Mrs Susan M Boxall
Your fitness to practise as an Occupational Therapist is impaired by reason of your health.
1. This matter was referred to the Health Committee by the High Court following an appeal by the Professional Standards Authority for Health and Social Care [“the PSA”], against the findings made by a Conduct and Competence Committee on 3 December 2015. That Conduct and Competence Committee had considered allegations of misconduct and/or lack of competence in relation to the Registrant’s practise as an Occupational Therapist between June 2012 and October 2013. The Conduct and Competence Committee found that there was no case to answer in relation to misconduct/lack of competence or in relation to current impairment.
2. The appeal to the High Court by the PSA was resolved by a consent order by which it was ordered that the appeal be allowed and that the Conduct and Competence Committee’s decision be quashed. It was further ordered that the matter be remitted to a Health Committee for re-determination.
Decision on Facts
3. In relation to the HCPC’s case the Panel received a hearing bundle consisting of 68 pages which included a medical report dated 10 November 2016, prepared by Dr H. The Panel heard oral evidence from Dr H who had also been able to have a consultation with the Registrant immediately prior to the hearing commencing.
4. In relation to the Registrant’s case, the Panel received a bundle comprising the Registrant’s witness statement and other documents.
5. The Panel was greatly assisted by the Medical Report and oral evidence of Dr H. Dr Hayne’s medical report dated 10 November 2016, followed his consultation with the Registrant on 31 October 2016. Following his consultation with the Registrant, immediately prior to this hearing commencing, Dr Haynes was able to confirm that his diagnosis still remained the same but he was also in a position to give positive evidence about the Registrant’s continued progress and recovery since he first saw her on 31 October 2016.
6. The Panel was also greatly assisted by the Registrant’s evidence and the documents provided by her. The Panel regarded the Registrant as a credible witness, whose evidence was heartfelt and genuine.
Half time submission of no case to answer
7. At the end of the HCPC case, Mr Gorst made a submission that the HCPC had not presented evidence that the Registrant’s fitness to practise was currently impaired or alternatively that any evidence was vague or insufficient to enable the Panel to make a finding of current impairment.
8. The Panel was satisfied that there was clear evidence in the form of the medical report and Dr H’s oral evidence today that the Registrant has been diagnosed as suffering from a health condition.
9. Taken at its highest, the Panel was satisfied that it could make a finding of current impairment.
10. Accordingly, the Panel found that there was a case to answer and rejected the half time submission.
11. The Panel had regard to Dr H’s diagnosis, following his examination of the Registrant on 31 October 2016, in relation to the Registrant’s physical and/or mental health.
12. Dr H confirmed his diagnosis in his oral evidence following his consultation with the Registrant immediately prior to the hearing. At the outset of the hearing, Mr Gorst, on the Registrant’s behalf, accepted Dr Hayne’s diagnosis and indicated that his evidence was not in dispute.
13. Accordingly, the Panel was satisfied that the Registrant does have the diagnoses as set out in Schedule A and that the facts are proved.
Decision on Grounds
14. The Panel was satisfied that the Registrant’s diagnosis was in relation to her mental health and that this statutory ground has been established.
Decision on impairment
15. In considering whether the Registrant’s fitness to practise is currently impaired, the Panel had regard to the Registrant’s diagnoses, the evidence of Dr H and to the Registrant’s evidence. The Panel carefully considered the Health and Care Professions Tribunal Service Practise Note, “Finding that Fitness to Practise is impaired”. The Panel received and accepted the advice of the Legal Assessor.
16. The Practice Note contains the guidance that Panels are “concerned with the issue of whether in the light of any [statutory ground being made out], the fitness of the registrant to practise has been impaired taking account of the critically important public policy issues”.
17. Those “critically important public policy issues” which must be taken into account by Panels, were described by the court in the case of Cohen v GMC  as, “the need to protect the [service user] and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect… and that public interest includes amongst other things the protection of [service users] and maintenance of public confidence in the profession”.
18. Thus, in determining whether fitness to practise is impaired, Panels must take account of a range of issues which, in essence comprise two components: the ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and the ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.
19. In relation to the personal component, the Panel carefully considered, taking into account the nature of the Registrant’s diagnoses, the risk of relapse, which could potentially put service users at unwarranted risk of harm.
20. The Panel was satisfied from Dr Hayne’s evidence as set out in his report in which he has stated, “I consider that she was likely unfit to work, on health grounds, in 2013, but is now fit to work as an Occupational Therapist, at Band 6 or below”.
21. For all of the above reasons, the Panel concluded that on the personal component, the Registrant’s fitness to practise as an Occupational Therapist is currently impaired. In relation to the public component, the Panel was also satisfied that public confidence in the profession and the HCPC as its regulator would be undermined were the Panel to go against accepted Psychiatric opinion that a 12-month period of abstinence was required before a person could be regarded as being in sustained remission and hence highly unlikely to relapse.
22. Accordingly, the Panel found that the Registrant’s fitness to practise is currently impaired by reason of her or mental health, on both the personal and public components of impairment.
Decision on Sanction
23. The Panel considered the submissions made by Ms Ryan on behalf of the HCPC and Mr Gorst on the Registrant’s behalf. The Panel received and accepted the advice of the Legal Assessor.
24. The Panel was mindful that the purpose of any sanction was not to punish the Registrant but to protect the public and maintain public confidence in the profession and the HCPC as its regulator, by the maintenance of proper standards of conduct and behaviour.
25. The Panel had regard to the Indicative Sanctions Policy dated 22 March 2017 [“the ISP”]. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of seriousness.
26. In deciding whether to impose any sanction, the Panel had regard to paragraph 13 of the Indicative Sanctions Policy which states,
"There is a significant difference between insight and remorse. The degree of insight displayed by a registrant is central to a proper determination of whether fitness to practise is impaired and, if so, what sanction (if any) is required. The issues which the Panel need to consider include whether the registrant:
• has admitted or recognised any wrongdoing;
• has genuinely recognised his or her failings;
• has taken or is taking any appropriate remedial action;
• is likely to repeat or compound that wrongdoing.”
27. The Panel has already determined that the Registrant has demonstrated significant insight and has been pro-active in her remediation. However, the Panel concluded that, given it’s finding that it is just too early to conclude that the risk of relapse is so low that there is no public protection issue, a sanction was required both for public protection and in the public interest.
28. The Panel considered that the Registrant’s diagnoses were not of a minor nature or isolated. Accordingly, the Panel concluded that a caution order would not be appropriate and would be insufficient to protect the public.
29. The Panel next considered a Conditions of Practice Order and was satisfied that workable and practicable conditions could be formulated which would adequately protect the public.
30. In considering whether Conditions would be appropriate, the Panel also considered a Suspension Order. Whilst the Panel noted that a Suspension Order may be appropriate in some cases, it considered that such an order would be disproportionate, given that the Registrant is otherwise fit to practise.
31. Accordingly, the Panel determined to impose the following conditions of practise order for a period of six months, which is proportionate given its earlier findings.
ORDER: The Registrar is directed to annotate the Register to show that, for six months from the date that this Order comes into effect (“the Operative Date”), you, Miss Susan M Boxall, must comply with the following conditions of practice:
1. You must confine your professional practice to not working above Band 6.
2. You must cease practising immediately if you are advised to do so by any professional responsible for your treatment.
4. You must inform your General Practitioner/and any other treating specialists about these conditions of practice and authorise that person to provide the HCPC with information about your health and any treatment you are receiving.
6. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.
7. 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)
A Substantive Hearing took place in Private at Clayton Hotel Cardiff on Monday 10 July 2017 to Tuesday 11 July 2017 at 10:00am. An unredacted copy of the decision may be obtained by application to the Registrar.