Tobias W Barnes

: Occupational therapist

: OT31173

: Review Hearing

Date and Time of hearing:12:30 15/12/2017 End: 17:00 15/12/2017

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

: Conduct and Competence Committee
: Struck off

Allegation

Allegation (as found proved at Substantive Hearing):

During the course of your employment as an Occupational Therapist at Kent and Medway NHS and Social Care Partnership:

1. Between 27 October 2014 and 5 January you did not ensure that required actions were undertaken in relation to service users on your case load in that you:

a. Did not undertake and/or record a core assessment in relation to Service User B;

b. Did not undertake and/or record a care plan in relation to Service User D;

c. On or around 20 November 2014 you did not update RiO in relation to Service User C.

2. You did not manage your caseload effectively and/or did not communicate appropriately with clients in that:

a. In or around November 2014 you had a heated conversation with Service User A;

b. On or around 18 November 2014 you did not attend a scheduled appointment with Service User B;

c. On or around 3 December 2014 you did not make contact with Service User E in order to undertake an occupational therapy assessment.

3. You did not attend a scheduled appointment with Service User F in or around November 2014 at her GP Practice.

4. Between 27 October and 5 January 2015 you did not provide adequate supervision to a junior member of staff in that you did not arrange supervision meetings.

5. Between 27 October 2014 and 5 January 2015 you did not keep up to date with necessary training, in that you did not complete manual handling object training.

6. You fell asleep at work:

a. On 14 November 2014 during a team meeting; and

b. On 20 November 2014 at your desk.

Finding

Preliminary matters:

Service

1. The Panel has been convened to undertake the review of a substantive order of suspension on the registration of the Registrant, Mr Tobias Barnes, for a period of 12 months.  The suspension order was made on 4 January 2017, by a panel that conducted the final hearing of the HCPC’s allegations.

2. The Registrant has neither attended the hearing nor been represented at it.

3. The Panel first considered whether a valid notice of hearing had been sent to the Registrant.  The conclusion of the Panel was that the letter dated 14 November 2017, informing the Registrant of the date, time and location of the hearing satisfied this requirement.

Proceeding in absence

4. The Panel next considered the application made on behalf of the HCPC that the hearing should proceed in the absence of the Registrant.  The Panel gave careful consideration to this application and heeded the advice of the Legal Assessor and also had regard to the factors identified in the HCPTS Practice Note on the topic.  The conclusion of the Panel was that the hearing should proceed in the Registrant’s absence for the following reasons:

• Notice of the hearing had been provided in proper form to the Registrant by the letter dated 14 November 2017 to which reference has already been made.  The same information was contained in an email sent on the same day.  Furthermore, the hearing bundle, which also clearly stated the date of the review, was sent to the Registrant on 4 December 2017.

• The last engagement in the HCPC fitness to practise process on the part of the Registrant was prior to the original date of the final hearing on 22 June 2016.  That original hearing was adjourned because of information provided by the Registrant. The panel conducting that hearing directed that the Registrant should notify the HCPC no later than 31 July 2016, whether or not he would be participating in the hearing by way of attendance at the hearing or by telephone or by written submission.  In the event, there was no communication of any nature by the Registrant before the final hearing was re-scheduled to commence on 3 January 2017, and there has been no communication by him since that hearing concluded.

• The absence of the Registrant at this review is despite the suggestions of the final hearing panel that it would be in his interest to attend.

• The Registrant has not applied for an adjournment of the present hearing.

• The review of the Order is required to be undertaken before 1 February 2018 because, once the Order expires, jurisdiction to undertake a review will be lost.

• In the light of these matters, the Panel was unable to conclude that the Registrant would be likely to attend the hearing, or otherwise engage in the hearing to a greater extent, before 1 February 2018, if the present hearing were to be adjourned.

• In these circumstances the clear public interest in the review proceeding outweighs the absence of the Registrant.

Background:

5. The background to the case, as considered at the final hearing, is that at the relevant time the Registrant was working as a Band 6 Occupational Therapist in the Ashford Community Mental Health Team for Older People (the Team) at Kent and Medway NHS and Social Care Partnership Trust (“the Trust).  The Registrant was subject to a performance management process which arose due to a number of concerns relating to his practice.

6. The allegations referred to the Conduct and Competence Committee by the Investigating Committee reflected the referral that was made to the HCPC by the Trust.  The allegations are set out at the head of this document.  The final hearing panel found all the factual particulars to be proved.  As can be seen from the terms of the factual particulars, the findings against the Registrant included not undertaking actions he was required to take, not communicating effectively with service users, not keeping an appointment, not providing adequate supervision to a junior member of staff and not keeping up-to-date with necessary training.

7. When the final hearing panel considered the statutory grounds, it decided that the Registrant’s actions fell far below the standards to be expected of an Occupational Therapist working at Band 6 and that he had breached fundamental tenets of his profession.  The Panel found that his behaviour amounted to misconduct.

8. The final hearing panel found that the Registrant’s fitness to practise was impaired at the time of the final hearing by reference to both the personal and public components.  The personal component was satisfied by the fact that the Registrant had not demonstrated insight or remorse or provided any evidence of remediation.  The final hearing panel found that there was a high risk of him repeating conduct of the sort that had been found against him.  The final hearing panel also found that it was necessary to reach a finding of impairment of fitness to practise to satisfy the wider public interest.

9. When the final hearing Panel considered the appropriate sanction to be imposed, it decided that it should be a Suspension Order for a period of 12 months.  It decided that such an order would enable the Registrant to reflect on the findings against him, and develop a willingness to bring about changes to his approach.  A review of the suspension order would give the Registrant an opportunity to engage in the fitness to practise process and demonstrate that his fitness to practise is no longer impaired.  Accordingly, the final hearing panel made a number of suggestions to the Registrant in the following terms:

A reviewing Panel may be assisted by the following:

• The Registrant’s personal attendance at the Review Hearing.

• Evidence of the Registrant’s reflections on the findings made against him.

• Evidence of insight and remedial steps.

• References or testimonials in respect of paid or voluntary work.

• Evidence that the Registrant has kept his knowledge of practice up to date through relevant CPD.

• Any other evidence the Registrant considers being relevant.

10. There has been no engagement on the part of the Registrant since the final hearing.

Submissions at the present review:

11. The Presenting Officer opened the case, explained the background to the allegations and summarised the findings of the final hearing panel.  He made submissions as to the approach the present Panel should take in deciding the matter and identified the available sanctions.  He suggested that the least restricted sanction that would be appropriate, in the circumstances, would be a further period of suspension, submitting that a Conditions of Practice Order would not address the findings made.  He also invited the Panel to consider whether a striking-off order should be made.

12. There were no submissions made by or on behalf of the Registrant.

Decision:

13. The Panel has approached the review of the Suspension Order on the basis that it was first required to decide if the finding of misconduct made by the final hearing panel in January 2017, is still impairing the Registrant’s fitness to practise.  If the conclusion of that first decision is that there is no continuing impairment of fitness to practise, then there should be no further sanction imposed upon the expiry of the present period of suspension.  If, on the other hand, there is continuing impairment of fitness to practise, then the consideration of a sanction would be required, applying the usual sanction criteria.  As the finding was one of misconduct, the entire sanction range up to, and including, the making of a striking-off order, is available.

14. The Panel approached its decision of the issue of impairment of fitness to practise by considering both the personal and public components.

15. The conclusion of the present Panel is that there are no reasons to conclude that the Registrant’s fitness to practise is any less impaired than it was when the final hearing was conducted.  There is no evidence of apology, reflection, insight or of any steps taken towards remediation.  In these circumstances, the risk of repetition identified by the final hearing panel still exists, and this fact requires a finding of impairment of fitness to practise on consideration of the personal component.  The present Panel is also satisfied that a finding of current impairment of fitness to practise is required in the wider public interest as fair minded and fully informed members of the public would be dismayed at the prospect of an Occupational Therapist in the present position of the Registrant being permitted to return to unrestricted practice.

16. The Panel concluded that a sanction will remain necessary upon the expiry of the present period of suspension.  A Caution Order would not offer a suitable degree of protection against the risk of repetition.  In the judgement of the Panel, conditions of practice are not appropriate as this is a case involving persistent failures and there is no suggestion that the Registrant wishes to return to practise as an Occupational Therapist or that he would be committed to resolve matters if he did so.

17. The rejection of conditions of practice as a suitable disposal meant that the Panel next considered ordering a further period of suspension.  The failings identified in this case were of a type that are capable of being remedied.  That being the case, the present Panel takes the view that if there were grounds for believing that the Registrant would seek to remedy the identified shortcomings, suspension would be appropriate until he could safely be permitted to return to practice.  In those circumstances striking-off would be disproportionate while that possibility remains.  However, having given the matter careful consideration, the present Panel has concluded that there are no grounds for believing that the Registrant will seek to remedy his shortcomings.  It has been 18 months since there has been any communication made by the Registrant to his regulator, and that failure is despite the suggestions made by the final hearing panel nearly a year ago.  In these circumstances the present Panel is unable to conclude that there is a realistic prospect that the Registrant will seek to address his shortcomings in the future.  In these circumstances the Panel has concluded that the making of a further Suspension Order cannot be justified.

18. The rejection of a Suspension Order as an appropriate outcome means that the Panel has determined that a Striking-off Order is required.  The Panel is satisfied that in circumstances where the Registrant cannot be permitted to return to unrestricted practice because of the risk of harm to service users, yet there are no grounds for thinking that the deficiencies will be addressed, a striking-off order is both necessary and proportionate.

 

Order

Order: Upon the expiry of the present period of suspension, namely with effect from 1 February 2018, the Registrar is directed to strike the name of Mr Tobias W Barnes from the register.

Notes

No notes available

Hearing history

History of Hearings for Tobias W Barnes

Date Panel Hearing type Outcomes / Status
15/12/2017 Conduct and Competence Committee Review Hearing Struck off
03/01/2017 Conduct and Competence Committee Final Hearing Hearing has not yet been held