Mrs Louise J Middleton

: Dietitian

: DT6126

: Final Hearing

Date and Time of hearing:10:00 15/01/2018 End: 17:00 19/01/2018

: Hilton Edinburgh Carlton, 19 North Bridge, Edinburgh, Midlothian, EH11SD

: Conduct and Competence Committee
: Conditions of Practice

Allegation

(as amended at the Final Hearing)

During the course of your employment as a Dietitian with NHS Fife, on dates in or between February and August 2011, you:

1. On dates between May and June 2011 in relation to Case 1, you did not maintain accurate patient records, in that you:

(a) altered an electronic version of a dietetic letter originally dated 25 May 2011;

(b) destroyed the paper copy of the dietetic letter dated 25 May 2011, previously filed In the dietetic notes, and replaced It with the amended version;

(c) did not file three emails dated 1-3 June 2011 in the dietetic records

2. On dates between February and June 2011 in relation to Case 1, you did not conduct an adequate assessment of a Service User, In that you:

(a) did not take into account and/or adequately consider the case history of  the service user when conducting your own dietetic assessment and plan;

(b) did not use the correct growth chart and/or did not plot growth chart correctly;

(c) did not sufficiently consider and/or review the information provided by the Health Visitor.

3. On dates between February and June 2011 in relation to Case 2, you:

(a) did not undertake an adequate assessment in respect of the Service User, in that you:

i. did not adequately review and/or consider the medical notes and/or nursing notes and/or food balance charts to determine the nutritional intake and/or

ii. did not complete and/or plot the preterm growth chart correctly and/or accurately.

(b) did not formulate an appropriate dietetic plan, in that:

i. there was no and/or inaccurate information on the feeding requirements; and/or

ii. there was no plan for frequency of review; and/or

iii. you did not adequately consider and/or identify that the Service User was being given diuretics and/or

iv. Identified 4 feeds a day as being adequate

(c) did not follow a jointly agreed dietetic plan;

(d)  from 21 March to 5 April 2011, did not liaise and/or communicate appropriately with consultant medical staff and/or nursing staff in respect of the Service User's dietetic plan;

4. In relation to Case 4:

(a) On or around 25 March 2011 an urgent referral was made to you and you did not carry out a visit until 11 April 2011;

(b) You did not undertake an accurate anthropometric assessment of the Service User in that, you:

i. did not calculate the infant's gestational age correctly; and/ or

i. did not plot the growth chart correctly.

(c) You did not undertake an adequate initial assessment in that, you:

i. did not assess and/or calculate the infant's actual consumed intake; and/ or

ii. did not assess and/or calculate information relating to feeds such as;

a. timing of feeds, and/or

b. length of time to complete feeds, and/or

c. sucking ability, and/or

d. feed losses

(d) You did not take appropriate account of the child's diagnosis and the likely impact on feeding;

(e) You did not make appropriate plans for frequency of review;

(f) You did not seek advice from and/or contact the Consultant medical staff.

5. On or around 5 May 2011 in relation to Case 5, you:

(a) did not follow the medical management plan;

(b) did not discuss a change of plan with the doctor and/or document reasons for a different course of action;

(c) did not undertake an adequate assessment of the Service User in that, you:

i. did not review and/or consider information in the medical notes, including blood results; and/ or

ii. did not appropriately consider and/or assess information provided by the Service User and her carer.

(d) did not undertake an accurate anthropometric assessment in that, you:

i. did not measure the Service User's height accurately; and/or

ii. did not plot the Service User's age correctly on the growth chart; and/or

iii. did not review the anthropometric data in the medical notes; and/ or

iv. did not correctly plot and/or interpret data relating to the Service User's nutritional status.

(e) did not determine an appropriate dietetic intervention for the Service User's clinical condition;

(f) did not set clinically appropriate treatment goals and/or rationales for treatment of the Service User's condition;

(g) requested that a GP undertake blood tests, including some that were unnecessary;

(h) did not put in place an appropriate plan for review.

6. In respect of Case 6, you:

(a) did not plot accurately the Service User's weight and/or height measurements on a growth chart;

(b) incorrectly estimated nutritional requirements for the Service User's age and condition in order to plan the feed;

(c) incorrectly described the infant as small gestational age without plotting measurements on centile charts;

(d) documented the need to discuss pump feeding with the Service User's parents, but did not document any such discussions

(e) did not advise the Service User's parents on an effective, practical feeding plan to achieve satisfactory weight gain.

7. In respect of Case 7, you:

(a) did not obtain any and/or sufficient information about the infant's recent feeding history;

(b) did not undertake an accurate anthropometric assessment in that you did not plot the growth chart correctly;

(c) did not appropriately discuss your findings with the doctor;

(d) did not re-assess nutritional intake to compare with requirements when you realised that despite your request to the GP to prescribe SMA High Energy formula, the baby was still consuming standard formula.

8. On dates between 25 May 2011 and 2 June 2011 in relation to Case 7, you:

(a) did not assess the Service User's actual nutritional intake and/or document nutritional aims;

(b) did not record in the dietetic record the date when the infant's feed changed to SMA High Energy formula;

(c) did not record in the dietetic record any advice given regarding maximum length of time to feed.

9. On or around 18 May 2011 in relation to Case 8, you:

(a) did not make accurate records in that you did not make it clear whether the infant changed to SMA High Energy milk;

(b) documented that a prescription request was sent on 18 May 2011 when in fact it was sent on 30 May 2011;

(c) did not adequately assess and/or calculate information relating to feeds such as;

i. infant’s actual consumed intake; and/or

ii.  timings of feeds; and/or

iii. length of time to complete feeds; and/or

iv. sucking ability; and/or

v. feed losses

10. In respect to Case 9, you:

(a) did not communicate effectively with the Service User's parents in that, you:

i. provided the Service User's parents with conflicting and/or misleading information about the child's condition; and/ or

ii. gave the Service User's mother inadequate written supplementary information.

11. In respect of Case 10, you:

(a) did not measure the child's height accurately;

(b) did not plot available weights and lengths from medical correspondence and/or medical notes;

(c) did not carry out an adequate assessment in that you did not review and/or consider

i. the Service User's total fluid intake; and/or

ii. eating environment; and/or

iii. number of children in the household;

(d) did not provide appropriate advice based on nutritional strategies that are known to work with this service user group.

12. Your actions at particular 1(a) and 1(b) were dishonest.

13. The facts set out in paragraphs 1-12 constitute misconduct and/or a lack of competence.

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

 

Finding

Preliminary matters

1. The case for the Health and Care Professions Council (the “HCPC”) was presented initially by Mr Adam Ross and subsequently by Ms Leila Chaker of Kingsley Napley. The Registrant was present and represented by Ms Althea Brown of Counsel.

2. The Panel considered Mr Ross’s application to amend the allegation in the manner set out with strike-throughs for the text to be removed and the text to be added shown in bold. Mr Ross advised that the amendments served to clarify the particulars and made various grammatical changes and better reflected the evidence. Notice of the proposed amendments had been served on the Registrant and Ms Brown had no observations on the application.

3. The Panel considered the submissions of Mr Ross together with the advice of the Legal Assessor. The Panel was satisfied that amendments better reflected the documentary evidence within the bundle. The Panel was also satisfied that they did not cause any prejudice or injustice to the Registrant. The Panel therefore agreed to grant the application in full.

4. The Registrant admitted the facts of particulars 1(a), 1(b), 1(c), 2(a), 2(b), 2(c), 3(a)(ii), 3(b)(i), 3(b)(iii), 3(b)(iv), 4(c)(i), 4(c)(ii), 4(d), 4(e), 4(f), 5(a), 5(b), 5(c)(i), 5(d)(i), 5(d)(ii), 5(d)(iii), 5(g), 6(a), 6(d), 6(e), 7(a), 7(b), 7(c),  7(d), 8(a), 8(b), 8(c), 9(a), 10(a), 11(a), 11(b), 11(c) and 11(d). The Registrant denied the facts of particulars 3(a)(i), 3(b)(ii), 3(c), 3(d), 4(a), 4(b)(i), 4(b)(ii), 5(c)(ii), 5(d)(iv), 5(e), 5(f), 5(h), 6(b), 6(c), 9(b), 9(c)(i), 9(c)(ii), 9(c)(iii), 9(c)(iv), 9(c)(v) and 12 of the allegation.

5. Prior to the evidence of JM, an expert witness, Ms Brown applied to the Panel for consent to cross-examine her as to the instructions provided by HCPC on the grounds that the report did not reflect the allegations and that the expert witness did not address the instructions she was asked to. Ms Chaker opposed the application and advised the Panel that the witness’s report followed precisely the structure she was asked.

6. The Panel considered the submissions of Ms Brown, Ms Chaker and accepted the advice of the Legal Assessor. The Panel also had regard to the HCPTS Practice note on Opinion Evidence, Experts and Assessors. The Panel has considered the report produced by the witness and is of the view that the instructions are clear and concise and that the final report addresses the questions asked. Whilst the Panel makes no finding at this stage as to whether this evidence is accepted, the Panel does not find that there are reasonable grounds for considering that the statement in the report of the substance of the instructions is either inaccurate or incomplete and therefore refuses the application. 

7. At the close of the HCPC case, Ms Chaker advised that she was not asking the Panel to find the facts of particular 5(h) proved. Ms Chaker also made a further application to amend Particular 4(a) by adding the words “On or around 25 March 2011 an urgent referral was made to you and you” and deleting these words from the stem of particular 4. Ms Chaker advised that this served to clarify the particular and that the date was isolated to sub-particular 4(a). Ms Brown did not oppose the application and having considered the submissions and the advice of the Legal Assessor, the Panel agreed to grant this application as it was satisfied that it could be done without causing any injustice to the Registrant.

8. Ms Chaker also applied to amend particular 3(b)(ii) by inserting the word “appropriate” prior to the word “plan”. Ms Brown opposed the application on the grounds that her cross-examination had been conducted on the basis of the allegation of there being no plan in place, as opposed to the absence of an appropriate plan. Having considered the submission of both parties and the advice of the Legal Assessor, the Panel refused this application on the grounds that it fundamentally changed the nature of the allegation and would cause injustice to the Registrant.

9. At the conclusion of the evidence, during the Panel’s consideration of the facts, the Panel, of its own volition and having taken the advice of the Legal Assessor, made a further amendment to Particular 4 by inserting the word “You” at the commencement of the individual sub-paragraphs (b) to (f) so as to preserve grammatical correctness.  The amendment made at the conclusion of the HCPC’s case to the stem of the Particular (which resulted in most of it being amalgamated into sub-paragraph (a)) inadvertently removed the word “You” from the end of the stem, so the Panel considered it appropriate to restore it.  The parties had no objection to this consequential amendment. 

Half -Time Submissions

10. At the close of the HCPC’s case, Ms Brown made a submission of no case to answer on the grounds that the HCPC had not produced evidence which is capable of supporting a finding of impairment on the grounds that the HCPC had not presented evidence such that the Panel could properly conclude that the question of dishonesty could be found or that the statutory grounds of misconduct or lack of competence have been met.

11. Ms Chaker opposed the submission on the grounds that it would be open to the Panel to find a lack of competence on the basis of the test set out in the case of Holton as the matters referred to by Ms Brown were in fact personal to the Registrant and should be disregarded in considering the standard of competence to be applied. Ms Chaker also advised that depending on the findings of the Panel and in particular the question of dishonesty, it would also be open to the Panel to find that the Registrant’s actions amount to misconduct. In relation to the question of dishonesty, Ms Chaker stated that there was a compelling inference that the Registrant’s actions amounted to dishonesty and that if there was an innocent explanation that would be a matter for the Registrant to advance in her evidence.

12. The Panel considered the oral and written submissions of Ms Brown and Ms Chaker, together with the advice of the Legal Assessor and had regard to the HCPTS Practice Note on Half-Time Submissions. The Panel also applied the test set out in the case of R v Galbraith.

13. The Panel is aware that the onus is on the HCPC to prove its case and no useful purpose would be served in continuing these proceedings if the Panel is satisfied that on the basis of the case put before it, there is no real prospect of the Council discharging that burden of proof. The Panel is aware that in considering this submission, it should only have regard to the evidence presented by the HCPC and should disregard any evidence produced by the Registrant. The Panel is also aware that in reaching its decision, it should consider the HCPC case, taken at its highest and that it is not considering issues of weight to be attached to the evidence presented.  The Panel is also aware that the question of whether the facts amount to the statutory grounds does not require separate proof but is a matter for the professional judgement of the Panel.

Dishonesty

14. Ms Brown submitted that there remains an innocent explanation for the Registrant’s actions and invited the Panel to conclude that there was no case to answer on the issue of dishonesty. Ms Chaker advised that there was a compelling inference that the Registrant acted dishonestly and that if there was an explanation, this would be a matter for the Registrant to advance in her evidence.

15. The Registrant has admitted the factual basis in respect of which the question of dishonesty arises. The Registrant has accepted that she altered an electronic version of a dietetic letter, destroyed a paper copy of that letter and replaced it with the amended version.  The Panel is aware of the two stage test for dishonesty as set out in the case of Ghosh (as amended) which requires both an objective and subjective test. The Panel has considered whether on the basis of the evidence presented by the HCPC, it would be open to a Panel to find that the Registrant’s actions would be considered dishonest by the standards of reasonable and honest Dietitians and, if so, whether by those standards, the Registrant in fact realised that what she was doing was dishonest. 

16. The Panel has considered the evidence of the meeting with JN, a dietitian, where she states that she was “a bit shocked” by the Registrant’s actions. The Panel also considers that it could find that reasonable and honest dietitians would consider the Registrant’s action in destroying an original letter and replacing it with an amended one, to be dishonest. The Panel is therefore of the view that it would be open to it to find that the first limb of this test has been met. The Panel also considers that the Registrant’s actions could be seen as an attempt to conceal the first letter and that the Panel could find that she in fact realised that what she was doing was dishonest. Equally there could be an innocent explanation from the Registrant. However at this stage of the proceedings, the Panel must disregard any evidence submitted by the Registrant. Taking the HCPC’s case at its highest, the Panel therefore rejects the Registrant’s submission in relation to the question of dishonesty.

Lack of Competence

17. Ms Brown has submitted that the facts alleged could not be found to amount to the statutory ground of lack of competence. In support of this argument, Ms Brown has addressed the Panel on the question of the standard of proficiency to be applied to a practitioner returning to practise after a period of absence and doing so on the basis of a phased return.

18. Ms Chaker and Ms Brown have directed the Panel to a number of authorities and in particular, the case of Holton v the General Medical Council which sets out the appropriate standard to be applied in considering the issue of lack of competence. The Panel accepts that the appropriate standard is the standard applicable to the post to which the Registrant was appointed which, in this case, was a Band 7 Dietitian. There is evidence that the Registrant was employed at that level and was undertaking work at that level. The Panel also accepts that the performance should be that which is expected of a competent practitioner in the circumstances.

19. The Panel has considered the personal factors as identified in the case of Holton as irrelevant in assessing the adequacy of professional performance. That case identifies issues such as insufficient training or education, professional isolation due to a doctor’s personality or behaviour as factors to be disregarded in assessing deficient performance. The Panel has also considered the issues described in the case of Holton as external factors, such as pressure of work, any lack of resources and professional isolation due to lack or absence of colleagues as relevant factors is assessing the adequacy of professional performance.

20. The Panel considers that it would be open to them to find that the level of supervision and the circumstances of the Registrant’s phased return are matters which are personal to the Registrant as they arose from issues regarding her competency which then led to a period of leave, as opposed to external factors over which the Registrant had no control. Given that the Panel could take this view, it would therefore be open to the Panel to disregard these matters when considering the standard of competency against which the Registrant is to be measured. The Panel has also considered the Expert’s report which sets out concerns in relation to the Registrant’s practice, together with the evidence of the other HCPC witnesses which covers a wide range of failures in the Registrant’s practice, including failures in communication and recordkeeping and relating to a number of children over an extended period of time.  Taking this evidence at its highest, it would be open to the Panel to find that this covers a fair sample of the Registrant’s work and it would be open to the Panel to reach a judgement that these matters amount to a lack of competence. The Panel therefore rejects the submission in relation to the grounds of lack of competence.

Misconduct

21. Ms Brown has submitted that the facts alleged could not be found to amount to the statutory ground of misconduct. Given that the Registrant is facing an allegation of dishonesty and given the broad range of failings alleged, involving a number of children, the Panel is of the view that it would be open to it to find that these matters could amount to misconduct. The Panel therefore rejects the submission in relation to the grounds of misconduct.

Background 

22. The Registrant commenced employment at Kirkcaldy & Levenmouth Community Health Partnership as a Band 7 Paediatric Dietitian in December 2009. She worked within the Dietetic Department as part of the Paediatric Dietetic Team (“the Team”). The Team provides a variety of integrated paediatric dietetic services in a range of inpatient, day case and community settings including the neonatal unit, the children’s ward, outpatient settings and the child’s home and other community settings.  The Registrant had a range of patients of various ages.

23. In January 2010 the Registrant had been in post for four weeks, when she raised concerns with Witness 1, Clinical Lead Paediatric Dietitian, about her abilities to undertake the duties required of her. As a result of the concerns raised, she was provided with additional support through training and supervision including regular meetings with Witness 1. In March 2010, Witness 1 updated JG, Professional Head of Service, of the level of support that she was providing to the Registrant and informed her that she was concerned that there appeared to be no learning by the Registrant and that the most basic errors were being made. JG stated that further monitoring and supervision was required for a period of three months. It was agreed that Witness 1 would continue to support the Registrant.

24. The Registrant commenced sick leave from 24 May 2010. It was subsequently decided that a phased return to work programme would be put in place for the Registrant prior to her return to work on 22 February 2011. A repeat induction and orientation programme were also agreed, with a phased return to work and a gradual re-introduction to clinical work in the form of a 12 week plan.

25. In May 2011, Witness 2, a Dietitian, raised concerns about the Registrant’s practice in respect of child 2. On 16 May 2011, a meeting took place with the Registrant to review progress at the completion of the 12 week phased return. Areas of improvement were noted, but there were still a number of areas where improvement had not been met or sustained. It was agreed that an extension of eight weeks should be given before she would undertake the full range of duties for a band 7 Paediatric Dietitian and that, during this time, her caseload would not be increased.

26. On 31 May 2011, Dr EM, Associate Specialist in Paediatrics, approached Witness 1 to express concerns about the Registrant’s clinical practice in respect of child 5. On 2 June 2011, Witness 1 received an email form Dr SA, Consultant Paediatrician, expressing concerns about a letter issued and amended by the Registrant in respect of Child 1.

27. The Registrant was suspended on 6 June 2011 pending a formal investigation. Witness 1 commenced an investigation and reviewed 10 of the Registrant’s cases.  Throughout the cases that she reviewed there were common themes that were apparent. These were in respect of inadequate communication; failure to follow instructions and plans agreed; poor clinical assessment; failure to analyse and interpret information; failure to formulate appropriate clinical interventions and failure to take responsibility for making decisions.

Decision on Facts

28. In considering this case the Panel bore in mind that the burden of proving the facts rests upon the HCPC and that the standard of proof is the civil standard of the balance of probabilities. It has taken account of all the evidence presented to it, namely the written and oral evidence of the witnesses listed below, together with the documentary evidence provided by the HCPC and the Registrant. It has also considered the detailed submissions of Ms Chaker and Ms Brown, and has accepted the advice of the Legal Assessor.

29. The Panel particularly noted the Legal Assessor’s advice that, notwithstanding that the HCPC’s Procedure Rules do not have a specific provision which indicates that a Panel can find the allegations proved by simply relying upon the Registrant’s admissions of those allegations, there was likewise nothing in the Rules to prevent it from doing so if it was satisfied that the admissions were well-informed, not made for reasons of expediency or duress and had been made with the benefit of legal advice.  Consequently, the Panel noted that it would be entitled to treat those admissions as determinative of the factual allegations, particularly if the admissions tallied with the evidence presented by the HCPC (such being summarised in Ms Chaker’s detailed submissions). 

30. The Panel heard evidence from three witnesses on behalf of the HCPTS: JM, an expert witness; AMcL (Witness 1) Clinical Lead Paediatric Dietitian and LH (Witness 2) a Band 7 Dietitian both of whom were employed at Kirkcaldy and Levenmouth Community Health Partnership. The Panel also considered the written statement of MP (Witness 3) the General Manager of Community Services at the Fife Health Board, as hearsay evidence. The Panel also heard evidence from the Registrant and her witnesses, Julie Nichol, a Band 7 Dietitian; and Evelyn Gambier, another Band 7 Dietitian, both also employed at Kirkcaldy and Levenmouth Community Health Partnership.

Assessment of witness credibility

31. The Panel found the evidence of the Registrant to be credible and consistent.  The Panel noted that she had admitted a number of the allegations and that during her evidence she was candid, readily accepting where she had gone wrong.  Her evidence generally rang true and the Panel therefore concluded that she was a good witness.

32. The Panel found the evidence of the expert witness, JM, to be detailed, credible and persuasive.

33. The Panel found the evidence of Witness 1 to be consistent, clear and generally credible.  Although she came over as an uncompromising witness, clearly stating what she expected of the Registrant, the Panel did not detect any embellishment or malicious motivation in her account.   

34. The Panel found the evidence of Witness 2 similarly consistent and direct.  It found her evidence also to lack embellishment and not motivated by malice, notwithstanding that she clearly believed that the Registrant was not up to the required standards.  

35. The Panel found no reason not to doubt the hearsay evidence of Witness 3.

36. The Panel found the evidence of Ms Nichol to be credible and given in good faith.

37. The Panel found the evidence of Ms Gambier to be credible and given in good faith.

Stem to the Particulars

During the course of your employment as a Dietitian with NHS Fife, on dates in or between February and August 2011, you:

Found proved

38. There is no dispute that the Registrant was employed as a Band 7 Dietitian between these dates. 

Particulars 1 (a), 1 (b) and 1 (c)

1. On dates between May and June 2011 in relation to Case 1, you did not maintain accurate patient records, in that you:

(a) altered an electronic version of a dietetic letter originally dated 25 May 2011;

(b) destroyed the paper copy of the dietetic letter dated 25 May 2011, previously filed In the dietetic notes, and replaced It with the amended version;

(c) did not file three emails dated 1-3 June 2011 in the dietetic records

Found proved by way of admission

39. The Panel accepts the Registrant’s admissions in respect of particulars 1 (a) to 1(c) (inclusive), which are entirely consistent with the evidence, both live and documentary, before the Panel.

Particulars 2 (a), 2 (b) and 2 (c)

2. On dates between February and June 2011 in relation to Case 1, you did not   conduct an adequate assessment of a Service User, In that you:

(a) did not take into account and/or adequately consider the case history of  the service user when conducting your own dietetic assessment and plan;

(b) did not use the correct growth chart and/or did not plot growth chart correctly;

(c) did not sufficiently consider and/or review the information provided by the Health Visitor.

Found proved by way of admission

40. The Panel accepts the Registrant’s admissions in respect of particulars 2 (a) to 2(c) (inclusive), which are entirely consistent with the evidence, both live and documentary, before the Panel.

Particular 3 (a) (i)

3. On dates between February and June 2011 in relation to Case 2, you:

(a) did not undertake an adequate assessment in respect of the Service User, in that you:

i. did not adequately review and/or consider the medical notes and/or nursing notes and/or food balance charts to determine the nutritional intake and/or

Found not proved

41. This particular relates to Child 2, who was born very prematurely and thus was particularly vulnerable.  There were concerns about his slow weight gain and poor feeding ability and so was referred to the Registrant for nutritional assessment.  Witness 1 believed that this would be a straightforward case for the Registrant owing to her neonatology experience and post-graduate training.  The HCPC alleged that the Registrant’s assessment was inadequate.  In relation to nutritional intake, Witness 1 maintained that the Registrant based her assessment on the contents of an e-mail from Dr A and that she had failed to consider the medical notes, the nursing notes, and/or the food balance charts in reaching her determination of what Child 2’s nutritional intake should be.

42. In addition, Witness 1 stated that there were a number of other matters that the Registrant failed to account for in calculating the nutritional intake, such as the variability of volumes that the baby could actually manage. 

43. The Registrant pointed out that her entry in the dietetic notes on 21 March 2011 contained the phrase ‘on chart’, which was a reference to the fluid balance charts. She maintained that she had calculated the nutritional intake on a notepad using information from the medical and nursing notes, worked out the average and then wrote this in the dietetic notes. She accepted that she did not put an entry in the dietetic notes explicitly stating that she had reviewed the notes and that she should have done.

44. The Panel has carefully read the entry in the dietetic notes for 21 March 2011, which are detailed enough to take up over half a page.  It considers that the Registrant did not just use the information from Dr A in making her assessment; there is reference to “on chart” (which the Panel accepts is a reference to the fluid balance charts) and also to discussions with the Ward Sister.  There is evidence of calculations having taken place.  Accordingly, the Panel is satisfied that the Registrant made an “adequate” assessment; it may be that she did not refer to all the information that Witness 1 expected and that the assessment was not as comprehensive as perhaps it might have been. The evidence before the Panel does suggest that there was an adequate review of the relevant notes and chart and that there was sufficient consideration given to the task at hand.  The Panel finds that this particular, which relates to the adequacy of her review/consideration of material, is therefore not proved.

Particular 3 (a) (ii)

3. On dates between February and June 2011 in relation to Case 2, you:

(a) did not undertake an adequate assessment in respect of the Service User, in that you: …or

ii. did not complete and/or plot the preterm growth chart correctly and/or accurately.

Found proved by way of admission

45. The Panel accepts the Registrant’s admission in respect of particular 3 (a) (ii), which is entirely consistent with the evidence, both live and documentary, before the Panel.

Particular 3 (b) (i)

3. On dates between February and June 2011 in relation to Case 2, you;

(b) did not formulate an appropriate dietetic plan, in that:

i. there was no and/or inaccurate information on the feeding requirements; and/or

Found proved by way of admission

46. The Panel accepts the Registrant’s admission in respect of particulars 3 (b) (i), which is entirely consistent with the evidence, both live and documentary, before the Panel.

Particular 3 (b) (ii)

3. On dates between February and June 2011 in relation to Case 2, you…

(b) did not formulate an appropriate dietetic plan, in that:

ii. there was no plan for frequency of review; and/or

Found not proved

47. The HCPC maintained that there was no indication as to when the Feeding Plan was to be reviewed, relying upon the document entitled Feeding Plan dated 21 March 2011.  Whilst it is correct that this document does not indicate when the plan was to be reviewed, the child’s dietetic notes contained in its “Referral/Record Card” clearly states “To review in a week, unless contacted by Ward staff”.  In any event, in her evidence the Registrant stated that she actually reviewed the child on 23 and 24 March 2011 which is the consistent with the dietetic notes. The Panel sees no reason not to accept this.  Accordingly, given the unequivocal entry in the dietetic notes, the Panel finds this particular not proved.

Particulars 3 (b) (iii) and 3 (b) (iv)

3. On dates between February and June 2011 in relation to Case 2, you:

(b) did not formulate an appropriate dietetic plan, in that…

iii. you did not adequately consider and/or identify that the Service User was being given diuretics and/or

iv. Identified 4 feeds a day as being adequate.

Found proved by way of admission

48. The Panel accepts the Registrant’s admissions in respect of particulars 3 (b) (iii) and 3 (b) (iv), which are entirely consistent with the evidence, both live and documentary, before the Panel.

Particular 3 (c)

3. On dates between February and June 2011 in relation to Case 2, you…

(c) did not follow a jointly agreed dietetic plan;

Found proved

49. The Panel notes that the HCPC maintains that Child 2 failed to make progress under his original dietetic plan.  It states that on 23 March 2011, having been instructed by Witness 1 to review his progress, the Registrant sought input from Witness 1 and from Witness 2.  The three of them agreed that the plan would be amended so that Child 2 would be fed through a nasogastric tube every 8 hours, 3 times daily. 

50. However, the 23 March 2011 plan that the Registrant left in Child 2’s notes (without discussing it with the registrar or consultant) only partially implemented this plan in that it still persisted with bottle feeding. Furthermore, the HCPC points out that the expert’s report confirms that this was not in Child 2’s best interests and that Witnesses 1 and 2 were right to recommend this course.  In oral evidence, both Witnesses 1 and 2 were clear that it was their understanding that, following their discussion, the Registrant would ensure that Child 2 would be fed via a nasogastric tube.

51. The HCPC goes on to argue that the Registrant should have ensured that this agreement was adhered to.  Witness 1 stated that she discovered from ward staff that they had been resistant to the idea of implementing nasogastric feeding for Child 2 and that it was the Registrant’s responsibility to ensure the plan was followed.  However, it was not until Witness 2 reviewed Child 2’s case on 18 April 2011 that nasogastric feeding was implemented. In the meantime, his weight had faltered and he had been admitted to intensive care.

52. In her evidence the Registrant agreed that she had a meeting with Witnesses 1 and 2 about this particular infant. It was her first patient and, as he was a challenging patient, she had spoken to them about her assessment. She stated that they all agreed that prescriptive feeding would be in his best interests and that he should be fed three-hourly, eight times per day. She stated that they also agreed that consideration should be given to introducing tube feeding. She had made a note of this plan in the dietetic notes and also completed a ‘stand-alone’ feeding plan to be inserted into the nursing notes concerning the prescriptive feeding but she accepted that she did not record the proposed times for the feeds.

53. She said that she spoke with the nurse in charge of the ward and advised her of the dietetic plan and recorded the fact of and content of that conversation in the dietetic notes. She accepted that for completeness she should have written the times of the feeds in the plan but pointed out that they were recorded in the dietetic notes and felt that they were clear enough to be followed.

54. The Panel observes that there is a detailed record of events on 23 March 2011 in the dietetic notes.  An entry states “Discussed with [Witness 1 and Witness 2] to have a more prescriptive feeding plan” after which there is written suggested times every three hours.  Later in the notes it states “To have NG [nasogastric or tube feeding] ‘top-ups’ if bottles not completed/sleeping”.  However, the resultant Feeding Plan, also dated 23 March 2011, makes no reference to any nasogastric  feeding, even by way of top-up, nor does it detail the suggested feeding times as set out in the dietetic records nor the suggested length of such feeds.  The Panel also notes the evidence of Witness 1 who stated that the feeding plan as written would be (and indeed was) interpreted by the ward staff as “feed on demand”, which was not what was intended.

55. On balance, the Panel prefers the evidence of Witness 1, in particular since the feeding plan does not refer at all to any nasogastric or tube feeding and omits the times/length of such feeds.  It therefore finds this particular Proved.

Particular 3 (d)

3. On dates between February and June 2011 in relation to Case 2, you…

(d) from 21 March to 5 April 2011, did not liaise and/or communicate appropriately with consultant medical staff and/or nursing staff in respect of the Service User's dietetic plan;

Found not proved

56. The Panel took into account that in the dietetic notes the Registrant did record a number of meetings with staff about Child 2.  On 23 March 2011 she records trying to telephone the referrer, Dr A (who was on leave); trying to see a Registrar (who was in an outpatient’s clinic); and actually discussing matters with the on-call doctor and the Sister.  On 24 March she records telephoning ward staff and discussing Child 2 with them.  On 28 March she records speaking to the midwife and discussing the feeding chart.  On 1 April she saw Child 2 with the staff nurse and on 5 April 2011 saw the child again with another Dr A and liaised with Dr D about reviewing the plan at the end of the week.

57. The Panel considers that these entries demonstrate that the Registrant did make a good effort to liaise with her colleagues about Child 2.  On that basis the Panel finds that the HCPC have not demonstrated to the required standard that particular 3 (d) is made out.  It therefore finds this particular not proved.

Particular 4 (a)

4. In relation to Case 4:

(a) On or around 25 March 2011 an urgent referral was made to you and you did not carry out a visit until 11 April 2011;

Found not proved

58. Child 4 was born prematurely at 34 weeks gestation. She was living with her grandparents and awaiting surgery for cleft palate repair.  On 25 March 2011, a referral was purportedly sent via fax from a Cleft Specialist Nurse at the Royal Hospital for Sick Children in Edinburgh.  The referral made clear that Child 4 was awaiting surgery and had faltering growth. In oral evidence Witness 1 said that she subsequently confirmed with the referrer, Ms P, that she had made the referral to the Registrant that same day.  It was accepted by the HCPC that there are clear inconsistencies on the letter itself regarding when the letter was dictated, typed and sent which are as a result of a template being used.  Ms P re-faxed the growth chart on 6 April 2011 and telephoned the Registrant to find out why Child 4 had not been seen.  The Registrant disputes that she was aware of the earlier referral and says that she only became aware of it on 7 April 2011.

59. The Registrant’s annual leave records suggest that she was not at work on 25 March 2011 but it is accepted that she was at work for the following two weeks.  The HCPC maintain that, notwithstanding the urgency of the referral, which Witness 1 indicated required action within 48 hours, the Registrant did not visit Child 4 until 11 April 2011.  In oral evidence Witness 1 said that she allocated Child 4’s referral to the Registrant either on the 25 March 2011 or on the following working day when the registrant was back at work 28 March 2011.    She could not be certain which of those days was the correct date but was clear that this did not excuse or explain why the Registrant took no action on the referral until so late.  She thought that the Registrant’s explanation was ‘extremely unlikely’ given her understanding of and involvement in the allocation process. Even on the registrant’s own account, the HCPC maintain that, as she took 4 days to respond to a referral which required action within 48 hours, the allegation was in any event made out.

60. Bearing in mind the Panel’s overall assessment of the Registrant’s credibility, it saw no reason not to accept her account that she did not become aware of the referral until 7 April 2011.  The Panel notes that there is considerable confusion on the face of the letter from the hospital as to when it was sent.  It states that it was dictated on 15 June 2010 (which may well be a template error as suggested), typed on 7 April 2011, but apparently faxed to the Dietitians on 29 March 2011.  These dates are impossible to reconcile.  Moreover, no persuasive evidence has been produced to clearly show when any referral was made to the Registrant – even Witness 1 is speculative on that point.  In any event, the Panel is not persuaded that the HCPC has demonstrated that this was an “urgent” referral, since the letter from the hospital does not make this clear.  Nowhere upon its face is there any use of the word “urgent” nor any reference to the matter being urgent – in relation to the imminence of surgery to the child’s cleft palate, it merely states that she was due for such “in the very near future”, which the Panel does not interpret as an indication of urgency.   The Panel therefore concludes that, as the HCPC has failed to show that this was an “urgent referral”, the particular fails to be proved.

61. In relation to the suggestion that the Registrant failed to take prompt enough action having received the referral on 7 April 2011, the Panel first of all finds that the phrase pleading the relevant date in the particular, “On or about 25 March 2011” is not sufficiently flexible to include 7 April 2011, some 14 days later.  It further notes that in her evidence the Registrant indicated that she had difficulties contacting the child’s main carer, which caused further delay.  In any event, as the Panel has found that it was not an urgent referral, the particular remains not proved.

Particular 4 (b) (i) and 4 (b) (ii)

4. In relation to Case 4…

(b) You did not undertake an accurate anthropometric assessment of the Service User in that, you:

i. did not calculate the infant's gestational age correctly; and/ or

ii. did not plot the growth chart correctly.

Both (b) (i) and (b) (ii) found proved

62. The HCPC says that even when the Registrant took action in relation to Child 4, her anthropometric assessment was poor.  She failed to calculate Child 4’s gestational age correctly; Child 4 was 34 weeks + 3 days so should have been recorded as 34 weeks (rounded down) – the Registrant recorded that she was 35 weeks old.  Both Witnesses 1 and 2 agree that this was an error leading to the Registrant assessing that Child 4 was in the 25th weight for age centile rather than the 50th centile.

63. In addition, the HCPC allege that the Registrant incorrectly plotted the growth chart for Child 4.  The HCPC argue that, as can be seen from the growth charts, the Registrant plotted Child 4’s weight as that of a child between 1 – 1.5 years instead of one aged between 7 and 8 months.

64. The Registrant maintained that she had correctly calculated the gestational age.  However, the Panel notes that the expert JM, in her report dated 1 February 2016, confirmed that the Registrant had calculated the gestational age incorrectly.  The Panel sees no reason not to accept such evidence.  The Panel therefore finds particular 4 (b) (i) proved.

65. In relation to incorrectly plotting the child’s age, the Panel notes from the chart in question that the HCPC is correct – the Registrant did place the child in the incorrect position on the chart.  The Panel therefore finds particular 4 (b) (ii) proved.
Particulars 4 (c) (i), 4 (c) (ii) (a), (b) and (c), 4 (d), 4 (e) and 4 (f)

(c) You did not undertake an adequate initial assessment in that, you:

i. did not assess and/or calculate the infant's actual consumed intake; and/ or

ii. did not assess and/or calculate information relating to feeds such as;
a. timing of feeds, and/or
b. length of time to complete feeds, and/or
c. sucking ability, and/or
d. feed losses

(d) You did not take appropriate account of the child's diagnosis and the likely impact on feeding;

(e) You did not make appropriate plans for frequency of review;

(f) You did not seek advice from and/or contact the Consultant medical staff.

Found proved by way of admission

66. The Panel accepts the Registrant’s admissions in respect of particulars 4 (c) to 4(f) (inclusive), which are entirely consistent with the evidence, both live and documentary, before the Panel.

Particular 5 (a), 5 (b) and 5 (c) (i)

5. On or around 5 May 2011 in relation to Case 5, you:

(a) did not follow the medical management plan;

(b) did not discuss a change of plan with the doctor and/or document reasons for a different course of action;

(c) did not undertake an adequate assessment of the Service User in that, you:

i. did not review and/or consider information in the medical notes, including blood results; and/ or

Found proved by way of admission

67. The Panel accepts the Registrant’s admissions in respect of particulars 5 (a) to 5 (c) (i) (inclusive), which are entirely consistent with the evidence, both live and documentary, before the Panel.

Particular 5 (c) (ii)

5. On or around 5 May 2011 in relation to Case 5, you…

(c) did not undertake an adequate assessment of the Service User in that, you:

ii. did not appropriately consider and/or assess information provided by the Service User and her carer.

Found not Proved

68. Child 5 was a 15 year old girl who suffered from Irritable Bowel Syndrome. The HCPC argues that she was referred for dietetic intervention in order to try a wheat free diet.  The Registrant saw Child 5 on 5 May 2011 and wrote to Dr M on 11 May 2011 setting out her assessment.  Dr M wrote to Witness 1 on 1 June 2011 to complain about the Registrant’s interventions in Child 5’s case.  It was maintained by the HCPC that, despite acknowledging on the dietetic record for Child 5 that the reason for the referral was for a ‘wheat free diet’, she did not implement this plan.  Dr M complained that the exclusion diet ‘was not addressed by Louise who, after mentioning the wheat free diet in the title of the letter, then totally ignored it.  She gave advice around healthy eating and fluid intake without discussing the changes in management with me, the referrer’.  No rationale for disregarding a wheat free diet was recorded in the dietetic records. Moreover, the expert, JM, confirmed that advice should have been given in relation to a wheat free diet for a trial period of 2-4 weeks.

69. The Panel observes that in the notes for 5 May 2011 there is recorded a meeting with the child’s main carer (her mother) and a number of matters are noted down in relation to the child’s diet; her worry about exams; her reduced appetite; her weight fluctuations; the frequency of her stools; her nausea; and her absences from school as a result of her health issues.  Examples of her food intake are recorded, followed by the registrant’s advice and the rationale.  She further records at the beginning of the record that the consultation is “To consider wheat-free diet”.  The notes run to almost a full page.

70. The Registrant denied this allegation stating that she spoke with the service user and her carer about her eating habits and usual nutritional intake and recorded this in the dietetic notes.  She stated that it was her clinical opinion, on the information that she had available to her, that encouraging healthy eating habits was the appropriate place to start with the service user before embarking on the introduction of a wheat-free diet, which could be onerous. She was also aware that Child 5 was sitting her Standard Grade Examinations at the time and that a significant dietary change could impact on her energy levels. She maintained that she gave what she thought was the appropriate advice on the information she had at the time, although she did accept that she could have documented this more fully.

71. The Panel is persuaded by the evidence of the Registrant whose rationale it considers to be logical and considered.  It is apparent from the notes that she did record a significant amount of information received from the child’s mother and there is no evidence that she was told something which was not recorded or considered by her.  The Panel also notes that the Registrant’s apparent understanding of the purpose of the referral was “To consider” a wheat-free diet, which is different from actually implementing one – the Panel observes that the expert, JM, only goes so far as to indicate that Dr M had merely suggested it.  The Panel therefore concludes that the HCPC has failed, on balance, to establish that the Registrant did not “appropriately” consider and assess the information given to her.
Particular 5 (d) (i), 5 d (ii) and 5 (d) (iii)

5. On or around 5 May 2011 in relation to Case 5, you…

(d) did not undertake an accurate anthropometric assessment in that, you:

i. did not measure the Service User's height accurately; and/or

ii. did not plot the Service User's age correctly on the growth chart; and/or

iii. did not review the anthropometric data in the medical notes; and/ or

Found proved by way of admission

72. The Panel accepts the Registrant’s admissions in respect of particulars 5 (d) (i) to 5 (d) (iii) (inclusive), which are entirely consistent with the evidence, both live and documentary, before the Panel.

Particular 5 (d) (iv)

5. On or around 5 May 2011 in relation to Case 5, you…

(d) did not undertake an accurate anthropometric assessment in that, you…

iv. did not correctly plot and/or interpret data relating to the Service User's nutritional status.

Found proved

73. This was denied by the Registrant.  The HCPC argues that, as the Registrant’s anthropometric assessment of Child 5 was inaccurate and that as she made a number of admitted errors in relation to Child 5’s height and age, she consequently made errors in relation to the child’s nutritional status.  In relation to that, she advised in her letter to Dr M that Child 5 did not meet her nutritional and calorific requirements.  However the BMI chart plotted by the Registrant showed a normal range of between 75th and the 91st centile, indicating that Child 5 was in fact ‘very well nourished’.  In oral evidence, Witness 1 explained that these two positions could not be reconciled; either the plotting of the chart was wrong, or the Registrant’s interpretation of it was wrong.  The HCPC also argued that, as a child’s height is a component factor in calculating BMI, if as the Registrant had admitted, she measured Child 5’s height incorrectly, it would be very surprising that she somehow managed to plot the correct BMI.

74. The Registrant argued that she had plotted the BMI figure correctly.  However, the Panel prefers the evidence of Witness 1; moreover, it follows inevitably that, if the height of a child is an essential piece of information needed to calculate BMI, then if, as the Registrant had admitted, she did not measure Child 5’s height correctly, the BMI calculation, and subsequent use of the BMI figure, must be incorrect.  The Panel therefore finds particular 5 (d) (iv) proved.

Particular 5 (e) and 5 (f)

5. On or around 5 May 2011 in relation to Case 5, you…

(e) did not determine an appropriate dietetic intervention for the Service User's clinical condition;

(f) did not set clinically appropriate treatment goals and/or rationales for treatment of the Service User's condition;

Found not proved

75. The Panel notes the Registrant’s reasons for acting as she did as set out in paragraph 70 above.  Once again, the Panel finds itself persuaded by the evidence of the Registrant whose rationale it considers to be logical and considered. She appreciated that introducing Child 5 to a wheat-free exclusion diet might be particularly difficult at a time when the child was undergoing stressful exams so decided to try something else first, which was nevertheless designed to bring about an improvement in the child’s eating habits.  The Panel repeats that it would appear that the Registrant’s understanding was that she would “consider” a wheat-free diet; there is no evidence before the Panel that what she suggested as an interim measure was inappropriate.  Moreover, the Panel notes that it did not appear to be compulsory in the department for it to immediately implement a GP’s suggestion – indeed, it notes that Child 5 was subsequently seen by the witness EG who reported to Dr M in her letter dated 4 July 2011 that she had reviewed Child 5’s case and had decided that, in view of Child 5’s gastroenteritis about a year earlier, she was going to “exclude milk intolerance first and follow this up with wheat exclusion”.  The Panel therefore does not consider that the HCPC has demonstrated to the required degree that the Registrant’s dietetic intervention, treatment goals and rationales for treatment of the Service User's condition were not appropriate.  It therefore finds particulars 5 (e) and 5 (f) not proved.

Particular 5 (g)

5. On or around 5 May 2011 in relation to Case 5, you…

(g) requested that a GP undertake blood tests, including some that were unnecessary;

Found proved by way of admission

76. The Panel accepts the Registrant’s admission in respect of particular 5 (g), which is entirely consistent with the evidence, both live and documentary, before the Panel.

Particular 5 (h)

5. On or around 5 May 2011 in relation to Case 5, you…

(h) did not put in place an appropriate plan for review.

Withdrawn by the HCPC.

77. At the conclusion of the HCPC’s case, Ms Chaker advised the Panel that the HCPC was now satisfied that there was insufficient evidence to prove this particular.

Particular 6 (a)

6. In respect of Case 6, you:

(a) did not plot accurately the Service User's weight and/or height measurements on a growth chart;

Found proved by way of admission

78. The Panel accepts the Registrant’s admission in respect of particular 6 (a), which is entirely consistent with the evidence, both live and documentary, before the Panel.

Particular 6 (b)

6. In respect of Case 6, you

(b) incorrectly estimated nutritional requirements for the Service User's age and condition in order to plan the feed;

Found not proved

79. This was denied by the Registrant.  Child 6 was a newborn infant with faltering growth.  He had been born at term but suffered from nasal obstruction, shortness of breath, and feeding problems.  Child 6 was first seen by the Registrant on 4 April 2011. 

80. The Registrant denied this particular on the basis that she found the allegation to be vague and she was unsure as to what nutritional requirements she was alleged to have incorrectly estimated.  Taking all the evidence together, the Panel does not accept that the particular is vague or lacking in particularity. 

81. The HCPC alleged that the Registrant failed to plot some weight and height measurements accurately, or at all, and, most importantly, she failed to plot Child 6’s birth weight which was 2.5kg, some of which the Registrant has accepted.

82. In relation to this particular allegation, the HCPC argued that the Registrant estimated that Child 6 had only ‘normal requirements’ for his nutrition, despite the fact that Child 6 was, as the Registrant noted, ‘small for gestational age’; needed to ‘catch-up’ his growth; was ‘in the Paediatric Ward High Dependency Unit’; and had breathing difficulties so was ventilated on a CPAP (which demanded higher energy requirements in a baby so young and so ill).  Witness 1 agreed that, in particular, Child 6’s breathing problems meant that he needed more concentrated formula to prevent him tiring during feeds.

83. In her oral evidence, the Registrant indicated that, notwithstanding that she recorded that Child 6 had “normal requirements”, when it came to analyzing her recommendations in relation to his actual feed, Child 6 was “actually getting higher requirements”.  She stated “…where I have put the feed provides 420mls SME high energy, 126 calories per kilogram, 138mls per kilogram, 2.76 grams of protein per kilogram, that is more than what is stated as normal requirements further down”.

84. The Panel considers that the evidence before it on this point from the HCPC is unclear in that there is no analysis of the nutritional requirements actually provided by the Registrant so as to demonstrate that what was prescribed by her was incorrect.  If the Registrant was, despite initial appearances, actually recommending that Child 6 be fed more than a child with normal requirements, then, in the absence of any such analysis to show that it was insufficient for Child 6, it follows that the evidence is finely balanced.  Accordingly, as the burden of proof is on the HCPC, the Panel concludes that it has failed to discharge the burden upon it.  Particular 6 (b) is therefore not proved. 

Particular 6 (c)

6. In respect of Case 6, you…

(c) incorrectly described the infant as small gestational age without plotting measurements on centile charts;

Found not proved

85. The HCPC maintained that it was incorrect to describe Child 6 as ‘small for gestational age’ since this refers only to babies born pre-term, whereas Child 6 was born “at term”.  The Registrant indicated that she used the term because she copied the error made by the referring doctor when they described Child 6 as ‘small for gestational age’. The Panel notes that the Registrant produced documentary evidence of the term being used which she suggested confirmed her own interpretation of the term in that it could be used for full term babies. The Panel notes that the referring Doctor had made the same error and that the Registrant “might have copied the incorrect classification from here”.  In all the circumstances, the Panel concludes that the HCPC have not proved this particular to the required standard and therefore this particular is not proved. 

Particulars 6 (d) and 6 (e)

6.  In respect of Case 6, you…

(d) documented the need to discuss pump feeding with the Service User's parents, but did not document any such discussions

(e) did not advise the Service User's parents on an effective, practical feeding plan to achieve satisfactory weight gain.

Found proved by way of admission

86. The Panel accepts the Registrant’s admissions in respect of particulars 6 (d) and 6(e), which are entirely consistent with the evidence, both live and documentary, before the Panel.

Particulars 7 (a), 7 (b), 7 (c) and 7 (d)

7. In respect of Case 7, you:

(a) did not obtain any and/or sufficient information about the infant's recent feeding history;

(b) did not undertake an accurate anthropometric assessment in that you did not plot the growth chart correctly;

(c) did not appropriately discuss your findings with the doctor;

(d) did not re-assess nutritional intake to compare with requirements when you realised that despite your request to the GP to prescribe SMA High Energy formula, the baby was still consuming standard formula.

Found proved by way of admission

87. The Panel accepts the Registrant’s admissions in respect of particulars 7 (a) to 7(d) (inclusive), which are entirely consistent with the evidence, both live and documentary, before the Panel.

Particulars 8 (a), 8 (b) and 8 (c)

8. On dates between 25 May 2011 and 2 June 2011 in relation to Case 7, you:

(a) did not assess the Service User's actual nutritional intake and/or document nutritional aims;

(b) did not record in the dietetic record the date when the infant's feed changed to SMA High Energy formula;

(c) did not record in the dietetic record any advice given regarding maximum length of time to feed.

Found proved by way of admission

88. The Panel accepts the Registrant’s admissions in respect of particulars 8 (a) to 8(c) (inclusive), which are entirely consistent with the evidence, both live and documentary, before the Panel.

Particular 9 (a)

9. On or around 18 May 2011 in relation to Case 8, you

(a) did not make accurate records in that you did not make it clear whether the infant changed to SMA High Energy milk;

Found proved by way of admission

89. The Panel accepts the Registrant’s admission in respect of particular 9 (a), which is entirely consistent with the evidence, both live and documentary, before the Panel.

Particulars 9 (b), 9 (c) (i), 9 (c) (ii), 9 (c) (iii), 9 (c) (iv) and 9 (c) (v)

9. On or around 18 May 2011 in relation to Case 8, you…

(b) documented that a prescription request was sent on 18 May 2011 when in fact it was sent on 30 May 2011;

(c) did not adequately assess and/or calculate information relating to feeds such as;

i. infant’s actual consumed intake; and/or

ii. timings of feeds; and/or

iii. length of time to complete feeds; and/or

iv. sucking ability; and/or

v. feed losses

Both found not proved

90. The Registrant denied these allegations.  Child 8 was a 1 year old boy with faltering growth.  The HCPC argue that the Registrant made entries in Child 8's records on 18 May 2011, then again on the 24 May 2011 and 30 May 2011.  It maintains that the entries are ambiguous due to the way in which the Registrant made those entries so that it was not possible to conclude whether the first entry on 18 May 2011 was an appointment with Child 8 or a preparatory case review. 

91. The principal complaint related to the Registrant’s assessment of Child 8.  Witness 1 stated that ‘weight, fluid, and energy intakes, and mode of feedings should be clearly marked at each review’.   It is submitted by the HCPC that the assessment either took place on 18 or 24 May 2011 and that whichever date it took place, it was inadequate.  Its witnesses argued that: there was no record of Child 8’s actual consumed intake on any of the three dates; no record of the timing of feeds; no record of sucking ability, no mention of whether the child was vomiting or posseting; nor is there a record of the number of times his bowels opened other than a vague reference to ‘less frequent’.  Overall, Witness 1 assessed that it was not possible to make an assessment about feed tolerance owing to the paucity of information in the notes.

92. Further, it is argued by the HCPC that, on 18 May 2011 the Registrant recorded that Child 8 should change to high energy formula.  There was, however, no record of when in fact this happened so once again it was not possible to assess whether intervention had been successful.  Witness 1 remarked that, notwithstanding the identification by the Registrant on 18 May 2011 that high energy formula was required, she did not send the prescription until 30 May 2011 which represented an ‘unnecessary delay of at least two weeks’ during which time he had failed to gain weight.

93. The Registrant indicated that she did not see Child 8 on 18 May 2011. She pointed out that at the top of the entry for that date, she had written ‘case notes’ and that the entry was a summary of the notes that were available up until that date. She went on to say that she subsequently went to the ward to see Child 8 but he had already been discharged. Consequently, as no assessment was undertaken she was not in a position to obtain the information that it is alleged she failed to obtain.

94. Further, the Registrant maintained that, having looked at her entry in the dietetic notes for 18 May 2011, there was no indication that a prescription request was sent on that day.

95. The Panel accepts the evidence of the Registrant, not least because it is amply corroborated by the entries in the notes for 18 May 2011.  They are headed “case notes” and contain a chronology of dates and events/treatments; moreover, they conclude with a “Plan” which included a meeting with the child’s mother.  The next entry is dated 24 May 2011 and opens with the words “Attended with Mum”.  The Panel therefore concludes that the Registrant did not see the mother or the child on 18 May 2011 but did so on 24 May 2011, some six days later.

96. The Panel further agrees that there is no entry in the notes for 18 May 2011 that any prescription request was sent on that day – this appears to have been a presumption of Witness 1.  It therefore follows that the HCPC has failed to prove its case in relation to particular 9 (b).

97. In relation to particular 9 (c), as the Panel accepts that the Registrant did not see Child 8 or his mother on 18 May 2011, it follows that she would not have been expected to make an assessment relating to feeds on that day.  The question for the Panel is whether the phrase pleading the relevant date in the particular, “On or about 18 May 2011” is sufficiently flexible to include 24 May 2011, some 6 days later.  The Panel is not persuaded that it does as it appears to the Panel that this charge is framed to specifically refer to the entries made on 18 May 2011.  The Panel therefore finds particular 9 (c) not proved.

Particulars 10 (a) (i) and 10 (a) (ii)

10. In respect to Case 9, you:

(a) did not communicate effectively with the Service User's parents in that, you:

i. provided the Service User's parents with conflicting and/or misleading information about the child's condition; and/ or

ii. gave the Service User's mother inadequate written supplementary information.

Found proved by way of admission

98. The Panel accepts the Registrant’s admissions in respect of particulars 10 (a) (i) and 10 (a) (ii), which are entirely consistent with the evidence, both live and documentary, before the Panel.

Particulars 11 (a), 11 (b), 11 (c) (i), 11 (c) (ii), 11 (c) (iii) and 11 (d)

11. In respect of Case 10, you:

(a) did not measure the child's height accurately;

(b) did not plot available weights and lengths from medical correspondence and/or medical notes;

(c) did not carry out an adequate assessment in that you did not review and/or consider

i. the Service User's total fluid intake; and/or

ii. eating environment; and/or

iii. number of children in the household;

(d) did not provide appropriate advice based on nutritional strategies that are known to work with this service user group.

Found proved by way of admission

99. The Panel accepts the Registrant’s admissions in respect of particulars 11 (a) to 11(d) (inclusive), which are entirely consistent with the evidence, both live and documentary, before the Panel.

Particular 12

12. Your actions at particular 1(a) and 1(b) were dishonest

Not proved

100. The Registrant assessed Child 1 and subsequently wrote a letter dated 25 May 2011 to Child 1’s doctor, Dr A, copying in the health visitor, MB.  The letter contained a number of inaccuracies and errors.  Consequently, MB emailed the Registrant on 1 June 2011 asking her to amend the letter; the Registrant acknowledged the inaccuracies and replied saying that she would amend the letter and send it again.  The Registrant sent an amended letter dated 2 June 2011, the following day.  The health visitor replied on 3 June 2011 that ‘most of the points […] have not been corrected’.

101. The Registrant destroyed the paper copy of the original letter and overwrote the electronic copy with the amended version.  She did not annotate the 2 June 2011 letter held in Child 1’s dietetic records to indicate that it was a revised version of an earlier letter.  She did however annotate the amended letter she sent to Dr A.  The HCPC argues that this demonstrated that she understood this to be the sensible way to explain why there should be a second, very similar, letter. Further, the Registrant did not file the emails from the health visitor regarding the problems with the earlier letter. Consequently, Child 1’s dietetic file contained no evidence that the 25 May 2011 letter even existed. The HCPC argues that, as explained by Witness 1, at a minimum this reflects extremely poor practice and was a breach of both local and HCPC Standards. 

102. The HCPC goes on to say that, more than this, there was compelling evidence that the Registrant was dishonest.  Witness 1 highlighted in her written and oral evidence that it was truly exceptional for a health visitor to express concern about a dietitian’s letter.  The HCPC therefore maintains that the Registrant acted dishonestly because it was to her singular advantage to prevent anyone learning of the complaint.  Had they done so, her already difficult position would have worsened. She was being very closely monitored and line-managed because there were very serious concerns about her ability to do her job. She had recently failed to complete the RTW satisfactorily, and had discussed with Witness 1 a specific concern relating to the quality of her patient letters.  Then, with terrible timing from the Registrant’s point of view, an external health visitor criticised another of her patient letters. 

103. The HCPC goes on to say that the Registrant had every reason to believe nobody else would find out about it so long as Child 1’s file contained no evidence of the original letter or the complaint.  Witness 1 only found out about the problem on 3 June 2011 when she read Dr A’s email about the matter and discovered that Child 1’s file did not contain the letter dated 25 May 2011.  The Registrant could not have been aware that Dr A had sent this email nor that Witness 1 had checked the file.  The HCPC argues that, had the Registrant made a simple and honest mistake, she would have annotated the amended letter left on the file in the same way that she annotated the letter she sent out of the department to Dr A. She would not have shredded the paper version of the original letter. She would have made it clear on the file what had happened and would have approached Witness 1 about it. 

104. The HCPC commented upon the reliance by the Registrant upon a conversation she had late on Friday 3 June 2011 with JN as evidence that she was not acting dishonestly.  However, it maintains that this conversation serves only to strengthen the HCPC’s allegation of dishonesty on the basis that, not only did this conversation take place some two days after the initial complaint but that the Registrant did not disclose everything to JN; for instance, she did not disclose that she had shredded the paper copies of the original letters as well as the electronic copies.

105. The Registrant responded that on 2 June 2011 she had read the email from the health visitor dated 1 June and referred to the hard copy of her original letter of 25 May 2011. She handwrote the amendments onto that hard copy and then accessed the electronic copy. She made the amendments electronically and then pressed ‘save.’ She then ripped up the hard copy that she had written on and disposed of it. She then tried to print off the original letter and realised that it had been overwritten with her amended version and was no longer available. She realised her mistake immediately.

106. She accepted that she should have told Witness 1 straight away. However, as it was a serious mistake, the Registrant wanted to speak to her face to face but Witness 1 was not in the department that afternoon. Towards the end of her shift, the Registrant did manage to speak with her Band 7 dietetic colleague, JN on the telephone. The Registrant told her what she had done and sought her advice.

107. The next morning, at the end of the paediatric team meeting, the Registrant approached Witness 1 and told her that she needed to speak to her about something important. Witness 1’s response was that she was too busy and that the Registrant would have to speak to someone else. After the meeting the Registrant spoke to JN face to face about it and she agreed that the Registrant needed to speak to Witness 1 about it.  The Registrant continued with her work that afternoon and did not see Witness 1 on the ward after that.  Further, she could not speak to her at the end of her working day as she had to leave straight away at 4.30pm in order to collect her children.

108. The Registrant maintained that she always intended to speak to Witness 1 about her mistake. She was not trying to hide the fact that her letter had been criticised by the health visitor. As it was a significant mistake, she wanted to speak to Witness 1 in person.  Witness 1 and the Registrant did not have a good working relationship because the Registrant felt that her work was always under scrutiny, so she was worried how Witness 1 would react to her mistake; this was why she wanted to properly explain what had happened. She did not feel that she could do this sufficiently in an email.

109. With hindsight, the Registrant stated that she should have insisted on speaking to Witness 1 after the team meeting the morning after or later on that day as it was too important to leave over the weekend. She should have made time to prioritise the issue; failing that, she should have sent her an email so that the error was properly documented.  Moreover, she should have made an entry in the notes. However, she was suspended on 6 June 2011 before she had a chance to speak to her about it.

110. Upon reflection, the Registrant believed that she was scared to tell Witness 1 and was scared of what her reaction would be.  However, she wanted to see her reaction face to face. She accepted that she put her emotions before her duty to her patients which she deeply regretted.  She also now realised that she could have taken some steps to correct the mistake such as contacting the health visitor to ask her to email a copy of the original letter which could have been placed on the file and making a note in the dietetic notes regarding her mistake with the electronic copy.

111. Further, the Registrant went on to say that she should have placed a copy of the three emails from the health visitor in the dietetic records and made reference to them in the notes. However, she found it increasingly difficult to find the time to file documentation away and during the weeks leading up to her suspension on 6 June 2011 she was very stressed and was not coping very well.  The Registrant maintained that this was an oversight; she understood the importance of keeping accurate records and that she had failed to do this.  She “strenuously” denied that her actions were motivated by conscious self-interest or dishonesty.  She was going through a difficult time emotionally and regrettably let this affect the quality of her work.

112. The Panel noted the advice of the Legal Assessor when considering dishonesty.  It had to ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts and then determine whether her conduct was honest or dishonest by the (objective) standards of ordinary decent people.

113. The Panel accepted the Registrant’s explanation, which it considered was plausible.  It appreciates that without such an explanation, her actions could have given rise to a strong suspicion of dishonest intent for the reasons set out by the HCPC.  However, having seen and heard the Registrant give evidence on the point; having noted JN’s evidence that the Registrant did approach her, not once but twice, about the matter (which the Panel doubts that a dishonest person would have done if she was intent on covering up her mistake); and further noting that copies of her original letter were still in circulation and that her error was known and would eventually have been more widely discovered, the Panel concludes that the Registrant had no intention to conceal what she had done.  What the Registrant did was clearly not good practice, but it was not dishonest; the Panel accepts that she genuinely believed that she was correcting an error and was not attempting to conceal an error. Applying the test of dishonesty as advised by the Legal Assessor, the Panel does not find that her genuine attempt to correct her error would be considered dishonest by the standards of ordinary decent people.

114. The Panel therefore finds particular 12 not proved.  

Decision on Grounds

115. Having found the facts proved in this matter, the Panel went on to consider whether the facts found proved, individually or collectively, amounted to misconduct and/or lack of competence. 

116. In relation to misconduct, the Panel noted the advice of the Legal Assessor who referred to the cases of Roylance v General Medical Council [2000] 1 A.C. 311, Cheatle v General Medical Council [2009] EWHC 645 (Admin), Nandi v. General Medical Council [2004] EWHC 2317, Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin), R v. Nursing and Midwifery Council (ex parte Johnson and Maggs) (No 2) [2013] EWHC 2140 (Admin) and Schodlok v GMC [2015] EWCA Civ 769. The Panel noted that misconduct must be serious and amount to a registrant’s conduct falling far below the standards expected of a registered dietitian.

117. In relation to lack of competence, the Panel noted the advice of the Legal Assessor that lack of competence connotes a standard of professional performance which is unacceptably low and which, (save in exceptional circumstances), has been demonstrated by reference to a fair sample of the Registrant’s work.  Moreover, the benchmark by which to gauge impairment is the standard required of a Band 7 dietitian.  Further, the Legal Assessor referred to the case of Andrew Francis Holton v General Medical Council [2006] EWHC 2960, which is authority for the proposition that in assessing lack of competence, the standard to be applied was that applicable to the post to which the Registrant had been appointed and the work she was carrying out (namely that of a Band 7 dietitian).  The public was entitled to expect that the work of a Registrant who performed in any specialty was at the standard applicable to that post in that specialty.  The Legal Assessor reminded the Panel that it had been referred during the half-time submissions to a number of paragraphs in that decision which set out various matters which might mitigate the perceived lack of competence.  These were set out in paragraphs 73 to 77 of that decision and indicated that the Panel would be entitled to take into account, in reducing the severity of the Registrant’s alleged lack of competence, “factors external to and independent of the [Registrant]” (paragraph 75) but not those “personal to the [Registrant]” (paragraph 74).

118. The Panel further noted the submissions of Ms Brown on the Registrant’s behalf which were that, as the Registrant was subject to a 12 week return to work plan during which she was not expected to carry out all the duties of a Band 7 dietitian, her errors could not be judged to be a lack of competence as her situation was due to factors external to and independent of her.

119. The Panel considers that it might be helpful to quote directly paragraphs 74 and 75 of Holton which state:

74. “Consistently with this approach, it is irrelevant that the practitioner has not had sufficient training. Professional performance is no less deficient because the practitioner has not been sufficiently trained or educated to be able to render adequate performance. In my judgment, facts and factors personal to the doctor whose performance is being assessed are irrelevant to the question whether it is deficient. The test is objective in that sense. Thus his education, training and personality are irrelevant. Those are matters that may be addressed, if his performance is seriously deficient, by the conditions imposed by the Panel, as it rightly said.

75. On the other hand, factors external to and independent of the doctor, such as the pressure of work, any lack of resources, and professional isolation due to the lack or absence of colleagues are relevant factors. As I remarked during argument, no one can sensibly expect, for example, a doctor working in Accident and Emergency at a time of crisis (for example after a road or rail crash when many serious casualties arrive at the same time) to be able to give the same time to patients as he would if he were not under pressure. His performance should be that which is to be expected of a competent practitioner in the circumstances. Professional isolation due to a doctor's personality or behaviour, on the other hand, is not a factor to be taken into account in assessing the adequacy of professional performance.”

120. The Panel reminded itself that the Registrant commenced her employment at Kirkcaldy & Levenmouth Community Health Partnership as a Band 7 Paediatric Dietitian in December 2009.  However, by January 2010, concerns were already being expressed about her ability to undertake the duties required of her. As a result of the concerns raised, she was provided with additional support through training and supervision, including regular meetings with Witness 1. In March 2010, Witness 1 was concerned that there appeared to be no learning by the Registrant and that basic errors were being made. It was decided that further monitoring and supervision was required for a period of three months, which included Witness 1 continuing to support the Registrant.

121. However, the Registrant commenced sick leave from 24 May 2010. It was subsequently decided that a phased return to work programme would be put in place for the Registrant prior to her return to work on 22 February 2011. A repeat induction and orientation programme was also agreed, with a phased return to work and a gradual re-introduction to clinical work in the form of a 12 week plan.

122. Having taken account of this background, the Panel considers that the 12 week return to work plan was not just for a Registrant who had merely been off ill, but it was for a Registrant who had, prior to becoming ill, been under supervision due to perceived concerns about her ability to carry out the duties of a Band 7 dietitian.  Consequently, the Panel concludes that, contrary to Ms Brown’s submissions, the Registrant’s difficulties were personal to her and not due to external factors.  Essentially, her performance still should have been that which was to be expected of a competent Band 7 dietitian, albeit one returning to work after an extended period of absence.   Accordingly, the Panel does not accept Ms Brown’s submissions and considers that it is appropriate for it to first consider whether the Registrant’s actions amounted to a lack of competence. 

123. The Panel therefore first considered whether a fair sample of the Registrant’s work had been considered – it finds that it has, since it amounts to a significant part of the work that she carried out in relation to a number of patients, albeit over a short period of time, during which she was supervised and monitored. 

124. The Panel has considered the individual matters found proved and notes that they indicate a breadth of failings across a wide range of skills expected of a Band 7 dietitian and in relation to 10 patients.  These errors involve poor record keeping; inadequate and inaccurate assessments of patients; the use of incorrect growth charts; incorrect measurements of patients; incorrect calculations of BMI and nutritional intake; inadequate reviews; the formulation of inappropriate dietetic plans; poor communication with patients’ parents and other staff; the insufficient collection of information about patients; and the provision of inadequate advice to service users.  The Panel considers that these are basic and fundamental errors in breach of the Dietitians Standards of Proficiency which would not, and should not, be expected from a dietitian as experienced as the Registrant who had been appointed to a Band 7 role.

125. The Panel considers that each of the particulars found proved, both individually and collectively, amount to an unacceptably low standard of performance, knowledge and skill and therefore concludes that they amount to a lack of competence. 

126. As the Panel has found that each of the matters found proved amount to a lack of competence, then it cannot consider whether they amount to the alternative ground of misconduct.   

Decision on Impairment

127. In reaching its decision on impairment, the Panel took account of the submissions of the representatives, the documentary and oral evidence given during the hearing, and the advice of the Legal Assessor. It also took account of the HCPTS Practice Note “Finding that Fitness to Practise is Impaired”. 

128. The Panel was aware that, in determining whether fitness to practise is impaired, it must take account of a range of issues which, comprise two components, namely the ‘personal’ component (the current competence and behaviour of the individual Registrant) and the ‘public’ component (the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession). The Panel was aware that not every finding of lack of competence would result in a finding that fitness to practise is impaired.

129. The Panel took account of the submissions of Ms Chaker, who stated that, in relation to the Private component, given that the Registrant had not practised as a dietitian since the events in question due to a number of factors, there had been no demonstration of remediation.  Ms Chaker submitted that whilst it was correct that the Registrant had completed a Master’s Degree in Public Health Nutrition at the Queen Margaret University in Edinburgh, which involved writing a thesis based on measuring the attitude, knowledge and skills of nursery staff before and after breastfeeding policy education, these matters were not on point with the specific concerns identified in her case.  Accordingly, she maintained that there was a risk of repetition.  This, in turn, touched upon the Public component, in respect of which the Panel was to note the seriousness of some of the Registrant’s failings (particularly in relation to Child 2) and their breadth and degree.  She invited the Panel to find that the Registrant’s fitness to practise was currently impaired on both bases.

130. Ms Brown advised the Panel that, although the question of impairment was entirely a matter for the Panel’s own professional judgment, the Registrant conceded that her fitness to practise is currently impaired.  In the period since she was suspended by her ex-employers, she had been unable to practise as a dietitian, primarily because she had been the subject of a succession of interim orders imposed upon her by the HCPC, first suspending her and then imposing strict conditions of practice.  Ms Brown confirmed that the Registrant accepted that her current skills would not enable her to fulfil the role of a dietitian and were not up to date.

131. The Panel first considered the Personal component and concluded that the Registrant was impaired in this regard, simply because she had, since the matters which were the subject of these proceedings occurred, not practised as a dietitian.  The Panel agreed with Ms Chaker that, although it was to the Registrant’s credit that she undertook such studies, her Master’s Degree did not, by itself, address her competency failings (as identified above in relation to the Panel’s findings on Grounds).  Applying the test set out in Cohen v GMC [2008] EWHC 581 (Admin), the Panel accepted that those failings were capable of remediation but had not been remedied despite effort she has made to address her failings; consequently, there was a significant risk of repetition.  However, the Panel did recognise, from the Registrant’s evidence, both written and oral, that she had reflected deeply on these matters and had demonstrated insight into her failings.  However, such reflections and insight by themselves did not prevent the Panel being drawn to the inevitable conclusion that the Registrant’s fitness to practise is currently impaired in relation to the personal component.    
 
132. The Panel next considered whether her fitness to practise is impaired in relation to the Public component, which the Panel reminded itself was the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession. The Panel noted that the Registrant’s failings were wide-ranging, repetitive and capable of resulting in very serious outcomes to vulnerable patients. The Panel concluded that a member of the public, properly informed, would be alarmed if the Panel concluded that the Registrant’s current lack of competence as a dietitian was not marked as unacceptable. The Panel were satisfied that a failing to make a finding of current impairment in all the circumstances would undermine confidence in the profession and the HCPC as its regulator. It therefore concluded that her fitness to practise is currently impaired in relation to the public component.

133. The Panel therefore also concluded that the Registrant’s fitness to practise is currently impaired on both the personal and the public components.

Decision on Sanction

134. In reaching its decision on sanction the Panel took account of the submissions of Ms Chaker and Ms Brown, the Indicative Sanctions Policy (“ISP”) document and the advice of the Legal Assessor, which it accepted. The Panel was mindful that the purpose of sanctions is not to be punitive, although they may have that effect. It appreciated that the primary purpose of any sanction is to address public safety from the perspective of the risk which the registrant may pose to those who use or need her services. It noted, however, that in reaching its decision, panels must also give appropriate weight to the wider public interest, which includes: the deterrent effect to other registrants; the reputation of the profession concerned; and public confidence in the regulatory process. In addition, the Panel noted that it must act proportionately, which requires it to strike a balance between the interests of the public and those of the Registrant.

135. Ms Chaker asked the Panel to bear in mind the large number of particulars which had been found proved, some of which had serious outcomes. In addition, there was a pattern of persistence and regularity about the Registrant’s failings.  Although she confirmed that the HCPC does not normally argue for any particular sanction, in this case she maintained that taking no action was inappropriate in the Registrant’s case, given the overall nature and seriousness of the findings.

136. Ms Brown referred the Panel to the Registrant’s witness statement for details of her significant reflections and insight.  She indicated that, as the Registrant had not worked as a dietitian in a clinical setting since 2011, she would find a return to practice very difficult in the absence of formal retraining.  In those circumstances, she was seeking to return to a non-clinical role (such as a public health nutritionist or in a policy-making setting) where she would not be treating patients.  Ms Brown therefore submitted that conditions of practice would be the appropriate sanction and suggested that they became effective only if the Registrant returned to practise in a clinical role.

Mitigating and Aggravating factors

137. The Panel took account of the various mitigating factors namely:

• The Registrant’s previous good character as a dietitian since her qualification in 1994;
• Her admissions in relation to a significant number of the allegations against her;
• Her reflections on her failings;
• Her insight into those failings;
• Her personal circumstances at the time.

138. However, the Panel also noted the following aggravating features and in particular:

• The breadth, degree and regularity of the Registrant’s failings in relation to basic skills;
• Their seriousness (particularly in relation to Child 2).
 
Consideration of Sanction

139. Given the breadth and potential seriousness of the Registrant’s failings together with the other aggravating factors the Panel took the view that this was not a case that could be appropriately dealt with without a sanction.  The Panel therefore went on to consider the various sanctions, beginning with the least onerous.

140. The Panel first considered the sanction of mediation and concluded that it was not appropriate. There was no evidence before it that her previous employers, or the Registrant, would co-operate in such a process, and in any event the matter was too serious to be resolved in this way.

141. The Panel next considered a Caution Order, which is deemed to be inappropriate:

“where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action. A caution order should also be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the registrant has shown insight, the conduct concerned is out of character, the risk of repetition is low and thus suspension from practice would be disproportionate. A caution order is unlikely to be appropriate in cases where the registrant lacks insight.”

142. The Panel noted that the Registrant’s lapse was not isolated, limited or relatively minor in nature.  In addition, a caution would not address or remedy the Registrant’s lack of competence or the fact that she had been out of practice for a number of years. The Panel was also mindful that a Caution Order would not restrict the Registrant’s practice. Consequently, the Panel concluded that, notwithstanding the Registrant’s current insight, such a sanction would be insufficient to address the Panel’s concerns in relation to the public interest grounds or to provide adequate protection to the public.

143. The Panel then considered a Conditions of Practice Order, and noted that this is appropriate where a failure or deficiency is capable of being remedied and where the Panel is satisfied that allowing the Registrant to remain in, or return to, practice, while subject to conditions, minimises the risk of future harm to service users. The Panel determined that, despite the seriousness of the breaches, the Registrant’s failings were capable of being remedied.

144. In addition, the Panel noted that before imposing conditions a Panel was to be satisfied that: the issues which the conditions sought to address were capable of correction; appropriate, realistic and verifiable conditions could be formulated; the registrant could be expected to comply with them; and a reviewing Panel would be able to determine whether those conditions have or were being met. 

145. The Panel was satisfied that all these pre-conditions were met particularly since it had formed a favourable impression of the Registrant who it considered had demonstrated that she was deeply concerned about her failings and wanted to rectify them.  Consequently, the Panel felt able to draft workable, appropriate, realistic or verifiable Conditions of Practice with which the Registrant would comply.

146. Accordingly, on the information before it, the Panel was reassured that there was the required level of insight and understanding to indicate that a Conditions of Practice Order would be adhered to, they would minimise the risk of future harm to patients and thus was an appropriate and proportionate response.

147. The Panel also considered whether it was appropriate to impose an order of Suspension.  It noted that the ISP indicated that a Suspension Order should be considered where a Panel believes that a caution or conditions of practice would provide insufficient public protection or where the allegation is of a serious nature but unlikely to be repeated and, thus, striking off is not merited. Where there were no psychological or other difficulties preventing a registrant from understanding and seeking to remedy the failings, then suspension might be appropriate.

148. The Panel concluded that a Suspension Order would be disproportionate in the circumstances, given the suitability of a Conditions or Practice Order for the reasons set out above.

149. Accordingly, the Panel concluded that the proportionate response is to make a Conditions of Practice Order for a period of two years.

Order

ORDER: The Registrar is directed to annotate the HCPC Register to show that, for a period of two years from the date that this Order takes effect (“the Operative Date”), you, Louise Middleton, must comply with the following conditions of practice:

1. Prior to commencing any clinical role as a Dietitian, you must successfully complete a return to practice course and notify the HCPC of the successful completion of that course within 14 days of the date of notification of having passed the course.

Conditions 2 to 11 shall only take effect if you take up a clinical role as a Dietitian

2. You must inform the HCPC within 14 days of your start date if you take up any employment or other engagement as a Dietitian in a clinical role which includes the giving of advice or treatment to individuals.

3. While working as a Dietitian, either in an employed or voluntary capacity, you must promptly place yourself and remain under the indirect supervision of a workplace supervisor at Band 6 or higher, who must be registered as a Dietitian by the HCPC, and you must supply full details of your supervisor to the HCPC within 14 days of their appointment. You must attend upon that supervisor as required and follow their advice and recommendations.

4. You must work with your workplace supervisor to formulate a Personal Development Plan designed to address the deficiencies in the following areas of your practice:

(i) Record Keeping;
(ii) Time Management;
(iii) Clinical practice;
(iv) Communication with dietetic, nursing and medical colleagues.

5. Within three months of the Operative Date you must forward a copy of your Personal Development Plan to the HCPC.

6. You must meet with your workplace supervisor on a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.

7. You must allow your workplace supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.

8. You must provide a detailed report approved by your supervisor commenting on your practice as a Dietitian prior to every hearing to review this Order. That report must cover, at least, the follow matters:

(i) Record Keeping;
(ii) Time Management;
(iii) Clinical practice;
(iv) Communication with dietetic, nursing and medical colleagues.

9. You must allow your supervisor to contact the HCPC to report any concerns with your practice as a Dietitian.

10. You must comply with all requirements of the HCPC Registrations department regarding your return to practice.

11. You must promptly inform the HCPC if you cease to be employed as a Dietitian by any employer.

12. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

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

A. Any organisation or person employing or contracting with you to undertake professional work as a Dietitian, at the time of application;

B. Any agency you are registered with or apply to be registered with as a Dietitian (at the time of application);

C. Any prospective employer, seeking to employ you as a Dietitian, (at the time of your application).

Notes

The order will be reviewed before its expiry. 

Hearing history

History of Hearings for Mrs Louise J Middleton

Date Panel Hearing type Outcomes / Status
15/01/2018 Conduct and Competence Committee Final Hearing Conditions of Practice