Tracy P McIlvar
Allegations (as amended at Final Hearing):
During the course of your employment as a Speech and Language Therapist by NHS
1. In relation to Child A, you:
a. Did not record that you had received email correspondence in October 2011 and/or March 2012.
b. Attempted to destroy cases notes dated June 2012.
2. In relation to Child A, you recorded in the case notes on or around 29 June 2012 that you had written and/or sent a report, when it was in fact created on 23 July 2012.
3. On or around 23 April 2013, in relation to Child A1 and Child A2 who were twins, you:
a. attempted to destroy case notes in respect of Child A1 and in relation to entries dated from 15 March 2013 to 23 April 2013;
b. rewrote case note entries in relation to Child A1 for 15 March 2013 to 23 April 2013.
4. On 7 August 2012, following an audit of your case notes, it was identified that:
a. In the case of Child B, you did not make an appointment to see Child B, following a request from the child's parents made on or around 17 April 2012;
b. In relation to the case of Child D, you did not carry out an assessment and/or complete a report as requested by Dr McDonald on or around 13 April 2012.
c. In the case of Child E, you did not produce a report, as requested by Dr McDonald on or around 20 January 2012 and/or provide Dr McDonald with the outcome of your assessment.
d. In the case of Child J did not ensure that all correspondence was recorded on the file between February 2012 and October 2012.
e. In the case of Child L did not follow up a referral to Child Community Health between April 2012 and August 2012.
f. In the case of Child U did not record in the case notes whether the child attended appointments on 28 May 2012 and/or 4 June 2012 and/or the outcome of these appointments;
g. In the case of Child V did not ensure that the correct date for the initial assessment was recorded in the case notes.
h. In the case of Child W did not ensure that the correct dates were recorded in the case notes in relation to entries dated 2 August 2012 and 3 August 2012.
5. Your actions described in paragraphs 2, 3a) and/or 3b) were dishonest.
6. The matters described in paragraphs 1 - 3 and 5 amount to misconduct.
7. The matters described in paragraph 4 amounts to misconduct and/or lack of competence
8. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.
1. The case for the Health and Care Professions Council (the “HCPC”) was presented by Ms Charlotte Mitchell-Dunn of Kingsley Napley, Solicitors. The Registrant was present and represented by Ms Gemma McKinlay of Brodies, Solicitors. At the outset of the hearing, Ms McKinlay advised the Panel that the Registrant was no longer insisting on the application to adjourn the hearing which had been submitted on 1 June 2017. Ms McKinlay also advised that the Registrant admitted the facts of particulars 1(a), 1(b), 2, 3(a), 3(b), 4(a), 4(b), 4(c), 4(d), 4(e), 4(f), 4(g), and 4(h). In respect of particular 5, Ms McKinlay advised that the Registrant admitted dishonesty in respect of particular 2 and denied dishonesty in respect of particulars 3(a) and 3(b). Ms McKinlay also objected to the evidence of LM and CR as the evidence in both statements post-dated the allegations. Ms Mitchell-Dunn advised that the HCPC were no longer relying on their evidence.
Application for Discontinuance and Amendment of Allegation
2. Ms Mitchell-Dunn, on behalf of the Council, advised the Panel that she was offering no evidence in respect of particulars 1(a), 4(b) and 4(e) (i) and (ii) and asked that these particulars were discontinued and that the remaining particulars be re-numbered accordingly. Ms Mitchell-Dunn also asked the Panel to amend particular 4(d) by deleting “Dr A” and substituting “Dr McDonald” and removing the reference to particular 1(a) in particular 5.
3. After considering submissions from both parties and obtaining legal advice the Panel agreed to grant the application for discontinuance in respect of particulars 1(a), 4(b) and 4(e). It also agreed to grant the application for the subsequent amendments as it was of the view that the amendments could be made without unfairness to the Registrant.
4. The Registrant was employed as a Speech and Language Therapist with NHS Grampian from 25 October 2004. She was employed as a Band 6 from June 2012 until she left on 24 July 2014. In July 2012, PC, the Lead Speech and Language Therapist for Aberdeen City Health and Social Care Partnership, was notified of concerns that the Registrant had said she had sent an email, but when IT checked the system, this had not been done. PC’s investigation into this matter subsequently became formal on 27 July 2012, when a review of the Registrant’s caseload began.
5. On 2 August 2012, PC was informed that the Registrant was asking for information on her case notes to be changed. As a precaution, the Registrant was suspended that day.
6. On 7 August 2012 PC initiated a review of the Registrant’s caseload in the Tillydrone and Torry Clinics. The audit was completed by 16 August 2012 and 75 of the cases reviewed demonstrated issues with the Registrant’s work. PC therefore referred the Registrant to the HCPC. Issues included case recording, reports and the speed of reports produced following requests; arranging assessments and appointments as requested and information sharing with other professionals. On the advice of Human Resources, PC did not produce a formal report.
7. In September 2012, PC set standards of practice for the Registrant, upon hearing mitigation involving her personal life and health. In October 2012, the Registrant returned to work, following the standard set process which continued into 2013.
8. The first review was held with PC on 12 March 2013, and she was of the view that the Registrant was not making sufficient progress. A second “interim review” was held on 3 April 2013, where it was agreed that the standard set process would be brought to a conclusion and the capability process (stage 1) would be initiated. The Registrant subsequently disagreed with this approach. In May 2013, LM, AHP Lead/Senior Service Manager in Community Health, advised PC that she had received a letter which required the standard to be postponed. This included the Registrant’s concerns regarding the standard set process.
9. In May 2013, LM initiated an investigation into the Registrant’s concerns and the standard set process. This was concluded in July 2013 and she recommended that a detailed action plan should be completed. Following LM’s review, it was decided that the standards set could be reinitiated for a further three months.
10. In July 2013, KM, SLT Team Leader, reported that an envelope containing torn case notes had been found. These were the Registrant’s case notes. It transpired that instead of amending them, the Registrant had attempted to destroy them and re-write the notes. It was also noted that the torn notes held information which was not included in the new notes. An investigation subsequently commenced under the conduct policy. The standard set process continued during this time with the second stage of the standard set process beginning on 20 August 2013. CR, a Speech and Language Therapist in the Paediatric Team, Aberdeen City Health and Social Care Partnership, NHS Grampian, was responsible for the Registrant’s practice during the second stage. By October 2013, it was deemed that the Registrant was still not meeting the expected standards. This was fed back to the Registrant. From October 2013 until 16 February 2014 the Registrant went on sick leave and then on special leave until she left NHS Grampian on 24 July 2014.
Application to hear evidence in private
11. Prior to the Registrant giving evidence, Ms McKinlay applied for the whole of her evidence to be taken in private, given that there were issues in relation to her health and private life. Ms McKinlay further submitted that hearing all of the Registrant’s evidence in private would allow her to answer all questions in an uninhibited and full and frank manner without the need to repeatedly move between public and private. It was submitted that this would allow the Registrant to give best evidence. Ms Mitchell-Dunn did not oppose the application. The Panel accepted the advice of the legal assessor and considered the Practice Note on ‘Conducting Hearings in Private’. The Panel concluded that the right of the Registrant to protection of her private life and confidentiality of her health issues outweighed the general presumption of hearings being conducted in public. The evidence of the Registrant was therefore taken wholly in private.
Decision on Facts:
12. The Panel considered all the evidence and the submissions of Ms Mitchell-Dunn and Ms McKinlay on facts, grounds and impairment. The Panel heard and accepted the advice of the Legal Assessor. It recognised that the burden of proving each individual particular rests always on the HCPC and that the HCPC will only be able to prove a particular if it satisfies the required standard of proof: the civil standard, whereby it is more likely than not that the alleged incident occurred.
13. The Panel heard live evidence from one witness on behalf of the HCPC: PC, the Lead Speech and Language Therapist for Aberdeen City Health and Social Care Partnership. The Panel also heard evidence from the Registrant and considered the documentary evidence submitted by the HCPC and by the Registrant.
14. The Panel was of the view that PC was honest, fair and measured in her evidence. The Panel found that she admitted if she did not have a clear recollection of details and did not attempt to go beyond the scope of her knowledge. In addition her evidence was supported by the documentary evidence including copies of relevant case notes and minutes of meetings. The Panel therefore found her to be a credible and reliable witness. The Panel found that the Registrant was fully engaged with the process and assisted the Panel to the best of her ability, having made admissions of most of the facts, including one count of dishonesty.
Particulars 1(a) and (b)
15. The Registrant has admitted the facts of these particulars. The Panel has heard evidence from PC in respect of the findings of her review of this case. The Panel has had sight of the relevant case notes in relation to Child A which supports her evidence. The Panel finds that the evidence from the HCPC witness supports the Registrant’s admissions and finds these particulars proved.
16. The Registrant has admitted the facts of this particular. The Panel has heard evidence from PC as to how this matter was brought to her attention and of the subsequent search conducted by IT. PC has also given evidence that in the course of a meeting with the Registrant on 9 August 2012, the Registrant admitted that she had falsified the case note. The Panel has had sight of the relevant case notes in relation to Child A which supports her evidence. The Panel finds that the evidence from the HCPC witness supports the Registrant’s admissions and finds this particular proved.
Particulars 3(a) and (b)
17. The Registrant has admitted the facts of these particulars. The Panel has heard evidence from PC as to how this matter was brought to her attention and of her meeting with the Registrant on 2 August 2012, when this matter was raised with the Registrant. The Panel has also had sight of the two sets of case notes in relation to Child A which support the evidence of PC. The Panel finds that the evidence from the HCPC witness supports the Registrant’s admissions and finds these particulars proved.
Particulars 4(a) - (h)
18. The Registrant has admitted the facts of these particulars. The Panel has heard evidence from PC as to the results of the audit she carried out on the Registrant’s caseload on 7 and 14 August 2012. The Panel has also had sight of the relevant case notes in relation to Child B, Child D, Child E, Child J, Child L, Child U, Child V and Child W which support the evidence of PC. The Panel finds that the evidence from the HCPC witness supports the Registrant’s admissions and finds these particulars proved.
19. In relation to particular 5, the Registrant has admitted dishonesty in respect of the facts of particular 2. The Panel accepts that to record in case notes that a report had been written and/or sent on or around 29 June 2012 when in fact the report was created on 23 July 2012 would be considered to be dishonest by the standards of reasonable and honest people. The Panel also accepts that the Registrant was attempting to cover up her failure to produce the report and that in those circumstances, she in fact realised that this was dishonest by those standards. The Panel therefore accepts the Registrant’s admission of dishonesty in respect of particular 2.
20. The Registrant has denied dishonesty in respect of the facts of particulars 3(a) and 3(b). The Panel has first considered whether what was done was dishonest by the standards of reasonable and honest people and if the Registrant in fact realised by those standards that what she was doing was dishonest.
21. The Panel has heard evidence that the Registrant had rewritten her entries in one of the children’s records, to ensure that the entry was the same as for the other child. The Panel has also had sight of the two sets of records and has seen that the rewritten page in the case notes did not include an entry in respect of an informal assessment. The Registrant advised the Panel that she knew the entries did not have to be the same for the two children who were twins. Her explanation was that she wanted to make the case notes right as she was under such scrutiny at the time and that she was not attempting to cover anything up. She also advised the Panel that she knew the proper way to correct errors in case notes by scoring out an entry and that she had never previously been criticised for amending a case note in the correct manner.
22. The Panel is of the view that making and keeping accurate records is an essential part of providing care and services and it is important that the integrity of these records is maintained. The Registrant has admitted that she attempted to destroy case notes for Child A1 and thereafter re-wrote the records, omitting some information. The Panel is of the view that any attempt to alter patient records in this manner would be considered to be dishonest by the standards of reasonable and honest people who would expect a health professional to follow the recognised procedure for making amendments to records and not to attempt to destroy and re-write records.
23. The Panel is also of the view that the Registrant in fact realised that this was dishonest by those standards. The Panel does not accept the Registrant’s explanation. The Panel is of the view that the Registrant acted as she did to protect her own position and in full knowledge of the correct procedure to amend notes. As a health professional the Registrant would have been fully aware of the need to maintain the integrity of records, particularly so, having had this issue raised with her at a meeting on 9 August 2012 in connection with a previous issue with her case notes. In all the circumstances, the Panel finds that the test for dishonesty has been met.
Decision on Statutory Grounds
24. The Panel next considered whether the Registrant’s actions in particulars 1 to 4 amount to misconduct and/or lack of competence. The Panel is aware that this is a matter for its professional judgement. In reaching its decision, the Panel has considered the submissions of Ms Mitchell-Dunn on behalf of the HCPC and of Ms McKinlay on behalf of the Registrant. The Panel has also accepted the advice of the Legal Assessor.
25. The Panel has found that the Registrant has attempted to destroy case notes and dishonestly altered two sets of case notes. The Panel considers that honesty is one of the fundamental tenets of the profession. The Registrant’s conduct was serious and fell well below the standards expected of a registered professional.
26. The Panel is of the view that the Registrant’s conduct in particulars 1(b), 2, 3 and 5 fell far short of what would be proper in the circumstances and breached the following standards of the HCPC’s Standards of Conduct, Performance and Ethics in force at the relevant time ( 2008 as amended in 2012) :-
• Standard 1 – You must act in the best interests of service users
• Standard 3 – You must keep high standards of personal conduct
• Standard 10 – You must keep accurate records
• Standard 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.
27. The Panel is also of the view that the Registrant’s conduct breached the following standard of the Standards of Proficiency for Speech and Language Therapists in force at the relevant time (2003):-
• Standard 2b.5 - Registrant Speech and Language Therapists must be able to maintain records appropriately.
28. Taking all of these matters into account, the Panel is satisfied that the Registrant’s conduct in particulars 1(b), 2, 3(a), 3(b) and 5 amounts to misconduct.
29. The Panel is also of the view that the Registrant’s failure to make an appointment to see a child; failure to carry out an assessment and/or complete a report; failure to produce a report and/or provide a Doctor with the outcome of an assessment; failure to follow up a referral; failures to record whether a child attended an appointment and the outcome of those appointments amount to a lack of competence as opposed to misconduct. The Panel is satisfied that these failures taken together demonstrate a standard of professional performance which is unacceptably low and therefore finds that particulars 4(a), (b), (c), (e) and (f) amount to a lack of competence.
30. The Panel is of the view that the Registrant’s failure to record that she had received email correspondence in respect of Child A as contained in particular 1(a) is a minor error and does not therefore meet the threshold for the statutory ground of misconduct.
31. The Panel does not find that the Registrant’s failure to ensure that all correspondence was recorded on Child J’s file or her failure to ensure that the correct dates were recorded in the cases of Child V and Child W meet the threshold for the statutory grounds. The Panel is of the view that the facts of particulars 4 (d), 4(g) and 4(h) are relatively minor errors and are not sufficiently serious to amount to either a lack of competence or misconduct.
Decision on Impairment:
32. The Panel next considered whether the Registrant’s current fitness to practise is impaired by that misconduct and lack of competence. In reaching its decision the Panel has considered both the personal component and the public component.
33. The Panel has seen evidence from the Registrant’s GP notes that she was suffering from health issues at the time of the allegation and has heard evidence from the Registrant of difficult personal issues. While the Panel accept that these issues may have had some impact on her behaviour, there is no medical evidence before the Panel to suggest that her health or personal issues were the cause of her actions in relation to the allegation. While the Registrant perceived that she was working under excessive scrutiny, the Panel is of the view that the scrutiny was an appropriate part of the Standard Setting Process. In addition, the Panel has heard evidence of extensive support provided by her employer during this period, which included support from Occupational Health, a reduced caseload, flexible working hours and a change of supervisor. The Panel is therefore of the view that her health issues do not absolve her of responsibility for her actions.
34. In terms of the personal component, the Panel is of the view that the Registrant lacks insight into her dishonesty in respect of particulars 3(a) and 3(b), maintaining that she wanted to correct the case notes. In relation to the remaining particulars, the Registrant has, on the whole, demonstrated considerable remorse and insight into her failings. She has also explained to this Panel how she would respond differently if she found herself in a similar situation in the future. In addition, she has undertaken training in record-keeping, confidentiality and best practice. The Registrant has also produced a positive reference from a position as a Speech and Language Therapist which she held after her employment at NHS Grampian. The Registrant was initially employed on a locum basis and thereafter secured a fixed term contract and remained with that employer for a period of twenty months. Given the evidence of insight, remorse and remediation, the Panel has taken the view that there is a very low risk of repetition.
35. The Panel has also considered the critically important public policy issues which include the collective need to maintain public confidence in the profession and in the regulatory process, the protection of service users and the declaring and upholding of proper standards of behaviour.
36. The Panel has found that the Registrant has acted dishonestly on two separate occasions and has attempted to destroy case notes on two separate occasions in addition to failures to produce reports, a failure to make an appointment, a failure to carry out an assessment, a failure to follow up a referral and failing to record information in case notes. The Panel has concluded that there is a serious risk of an adverse impact on public confidence in the profession of Speech and Language Therapists and in the regulatory process, if a finding of impairment were not made in these circumstances.
37. The Panel therefore finds that the Registrant’s current fitness to practise is impaired by her misconduct and lack of competence and the allegation is well founded.
Decision on Sanction:
38. The Panel has heard submissions from Ms Mitchell-Dunn and Ms McKinlay on the issue of sanction. The Panel has also considered the advice of the legal assessor and had regard to the HCPTS’s Indicative Sanctions Policy.
39. The Panel is aware that the function of fitness to practise panels is not to be punitive, and that the primary function of any sanction is to address public safety from the perspective of the risk the Registrant may pose to those using or needing her services in the future and determine what degree of public protection is required. The Panel must also give appropriate weight to the wider public interest which includes the deterrent effect on other Registrants, the reputation of the profession and public confidence in the regulatory process.
40. The Panel considered the following mitigating factors:- the Registrant was experiencing ill health and difficult personal circumstances at the time of the allegation; the Registrant had not come to the attention of the HCPC prior to these proceedings or since; she has demonstrated insight and remorse in relation to the majority of the conduct; she has made early admissions in relation to the majority of the facts and has fully engaged with the process; subsequent to the allegation she has been employed as a Speech and Language Therapist with Liverpool Community Health for a period of 20 months and produced a positive reference from her line manager; she has provided evidence under oath in respect of relevant CPD which she has undertaken since the allegations; the Panel has identified a low risk of repetition.
41. The Panel also had regard to the following aggravating factors: - the Registrant’s actions involved two counts of dishonesty; the conduct occurred over an extended period of time.
42. The Panel has considered the sanctions available to it in ascending order of severity. The Panel considered that to take no action or to impose a Caution Order would not be appropriate, given that the lapse was not isolated or minor in nature. In addition the Panel is of the view that neither would be sufficient to address the wider public interest considerations.
43. The Panel next considered a Conditions of Practice Order. The Panel is of the view that the issues are capable of remediation. There is no persistent failure on the part of the Registrant, given that she worked as a Speech and Language Therapist since the allegations without any issues. The Panel is also of the view that appropriate, realistic and verifiable conditions can be formulated and the Registrant can be expected to comply with those conditions. The Panel therefore considers that a Conditions of Practice Order would be an appropriate and proportionate sanction, given the significant mitigation in this case.
44. The Panel also considered a Suspension Order. However, taking account of the mitigation in this case and the low risk of repetition, the Panel was of the view that the imposition of a Suspension Order would be both punitive and disproportionate in all the circumstances.
45. The Panel has determined that a Conditions of Practice Order for a period of 2 years would be appropriate to enable the Registrant to secure employment and to demonstrate that she has fully remediated the failings identified
ORDER: The Registrar is directed to annotate the Register to show that, for a period of 2 years from the date that this Order comes into effect (“the Operative Date”), you, Mrs Tracy P Mcllvar, must comply with the following conditions of practice:
1. You must promptly inform the HCPC if you take up employment as a Speech and Language Therapist.
2. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.
3. 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).
4. Within 14 days of taking up employment as a Speech and Language Therapist, you must place yourself and remain under the supervision of a workplace supervisor, registered by the HCPC or other appropriate statutory regulator and supply details of your supervisor to the HCPC within 28 days of taking up that employment. You must attend upon that supervisor as required and follow their advice and recommendations and provide copies of your supervision notes to the reviewing Panel.
5. Within 28 days of taking up employment as a Speech and Language Therapist, you must work with your supervisor to formulate a Personal Development Plan designed to address the deficiencies in the following areas of your practice:
• Case load management
6. Within three months of taking up employment as a Speech and Language Therapist you must forward a copy of your Personal Development Plan to the HCPC.
7. You must meet with your supervisor on a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.
8. You must allow your supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan and you must seek to obtain from your supervisor a report on your progress for a future reviewing panel, such a report to be supplied to the HCPC a minimum of 14 days in advance of a review hearing.
9. You must provide a reflective piece to a future reviewing Panel in relation to the findings of dishonesty in respect of Particulars 3(a) and 3(b) of the allegation which should be submitted a minimum of 14 days in advance of a review hearing.
The order imposed today will apply from 05 July 2017 (the operative date)
This order will be reviewed again before its expiry on 05 July 2019.
History of Hearings for Tracy P McIlvar
|Date||Panel||Hearing type||Outcomes / Status|
|05/06/2017||Conduct and Competence Committee||Final Hearing||Conditions of Practice|