Mrs Margaret E Ndini-Smith

: Physiotherapist

: PH52577

: Final Hearing

Date and Time of hearing:10:00 19/06/2017 End: 17:00 28/06/2017

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

: Conduct and Competence Committee
: Interim Conditions of Practice

Allegation

During the course of your employment as a Physiotherapist with Kent Community Health NHS Foundation Trust:

1. In the case of Client A, you;
a) did not complete SMART goals and/or an aim on Client A's programme;
b) gave Client A inappropriate and unsafe exercises for Client A's condition.

2. In the case of Client B, you;
a) did not produce a report for the tribunal in a timely way as requested;
b) did not complete SMART goals on Client B's programme.

3. In the case of Client C, you did not complete the baseline assessment pre and/or post operatively in a timely manner;

4. In the case of Client D, you;
a) did not clarify the presenting difficulty on the case notes;
b) did not summarise and/or conclude the outcome of the assessment on the case notes;
c) you informed the Parents of Client D that 2 out of 6 was a good score on the Chailey assessment which was incorrect.

5. In the cases of Client E and Client F, you;
a) did not record background history in the case report;
b) did not record an analysis and/or clinical reasoning in the case report;
c) did not record advice and/or strategies to assist the Children in the case report.

6. In the case of Client G, you;
a) did not clarify the reasons for the referral to the physiotherapy department in the case report;
b) did not record the motor developmental milestones in the case report;
c) did not provide evidence to support your clinical reasoning in the case report.

7. In the case of Client H, you;
a) did not provide evidence to support your clinical reasoning in the case report;
b) did not make it clear what specialist physiotherapy intervention was being recommended in the case report;
c) did not clarify what was meant by 'walker's group referral' in the case report;
d) did not clearly identify Client H's next treatment steps in their support programme.

8. In the case of Client J, you;
a) did not identify the reason for the referral in the case report;
b) commented on Client J's cognitive ability which was outside of your professional remit;
c) did not interpret and/or clarify the joint measurements in the case report.

9. In the case of Client K, you;
a) did not record who Child K had been referred by in the case report;
b) did not record why Child K had been referred to the Physiotherapy department in the case report;
c) discharged K after first contact despite concerns that Client K has Muscular Distrophy.

10. In the case of Client L, you;
a) did not provide a summary of Client L's clinical difficulty and/or need in the case report;
b) did not complete the case report.

11. In the case of Client M, you;
a) did not provide a full analysis in the case report;
b) did not clearly set out the next treatment steps in the case report;
c) did not record a follow up appointment in the case report.

12. The matters set out in paragraphs 1 - 11 constitute lack of competence.

13. By reason of your lack of competence your fitness to practise is impaired.

Finding

Preliminary Matters

Service

1. The Panel was satisfied that the letter dated 12 April 2017 addressed to the Registrant at her registered address informing her of the date, time and location of the hearing, constituted good service of notice of hearing.

The Registrant was present and represented.

Application to amend the Allegation

2. Ms Chaker sought amendment to the allegation to clarify matters and to better reflect the evidence.  She explained that the amendments were sent to the Registrant on 25 January 2017 and are largely required to properly anonymise the Service Users plus a number of minor amendments. This application was not opposed by the Registrant. 

3. The Panel took advice from the Legal Assessor.  He advised that the Panel has discretion to allow amendment and must be mindful of the interests of justice and the need to ensure fairness to all parties.  It should consider whether the changes proposed are significant and alter the nature or gravity of the allegation and be mindful of the public interest. The Panel considered that the amendments could be made.  They did not materially alter the nature or gravity of the allegation and, further, the Registrant was aware of the proposed changes and did not object. Accordingly, the Panel allowed the application to amend the allegation. 

4. During the initial stages of the hearing, matters relating to the Registrant’s health were in heard in private.  However, after the decision on impairment had been given to both parties, Mr Smith applied for the entire hearing to be heard in public saying that the Registrant had no objection to matters relating to her medical condition being made public. 

Background

5. The Registrant was initially employed by East Sussex Hospital Trust in 2001 as a Band 7 Clinical Specialist Physiotherapist working with babies and young children. There followed a number of reorganisations and the whole of the East Sussex Children’s Therapy Service was TUPE’d across to Kent Community Health NHS Foundation Trust (“the Trust”). Due to this reorganisation the Registrant then continued to work in the same role but at Band 6.  Concerns with the Registrant’s practice were raised in August 2013 and she was subject to informal and then formal capability procedures, including a Performance Improvement Plan (PIP), between 2013 and 2015. The Registrant was referred to the HCPC by the Trust.

6. Ms Chaker provided the Panel with written opening submissions and summarised the position.

7. The Registrant stated to the Panel that she admitted all the particulars of the allegation except particulars 1(b), 8(b) and 9(c) which are denied. 


The HCPC Witnesses

Witness  4 (CT)

8. The witness took the oath and was referred to her Witness Statement. She confirmed it was signed by her and was formally adopted as her evidence and taken as read.  She confirmed she was employed in 1997, not 1987, as stated in paragraph 1. She is the Professional Lead Physiotherapist in the Children’s Integrated Therapy service at the Trust.

9. The witness explained the trust was restructured in about 2013 and that was when the Registrant moved from Band 7 to Band 6. She said she became involved at the formal stage of the Registrant’s capability process and was the “voice” at the centre of that process and gave a second opinion. She explained the action plan that was put in place as part of the capability process and recalled it was agreed with the Registrant. This action plan was developed further in the formal performance improvement procedure (PIP).  The witness explained the objective was to identify areas of work outstanding and the action required.  It clearly set out what needed to be done and by when. It was designed to be specific and it set clear goals for the Registrant. The Registrant had 21 hours of one to one supervision from the witness and shadowed other members of staff and there were also peer supervision sessions.  The witness confirmed she reviewed all of the Registrant’s written work.

10. On Service User A, the witness was referred to her evidence in her witness statement and the programme for Service User A in the bundle was referred to. She said she considered some of the activities detailed, particularly crab football, were not appropriate for a child with brittle bones. This was a condition a Physiotherapist should be aware of and further online resources were available to provide the support and information to the Physiotherapist if required.

11. In cross examination, the witness agreed that assessing what activities are suitable for a child does, in part, depend on the child and the activity, but that there would always be safer ways to achieve the same outcome. She said crab football was particularly challenging for a child with brittle bones. The severity of this condition, was an important aspect to assess and the witness said there were safer ways to achieve the same outcome without exposing the child to that level of risk.

12. The witness agreed that the Physiotherapist working with the child is best able to assess the position and the appropriateness of activities and she accepted that the child’s activities were supervised.  However, she expressed concern as to the choice of activity.  The diagnosis of brittle bones placed the child in a riskier situation. She accepted she had not met the child so had to err on the side of caution. The witness did not accept that the crab football activity was suitable but felt that it  presented too high a risk.  She said that the risks and reasoning should be stated in the notes but were not.  She told the Panel that due to the position the child was required to assume in this activity, there was a risk of injury to both the back and the legs. 

13. On particular 12 of the allegation, regarding Service User M, the witness explained she was involved in the interpretation of the scoring in the Chailey assessment.  She was concerned about the way the Registrant had interpreted the score on the assessment (i.e. ‘scored well.’).

14. The witness explained that the Trust reorganisation was not about modernising but about the team working more with other teams across the Trust.  New structures and standards were set, with a move to electronic recording. These changes reflected the new legal framework for Children Services. Tribunal work was not new to the team as it had always been part of the work load. She accepted that the Registrant, and others, had not been involved in Tribunal work before the reorganisation but she told the Panel that there was support available for that work.  The recording of care remained important and, where parents were involved, there was a perception that parents wanted more support from the service. She confirmed that all staff had been involved in updating the new IT system.

15. The witness clarified that the Registrant may have begun work as a Band 5, but was a Band 6 from 2001. She said she was aware that the Registrant had been off work due to health reasons for some three months commencing in September 2013.

Witness 3 (NS)

16. The witness took the oath and was referred to her Witness Statement which she confirmed was signed by her and was formally adopted as her evidence and taken as read.  She is the Physiotherapist Professional Lead for integrated therapy and care coordination services for children at the Trust. She explained her role and knowledge of the Registrant.

17. The witness said that regarding Service User I, she had expressed concerns about the Registrant’s report on the child and her use of language when describing the child as “bright” in a definitive statement. She said it was very important to be clear in the language used and the Registrant was fully aware of this.  She said that the language used in the report by the Registrant was not appropriate.

18. Under cross examination, the witness accepted that it was not clear which version of the reports appeared in the bundle.  She accepted that the form for Service User I completed by the Registrant asked for learning abilities to be commented on but she said it was important to report how you had reached any view expressed. She accepted that this comment appears in a “subjective views” section of the form and could be read that way and she accepted that it was a minimal issue in the whole context. 
 
19. The witness referred to the initial assessment report on this Service User J. She said that she typically sent some reports back for amendment. In this matter the child appeared to have exhibited a loss of motor skills and the witness explained her concerns with the report prepared by the Registrant and the discussions that took place at the reviews, where the Registrant did not refer or revisit the child despite the apparent loss of motor skills. 

20. On Service User J, the witness explained that whilst the Registrant had explained the parents’ concerns, the Registrant had been asked specifically to report the identity of the referrer and their concerns and she had not done so. Given the child’s reported loss of motor skills, the witness said she would have wanted to see the child again. She said she had not been reassured by the Registrant who had mentioned Muscular Dystrophy after the review meeting.  She did not recall any conversation after the review meeting raising that issue and did not agree that it was correct to discharge this child at that time. 

Witness 2 (ST)

21. The witness took the oath and was referred to her Witness Statement which she confirmed was signed by her, was formally adopted as her evidence and taken as read. The witness was the Locality Clinical Manager dealing with Children Services and worked with various professions, including Physiotherapists.  She is a Speech and Language Therapist. The witness was involved in the Registrant’s formal capability process and the PIP from April 2014. 

22. The witness confirmed the terms of her letter of 9 April 2014 to the Registrant regarding the objectives set in the PIP. She said the Registrant’s work load was reduced at this time to ensure it was manageable.  The level of work was appropriate so that all the objectives could be met and remained manageable throughout the period of the PIP.  The Registrant’s case load was lower than comparable job holders. The witness monitored the action plan but was not involved in its creation.

23. The witness explained the use of the action plan as part of the overall PIP. Some 41 children had outstanding actions required, and as part of the plan she explained that the Registrant was asked to complete the required actions for 20 of the cases by June 2014, and all 41 by the end of July 2014. It was considered that was a very realistic target for the Registrant.

24. The witness said that the PIP and action plan listing all the actions required of the Registrant were supplied to her and the terms were clear.  Lengthy review meetings of two to three hours with the Registrant to discuss and agree the plan had taken place. The witness said she understood the Registrant was very clear on what was required of her.  After stage two of the capability process, both formal and informal meetings with the Registrant had taken place with increasing frequency, particularly as concerns about her performance increased.

25. The witness explained the stage two process which began in June 2014 and the meeting that took place on 10 June 2014 to discuss the Registrant’s objectives and action plan. The Registrant had only completed five out of 20 cases that she had been tasked with.  She confirmed she had never received a response from the Registrant about a tribunal issue that had arisen.  The objectives were discussed in detail with the Registrant and the witness said it was a thorough discussion.

26. The witness said there was a particular issue regarding a lack of reports on Service User C pre and post - surgery, and a follow up that was not timely.  The witness was very concerned regarding the care for that child.  The witness clearly recalled a conversation with the Registrant on this issue and the witness was shocked that so little had been achieved by the Registrant.  She had told the Registrant that this was serious and professional standards were an issue. She was sure the Registrant understood how serious this matter was following this meeting.

27. The witness said that a question of the Registrant’s possible health issue dyslexia was raised by the Registrant.  The witness offered to follow this up but the Registrant said that she did not think that was an issue and no further action was taken at that stage.

28. At stage three of the PIP, the witness said that the concerns with the Registrant’s practice remained the same. None of the objectives had been fully achieved by the Registrant. Stage three was commenced at a meeting on 11 August 2014. Caseload management remained an issue at stage three with a substantial amount of work remaining outstanding, with only 13 of the 41 identified cases completed by 1 August 2014. The witness expressed her surprise that this work had still not been done and said she became worried about clinical safety in a number of cases.

29. Follow ups by the Registrant were often not appropriate or timely, with parents waiting months for reports although she said no complaints were received. Notwithstanding, this level of service reflected badly on the Trust. The witness said she felt the Registrant was clear on what must be achieved and she could not understand why the work was not being carried out. The witness said the issues about the Registrant’s standard of reports in both presentation and content were significant.

30. As to issues of ill health impacting on work, and the Registrant’s illness during the informal capability period, the witness said this issue was checked at each stage of the process with both the Registrant herself and Occupational Health. There was also a supported, phased return to work in January 2014 and a letter from Occupational Health saying she was coping well.

31. The witness said that whilst the Registrant’s reports using templates was improving during stage three of the capability process, progress was slow, disappointing and inconsistent.  A review of stage three of the PIP took place on 29 September 2014 and it was noted that the case load action plan had still not been completed. Only 24 out of the 41 cases had been completed.  At a follow up meeting 13 November 2014, Witness 4 and Witness 2 raised this with the Registrant.   A number of concerns remained in respect of particular cases, including a report required for a tribunal which had not been provided for Service User B despite this being a “must do” aspect of the Registrant’s work. It was of particular concern that the Registrant had not provided this report. The review meeting concluded that professional standards were not being met by the Registrant.

32.The witness confirmed that the Registrant was subsequently diagnosed with dyslexia and a review meeting took place to discuss this issue. The stage four capability hearing was accordingly adjourned for 90 days to put in place the necessary adjustments. After Occupational Health involvement a further review of the action plan took place on 22 May 2015.

33. A further action plan review took place in May 2015 and stage four of the capability process commenced. The witness told the Panel that the Registrant’s reports were expected to be of a Band 6 standard. The Professional Lead Physiotherapist reported at the review that one of the Registrant’s reports raised serious issues regarding a child, Service User J, who should have not have been discharged and whom the Registrant thought may have had Muscular Dystrophy.

34. On case load management, the witness said there remained an uncomfortable number of children with outstanding pieces of work required and at stage three there remained significant concerns as to content and the clinical reasoning in the Registrant’s records. She told the Panel that at stage four, the Professional Lead was receiving reports from the Registrant that could not be issued as the quality, content and presentation were all poor. Whilst there was some improvement, it was by no means consistent, with 50% of the reports needing to go back for further review before issue.

35. The witness said that at stage three, a number of children still did not have SMART goals and by stage four there remained a lack of consistency in the gathering and assessment of information to inform programmes for the children.  There was a lack of linkage between aims, objectives and activities in order to achieve the objectives.  There was also a falling back in the way the Registrant put programmes together; some just contained lists of activities and no SMART objectives.  

36. On the issue regarding Service User I being recorded as being “bright”, the witness said it was outside the professional remit of a Physiotherapist, without proper evidence, to make such a comment. To make such a judgement could led mislead parents and cause problems. There appeared to be no evidence base for that judgment.

37. Under cross examination, the witness accepted she was not a Physiotherapist.  On the tribunal report for Service User B that the Registrant failed to prepare, the witness said it was on the action plan and was also a priority piece of work – a “must do” piece of work for the service. She could not understand why the Registrant had not prioritised this report. 

38. On Service User C, the witness was not aware whether a base line assessment had been done at the hospital. However, a Physiotherapist would need their own base line to inform their interventions and to measure progress. 

39. On Service User I, the form itself asked for “learning abilities” to be commented on. The witness accepted that the form maybe misleading, but this was a case history form which usually reported information from parents and it needed to be evidence based.  It was not typically shared with parents. 

40. On Service User J, the witness confirmed that it was the Professional Lead who expressed the view on having considered the reports. On the meeting note of 27 July 2015, the witness confirmed that it was not contemporaneous. The witness accepted that it could be that after the meeting the Registrant had mentioned she had woken up and thought the child might have Muscular Dystrophy.

41. On chronology, the witness agreed that the Registrant was absent from work from September to mid-December 2013, and a final letter was received from Occupational Health in May 2014. The health issue was diagnosed in late January 2015, considered at a meeting on 23 February 2015 and on 12 March 2015 advice was given.  The Registrant had full support from April 2015. Three to six months was recommended for the Registrant to get used to the new software provided.  On 10 September 2015 the Registrant had reported she was still adjusting to the software and that paperwork was a struggle.

42. The witness accepted that some of the errors in reports were minor, but even at the extended stage four period, there were still serious problems with the Registrant’s work. Typically her reports had no clearly defined recommendations and lacked analysis. 

43. The witness confirmed that the form completed by the Registrant for Service User I is a case notes form used by all therapists and one could leave questions blank if not applicable. She said that on tribunal reports a date is usually requested by the tribunal.  For other reports the service standard would be two weeks. 

44.The witness said that at the final hearing on 10 September 2015 there was a discussion about providing more time for the Registrant to work on the PIP. The witness said that she had looked at the dyslexia report which reported an average performance, but high achieving reading score.  The health issue was assessed and it was concluded that it was not the cause of the problems faced by the Registrant in her practice.  There was a strain in the level of support that was being provided to the Registrant by the Trust and a concern by the Service Head that it could not continue without an impact on the rest of the service.

Witness 1 (SM)

45. The witness statement of SM was received and it was agreed to be taken as read, subject only to the Registrant stating she has never been a band 4 therapy assistant as stated by this witness. The HCPC closed its case.


The Registrant’s Evidence

46. The witness took the oath and adopted her Witness Statement which was taken as read.  She explained that at the Trust there was a merger of two teams and it was a difficult time, particularly on the IT issues.  She did not know the new team and felt she became unheard in the team.  All of the managers came from the other team so she did not know them.  The change from paperwork to electronic records was chaotic and time consuming. Where records were not completed she said she was required to deal with the new IT system, often for others in the team as well.

47. She told the Panel that the care became very child centred and involved several teams.  It was a major change and the proformas kept changing. The old system was less formal and she had not been involved in tribunal work before.

48. The Registrant explained that in her private life she had been involved in a difficult court case which had made her ill.
 
49. In January 2014 the Registrant said that she had a phased return to the work involving Occupational Health who discharged her in May 2014. She always accessed peer support when available.  

50. On Service User A, she explained that the child had been known to her for some time. The exercise programmes were done by the Registrant with the child and with a carer and she had discussed and advised on the programme.  The crab football was unusual but the child was very excited about it and had shown the Registrant she could do this activity, without prompting. Taking a broad view, the Registrant said she sought to make it safe and included it as an exercise to continue to do with the Teaching Assistant at school.  

51. On Service User B, the Registrant said that she had used the new template for the first time before they were finalised.  She said she was told she did not have to complete the whole template and thought what she had done was all that was required.

52. On Service User C, the witness said there was a pre-operative report from the Consultant Surgeon at the hospital on a new procedure which included assessment of joint range. She thought the data was sent later to the Trust but only the programme was sent to her by the hospital, not the assessment.

53. On Service User I, the Registrant did not disagree with what the parents said about having no concerns. She did not asses his learning abilities but considered she had to put in the correct details on the form. 

54. On Service User J, the Registrant said she discharged the child as she had no concerns and the mother was competent in dealing with the issues. She said that is now proved by later events, as the child subsequently progressed.  She told the Panel that muscular dystrophy had only occurred to her later and she had just mentioned it after one of the meetings where the child was discussed.  She said it was just an anxiety she had had after the event at a time when she was becoming anxious about everything at work and she had found nothing that suggested the child may have such a condition.   

55. On Service User L, the Registrant explained that she was certain this happened just before she was dismissed and that was why a further appointment had not been made.

56. On Service User M, the Registrant explained that she had said the low score on the Chailey assessment had been good as this child had cerebral palsy. Any voluntary movement was therefore a major achievement and a positive thing, hence her comment.

57. On her current employment position the Registrant said that after leaving the Trust she had worked in a Special Needs School as a band 6 Physiotherapist and thereafter in an Intermediate Care Units for the elderly. Since January 2017 she has been employed in the same role at another hospital, but that had now ended.  She said that in the future she wanted to continue to work in an Intermediate Care Unit or possibly go on to train as a Respiratory Physiotherapist.  She did not want to work in Paediatric Physiotherapy again after this experience, but felt she had contributed positively whilst she was there.

58. The Registrant told the Panel that she had not experienced any problems with writing reports since leaving the Trust and did not need to use additional software. She now did far more treatment and less report writing. She has had a very positive experience since leaving the Trust and been appreciated by her employers.

59. Looking back the Registrant said that she was still suffering from  anxiety when she returned to work at the Trust after her period of illness in January 2014. She said it had been a very difficult time and she had loved her job.  As to her admitted failings, she said that her clients were placed at risk.  She had become very anxious and is mortified by her failures.  She said she is a health care professional on whom the children rely. When asked about the impact on colleagues, the Registrant said that they communicated well as a team.

60. The Registrant said that she had made every effort to meet what was expected of her.  She said there were no complaints about her and was surprised to find she had a health condition. She said she did her job very well until things changed around her.

61. Under cross examination, the Registrant said that during this period she was still required to see Service Users and prioritise them and that was why her reports had not been done on time. Her case load had been considerable. Setting up the data base was time consuming. The Registrant said after the second stage of the capability process, other concerns emerged and she realised it was more serious. She said that during that stage two of the process she was still seeing her therapist, and she thought it unfair that the Trust proceeded with the capability procedure at that stage. 

62. On Service User A, the Registrant said, although unusual, the activity could be managed by allowing it as part of the programme and then the child would stop.  The Registrant said that she had a conversation with the carer and child and that was why the risk and reasoning does not appear in the notes. The child was very able and she had spoken to Great Ormond Street Hospital about this child, who was known to them. She said that she had made the decision “on the spot” as it was a way to stop the child doing it and the carer understood.  The child had not been hurt.  When asked if she would make the same decision again the Registrant said she would not as she would end up before the HCPC.

63. On Service User I, the Registrant said that she had experience and that was why she made the comment about the child’s learning abilities. She did not mean to mislead anyone and she apologised for any confusion caused.

64. On Service User J, particular 9 c), the Registrant said that she had thought about Muscular Dystrophy after discharging the child so had looked again at the notes. The child had been able to do the activities on the visit and so, despite reports of loss of function by the mother, there was no actual loss of function.  The Registrant said that she had used her experience and made a judgement. She said she had assessed the child and was content that the child had not, in fact, lost any motor function. She did not accept that this was inconsistent with her earlier evidence about her later consideration of and anxiety over Muscular Dystrophy, which led her to review her notes a few days later. She said that the diagnosis was rare and could not be detected before 4 years old in any event. She did not accept there were red flags in her notes.

65. On Service User L, the Registrant said that she was not sure if she now admitted particular 11 of the allegation. The Registrant’s position on this particular required clarification as to the admission made. On that basis, the Panel retired and the Registrant was permitted to seek limited advice from her solicitor. The HCPC were content with that approach.

66. Mr Smith advised the Panel that the Registrant had received legal advice on the limited question of the admission. The Registrant confirmed that she admitted her analysis should have been more thorough and particular 11 was therefore admitted in full.

67. On Service User B, the Registrant said that she did not realise that a tribunal report was required. It was in her action plan but the Registrant said that the mother did not make an appointment.  She said she gave a verbal explanation before the July review of her action plan and had already explained why a report was not appropriate.  She accepted this task was not removed from her action plan but it was all a new process and new templates. She accepted it was a “must do” piece of work.

68. On Service User C, regarding the pre and post-operative assessments of the child, the Registrant had not seen the child post-surgery and could not do the assessment.  There was conflicting advice from surgeons as to whether the operation was appropriate.  It was difficult for the parents as this was a very complex situation. The parents sometimes did not engage due to other family priorities.  She accepted that she had seen the child twice briefly after the surgery, but the child did not want to do the exercises and an assessment could not be done.

69. On Service User M, regarding the Chailey scales, the Registrant said that she had commented positively but not incorrectly.  She accepted it was misleading.  She said the whole capability process was very negative but she had been trying very hard to perform.  The whole process was very frustrating. She said she explained all of this at the review meetings.

70. The Registrant told the Panel that her more recent work was predominantly with older people.  Typically she saw two or three patients each day, and would visit and work with them.  She worked on goals for the patients. 

71. The Registrant said her employers were not aware of her dyslexia as she felt she did not need support or adjustments as she could do the reports required without additional software. She did not tell the agencies about the HCPC process or her dismissal but did tell her employers about both once she was in the job for about a month. She did 8 and 6 months with two employers who have given her testimonials. She told the job agencies she had mild dyslexia.

72. The Registrant was referred to her professional development documents in the bundle and explained the courses she had undertaken since she left the Trust. She accepted that none of the courses dealt with her difficulties with technology and IT. She said she would be looking for roles in the future where she does not have to do lots of paperwork, or roles which require advanced IT skills. 

73. Responding to questions from the Panel, the Registrant accepted that with regard to Service User A, the notes did not contain an explanation or reasoning for the exercises the child was doing. Therefore if a different therapist came to the school they would not know from the notes the clinical reasoning for the exercise program.  She said she could not see where she would have put that information in the notes but accepted that the notes do not reflect the complete position.  She had not anticipated any harm but did accept it was a risk. Regarding the move to the new database at the Trust, the Registrant explained it was chaotic.  She said her colleagues were supportive but they were also under pressure and lots of files needed sorted out.

74. Regarding Service User C, the Registrant said she had met the father who had already decided to proceed with the surgery. She did not do the assessment despite a surgery date being set down.  The meeting when the assessment was supposed to take place was instead taken up with talking to the father about the decision to go ahead with the surgery.  The Registrant did not ask for, and did not get, the pre-assessment report from the hospital. She did not do either a pre or a post-surgery assessment.  She accepted that she could not therefore do a proper comparison as she did not have these assessments. 

75. On the learning log in the bundle, the Registrant, was referred to the dyslexia diagnosis. She explained that the organic cause referred to on 24 February 2015 is a reference to her dyslexia which she said explained her problems with reports and her use of IT. She disagreed with the Trust’s view that her dyslexia was not the reason for her capability issues but had appreciated the support she had been given. On the dyslexia diagnosis, the Registrant said she would not now be at this hearing if that had been made earlier in her life. She said she would have coped with the work load at the Trust had adjustments to deal with her dyslexia been in place.

76. She said she now worked with Service Users with complex needs and also with older people. That work required SMART objectives and reports but she could do that in the roles she had been in since leaving the Trust. That work was much less intense than in children’s work. The Registrant said going forward, she does not want to do paediatric work ever again.  She is also considering working in respiratory care.


Witness – MA

77. The witness affirmed and gave evidence by telephone. He confirmed that he had provided a reference for the Registrant dated 27 February 2017.  He is a registered Physiotherapist and was the Registrant’s manager between March 2016 and November 2016.

78. The witness said that he worked with the Registrant and had done joint treatment sessions with her. He had seen her reports and referrals to external providers of care. He had no issues with the Registrant’s reports. He explained that the reports were either computer generated forms or written by the Registrant, often setting goals and referring for further treatment.  The need for reports and referrals was common, a regular occurrence with often several a week.

Witness – WK  

79. The witness affirmed and gave evidence by telephone. He worked with the Registrant from January 2017 as a Band 5 locum Physiotherapist and has provided a reference dated 18 May 2017. 

80. The witness said he worked often with the Registrant seeing several patients per day. On medical notes, he said he was able to follow her clinical reasoning and she was always clear. He explained that the Subjective Objective Analysis and Plans (SOAP) notes are handwritten after seeing each patient to record discussions, analysis, referrals and any care plan. He said he had not been aware of any problem with the Registrant using the computer at work.  There were several locums working with him including the Registrant. He did not know the nature of the allegations the Registrant faced.


Witness – CL

81. The witness affirmed and gave evidence by telephone. He is a Team Leader and registered Occupational Therapist.  He provided an email for the Registrant dated 18 May 2017.  He worked with the Registrant from January 2017 and shared an office and patients. He saw her practice as part of the team.

82. He did not recall seeing electronic records done by the Registrant but had seen her handwritten notes from initial assessments, treatment plans and day to day notes. He said he was aware of the nature of the allegation regarding her practice with her previous employer including her documentation and treatment plans. The Registrant dealt with a mixed case load. She would have seen patients every day, and each required documentation to be completed.  He recalled seeing the Registrant’s records daily but not initial assessments, as that was not part of his role in the team. On the use of computers, the witness was not aware of any problems with the Registrant and most of her work was handwritten. He had not looked specifically at discharge reports but no issues or queries came back to him. He was not aware of any inappropriate referrals being made during his period of working with the Registrant.


Closing Submissions for the HCPC

83. Ms Chaker made her closing submissions to the Panel.  She set out the key evidence in her opening note. She submitted in respect of Service User A that the Registrant had accepted the activities were unusual and referred to the evidence heard that these were risky activities for this child.  She invited the Panel to reject the Registrant’s explanation and to prefer the evidence from witness 4 that she was not reassured on hearing the Registrant’s justification. On any view the Registrant’s position was not justified as regards the care of this Service User and the Registrant had made an error of clinical judgement.

84. On Service User I, Ms Chaker submitted that the comment made about the child’s ability was outside the Registrant’s professional remit.  The Registrant did not seem to grasp the critical difference between reporting what she is told and making an assessment.

85. On Service User J it was submitted that the Registrant’s account of events was not consistent.  Witness 3 and 4 expressed concern about the Registrant’s handling of this issue and failure to act on “red flags” in the assessment of the child and lack of analysis before discharging this service user.

86. Ms Chaker referred the Panel to Holton v GMC [2006] EWHC 2960 regarding competence. All the professional witnesses had consistent and persistent concerns with the Registrant’s competence. Witness 2 said that despite the capability process, the Registrant was not meeting the standard of Band 6 Physiotherapist.  The whole capability process took some two years and was bespoke and detailed, involving a reduced case load and occupational health.

87. Ms Chaker submitted that the limited evidence on the Registrant’s health, did not explain the lack of competence alleged.  Occupational Health were involved throughout and a year after being discharged by them the Registrant’s practice was still not that of a Band 5 Physiotherapist. She said neither did dyslexia explain the lack of competence. Even with adjustments made for this condition, the Registrant still did not reach the required standard of practice. She pointed out that no adjustments have been required in subsequent employment the Panel had heard about.

88. The Panel were referred to the HCPC Practice Note on Impairment and to the case of CHRE v NMC and Grant [2011] EWHC 927 (Admin). The roles filled by the Registrant since leaving the Trust were different.  The Registrant has not addressed the concerns identified by the Registrant herself such as IT courses, which showed a lack of insight. There remained a risk of repetition.  Ms Chaker addressed the Panel on the public interest.  There was a need to recognise the serious nature of the allegation and Ms Chaker submitted that the Registrant ought not to be allowed to return to unrestricted practice.


Closing Submissions for the Registrant

89. Mr Smith submitted that this as a case about professional judgment and different conclusions can be reached, with neither being wrong. He submitted that the Panel must look closely at the circumstances in which the professional judgments were made- based on paperwork or made after access to the Service Users and knowledge of the context.

90. Mr Smith reminded the Panel that witness 3 said that had she met the child, Service User A, she may have reached a different conclusion and an alternative did not mean the Registrant’s view was unsafe.  The witness was not a wholly independent witness and had no access to the child.  He asked the Panel to prefer the evidence of the Registrant on this part of the allegation.  The Registrant’s position was credible and the particular was not proved.

91. On Service User I, Mr Smith submitted that it was not acting outside the Registrant’s professional remit given where the comment appears on the form.  Witness 3 had said this issue was “splitting hairs” and as she was the professional that should be preferred.

92. On Service User J, Mr Smith submitted that the allegation is not that the Registrant missed an issue but that the service user was discharged despite “concerns” by the Registrant about muscular dystrophy at the time of discharge. The evidence did not support that allegation and it cannot found proven.  The evidence was not that the Registrant had the clinical concern alleged.  Further, the timing did not fit as the evidence was that the thought occurred to the Registrant days after discharge.
93. Mr Smith submitted that some evidence heard did not go the allegations faced by the Registrant and should be treated with care.
94. On the issue of competence, Mr Smith said that the concerns largely relate to electronic documents; there was no evidence of serious clinical misjudgement or actual harm to Service Users. The report writing did improve. The health condition also required to be taken into account and the chronology was important to consider.   He said it was only fair to judge the Registrant after the support for her health condition was put in place (April 2015).
95. Mr Smith reminded the Panel of the dates for each particular of the allegation: Service A April 2014 – May 2015; B January 2015; C April – September 2014; D September 214; E and F April 2014; G May 2015; H May 201; I April 2015; J July 2015; K and L August 2015.
96. On impairment Mr Smith submitted that it was important to consider that there were no previous regulatory findings against the Registrant, her acknowledgement of her difficulties, her health issue and the changing work environment.  She is not currently impaired, and had admitted most of the allegations. She has learned from the situation and developed insight. Her recent practice had been arranged to avoid the issues she had previously faced and her practice has continued without incident. She has shown good judgment.
97. The Panel heard and accepted the advice of the Legal Assessor.  He reminded it of the balance of probabilities and the need to assess the witnesses and weigh all of the evidence carefully and to consider the precise terms of the allegations.  He referred the Panel to Holton v GMC [2006] EWHC 2960 on the issue of competence.  On impairment, he referred the Panel to the HCPC Practice Note on Impairment and to the authoritative guidance in CHRE v NMC and Grant [2011] EWHC 927 (Admin).  He reminded the Panel of the central importance of the public interest, including the wider public interest in the upholding of proper standards and the reputation of the profession and the regulator. 

Decision on Facts
98. The Panel assessed all the evidence it heard and the documents before it.  It accepted the advice of the Legal Assessor. The Panel was aware that on matters of fact, as distinct from issues of lack of competence and impairment, the burden of proof rested on the HCPC and that the standard of proof was the civil one, namely on the balance of probabilities.

99. The Panel was satisfied that on the basis of the evidence and the Registrant’s admissions that particulars 1 a), 2, 3, 4, 5, 6, 7, 8 c), 9 a), 9 b), 10, 11 and 12 of the allegation are found proved.

100. The Panel found all the witnesses it heard from were credible and reliable and did their best to recall events and assist the Panel. The Panel found the evidence of witness 2 of particular assistance. The Registrant did her best to assist the Panel and was credible.

101.  The Panel made the following findings on the facts in respect of the three particulars of the allegations which were denied:-
Particular 1 b  - Proved

The Panel noted the terms of the particular and the evidence heard from the Registrant herself who said the crab football activity was risky.  Witness 4 said the crab football was a risky activity and the evidence was that other, alternative, appropriate activities were less risky. There was no evidence of any risk assessment being carried out by the Registrant. The Panel was satisfied that on the evidence that this particular is proved.

Particular 8 b - Proved

The Panel carefully considered the notes regarding the Service User and the evidence of witness 3, who said that it was a definitive statement and explained the need to be careful with language. The Panel determined that the language used by the Registrant did, on balance, indicate that she was commenting on the Service User’s cognitive ability and, significantly, she did not attribute that to anyone else. A Physiotherapist is not trained to assess cognitive ability and the Panel determined that the comment was therefore outside the Registrant’s professional remit.  The particular is found proved.


Particular 9c - Not proved

a. The Registrant’s evidence was clear that she saw the Service User once and discharged him to the mother.  Her evidence was that some days later she had thought about the muscular dystrophy issue. The evidence was that those concerns arose after discharge of the Service User. The Panel accepted that evidence, which was not contradicted. The Panel determined that this particular was not proved.


Particular 8(a) – Not proved

The Panel noted that the paperwork does in fact appear to identify the reason for the referral, although this particular is admitted by the Registrant.  In the circumstances, the Panel found that this particular is not found proved.


Decision on Grounds – Lack of Competence

102. The Panel accepted the Legal Assessor’s advice and carefully considered the evidence and exercised its professional judgement. The Panel found that in respect of particulars 1 to 7 of the allegation, relating to Service Users A, B, C, D , E, F, G, H, that the facts found proved amount to a lack of competence.

103.  The Registrant failed to adequately complete important aspects of documentation in respect of vulnerable Service Users. The Registrant admits, and the Panel found proved, a lack of adequate reasoning, recording, analysis, clarification and timely completion of important documentation relied upon by fellow health professionals, colleagues, parents and tribunals. That documentation is essential for the safe and appropriate care of Service Users and the Registrant’s failures were serious and placed Service Users at potential risk of harm.


104. Particular 8 Service User I –
 
8b - The Panel found the Registrant’ comment “bright and curious”, does not amount to a lack of competence, particularly given the ambiguity of the lay out in the pro forma report used.

8c - Whilst there is some interpretation in the report, it is not adequate interpretation or clarification and, taking account of the standard required of a Band 6 Physiotherapist such as the Registrant, the Panel determined this amounts to a lack of competence.
 
105. Particular 9  Service User J –

b. The Panel found that the information that the Service User had been referred is important, essential information.  Its omission amounts to a lack of competence.
c. For the same reasons, recording the reasons for referral and setting the scene is important, essential information and its omission amounts to a lack of competence.

106. Particular 10 Service User K –

d. The Panel found that the failure to provide an accurate summary is serious and amounts to a lack of competence.  A professional colleague picking up this report would not be able to easily understand the child’s difficulties. 
e. For the same reasons the failure to complete the report amounts to a serious omission and is a lack of competence.

 

107.Particular 11 Service User L –

f. The analysis is not adequate as there is a failure to record essential information in the case report.  This amounts to a lack of competence.
g.& c recording the next step and a follow up appointment are basic, essential information and the failure to record that information amounts to a lack of competence.

108.Particular 12 Service User M –

The reporting of having scored “well” would indicate, in the absence of the test results which are not recorded in the report, that there had been a significant improvement.  To say “well” without qualification or explanation was misleading and the use of that language created a false impression and amounts to a lack of competence.

109. The Panel considered the HCPC Standards of proficiency for Physiotherapists.  It considers that standards 1, 4, 9, 10, and 14 have been breached by the Registrant in light of the facts found proved.

Decision on Impairment 

110.  The Panel accepted the advice of the Legal Assessor and carefully considered whether the Registrant’s fitness to practise is currently impaired.  It kept in mind the central importance of protection of the public, the wider public interest and the guidance in the Grant case. The Panel kept at the forefront of its mind the need to protect service users and the wider public interest.

111.  The Registrant gave evidence to the Panel who accept that the Registrant is genuinely remorseful and has apologised for her actions.  It is noted that the Registrant seemed to rely heavily upon verbal communication with colleague and Service Users, and tended to minimise the importance of written reports and documentation. Whilst the Registrant clearly grasped the importance of communication, the Panel has concerns that she did not appear to have fully developed insight into the significance for Service Users and her colleagues of failing to keep accurate written and electronic records and to provide adequate and timely written and electronic records, clinical analysis and reasoning. For example, she said that most parents simply folded up her reports and put them in their pockets without reading them.  The Registrant did not appear to fully appreciate the seriousness of, and risks presented by, her actions.  The Registrant has not taken action to remedy her particular failings and there was a lack of evidence of any remediation of those failings.

112. The Panel found that the lack of competence could be remedied by the Registrant provided that she fully and properly reflects on her actions and addresses the particular failings admitted and found proved in respect of her practice. She has not done so. The Panel finds from the Registrant’s evidence that she has actively simply taken steps to avoid similar professional roles. In all the circumstances, the Panel determined that the Registrant continues to present a real risk of repetition of the failures found proved, placing Service Users at unwarranted risk of harm in the future.

113. As to the wider public interest, the Panel is mindful of the need to protect Service Users and the reputation of, and confidence in, the profession and the regulator.  The Registrant’s failings are serious and the Panel is not satisfied that the Registrant will not repeat them. In the absence of fully developed insight and sufficient evidence of remediation, the Panel is satisfied that on both the personal and public components of impairment, the Registrant is currently impaired.

 

Decision on Sanction

114. Having found that the Registrant’s fitness to practise is currently impaired the Panel went on to consider the question of sanction. Before reaching its decision, the Panel considered all of the evidence before it, the submissions of both parties, the HCPC Indicative Sanctions Policy and accepted the advice of the Legal Assessor.

115. The Panel considered the gravity of the matters found proved and then aggravating and mitigating factors.

116. The mitigating factors are the fact that no Service Users were in fact harmed. The Registrant recognised the problems in her practice when drawn to her attention and acknowledged that the concerns engaged questions of professional standards. The Registrant has expressed genuine remorse. She has developed partial insight into the matters that have brought her to this hearing. Her failings are remediable. She has been working in a Band 6 Physiotherapy role and has produced testimonials and evidence from colleagues who spoke well of her practice since leaving the Trust. 

117. The aggravating features are that the Panel has found the Registrant’s fitness to practise is impaired on both personal and the public grounds. The Registrant’s failings placed Service Users at risk of harm, particularly Service User A. The Registrant has not taken action or shown any particular evidence of remedying her failings. She has still not developed full and mature insight into her failings. There is still a real risk of repetition of the failures found proved.

118. In deciding what sanction, if any, to impose, the Panel has reminded itself that the purpose of sanctions is not to be punitive but to protect service users and the public interest, although a sanction may have a punitive effect. The Panel has taken into account the principle of proportionality, balancing the interests of the public with those of the Registrant.

119. The Panel has concluded that in the light of the seriousness of the allegation and the risk of harm to Service Users, a sanction is required. Further, the Panel does not consider that a Caution Order or Mediation is a proportionate or an appropriate response in this case.

120. The Panel did consider whether to impose a period of suspension. It carefully considered all of the evidence and its findings of fact. It considered all of the matters put forward by the Registrant and concluded that in these particular circumstances a sanction of suspension would not be rehabilitative and be merely punitive.

121. The Panel went on to consider a Conditions of Practice Order.

122.It considered Paragraphs 30 and 31 of the HCPC Indicative Sanctions Policy:
“30. Conditions of practice will be most appropriate where a failure or deficiency is capable of being remedied and where the Panel is satisfied that allowing the registrant to remain in practice, albeit subject to conditions, poses no risk of harm or future harm. Panels need to recognise that, beyond the specific restrictions imposed by a Conditions of Practice Order, the Registrant concerned is being permitted to remain in practice. Consequently, the Panel’s decision will be regarded as confirmation that, beyond the conditions imposed, the registrant is capable of practising safely and effectively.

31.Conditions of Practice Orders must be limited to a maximum of three years and should be remedial or rehabilitative in nature. Before imposing conditions a Panel should be satisfied that:
 
• the issues which the conditions seek to address are capable of correction;
• there is no persistent or general failure which would prevent the registrant from doing so;
• appropriate, realistic and verifiable conditions can be formulated;
• the Registrant can be expected to comply with them; and
• a reviewing Panel will be able to determine whether those conditions have or are being met.”

123. The Registrant has not fully addressed her failings and she has not been tested in a similar environment to that for which the Panel found her fitness to practise impaired. However, in this case no Service Users were in fact harmed. The Registrant has been working in Intermediate Care Units since leaving the Trust. There have been no complaints of her performance since then and colleagues have spoken well of her practice. She has engaged with this regulatory hearing throughout and the Panel considers that if a Conditions of Practice Order is imposed the Registrant can be trusted to comply with the conditions. She has said in evidence that she will not work in Children’s Services again but the Panel needs to be satisfied that before the Registrant can properly and fully practise unrestricted as a Registered Physiotherapist, she is capable of working in such an environment. The Panel has therefore determined to impose a Conditions of Practice Order for a period of 12 months in order that the Registrant can take the time to address and remedy her failings. 

124. Shortly before the end of the Order there will be a Review. The Reviewing Panel would be assisted by:
• Evidence to show your ongoing Continuous Professional Development;
• Feedback reports from your supervisor;
• Updated testimonials from work colleagues;
• A recent example of an assessment with SMART goals and a patient report to an external agency;
• The outcome of any research you have undertaken regarding strategies to overcome any difficulties attributed to your diagnosis of dyslexia.

Order

The Registrar is directed to annotate the HCPC Register to show that, for 12 months from 24 July 2017, the date that this Order takes effect (“the Operative Date”), you, Margaret E Ndini- Smith, must comply with the following Conditions of Practice:

1. Within six months of the Operative Date you must:
A. satisfactorily complete a one day face to face taught Medico Legal Report Writing Course recognised by the Chartered Society of Physiotherapy (CSP).
B. forward a copy of your certificate to the HCPC following completion of this course.

2. You must confine your professional practice to Adult Services.

3. You must place yourself and remain under the supervision of a Registered Physiotherapist workplace supervisor, registered by the HCPC and supply details of your supervisor to the HCPC within four weeks of the commencement of employment. You must attend upon that supervisor as required and follow their advice and recommendations.

4. You must promptly inform the HCPC if you take up any future employment.

5. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

6. You must inform the following parties that your registration is subject to these conditions:
A. any organisation or person employing or contracting with you to undertake professional work;
B. any agency you are registered with or apply to be registered with (at the time of application); and
C. any prospective employer (at the time of your application).

7.You must work with your supervisor to formulate a Personal Development Plan designed to address the deficiencies in the following areas of your practice;
• Report writing (to comply with CSP and employers organisations standards)
• Setting SMART goals.
• Analysis of presenting problems
• Clinical reasoning of your assessment to formulate a treatment plan.

8. Within three months of commencing employment you must forward a copy of your Personal Development Plan to the HCPC.

9. You must meet with your supervisor on a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.

10. You must allow your supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.

11. You must submit to the HCPC within six months of commencing employment a reflective practice log showing at least one example of each of the following areas;

• Following completion of the medico-legal report writing course;
• Referral report to an external agency;
• Setting SMART objectives following a patient assessment;
• Clear clinical analysis and reasoning;
• Learning from and understanding of the issues raised in the; particulars of allegation upheld by the Panel. 

12. You will be responsible for meeting any and all costs associated with complying with these conditions.

13. Any condition requiring you to provide any information to the HCPC is to be met by you by sending the information to the offices of the HCPC, marked for the attention of the Director of Fitness to Practise or Head of Case Management.

 

Notes

The order imposed will be reviewed before the end of its expiry 23 July 2018. 

Hearing history

History of Hearings for Mrs Margaret E Ndini-Smith

Date Panel Hearing type Outcomes / Status
19/06/2017 Conduct and Competence Committee Final Hearing Interim Conditions of Practice