Mr Andrew Thomas Garrett

: Chiropodist / podiatrist

: CH14955

: Final Hearing

Date and Time of hearing:10:00 11/10/2017 End: 17:00 13/10/2017

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

: Conduct and Competence Committee
: Suspended

Allegation

(As amended at the substantive hearing on 11 October 2017)
During the course of your employment as a Chiropodist/Podiatrist for South Warwick NHS Foundation Trust:
1) Between approximately 11 May 2015 and 23 September 2015, you failed to keep adequate records in that you did not consistently input patient information on to the electronic system (Lorenzo) in a timely manner and/or at all.
2) Between approximately September 2013 and December 2015, you did not consistently return patient appointment cards to the single point of access within a reasonable timeframe following treatment sessions.
3) The matters set out in paragraphs 1 - 2 constitute misconduct and/or lack of competence.
4) By reason of your misconduct and/or lack of competence your fitness to practise is impaired.

 

Finding

Preliminary matters:
Service
1. The Panel was aware that written notice of these proceedings was posted by first class post to the Registrant at his registered address on 19 July 2017.The Panel was shown documents which established the fact of the service, and the identity of the Registrant’s registered address. In these circumstances the Panel accepted that proper service of the notice had been effected.
Proceeding in the absence of the Registrant
2. Ms Vignoles on behalf of the HCPC submitted that the hearing should proceed in the absence of the Registrant. The Panel was also informed that the Registrant has not engaged with the HCPC, or been in contact with it, since February 2016 when, by an email dated 25 February 2016, he informed the HCPC that he had been dismissed by the South Warwick NHS Foundation Trust [the Trust], effective from 22 February 2016.
3. The Panel heard and accepted the advice of the legal assessor
4. The Panel was aware of the need to consider the application to proceed in the absence of the Registrant with great caution. However, after giving that application very careful thought, the Panel has decided to allow it. Its reasons are as follows;
• Notice of this hearing has been properly served on the Registrant.
• The Registrant has not applied for an adjournment.
• The Panel has considered the Practice Note which is relevant to proceeding in the absence of a registrant.
• The Registrant has not at any time engaged with the HCPC since February 2016.
• There is no reason to suppose that, if an adjournment was granted, the Registrant would attend.
• There is a public interest in disposing of this matter as soon as can properly and fairly be done. The particulars date back to 2013 - 2015.
• In all the circumstances the absence of the Registrant can be deemed to be voluntary.
Application to amend the Allegation
5. Ms Vignoles applied to amend the particulars of the Allegation so that it appeared in the form set out above. She informed the Panel that the proposed amendment was to ensure clarity and that the amended particulars reflected the evidence that would be adduced. She said that the amendment did not alter the substance of the Allegation and would cause no injustice to the Registrant. She further informed the Panel, that the Registrant was informed of the intention to amend the particulars of the Allegation, together with the terms of the proposed amendments, by a letter dated 06 April 2017. The Registrant has not raised any objection to the amendments, nor has he commented on them.  
6. Having taken the advice of the Legal Assessor, the Panel determined that the particulars of the Allegation could be amended without injustice to the Registrant and accordingly directed that the Allegation should be amended in the terms sought by the HCPC. In coming to this conclusion the Panel noted that the Registrant had been given ample notice of the HCPC’s intention to amend in the terms sought and had not raised any objection.
Procedure
7. The Panel decided to consider the facts, statutory grounds and impairment as a single stage and then, if appropriate, to consider sanction separately.
Proceeding in private
8. On the application of Ms Vignoles for the HCPC, and after taking legal advice, the Panel directed that any matter that related to the health of the Registrant should be heard in private, but that otherwise the normal rule should prevail and that the hearing and determination should be public.

Background:
9. At the time of the allegations in 2015, the Registrant was employed as a Chiropodist/Podiatrist by the Trust.  He was responsible for managing patients with long term conditions, including patients whose feet were at high risk of ulceration, seeing them in a clinic rather than in domiciliary visits as he was unable to drive.  He had been in this role since March 2007, having previously worked as a “bank worker” since 2001.
10. The Registrant’s immediate line managers were SH and CM; the HCPC’s witness, BS, was the Podiatry and Orthotics Clinical Lead and Decontamination Lead at the Trust and was appointed as Investigating Officer when these matters came to light.
11. In September 2015, it came to BS’s attention that there was an issue regarding incomplete data in relation to the Registrant’s entries on the electronic record system, Lorenzo.  In particular, there was a discrepancy between the number of patients logged in the paper diary for the Registrant’s clinic sessions, and the number of entries on Lorenzo (known as “contacts”) for each day.
12. The Trust conducted an extensive investigation into the apparently incomplete entries by the Registrant of his contacts in the Lorenzo system, together with his apparent failure to return appointment cards to the required “single point of access”.
13. A disciplinary hearing was conducted on 22 February 2016, which was attended by the Registrant. The Registrant was dismissed and there is no present information as to the nature of the Registrant’s present employment.
A summary of the evidence and other material before the Panel
14. The Panel heard the oral evidence of BS and has read her written statement, dated 30 March 2017. BS gave extensive oral evidence, responding to many questions put to her by Ms Vignoles, Panel Members and the Legal Assessor. BS described the nature of her investigations, what she had done to ascertain the facts, the documents that had been prepared in the course of that investigation and the nature of her meetings with the Registrant. In the opinion of the Panel, BS was a highly credible witness. The Panel judged her to be well briefed, credible, fair, balanced in her assessments, willing to concede lack of knowledge where appropriate and in no way prejudiced against the Registrant. The Panel concluded that BS was a witness upon whose evidence it could rely.  
15. The Panel has seen and has read a number of documents, produced by the HCPC and comprised in a bundle of 345 pages. The bundle includes documents which are relevant to the patient contacts which the Registrant had during relevant periods, evidence of the inputting by the Registrant into Lorenzo of those patient contacts, summaries made during the Trust investigation as to what the Registrant in fact did by way of inputting into Lorenzo and the filing of appointment cards, together with a comparison with what he ought to have done. The bundle also included a record of the disciplinary hearing held on 22 February 2016 and attended by the Registrant, together with a record of meetings held on 17 September 2013, 23 September 2014, 9 April 2015, 29 September 2015, 03 November 2015, 07 December 2015, 21 December 2015 and 07 January 2016. At these meetings, all of which were attended by the Registrant, issues relating to his compliance with the system for returning appointment cards and entering contact details on to the case recording system were discussed and action plans formulated. The bundle also contained relevant correspondence between the Trust and the Registrant and summary schedules produced by the Trust in support of particulars 1 and 2 of the Allegation. The bundle also contained a written “personal response” made by the Registrant in the course of the Trust’s’ investigation.
Submissions made as to facts, statutory grounds and impairment.
16. The Panel considered the submissions as to facts, statutory grounds and impairment made by Ms Vignoles on behalf of the HCPC. In summary she said as follows;
• The Panel could safely rely on the oral and written evidence of BS. She had carried out an exhaustive investigation, the results of which were set out and summarised in the documents which had been produced to the Panel. On the basis of that evidence, the Panel could safely conclude, that the HCPC had established all the elements required by both particulars 1 and 2 of the Allegation and that both particulars had been proved to the required standard of proof, namely on the balance of probabilities.
• She further submitted that the failings and omissions thus established, amount to misconduct rather than lack of competence. So far as the latter allegation was concerned, she submitted that it was clear from all the evidence available to the Panel, that the Registrant knew what was required of him.  As regards both inputting patient contacts into Lorenzo and returning appointment cards to the single point of access, he had often done so. Therefore, any failure on his part to act as alleged, could not be attributed to ignorance or lack of competence. The Registrant’s failures and omissions, were sufficiently serious in character, as to amount to misconduct.  In respect of the failure to input into Lorenzo, the failures were a clear breach of established policy, a copy of which was included in the bundle. In respect of the omission to return the appointment cards, the omission was a clear breach of custom and practice. In respect of both, the Registrant was aware of his obligations and was also aware of the risk of actual harm, that his failures and omissions could cause to patients.
• Ms Vignoles further submitted that the facts established that the Registrant’s fitness to practise was impaired, in that there was a serious risk that he would repeat his failures and omissions; further that public confidence in the profession, in the maintenance of proper standards of conduct and performance and in the regulatory powers of the HCPC would be undermined, if a finding of impairment was not made. Consequently, both the “personal” and the “public” components were engaged.
17. The Panel heard and accepted the advice of the legal assessor as to facts, statutory grounds and impairment.
18. The Panel was aware that on matters of fact [as distinct from statutory grounds and impairment] the burden of proof rests on the HCPC and that the standard of proof is the civil one namely on the balance of probabilities.
19. The Registrant has not engaged with the HCPC with regard to this hearing. However, the Registrant did engage with the Trust’s disciplinary procedures and also with regard to the various efforts made by the Trust, in particular BS, to ascertain the relevant facts and to ensure an improvement in the Registrant’s performance. The Panel took into account all that the Registrant has previously said by way of explanation.
Decision on Facts:
Particular 1 - Proved
20. The Panel found this particular proved to the required standard, namely on the balance of probabilities. In coming to this conclusion the Panel relied on the clear evidence of BS which was to the effect that between the dates alleged, the Registrant had consistently failed to input patient information into the electronic system known as Lorenzo, either in a timely manner or not at all. The Panel accepted that the information should have been inputted as soon as possible and in any event within three days of the contact. There was a clear Trust policy to this effect. There was clear evidence that, whilst for periods within the specified dates the Registrant had done what he was supposed to have done, there were other periods when he had either not inputted any of his contacts or had only inputted some of the contacts. BS told the Panel that when assessed on 18 December 2015, she concluded, as a “guestimate”, that the number of contacts not inputted into Lorenzo as at that date was about 114. The Panel has seen and examined documents which support this estimate. The Panel did not accept as credible, the explanation advanced by the Registrant during the Trust investigation that he had done all that he was supposed to have done, but that there must have been some technical failure in the Lorenzo system or that, in some way, a third party had tampered with his inputting. Accordingly, the Panel found this particular proved.
Particular 2 - Proved
21. The Panel found this particular proved to the required standard, namely on the balance of probabilities. In coming to this conclusion the Panel relied on the clear evidence of BS which was to the effect that between the dates alleged, the Registrant had consistently omitted to return patient appointment cards to the single point of access (SPA) within a reasonable timeframe following treatment sessions. The Panel accepted the evidence of BS that the appointment cards should have been returned as soon as possible and in any event within seven working days of the date of the contact. There was an established custom and practice within the Trust to this effect. There was clear evidence that, whilst for periods within the specified dates, the Registrant had done what he was supposed to have done, there were other periods when he had not returned any or all of the appointment cards. BS told the Panel that as a result of previous concerns about the Registrant’s failure to return appointment cards, his performance had been monitored; that his performance had then improved, but that after the conclusion of the monitoring period, there was evidence of a relapse, namely a resumed and consistent failure to return appointment cards. The Panel has seen an email, which BS said, and the Panel accepted, related to the Registrant, which supports a conclusion that between 15 May 2015 and 10 August 2015 numerous appointment cards had not been returned to the SPA by the Registrant. The Panel did not accept as credible, the explanation advanced by the Registrant during the Trust investigation, namely that he had done all that he was supposed to have done, but that for reasons that he could not explain, perhaps tampering by a third party, the appointment cards were not where they should have been namely with the single point of access. Accordingly, the Panel found this particular proved.
Decision on Grounds:
22. The Panel agreed with the submissions of Ms Vignoles that the failings of the Registrant could not properly be attributed to a lack of competence on his part. In this regard the Panel accepted the submissions of Ms Vignoles. In particular, the Panel concluded that the Registrant did know what was required of him as regards to both inputting his patient contacts into Lorenzo and returning the appointment cards with the SPA, indeed he had done so over sustained periods of time in the past.  His failure, in both respects, was not attributable to any lack of knowledge or lack of competence on his part.
23. The Panel then considered whether the Registrant’s acts and omissions, as has been established, were sufficiently serious in character, as to amount to misconduct. The Panel concluded that they were. Such failures were a clear breach of the Registrant’s obligations. They carried a serious risk of putting patients at risk of serious harm in particular patients with ongoing ulcers or risk of re-ulceration which, if not seen in a timely manner, could have serious adverse outcomes including possible amputation. Furthermore, the Registrant’s failings were occurred in the face of a continuing attempt by the Trust to get the Registrant to improve his performance and despite offers of help and support by his employers. The Registrant knew what he was supposed to do so, but failed to act as he should have done. The Panel did not think any of the explanations, advanced by the Registrant, as to his failures were credible. Moreover, the Panel did not think that that the health condition mentioned by the Registrant toward the end of the Trust’s investigation, was a plausible explanation for what he had failed to do. Accordingly, the Panel concluded that the Registrant’s acts and omissions as alleged in the Particulars 1 and 2 both jointly and separately amount to misconduct.
Decision on Impairment:
24. The Panel next considered whether by reason of the Registrant’s failures and omissions as identified by the Panel, his fitness to practice is impaired.
25. The Panel considered the submissions made by Ms Vignoles on behalf of the HCPC as set out above.
26. The Panel has noted and considered the explanations advanced by the Registrant with regard to his alleged failures and omissions. 
27. The Panel heard and accepted the advice of the Legal Assessor.
28. The Panel was aware that any finding as to impairment was for the independent judgement of the Panel.
29. The Panel is aware that what is to be assessed is the Registrant’s current fitness to practise.
30. In considering this issue the Panel considered and applied the principles stated by Mrs Justice Cox in the case of the Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council; Paula Grant [2011] EWHC 927 [Admin] together with the observations of Mr Justice Silber in the case of Cohen v General Medical Council [2008] EWHC 581 [Admin].
31. The Panel concluded that the Registrant’s fitness to practise is currently impaired by reason of the failures and omissions that have been identified. Its reasons are as follows;
• The Registrant has not engaged with the HCPC and has shown no insight, remorse or any evidence of remediation. The failings in question are very serious and are a fundamental departure from the duties of a Chiropodist/Podiatrist. In the absence of any evidence of insight, remorse or remediation the Panel judged there to be a clear and continuing risk of repetition. Indeed, having regard to the fact that there was clear evidence that the failures and omissions were repeated, after efforts by the Trust to ensure improvement in the Registrant’s performance and after evidence of resulting improvement, the Panel judged the risk of repetition to be a substantial one.
• Furthermore, in the opinion of the Panel, public confidence in the profession, in the regulatory powers of the HCPC and also the need to maintain proper standards, would be undermined, if a finding of impairment was not made. In the opinion of the Panel, the public would be seriously concerned if, in the face of the facts established in this case, a finding of impairment was not made.
32. For all the reasons set out above the Panel concludes that the Registrant’s fitness to practise is impaired by reason of his misconduct as set out above.
Decision on Sanction:
33. Ms Vignoles made submissions on behalf of the HCPC. She reminded the Panel that, as this was a misconduct case, all the prescribed sanctions were available to this Panel. She drew the Panel’s attention to the relevant passages in its determination and stressed the importance of the principle of proportionality, approaching the sanctions in an ascending order of severity.
34. The Panel heard and accepted the advice of the legal assessor.
35. The Panel kept in mind that the purpose of a sanction is not punitive but is designed to protect the public interest which includes protecting members of the public from possible harm, maintaining proper standards within the profession, the reputation of the profession itself and public confidence in the regulatory functions of the HCPC.
36. The Panel took into account the Indicative Sanctions Policy [ISP] that has been published by the HCPTS.
37. In considering whether to make an order, and the nature and duration of any order to be made, the Panel applied the principle of proportionality weighing the Registrant’s interests in the balance with the need to protect the public interest.
38. The Panel took into account both mitigating and aggravating circumstances.
39. Mitigating factors included the fact that there was no evidence of actual harm to any patient. Moreover, there was evidence that in December 2015, the Registrant was showing signs of improvement in terms of returning the appointment cards and inputting contacts into Lorenzo in a timely manner. The Panel also noted that the Registrant had a long career with the Trust without any significant concerns about his clinical standards being identified.
40. However, the Panel also considered the following aggravating factors. The Registrant has not engaged with the HCPC and has displayed no insight or remorse and no evidence of remediation. He does not appear to understand the gravity of his failings or that he was at fault. Moreover, the failings occurred over a lengthy period, involved a large number of patients and continued despite considerable support from his employers. Further, the Registrant put a large number of patients at a significant risk of serious harm.
41. The Panel considered the sanctions available to it in ascending order of severity. In arriving at its decision the Panel applied the principles that are set out in the ISP.
No Further Action:
42. The Panel concluded that having regard to the facts that have been found proven, to take no further action would be wholly inappropriate. Such an outcome would provide no protection to the public, would undermine confidence in the profession and in the regulatory functions of the HCPC and would not serve to maintain standards of conduct and performance within the profession.
Mediation:
43. The Panel concluded that mediation was not appropriate to a case of this kind.
Caution Order:
44. For the same reasons as those expressed in paragraph 42 (above) with regard to taking no further action the Panel concluded that a caution order would also be inappropriate.

Conditions of Practice Order:
45. The Panel concluded that a Conditions of Practice Order was also inappropriate. There are no conditions which are relevant, workable and proportionate that can properly be formulated which would address the identified failings of the Registrant or provide proper protection to the public. Moreover, the Panel concluded that a Conditions of Practice Order would be insufficient to sustain professional standards or to maintain confidence in the profession or in the HCPC as its regulator. In coming to these conclusions the Panel took into account that it had no information as to the Registrant’s present employment. Moreover, given the history of this matter, there had to be real doubt as to whether the Registrant would comply with conditions to lasting effect and whether conditions would provide sufficient protection to members of the public or would ensure that the Registrant adhered to the relevant policies and practices of an employer.
Suspension Order:
46. The Panel concluded that a suspension order for a period of 12 months would provide adequate protection to the public and was required to sustain public confidence in the profession. It would also emphasise the importance of maintaining proper standards of performance within the profession.
Striking Off Order:
47. The Panel did consider making a Striking Off Order, but concluded that, at this time, such an Order was disproportionate and in any event, the public, and the public interest, would be sufficiently protected by a 12 months Suspension Order.
Future Review:
48. This Order will be reviewed prior to its expiration. A reviewing panel might be assisted by the presence of the Registrant, together with a reflective piece which addresses evidence of his insight into these events and his understanding of the gravity of his failings. The reviewing panel might also be assisted by evidence of the Registrant’ s plans for the future and, if he wishes to remain in a profession, that requires registration as a Chiropodist/Podiatrist, evidence of the steps that he has taken to maintain his professional skills. The reviewing panel might also be assisted by evidence of what the Registrant has done by way of paid and voluntary work since leaving the employment of the Trust together with references by or on behalf of any employer, and testimonials from those who have worked with him or are otherwise well placed to provide information that might assist a reviewing panel.

Order

That the Registrar is directed to suspend the registration of Mr Andrew Thomas Garrett for a period of 12 months from the date this order comes into effect (the operative date).

The order imposed today will apply from 09 November 2017 (the operative date)

Notes

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 Article 29(10) of the Health and Social Work Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you.  The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

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 prohibited.
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, the same being necessary to protect members of the public and being otherwise in the public interest.  This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

Reasons for the making of an Interim Suspension Order:
(1) Following the announcement of the sanction and the Registrant’s right of appeal, Ms Vignoles applied for an interim suspension order.
(2) The Panel was satisfied that it was appropriate to consider the HCPC’s application for an interim order in the absence of the Registrant because he had been informed by the notice of hearing sent to him on 19 July 2017 that such an application might be made, and he has not responded with regard to that warning.
(3) The Panel considered the application in the light of the fact that the default position established by the Health and Social Work Professions Order 2001 is that when a substantive sanction is imposed, a registrant’s entitlement to practise is unrestricted, while their appeal rights against the substantive sanction are extant.  However, in the present case, the Panel is satisfied that the risk of repetition is significant, and that serious harm could result to patients, were there to be a repetition. Accordingly, the Panel is satisfied that it is appropriate to depart from the identified default position and direct that the Registrant’s registration should be suspended on an interim basis.  The order is necessary for protection of the public, and the Panel is also satisfied that the risks are sufficiently grave that a fair minded member of the public would be dismayed by the absence of such a restriction.  The Panel has concluded that the appropriate length of this interim suspension order should be 18 months, as the interim order would continue to be required pending the resolution of an appeal in the event of the Registrant giving notice of an appeal within the 28 day period. 

 

Hearing history

History of Hearings for Mr Andrew Thomas Garrett

Date Panel Hearing type Outcomes / Status
11/10/2017 Conduct and Competence Committee Final Hearing Suspended