Josephine M Noble

: Physiotherapist

: PH34576

: Review Hearing

Date and Time of hearing:10:00 05/01/2018 End: 12:00 05/01/2018

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

: Health Committee
: Suspended

Allegation

The below allegation was considered by the Health Committee at a Consent Hearing on 28 April 2015:

1. By reason of your health, your fitness to practise as a Physiotherapist is impaired.

 .

 

Finding

Preliminary Matters

Service and Proceeding in Absence

1.             The Panel found that the notice of hearing dated 5 December 2017 had been sent by first class post to the Registrant on that date. The notice specified the time and venue of the review hearing.  

 

2.             The Panel next considered whether to proceed with the hearing in the absence of the Registrant. The Panel was advised by the Legal Assessor to apply the principles set out in the HCPTS’ Practice Note, Proceeding in the Absence of the Registrant. The Panel has directed itself in accordance with that advice.

 

3.             The Panel found that the HCPC had taken all reasonable steps to serve the notice of hearing on the Registrant in accordance with the procedural rules. The hearing is mandatory review of a conditions of practice order that is due to expire on 15 January 2018. The review was adjourned on the Registrant’s application on 1 December 2017 in order to give her an opportunity both to address the new material relied on by the HCPC and to attend the review hearing. The Panel noted the content of a telephone note between the HCPC and the Registrant within which it is noted that the Registrant was not intending to come to the review hearing. Therefore, the Panel decided that it was fair in the circumstances to proceed in the absence of the Registrant.

 

Private Hearing

 

4.             Mr Stockling made an application that this hearing should be conducted in private insofar as matters were raised, which concerned the Registrant’s health. Having received advice from the Legal Assessor, the Panel decided to grant that application in view of the principles set out in the HCPTS’ Practice Note, Conducting Hearings in Private.

 

Background

 

5.             The Registrant was employed by North Tees and Hartlepool NHS Foundation Trust (the Trust) from 1992 until October 2012. She worked as a Band 6 Physiotherapist in the specialty of musculoskeletal physiotherapy. In May 2012 a colleague of the Registrant raised concerns regarding the lack of content in a set of patient notes because the notes did not contain sufficient or appropriate information. A review of the Registrant’s notes was completed and identified 19 sets of notes which gave cause for concern.

 

6.             A disciplinary investigation was requested by senior management. During the investigation, the Registrant admitted that the allegation was accurate, apologised for her actions, and prepared a statement which made connections between her poor record keeping and her health. A disciplinary hearing was held on 3 October 2012 and the Registrant was dismissed from her employment.

 

7.             The Trust referred the Registrant to the HCPC on 2 November 2012. An Investigating Committee of the HCPC referred the case to a Conduct and Competence Committee of the HCPC on 7 February 2013.  On 30 January, on the application of the Registrant, the case was transferred from the Conduct and Competence Committee to a Health Committee, pursuant to Rule 4(1) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003.

 

8.             The Registrant accepted that there needed to be long-term monitoring of her health and agreed to a conditions of practice order of a period of 3 years. A Panel of the Health Committee approved a consent order on 28 April 2015 giving effect to those conditions. 

 

9.             On 15 January 2016, there was an early review of the conditions of practice order. The HCPC alleged that the Registrant had failed to comply with a number of those conditions.

 

10.           That reviewing Panel decided to give the Registrant the benefit of the doubt that some of the conditions could have been misunderstood. However, in the light of the findings of the original Panel and the updated information, it expressed the view that it was as important for public protection as it was for the Registrant herself that her practice be subject to restrictions. The Panel considered that conditions could continue to address the risks in question, without suspension being required.  The Panel considered that a period of two years would be sufficient, to evidence whether she can practise safely.  

 

11.           The order made by the reviewing Panel of that occasion was as follows.

 

 

‘The Registrar is directed to vary the current Conditions of Practice Order against the registration of Mrs Josephine M Noble with immediate effect with the following Conditions of Practice for a period of 2 years:

 

1.  You must place yourself under the care of your GP, attend upon them as required by them, and follow their advice and recommendations.
 
2.  You must inform your GP that you are subject to a conditions of practice order und
er the HCPC's fitness to practise procedures, and disclose these conditions to them.
 
3.  You must allow your GP to exchange information about your health, treatment and compliance with this conditions of practice order with the HCPC.

 

4. You must inform the following parties that your registration is subject to these conditions:

 

a) Any organisation or person, employing or contracting with you to undertake work as a HCPC registered physiotherapist, and this includes any placement you are given;

 

b) Any agency you are registered with, either currently, or in the next 12 months that could supply you with work as a physiotherapist;

 

c) Any prospective employer (at the time of application).

 

5. You must provide the HCPC with a medical report every 6 months (from the date of the hearing).  This report should attest to your ability to practise as a physiotherapist safely and effectively.

 

6. You must provide the HCPC with a report every 3 months (from the date of this hearing) from your workplace.  This report must be completed by a HCPC registered physiotherapist and attest to your ability to keep patient records to the required standard.

 

7. You must provide to the HCPC as soon as possible but no later than the end of February 2016, written confirmation from Orchard Medical Employment Agency and any other agency that you are registered with, that they are aware of the current order of conditions restricting your ability to practise.’

 

12.           The case was listed for review on 1 December 2017. In adjourning the case on that occasion at the request of the Registrant, this Panel stated in its decision that there was little information within the bundle in relation to compliance with Conditions 5 and 6 and stated that the reviewing Panel would be greatly assisted by the attendance of the Registrant at the adjourned hearing.

 

Decision

 

13.           Mr Stockling outlined the background to this review and referred to information that had come to the attention of the HCPC as a result of a written referral dated 3 February 2016 from Gateshead Health NHS Foundation Trust. The referral alleged that the reports and records complied by the Registrant while working for that NHS Trust had been deficient or wholly absent in a number of respects. The information on which that referral was based consisted of reports prepared by a Ms. JS, the Physiotherapy Manager of the physiotherapy department of Queen Elizabeth Hospital. The HCPC did not propose to call Ms JS to give evidence and it had not produced the records, which were alleged to have been deficient. The Registrant denied the allegations contained in this material.

 

14.           The Legal Assessor advised that it would be unfair in the circumstances to admit this material in evidence and that the Panel should decide the issue of fairness as a preliminary matter. He referred to Bonhoeffer v GMC [2011] EWHC 1585 (Admin) and in particular to paragraph 108(viii) of the judgment of Stadlen J. Mr Stockler submitted that it was fair to admit the evidence.

 

15.           The Panel decided that it would be unfair to admit this evidence. It was nearly 2 years old and had been in the possession of the HCPC for that period. The HCPC chose not to deploy it at the time, because it took the view that the Registrant was complying with the conditions of practice at the time. In November 2017, the HCPC chose to share that information with the Registrant and she disputed it. The HCPC did not propose to call any oral evidence to support these allegations and had not produced the relevant documents. Therefore, the Panel decided that it would be unfair to admit that material into evidence and that it should be excluded accordingly.

 

16.           Mr Stockling submitted that the Registrant had not complied with Conditions 5 and 6 for some time and that in the circumstances the Panel should exercise its powers of sanction under Article 30, Health and Social Work Professions Order 2001 (‘the 2001 Order’).

 

17.           The Legal Assessor advised that in practical terms there was a persuasive burden on the Registrant to show that her fitness to practise is no longer impaired and that all the shortcomings which led to the original finding of impairment have now been overcome. He advised that if the Panel were to decide that the Registrant’s fitness to practise continued to be impaired, it should decide how to exercise your powers under Art. 30(1) of the 2001 Order.  He advised that the effect of those powers in the circumstances was that all the available orders of sanction were available, including a striking off order, as the Registrant has been subject to a conditions of practice order for a continuous period of 2 years. The Panel has accepted that advice.    

 

18.           The Panel found that the Registrant has failed to comply with Conditions 5 and 6. The most recent medical report provided was that dated 14 March 2017. The Registrant has failed to provide a further medical report, as she was required to do by Condition 5. The most recent workplace report provided was that dated 30 November 2016, from United Lincolnshire Hospitals NHS Trust. It was clear from the medical report of 14 March 2017 that the Registrant had ‘continued to work, almost without a break over the last few months’. In the attendance note dated 4 January 2018 of a telephone conversation between Mr Stockling and the Registrant, it was recorded that on 22 December 2017 the Registrant had finished a 3 month locum placement at Borne, Lincolnshire. In those circumstances, the Registrant has failed to comply with Condition 6 by not providing workplace reports at 3 monthly intervals.

 

19.           The conditions of practice order was designed to enable the Registrant to practise safely. The reports identified by Conditions 5 and 6 would give the regulator and reviewing panels essential insights into the state of the Registrant’s health condition and the extent to which it might (or might not) be adversely affecting her ability to practise safely and effectively. The Registrant did not take the opportunity given to her by the adjournment to produce this evidence or any more up-to-date evidence of the nature set out in Conditions 5 and 6.

 

20.           In those circumstances, the Panel reluctantly concluded that the Registrant has not shown that the health concerns underpinning her impaired fitness to practise have been overcome. Therefore, her fitness to practise continues to be impaired.

 

21.           In deciding the issue of sanction, the Panel has concluded that there is a worrying lack of engagement on the part of the Registrant for the reasons set out earlier in this decision. She has not been complying with the conditions of practice order in important respects and for a significant period of time. Conditions of practice are no longer appropriate, because compliance with those conditions was necessary in order to protect members of the public and maintain public confidence in the profession and its regulation.

 

22.           Accordingly, the Panel has decided that a period of suspension for 6 months is necessary in order to protect the public and to maintain public confidence in the profession and its regulation.

 

23.           However, should the Registrant provide up-to-date information regarding her health and workplace reports for her employment in 2017, she may apply for an early review of this order.

 

24.           This order will be reviewed in any event before it expires. The Panel did consider that a striking off order would have been disproportionate at this stage. However, depending on the circumstances, for example, a continued lack of meaningful engagement by the Registrant, a subsequent reviewing Panel may consider that such an order is appropriate.

Order

Order: That the Registrar is directed to suspend the registration of Josephine M Noble for a period of 6 months from the date this order comes into effect.

 

 

Notes

The order imposed today will apply from 15 January 2018

Hearing history

History of Hearings for Josephine M Noble

Date Panel Hearing type Outcomes / Status
09/07/2018 Health Committee Review Hearing Hearing has not yet been held
05/01/2018 Health Committee Review Hearing Suspended
01/12/2017 Health Committee Review Hearing Adjourned
15/01/2016 Health Committee Review Hearing Conditions of Practice
28/04/2015 Health Committee Final Hearing Conditions of Practice