ‘on call’ and in her mind being ‘in on the weekend’ appeared to be conflicting statements the Panel interpreted the latter as the Registrant’s flawed rationale that because she had not been called by the hospital, the fact that she was unaware she was ‘on call’ was not significant, as if she had been called she would have been able to attend. The Panel took the view that this was the most likely explanation for the comments the Registrant made during the interview. It was unlikely that, 11 days after the first event which had resulted in an informal warning and a reflective statement, she would have forgotten that she had previously stated that she was unaware that she was ‘on call’.

30. The Panel took the view that the Registrant may have persuaded herself that the circumstances regarding her entitlement to claim the standby payments for 28 and 29 March 2015 were ‘grey’ and far from clear cut. However, the Panel was satisfied that this was an error of judgment. The Panel noted that the Registrant stated in the internal investigation interview that she is a single parent and had had taken on ‘a lot of on call shifts’ because she had missed out on a month’s pay when she did Bank work and then took up permanent employment with the Health Board. The Panel was satisfied that the prospect of financial gain, albeit small, motivated the Registrant to submit a claim and wait to see if it was ‘picked up’ by someone.

31. The Panel concluded that by the standards of reasonable and honest people submitting a standby claim for a shift, which the practitioner was unaware of, would be regarded as dishonest. The Panel also concluded that the Registrant’s judgment was clouded by her personal interests which led her to set her own standards. However, the Panel took the view that had the Registrant reflected on her proposed course of conduct she would have reached the same conclusion as reasonable and honest people that the submission of a standby claim when she was not on standby in anticipation of payment was dishonest. The Panel was satisfied that the claim form was not submitted in error and was not based on a genuine misunderstanding.

32. Accordingly, the Panel found that the Registrant’s submission of claim forms for the sessions on 28 and 29 March 2015 when she did not work was dishonest as she was unaware she was on standby.

Decision on Grounds

Panel’s Approach

33. In considering the issue of misconduct, the Panel bore in mind the explanation of that term given by the Privy Council in the case of Roylance v GMC (No.2) [2000] 1 AC 311 where it was stated that:
“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a … practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the misconduct to the profession ... Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.”

34. The Panel considered the HCPC Standards of Conduct, Performance and Ethics and was satisfied that the Registrant’s conduct breached the following standards:
• 1 - You must act in the best interests of service users.
• 13 – You must behave with honesty and integrity and make sure your behaviour does not damage the public’s confidence in you or your profession.

35. The Panel also considered the HCPC Standards of Proficiency: Physiotherapists (2013) and was satisfied that the Registrant’s conduct breached the following standards:
• 1.2 - recognise the need to manage their own workload and resources effectively and be able to practise accordingly
• 2.1  - understand the need to act in the best interests of service users at all times
• 3.1 - understand the need to maintain high standards of personal and professional conduct
• 9.1 – be able to work, where appropriate, in partnership with…other professionals, support staff and others.

36. The Panel was aware that a breach of the standards alone does not necessarily constitute misconduct. However, the Panel was satisfied that the Registrant’s conduct and behaviour fell far below the standards expected of a registered practitioner.

37. The Registrant dishonestly submitted a standby claim for 28 and 29 March 2015 when she had not been on standby and knew that she had not been on standby. She also failed to act in the best interests of patients and failed to work appropriately with colleagues by not covering her ‘on call’ shift on Sunday 12 April 2015. The Registrant’s behaviour cannot be described as a momentary failure or a temporary lapse of judgement. She was made aware on 30 March that she was ‘on call’ on 28 and 29 March 2015 and was given the opportunity to prepare a reflective statement to address what had happened, the implications of not attending the hospital and how she would prevent this from happening again. However, on 12 April 2015 she failed to attend for work again. 

38. The Panel noted that as a direct consequence of the Registrant’s non-attendance two patients were not seen by a physiotherapist over the weekend of 28-29 March 2015 and although Witness AE saw one acutely unwell patient up to ten patients were not seen on Sunday 12 April 2015. These patients were included on the planned list to be seen over the weekend because they were at risk of deterioration or needed active treatment to clear their chests. The Panel noted that there was no detrimental impact on the two patients who were not seen by a physiotherapist on 28-29 March 2015. However, the Registrant’s non-attendance on 12 April 2015 was of far greater significance as it impacted on the delivery of the physiotherapy service. In these circumstances the Panel was satisfied that the failure to provide treatment to these patients put them at unnecessary risk of harm and was avoidable. In addition to patients the Registrant’s conduct had the potential to adversely affect colleagues within her team, the wider profession and the reputation of the Health Board. Trust and confidence amongst colleagues is extremely important; the Registrant’s non-attendance for a third time demonstrated a failure to understand and take seriously her professional obligation to be reliable and trustworthy at all times.

39. The Panel was satisfied that the Registrant’s failure to take proactive steps at the appropriate time to avoid a further non-attendance on 12 April 2015 and her conscious and deliberate decision to dishonestly submit standby claims amounts to serious misconduct as described in the Roylance case.

Decision on Impairment

Panel’s Approach

40. Having found misconduct the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. The Panel took into account the HCPC Practice Note: “Finding that Fitness to Practise is Impaired” and accepted the advice of the Legal Assessor.

41. In determining current impairment the Panel had regard to the following aspects of the public interest:
• The ‘personal’ component: the current behaviour of the individual Registrant; and

• The ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

Panel’s Decision

42. The Panel considered the Registrant’s current fitness to practise firstly from the personal perspective and then from the wider public perspective.

43. The Panel took the view that the Registrant abused her position of trust, demonstrated a lack of judgment and a disregard for the wellbeing of her patients. The Panel noted that the Registrant expressed regret and remorse when she spoke to Witness LGW on 30 March 2015 and in her reflective statement, dated 1 April 2015, correctly identified the issues she needed to address to avoid repetition. However, 11 days later the Registrant failed to attend an ‘on call’ session again. As there has been no engagement from the Registrant in these proceedings there is no evidence before the Panel that she fully appreciates the gravity of her misconduct and there is no further reflection on the impact her non-attendance on 12 April 2015 had on patients, colleagues and the wider profession. There is no explanation as to how she would behave differently in the future and no assurance that such serious misconduct would not be repeated. In the absence of any information with regards to the Registrant’s current level of insight and any steps she has taken towards remediation since the events of 2015, the Panel concluded that there is a real risk of repetition. As a consequence, the Panel has determined that there is a current and ongoing risk of harm to patients.

44. The Panel recognised that demonstrating remediation in a case involving dishonesty is particularly difficult, as probity issues are reliant on attitude, which can often only be inferred from conduct. The Panel noted that the Registrant’s dishonest conduct relates to a discrete set of circumstances, which may have the potential to be remediated, provided that there is evidence of sincere and meaningful reflection that demonstrates that the dishonesty is firmly in the past and is not a deep seated attitudinal trait. However, the Registrant has provided no information that would assist the Panel in this regard. Her dishonest conduct demonstrates a conscious and deliberate decision to mislead the Health Board for financial gain. As a consequence of the Registrant’s behaviour the Panel took the view that there is a risk of repetition.

45. The Panel concluded that for these reasons the Registrant’s fitness to practise is currently impaired based on the personal component.

46. In considering the public component the Panel had regard to the important public policy issues which include the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour.

47. Members of the public would be extremely concerned to learn that a physiotherapist had failed to attend ‘on call’ sessions over the weekend, particularly after she had been ‘warned’, as this clearly has the potential to compromise the safety and well-being of patients. It is critically important that colleagues and service users can rely on physiotherapists at all times. A significant aspect of the public component is upholding proper standards of behaviour. The Registrant’s conduct fell far below the standard expected of a registered practitioner and the Panel takes the opportunity to declare that it is not acceptable for physiotherapists to submit dishonest claims for payment irrespective of the amount involved. It is critically important that payment procedures have integrity and honest claims are a vital part of that process.

48. The Panel took the view that the Registrant poses a risk to patients, has brought the profession into disrepute, has breached a fundamental tenet of the profession by failing to act in the best interest of patients and has demonstrated a lack of integrity. There is a risk that all of these features are likely to be repeated in the future.

49. In all the circumstances the Panel determined that public trust and confidence would be undermined if a finding of impairment is not made.

50. The Panel concludes that the Registrant’s current fitness to practise is impaired on the basis of both the personal component and the wider public interest and therefore the HCPC’s case is well-founded.

Decision on Sanction:

Panel’s Approach

51. The Panel accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of any sanction is not to punish the Registrant, but to protect the public and the wider public interest. The public interest includes maintaining public confidence in the profession and the HCPC as its regulator and upholding proper standards of conduct and behaviour. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of severity.

52. The Panel had regard to the Indicative Sanctions Policy (ISP) and took into account the submissions made by Mr Kewley, on behalf of the HCPC.

53. The Panel identified the following aggravating factors:
• The Registrant breached her employer’s trust;
• There is an absence of insight into the dishonesty in that there is no evidence that the Registrant has considered her conduct with a self-critical eye, acknowledged her fault and apologised. By not attending the hearing she has not taken the opportunity to persuade this Panel that she has learned a lesson from the experience.
• The Registrant’s previous non-attendance was repeated on 12 April 2015 following an informal warning and a requirement to complete a reflective statement. This indicates that no consistent proactive steps were put in place pending the new rota and the Registrant’s stated commitment in her reflective statement to introduce a ‘double checking’ system and record all ‘on call’ dates in a diary.
• Patients were put at unnecessary risk of harm.
• The Registrant failed to take her professional responsibilities seriously.

54. The Registrant provided no mitigation to this Panel. The Panel was aware that there was never any suggestion by the HCPC that the Registrant was anything other than a clinically competent practitioner. However, the Panel took the view that it was fair and appropriate to take into account the observations made by the Registrant’s former colleague SR, during the internal investigation interview, who stated that the Registrant ‘does her work very diligently, she’s slotted into our team and…we are very pleased with her on placement at the moment…’ The Panel also noted that the Registrant had no previous disciplinary findings recorded against her, in her three years of practice prior to the relevant events, and expressed remorse when her non-attendances in March 2015 were raised.

Panel’s Decision

55. The Panel first considered taking no action. The Panel concluded that, in view of the nature and seriousness of the Registrant’s dishonesty and repeated non-attendance ‘on call,’ and in the absence of exceptional circumstances, it would be wholly inappropriate to take no action. Furthermore it would be insufficient to protect the public, maintain public confidence and uphold the reputation of the profession.

56. The Panel then considered a Caution Order.  The Panel noted paragraph 28 of the ISP which states:
“A caution order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate action.” 

57. In view of the Panel’s findings that, the Registrant has demonstrated no current insight into her repeated non-attendance whilst ‘on call’ over the weekend and at no time has she demonstrated any insight into her conscious and deliberate intention to dishonestly mislead the Health Board, a risk of repetition remains, particularly as the Panel has not been provided with any evidence of remediation. The Registrant’s misconduct is not towards the lower end of the scale and therefore the Panel concluded that a Caution Order would be inappropriate and insufficient to meet the public interest.

58. The Panel went on to consider a Conditions of Practice Order. The Panel noted that paragraph 33 of the ISP states:
‘Conditions will rarely be effective unless the registrant is genuinely committed to resolving the issues they seek to address and can be trusted to make a determined effort to do so. Therefore, conditions of practice are unlikely to be suitable in cases:
• where the registrant has failed to engage with the fitness to practise process, lacks insight or denies any wrongdoing;
• where there are serious or persistent overall failings; or
• which involve dishonesty, breach of trust...’

59. The Panel concluded that the dishonest submission of standby claims for 28 and 29 March 2015 in breach of her employer’s trust is not amenable to conditions as the basis for this type of misconduct is an attitudinal failing. In addition the Registrant has not demonstrated a willingness to engage with the regulatory process and therefore the Panel could not be satisfied that, even if suitable conditions could be identified to address the non-attendance issue, she would comply with them. In these circumstances the Panel was unable to formulate conditions which would be workable, measurable or proportionate. Furthermore, conditions would not adequately address the serious nature of the dishonesty and so would undermine public confidence in the profession and the need to uphold standards of conduct and behaviour.

60. The Panel next considered a Suspension Order. A Suspension Order would send a signal to the Registrant, the profession and the public re-affirming the standards expected of a registered physiotherapist. The Panel noted that a Suspension Order would prevent the Registrant from practising during the suspension period, which would therefore protect the public and the wider public interest. A Suspension Order would also provide the Registrant with the opportunity to develop the insight which is essential if she is to ensure that her previous misconduct is not repeated. Although the Registrant has not engaged with these proceedings, in April 2015 she demonstrated some insight into her wrongdoings and appeared to be capable of developing an appropriate level of insight and taking appropriate steps towards remediation.

61. In the Panel’s view the Registrant should be given the opportunity to demonstrate that she can ‘redeem’ herself. The Panel noted that paragraph 41 of the ISP states:
‘If the evidence suggests that the registrant will be unable to resolve or remedy his or her failings then striking off may be the more appropriate option. However, where there are no psychological or other difficulties preventing the registrant from understanding and seeking to remedy the failings then suspension may be appropriate.’

62. The Panel considered that the above paragraph applies to the Registrant and that she should be given an opportunity to consider carefully the decision of this Panel and reflect on her previous conduct and behaviour.

63. The Panel decided that the appropriate and proportionate order is a Suspension Order. A Striking Off Order would be disproportionate and punitive. The Panel determined that the Suspension Order should be imposed for a period of 12 months. The Panel was satisfied that this period would be sufficient for the Registrant to develop an appropriate level of insight into her failings. If she is unable to develop or demonstrate insight within that time frame it is highly unlikely that she will ever be able to do so.

64. This Order will be reviewed shortly before expiry. Although this Panel cannot bind a future reviewing panel, that panel is likely to be assisted by the following:
(i) Attendance of the Registrant in person;
(ii) A full and substantive reflective statement from the Registrant which addresses her understanding of the issues identified by this Panel and the consequences for patients, colleagues and the wider profession;
(iii) Details of how the Registrant has kept her physiotherapy skills and knowledge up to date;
(iv) Testimonials from any paid or unpaid employment.

Order

ORDER:

The Registrar is directed to suspend the name of Ms Janine Santos for a period of 12 months from the date this order comes into effect.

The order imposed today will apply from 29 June 2017.

This order will be reviewed again before its expiry on 29 June 2018.

Right of Appeal:

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Articles 30(10) and 38 of the Health and Social Work Professions Order 2001, any appeal must be made to the court not more than 28 days after the date when this notice is served on you.

European alert mechanism:

In accordance with Regulation 67 of the European Union (Recognition of Professional Qualifications) Regulations 2015, the HCPC will inform the competent authorities in all other EEA States that your right to practise has been prohibited.

You may appeal to the County Court against the HCPC’s decision to do so.  Any appeal must be made within 28 days of the date when this notice is served on you.  This right of appeal is separate from your right to appeal against the decision and order of the Panel.

Interim Order:

The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.  This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

 

 

Notes

No notes available

Hearing history

History of Hearings for Miss Janine Santos

Date Panel Hearing type Outcomes / Status
30/05/2017 Conduct and Competence Committee Final Hearing Suspended