Mr Kieran McDermott

: Physiotherapist

: PH91782

: Final Hearing

Date and Time of hearing:10:00 12/06/2017 End: 17:00 16/06/2017

: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Suspended

Allegation

(As amended on the first day of the final hearing on 05 December 2016)
During the course of your employment as a Physiotherapist at University Hospital Birmingham NHS Foundation Trust between June 2012 and 31 March 2015, you:
1. Were unable to consistently work as an autonomous Band 5 physiotherapist, in that you:
a) required a sustained level of guidance whilst working with patients;
b) were unable to consistently hold a full case load as expected of a Band 5 Physiotherapist.
2. Did not consistently maintain accurate and/or adequate and/or contemporaneous records in that you:
a) between June 2012 and December 2012, did not consistently provide sufficient information in patient notes;
b) between June 2012 and December 2012, produced Patient notes which lacked subjective and/or objective measures;
c) between June 2012 and December 2012, did not consistently record subjective markers;
d) on or around February 2013, in relation to Patient C, did not document:
i. which hip had been mobilised;
ii. your reasoning as to why the hip mobilisations were performed on Patient C;
iii. which specific mobilisation was performed.
e) on or around October 2013, required consistent reminding and/or prompting to maintain patient records;
f) on or around June 2014, completed a manual assessment of neck accessory movements on Patient E and did not record:
i. which joints had been palpated;
ii. the grade of palpation;
iii. what range of accessory movement issue was found.
g) on or around October 2014, you:
i. were unable to accurately record assessment and treatment sessions for patients;
ii. omitted information from records including gait pattern and/or hands on treatment.
h) on or around December 2014, did not consistently record evidence of clinical reasoning on patient records.
i) In or around October/November 2013, in relation to Patient D your records did not identify:
i. the exercises performed in relation to the patient;
ii. your clinical reasoning for the insertion of the nasophararyngeal airway (NPA);
iii. any treatment/management plan in respect of the NPA.
3. Demonstrated poor assessments and/or treatment to patients, in that you:
a) on or around 2012, inaccurately measured patients knee range movements;
b) on or around 2012, misinformed patients of their progress;
c) did not consistently read patient notes prior to treating the patient;
d) did not consistently provide appropriate treatment to patients;
e) did not consistently provide reasoning for:
i. subjective assessments;
ii. straight leg raise;
iii. leg length;
iv. gait analysis.
f) did not consistently form hypotheses from the assessments you conducted on patients;
g) on or around August 2013, you were unable to and/or could not demonstrate measuring range of shoulder movement;
h) on an unknown date, during your rotation at the Royal Orthopaedic Hospital, you inaccurately measured a patient’s leg length following hip surgery;
i) on or around 15 August 2012, during your rotation at the Royal Orthopaedic Hospital, you did not ask a patient had had a microdisectomy about red flags including:
i. Coughing;
ii. Sneezing;
iii. Bladder function; and/or
iv. Bowel function.
4. Did not consistently demonstrate adequate clinical reasoning:
a) in relation to treatment planning;
b) in relation to modification of the patient’s treatment;
c) in that during a discussion with your colleague in relation to Patient B, you were unable to independently provide clinical reasoning for applying manual resistance as part of the patient assessment conducted on 4 January 2013;
d) in that on or around 24 October, when completing the gym transfer form in relation to Patient H, you did not record the patient’s diagnosis and/or treated Patient H without knowing their diagnosis.
e) on or around June 2014, in relation to patient E, you were unable to provide clinical reasoning for your manual assessment of neck accessory movements on Patient E;
f) on or around October 2014, you were unable to clinically reason why a patient may be presenting with a deficit.
5. Demonstrated poor patient safety, in that you:
a) on or around August 2012, prescribed excises to patients in a hip class without checking the patients’ conditions and/or the appropriate precautions;
b) on or around 14 September 2012, in respect of Patient A, you:
i. did not consider and/or demonstrate clinical reasoning in respect of which leg the patient should lead with on climbing stairs;
ii. did not provide the patient with specific instruction prior to asking them to climb the stairs;
iii. did not assess the patient before asking her to climb the stairs.
c) on or around 18 October 2012, you put a patient who had  had an ankle fusion on a patient’s cross trainer;
d) on or around 4 January 2013, in relation Patient B, who had had rotator cuff repair surgery, you applied manual resistance for strength;
e) In or around October/November 2013, in relation to Patient D you:
i. recommended the insertion of a NPA;
ii. did not consult with a senior member of staff prior to the recommendation at (i) above;
iii. delivered NPA to Patient D which caused Patient D harm;
f) on or around October 2014, conducted physiotherapy exercise with Patient F which was unsafe;
g) on 17 October 2014, requested Colleague A’s assistance to move Patient G on and/or off the floor but proceeded to move Patient G despite the risk;
h) on a unknown date, during your rotation at the Royal Orthopaedic Hospital, you asked a patient with a hip replacement to use the leg press machine;
i) on or around 24 August 2012, you placed a patient who had had a microdisectomy into a slump position
j) on or around 18 December 2012, when observed by a colleague, you:
i. did not assess a patient’s ability to perform straight leg raises before asking her to do so;
ii. asked the patient to perform straight leg raises on more than one occasion.
6. On or around June 2014, in relation to patient E, worked outside of your scope of practise is in that you completed a manual assessment of neck accessory movements on Patient E.
7. Did not consistently communicate effectively with patients and/or colleagues in that you:
a) on or around 01 November 2013, did not communicate the full clinical situation regarding Patient D to senior staff and/or on call staff;
b) on or around October 2014, did not consistently use active listening techniques in that you:
i. turned your back on patients when they were explaining their complaint to you;
ii. asked patients questions that they had already answered;
iii. shuffled papers and read your computer screen whilst Colleague A provided you with feedback;
c) on or around 27 May 2014, were aggressive towards Colleague A and Colleague B when they discussed discharge planning with you.
8. Did not consistently demonstrate adequate time management.
9. The matters set out in paragraphs 1 – 8 constitute lack of competence.
10. By reason of your lack of competence your fitness to practise is impaired.

Finding

Preliminary matters:
Application to amend the allegation:
1. There was at the outset of the hearing, on 5 December 2016, one preliminary issue. The HCPC applied to amend the allegation.
2. Mr Ross on behalf of the HCPC stated that the amendment should be allowed because it had been notified in advance to the Registrant, better reflected the evidence, and was not opposed. The Registrant did not oppose the amendment.
3. Having taken advice from the Legal Assessor and having considered the submissions from Mr Ross, the Panel acceded to the amendment application. The Registrant was notified of the original allegations following a determination of the Investigating Committee by letter dated 16 October 2015. By letter dated 13 July 2016, the HCPC informed the Registrant that it intended to apply to amend the allegations on the first day of the hearing. The Panel agrees that the Registrant is not prejudiced by the application as he has had substantial advanced notice of the application and there are a number of particulars which the HCPC now intends to offer no evidence on and has therefore withdrawn.
Registrant’s response to the allegations:
4. The allegations were formally read out to the Registrant and through his Counsel he indicated that his position on each was as follows (“N/A” not admitted “A” admitted)
• 1a) N/A, 1b) N/A
• 2a) A, 2b) A, 2c) A, 2d)(i) A, 2d)(ii) N/A, 2d)(iii) N/A, 2e) N/A, 2f)(i) N/A, 2f)(ii) N/A, 2f)(iii) N/A, 2g)(i) N/A, 2g)(ii) N/A, 2h) N/A, 2i)(i) N/A, 2i)(ii) N/A, 2i)(iii) N/A,
• 3a) A, 3b) A, 3c) N/A, 3d) N/A, 3e)(i) N/A, 3e)(ii) N/A, 3e)(iii) N/A, 3e)(iv) N/A, 3f) N/A, 3g) A, 3h) N/A, 3i)(i) A, 3i)(ii) A, 3i)(iii) A, 3i)(iv) A
• 4a) N/A, 4b) N/A, 4c) A, 4d) A, 4e) N/A, 4f) N/A,
• 5a) A, 5b)(i) A, 5b)(ii) A, 5b)(iii) N/A, 5c) N/A, 5d) N/A, 5e)(i) N/A, 5e)(ii) N/A, 5e)(iii) N/A, 5f) N/A, 5g) N/A, 5h) A, 5(i) A, 5j)(i) N/A, 5j)(ii) N/A
• 6 N/A
• 7a) N/A, 7b)(i) N/A, 7b)(ii) N/A, 7b)(iii) A, 7c) N/A
• 8 N/A
• 9 N/A
• 10 N/A.
5. During closing submissions through his counsel he further admitted 1 (b) 2 (d) (ii) and (iii) and 3 (h).
Application for part of the hearing to be held in private:
6. Following the allegations being formally read out and prior to Mr Ross completing his opening statement an application was made by Ms Brown (although in fact raised initially by Mr Ross) for all references to the Registrant’s health conditions to be heard in private. The Panel took advice from the Legal Assessor who referred it to the HCPC practice note ‘Conducting Hearings in Private’. The principal of public justice requires a hearing to be conducted in public unless a specific exception applies. An exception includes to protect the private life of the Registrant although this ground can never be a pretext for matters which simply cause embarrassment to the Registrant or to conceal facts it may be felt desirable to keep secret. The Panel are satisfied that there is no compelling justification for the hearing being conducted in private generally. The Panel notes this is not a hearing before the health committee and were told by Ms Brown that the Registrant had deliberately not made an application to have the matter transferred. The Panel consider that where there are specific detailed references to the Registrant’s health conditions, such as diagnosis, medication etc. then the Panel will go into private session. This will not extend to the label of the condition nor any suggested adjustments or accommodations that were or it is contended should have been made.
Change of Panel Member:
7. For various reasons the hearing did not proceed as swiftly as originally envisaged. By Monday 12 December 2016 the Panel had heard evidence from 5 out of the 6 witnesses to be called on behalf of the HCPC. Following the conclusion of LC’s evidence the hearing was adjourned to be relisted for w/c 22/5/17 for 1 week with a further week listed w/c 12/6/17 if necessary. Unfortunately during the adjournment the Panel Chairperson, Gill Madden, indicated that she would be unable to hear the case on the dates listed due to health problems. Following discussions with the Registrant’s legal advisors it was agreed with the Registrant that a new Panel Chairperson would be brought in rather than subject the hearing to further delay.  Professor Ian Hughes became the Chairperson from 22/5/17 onwards. Professor Hughes had a full opportunity to read all of the papers and the transcripts of evidence prior to the start of evidence on 22/5/17.
Application for further amendment to the Allegation:
8. Following the close of evidence both counsel submitted helpful written closing submissions. Within those submissions Mr Ross sought an amendment to particular 5 (j) (i) and (ii) to replace the words “do so” and “perform straight leg raises” “with stand on one leg”. This was said to better reflect the clarification that LC had given in oral evidence. It was said to be a minor amendment that did not change the nature of the allegation.  The amendment application was opposed by the Registrant who said there were no patient notes or physiotherapy records and no contemporaneous records in respect of the allegation and so the Registrant was prejudiced. Following the receipt of the legal advice the Panel decided not to accede to the application. The amendment application came very late in the day. It was not a reason to allow an amendment merely because it reflected the evidence as given at hearing. The Panel did not agree with Mr Ross that this was a minor cosmetic change. The change in theory made the allegation easier to prove and was therefore prejudicial to the Registrant. 
Background:
9. The Registrant is a qualified Physiotherapist. He was employed as a Band 5 rotational physiotherapist at Queen Elizabeth Hospital Birmingham (QEHB) from November 2009 until March 2015. All Band 5 physiotherapists undertake four monthly clinical rotations covering a range of in-patient and out-patient areas within QEHB and externally. In the Registrant’s case the length of the rotation was extended on occasion owing to concerns raised about his practice.
10. As a Band 5 he was to possess a broad range of basic skills but not specialist knowledge. He was expected to receive specific training in each area he worked. He had no management responsibility.
11. On 21 May 2012 the Registrant commenced a rotation at the Royal Orthopedic Hospital (ROH). This was a musculoskeletal rotation and he was based in the physiotherapy gym. He was supervised by LG a Band 7 Senior Physiotherapist. He had previously completed a rotation at the Selly Oak Hospital in 2009/2010 in the physiotherapy gym. The Registrant had an induction in the first week at ROH and received specific training on the use of the hospital recording system TIARA.
12. LG was on leave until the end of June 2012. On her return she was informed of a number of concerns about the Registrant’s practice including the accuracy of patient assessments. Patients, it is said, were unhappy with their treatment by the Registrant. These issues were raised with the Registrant and his response was that he was having trouble using the TIARA system and this was time consuming.
13. Following an email sent by the Registrant to CE, Head of Physiotherapy, at QEHB on 25 July indicating that he felt he was struggling at ROH, a meeting was held on 31 July 2012, between the Registrant and CE. Issues were discussed including concerns in respect of the Registrant’s performance. The Registrant indicated that his training on TIARA was inadequate and time management problems arising due to his dyslexia had not been adequately adjusted for. The Registrant was told that his performance would be managed using the QEHB poor performance procedure. This was to provide a framework for at least 3 months with the aim of achieving improved standards.
14. On 6 August 2012, a stage 1 meeting was held as part of the managing poor performance policy. The Registrant was present and a number of topics said to be concerns with the Registrant’s practice were discussed. There was a wide range of issues including record keeping. The notes of the meeting identify concerns about incomplete documentation particularly with new patients with no past medical history, drug history or social history. Steps to address these concerns were identified in the form of an action plan. This identified the areas needed to improve upon and set objectives to complete. The initial review date was for six weeks later.
15. On 10 September 2012 LG conducted an audit of the Registrant’s cases using a random sample of 5 sets of notes. The audit was said to identify a number of deficiencies in the notes include an absence of subjective markers (a subjective marker is something that the patient reports about how their pain or condition is affecting them). There was also said to be inconsistencies in the recording of objective markers (a quantifiable measure from the physical assessment used to assess progress of treatment). These alleged failures were said to affect the reliability of the reassessment of a patient’s condition and consequently the effectiveness of treatment.    
16. A performance review meeting at ROH was held on 24 October 2012. The purpose of the meeting was to follow up and review progress in accordance with the action plan. While the notes of the meeting evidenced some improvement they identified on going deficiencies and in particular stated that there had been further safety issues including an incident involving a patient’s leg giving way. The notes express significant concern about further patient safety incidents having taken place.  It was confirmed by the Registrant that he had been seen by a dyslexia advisor who had provided him with a programme to assist the use of TIARA on his laptop. It was agreed that the Registrant would remain at stage 1 of the poor performance procedure for a further 6 weeks.
17. On 5 November 2012, a second audit of the Registrant’s cases was completed by LG. Three sets of notes were reviewed at random. The review was said to identify some improvement in relation to completing the subjective assessment but clinical reasoning was not always demonstrated and two sets of patient notes were said to be incomplete in that there was a record of their appointment on TIARA but no notes of the appointment documented.   
18. A 12 week review meeting was held at ROH on 15 November 2012. While some improvements were noted there continued to be concerns in respect of clinical reasoning. The registrant did not always act upon information given by patients during subjective history, which in turn led to inappropriate tests being undertaken in the objective assessment, and the subsequent formulation of a clear clinical impression. It was noted that there had been a further two safety incidents with patients. The therapy manager at ROH recommended that the poor performance process be moved to stage 2 because there were said to be “serious concerns regarding your clinical reasoning leading to patient safety incidents”.
19. On 19 November 2012 the Registrant rotated to QEHB musculoskeletal out patients service. He was line managed and supervised by LC, a Band 7 physiotherapist, and another physiotherapist, JB, as LC worked part time.
20. A stage 1 review meeting took place on 30 November 2012, with the Registrant, CE and LL, Band 8b clinical lead for physiotherapy out patients. The purpose of the meeting was to review the performance plan and the poor performance process. The Registrant was told that despite the recommendation of ROH he was to remain on stage 1 for a further month prior to making any decision.
21. The one month scheduled review was postponed until 9 January 2013. CE and LL were present with the Registrant who was accompanied by a representative (LC was on annual leave). It was explained to the Registrant that whilst there had been some improvements in aspects of his work he had not demonstrated sufficient improvement in his performance that would enable confidence that he was performing at a level expected of his grade and experience. Specific reference was made to an unsafe action with a patient where it was said LC had to stop the assessment and intervene.  Various steps to assist the Registrant were agreed including a manager’s referral to Occupational Health (OH) and a reduction in caseload. He was given additional time to update patient records and to observe other practitioners. The Registrant said that he had arranged to meet with MS (a Senior Nurse), who provides support for staff who experience difficulties associated with dyslexia in the Trust to discuss strategies relating to his dyslexia.
22. On 15 February 2013, two further alleged safety incidents involving patients B and C gave rise to a meeting with the Registrant and LL where the circumstances of these incidents were discussed.
23. A further meeting took place between the Registrant, CE and LL on 26 February 2013. The Registrant was accompanied by his union representative. The patient safety incidents raised on 15 February 2013 were reviewed. The key issue of concern was the safety of his practice. The Registrant confirmed that he was receiving an appropriate level of support and was awaiting an OH appointment which was due in March. He had not been able to reduce his caseload to the required level. From mid-March his new patient numbers were to be reduced. His performance was to be measured through an interim performance improvement plan. He was informed that if he failed to meet the objectives as set out in the PIP at the conclusion of the review period formal poor performance management measures would commence. 
24. On 18 March 2013, CE received a letter from Occupational Heath in response to a request that the Registrant be seen by OH. There were some recommendations made in the letter including that the Registrant potentially undertake the next rotation at the neuro or stroke wards. CE rejected this as the Registrant had not achieved satisfactory improvement in relation to his patient management and the level of staff supervision he was currently receiving could not be easily replicated. She therefore considered he should undertake a further rotation in the musculoskeletal department.
25. A further review took place with the Registrant, CE, DB (a Human Resources advisor), MR (a Chartered Society of Physiotherapists (CSP) Staff Representative), and LL on 04 June 2013. The Registrant’s restricted caseload was reported and he stated that he was receiving good support and that the restricted caseload was helping to improve his day to day organization. While there had been some improvement and no new safety incidents, there remained serious concerns about basic clinical reasoning, record keeping and general professionalism. The Registrant revealed that he had been previously assessed for dyslexia in 2007 but refused to share the report in its entirety. It was agreed that the Registrant would move to in patient haematology and oncology for his next rotation and remain on stage 1 of the poor performance procedure. A further OH review was also agreed in the light of the new information.
26. The Registrant was reviewed by Dr Nixon specialist OH Physician on 8 July 2013. Dr Nixon advised the Registrant to contact a Disability Employment Adviser for an Access to Work assessment. He would benefit from his own dedicated computer set up with dictation and mind mapping software. Dr Nixon also suggested that the Registrant may perform better in areas with prolonged contact with patients where he can get to know them over a prolonged period of time.
27. The Registrant moved to oncology on 29 July 2013, where he was supervised by HC, a Band 7 Physiotherapist. On 17 October 2013, a stage 1 performance review was held with the Registrant and his representative and CE and others. It was indicated that there remained on-going concerns about areas of clinical practice previously discussed including safety issues with two patients and concerns about the manner in which the Registrant communicated to other professionals. It was suggested the Registrant crossed the boundary into areas of nursing and medicine that were not his specialism. There were some identified assessment failings in respect of shoulder joint and upper limb myotomes. There were issues in respect of record keeping. The Registrant was said not to have actioned a workplace assessment that had been recommended by Dr Nixon in July 2013. It was agreed that the stage 1 managing poor performance procedure would continue and the Registrant would action the workplace assessment. 
28. On 24 October 2013 an informal complaint was received from Patient I’s wife that during a case conference regarding Patient I’s discharge the Registrant spoke to her in an unprofessional manner and had a negative attitude towards the Patient. The complaint was dealt with by Alexandra Drury. The Registrant apologised and no formal action was taken.    
29. On Monday 4 November 2013, CE was made aware of a serious concern raised by the senior nursing staff on one of the oncology/haematology wards relating to the care of Patient D. Patient D was a 79 year old female who was admitted on 28 October 2013, to QEHB with hyperglycaemia (an excess of glucose in the bloodstream), sepsis (inflammatory response to an infection) with metabolic acidosis (when the body produces too much acid, or when the kidneys are not removing enough acid from the body). Patient D had a history of advanced breast cancer with brain, lung and nasal metastases. The concerns related to Patient D surrounded the insertion of an Nasal Pharyngeal Airway (NPA) late on Friday afternoon. On 10 November 2013, the Registrant attended a meeting with CE, JH (Clinical Lead Physiotherapist In Patients) and SR(1) (a Senior Physiotherapist who was also one of the Registrant’s Senior Supervisors) where it was decided that he would be taken off the out of hours rota prior to a Root Cause Analysis (RCA) being undertaken arising out of the issues in respect of the care of Patient D. This was subsequently made permanent.
30. The RCA was said to have identified a number of failings in relation to the Registrant’s actions relating to Patient D’s case. His actions were said to have presented a clinical risk to the patient and a risk for the nursing staff in managing this patient because there were no trained nursing staff on the ward to manage a NPA or deliver suction. Whilst it was recognised that a Junior Doctor inserted the NPA on 1 November 2013 the Registrant was part of the decision making that led to this action, and he was the responsible ward physiotherapist.
31. The Registrant rotated to Burns and Plastics at QEHB on 25 November 2013.  He was supervised by RK(1), a Band 8a Clinical Specialist, and RK(2), a Band 7 Senior Physiotherapist. There was also a Band 6 physiotherapist within the team.
32. On 24 January 2014, a further meeting took place with the Registrant CE, DB and MR as part of the stage 1 managing poor performance procedure. The Registrant acknowledged that he was well supported by senior members of staff and had a reduced caseload of patients, who were clinically straightforward in nature. The issues with Patient D were reviewed. It was outlined to the Registrant that he had not met the standards expected as part of the performance improvement plan, and he would be moved to stage 2 under the Trust’s managing poor performance procedure.  It was agreed that the Registrant would be on the stage 2 process for a minimum period of three months. It was agreed to carry out an interim review of his progress within six weeks. CE proposed an indefinite move to neuro outpatients to ensure that the Trust could manage the Registrant’s disability by providing him with a manageable caseload and provide him with supportive equipment. It was decided that the Registrant would not be returning to the out of hours rota, which he had been removed from at the time of the issues with Patient D. The Registrant reported that he was due to meet with Access to Work on 27 January 2014, but it was noted this had been unacceptably delayed by the Registrant. 
33. On 27 February 2014, there was a formal review of the findings of the RCA investigation relating to Patient D. It was made clear during the meeting that the Registrant was not going to be put back onto the out of hours rota.
34. A meeting took place on 24 March 2014 to discuss the recommendations contained within the Access to Work report. It was agreed that a laptop would be purchased for the Registrant’s use.
35. On 31 March 2014 the Registrant commenced rotation in the neuro-outpatients service, supervised by SA, a Senior Physiotherapist (Team Lead) in Neuro Out-Patients and HC.
36. On 27 May 2014, SA and HC conducted a regular weekly feedback and review of action plan meeting with the Registrant. It was alleged that he was aggressive to the colleagues present in response to a discussion about discharge planning. 
37. On 10 June 2014 the Registrant had a supervision session with SA and HC where the Registrant asked them to look through notes he had recorded for Patient E. It is alleged that the Registrant had conducted a manual assessment of neck accessory movements (a type of assessment he would not be expected to have undertaken) but had failed to record a number of key findings including the grade of palpation and what range of accessory movement was found.  
38. A further meeting occurred on 18 July 2014, to review the Access to Work report.  The Registrant was reminded of the support he had used to date, including Staff Support, Occupational Health, his GP, and colleagues including MS and PW (Senior Clinical Educator, Mental Health at QEHB). It was agreed that any further formal meeting to review performance would be deferred until later in the year when the equipment was in situ and when most of the necessary training had been completed.
39. On 7 October there was a PIP update meeting with the Registrant. An alleged safety issue was discussed in relation to Patient F who had early onset Parkinson’s disease and presented with balance issues. It was said that the Registrant undertook an exercise involving a wobble cushion without appropriate equipment/planning to protect the patient and himself in case of loss of balance.
40. On 14 October 2014, a PIP review meeting was held with the Registrant, SA and HC. A number of matters were allegedly raised at that meeting. It was said that the Registrant did not employ active listening techniques when listening to patients and colleagues. An example given was that the Registrant turned away from patients to document what they were saying thereby missing details and asked questions that had already been answered. It was said at this meeting that complaints had been received about the way the Registrant spoke to senior colleagues. He was said to be shuffling papers and looking at a screen rather than listening in the meeting. Other issues raised including alleged ongoing concerns about clinical reasoning, time management and four previously observed safety issues.     
41. On 17 October 2014, an alleged safety incident took place involving Patient G. G was a female patient with MS and problems with balance and mobility. It was said that a risk assessment of Patient G’s ability to get on and off the floor was undertaken by the Registrant however,  he had not waited for help, despite having identified the need for two people to undertake the intervention (but had then done it alone) and the way the environment was set up was not safe.  
42. The PIP review on 04 December 2014, attended by SA, HC and the Registrant summarised that “Kieran continues to demonstrate a fundamental lack of clinical reasoning ability, pattern recognition and ability to interpret assessment findings to formulate a comprehensive, appropriate treatment strategy which is individualised to each patient”. It was said the basis of all outstanding issues and concerns about clinical practice is grounded in a fundamental problem with processing of information, problem solving, clinical reasoning, interpretation and analysis of information in relation to patient presentation and diagnosis.
43. There was then a stage 2 meeting on 8 December 2014. The outcome letter stated that “despite considerable efforts to support you, you have not demonstrated any significant improvement. In particular, I remain very concerned about the safety of your clinical practice, and I am only assured that you are safe to be treating patients at the present time because we are tightly controlling your clinical caseload and the environment in which you are working. However, I do not consider that this high level of support is sustainable.” The letter recommended that the performance improvement process should progress to stage 3.
44. On 15 December 2014, the Registrant attended an OH appointment with Dr Robertson and commenced long term sick leave from which he did not return prior to his resignation from the Trust.
Decision on Facts:
45. The Legal Assessor reminded the Panel of the guidance set out in HCPC Practice Note ‘Finding that Fitness to Practise is Impaired’ under the heading “Introduction”. In determining whether allegations are well founded Panels are required to decide firstly whether the HCPC, which has the burden of proof in relation to the facts as alleged, has discharged that burden. The standard is the civil standard of proof – that is on the balance of probabilities. This was accepted by the Panel. The burden of proof only exists in relation to the facts. Whether the facts as proved amount to the statutory ground and constitute impairment is a matter of judgment not proof.
46. The Panel should usually provide adequate reasons on its findings of fact so that the parties know why they have won or lost. The Court of Appeal has stated “every Tribunal ... needs to ask itself the elementary questions: is what we have decided clear? Have we explained our decision and how we have reached it in such a way that the parties before us can understand clearly why they have won or why they have lost? If in asking itself those questions the Tribunal comes to the conclusion that in answering them it needs to explain the reasons for a particular finding or findings of fact that, in my judgment, is what it should do” The Council's Practice Note "Drafting Fitness to Practise Decisions" of August 2012 says, in its "Introduction" that "Practice Committee Panels have a legal duty to provide reasons for their decisions …", and that "[beyond] that legal duty, Panels have an obligation to explain the decisions they reach and the reasons for them, as part of the open and transparent processes which the Council seeks to operate”.
47. The Panel makes the following general observations on the witnesses who gave oral evidence:
a) CE, who was Head of Physiotherapy at University Hospitals Birmingham NHS Trust (the Trust), and who completed an investigation into the Registrant’s performance under the Trust’s performance management procedure –gave very clear evidence. She was measured and thoughtful in her evidence, open and considered. The Panel noted that she gave evidence for a prolonged period of time which allowed the Panel to examine her evidence in detail.
b) LG, now LT, who was Team Leader in the Physiotherapy Gym at the Royal Orthopaedic Hospital (ROH), and who supervised the Registrant from May to November 2012 – the Panel found her a clear credible witness. From a clinical perspective she was authoritative.
c) LC, who was a Senior Physiotherapist within the Trust and supervised the Registrant in the musculoskeletal outpatients service (MSK) from November 2012 to July 2013 - again the Panel found her a clear credible witness who did not embellish her evidence in any way.
d) SA (referred to in the allegation as Colleague A), who is a Senior Physiotherapist (Team Leader) in the Neuro Outpatients department of the Trust, and who supervised the Registrant, jointly with HC, from March to December 2014 –the panel found her an extremely impressive witness. The Panel noted the balanced concern for developing and helping the Registrant in his professional development
e) HC (referred to in the allegation as Colleague B), who is a Senior Physiotherapist (Team Leader) and Neuro Outpatients department of the Trust, and who supervised the Registrant, jointly with SA, from March to December 2014 – as with SA, the Panel found her to be a credible witness who’s evidence was consistent with SA’s without appearing contrived.
f) AD, who was a Senior Physiotherapist (Team Leader) in the oncology department of QEHB from October 2010 to December 2015, and who supervised the Registrant from August to November 2013 –provided evidence which was limited in scope but credible and coherent. The witness acknowledged when she was unable to recall specific details and did not attempt to guess or dissemble. 
g) The Registrant –The Registrant gave evidence for 2 ½ days allowing the Panel an extensive opportunity to assess his evidence in terms of consistency, quality and coherence as well as his general demeanour. The Panel did not observe any obvious deficit in his ability to navigate the documents and provide answers to questions. The answers however were not always focussed. The Panel did not find the Registrant deliberately attempted to mislead but he was prone to not listening to questions and to answering questions that were not asked and digressing on to topics he wished to give evidence on. The Registrant was often loathe to accept responsibility for short comings and showed a tendency to blame others.
48. The Representatives provided lengthy closing submissions in writing on the issue of facts, grounds and impairment which the Panel considered with care but are not repeated here. The representatives were invited to supplement those written submissions with oral submissions including commentary on each other’s written closing submissions. Again these submissions were considered by the Panel with care but for the purposes of brevity are not repeated in this decision. 
Decision on Facts:
Particular 1a)
During the course of your employment as a Physiotherapist at University Hospital Birmingham NHS Foundation Trust between June 2012 and 31 March 2015, you:
1) Were unable to consistently work as an autonomous Band 5 physiotherapist, in that you:
a) required a sustained level of guidance whilst working with patients
Found: Proved
49. Reasons: The Panel noted that the Registrant received 300 hours of extra supervision in the neuro rotation which was the last rotation the Panel examined, without significant improvement in his performance. Over the whole period there had been numerous attempts to improve the Registrant’s performance including reducing his case load, providing additional time and admin support and close daily supervision none of which was fully effective.  
Particular 1b)
b. Were unable to consistently hold a full case load as expected of a Band 5 Physiotherapist.
Found: Proved
50. Reasons: This was originally disputed but was conceded by the Registrant’s Counsel at closing submissions. The Panel note that extensive measures were put in place over a significant period of time to assist in the performance management process. The Panel would refer to its reasoning below.
Particular 2a)
2) Did not consistently maintain accurate and/or adequate and/or contemporaneous records in that you:
a) between June 2012 and December 2012, did not consistently provide sufficient information in patient notes;
Found: Proved
51. Reasons: This allegation was conceded by the Registrant. This issue was dealt with by LG in her evidence. On 10 September 2012 and 5 November 2012 she conducted audits of the Registrant’s cases according to CSP standards. She selected a random sample of five sets of notes in the September 2012 audit and three sets of notes in the November 2012 audit. This was a small sample and so the fact that there were problems is particularly troubling. The Panel accept in full the finding of those audits as she has recorded them. The audits identified that none of the records included consistent subjective markers. There were also inconsistencies in the recording of objective markers and clinical hypothesis (four sets were blank).
52. In the November audit, LG observed that there were improvements in the subjective assessment, and the objective assessment had improved marginally with the use of some specific assessment tools, but the notes did not always show clinical reasoning (in particular there was an absence of a clinical impression in two sets of notes meaning that it was difficult to follow any clinical reasoning process). She also found that two sets of patient notes were incomplete. The patients were recorded as attending under the TIARA diary system but there were no notes recorded, which represented a breach of CSP standards. The Panel find that the observations in November 2012, demonstrate a lack of sustained improvement.
Particular 2b)
b) between June 2012 and December 2012, produced Patient notes which lacked subjective and/or objective measures;
Found: Proved
53. Reasons: This was not contested by the Registrant. The Panel refer to its reasoning above.
Particular 2c)
c) between June 2012 and December 2012, did not consistently record subjective markers;
Found: Proved
54. Reasons: This was not contested by the Registrant. The Panel refer to its reasoning above.
Particulars 2d)(i), (ii) and (iii)
d) on or around February 2013, in relation to Patient C, did not document:
i. which hip had been mobilised;
ii. your reasoning as to why the hip mobilisations were performed on Patient C;
iii. which specific mobilisation was performed.
Found: Proved with respect to (i), (ii) and (iii)
55. Reasons: The Registrant admitted these allegations- (ii) and (iii) were admitted through his counsel during closing submissions.  The Panel considered the medical records in relation to Patient C and the evidence of LC. Patient C was an elderly female who had undergone left hip surgery for a hip resurface and two total right hip replacements.   The Registrant recorded “mobes 2 x30 grade III anterior…” but had not documented in the notes which hip joint had been assessed, mobilised, or any evaluation on whether the Patient’s condition had improved.  The Panel accept that within the patient notes it should have been made clear which joint had been assessed. The Panel accept that he had not indicated which hip had been mobilised. The Registrant’s reasoning as to why the hip mobilisations were performed were not provided, nor were the specific mobilisation techniques recorded.
Particular 2e)
e) on or around October 2013, required consistent reminding and/or prompting to maintain patient records;
Found: Proved
56. Reasons:  AD stated that she highlighted missing dates and times to the Registrant to make him aware of CSP and Trust Standards. The same was true of the missing entries in the medical notes, which she said she discussed with him each time she became aware of them. She also gave an example of a patient who told her he had seen the Registrant the day before, although there was nothing documented in the patient’s notes to reflect this. She stated in her witness statement “we consistently had to review Kieran McDermott’s records to ensure that what he had recorded was factually correct and made sense.” The Panel accept this evidence in its entirety and this establishes the allegation.
Particulars 2f)(i), (ii) and (iii)
f) on or around June 2014, completed a manual assessment of neck accessory movements on Patient E and did not record:
i. which joints had been palpated;
ii. the grade of palpation;
iii. what range of accessory movement issue was found.
Found: Proved
57. Reasons: The Panel find that these facts are proved. The Registrant admitted that he did not record the specific joints which had been palpated, the grade of palpation or what range of movements were found. However the Registrant did record that movement was increased in “upper and middle cervical spine” and his oral evidence was that that was the way he had been taught to assess. The Panel accept the Registrant’s evidence on this point. However, although the Panel found these facts proved it did not conclude that they represented incompetence since the Registrant was undertaking actions as he had been trained.
Particulars 2g)(i) and (ii)
g) on or around October 2014, you:
i. were unable to accurately record assessment and treatment sessions for patients;
ii. omitted information from records including gait pattern and/or hands on treatment.
Found: Proved for (i) and (ii)
58. Reasons: The PIP for 14 October 2014 with SA and HC stated that the Registrant remained unable accurately to record assessment and treatment sessions, failing to ensure that patient information was included. It is also recorded that there were times when the Registrant omitted information such as gait pattern and hands on treatment. This is also recorded in the 20 October 2014, teaching and learning strategies. In her witness statement and live evidence, SA also gave specific examples of where the Registrant had inaccurately recorded assessments and treatment sessions, and had omitted information from patient notes. The Panel accept the accuracy of these criticisms and as such this allegation is proved.    
Particular 2h)
h) on or around December 2014, did not consistently record evidence of clinical reasoning on patient records.
Found: Proved
59. Reasons: This is recorded in the PIP dated 4 December 2014 which states “during this times we do not feel that Kieran’s clinical reasoning skills have changed. We would not be comfortable with him treating patients completely independently and without frequent clinical supervision” and “Kieran continues to demonstrate a fundamental lack of clinical reasoning ability” The Panel accept these criticisms as accurate.  The Panel note that this was the end of an eight month rotation, where substantial additional support had been in place and serious concerns were still being raised.
Particular 2i (i)
i) In or around October/November 2013, in relation to Patient D your records did not identify:
(i) the exercises performed in relation to the patient;
Found: Proved
60. Reasons: This relates to Patient D from a record keeping perspective. There is evidence from Patient D’s medical notes that the doctor had recorded chest physiotherapy with the Registrant but there was no corresponding record of treatment within the physiotherapy records. In oral evidence the Registrant conceded that a corresponding entry should have been included in the physiotherapy records. This was a serious omission as appropriate record keeping is a fundamental clinical requirement.
Particular 2i (ii)
(ii) your clinical reasoning for the insertion of the nasopharyngeal airway (NPA);
Found: Proved
61. Reasons:  Within Patient D’s records there is an entry at 11.00 on 1 November 2013 raising an NPA as a possibility, and an entry at 15.40 on 1 November 2013 showing that a doctor saw Patient D after being asked by the Registrant and that there was a discussion about the use of an NPA. There is no note of why an NPA was suggested. The Panel accepts that there is no indication in the records that detailed consideration had been given to other options of treatment. In oral evidence the Registrant suggested that he had raised concerns about the viability of the NPA but this is not recorded in the notes.
Particular 2i (iii)
(iii) any treatment/management plan in respect of the NPA
Found: Proved
62. Reasons: For the reasons given above. There is an unacceptable standard of record keeping on this issue. A failure to appropriately keep records raises serious issues of patient safety.
Particular 3(a) and (b)
3. Demonstrated poor assessments and/or treatment to patients, in that you:
a) on or around 2012, inaccurately measured patients knee range movements;
b) on or around 2012, misinformed patients of their progress;
Found: Not Proved
63. Reasons: Both allegations are accepted by the Registrant. The evidence that supports this is the Management Statement of Case for the Stage 3 Procedure. The specific error was that the knee range of movement was assessed in prone. This also forms part of the performance review summary dated 24 September 2012. However, the Panel has noted that the allegation as worded refers to ‘patients’ in the plural and has been unable to find any evidence that more than one patient was involved in this issue. On this basis alone the Panel finds these particulars not proved.
Particular 3(c)
c) did not consistently read patient notes prior to treating the patient;
Found: Proved
64. Reasons: The Registrant appears to accept in his witness statement that he did not read notes prior to seeing patients at the ROH. He says that he did not have enough time. The Panel find that as an autonomous practitioner, it was his responsibility to ensure that he was properly prepared for patient treatments and this explanation is not acceptable.
Particular 3(d)
d) did not consistently provide appropriate treatment to patients
Found: Proved
65. Reasons: The Panel accept the criticisms within the performance review summary dated 24 September 2012 with LG and NM (Clinical Director and Therapy Manager at the ROH) and the Registrant which stated “frequently treatment selection is often limited by poor hypothesis generation from the assessment and subsequent poor clinical reasoning. Often patients will be receiving an appropriate treatment for a part of their problem but other problems will have been missed meaning overall that the treatment will not be effective. A number of problem solving sessions have shown treatments have not been linked to clinical impression”
Particular 3(e) (i)
e) did not consistently provide reasoning for:
i. subjective assessments;
Found: Not Proved
66. Reasons: There is insufficient evidence on the balance of probability that the reasoning behind subjective assessments was not consistently provided.
Particulars 3e) (ii), (iii) and (iv)
ii. straight leg raise;
iii. leg length;
iv. gait analysis;
Found: Proved
67. Reasons: The Panel accept the evidence of LG and the veracity of her complaints raised in the stage 1 review meeting of 24 October 2012. During the meeting on 24 October 2012 she raised concerns that the Registrant did not provide reasoning in relation to objective assessments in relation to leg raise, leg length and gait analysis. She stated in these notes that there needed to be an improvement in the clinical reasoning for objective testing which the Panel accept as correct.
Particular 3(f)
f) did not consistently form hypotheses from the assessments you conducted on patients;
Found: Proved
68. Reasons: The Panel considered the notes audit of LG dated 5 November 2012 which was an audit of a small sample of three sets of notes taken at random. A hypothesis was absent for two out of three sets of notes. A hypothesis is an essential part of the assessment and would be expected of any qualified physiotherapist. Without a suitable hypothesis there is a risk of inappropriate or ineffective treatment being provided to patients.
Particular 3(g)
g) on or around August 2013, you were unable to and/or could not demonstrate measuring range of shoulder movement
Found: Proved
69. Reasons: This allegation was admitted at the outset by the Registrant (although it was stated to be an isolated error). The Panel accept the evidence of AD contained in the supervision note of 28 August 2013 which stated that the Registrant performed an incorrect shoulder Active Range of Movement (AROM) assessment. He demonstrated a lack of understanding of the position of neutral Gleno Humeral Joint (GHJ), and therefore made errors in the measurement of the range of medial and lateral rotation. In her oral evidence, AD demonstrated this measurement error to the Panel. In fact it was not an isolated error as the same issue had arisen in the year previously in the November 2012 rotation as evidenced by LC. 
Particular 3h)
h) on an unknown date, during your rotation at the Royal Orthopaedic Hospital, you inaccurately measured a patient’s leg length following hip surgery
Found: Proved
70. Reasons: The Registrant initially denied this allegation but eventually accepted it in his oral evidence and in closing. The Panel accept the note contained in LG’s performance review summary dated 24 September 2012, which stated that on 16 August 2012, the Registrant incorrectly measured the leg of an oncology patient. The leg was visibly over an inch longer but the patient was told by the Registrant that it was shorter on the affected leg. This appeared to have caused the patient distress and required a senior member of staff to intervene.  
Particulars 3i) (i), (ii), (iii) and (iv)
i) on or around 15 August 2012, during your rotation at the Royal Orthopaedic Hospital, you did not ask a patient who had had a microdisectomy about red flags including:
(i) coughing;
(ii) sneezing;
(iii) bladder function; and/or
(iv) bowel function
Found: Proved
71. Reasons: These particulars were admitted at the outset by the Registrant. A microdisectomy is a surgical procedure to remove part of an intervertebral disc which is causing nerve pressure. Questioning the patient and recording answers about red flags is essential to identify any potential post-operative complications. The Panel accept the supervision record dated 15 August 2012 by LG where these failures are identified.
Particular 4a)
4. Did not consistently demonstrate adequate clinical reasoning:
a) in relation to treatment planning;
Found: Proved
72. Reasons: The Panel would refer to its previous findings above in part to support the fact that this particular is proven. In particular the Panel would refer to the evidence of LG who gave evidence in relation to a patient who had had ankle fusion surgery. The use of a cross trainer was wholly inappropriate. The use of the cross trainer was the product of inadequate clinical reasoning which led to a poor treatment plan. In order to devise an appropriate treatment plan, a physiotherapist should clinically reason by using the results from the objective and subjective assessment to produce a plan.
Particular 4b)
b) in relation to modification of the patient’s treatment;
Found: Proved
73. Reasons: LG explained that some patients who had been treated by the Registrant had not made progress and some had worsened. She stated that his failure to modify patients’ treatment plans meant that some patients were deteriorating. The Registrant stated in cross-examination that at the ROH he had to tailor-make plans rather than use scripts, as he had done at the Queen Elisabeth Hospital. This was a troubling answer because it demonstrated his lack of ability to act as an independent practitioner, responsive to his patients changing needs and to always put his patient’s needs to the fore.
Particular 4c)
c) in that during a discussion with your colleague in relation to Patient B, you were unable to independently provide clinical reasoning for applying manual resistance as part of the patient assessment conducted on 4 January 2013
Found: Proved
74. Reasons: This was admitted at the outset by the Registrant but he stated he applied light pressure. When assessing muscle strength this would not accurately record the true clinical situation. The Oxford Scale (which is a quantitative diagnostic tool of muscle strength) could not be accurately deployed, as that requires full pressure from the physiotherapist to distinguish between a grade 4/5 and 5/5.
Particular 4d)
d) in that on or around 24 October 2012, when completing the gym transfer form in relation to Patient H, you did not record the patient’s diagnosis and/or treated Patient H without knowing their diagnosis;
Found: Proved
75. Reasons: The Registrant admitted this particular. Based on the gym transfer form, dated 24 October 2012, the Panel found this was not recorded. The Registrant developed a treatment plan evidenced in the transfer form under the referral box indicated as weight transference/gentle mobility, but this treatment could not be justified without having cognizance of the diagnosis and using clinical reasoning.
Particular 4e)
e) on or around June 2014, in relation to patient E, you were unable to provide clinical reasoning for your manual assessment of neck accessory movements on Patient E;
Found: Proved
76. Reasons: In the supervision report of SA dated 10 June 2014 it is stated that “On questioning on whether KMD [the Registrant] should have completed a manual assessment of neck accessory movements given the on-going rheumatological investigations and current symptoms KMD stated ‘oh its probably contraindicated isn’t it’ he was unable to draw on any clinical reasoning to support his choice of assessment tool”. 
Particular 4f)
f) on or around October 2014, you were unable to clinically reason why a patient may be presenting with a deficit.
Found: Proved
77. Reasons: The PIP review of 14 October 2014, conducted by SA and HC states that “none of the clinical reasoning issues has been resolved… KM remains unable to clinically reason why a patient may be presenting with a deficit and therefore is unable to apply the most appropriate treatment modality”. The Panel noted that by December 2014 the PIP review stated that that over the course of eight months SA and HC “did not feel that Kieran’s clinical reasoning skills have changed. We would not be comfortable with him treating patients completely independently and without frequent supervision”.
Particular 5a)
5. Demonstrated poor patient safety, in that you:
a) on or around August 2012, prescribed exercises to patients in a hip class without checking the patients’ conditions and/or the appropriate precautions;
Found: Proved
78. Reasons: This was admitted at the outset by the Registrant.  This allegation relates to a patient who had had a total hip replacement being put on a leg press machine in the physiotherapy gym, which put the hip at risk of dislocation. The Registrant’s explanation that he did not have enough time to read the notes and that he was following another physiotherapist who had used the leg press the previous week in a hip class was unacceptable. The Panel find that as an autonomous practitioner, it was his responsibility to ensure that he was adequately prepared by checking the notes. It is implicit that this gives rise to issues of patient safety.
Particulars 5b) (i), (ii) and (iii)
b) On or around 14 September 2012, in respect of Patient A, you:
(i) did not consider and/or demonstrate clinical reasoning in respect of which leg the patient should lead with on climbing the stairs;
(ii) did not provide the patient with specific instructions prior to asking them to climb the stairs;
(iii) did not assess the patient before asking her to climb the stairs
Found: (i) and (ii) Proved
(iii) Not Proved
79. Reasons: The Registrant admitted (i) and (ii). The particulars in (i) and (ii) are supported by various documents being the daily supervision record, performance review summary of 24 September 2012, and Patient A’s notes. Both of these particulars represent patient safety issues. The lack of adequate clinical reasoning and specific instruction to the patient meant she was left to determine herself which leg to lead when climbing the stairs. The patient stepped onto the stair with her weaker leg and collapsed. This was a significant patient safety issue. The Registrant denied (iii). The Panel found that there was an assessment before the patient was asked to climb the stairs. The Registrant stated that he did assess bridging, sit to stand and gait. LG stated that “walk with supervision” was not an adequate assessment of gait. It was too vague to be part of the objective assessment. She said that the fact that the patient could bridge and sit to stand was not probative, as the patient may have been putting all of her weight on one side. The Panel largely accept this criticism but nevertheless applying the normal English meaning of the words of the particular it cannot be said that the patient was not assessed.
Particular 5c)
c) On or around 18 October 2012, you put a patient who had an ankle fusion on a cross trainer;
Found: Not Proved
80. Reasons: The Panel found that the Registrant admitted the fact of this in his oral evidence and the Panel accept this. The Panel accept that as a cross trainer is used to improve the range of movement was not appropriate for ankle fusion. The daily feedback sheet dated 8 October 2012 which the Registrant signed says “need to ensure treatment related to Patient i.e. ROM not appropriate for ankle fusion” However the Panel are not satisfied that this gave rise to a patient safety issue. The issue had not been recorded as a safety issue in supervision sheets dated 18 October 2012, by a Band 7 physiotherapist supervisor who was in attendance at the time of the incident.
Particular 5d)
d) On or around 4 January 2013, in relation to Patient B, who had had rotator cuff repair surgery, you applied manual resistance for strength;
Found: Proved
81. Reasons: The patient records dated 4 January 2013, confirm that the Registrant applied resistance in line with the Oxford Scale. This did raise a patient safety issue because the patient had had a rotator cuff repair and application of Oxford Scale testing was contraindicated as per the local surgical protocol.   
Particular 5e) (i)
e) In or around October/November 2013, in relation to Patient D you:
i. recommended the insertion of a NPA
Found: Not Proved
82. Reasons: The Panel were not satisfied on the balance of probabilities that the Registrant recommended the insertion of the NPA. Whilst it is clear from the patient records that the Registrant had suggested the insertion of an NPA as a treatment option – albeit without documenting any clinical reasoning – there is insufficient evidence in the notes to conclude that he had recommended this as the only appropriate treatment option. The Registrant denied it, there was no direct oral evidence on the point called by the HCPC.
Particular 5e) (ii)
ii. did not consult with a senior member of staff prior to the recommendation at (i) above
Found: Not Proved
83. Reasons: As the HCPC have not established a recommendation there cannot be consultation prior to it. In any event the Panel were not satisfied that there was not in fact a discussion with SR(1) as the Registrant alleged. The Panel did not hear any evidence from SR(1) to contradict the Registrant’s assertion. The Panel heard evidence that SR(1) was present within the hospital in uniform at the time of the incident.
Particular 5e (iii)
iii. delivered NPA to Patient D which caused Patient D harm;
Found: Not Proved
84. Reasons: Having considered the medical records the Panel are of the view that the NPA was not delivered by the Registrant (this would have been outside of his scope of practice). Reinsertion of the NPA later on may have caused some harm but this was not done by the Registrant.
Particular 5f)
f) on or around October 2014, conducted physiotherapy exercise with Patient F which was unsafe;
Found: Proved
85. Reasons: The Registrant admitted that he put the patient on a wobble cushion and asked him to pass a ball behind his head. In the Panel’s view this was unsafe without a plinth behind given the height of the patient, the fact he had Parkinson’s disease and had problems with balance. The Panel did not accept the Registrant’s explanation that as the Registrant had been stood behind the patient and that if the patient had fallen backwards he could have safely caught him.
Particular 5g)
g) on 17 October 2014, requested Colleague A’s assistance to move Patient G on and/or off the floor but proceeded to move Patient G despite the risk.
Found: Proved
86. Reasons: The Registrant had identified the need for help to mitigate the risk to the patient but then proceeded without that help. SA said that as Patient G had an elbow crutch, required hand-held support, and had had previous falls, there was a significant risk of falling.
Particular 5h)
h) on a unknown date, during your rotation at the Royal Orthopaedic Hospital, you asked a patient with a hip replacement to use the leg press machine
Found: Proved
87. Reasons: This is admitted by the Registrant. The Panel refer to its reasoning above at 5 (a) as it concerns the same incident.
Particular 5i)
i. on or around 24 August 2012, you placed a patient who had had a microdiscectomy into a slump position
Found: Proved
88. Reasons: Putting a patient into a slump position puts maximal tension on the nervous system and may exacerbate symptoms for a patient who has had a microdiscectomy. In the performance review summary of 24 September 2012, LG said this was a safety issue because “the patient was only two weeks post operation and the disc is still healing”. The Registrant stated he had read about special tests and subsequently used this test in error. The Panel consider this highlights a lack of clinical reasoning by using an inappropriate test and putting the patient at risk.
Particulars 5j) (i) and (ii)
j. On or around 18 December 2012, when observed by a colleague, you:
(i) did not assess a patient’s ability to perform straight leg raises before asking her to do so;
(ii) asked the patient to perform straight leg raises on more than one occasion
Found: Not Proved
89. Reasons: There is insufficient evidence to support these particulars. The Panel are of the view that LC’s evidence is ambiguous on the issue of straight leg raises and the HCPC has failed to prove this particular as drafted. There is no contemporaneous documentation to support the particular.  
Particular 6
6. On or around June 2014, in relation to patient E, worked outside of your scope of practise in that you completed a manual assessment of neck accessory movements on Patient E.
Found: Not Proved
90. Reasons: Completing a manual assessment of neck accessory movements on patient E was not outside of the Registrant’s scope of practice. He was trained to do it at undergraduate and post graduate level and within a clinical setting. The fact that it was not done on this particular rotation does not establish the particular as proven.
Particular 7a)
7. Did not consistently communicate effectively with patients and/or colleagues in that you:
a) on or around 01 November 2013, did not communicate the full clinical situation regarding Patient D to senior staff and/or on call staff
Found: Not Proved
91. Reasons: The Panel refer to its reasoning under 5 (e) (ii)
Particular 7b) (i)
b) on or around October 2014, did not consistently use active listening techniques in that you:
i. turned your back on patients when they were explaining their complaint to you;
Found: Not proved
92. Reasons: While there is some evidence that the Registrant turned his back on a patient the Panel are not satisfied that this was in the context of them explaining their complaint. The PIP of 14 October 2014 merely refers to him “turning away from them to document what they are saying” and does not in itself represent a failure to communicate with the patient.
Particular 7b) (ii)
ii. asked patients questions that they had already answered;
Found: Not Proved
93. Reasons: While there is some evidence that the Registrant, on one occasion, asked a patient a question that they had already answered this does not of itself demonstrate a lack of consistent active listening techniques or a failure to communicate effectively with patients.  
Particular 7b) (iii)
iii. shuffled papers and read your computer screen whilst Colleague A provided you with feedback;
Found: Not Proved
94. Reasons: The Registrant admitted (iii).  The Panel accept as a fact he did shuffle papers and read a screen. However in the context which this happened which the Panel accept was a difficult meeting when the Registrant was in a highly emotional and distressed state. The Panel were not satisfied that, of itself, this demonstrated a lack of consistent active listening techniques or ineffective communication.
Particular 7c)
c) on or around 27 May 2014, were aggressive towards Colleague A and Colleague B when they discussed discharge planning with you.
Found: Proved
95. Reasons: SA (Colleague A) and HC (Colleague B) did find the Registrant’s behaviour aggressive in that he raised his voice and banged on the table and sat with an aggressive posture and displayed aggressive body language. The Panel find that it was reasonable of SA and HC to have found this behaviour intimidating and inappropriate in the work place. This sort of behaviour clearly did not represent effective communication with colleagues.   
Particular 8
8. Did not consistently demonstrate adequate time management.
Found: Proved
96. Reasons: LG stated that “throughout the time Kieran McDermott worked on rotation at ROH his time management was very poor”; “we gave him extra time to see patients which did not improve his performance.” AD stated that the Registrant “spent a long time in the morning receiving handovers from other staff and prioritising his list of patients”. In the PIP review of 4 December 2014, SA and HC said that “Kieran was unable to keep up with clinical demand and the time taken between follow up appointments was too long to be supportive of patient’s improvement.” The Panel noted that the Registrant’s case load had been substantially reduced during the majority of his rotations and he had been given extra time to read and write up case notes and to use the TIARA system.
Decision on Grounds:
97. Paragraph 9 of the Allegation asserts that the relevant matters described in paragraphs 1-8 constitutes lack of competence.
98. The Panel directed itself in accordance with the following principles in respect of lack of competence, as advised by the Legal Assessor.
99. Under Article 22 of the Health and Social Work Professions Order 2001, referrals may be made in respect of allegations that a registrant's fitness to practise is impaired on various grounds. Article 22 (1) (a) (ii) specifically provides that a lack of competence is a matter that may constitute impairment of fitness to practice.
100. Competence describes knowledge and skills, i.e. what the registrant ‘can do’. A lack of competence is conceptually separate from misconduct.
101. Deficient professional performance is conceptually separate from both negligence and misconduct. It connotes an unacceptably low standard of professional performance which, save in exceptional circumstances, had been demonstrated by reference to a fair sample of the practitioner's work. A single instance of negligent treatment, unless very serious, would be unlikely to constitute deficient professional performance.
102. The appropriate standard for measurement was that for which the practitioner in issue “had been trained” and that “to which he was appointed and the work he was carrying out” Deficiency was “…to be judged against the standard of his professional work that is reasonably to be expected of the practitioner” and as to the “standard applicable to that post in that speciality”.
103. Any ‘lack of competence’ must be serious. In assessing lack of competence the standard to be applied was that applicable to the post to which the Registrant had been appointed and the work he was carrying out. Public expectation is that the work of a Registrant who performs in any specialty was at least at the standard applicable to the post in that specialty.
104. It is no part of the Panel’s function to determine whether a Registrant has been the victim of unlawful discrimination. The present allegation is not one of impairment through physical or mental health and as indicated the Registrant did not seek to refer the matter to the Health Committee. Physical or mental conditions and workplace adjustments in respect of those conditions are not however irrelevant to the Panel’s deliberations in a competency case. As indicated, lack of competence is an unacceptably low standard of professional performance. The Panel should always seek to examine the context within which poor professional performance was said to have taken place in deciding whether the statutory ground has been made out.
105. The Panel considered each of the seven subparagraphs of the Allegation found to have been proved and asked itself whether either individually or collectively those facts amounted to a lack of competence in view of all the evidence placed before it. This a matter of judgement for the Panel it is not a matter which needs to be proved- see HCPC Practise Note ‘Finding that Fitness to Practice is Impaired’.
106. The HCPC relied on HCPC Standards of conduct, performance and ethics and Standards of proficiency (physiotherapists). The Physiotherapist standards were amended during the material time and a new set were issued on 28 May 2013. The Parties agreed to rely solely on the 2013, Standards of proficiency irrespective of the date of the allegation as it was not considered there was any material difference:
a) Standards of conduct, performance and ethics August 2012: paragraphs 1, 5, 6, 7 and 10.
b) Standards of proficiency (physiotherapists) 28 May 2013: paragraphs 1.1-1.2, 2.1, 2.7, 4.1.-4.4, 8.1, 8.4-8.5, 8.8, 9.1-9.2, 10.1-10.2, 13.4-13.5, 14.2-14.18, 15.1.
107. The Panel found that 1, 5, 7 10 and 12 of HCPC Standards of conduct performance and ethics have been breached.
108. The Panel found that 1.2, 2.1, 2.7, 3.2, 3.3, 4.1-4.4, 9.1-9.2, 10.1-10.2,  11.1, 12.8, 13.4-13.5, 14.2-14.8 and 15.1 of the Standards of proficiency (physiotherapists) were all breached.
109. The Panel find that the above facts found proved disclose a lack of competence. The Registrant has failed to demonstrate proper clinical reasoning on numerous occasions over a significant period of time. The Registrant has also failed on many occasions to adequately keep accurate clinical records. In addition, he has failed to communicate effectively with work colleagues. These failings have significant potential to place patients at risk of harm. There was a worrying lack of improvement despite extensive measures taken by the employer over time to assist the Registrant within a planned programme to facilitate an improvement in performance and practice.   
Decision on Impairment: 
110. The Panel directed itself in accordance with the following principles on impairment, as advised by the Legal Assessor.
111. The Panel is referred to the HCPC Practice Note “Finding that Fitness to Practice is Impaired”.
112. In determining whether fitness to practise is impaired, panels must take account of a range of issues which, in essence, comprise two components:
1) the ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and
2) the ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the physiotherapy profession and the regulatory process.
113. 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 because, since the allegation arose, the registrant has corrected matters or “learned his or her lesson”.
114. The Panel were further advised of the following general principles:
i. Impairment is a matter of judgment rather than proof;
ii. It is essential, when deciding whether fitness to practise is impaired, not to lose sight of the fundamental considerations emphasised [in Cohen ] at paragraph 62, namely the need to protect the public and the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession;
iii. Insight – the expectation that a Registrant will be able to stand back and accept that, with hindsight, he should have behaved differently, and it is expected he will take steps to prevent reoccurrence – is an important factor in a hearing;
iv. “It must be highly relevant in determining if a practitioner's fitness to practice is impaired that first his or her conduct which led to the charge is easily remediable, second, that it has been remedied and, third, that it is highly unlikely to be repeated” Cohen v GMC [2008] EWHC 581 Admin at [65] per Silber J. In assessing the likelihood of the registrant causing similar harm in the future, Panels should take account of: the degree of harm caused by the registrant; and the registrant’s culpability for that harm. In considering the degree of harm, Panels must consider the harm caused by the registrant, but should also recognise that it may have been greater or less than the harm which was intended or reasonably foreseeable.
v. Serious or persistent failure to adhere to fundamental HCPC standards or standards for physiotherapists is likely to lead to a finding of impairment
vi. in considering impairment, there is no definition to be relied upon but it is sometimes described as a negative subsisting impact on a person’s performance.  It is a matter for the judgment of the Panel, there is no burden or standard of proof to be applied at this stage. 
vii. The test of impairment is expressed in the present tense: that fitness to practise is impaired at the current date. The Panel looks forward not back as the object of FTP proceedings is public protection not punishment. That said in order to form a view as to current fitness to practice the Panel will have to take account of how a Registrant has acted or failed in the past.
115. The Registrant tendered his resignation in March 2015 at UHB. After this he sought unpaid work under the supervision of a physiotherapist at Birmingham Community Healthcare NHS Trust. He started working on 11 January 2016 on a part time voluntary basis working 7 hours a day over four days a week at Mosely Hall Hospital on a voluntary basis. He has been working on the inpatient physiotherapy service. His caseload comprises patients requiring treatment following a stroke; MS; Parkinson’s and Guillen Barrie. The Registrant provided evidence in respect of his current employment including testimonials, supervision records, training courses attended and other professional development work.   The Registrant stated that an inpatient environment suited him as there was much less turnover of beds and a greater opportunity to interact with the individual patients over a longer period of time.
116. The Registrant is working as an equivalent Band 5 physiotherapist but is not carrying a full case load. There have been periods of absence due to ill health. Despite the Registrant working in a relatively less demanding environment where the Registrant says he is best suited, there remains evidence of ongoing concerns with the Registrant’s practice. Supervision records of March and April 2017 noted issues in respect of structure of assessments, patient treatment plans, use of SMART goals, clinical reasoning and time management. The Panel note that these concerns mirror those that form the basis of the allegations as found proven.
117. The Panel is of the view that the Registrant’s practice remains currently impaired. Looking at some of the specific factors in turn:
i. Public protection and upholding of proper standards - the Panel has identified many significant competence issues which give rise to a risk to patient safety and/or inappropriate treatment. The Panel are of the view that, given the extensive lack of competence findings, coupled with the fact that such issues remain un-remedied, the public would expect a finding of impairment as a means of upholding public confidence in the profession and the regulator.       
ii. Insight - the Registrant demonstrated a worrying lack of insight into his failings. The Registrant showed a tendency to blame others or his condition rather than taking responsibility for his lack of competence and failed to recognise that as an autonomous practitioner he needs to identify and manage these issues.
iii. Remediation - as recorded the competence issues continue despite extensive efforts and opportunities provided by his previous employer, and despite the Registrant now working in what he claims to be, his ideal clinical environment and being back to full health, the Panel concludes that there remains a current risk of harm to the public.
Decision on Sanction:
118. The Panel took advice from the Legal Assessor which it accepted.
119. The decision on sanction is a matter for the Panel exercising the principle of proportionality and reflecting the principles within the HCPC’s Indicative Sanctions Policy (ISP).
120. The Panel has noted that any sanction must be proportionate, that it is not intended to be punitive although it may have a punitive effect, and that it should be no more than is necessary to meet the legitimate purposes of: providing adequate protection to the public; and otherwise meeting the wider public interest in protecting the reputation of the profession, maintaining confidence in the regulatory system, and declaring and upholding proper professional standards. The Panel has sought to balance the public interest against the rights of the Registrant to practise his chosen profession.
121. The Panel heard and considered evidence from the following witnesses on behalf of the Registrant, all by telephone:
• DS, the Therapy Lead Physiotherapist (South Team) at Birmingham Community Healthcare NHS Trust, Moseley Hall Hospital. She is the line manager of the Ward 8 stroke unit at Moseley Hall in which the Registrant had been working for a period although she had not worked directly with him. She has not received any negative feedback in respect of the Registrant. She said that all feedback has been positive in all aspects of his work. She had not been made aware of any of the concerns raised by SR (2) who was her equivalent grade in the North team.  She was not aware of the details of the HCPC allegations facing the Registrant, nor was she fully aware of the specific conditions pertaining to the Interim Conditions of Practice Order. However she was aware that there was a period of direct supervision pursuant to interim conditions imposed by the Regulator when the Registrant could not see patients without being directly supervised. This requirement was later lifted. 
• AK, a Band 6 locum Physiotherapist. She worked alongside the Registrant for two months between the end of February and April 2017 at the Anne Marie Howes Centre for Rehabilitation of the Elderly (but had known him when he worked at Birmingham in 2010/2011). They worked together three days a week and saw 2-3 patients in joint sessions. She produced a testimonial dated 25 April 2017, and a witness statement dated June 2017. She was complimentary of the Registrant’s clinical abilities and there were no areas of concern as far as she was concerned. She did not directly supervise him but was asked to keep an eye on him.  SR (2) raised with her some issues about the Registrant’s assessments which AK thought were more relevant to a Musculoskeletal context.  AK had limited knowledge of the reasons why the HCPC had brought proceedings against the Registrant.
• SR (2) the Clinical Lead Physiotherapist Band 7, who gave evidence for a substantial period of time. She said she headed three teams across multiple sites. She confirmed that PM and JC, who were also called to give evidence, did not report to her as she was in the North team and they are in the South team. In examination she said that she had no concerns about the Registrant’s practice. She was asked about the supervision notes that the Panel had previously been taken to and are referred to under the impairment findings of this decision. She said that her criticisms were not serious concerns as such but observations for improvement and development. Goal settings were concerns about how the Registrant had written it down rather than the actual goals that had been set.  She said that the 11 May 2017 notes demonstrate that he had addressed the matters set out in the 5 April 2017 supervision. In cross examination it was put to her that the notes of 5 April 2017 seemed to record concerns about time management, and that the Registrant’s clinical reasoning could be better and used more effectively. SR(2) explained, in her oral evidence, that the Registrant used a locally produced checklist when assessing patients. However, rather than clinically reason which tests to prioritize, he would complete all the tests from the list. This meant the Registrant failed to complete all the relevant assessments as he ran out of time. SR(2) said this was not a problem within this specific environment as any tests he did not complete could wait until the next day. The issue of concern surrounding clinical reasoning has been a recurrent criticism of the Registrant’s practise which remains unremedied.  When asked about what she understood about the current HCPC proceedings she was vague. She understood that there were “some issues” but was unclear as to the details or the extent of the allegations. The Panel had some concerns with the oral evidence of SR (2). She seemed to be keen to underplay or minimize the obvious criticisms contained in her supervision notes of 5 April 2017. She was unclear whether she was the named supervisor for the purposes of any HCPC interim conditions of practice (although it appears at the relevant time she was). She could not adequately explain an apparent contradiction in the 22 March 2017 note that he had “not had any new patients” but was also said to have “had done well in assessing new clients” The Panel remain of the view that the issues identified in the supervision notes in 22 March 2017 and April 2017 are of concern, particularly given the context which was the multiplicity of competence issues raised by the HCPC proceedings, the fact that the Registrant has not been working a full time/full caseload at the Moseley Hospital and the fact that the issues mirror the competence issues already found proven that occurred in the past.
• PM, a Band 6 Physiotherapist who worked with the Registrant from 24 May 2016, for a short period of time and provided a Feedback and Action Plan covering a three week period from 24 May to 16 June 2016. PM explained, in her oral evidence, at the start of the period the Registrant worked with her she quickly assessed that he was capable of working independently and so was allocated a case load. She said he managed these patients independently and she only intervened when the Registrant asked for assistance. When questioned by the Panel it was not clear how she was able to ensure that all of the patients were being managed appropriately and effectively.   She reports to DS. The Panel had sight of the Feedback and Action Plan sheets produced from 24 May 2016 to 16 June 2016. The feedback was supportive and raised no clinical concerns. It does however cover a very limited period of time and the Registrant was only working three days per week. She seemed to have a better grasp of the issues that arose as part of the HCPC proceedings than other witnesses.
• JC, Band 6 Physiotherapist who provided supervision while the Registrant worked as a supernumerary physiotherapist at West Heath Hospital on a 27 bed sub-acute general medical rehabilitation ward. Although JC appeared to have supervised the Registrant over a period of nine months – her having submitted reports to the HCPC on 01 October 2016, 02 December 2016 and 17 February 2017 – on closer analysis, it emerged that she had supervised him for only three months. This was not continuous supervision due to the Registrant’s lengthy absences from work. The Panel also noted that JC’s last report to the HCPC dated 17 February 2017, relates only to five days supervision of the Registrant. She was largely complimentary of the Registrant’s clinical skills and felt that provided he was given positive support and feedback, he could act as a competent autonomous Band 5 practitioner. The Feedback and Action Sheet covering 16/6/2016-6/9/2016 in fact covered a very short period of three weeks due to significant periods when the Registrant was not at work. JC confirmed that she had not produced this document although it did reflect a discussion she had had with the Registrant. Although it had been labelled as a supervision record by the Registrant in his document bundle, the Panel concluded that it was not such a document.  The Panel were also concerned that there was nothing at all in the boxes headed ‘what has not gone as well as it could have’ and ‘evidence for’.  JC accepted that it did not fully reflect her view and that had she written the document it would have information in these columns. The Panel noted that in her report for the HCPC of 2 December 2016, she stated that the Registrant had had difficulties when moved to work in a different context i.e. the dementia unit. She told the Panel “his reaction was not what I was expecting”. The Panel remained concerned about the Registrant’s ability to adapt to different clinical settings.   It was not clear that JC had a comprehensive understanding of the extent and nature of the allegations made by the HCPC that formed the basis of the fitness to practice proceedings.
122. The Panel did not hear again from the Registrant but had cognisance of his evidence previously given so far as it relates to the issue of sanction.
123. The Panel heard and considered oral submissions from both sides. Mr Ross was critical of the witnesses that had been called at sanction stage in particular SR(2). The Panel were urged to find that her criticisms in 22 March and 5 April 2017 were valid and were not undermined by her oral evidence and the testimonial she had provided dated 18 May 2017. He referred to certain sections of the ISP but, as is usual, did not advocate a particular appropriate sanction. Ms Brown said that the evidence called, particularly SR(2)’s evidence, should be accepted, there was nothing to properly undermine it and she gave clear explanations about what she was thinking when she wrote her reviews on 22 March and 5 April 2017.  Ms Brown maintained that the evidence showed that all of the competence issues identified by the Registrant have in fact been remedied since 2016. She highlighted the documentary evidence of supervision records of the Registrant from other staff that had not given live evidence. She advocated no sanction or mediation.
124. The Panel considered the following mitigating and aggravating features.
Mitigating:
• Supportive references from many people although the references are undermined in some respects
• Demonstrated a commitment to physiotherapy by working voluntarily for a substantial period of time
• His dyslexia, although for the avoidance of doubt the Panel are not of the view that his dyslexia explains the competence issues, or that his lack of clinical competence is related to dyslexia  
• Not all alleged particulars/sub particulars were found proved
Aggravating:
• Serious proficiency issues, 25 HCPC Standards of proficiency breached and 5 HCPC Conduct, performance and ethics standards breached. In particular:
i. autonomous practitioner – working autonomously is a vital tenant of physiotherapy by exercising professional judgment and decision making within a knowledge base and competence
ii. record keeping - all clinicians have a professional and legal obligation to keep full and accurate records of their interaction with patients within a multi-disciplinary environment
iii. clinical reasoning - this is a fundamental part of clinical practice in order to manage patients efficiently and effectively
iv. time management - effective time management and prioritisation is essential to ensure the treatment of a patient is delivered in an efficient and effective manner.
• Competence issues ranged over a significant period of time and remained in spite of good support and attempts to remediate by the Trust and the Registrant
• Very limited insight and a tendency to blame others. The Registrant did not recognise that as an autonomous practitioner he is responsible for his own practice and for ensuring that he maintains his fitness to practice and does not put patients at risk
125. The Panel considered the available sanctions in ascending order of severity and has concluded that to take no action or to impose a caution would not be appropriate. The Panel had cognisance of the ISP guidance on caution orders. The suggestion that the Registrant should receive no sanction was wholly unrealistic in the circumstances. The exceptional circumstances required under the ISP were not met. A Caution Order would not, in any sense, address the public interest or the seriousness of the competence issues as found by the Panel in this decision. The facts and findings on impairment as found by the Panel do not remotely meet the guidance provided in the ISP for where a Caution Order would be appropriate.
126. The Panel next considered the imposition of Conditions of Practice on the Registrant. The Panel gave anxious consideration to the possibility of ordering a Conditions of Practice Order in this case and considered the guidance provided by the ISP. Ultimately the Panel rejected the imposition of such an order. Its reasons are as follows:
i. The Panel heard extensive live evidence in respect the Registrant’s clinical practice since January 2016. The evidence was superficially positive for the Registrant in terms of some of the issues raised in these proceedings such as clinical reasoning, record keeping and communication with colleagues. However, a deeper analysis of the evidence reveals significant deficiencies in it. Firstly, the Registrant’s work pattern and work location has meant that the actual supervision and monitoring he has received has been extremely fragmented. Under these circumstances it is difficult to be assured that the Registrant’s practice is consistently of the required standard. The Panel heard from five witnesses said to have provided supervision to the Registrant and there were others who appear in the documentation who were not called. Those five witnesses had limited interaction with the Registrant and there was an absence of joined up, consistent, overarching supervision.  Secondly, the witnesses who were called had limited understanding of the complete competence issues said to give rise to the HCPC proceedings. This lack of information contextualised any views they may have expressed about current clinical performance. Thirdly, the Registrant has only been working as previously indicated in a narrow field of physiotherapy and without a full normal case load with the stresses and strains that that inevitably brings. Fourthly, it is not correct to say that the Registrant, even given the limited area which he has worked in, has worked without issues or concerns. During JC’s oral evidence she informed the Panel of an incident when she had asked the Registrant to cover a department which was short staffed. JC had felt confident in placing him here as the patients were similar to those he had already been seeing and she felt that he would be able to work without difficulty. Unfortunately this did not prove to be the case and JC said that the Registrant became stressed. The Panel in addition also highlight the issues contained in SR(2)’s evidence which, for the avoidance of doubt, it does find may properly be characterised as concerns and which were not undermined by her live evidence. To conclude therefore, there are on-going competence issues and they have not, contrary to the Registrant’s submissions, been remedied or entirely remedied and there is continuing and on-going risk to the public. This is despite the Registrant working part time in his ideal clinical environment without a full time case load.
ii. The second reason for rejecting a Conditions of Practice Order is that the Panel were unable in the present circumstances to formulate conditions that could be workable, practicable and verifiable. The Panel finds that the Registrant had from 2012 until 2015 extensive accommodations and adjustments including the provision of reduced case load, heightened supervision, and other methods of support. These accommodations were however, never, or never wholly, successful in remediating the problems. A condition that the Registrant be subject to continual direct supervision (which might address the competence concerns) is not workable as it would place an unacceptable administrative burden on any future employer and would not allow the Registrant to demonstrate competent autonomous practice. 
iii. The third reason for rejecting a Conditions of Practice Order is that the Panel are of the view that such an order would not serve the wider public interest and uphold confidence in the Physiotherapy profession and the Regulator. Members of the public and the profession would rightly consider the competence issues raised as serious, persistent and wide ranging. The Panel has found they are ongoing. In those circumstances a Conditions of Practice Order would not be proportionate to mark public concern and may undermine confidence in the Regulator and the profession.
iv. The final reason is the Registrant’s lack of insight. The Panel acknowledge that the Registrant has worked voluntarily in his profession for over a year. However as has been indicated he has demonstrated little insight and continues to blame others. The very fact that despite having been faced with the extensive findings of lack of competence in a number of areas, the Registrant was still asserting at sanction stage that he should receive no sanction at all, further demonstrates a worrying lack of insight. This view was reinforced by the fact that the professional development activities undertaken by the Registrant in 2017 were focused on areas such a fire training, manual handling and mental health none of which were involved in the competence issues being raised.    
127. Accordingly, the Panel next considered whether a Suspension Order would be appropriate. The ISP states that a Suspension Order should be considered where the Panel considers that a Caution or Conditions of Practice Order would provide insufficient public protection. The lack of insight of full remediation leads the Panel to the conclusion that repetition is not unlikely in this case.
128. The Panel finds a Suspension Order for 12 months is appropriate because this is required to address the public interest considerations and maintain public confidence in the profession and the regulatory process as well as providing public protection from a practitioner who has not remedied his deficient practice and has limited insight into his failings.
129. The Suspension Order will allow for the possibility that the Registrant will return to practice at the expiry of the period and addresses the public interest in having a trained and committed practitioner in employment. A period of suspension will give him an opportunity to develop his insight into his competence issues including its underlying reasons. The Suspension Order will be reviewed before it expires. Whilst it is not for this Panel in any way to seek to bind the discretion of any reviewing panel, such a panel might find it helpful for the Registrant to produce the following:
1) A reflective piece demonstrating: his insight into the failings found proven by the Panel and the reasons why these occurred; the steps he has taken to rectify the deficiencies in his practice; and the changes he will institute in his practice to prevent reoccurrence.  
2) Evidence of undertaking relevant CPD
3) Recent professional testimonials from professionals the Registrant has consistently worked with to address his current impairment
4) His attendance at any review hearing and giving live evidence 

Order

That the Registrar is directed to suspend the registration of Mr Kieran McDermott for a period of 12 months from the date this Order comes into effect (the operative date).

Notes

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.

 The Registrant is currently appealing the Panel's decision and therefore the Interim Suspension Order remains in place until the outcome of the appeal.

Hearing history

History of Hearings for Mr Kieran McDermott

Date Panel Hearing type Outcomes / Status
12/06/2017 Conduct and Competence Committee Final Hearing Suspended
05/12/2016 Conduct and Competence Committee Final Hearing Adjourned part heard
02/09/2015 Investigating committee Interim Order Application Adjourned