Mr Gary C Elliott

: Dietitian

: DT07625

: Final Hearing

Date and Time of hearing:10:00 31/07/2017 End: 17:00 02/08/2017

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

: Conduct and Competence Committee
: Suspended

Allegation

While working at the Bridgewater Community Healthcare NHS Trust as an agency registered Dietitian between September 2011 and December 2013:

 

1. In relation to Patient 1, you:

a. Inappropriately recommended Patient 1 to:

i. Follow a low carbohydrate diet;

ii. Stop taking insulin.

b. Did not keep adequate records, in that you recorded:

i. Inadequate assessment details in the clinical notes;

ii. Insufficient clinical details to formulate a management plan.

 

2. In relation to Patient 2, you:

a. You did not inform Patient 2’s GP practice and/or record informing the practice of the

recommendation that Patient 2 should change the level of Gliclazide they were taking

b. Did not keep adequate records.

 

3. In relation to Patient 3, you:

a. Inappropriately advised Patient 3 to:

i. Follow a very low carbohydrate/energy diet, using meal replacement drinks;

ii. Stop taking Gliclazide.

b. Did not record a timeframe for the advice given at particular 3(a)i.

 

4. In relation to Patient 4, you did not keep adequate records in that you did not record:

a. An assessment of subjective and objective information;

b. A clinical rationale;

c. A dietetic planned intervention;

d. Sufficient details of review appointments.

 

5. In relation to Patient 5:

a. You did not keep adequate records, in that you did not record details of attendances with the patient on:

i. 18 April 2012;

ii. 11 October 2013.

b. On 20 December 2012, you:

i. Inappropriately recommended adjusting Patient 5’s insulin

 

6. In relation to Patient 6, you:

a. Inappropriately advised Patient 6 on 19 July 2013 to take fish oil to help pain control;

b. Did not refer and/or record referring Patient 6 to another clinician for treatment of their pain.

 

7. In relation to Patient 7, you:

a. Did not adequately complete the initial assessment template in that there is:

i. Inadequate diet history;

ii. Inadequate care plan.

b. You demonstrated poor clinical reasoning in that you discharged Patient 7 when it was not appropriate to do so.

 

8. In relation to Patient 9, you demonstrated poor clinical reasoning in discharging Patient 9 when it was not appropriate to do so in that:

a. Their diabetes education was not completed;

b. You did not provide and/or record providing advice in respect of:

i. Carbohydrate control;

ii. Insulin adjustment.

 

9. In relation to Patient 10, you:

a. inappropriately recommended Patient 10 to:

i. Have an occasional carbohydrate free meal;

ii. Use the full insulin dose.

 

While working as a registered Dietician at Burn Brae Medical Group between February 2014 and March 2015:

 

10. In relation to Patient 11, on 26 February 2014 and/or 26 March 2014 you:

(a) Did not monitor and/or record monitoring weight

(b) Gave inappropriately gave advice:

i. regarding food allergies

ii. to avoid soya and/or dairy

(c) Indicated a diagnosis of irritable bowel syndrome, when this condition had not been diagnosed by a doctor.

 

11. In relation to Patient 12, between 28 January 2014 and 25 March 2015 you:

(a) Gave inappropriate advice to follow a 5:2 diet and/or intermittent fasting.

(b) Indicated Patient 12 had a possible food allergy and/or that an elimination diet should be considered when there was no clinical indication for this.

 

12. In relation to Patient 13, between March 2014 and May 2014 you:

(a)Did not:

i. review and/or record reviewing food intake

ii. advise and/or record advising on alternative foods to replace those being recommended for exclusion

iii. monitor and/or record monitoring weight

(b) Indicated Patient 13 had a gluten sensitivity and/or recommended a gluten-free diet when there was no clinical indication for this.

 

13. In relation to Patient 14, between April 2014 and July 2014 you:

(a) Gave inappropriate advice:

i. to follow a prescriptive low sugar diet

ii. to avoid grains

(b)Indicated that:

iii. the weight problems might be caused by anxiety and/or stress hormones and/or cortisol, when there was no clinical indication for this

iv. Patient 14 had irritable bowel syndrome, when there was no diagnosis for this

condition

 

14. In relation to Patient 15, on 9 April 2014 and/or 27 August 2014 you:

a. Did not:

i. review and or record reviewing food intake

ii. advise and/or record advising on alternative foods to replace those being recommended for exclusion

iii. monitor and/or record monitoring weight

b. Gave inappropriate advice:

i. to consume a probiotic

ii. to follow a gluten free diet

c. Indicated Patient 15 had:

i. food intolerance and/or gluten sensitivity and/or cow’s milk protein allergy, when there was no clinical indication for this

ii. brain fog, which is not a recognised medical condition

 

15. In relation to Patient 16, between April 2014 and August 2014 you:

a. Gave inappropriate advice:

i. to not do any intense physical activity

ii. to follow a low carbohydrate and/or calorie restricted diet and/or use meal replacement drinks

iii. to have occasional carbohydrate free meals

b. Indicated that:

i. Patient 16 had hypoglycaemia, when there was no diagnosis and/or clinical indication for this

ii. Patient 16’s lack of weight loss suggested ‘fasting insulin still too high’, which was inappropriate

iii. Patient 16’s metabolism now oxidising fats well and in “fat adapted state”’, which was inappropriate

iv. an occasional carbohydrate-free meal will ‘keep insulin from getting out of control again’,

which was inappropriate.

 

16. In relation to Patient 17, between April 2014 and August 2014 you:

a. Gave inappropriate advice:

i. to reduce sugar intake

ii. to follow a low carbohydrate diet

iii. to increase sodium and/or salt intake

 

17. In relation to Patient 18, between February 2014 and August 2014 you:

a. Did not:

i. advise and/or record advising on alternative foods to replace those being recommended for exclusion

ii. assess and/or record assessing the diet to ensure it was nutritionally sound

iii. monitor and/or record monitoring weight

b. Gave inappropriate advice:

i. to follow a gluten free diet

ii. to follow a dairy free diet

c. Indicated that Patient 18 had brain fog, which is not a recognised medical condition

 

18. In relation to Patient 19, on 7 May 2014 you:

a. Inappropriately recorded that:

i. Patient 19 had ‘possible problems from [sic] gut disbiosis [sic] to potential for serious food allergies’, when there was no clinical indication and/or diagnoses for these conditions

ii. Patient 19’s gut inflammation was partly caused by ‘suspected gluten

sensitivity with possible cross reaction to dairy’, when these are not recognised risk factors or causes

 

19. In relation to Patient 20, on 12 March 2014 and/or 7 May 2014 you:

a. Did not assess and/or record assessing:

i. diet

ii. lifestyle

b. did not provide and/or record providing Patient 20 Patient 13 with any first line dietary advice

c. Gave inappropriate advice to consume a probiotic

 

20. In relation to Patient 21, on 21 May 2014 and/or 18 June 2014 you:

a. Did not advise and/or record advising on alternative foods to replace those being recommended for exclusion

b. Gave inappropriate advice to follow a gluten free diet

c. Gave inappropriate advice that failing to follow a gluten-free diet would cause immune cascade and inflammation

d. Indicated Patient 21 Patient 14 had:

i. irritable bowel syndrome, when there was no diagnosis for this condition

ii. brain fog, which is not a recognised medical condition

 

21. In relation to Patient 22, on 24 September 2014 you:

(a) Did not assess and/or record assessing:

i. dietary intake

ii. weight

iii. weight trend

b. Did not advise and/or record advising on alternative foods to replace those being recommended for exclusion

c. Gave inappropriate advice to follow a gluten free diet

d. Indicated that Patient 22 had ‘markers of brain inflammation (anxiety/depression/brain fog)’, which was inappropriate

 

22. The matters set out in paragraphs 1-21 constitute misconduct and/or lack of competence

 

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

 

Finding

Preliminary matters:

Service & Proceeding in the Absence of the Registrant

1.The Panel found that the Notice of Hearing was served on the Registrant’s registered address. The Registrant was sent notice of the hearing by registered post and by email.  He indicated by email on 19 November 2016 that he had received the hearing notice but would not attend or arrange legal representation.
 
2. The Panel accepted the advice of the Legal Assessor, and had regard to the HCPTS Practice Note on Proceeding in the Absence of the Registrant. It considered the criteria as outlined in the case of R v Jones [2002] UKHL 5 and decided that the Registrant had voluntarily absented himself, as he had indicated he would not attend.  An adjournment would be unlikely to secure his attendance in the future and accordingly the hearing should proceed in the absence of the Registrant. This was in the interests of justice, given the need to protect the public.  This was a hearing that dealt with matters dating back to 2011 and witnesses were in attendance.

3. Mr Walters for the HCPC clarified that amendments to the allegation, previously agreed at a hearing on 14 July 2016 had been correctly drafted in the letter to the Registrant dated 18 July 2016. In relation to Particulars 15 and 16 of the HCPC Case Summary, those amendments had not been reflected.  The Panel agreed to proceed on the basis of the amendments made in the letter to the Registrant dated 18 July 2016. 


Application to take evidence by telephone

4. Applications were made by the HCPC to allow the evidence of witnesses RS and EP to be taken by telephone.  These were granted by the Panel having regard to the interests of justice, fairness and expedition.


Background

5. The Registrant was registered with the HCPC as a Dietitian.  He was employed by Bridgewater Community Healthcare NHS Trust (BCH Trust) as an agency Dietitian between September 2011 and December 2013.  The Registrant was employed via the Maxxima Agency.

6. Concerns were raised in January 2014, by a subsequent Dietitian who had inherited the Registrant’s caseload.  Concerns were raised in respect of a number of patients in relation to the clinical advice, recommendations and practice of the Registrant, as well as his record keeping. Concerns included advice given to patients about changes to their medication and diet.

7. A review of the Registrant’s caseload was conducted by a subsequent Dietitian, RS.  There was an audit of 238 of the Registrant’s cases.   No further internal proceedings took place as the Registrant had already left the BCH Trust by the time these concerns came to light.  The matter was reported to the HCPC by BCH Trust.

8. Subsequently, the Registrant began working at Northumbria Healthcare Community Trust (NHC Trust) as an agency Dietitian. His role included working within GP practices to provide diabetes care and a general dietetics service.  The Registrant worked as a locum Dietitian at the Burn Brae Medical Group, (“Burn Brae”), in Hexham between January 2014 and March 2015.

9. After the Registrant had left his employment with NHC Trust in March 2015, concerns were raised with EP, the Team Lead. She contacted the Practice Manager of Burn Brae in August 2015 and reviewed approximately 30 patient files.  She found further areas of concern including the Registrant not recording advice given, creating diagnoses and non-proven physiological issues in records, inappropriate advice, inadequate care plans and advice being given outside the accepted scope of practice of a Dietitian.

10. The Panel heard from five witnesses who all provided witness statements and gave oral evidence - IT, the successor Locum Dietitian at BCH Trust; RS, the successor Locum Dietitian at BCH Trust ; LA, the Director of Corporate Services at BCH Trust; JL, the Clinical Manager at BCH Trust; and EP, the Diabetes Team Lead Dietitian at NHC Trust.


Decision on Facts

11. The Panel took the advice of the Legal Assessor, applied the relevant principles, and were mindful that the civil burden of proof rests on the HCPC, and that the Registrant need not prove anything. The Panel found that all the witnesses were credible, reliable, measured and consistent in their evidence. 

Particular 1(a)(i)  Proved
 
12. IT gave evidence that was consistent with her witness statement. IT explained that the recommendation to follow a low carbohydrate diet was not best practice in the first instance and was rarely maintained in the long term. She was clear that it was “clinically inappropriate” for the Registrant, “to recommend that Patient 1…  to reduce the carbohydrates in their diet,” There were concerns as to the suitability of this recommendation given the information available, as well as doubts as to long-term compliance by the patient. Accordingly, the Panel finds particular 1(a)(i) proved.  

Particular 1(a)(ii) Not Proved

13.The Panel took account of the Registrant’s entries into patient 1’s records dated 12 July 2013 and 4 October 2013.  In both entries, the Registrant advised the patient  that he would need to discuss the use of insulin in relation to a low-carbohydrate diet with the Diabetes Consultant. This was also referred to in a letter from the Registrant to the Diabetes Consultant, dated 23 October 2013.  Accordingly, the Panel finds particular 1(a)(ii) not proved.  

Particular 1(b)(i) and (ii)  Proved

14. The Panel accepted the evidence of IT who gave evidence that a discussion on alcohol consumption did not feature in the patient’s notes made by the Registrant.  Her witness statement indicated that “Whilst Patient 1 reported to be suffering from non-alcoholic fatty liver disease … it would be appropriate to talk about alcohol consumption with someone suffering from liver disease, even if that liver disease was not alcohol induced.” 

15. IT indicated that within the initial assessment, she would have expected the Registrant to record activity levels and routine test results in the patient’s records, including monitoring of their diabetes control.  IT said that even if there had been no recent tests, the Registrant should have documented that.   The Panel determined that by recording inadequate assessment details and providing insufficient clinical details to formulate a management plan, he did not keep adequate records. Accordingly, the Panel finds particulars 1(b)(i) and (ii) proved.

Particular 2(a) Proved

16. The Panel accepted IT’s evidence that Gliclazide is a medication that is used to improve diabetic control.  IT said that the Registrant indicated in the notes for patient 2 on 15 May 2012: “Push for stopping Gliclazide,” and on 12 July 2012: “Stopped Gliclazide now”. Both entries were signed by the Registrant. On 13 December 2012 the Registrant made an entry that patient 2 had “gone back on half tablet of Gliclazide following slightly raised glucose”. The Panel accepted the entries in the patient notes as good documentary evidence.  IT’s evidence was that she had found no evidence that the Registrant informed the GP practice, or recorded informing the GP practice, of the recommended change in the level of Gliclazide. Accordingly, the Panel finds particular 2(a) proved.

Particular 2(b) Proved

17. IT gave oral evidence that adequate records should be a summary of the pertinent conversations and agreements between the patient and Dietitian.  IT directed the Panel to an entry dated 13 June 2013 made by the Registrant following a 30 minute appointment with the patient that only reads “110kg, Stable” followed by an unintelligible symbol.  She indicated that there was no summary of any conversations with, nor details of the progress made by, the patient.

18. From the available evidence, the Panel accepted that inadequate records were made, and accepted the evidence of IT and the documentary evidence before it. Accordingly, the Panel finds particular 2(b) proved.

Particular 3(a)(i) Proved

19. The Panel accepted the evidence of IT.  She had spoken with patient 3 and described him as, “Flailing and feeling completely disillusioned with Dietetics” after being advised by the Registrant that he should follow a low carbohydrate diet, using meal replacement drinks. 

20.IT indicated that this advice was inappropriate in a number of ways.  First, it was contradictory, as most meal replacement drinks have high carbohydrate levels, including the one chosen by the patient; secondly, it was contrary to NICE diabetes guidance published at the time, although the Registrant ticked “NICE CG87” as his evidence base for this advice; and thirdly, it should not have been recommended to a patient in his initial consultation with the dietetics service, as it is a drastic measure, requiring clinician support.  IT said she would, “never have recommended this diet for this patient at all.” The patient gained weight on this diet.

21. On the basis of the documentary evidence and the evidence from IT, the Panel finds that the Registrant had provided inappropriate advice. Accordingly, the Panel finds particular 3(a)(i) proved.

Particular 3(a)(ii) Not Proved

22.In the Plan and Patient-Centred Goals dated 20 December 2013 for patient 3 the Registrant recorded “But advised must stop gliclazide after discussing this with GP or DSN.”

23. The Panel considered that the Registrant’s advice as recorded, specifically referred to the need for discussions with the patient’s GP or a Diabetes Specialist Nurse (DSN) to take place before stopping taking Gliclazide. The Panel therefore determined that the Registrant had not inappropriately advised the patient to stop taking Gliclazide. Accordingly, the Panel finds particular 3(a)(ii) not proved.

Particular 3(b) Proved

24. The Panel accepted IT’s evidence that it was necessary to provide specific timeframes when advising on very low energy diets and meal replacement drinks. Dietitians in Obesity Management (DOM) UK  guidelines (Position Statement on Very Low Energy Diets in the Management of Obesity)  indicate that such diets should not be used as a sole source of nutrition for more than 12 weeks or patients could become “long-term nutrient deficient”.  The Panel noted the absence of any timeframe recorded in the patient notes. Accordingly, the Panel finds particular 3(b) proved.

Particular 4 (a) & (b) Proved

25. The Panel accepted the evidence of IT that a number of features were missing from the records kept by the Registrant in relation to patient 4. In looking at the care plan for the patient, IT said that there was “sparse information” available. The section headed “Subjective and Objective Assessment” was blank.  IT stated the records were inadequate as there was a lack of detail as to the discussions with the patient and the clinician’s recommendations, which should have been recorded but were not. Further, the lack of detail in the patient’s notes meant that no clinical rationale was provided. IT stated that providing a clinical rationale was standard procedure. 

26. The Panel finds the Registrant did not keep adequate records in that the Registrant did not record an assessment of subjective and objective information and a clinical rationale, and accordingly finds particulars 4(a) and 4 (b) proved.
Particular 4 (c) Not Proved

27. The Panel accepted the evidence of IT that while a food diary was sent in by the patient and was noted, no comments were made on that, nor was there a record of any relevant discussion with the patient. However, the Panel considered the SMART goals listed within the care plan for this patient and noted that there was some evidence of planned dietetic intervention.  Accordingly, the Panel finds particular 4(c) is not proved.

Particular 4 (d) Proved

28. The Panel accepted the evidence of IT who highlighted that in the patient’s care plan there was no justification recorded for the differing timeframes in relation to review appointments.  IT described the increased time frames for reviews as “completely random and unjustified” without evidence to explain this, particularly as the patient’s results were objectively getting worse.  The Panel finds that there was not sufficient detail recorded of the review appointments. Accordingly, the Panel finds particular 4(d) proved.

Particular 5(a) (i) & (ii) Not Proved

29. The Panel accepted the evidence of IT who gave evidence that planned attendances with the patient on 18 April 2012 and 11 October 2013 allowed for 30 minute appointments and notes should be written up.  In respect of the appointment of 18 April 2012 the only entry on this date is “Leigh. 3pm.”  Further, the date was out of sequence with the other dates listed.  It was not clear to the Panel that the appointment had in fact taken place.  It therefore followed that the Panel could not assess the adequacy of the records on that date and accordingly, the Panel finds particular 5(a)(i) not proved.

30. As to the attendance on 11 October 2013, the Registrant recorded the patient’s weight and glucose in that he noted ‘average glucose still way too high’. Although the record may have been considered inadequate, there were nonetheless details recorded of the attendance on that day.  Accordingly, the Panel finds particular 5(a) (ii) not proved.

Particular 5(b) Not Proved

31.The  Panel considered both IT’s evidence and the patient notes.  While there was clearly discussion of dose adjustment, the Panel was not satisfied that there was evidence that the Registrant had in fact recommended that the patient adjusted their insulin dosage or regime, only that this had been discussed on 20 December 2012. Accordingly, the Panel finds particular 5(b) not proved.

Particular 6(a) Not Proved

32. The Panel accepted IT’s evidence that fish oil can be helpful for pain.  The Panel noted that this particular refers to the taking of fish oil to help with pain control.  The Panel did not find any evidence that the Registrant intended the patient not to use other means to help control his pain and accordingly, the Registrant’s recommendation was not inappropriate. The Panel finds particular 6(a) not proved.

Particular 6(b) Proved

33. The Panel accepted LA’s evidence that if there was “intense pain in his knee” as recorded, advice on the management of pain was outside a Dietitian’s professional competence and the patient should have been referred on. The Panel noted from the entries in the patient’s record that, although there was recording in relation to on-going pain, there was no evidence of any referral or a record of a referral to another clinician for treatment of that pain. Accordingly, the Panel finds particular 6(b) proved.
  
Particular 7(a)(i) and 7(a)(ii) Proved

34. The Panel accepted RS’s evidence about patient 7.  He indicated from the patient’s medical records that patient 7 had, at the time he was seen by the Registrant, recently been diagnosed with diabetes but also had terminal lung cancer. This was a complex case.

35. In respect of the diet history in the initial assessment, RS explained this was inadequate and he referred the Panel to the blank table in the patient’s diet history.  He said that the table was there for information to be collected and some clinicians used it as a helpful prompt. RS stated that he would have expected it to be filled in unless the narrative diet history was already sufficiently detailed, which it was not.

36. RS stated that a number of relevant recordings were missing, such as weight. Specifically, he indicated that limited information had been provided regarding the current diet, or the sugar intake, or on fat and protein. He was unclear whether the information had not been recorded or not gathered.

37. In referencing two bullet points in SMART goals which appeared to indicate the types of meals the patient should consume, RS stated that this was not an adequate care plan for this patient, given that the patient had terminal lung cancer and diabetes. Both conditions should have been taken into consideration to take account of his quality of life. The potential for weight loss was already associated with the patient’s cancer.  The record was unclear, poor and incomplete as it did not fully provide the rationale for the advice given. The Panel accepted RS’s evidence and the documentary evidence in the patient’s records and accordingly finds particulars 7(a)(i) and 7(a)(ii) proved.

Particular 7(b) Proved

38. The Panel accepted RS’s evidence that the Registrant should not have discharged the patient, given that he was a terminally ill patient. The patient had a number of physical health complications associated with cancer and diabetes for which he required ongoing advice and support. The patient’s condition was not stable and RS stated that part of a Dietitian’s role should be to improve the quality of life for the patient.  While this was also a role for his GP, a discharge should have only happened with the patient’s consent.  There was no clear documentation presented to the Panel for the rationale for the patient’s discharge. Accordingly, the Panel finds particular 7(b) proved.

Particular 8(a) Not Proved

39. The Panel heard that patient 9 had been referred to the Dietitian following a new diagnosis of Type 1 Diabetes.  It was unclear from the evidence provided by LA and RS as to the nature and referral process for diabetes education. LA had referred to a class/programme that newly diagnosed diabetic patients could be referred to. She stated that while attendance at diabetes education for patients could not be compelled, it could be strongly encouraged as it provided information that patients with diabetes needed. LA stated that any questions that the patient had after attendance at the course could not be discussed with the Registrant, given that the patient had been discharged.

40. By contrast, RS in his evidence described a different approach to diabetes education in that it would be undertaken during the appointments with the Dietitian.

41.The Panel was not presented with any documentary evidence that the patient had been referred to a class or programme for diabetes education.  If they had been referred, there was no evidence that the diabetes education had not been completed.  The Panel therefore had insufficient evidence that the Registrant had demonstrated poor clinical reasoning in discharging the patient when the education had not been completed. Accordingly, the Panel finds particular 8(a) not proved.

Particular 8(b) (i) Not Proved

42. LA indicated that there was no good clinical reasoning provided for the discharge of patient 9. There was no record of the Registrant providing relevant dietetic advice in the notes he created for the patient.  Any issues that the patient had in managing their diabetes could not be addressed by the Registrant, as they were already discharged.

43. The Panel considered that the patient notes do show that “carbs” had been discussed between the Registrant and the patient.  Accordingly, there had been some relevant dietetic advice.  Further, a referral to specialist education provided a route for the patient to ask questions about the management of diabetes through diet.

44. For this reason, and following the rationale provided at 8(a) above, the Panel finds particular 8(b)(i) not proved.

Particular 8(b) (ii) Proved in part

45. RS indicated that patient 9 had been recently diagnosed with diabetes before the patient was seen by the Registrant.  There were goals with bullet points set out for this patient in his notes. However, RS explained that educating someone about diabetes required a lot of issues being covered. 

46. It is not clear what the Registrant had said to the patient but it was clear that this was not recorded.  Given that there were goals and bullet points set out for this patient, the Panel considered that information had passed between the Registrant and the patient.  The Panel took into account RS’s view that a patient would ideally need to be brought back to a diabetes clinic repeatedly until a Dietitian was clear that they could manage their condition and relevant information had been taken on board. He said that it made no sense that this patient was struggling with hypoglycaemia, but still discharged. 

47. While RS’s view was that this would only happen if the patient requested a discharge and no such request was documented in the patient notes, the Panel considers this was evidence of a deficiency in notes rather than the consultation.

48. Accordingly, bearing in mind the stem of the particular, the Panel finds that there was insufficient evidence on the balance of probability to establish whether the advice had been provided. The Panel finds this part of particular 8 (b) (ii) not proved.

49. As to not recording the advice, there was no evidence in the notes of any recording and accordingly this part of particular 8 (b) (ii) is proved.

Particular 9 (a) (i) & (ii) Not Proved

50. RS gave evidence in respect of patient 10. He made specific reference to a letter written by the Registrant to a DSN on 7 May 2013 in relation to this patient.  That letter included a section on a Personal Action Plan to meet the goal of “Reduce frequency of hypos.” It included the following bullet points:-
“ Discussed and looked at carbohydrate dosage in detail re. insulin requirements.
Discussed hypo treatment with [Patient 10] and appropriate treatment.
Occasionally having carbohydrate free meal like kippers, with little carbohydrate, and using his full insulin dose.  Advised how to manage meals.”

51. RS stated that there was nothing to support the taking of carbohydrate free meals with a heavy dose of insulin, and that is not supported by NICE guidance.  When queried about the context of the advice he admitted that it is not clear whether this was a recommendation by the Registrant, or a comment made by the patient.

52. The note did not reflect that the patient was recommended to take insulin and have carbohydrate free meals.  Therefore, the Panel could not be satisfied that the Registrant’s recommendation was inappropriate. Accordingly, the Panel finds particulars 9 (a) (i) & (ii) not proved.


Particular 10 (a) Proved

53. EP gave evidence about patient 11, who had been referred by their GP as they were clinically underweight as set out in NICE Nutrition Support for Adults 2006.  She indicated that when advising on weight gain, there was also Trust internal guidance for the management of patients who are at risk of malnutrition.  Follow up weight assessments should have occurred at week 10 and week 30 following an initial assessment, in line with accepted policy.  This had not occurred. She said that NICE guidelines were documents that Dietitians were meant to follow as best practice. 

54. EP considered the notes created by the Registrant for patient 11 on 26 February 2014 and 26 March 2014. Although the patient had a BMI indicating that they were clinically underweight, the patient’s weight was not recorded by the Registrant on either date.  Without weights being recorded it was not possible to monitor them.  EP stated that the records of another health care professional had indicated a weight loss of 2 kg occurred whilst this patient was under the Registrant’s care.

55. The Panel accepted EP’s evidence.  It had nothing before it to contradict or explain the apparent lack of monitoring. Accordingly, the Panel finds particular 10 (a) proved in relation to both dates.

Particular 10(b) (i) & (ii) Proved

56.EP co nsidered the consultation within the patient’s notes recorded by the Registrant.  She noted that there was reference to food “allergies”.  Her evidence was that the patient’s aim to avoid dairy/soya in her diet, continued over two appointments, without any proper testing having been indicated.

57. The Panel considered the extracts from the consultations by the Registrant for the patient in February and March 2014.  EP stated that the process for the diagnosis of a food allergy and subsequent advice is a long process which required additional medical intervention.  Such referrals for testing should have gone to the patient’s GP as this was outside the Registrant’s scope of practice.  EP said that she would not expect a Dietitian to discuss food allergies with a patient without there having been a formal diagnosis.  The Panel accepted EP’s evidence and had no evidence to contradict it.  Accordingly, the Panel finds particulars 10(b) (i) & (ii) proved.

Particular 10(c) Proved

58. During her investigation EP considered the entries recorded in patient 11’s medical notes.  EP gave evidence that the way the diagnosis was recorded in the notes suggested that the irritable bowel syndrome (IBS) had been diagnosed by the Registrant.  This was because the initial diagnosis was referenced as “(First)” next to the condition as recorded in the first entry made by the Registrant on the electronic patient record system.

59. This entry could have misled another healthcare professional into thinking that proper procedures had been followed to arrive at a formal diagnosis.  EP stated that it was not appropriate for a Dietitian to diagnose IBS. This was outside their professional role.  Symptoms of other diseases, like bowel cancer, could fail to be properly identified.  EP made reference to NICE guidance on the diagnosis of IBS.

60. The Panel accepted EP’s evidence and the documentary evidence provided by patient 11’s records and accordingly, finds particular 10 (c)  proved.

Particular 11(a) Proved

61. EP gave evidence that there were references to the 5:2 diet and intermittent fasting within the notes created by the Registrant for patient 12.  She said that the 5:2 diet was not officially endorsed in any official NICE, or British Dietetic Association (BDA) guidance.  It was simply a commercial diet, like the Atkins diet, and commercial diets should not be recommended. 

62. The Panel noted the entries recorded by the Registrant for the patient between January and March 2015.  The Panel accepted EP’s evidence, the NICE Guidance (CG189) and the documentation before it.  Accordingly, the Panel finds particular 11(a) proved.
Particular 11(b) Proved

63. EP gave evidence that there were references to food allergies and elimination diets within the consultation notes created by the Registrant for patient 12 on 7 May 2014 and 28 January 2015. The Panel accepted the evidence of EP and the consultation notes created by the Registrant in respect of patient 12.  Accordingly, the Panel finds particular 11 (b) proved.

Particular 12 (a)(i) Proved in part 

64. EP gave evidence regarding the consultation notes created by the Registrant for patient 13.  The Panel considered the entries recorded by the Registrant for the patient. There was insufficient evidence that a review had not taken place, however there was no evidence in the notes available of a record reviewing food intake.

65. Accordingly, the Panel finds particular 12 (a) (i) proved in respect of recording but not in terms of failing to review.


Particular 12(a)(ii) Proved in part

66. EP gave evidence regarding the consultation notes created by the Registrant for patient 13. The Panel determined that there was some evidence within the patient’s notes that advice had been given and some literature had been given out on the issues.  However, there was an absence  of detail in those records.

67. The Panel determined that there was insufficient evidence to indicate the Registrant did not advise but the Panel is satisfied that the Registrant did not record advising on alternative foods to replace those being recommended for exclusion. Accordingly, the Panel finds particular 12(a)(ii) proved in part as to the lack of recording. 

Particular 12(a)(iii) Proved

68. EP gave evidence regarding the consultation notes created by the Registrant for patient 13 which she had reviewed.  The entries recorded by the Registrant for the patient did not indicate that patient 13’s weight was being monitored.

69. The Panel accepted this evidence.  The Panel was satisfied that the repeated failures to record weight meant that the Registrant could not monitor changes. Accordingly, the Panel finds particular 12 (a) (iii) proved.

Particulars 12(b) & (c) Proved

70. The Registrant recorded in entries dated 26 March and 9 April 2014 that he suspected that the patient had a gluten sensitivity.

71. In view of this, it was not appropriate for the Registrant to recommend a gluten free diet, as this was outside his scope of practice. Instead he should have referred the patient to a specialist to enable a formal clinical diagnosis. Accordingly, the Panel finds particulars 12 (b) and (c) proved.

Particulars 13 (a) (i) & (ii) Not Proved

72. The Panel considered the Registrant’s consultation notes for patient 14 which suggested that the patient was advised to follow a prescriptive low sugar diet and to avoid grains. 

73. While sugar and grain content of diet for this patient was discussed in the appointments, it was not clear why this patient was consulting with the Registrant and whether this was the first, or a follow up visit.  Accordingly, while EP was critical of the entries recorded by the Registrant between April and July 2014 the Panel could not be satisfied that the Registrant’s advice was inappropriate.

74. Accordingly, the Panel finds particulars 13 (a) (i) and (ii) not proved.

Particular 13 (b) (i)  Not Proved

75. EP referred to an entry dated 9 April 2014 in which the Registrant had made reference to the patient’s weight problems being caused by anxiety and/or stress. However, in the Panel’s view it was unclear whether these comments were made to or by the patient. The Panel could not therefore be satisfied that the Registrant had made this indication. Accordingly, the Panel finds particular 13(b)(i) not proved.

Particular 13 (b) (ii)  Not Proved

76. EP gave evidence that an error had been made.  While it would have been wrong for the Registrant to make a diagnosis of IBS without tests being conducted, it was not wrong of him to reference a medical condition that had already been diagnosed and appeared in the patient’s medical history. Accordingly, the Panel finds particular 13(b)(ii) not proved.

Particular 14(a) (i) Proved in part

77. The Panel was referred to the entries for patient 15 dated 9 April 2014 and 27 August 2014. However, it could not be satisfied from the information recorded in those entries that a review regarding food intake had not been done.  It was satisfied from those entries that if there had been a review there was no record of it.  The Panel finds this part of the particular proved as to no record for both dates. 

Particular 14(a) (ii) Proved in part

78. In respect of the appointment on 9 April 2014, there appeared to have been no discussion regarding exclusion of any foods and so there would not be any discussion of replacement foods. The Panel finds this part of the particular not proved.

79. In respect of the appointment on 27 August 2014, the Panel could not be satisfied that such advice had not been given, but if it had been given, there was no evidence of any recording. The Panel finds this part of the particular proved as to no recording.

Particular 14(a) (iii) Proved

80. The Panel accepted the evidence from EP that it was standard dietetic practice to monitor a patient’s weight. The Panel was drawn to the entries of 9 April 2014 and 27 August 2014, neither of which provided any evidence of monitoring or recording of the patient’s weight. The Panel accordingly finds this particular proved.

Particular 14(b) (i) Proved

81. The Panel noted in entries for the 9 April 2014 and 27 August 2014 that the Registrant had clearly indicated a plan to recommend an over-the-counter (“OTC”) probiotic.  In respect of 27 August 2014, the Registrant referred to the patient having used probiotics since April and continuing to use a home-made probiotic.  The Panel accepted the evidence of EP that this would not be first line advice for constipation, which was why patient 15 was being seen, and was  therefore inappropriate advice. The Panel accordingly finds this particular proved.
Particular 14(b) (ii) Proved in part

82. The Panel noted that in respect of the entry for 9 April 2014, there was no evidence that the Registrant had given the patient any advice to follow a gluten free diet at this appointment. The Panel therefore finds this particular not proved as to 9 April 2014.

83. The Panel noted that in respect of the entry for 27 August 2014, there was a clear reference to a plan to try a 4 to 6 week gluten free challenge. The Panel accepted the evidence of EP that there was no clinical indication for that advice and therefore it was inappropriate.  The Panel therefore finds this particular proved as to 27 August 2014.

Particular 14(c) (i) Not Proved

84. The Panel noted in respect of the entry on 9 April 2014 that the Registrant had noted they would next look at the possibility of food intolerance, gluten sensitivity and/or cow’s milk protein allergy (CMPA) rather than indicating that the patient had these conditions. The Panel therefore finds this particular not proved as to 9 April 2014.

85. In respect of the entry dated 27 August 2014, the Registrant had specifically indicated that gluten sensitivity may be an issue but did not go as far as to indicate that the patient had this condition.  Further, there was no mention of food intolerance or CMPA in this entry. The Panel therefore finds particular 14 (c) (i) not proved as to 27 August 2014.

Particular 14(c) (ii) Proved in part

86. The Panel noted in respect of the entry on 9 April 2014 that there was no reference to the Registrant indicating that the patient had “brain fog” and therefore finds this particular not proved on that date.

87. The Panel noted in respect of the entry on 27 August 2014 that there is reference to the Registrant indicating that the patient had “brain fog.”  The Panel accepted EP’s evidence that “brain fog” is not a recognised medical condition. The Panel therefore finds particular 14 (c) (ii) proved on that date.

Particular 15(a) (i) Not proved

88. The Panel finds that in her evidence EP was referring to NICE Guidance (CG189) dated November 2014.  The dates of this particular pre-dated the guidance therefore the Panel could not place reliance on EP’s evidence.  It could not be satisfied on the evidence available that the advice not to do intense physical activity was inappropriate. The Panel therefore finds particular 15 (a) (i) not proved.

Particular 15(a) (ii)  Proved

89. The Panel finds that in her evidence EP was referring to NICE Guidance (CG189) dated November 2014.  The dates of this particular pre-dated that guidance. The Panel could not place reliance on EP’s evidence in respect of it. However, the Panel accepted EP’s evidence that the advice was inappropriate given the patient’s BMI. The Panel therefore finds particular 15 (a) (ii) proved.

Particular 15(a) (iii) Proved

90. The Panel was referred to entries in the patient’s records dated 18 June 2014 and 13 August 2014 in which the Registrant advised the patient to have occasional carbohydrate free meals.  The Panel accepted EP’s evidence that the Registrant had given this advice without proper thought and reasoning, and it was therefore inappropriate. The Panel therefore finds particular 15 (a) (iii) proved.

Particular 15(b) (i) Proved

91. The Panel accepted the evidence of EP that the entry in patient 16’s record of 9 April 2014 - “hypoglycaemia unspecified (First)” indicated that the Registrant had made this diagnosis without there being any proper diagnosis or apparent clinical indication for this. Such a diagnosis was outside the scope of practice for a Dietitian.  The Panel therefore finds particular 15 (b) (i) proved.

Particular 15(b) (ii) Proved

92. The Panel noted an entry dated 4 June 2014 made by the Registrant in the patient’s records which made reference to him suggesting that the lack of weight loss suggested “fasting insulin still too high.”  The Panel accepted the evidence of EP that this was not a recognised reason for lack of weight loss and therefore inappropriate. The Panel therefore finds particular 15 (b) (ii) proved.

Particular 15(b) (iii) Proved

93. The Panel noted an entry dated 18 June 2014 made by the Registrant in the patient’s records which made reference to him suggesting that “metabolism now oxidising fats well and “fat-adapted state.”” The Panel accepted the evidence of EP that there was no physiological or biochemical indication of this and therefore it was inappropriate. The Panel therefore finds particular 15 (b) (iii) proved.

Particular 15(b) (iv) Proved

94. The Panel noted an entry dated 13 August 2014 made by the Registrant in the patient’s records which made reference to him suggesting that an occasional carbohydrate-free meal will “keep insulin from getting out of control again.”’ The Panel accepted EP’s evidence that there was no clinical basis for this advice and it was therefore inappropriate. The Panel therefore finds particular 15 (b) (iv) proved.

Particular 16 (a) (ii) Not Proved

95. It was EP’s evidence that to cut out a food group was inappropriate. However, the Panel could not be satisfied that the Registrant had advised the patient to do this and, in any event, this particular refers to a low carbohydrate diet rather than a carbohydrate free diet. The Panel therefore finds particular 16 (a) (ii) not proved.

Particular 16 (a) (iii) Not proved

96. The Panel was referred to an entry in the patient’s records dated 18 June 2014 in which the Registrant advised the patient to use some salt daily. However, the Panel could not be satisfied from the wording of the entry that the patient was being advised to increase sodium and/or salt intake.  The Panel therefore finds particular 16 (a) (iii) not proved.

Particular 17 (a) (i) Proved in part

97. The Panel was referred to an entry in the patient’s records in respect of the appointment held on 26 February 2014.  The Panel could not be satisfied that advice had not been given on alternative foods to replace those recommended for exclusion, but had it been given, there was no evidence of any recording of it. The Panel finds this part of the particular proved as to no recording.

Particular 17 (a) (ii) Proved in part

98. The Panel was referred to the entries in the patient’s records between 26 February 2014 and 13 August 2014.  The Panel could not be satisfied that there had not been an assessment of the patient’s diet to ensure it was nutritionally sound.  Had it been given, there was no evidence of any recording of it. The Panel finds this part of the particular proved as to no recording.

Particular 17 (a) (iii) Proved

99. The Panel considered the consultation notes of the patient and did not see any reference to weight being recorded.  The Panel considered that in the absence of any recording of weight, it would not have been possible to monitor it.  Accordingly, the Panel finds particular 17 (a) (iii) proved.

Particular 17(b) (i) Proved

100. The Panel noted the Registrant’s entry dated 26 February 2014 and the subsequent “comment” in the consultation notes for patient 18 on 23 April 2014:-
“Plan to have further 2 months gluten free before considering re intro of gluten depending on progress and symptom relief as symptom pr[o]file still a little mixed.”

101. The Panel accepted EP’s evidence that there was no NICE Guidance that a gluten free diet was a recognised treatment for IBS. Accordingly, the Panel find this was inappropriate advice and finds particular 17 (b) (i) proved.

Particular 17(b) (ii) Proved

102. The Panel noted the Registrant’s entries in the “history” section of the consultation notes for patient 18 on 13 August 2014:
“May need to try … dairy free to get benefits but want to leave it for now as not feeling up to these changes which is understandable.”

103. The Panel accepted EP’s evidence that there was no clinical evidence that such a diet was required. Accordingly, the Panel determine that this was inappropriate advice and finds particular 17 (b) (ii) proved.

Particular 17(c) Proved

104. The Panel noted in respect of the entry on 26 February 2014 that there is reference to the Registrant referring to “general brain fog ….”  The Panel accepted EP’s evidence that “brain fog” is not a recognised medical condition. The Panel therefore finds particular 17 (c) proved.


Particular 18(a) (i) Proved

105. The Panel found the evidence supporting this particular in an entry in the patient’s record dated 7 May 2014.  The Panel accepted EP’s evidence that the Registrant was not trained in the diagnosis of allergies and had insufficient competency to do so. He was acting outside the scope of his practice and it was inappropriate to make such a recording in the absence of a formal diagnosis by a doctor. The Panel finds particular 18 (a) (i) proved.

Particular 18(a) (ii) Proved

106. The Panel noted in an entry in the patient’s record dated 7 May 2014 that the Registrant recorded that “… would strongly suspect gluten sensitivity with possible cross reaction to dairy also as part of background picture in the inflammation of the gut (sic)”. 

107. The Panel accepted EP’s evidence that the Registrant had used these words in his patient consultation notes when they were not “recognised risk factors or causes”.  Accordingly, the Panel finds particular 18 (a) (ii) proved.

Particular 19(a) (i) & (ii) Proved

108. The Panel noted the entries by the Registrant in the patient’s records dated 12 March 2014 and 7 May 2014.  Both entries were brief and had a sole focus on probiotic supplements. Neither entry made reference to information regarding the patient’s diet and lifestyle.  The Panel finds particulars 19 (a) (i) and (ii) proved in relation to both not assessing and/or recording assessing on both dates.

Particular 19(b) Proved

109. The patient was referred to the Registrant with a diagnosis of IBS.  The Panel accepted the evidence of EP that the Registrant did not follow the best practice guidance on the management of IBS in the BDA Practice Guidelines for IBS (August 2013). The Panel found no evidence in the entries for either date which demonstrated that the Registrant had followed this guidance, and provided first line dietary advice. The Panel finds particular 19(b) proved both as to not providing or recording providing any first line dietary advice on either date.

Particular 19 (c) Proved

110. EP gave evidence that it was inappropriate for the Registrant to recommend a pro-biotic to deal with IBS.  She stated that diet and lifestyle management should be addressed first. Pro-biotics are second line treatments following the BDA guidance referred to above. The Panel finds particular 19 (c) proved. 

Particular 20 (a) Proved in part

111. The Panel considered the consultation notes the Registrant had created when he saw patient 21.  It noted there was a reference in the entry on 21 May 2014 to the Registrant giving a “diet sheet” to the patient, and on 18 June 2014 to “been gluten free for close to a month”.  The Panel considered that these entries suggested that there had been some advice given, albeit what that advice was had not been recorded.  The Panel found that there was insufficient evidence for it to conclude that appropriate advice on alternative foods had not been given, but determined that if advice was given, it was not recorded. Accordingly, the Panel finds particular 20(a) proved in part in relation to not recording only on both dates.

Particular 20 (b) Proved

112. The Panel noted the Registrant’s consultation notes for this patient on 21 May and 18 June 2014, as noted above.  The Panel accepted the evidence of EP that a gluten free diet was not a recognised treatment for IBS. The advice was accordingly inappropriate and the Panel finds particular 20 (b) proved on both dates.      

Particular 20 (c) Proved

113. The Panel again noted the terms of the consultation notes referred to above. There was evidence that the Registrant advised the patient that failure to follow a gluten free diet would cause “immune cascade” and inflammation. The Panel accepted EP’s evidence that there was no clinical evidence that what the Registrant suggested to the patient would happen. Accordingly, the Panel finds particular 20 (c) proved.

Particular 20 (d) (i) Proved

114. During her investigation EP considered the entries recorded in patient 21’s medical notes.  EP gave evidence that the way that the diagnosis was recorded in the notes on both dates suggested that IBS had been diagnosed by the Registrant on 21 May 2014.  This was because the initial diagnosis on that date was referenced as “(First)” next to the condition recorded in the entry made by Registrant on the electronic patient record system.

115. As set out in particular 10 above, such an entry could have misled another healthcare professional into thinking that proper procedures had been followed to reach a formal diagnosis.  EP said that it was not appropriate for a Dietitian to diagnose IBS as this was outside the Registrant’s scope of practice.  Symptoms or other diseases, like bowel cancer, could fail to be properly identified.  The Panel finds particular 20 (d) (i) proved.

Particular 20(d) (ii)  Proved in part

116. The Registrant’s patient consultation notes for patient 21 on 21 May 2014 refer to “Foggy brain a lot!” and “brain fog”.  That term is not used in the entry dated 18 June 2014. The Panel accepted EP’s evidence that “brain fog” is not a recognised medical condition and accordingly, the Panel finds particular 20(d)(ii) proved in part in respect of 21 May 2014 but not proved in relation to 18 June 2014.

Particular 21 (a) (i), (ii), (iii) Proved in part

117. The Panel had sight of the Registrant’s consultation notes of his appointment with patient 22 on 24 September 2014.  There was no record or reference to dietary intake, weight or weight trend.  The Panel did not find that this meant that these observations had not been assessed, save for (iii) weight trend as it would be difficult to assess trend without some recorded weight statistics. 

118. Accordingly, the Panel finds particular 21 (a) (i) & (ii) proved in relation to not recording, and not proved in relation to assessing.  The Panel finds 21 (a) (iii) proved in relation to both.

Particular 21(b) Proved in part

119. The Panel was referred to an entry in patient 22’s records on 24 September 2014.  The Panel could not be satisfied that advice had not been given on alternative foods to replace those recommended for exclusion, but had it been given, there was no evidence of any recording of it. The Panel finds particular 21 (b) proved as to no recording.

Particular 21(c) Not proved

120. The Panel had sight of the Registrant’s consultation notes with the patient 22 on 24 September 2014.  In the history section the Registrant recorded:-
“Therefore wants to trial a GF diet first for 4-6 weeks to see if symptoms improve.”

121. While the Panel accepted the evidence given by EP that this advice would not be appropriate, the Panel was not satisfied that this advice had been given by the Registrant to the patient.  From the record it was not clear whether this comment reflected an intention and desire of the patient, or advice or a recommendation by the Registrant. Accordingly, the Panel finds particular 21(c) not proved.

Particular 21(d) Proved

122. The Panel had sight of the Registrant’s consultation notes of his appointment with patient 22 on 24 September 2014.  Within the notes in the “history” section of the notes, there appears the following:
“…has markers of brain inflammation (anxiety/depression/brain fog) which classically related to auto immune reactions to food.”

123. The Panel accepted the evidence of EP that this was an inappropriate comment to make as anxiety/depression are not due to brain inflammation and “brain fog” is not a recognised medical condition.  It is therefore inappropriate to include such comments as part of the patient’s medical history. Accordingly, the Panel finds particular 21(d) proved.


Decision on Statutory Grounds

124. The Panel heard submissions from Mr Walters. The Legal Assessor advised the Panel on the issues of lack of competence and misconduct. She also advised on the issue of a finding of current impairment and the need to consider both past behaviour and to look to the future and assess risk.  She reminded the Panel to exercise its own professional judgement on these issues on which there is no evidential burden. She reminded the Panel to bear in mind the central public interest considerations.

Lack of Competence

125.The Panel considered whether the failings of the Registrant amounted to a lack of competence. The Panel had heard evidence that the Registrant was an experienced band 7 Dietitian and there was no suggestion the he could not complete proper records or undertake or make proper assessments.  The Registrant had worked for both Trusts cumulatively for approximately 3 ½ years. 

126. The Panel finds that there were instances that demonstrate that the Registrant was aware of what constituted good practice in recording patient details, but he did not to do so consistently for all his patients. Equally, there was also evidence that the Registrant did not at times follow NICE and BDA guidance in force at the relevant time.

127. The Panel heard evidence from five witnesses and considered all the documentary evidence before it.  Despite that the Panel was unable to form a clear and adequate view of whether the allegation represented a fair sample of the Registrant’s work.

128. The Panel determined that in all the circumstances it cannot be satisfied on the evidence that this is a case where the facts found proved amount to a lack of competence.

Misconduct

129. The Panel took account of Mr Walters submissions, and accepted the legal advice.  It took account of the facts found proved both individually and cumulatively.  It exercised its own professional judgement and was mindful of the guidance in Roylance v GMC [2001] 1 AC 311.

130. The Panel finds that the actions of the Registrant fell short of the standards expected of a Registered Dietitian over a lengthy period of time. The Panel finds there were a number of particulars which, alone, would not have amounted to misconduct, namely 3(a) ii); 8(b) ii); 11 (a)& (b); 19 (a) i) & ii); 19 (b); 19 (c); 21 (a) ii) & iii) and 21 (b) & (d). 

131. Taking into account the Registrant’s level of seniority and the number of occasions where he fell short of the fundamental tenets expected of a Registered Dietitian, the remainder of the particulars found proved were, in the Panel’s view, sufficiently serious to amount to misconduct.

132. The Panel also had regard to the HCPC Standards of conduct performance and ethics.  It concluded that on the basis of the facts found proved in this case standards 1, 6 and 10 were breached, which state:-

“1. You must act in the best interests of service users.
6. You must act within the limits of your knowledge, skills and experience and, if necessary, refer the matter to another practitioner.
10. You must keep accurate records.”

133. In the view of the Panel it is an integral part of the role of a Registered Dietitian to act within the scope of their practice and that all relevant assessments, monitorings and reviews are made, evidenced and properly justified. It is imperative that complete and accurate records are kept. In not doing so, continuity of care could not be ensured, and there was a potential for patients to be placed at risk of harm. In all the circumstances the Panel finds the Registrant’s actions amounted to misconduct.


Decision on Impairment

134. In considering its decision on impairment the Panel was mindful that the purpose of these proceedings is not to punish the practitioner but to protect the public.  The Panel also had regard to the HCPTS Practice Note on Finding that Fitness to Practise is Impaired.

135. The Registrant has not engaged with these proceedings except for one email of 19 November 2016, in which he indicated his intention not to practise as a Dietitian, now or in the future. The Panel had no evidence of the Registrant’s insight, remorse or any remediation. The Panel has no evidence of the Registrant’s current circumstances. 

136. Four of the five witnesses had never met the Registrant and could not comment on his insight, remorse or remediation.  EP had only very limited engagement with the Registrant. The Registrant had not made any admissions or provided any submissions to the Panel.

137. The misconduct relates to a substantial number of particulars regarding the Registrant’s practice over a lengthy period of time.  This included  acting outside his scope of practice, inadequate, and in some case a total lack of, record keeping, and ultimately not acting in the patients’ best interests. This had the potential to cause direct or indirect harm to patients. The Panel is of the view that the misconduct is remediable but there was no evidence of remediation by the Registrant. The Panel could therefore not be satisfied that there was not a real risk of repetition of the misconduct found, or that the Registrant could practise safely without restriction.

138. The Panel had regard to the critically important public interest considerations. The findings are breaches of fundamental tenets of the profession.  Given the misconduct found, it would undermine public trust and confidence in both the reputation of the profession, and the regulatory process if a finding of current impairment was not made in this case.  Further, there is a need to declare and uphold proper standards of behaviour.

139. Accordingly, the Panel finds that the Registrant’s fitness to practise is currently impaired.


Submissions on Sanction

140. Mr Walters submitted to the Panel that sanction was a matter for it.  The Panel should act proportionately and have regard to the HCPTS Indicative Sanctions Policy.  He submitted that it was an aggravating feature that the Registrant was a senior practitioner, as was the period of time over which the misconduct took place and the number of patients involved. Mr Walters reminded the Panel of the level of risk posed by the Registrant and that there was no evidence of insight, remorse or remediation.

141. On mitigating features, Mr Walters submitted that the Registrant had previously had an unblemished career. He submitted that Conditions of Practice were not appropriate as the Panel knew nothing of the Registrant’s current circumstances. He submitted that temporary or permanent removal from the Register were the appropriate options for the Panel to consider.

142. The Panel took advice from the Legal Assessor.  The Panel was referred to the HCPTS Indicative Sanctions Policy. It must act fairly and proportionately and apply the least restrictive sanction necessary to protect the public and the wider public interest. He stressed the importance of the public interest. 


Decision on Sanction

143. In considering the appropriate sanction the Panel has had regard to its earlier findings. The Panel was mindful of the lack of any evidence of the Registrant’s insight, remorse or remediation.

144. The Panel first considered the aggravating and mitigating features.  The Panel considers that the Registrant’s repeated misconduct over a lengthy period of time in respect of many patients by a senior practitioner is an aggravating factor. The Panel considered the Registrant’s previously unblemished career is a mitigating factor.

145. In view of the seriousness of the case, to take no further action or to impose a Caution Order would not be appropriate as such orders fail to address the misconduct found and the identified risk to patients. The Registrant’s misconduct is serious and these orders would be not be sufficient to protect the public, or to maintain confidence in the profession and the regulatory process. 

146. The Panel next considered a Conditions of Practice Order. The Panel has no information about the Registrant’s current circumstances and whether he would be able or willing to comply with conditions. There is no evidence of insight, remorse or remediation. In these circumstances the Panel cannot formulate workable, realistic and proportionate conditions of practice. In addition, such an order would not protect the public interest, or maintain public confidence in the profession or the Regulator given the misconduct found.

147. The Panel next considered a Suspension Order. The Panel has found that the Registrant repeatedly worked outside his scope of practice and, on many occasions did not complete any, or adequate records, and this placed patients at risk of harm. The Panel has no evidence of any insight, remorse or remediation and has found that there is a risk of repetition. The Registrant has chosen not to engage with his Regulator and this process.

148. In all the circumstances, the Panel considers that a Suspension Order for 12 months would be the appropriate and proportionate sanction. The misconduct found was sustained and widespread. Suspension would sufficiently protect the public and the wider public interest, uphold public confidence in the profession and the HCPC, and declare and uphold proper standards. It would also provide the Registrant with an opportunity to engage with the HCPC to reflect on his behaviour and develop insight.

149. The Panel considered a Striking Off Order.  It considered that the nature and gravity of the allegation is not such as to justify such an order.  At this stage, the Panel considers that a Striking Off Order would be disproportionate as it would go further than necessary to protect the public and the wider public interest.

150. A future Reviewing Panel would be assisted by the Registrant engaging with the HCPC and providing evidence of insight and remediation such as:-
(a) a reflective piece to include:-
- working within your scope of practice
- the importance of maintaining proper records
- and the impact of your misconduct on patients and colleagues
- How this will inform you practice in the future.
(b) Evidence of any relevant training and learning undertaken.
(c) Testimonials or references from paid or unpaid work relevant to your Dietetic practice.

151. The Panel determined to place a Suspension Order on the Registrant for a period of 12 months.

Order

ORDER: That the Registrar is directed to suspend the registration of Mr Gary C Elliot for a period of 12 months from the date this order comes into effect.

 

Notes

The order imposed today will apply from 30 August 2017 (the operative date).

Hearing history

History of Hearings for Mr Gary C Elliott

Date Panel Hearing type Outcomes / Status
09/08/2018 Conduct and Competence Committee Review Hearing Struck off
31/07/2017 Conduct and Competence Committee Final Hearing Suspended