Mrs Kerri S Clark

: Occupational therapist

: OT60299

: Final Hearing

Date and Time of hearing:10:00 26/06/2017 End: 17:00 30/06/2017

: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Suspended

Allegation

Whilst registered as an Occupational Therapist and working for Hertfordshire County Council from 5 August 2015 to 30 October 2015:

1. In relation to Case 1, you did not maintain an adequate case file, in that you did not complete and/or record on ACSIS (Adult Care Services
Information System):
a) Case notes;
b) Contacts with the service user and/or carers;
c) Actions;
d) Letters;
e) Assessment reports;
f) Care plans;

2. In relation to Case 2, you did not maintain an adequate case file, in that you did not complete and/or record on ACSIS:
a) Case notes;
b) Contacts with the service user and/or carers;
c) Actions;
d) Letters;
e) Assessment reports;
f) Care plans;

3. In relation to Case 3, you did not maintain an adequate case file, in that you did not:
a) Complete and/or record on ACSIS:
i. Assessment reports;
ii. Care plans;
iii. Written recommendations following the hoisting assessment;
b) Record on ACSIS confirmation of having organised and/or conducted a follow-up visit to the service user for a hoisting assessment;

4. In relation to Case 4, you did not maintain an adequate case file, in that you did not complete and/or record on ACSIS:
a) Case notes;
b) Contacts with the service user and/or carers;
c) Actions;
d) Letters;
e) Assessment reports;
f) Care plans;

5. In relation to Case 5:
a) You did not maintain an adequate case file, in that you did not complete and/or record on
ACSIS:
i. Assessment reports;
ii. Care plans;
b) You did not arrange and/or record making arrangements for a therapist to visit the
service user

6. In relation to Case 6:
a) You did not maintain an adequate case file, in that you did not complete and/or record on
ACSIS:
i. Your visit to the service user on an unknown date;
ii. Case notes;
iii. Contacts with the service user and/or carers;
iv. Actions;
v. Letters;
vi. Assessment reports;
vii. Care plans;
b) You did not conduct an assessment of the service user in relation to accessing the property and toileting;
c) You did not order the recommended equipment;

7. In relation to Case 7, you did not maintain an adequate case file, in that you did not:
a) Complete and/or record on ACSIS:
i. Contacts with the service user and/or carers;
ii. Actions;
iii. Letters;
iv. Assessment reports;
v. Care plans;
b) Record on ACSIS confirmation of having organised and/or conducted a visit to the service user on 23 October 2015;

8. In relation to Case 8, you did not maintain an adequate case file, in that you did not complete and/or record on ACSIS:
a) Case notes;
b) Contacts with the service user and/or carers;
c) Actions;
d) Letters;
e) Assessment reports;
f) Care plans:

9. In relation to Case 9, you did not maintain an adequate case file, in that you did not complete and/or record on ACSIS:
a) Case notes;
b) Contacts with the service user and/or carers;
c) Actions;
d) Letters;
e) Assessment reports;
f) Care plans;

10. In relation to Case 10, you did not maintain an adequate case file, in that you did not
complete and/or record on ACSIS:
a) Case notes;
b) Contacts with the service user and/or carers;
c) Actions;
d) Letters;
e) Assessment reports;
f) Care plans;

11. In relation to Case 11, you did not maintain an adequate case file, in that you did not complete and/or record on ACSIS:
a) Case notes;
b) Contacts with the service user and/or carers;
c) Actions;
d) Letters;
e) Assessment reports;
f) Care plans;

12. In relation to Case 12, you did not provide the service user's family with recommendations in relation to equipment;

13. Your actions described at particulars 1 to 12 constitute misconduct and/or lack of competence;

14. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.

Finding

Preliminary Matters

Service and Proceeding in Absence
1. The Panel was satisfied that the letter dated 27 March 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 this hearing.

2. Miss Mitchell-Dunn applied for the case to proceed in the absence of the Registrant. She referred the Panel to the representations the Registrant had previously made to the HCPC, in a letter of 13 May 2016. There had been no contact with the Registrant since then. She submitted the Registrant had chosen not to attend the hearing and that in the circumstances it was in the public interest for the hearing to take place. She referred the Panel to the HCPC Practice Note on Proceeding in Absence and the need to consider the public interest.

3. The Panel considered that good service had been carried out and that reasonable steps to contact the Registrant had been made. It took the advice of the Legal Assessor who referred it to the HCPC Practice Note on Proceeding in Absence and to the case of GMC v Adeogba [2016] EWCA Civ 162 and the guidance on balancing fairness to the Registrant with fairness to the HCPC and the public interest.  There has been no further communication from the Registrant since 13 May 2016 and there has been no application to adjourn. The Panel concluded that the Registrant had chosen not to attend.  There was a public interest in proceeding.  A witness was present and ready to proceed. The Panel was satisfied that the Registrant has chosen not to engage with these proceedings although she is aware of them.  In all the circumstances it decided to proceed in the absence of the Registrant.

Application to amend the Allegation

4. Miss Mitchell-Dunn sought amendment to the allegation. She explained that the amendment to Particular 5 b) was required to more properly reflect the evidence and make the allegation clearer.  Particular 12 was similar, the amendment sought was to provide more detail and more accurately reflect the evidence. These proposed amendments were sent to the Registrant by letter on 12 October 2016 and she submitted they were not prejudicial to the Registrant.  The Registrant had not responded.

5. The Panel took advice from the Legal Assessor. He advised that the Panel has discretion to allow amendments but 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 whether they alter the nature or gravity of the allegation. The Panel should at all times be mindful of the public interest.

6. The Panel considered that the amendments could be made as they did not materially alter the nature or gravity of the allegation. The Registrant had been aware of the proposed changes since October 2016 and had not objected. The amendments properly and fairly clarified the particulars of the allegation and the evidence, and did not give rise to unfairness to the Registrant. The Panel accordingly allowed the application to amend. 

Background

7. The Registrant was an Occupational Therapist (“OT”) who worked for Hertfordshire County Council (“the Council”) from 5 August 2015 to 30 October 2015 as a locum. It is alleged that the Registrant failed to adequately complete and record matters in twelve case files. Miss Mitchel-Dunn supplied the Panel with an opening submission and a time line document.

8. Miss Mitchell-Dunn told the Panel that the Registrant had previously commented on the allegations and appeared to admit parts of the allegation. The Panel were mindful that it was for the Panel to decide on the facts on the basis of the evidence heard and it would consider matters once the HCPC had closed its case on the facts.

The HCPC Witnesses

Witness 1 - SP

9. Witness 1 took the oath and was referred to his Witness Statement which he confirmed was signed by him and formally adopted as his evidence. He is a registered OT and the Deputy Team Manager in the Health and Community Service Team at Hertfordshire County Council. 

10. The Witness explained that he allocates and manages cases along with the managers of the service. He confirmed that he usually audits cases before an OT leaves the service to ensure Service Users are properly looked after. He audited the Registrant’s cases and he referred to each of the cases in the allegation in his Witness Statement.

11. The Witness clarified that his audit was started on 16 November 2015 (not 2016) and completed on 10 February 2016. Paragraph 14 of his Witness Statement ought to say 7 August 2015 (line 2) not 1 August 2015, as stated in his audit report. At paragraph 66 of his Witness Statement the reference to 2016 should be 2015 and he confirmed that all references in the audit report to 2016 should read 2015.

12. The Witness explained to the Panel that he and the managers allocate cases to members of the team in the way that makes best use of their skills and specialities and the needs of Service Users. He had used an audit tool to check the Registrant’s cases. A case is allocated to an OT by placing it in their electronic in-tray or by telephone in urgent cases. The Registrant’s case load was similar to other OTs in the team. Case notes are important to record the time line, contact made, outcome and the next step, such as a referral.  The Witness explained that the case notes required to be accurate both for the Service Users care and for the health and safety of members of the team.  He explained that the case file system, ACSIS, also recorded who had looked at the case and when, and the e-mails received. The auditing tool recorded the date the OT had accessed files and these were the dates that appeared in his audit report.

13. The Witness said all the dates in his Witness Statements came from the ACSIS computer system. He explained that OTs worked alone and as their work is not checked, if they fail to record matters properly no one will know what work has been done for the Service User and that could place Service Users at risk of harm.

14. In respect of cases 1 and 2 in the allegation, the Witness explained that Service Users were placed at risk if case notes were not completed and it also placed the OTs at risk. In urgent cases contact and assessment would be expected to be done within the week of referral. If this was not done it could undermine trust in the profession. Actions included referrals to other agencies and ordering specialised equipment. Letters would often include manual handing recommendations sent to the Care Home and to the Service User. Simple assessment reports could be very brief and could be done quickly depending on access to the recording system. That may take a few days if the OT is working away from base. It was expected that assessment reports would be completed within 28 days. Not completing records could place the Service User at risk as the right equipment may not be provided or adapted, or the correct training given.

15. In respect of case 3, on the timing for assessments, the Witness stated that the assessment should be done within the week of referral, given the level of risk.  There was no care plan and no recommendation in the records to indicate what work and what assessment was done by the Registrant.  Written guidance in the notes was required to avoid misunderstandings by carers who worked with the Service User. A follow up visit was necessary to ensure carers and family were properly advised on use of the hoist but there was no record of this having been or conducted by the Registrant.

16. The Witness said case 4 was allocated to the Registrant on 1 September 2015 and the Registrant did not record any notes, contacts, actions, letters, document, assessments or care plans before the case was reallocated on 7 September 2015. On case 5, there was a need for contact but only one case note.  He said that follow up visits ought to have been arranged for a Service User who was too unwell for hoisting.

17. On case 6, the Witness said he attended the Service User during his audit whilst shadowing another OT. The Registrant had not assessed the Service User on property access and toileting and there were risks for the Service User if such assessments were not in place. Major adaptations to the property were later carried out for the Service User who had complained about the OT service provided by the Registrant.

18. The Witness said that, in his assessment, case 7 was high risk. He said that no full assessment had been recorded and a follow up visit had been arranged but there were no records. This placed the Service User at risk as manual handling was being provided by an untrained family member. Case 8 was also in his opinion high risk as nothing had been recorded by the Registrant on the manual handling required by carers. Case 9 again presented a risk to the Service User as there were no care plans and the Service User had a pressure sore which could be aggravated by hoisting, in his judgment.

19. Case 10 was high risk as the Service User was mobilising on stairs.  He said action should have been taken by the Registrant as soon as possible, at least to discuss the issues with carers. Contact should have been made by the Registrant on the day of referral, or the next day. Case 11 did not consent to use of a hoist, which was a risk to both carers and Service Users. The Witness found no evidence of the Registrant recording any contact, case notes, actions or letters. The Witness said that the Registrant should at least have spoken to the Service User and carers to discuss the options to manage risks.  Taking no action risked harm to the Service User.

20. On Case 12, after allocation to the Registrant there had been no recommendations to the family regarding the required seat despite promising to do so. The Witness explained the equipment would likely require measurements. Whilst the Registrant had been sourcing the equipment she did not appear to have made any recommendations to the family.

21. The Witness explained that the ACSIS computer system was not integrated with the health service system. He did not know what training locum OTs received but there was support by telephone and a liaison officer for the system in the office. OTs did get training on ordering equipment and locums were able to ask colleagues for assistance. He did not know what the arrangements for induction were for locums. He said the risk levels were identified before cases were given to OTs. He understood that this Registrant was hired to deal with the back log and high risk cases. He said that in his audit report the risk assessment was his, based upon the risk assessment in the case notes plus he would also triage the case.

22. Regarding ordering equipment, the Witness was asked to comment on the Registrant’s comments in her letter on 13 May 2016 which stated that ‘‘before I could order equipment I had to wait for a training date to receive login details, this did not take place until October.’’ He said you could send an email as well as order direct, it was a flexible system.  Other OTs could also order equipment for you. He explained the ACSIS on-line training the Registrant received covered only basic online training, but there was admin support officer whom the Registrant sat near to in the office. He said there was always support available from colleagues.

23. The Witness said that locums were supervised but it was difficult as they worked away and he did not know what supervision the Registrant received as locums were all on different contracts.  When triaging the audit report, the Witness said he did not know when the Registrant was on sick leave or not. He said locums had different arrangements on the recording of sickness or annual leave. The Witness did not know about the Registrant’s sick leave and never spoke to her.  He did not know about her personal circumstances. The Witness said the biggest problem was where people had been promised services that were not provided by the Registrant.

24.  On case 4 the Witness said he expected contact and accepted that the time scale was very short for actions to be taken. He would not expect letters in that time. On assessments, he said you could rely upon the hospital OT. On case 6, the Witness said he got the information from the referral document (which was not in the bundle before the Panel) which made it clear all these assessments were required. He had also spoken to the Service User. He said his opinion was that the need for these assessments would have been clear to the Registrant.

25. Cases 10 and 11 were allocated to the Registrant on the 27 and 26 October 2015 shortly before she was due to leave the service. The witness said he did not know when the Registrant had left the service. If an OT was leaving he would expect a hand over. If the OT left a few days later, the Witness said he would not expect to see case notes or care plans.  If it was a high risk case, he would expect contact within two days.  He said care plans were the end of the process and assessment should follow triaging after the initial contact. The guidelines for assessment was 28 days but it would depend on the risks identified.  

Witness 2 - AR

26. The Witness was referred to her Witness Statement which she confirmed was signed by her and was formally adopted as her evidence. The Witness is Deputy Head of Service for the East and North Hertfordshire Area Team at the Council and is a registered OT.  She said that she employed the Registrant as a locum in 2015 who was supplied through an agency, on a three month contract. The agency do the required checks. She decided unusually to act as the Registrant’s Line Manager as the Registrant would be working across the teams. The Registrant’s role was to work with complex cases, and she understood the Registrant to have worked both in the community and hospital, working with older people and those with dementia. The Registrant appeared to have the knowledge and experience required to fulfil that role but they knew that the Registrant had not worked on ACSIS before.

27. The Witness said all staff were required to complete both online and a one day IT training course which she said the Registrant did. This would appear to be disputed by the Registrant according to her letter. There is also a full time information quality person who is available to support staff. Responding to the Registrant’s issues regarding training and support, the Witness said the Registrant had access to peers, colleagues and the information quality staff member. She recalled the Registrant only once asking for support regarding ACSIS, and she did not detail her problem.  

28. The Witness explained that OT case load was arranged through team meetings allocating cases based on risk, need and urgency.  Allocation is made to keep Service Users safe from risk of harm. Cases are triaged and managers allocate based on the OT’s experience and skills. The Registrant was allocated higher risk cases due to her experience. On closing cases, the Witness explained that as the Registrant worked across the whole geographical area, closing was done by reallocating the case to a manager who would check and approve the closure. It was the Registrant’s responsibility to manage that. The Witness did not recall the Registrant ever raising that issue with her.

29. Regarding the ordering of equipment, the Witness said the Registrant had never raised the issue of a delay in training and obtaining login details. If she had, the Witness would have expedited training.

30. With regards to supervision, the Witness explained that she had tried to meet with the Registrant several times but she was difficult to locate and was absent for a period. The Witness had met her only once. According to the Registrant, ‘‘I received 1 supervision at the beginning of my placement. I raised concerns and asked for advice from [Witness 2] when she was available and was always directed to another person.’’ The Witness acknowledged that as a Senior Manager she was busy.

31. The Registrant took annual leave on 30 August 2015 and did not return to work until 7 October 2015 due to a series of personal events.

32. On her return to work the Registrant said she needed help on ACSIS. The Witness said that during October and the early part of November 2015 the Registrant was working and was accepting allocations but there were issues with outstanding assessments from the Registrant that were failing to meet the 28 day target. The Registrant was not responding to emails from the Witness. The Registrant did respond by email on 15 October 2015 to say she was working at a care home in the community. The Witness stated that staff were trusted to get the work done, were not micro-managed and worked flexibly.

33. The Witness said on 12 November 2015 the Registrant emailed to say she was now working for Luton Council but could still do some days for Hertfordshire Council. The Witness had not been made aware of the Registrant’s seeking other employment and it was unusual not to be kept informed about the status of the locum’s contract. As a locum, the Registrant’s contract would have been reviewed in the early part of October and the Witness said she had wanted to discuss matters with the Registrant before making a decision. She did not get that opportunity. The Witness said that until 12 November 2015 she understood that the Registrant was still at work and was accepting case allocations. The case allocations on 26 and 27 October 2015 were properly made. The Registrant had a fairly low caseload for a fulltime OT. 

34. The Witness said the Council had stopped paying the Registrant in October. She said she did not hear from the Registrant, there was no handover of the case load and her electronic diary was empty. She was not clear where the Registrant actually was in the week of 9 November 2015. The contract was terminated on 12 November 2015. However, the Registrant states in her letter ‘‘when I left my role this was due to confusion over payment over several weeks but I was happy to meet with a staff member and summarise all outstanding cases but contact was never made.’’

35. On the Registrant’s departure an audit of her cases was done, that was normal procedure. Service Users and carers were potentially at risk and all the Registrant’s cases needed to be reviewed.

36. In response to Panel questions, the Witness explained that allocations were monitored by managers at the weekly meetings, no more than 3 were allocated per week. At the end of the contract there were 21 active cases and the audit disclosed that 9 of the cases were acceptable, and these do not form part of the HCPC referral.

37. On case 4 the Witness said that the allocation on 1 September 2015 should not have happened as the Registrant was on annual leave on that date. The managers did not monitor the Registrant’s case load during her absence.  On training the Witness said that the ACSIS system was not complicated and the Registrant had said she had IT experience but accepted the ACSIS system was not always easy. She said that other locums had coped. On the equipment ordering issue, the Witness said that the lack of training until October 2015 would have affected the Registrant’s ability to place orders but she would have expected the Registrant to have raised the issue.

38. The Witness said she had expectations of the Registrant, but with hindsight she accepted she had not had the time to give the Registrant and probably ought not to have sought to line manager her. She felt the Registrant had every opportunity to meet with her. She explained that the timesheets are submitted by the worker and signed off by a team manager.  If they are not signed off they will not be paid by the agency.  The Registrant’s time sheets were signed off until it became unclear  where she was but the Witness could not recall when exactly that was.

39. The Witness said that she had not been aware of the personal circumstances of the Registrant, and had she known she would have offered support.

40. The Witness said the Registrant’s three month contract would have ended on the 5 November 2015 unless reviewed and extended. It would usually be reviewed about one month before the end of the contract. The Registrant was the only OT locum at that time. The Witness said the absence of the Registrant did not raise red flags and she had provided good reasons for her absence. She said that the Registrant did not raise the issue over the ordering system but there was also a paper system and her peers could have assisted her.

41. The Witness accepted there were failings in her management of the Registrant which would have impacted on the Registrant’s performance. She said the service was supportive and the Registrant had peers and colleagues. The locum OTs did not have a performance management scheme but there was a high expectation that locums came fully trained and could manage themselves and were trusted to do so. The Witness said she had a clear recollection that when interviewing the Registrant she had said she had previously worked as a locum and was surprised the Registrant now said she had not done so.

Closing Submissions for the HCPC 

42. Miss Mitchell-Dunn set out her closing submissions on the facts, grounds and impairment. She submitted that the evidence from witness 1 and the records in the bundle was that the Registrant had failed to provide Case notes, contacts, actions, letters or Care plans in respect of case 1, 2, and 3.  On case 4, Miss Mitchell-Dunn submitted that the case was allocated to the Registrant whilst she was on annual leave.  It was reallocated on 7 September 2015.

43. On case 5 Miss Mitchell-Dunn set out the evidence showing that the Registrant had made one case note but there was no other evidence of any steps being taken by the Registrant. In respect of case 6, a reassessment had been required due to the Registrant’s failures which are supported by the audit report and records.  On case 7, only one case note and a partial assessment was on the system and no follow up visit was arranged.  On case 8 and 9, the audit report showed that the Registrant had not completed the required records in the system. On case 10 and 11 there was no evidence the case was ever viewed by the Registrant. The evidence was that the Registrant was still working at this time and it can be assumed was paid. The Service understood that the Registrant was working until 12 November 2015. On case 12 the evidence from witness 1 supported this particular of the allegation and said the family never received the Registrant’s recommendation. 

44. Miss Mitchell-Dunn reminded the Panel that the Registrant was employed as an experienced OT and witness 2 spoke to the training given and the level of experience expected of a locum OT. Both witnesses said there was support from peers and colleagues to assist the Registrant on the ACSIS system and ordering of equipment. The Registrant was able to raise concerns but did not do so until she raised the issue with ACSIS in October 2015.  

45. Miss Mitchell-Dunn submitted that the Registrant had breached the HCPC Standards of conduct performance and ethics 1,3,7,10 and 13, and 1,2,3,4,8,9,10 and 12 of the HCPC Standard of proficiency for OTs. She submitted that the Registrant’s failure to take action had placed vulnerable Service Users at risk. She said the Panel was required to consider both questions of lack of competence and misconduct and she referred to the authorities on those issues. On impairment the Panel was referred to the HCPTS Practice Note on Impairment and reminded the Panel that it has no evidence on the Registrant’s insight, her current position or practice, or what steps she may have taken to remediate her practice.

46. The Legal Assessor reminded the Panel that when considering the facts the standard of proof was on the balance of probabilities and that the Panel needed to assess and weigh all the evidence carefully. He reminded it of the definition of misconduct in Roylance v GMC (No. 2) [2000] 1 AC 311 and the guidance in Holton v GMC [2006] EWHC 2960 on lack of competence. It needed to be satisfied that the evidence presented was a fair and reasonable sample of the Registrant’s work. On impairment, he reminded the Panel of the guidance in the HCPTS Practice Note on Impairment and in CHRE v NMC and Grant [2011] EWHC 927 (Admin). He reminded the Panel of the central importance of the public interest. 

Decision on Facts
47. 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, misconduct 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. It was satisfied that the witnesses it heard from did their best to recall events and sought to assist the Panel. It found both witnesses credible and reliable.

48. Witness 1 was helpful and honest. The Panel noted that the witness appeared to have triaged the Registrant’s cases after her departure and made his own professional assessment of the needs of Service Users. Witness 2 was credible and honest. She assisted the Panel and reflected fairly on her management and the mitigating circumstances of the Registrant.

49. The Panel noted the terms of the Registrant’s letter of 13 May 2015.  She makes an admission that “some forms and contact have not been recorded” but states she maintained continuous contact with all Service Users. This is noted but, notwithstanding, the Panel has carefully considered all the evidence on these issues. The Panel was mindful that the Registrant was absent and not represented and it put her case, such as it is, to both witnesses, particularly on the issues of lack of training and support.

50. The Panel also noted that the case file notes in the exhibit bundle were inconclusive as they did not include referrals and apart from telephone and diary notes there was no reference to the Registrant. Accordingly, the documentary evidence relied on by the HCPC was the triage report prepared by Witness 1 which was not an investigation report.
 
51. The Panel noted the terms of the allegation which spans the period of the Registrant’s employment as a locum from 5 August 2015 to 30 October 2015.  It made the following findings on the facts:-

Particular 1 Case 1 – Proved in part

Case 1 was allocated on 6 August 2015. The Panel noted the evidence of witness 1 and his audit report and other documents in the bundle.  It did not see the Service User referral documents relied upon by the witness. The case was triaged before allocation to the Registrant and the evidence was that it was a complex, high risk case requiring an urgent assessment of the Service User. 
1 (a) Proved – There was no evidence of case notes. 
1 (b) Proved - There was no evidence of contact with the Service Users or carers.
1 (c) Not Proved – There was no evidence that any actions were required in this case, such as a referral to other services. Accordingly, the lack of completing or recording actions does not amount to an inadequate case file.
1 (d) Not Proved – Witness 1 said letters would be expected in cases.  However, there was no evidence that any letters were required in this particular case and no evidence on what letters would have been appropriate. The absence of letters does not amount to an inadequate case file.
1 (e) Proved – There was no evidence of an assessment report having been completed or recorded despite the file being accessed by the Registrant several times and the evidence was that an assessment report was required. 
1 (f) Proved –  A care plan was not recorded. A care plan is completed after the assessment report and is the document that summarises everything that has been done, and sets out what equipment and support has been provided.

In all the circumstances that Panel find that the lack of case notes, contacts, assessment reports and a care plan amounts to an inadequate case file.

Particular 2  Case 2 -  Proved in part
Case 2 was allocated 10 August 2015. The evidence was that the Service User had dementia and had deteriorated. 
2 (a) Proved - There was no evidence that there were any case notes.
2 (b) Proved – There was no evidence of contacts being completed or recorded.
2 (c) Not Proved – There was no evidence of actions being required in this particular case. Accordingly, the lack of completing or recording actions does not amount to an inadequate case file.
2 (d) Not Proved – There was no evidence of letters being required in this particular case. The absence of letters does not amount to an inadequate case file.
2 (e) Proved – The assessment report was not provided despite the file being accessed by the Registrant. An assessment report was required. 
2 (f) Proved – A care plan was not recorded and would have been expected in this case.

In all the circumstances the Panel find that the lack of case notes, contacts, assessment reports and a care plan amounts to an inadequate case file.

Particular 3 Case 3 - Proved
Case 3 was allocated on 18 August 2015. The Service User’s carer asked for moving and handling support and advice.  Assessment for a hoist was required as was a review of the equipment to meet the Service User’s needs. The previous OT had left a month before.
3 a) (i), ii) & iii) Proved There was some evidence in the diary records of a home visit, verbal advice to the carer and a hoisting assessment.  The evidence is that the hoist was in place on 16 October 2015. It appears the work had been carried out by the Registrant. However, there was no evidence on ACSIS of a written assessment, care plan or written recommendations following the hoisting assessment.
b) Proved There is evidence of a follow up visit having been organised and conducted, but this is not recorded in ACSIS. 

The lack of recording and completing of these steps on ACSIS amounts to an inadequate case file.

Particular 4 Case 4 - Not Proved
The evidence from witness 2 was that it was an error to allocate this case to the Registrant who was on annual leave on 1 September 2015 and in fact the case was reallocated to another OT six days later. Whilst there was no evidence that 4a) to 4f) had been completed or recorded it was accepted by both witnesses that this case was allocated to the Registrant in error.  Accordingly, the Registrant was not responsible for completing these tasks.

Particular 5 Case 5 – Proved in part 
This case was allocated on 8 October 2015. The Panel noted the allegation spans the period to 30 October 2015 and the evidence from witness 1 was that the expected timescale for assessments to be completed was 28 days.
5 a) i) & ii) Not Proved The Panel noted that witness 1 found one case note and that the Service User was assessed but there was no assessment report or care plan from the Registrant. However, the allegation is confined to the period to 30 October 2015. Accordingly, the Panel determined that the Registrant’s failure to complete or record an assessment report or care plan between allocation of the case on 8 October and 30 October 2015 is not, in the time scale expected by the Council, an inadequate case file.
5 b) Proved The Panel understand from Witness 1 that the reference to a “therapist” in this particular is a reference to the Registrant. Witness 1 said he triaged the case and would have expected the Registrant to make another visit a week later. There was no evidence of that being arranged or recorded by the Registrant. Whilst the Panel note that the records before it do not set out any recommendation for a further visit, or of a visit being organised, it accepts the evidence of witness 1 in that regard.

Particular 6 Case 6 – Proved in part
This case was allocated on 12 October 2015.  The Panel noted that the evidence of witness 1 was that his triage of this case required an assessment for transfer, toileting and access to the property.  This is not supported by the very limited documents before it on case 6 which consist of, in essence, one line on one page which does not record any need for assessment for access or toileting.
Witness 1 said he spoke to the Service User when he did the audit report and they told him they recalled an assessment by the Registrant for transfers only. The Panel do not have the original referral and do not know what assessments were required when the Registrant was allocated this case. 
6 a) i) Not Proved The evidence of Witness 1 was based on a telephone call to the Service User when doing the audit report after the event. He reported that the Service User said they were visited by the Registrant. This is hearsay evidence which could not be tested. The Panel determined that his evidence was not of sufficient weight and cogency, on its own, to support this particular.
6 a ) ii) & iii) Proved There were no notes or evidence of case notes and the Panel accepted the evidence of witness 1 who could find no case notes or contacts which would have been expected. Accordingly, the Panel found that the Registrant did not maintain an adequate case file in relation to this factual particular.
6 a) iv) & v) Not Proved There was no evidence any actions or letters on ACSIS but no evidence that any such steps were required or appropriate. The Panel determined that the lack of such steps does not amount to an inadequate case file.
6 a) vi) & vii) Not Proved Given the evidence that a 28 day time scale was applicable to Assessment reports and Care plans, the lack of such did not amount to an inadequate case file.
6 b) Not Proved There was no evidence that these assessments were in the referral, which the Panel have not seen.  Witness 1 said, having triaged the case after the event for his audit report, that he would have carried out these assessments. However, that is not evidence that the Registrant was required to do them at the time.  The Panel note that the OT who took over the case recommended only chair risers and there is no mention of assessment for toileting or property access.
6 c). Not Proved The evidence was not clear on what was to be ordered and when, if at all.

Particular 7 Case 7 – Proved in part
This case was allocated on 12 October 2015. The evidence was that this was a high risk case and one visit was conducted by the Registrant.
7 a) i) Not Proved There was evidence of a diary record of contact being made with the Service Use, a home visit and a partial assessment being done by the Registrant. Witness 1 said there was one case note on the first visit and this is on ACSIS, and as such, this did amount to an adequate case file.
7 a) ii) & iii) Not Proved There was no evidence that actions or letters were required or appropriate at this stage. The Panel therefore determined this did not amount to an inadequate case file.
7 a) iv) & v) Not Proved A 28 day time scale applied to the completion of Assessment reports and Care plans and the evidence was that the Registrant was still in the process of assessing during the period 12 to 30 October 2015.  
7 b) Proved (in part) The evidence in the file notes and from Witness 1 was that the Registrant planned to visit on 23 October 2015 and so had organised but had not conducted the visit.

Particular 8  Case 8 – Proved in part
This case was allocated on 19 October 2015.
8 a) & b) Proved There is no evidence of case notes or contacts on ACSIS and Witness 1’s evidence, which was accepted, was that these were required.
8 c) & d) Not Proved There was no evidence of actions or letters however, there was no evidence they were required or appropriate at this stage. The Panel determined this did not amount to an inadequate case file.
8 e) & f) Not  Proved – Given the evidence that a 28 day time scale applied to Assessment reports and Care plans, these were not required to be done between 19 and 30 October 2015 and this did not amount to an inadequate case file.

In all the circumstances the lack of case notes and contacts did amount to in inadequate case file.

Particular 9  Case 9 - Proved in part
This case was allocated on 19 October 2015
9 a) & b) Proved There was no evidence of case notes or contacts on ACSIS and again the Panel accepted that there should have been such recording.
9 c) & d) Not Proved There was no evidence of actions or letters however, there was no evidence they were required or appropriate at this stage. The Panel determined this did not amount to an inadequate case file.
9 e) & f) Not  Proved – Given the evidence that a 28 day time scale applied to Assessment reports and Care plans, these were not required to be done between 19 and 30 October 2015 and this did not amount to an inadequate case file.

In all the circumstances the lack of case notes and contacts did amount to in inadequate case file.

Particular 10 a) - f)  Case 10 Not Proved
This case was allocated on 27 October 2015. The allegation covers the period to 30 October 2015. Witness 2 said the Registrant was still working at this date and had responsibility to carry out the work. This was a high risk case, as assessed by Witness 1, given the Service User’s decreased mobility. Witness 1 stated that it would be expected that case notes would be commenced within 7 days. The Panel noted the time period of 4 days between allocation and the end of the period covered by the allegation. The evidence from witness 2 was that the Registrant’s 3 month locum contract had not been reviewed or renewed, and had not been discussed with the Registrant.
Bearing in mind the limited time period in this case, the Panel determined that the HCPC had failed to prove that the lack of completed and recorded  case notes, contacts, actions, letters, Assessments reports and Care plans on ACSIS amounted to the Registrant maintaining an inadequate case file.
Particular 11 a) – f) Case 11 - Not Proved

Case 11 was allocated on 26 October, five days before the end of the period the allegation, 30 October 2015.
11 a) – f) For the same reasons as in case 10, the Panel determined that the HCPC had failed to prove that the lack of recording and completion on ACSIS amounted to the Registrant maintaining an inadequate case file.

Particular 12 – Case 12 Proved
This case was allocated on 6 August 2015 and the Service User was contacted by the Registrant the next day and visited on 10 August 2015.  The evidence in the case notes was that the issue was outstanding when the Registrant left the Council and was awaiting a reassessment. The evidence was that the Registrant did not provide the Service User’s family with recommendations in relation to the equipment, despite evidence of the Registrant chasing up specifications of the equipment from the suppliers.

Decision on Grounds

52. The Panel accepted the Legal Assessor’s advice and carefully considered Miss Mitchell-Dunn’s written submissions and the evidence.  It was mindful of the advice in the Roylance and Holton case and exercised it’s own professional judgement in assessing the issues of lack of competence and misconduct.

53. The Panel carefully considered the HCPC Standards of Proficiency for Occupational Therapists. On the basis of its findings of fact the Panel has determined that the following standards were breached by the Registrant:-

2.8 be able to exercise a professional duty of care

4.2 be able to make reasoned decisions to initiate, continue, modify or cease treatment or the use of techniques or procedures, and record the decisions and reasoning appropriately.

4.4 recognise that they are personally responsible for and must be able to justify their decisions

4.5 be able to make and receive appropriate referrals

9.10 be able to work in appropriate partnership with service users in order to evaluate the effectiveness of occupational therapy intervention

54. On the HCPC Standards of conduct, performance and ethics, the Panel determined that in light of its findings of fact the Registrant has breached standards 1, 7 and 10.

55. Standard 1 states - “You must act in the best interests of service users.  You must protect service users if you believe that any situation puts them in danger…You are responsible for your professional conduct, any care or advice you provide, and any failure to act”. In failing to record actions and decisions the Registrant breached this standard and placed services users and carers at risk of harm.

56. Standard 7 states “You must communicate properly and effectively with service users and other practitioners.” In failing to record actions and decisions and maintain adequate records, the Registrant breached this standard. 

57. Standard 10 states “You must keep accurate records.”  The Registrant clearly breached this standard. These standards are core and central to safe, professional conduct and practice. 

Lack of Competence

58. The Panel heard evidence from Witness 1 that there were no concerns with the Registrant’s closed cases.  Of those triaged and audited by Witness 1, 9 out of 21 were adequate. The remaining 12 cases form this allegation. The Panel have found three of these cases not proved in their entirety and others only part proved.

59. From the evidence before it the Panel infer that the Registrant was able to maintain adequate case files. The Panel has heard no evidence about the Registrant’s total case load.  It did hear that OTs were given no more than 3 new cases per week but heard nothing of the case load given to the Registrant when she commenced work for the Council.  As such the Panel is unable to determine whether the evidence before it represents a fair sample of the Registrant’s work.

60. The Panel cannot be satisfied that the allegation represents a fair sample of the Registrant’s work and finds the Registrant was able to competently deal with other cases. In light of this evidence, the Panel do not find that the facts proved amounted to a lack of competence.

Misconduct

61. The Panel were mindful of the guidance in the Roylance case as to misconduct. The Panel considered the Registrant’s letter of 13 May 2016 in which she states:-

“I would agree that some forms and contact have not been recorded on Hertfordshire systems due to lack of training and support which is a breach of my professional conduct….I absolutely agree I have not met the principles of our code of practice..”

62. The Panel has found the Registrant breached significant parts of both HCPC Standards and the Standards of Proficiency for Occupational Therapists. Furthermore, the Panel has found a total of 9 cases proved in part and all are in respect of vulnerable Service Users in complex and/or urgent cases. Witness 1 told the Panel that the Registrant’s actions placed Service Users, and their carers, at risk of harm. The Panel agree. By not recording actions and decisions other professionals could not see what assessments had been done for Service Users and what actions and interventions were required.
 
63. The Panel consider that the findings in respect of cases 3 and 12 are not, of themselves, serious enough to amount to misconduct.  However, in cases 1, 2, 8 and 9 there was no evidence of the recording of any interventions by the Registrant.  The Panel, and indeed the professionals, do not know what had taken place, if anything, in respect of these Service Users. This placed those Service Users at risk of harm.  It also gave rise, at least, to the possibility of delay in the provision of services and to a repetition of work by other OTs. The reputation of the profession was also undermined with evidence of complaints from Service Users. 
 
64. In all the circumstances, the Panel find that the Registrant’s actions, and inaction, fell seriously short of the standards of the Profession and of what would have been proper in the circumstances. The Panel did note that Registrant’s assertions that she lacked support and timely training but considered that, in all the circumstances, the facts found proved amount to misconduct.

Decision on Impairment

65. 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.
 
66. The Registrant has not attended this hearing and has not engaged since her letter to the HCPC of 13 May 2016, which the Panel have carefully considered. The Registrant was an experienced OT with 7 years of experience including in senior positions. She would have been well aware of the risks and the impact on vulnerable Service Users of not recording her actions and decisions. The Panel consider that the Registrant has displayed a reckless disregard for the risks inherent in her failing to record her actions and decisions in respect Service Users. The Registrant in her letter to the HCPC states that “Nothing is more important than the service users we care for….I apologise for the inconvenience this has caused..” To that extent the Registrant displays some insight and remorse. 

67. The Registrant’s failing are remediable, but the Panel had no evidence of any steps taken by the Registrant to address her failings. She is responsible for her own, autonomous practice. There is no evidence that she has addressed her underlying failings which are not just to adequately record, but to ensure she receives adequate training and effectively raises any concerns with management, that impact on her ability to perform her role. She failed to pro-actively deal with the issues she identified.

68. The Panel has no evidence of the Registrant’s current circumstances. It has only her letter of May 2016. In that letter she states she is not working as an OT and does not intend to do so again. Her position could change. The Panel has very limited evidence of insight and no evidence of any remediation. In those circumstances it has reached the view that the Registrant continues to pose a risk of repetition and is currently impaired.

69. A well informed member of the public would, given the findings of misconduct, be rightly concerned as to the Registrant’s practice. The Panel consider that a finding of impairment is also necessary on wider public interest grounds in order to protect members of the public, to uphold proper standards and to protect the reputation of the profession and the regulator.

70. Therefore, although the misconduct found proved could be remedied by the Registrant providing she properly reflects on her behaviour, showing insight into the seriousness of it and how she could ensure it would not be repeated, there is no evidence before the Panel that she has remedied it or developed sufficient insight. Consequently, the Panel cannot be satisfied that it will not be repeated. Without such insight, remorse and remediation, the Panel is satisfied that on both the personal and public component of impairment, the Registrant is currently impaired.

Submissions on Sanction:

71. The Panel heard from Miss Mitchell-Dunn who referred it to the HCPC’s new Indicative Sanctions Policy (“ISP”). She reminded the Panel that the primary function of sanction is to protect the public.  The Panel should also give weight to the wider public interest, including the deterrent effect of sanction and the protection of the reputation of the profession and the regulator.  

72. Miss Mitchell-Dunn submitted that the aggravating factors in this case were the risks to vulnerable service users with complex needs, a breakdown in the relationship between the employer and Service Users, the breach of fundamental tenets of the profession, the risk of repetition and the Panel’s finding of the Registrant’s reckless disregard of the risks of failing to record her actions. She submitted that a Caution Order or Conditions of Practice Order would not be appropriate in this case and that a Suspension Order may be the most appropriate sanction.

73. The Legal Assessor referred the Panel to the HCPC Indicative Sanctions Policy and reminded it to act proportionately, balancing the public interest with the Registrant’s own interests. He advised the Panel to consider sanction in ascending order and to apply the least restrictive sanction necessary to protect the public. It should also consider any aggravating and mitigating factors and bear in mind the public interest and that the primary purpose of sanction was protection of the public. 

Decision on Sanction

74. The Panel were mindful that the primary purpose of sanction was not to be punitive, but rather, to protect the public and that it must act proportionately. It was also mindful of the need to protect the wider public interest, including upholding confidence in, and the reputation of, the profession and the regulator, and the need to maintain proper standards.

Mitigating and Aggravating Factors
75. The Panel first identified what it considered to be the principal mitigating and aggravating factors in this case. The mitigating factors identified are:-
• The misconduct covers a period of 3 months (of which the Registrant only worked for two months) in a 7 year career.
• The Registrant has not previously come to the attention of the HCPC.
• The failures related to a limited number of cases where there was no clear evidence of the overall case load handled by the Registrant.
• An acknowledged lack of adequate management supervision and an inappropriate reporting and support structure.
• A lack of sufficient and timely training on the ACSIS and equipment ordering IT systems used by the Council.
• Significant personal difficulties during this three month period resulting in one month of absence and no allowance was made for these or support provided by the Council.

76. The Panel identified the following aggravating factors:-
• The Registrant was dealing with high risk Service Users with complex needs.
• The Registrant’s reckless disregard for the risks presented by her failure to adequately record her actions.
• The damage to relationships between the employer and Service Users caused by the Registrant’s actions.
• The Registrant’s limited engagement with the HCPC.
• The Registrant’s failure at the time to take responsibility for her own practice.

77. The Panel approached the question of sanction, beginning with the least restrictive first, bearing in mind the need for proportionality. Taking no further action or mediation was not appropriate given the nature of the misconduct found.

78. The sanction of a Caution Order would not properly reflect the finding of misconduct and the lack of evidence of sufficient insight or any remediation.  There was an identified risk of repetition and returning the Registrant to unrestricted practice would not be appropriate or proportionate. This sanction would not adequately protect the public or satisfy the wider public interest in maintaining confidence in both the profession and the regulatory process.

79. The Panel next considered a Conditions of Practice Order. The Panel has no information before it as to the Registrant’s current circumstances or whether she would be able or willing to comply with conditions. The Panel cannot formulate appropriate, workable, realistic, verifiable and proportionate conditions of practice which would not in effect amount to a Suspension Order. The Panel noted paragraphs 31 and 33 of the ISP. The Registrant has not recently engaged with the HCPC and the Panel cannot be satisfied or reassured that the Registrant would comply with conditions. Consequently such an order would not be sufficient to protect the public interest, or to maintain public confidence in the profession or the Regulator.

80. The Panel next considered a Suspension Order. The Registrant has shown limited insight and there is no evidence of remediation.  The Panel has found there is a risk of repetition and the Registrant has not recently engaged with the HCPC. The Panel noted the terms of paragraph 41 of the ISP.  The Panel finds there is no evidence which would prevent the Registrant from understanding and seeking to remedy her failings and therefore a Suspension Order may be appropriate in this case.

81. The Panel carefully considered the significant mitigating factors it identified, including the limited period of the misconduct found.  The Panel has identified significant personal mitigating circumstances that it considers would have had an adverse impact on her professional performance, notwithstanding her professional accountability as an autonomous practitioner.

82. As a consequence, the Panel consider, having taken account of the factors in paragraph 42 of the ISP, that a Suspension Order for a period of six months would be appropriate and proportionate to protect the public, satisfy the wider public interest and allow the Registrant an opportunity to reflect, demonstrate full insight and remediate the failings identified.

83. The Panel suggest that at a review hearing it may be helpful for the Registrant to provide the following:-

• Her personal attendance.

• Evidence such as reflective statements, training records, references or testimonials to demonstrate that that she can effectively manage her practice and raise concerns impacting on her performance. 

• Evidence that she has developed full insight.

84. The Panel considered that a Striking Off Order would be disproportionate in all the circumstances of this case.

Order

ORDER: The Registrar is directed to suspend the name of Kerri S Clark from the Register for a period of 6 months from the date this Order comes into effect.

The order imposed today will apply from 27 July 2017.

This order will be reviewed again before its expiry on 27 January 2018. 

Right of Appeal:

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

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

European alert mechanism:

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

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

Interim Order:

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

Notes

This is a Final Hearing of the Conduct and Competence Committee which convened to hear the case of Mrs Kerri S Clark between 26 - 29 June 2017 at 405 Kennington Road, London.

Hearing history

History of Hearings for Mrs Kerri S Clark

Date Panel Hearing type Outcomes / Status
15/12/2017 Conduct and Competence Committee Final Hearing Hearing has not yet been held
26/06/2017 Conduct and Competence Committee Final Hearing Suspended