Miss Vera Franco

: Dietitian

: DT26848

: Final Hearing

Date and Time of hearing:10:00 29/01/2018 End: 17:00 02/02/2018

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

: Conduct and Competence Committee
: Suspended

Allegation

Allegation:

While employed as a Dietitian at Humber NHS Foundation Trust:

1. In relation to User 5:

a. following an appointment on or around 15 August 2014, you did not:

i. record sufficient details of a face to face dietetic assessment into the Trust’s case management system;

ii request supplements for Service User 5.

iii schedule a follow-up appointment and/or set a recall reminder on the system;

b. the plan you recommended on 15 August 2014 did not adequately address the service user’s needs.

2. In relation to Service User 6:

a. On 28 October 2014, you completed a face to face dietetic assessment and you:

i. Did not weigh the patient;

ii. Did not make a referral to a Speech and Language Therapist within a reasonable timeframe;

iii. Did not record the visit within a reasonable timeframe.

3. In relation to Service User 4 on 10 December 2014 you recorded that you spoke with a nurse about the service user, but your record did not contain sufficient detail about the patient’s condition.

4. In relation to Service User 1 on 9 December 2014, you conducted a home visit and:

a. your record of that visit was inconsistent;

b. you did not refer to the risk of refeeding within your assessment and/or plan.

5. In relation to Service User 2:

a. On 9 December 2014, you failed to record sufficient details of a face to face dietetic assessment on the Trust’s case management system

6. In relation to Service User 3, on 10 December 2014 you:

a. conducted a dietetic assessment via telephone when you should have done this in person

b. did not assess and/or identify nutritional risk.

7. The matters described in paragraph 1- 6 constitute misconduct and/or lack of
competence.

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

Finding

Preliminary Matters:

1. The Registrant, Ms Vera Franco, has neither attended this hearing nor been represented at it.

Service of the notice of hearing

2. The Panel first considered whether a valid notice of hearing had been sent to the Registrant. The Panel concluded that the letter sent by airmail, dated 27 September 2017, and addressed to the Registrant’s HCPC Register address, satisfied the requirements of a valid notice of hearing.

Proceeding in the absence of the Registrant

3. In relation to the HCPC’s application that the hearing should proceed in the absence of the Registrant, the Panel considered the terms of the HCPTS Practice Note on the topic and heeded the advice that a decision to proceed with a hearing in the absence of the registrant concerned is one not to be taken lightly.  The conclusion of the Panel was that the hearing should proceed in the Registrant’s absence for the following reasons:

• In addition to the notice of hearing sent by airmail to which reference has already been made, the contents of that letter were also sent to the Registrant on the same day.  The Panel confirmed that the email address to which the notice of hearing was sent was the same email address used by the Registrant when she had communicated with the HCPC in August 2016 to enquire about the progress of the case, and again in February 2017, when she sent a letter by email in relation to a Preliminary Hearing that had been scheduled in March 2017.  Furthermore, the hearing bundles (which also disclosed the present hearing dates) were sent by both post and email in mid-December 2017.  Accordingly, the Panel found on a balance of probabilities that the Registrant knew that the present hearing had been scheduled.

• The Registrant has not communicated with the HCPC in any manner since she sent the emailed letter dated 12 February 2017.

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

• It followed from these facts that the Panel found the Registrant had voluntarily waived her right to attend the hearing.

• The Panel also concluded that there were no grounds upon which it could determine that there would be a realistic prospect of engagement by the Registrant to a greater extent if the present hearing were to be adjourned.

• For these reasons the Panel determined that the clear public interest in there being an expeditious resolution of the allegations concerning events that occurred over three years ago outweighed the disadvantages arising from the Registrant’s absence.

• Accordingly, it was necessary to direct that the hearing should proceed in the Registrant’s absence.

The HCPC’s attitude towards particular 1(a)(iii)

4. Before she opened the case, the Presenting Officer informed the Panel that it was the intention of the HCPC to offer no evidence in relation to particular 1(a)(iii) by which it is alleged that the Registrant did not schedule a follow-up appointment and/or set a recall reminder on the system in relation to Service User 5.  The Presenting Officer informed the Panel that the HCPC took this position because the documentary exhibits disclosed that, during the investigation within the Trust, it was acknowledged that the service user was “book[ed] in again” by the Registrant.

5. Rather than agree at the outset of the hearing to this particular being no longer considered, the Panel determined that it should await the conclusion of the HCPC’s evidence before deciding whether it would be appropriate to be addressed further in relation to this matter.  In the event, at the conclusion of the HCPC’s evidence, and before the Presenting Officer closed the HCPC’s case, the Panel indicated that it was content  for particular 1(a)(iii)  to fall away on the basis that had been advanced.

Background

6. The Registrant was first employed by Humber NHS Foundation Trust (“the Trust”) on 2 February 2009. The Regsitrant was then employed as a Band 5 Dietitian from 1 November 2011.  Support was put in place for a period of 8 or 9 months to ensure that the Registrant met the competencies required for work at Band 5.  Apart from a period when an administrative problem with her registration, for which she was not responsible, required her to work below a Band 5 level, the Registrant remained working as a Band 5 Dietitian until she resigned from her employment in January 2015.  In her role as a Band 5 Dietitian, the Registrant was responsible for a range of non-complex patients, seeing them in both clinics and residential settings.  Included in the areas of her practice were nutrition support in adults, non-complex bowel conditions, weight management and some non-complex paediatric cases.  She had no managerial responsibilities, but she was expected to support dietetic students on placement.

7. The Registrant was on annual leave in September 2014.  During this period, Mrs LM, a Band 6 Dietitian supervised the Registrant. Mrs LM was responsible for overseeing and checking the Registrant’s caseload.  Issues reflected in the factual particulars alleged against the Registrant in relation to Service User 5 came to light, and this in turn gave rise to Mrs VS, a Professional Lead in Dietetics employed by the Trust, instigating an investigation in which support was provided to the Registrant, including extra supervision.  It is alleged by the HCPC that further issues came to light during this period.  On 23 January 2015, the Registrant resigned from her post and the matter was referred to the HCPC.

8. The HCPC’s case is set out in the allegations.

Decision on Facts

9. The HCPC called two witnesses to give evidence before the Panel.  They were Mrs LM and Mrs VS, whose roles and involvement with the Registrant have already been described.  The Panel found both witnesses to be credible and to have given evidence that was consistent, not only with their own witness statements, but also with other evidence bearing on the relevant issues.  The conclusion reached by the Panel was that their evidence in relation to the six  relevant service users could be safely relied upon.

10. In addition to the oral evidence of the two witnesses called by the HCPC, the Panel was also provided with their written witness statements and a bundle of documentary exhibits extending to 350 pages.

11. As the Registrant did not attend the hearing, there was no oral evidence given by her.  Furthermore, there was no written evidence provided by the Registrant specifically for the purposes of the present hearing.  However, the Panel was provided with copies of an investigation meeting held between the Registrant and Mrs VS on 27 November 2014, the record of which was signed and dated on 21 January 2015, a statement dated 27 November 2014 prepared by the Registrant and also the letter dated 12 February 2017 written before the Preliminary Hearing of March 2017.  In reaching its decisions, the Panel has had regard to the Registrant’s written observations, and the two witnesses who gave evidence before the Panel were asked questions that were informed by these written observations.

12. The Panel has proceeded on the basis that it is for the HCPC to prove the factual particulars on the balance of probabilities, and not for the Registrant to disprove those contentions.  Furthermore, the Panel has not drawn any adverse inferences against the Registrant as a result of her decision not to appear at this hearing, nor specifically engaged with it. 

13. In reaching its decisions on the factual particulars, the Panel has had regard to all of the material described.  In explaining its reasons, the Panel will summarise its findings while ensuring that sufficient detail is provided to ensure that it is understood why the decisions have been reached.
Particular 1(a)(i) to (iii) inclusive.

14. The only record made by the Registrant on the Trust’s case management system so far as it related to the appointment on 15 August 2014 was, “Activity: Assessment (45 minutes) Face to face with Patient”.  The Registrant’s own handwritten notes contained more detail of the appointment, but she did not ensure that the information contained in these notes was transferred to the electronic system.  Accordingly, particular 1(a)(i) is proven.

15. The criticisms concerning Service User 5’s care came to light during the period of the Registrant’s annual leave when Mrs LM had oversight of the Registrant’s cases.  When the service user’s wife raised the issue of the supplements she had expected to be, but had not been provided, Mrs LM spoke to both the service user’s wife and his GP.  From the Registrant’s handwritten notes it is clear that it had been intended by her that supplements should be provided.  Having regard to all the information available, the Panel is satisfied that she did not request supplements for this service user.  Particular 1(a)(ii) is proven.

16. For the reasons explained in paragraphs 4 and 5 of this determination, particular 1(a)(iii) is not proven.

Particular 1(b).

17. For the reasons already explained, it is to the Registrant’s handwritten notes rather than the record on the case management system that recourse must be made to discern what plan the Registrant had for the management of Service User 5’s condition.  The notes made by the Registrant did not, in the view of the Panel, constitute an adequate plan.  There was no calculation of what the service user’s calorific intake was, or of what the deficiency was, and without that information the plan was defective.  Furthermore, the Panel is satisfied that the recommendation of one supplement a day, providing 300 calories, was insufficient. Particular 1(b) is proven.

Particular 2(a)(i) to (iii) inclusive.

18. When Service User 6 was seen by another Dietitian on 22 September 2014 it was noted, “Take ramp scales for next visit ….. To pass to VF (Dietitian) as in her post code and recall set for review in 3 weeks.”  When the Registrant made the visit that had been assigned to her on 28 October 2014 she recorded, “Unable to weight (sic).  Looks underweight.  At risk of malnutrition.”  On the basis of this documentation, the Panel finds particular 2(a)(i) is proven.

19. The Panel is satisfied that, having identified the need to refer Service User 6 to a Speech and Language Therapist on 28 October 2014, it was not until 5 December 2014 that the Registrant made the referral.  In the judgement of the Panel this interval far exceeded a reasonable timeframe, with the consequence that particular 2(a)(ii) is proven.

20. It is clear from the record made on the case management recording system that it was not until 3 December 2014 that the Registrant made the entry relating to her visit to the service user on 28 October 2014.  The Panel is satisfied that this delay far exceeded a reasonable timeframe, with the consequence that particular 2(a)(iii) is proven.

Particular 3.

21. In the records of Service User 4 there is an entry relating to 10 December 2014 made by the Registrant that records the fact that she spoke to a nurse about the service user.  The Panel is satisfied that in two respects the detail of the conversation recorded was deficient.  One related to the fact that on 14 November 2014 (approximately four weeks earlier) it had been recorded, “Reported that supplements seem to be causing bowel problems.”  In the view of the Panel, when speaking to the nurse on 10 December 2014 there should have been specific mention of the then current position with regard to this problem, and the result of the conversation recorded in the entry for 10 December 2014.  Furthermore, the record made on 10 December 2014 records the nurse thus: “Reported that patient is doing well.  No concerns at present.”  There should have been specific recording of what the patient was eating.  For these reasons, particular 3 is proven.

Particular 4(a) and (b).

22. The HCPC’s case in relation to particular 4(a) is that the entry made by the Registrant in relation to a visit made to Service User 1 on 9 December 2014 was inconsistent because it read, “In positive energy balance since referred.  Very underweight.  Malnourished due to low weight and poor dietary intake.”  The Panel is not persuaded by the HCPC’s arguments in this respect.  In the judgement of the Panel it is possible for a service user to be in positive energy balance since being referred to the service (and thus to be gaining weight), yet (still be) very underweight, and for this to occur notwithstanding being malnourished due to low weight and poor dietary intake.  Particular 4(a) is not proven.

23. It is factually correct that the record of the visit to Service User 1 made on 9 December 2014 does not refer to the risk of refeeding.  The Panel also accepts that it would be necessary for a Dietitian to have in mind the risk of refeeding when dealing with a service user with a very low body mass index, as this service user had.  However, in the particular circumstances of this service user, who had been eating since her referral to the service, the Panel is not persuaded that the risk of refeeding was such that it was required of the Registrant to make specific mention of it in the record she made of the visit she made.  The Panel is emboldened in this view by the fact that none of the other three Dietitians who had contact with the service user before 9 December 2014 had made reference to the risk of refeeding in the records they made.  Particular 4(b) is not proven.

Particular 5 (a).

24. The record of the visit made by the Registrant to Service User 2 made on 9 December 2014 did not record calculations of the service user’s calorific intake or shortfall.  Further, there was no record of what the service user was eating.  These deficiencies resulted in there being insufficient detail being recorded of the assessment undertaken.  Particular 5(a) is proven.

Particular 6(a) and (b).

25. Service User 3 was referred to the service on 3 December 2014.  The record made by the Registrant of the telephone conversation on 10 December 2014 stated, “[Service User 3] was initially pre-assessed over the phone following referral from MacMillan Nurse.”  However, there then followed a lengthy assessment which included the entry “r/v 4 to 6 weeks”.  The Panel finds that a genuine pre-assessment over the telephone that was followed within a short period of time by a face-to-face assessment would have been entirely appropriate.  However, in the present case, the telephone call was not followed by a timely face-to-face assessment, and was inappropriate for the assessment itself.  Particular 6(a) is proven.

26. It would be difficult for a Dietitian properly to assess or identify nutritional risk without seeing the service user concerned.  Furthermore, the record of the telephone attendance on 10 December 2014 did not record what Service User 3 was eating.  The Panel is satisfied that particular 6(b) is proven.

27. In summary, the following facts are proven: 1(a)(i) and (ii); 1(b); 2(a)(i) to (iii) inclusive; 3; 5(a); 6(a) and 6(b). 

The following facts are not proven: 1(a)(iii), 4(a) and 4(b).

Decision on Grounds

28. The Panel is required to say whether the proven facts amount to misconduct or demonstrate a lack of competence on the part of the Registrant.  There are some general findings that the Panel considers are relevant to these decisions, namely:

• With the exception of the matters concerning Service User 5 in particular 1, the shortcomings occurred during a period when additional supervision of, and support for, the Registrant had been put in place.

• The witnesses who gave evidence before the Panel described the Registrant as a caring person, and there was no suggestion that she failed to perform tasks she was required to undertake wilfully or deliberately.  Rather, the impression formed by the Panel was that problems occurred because the Registrant was struggling.

• The Panel accepts that the Registrant had certain personal difficulties and some health problems during the relevant period.  Furthermore, the Panel accepts that to be under investigation and to be subject to enhanced supervision is itself likely to have been stressful.  However, the Panel is of the view that these factors cannot excuse shortcomings, not least because of the clear obligation imposed on HCPC registrants to self-limit their professional activities if their personal circumstances are impacting on their ability to perform them adequately.

29. The Panel is of the view that the identified shortcomings were serious.  They had the potential to result in harm to the service users concerned.  Furthermore, they constituted breaches of the HCPC’s Standards of Proficiency for Dietitians.  In particular, the following standards were breached:

Standard 1, be able to practise safely and effectively within their scope of practice.

Standard 8, be able to communicate effectively.

Standard 10, be able to maintain records appropriately.

Standard 11, be able to reflect on and review practice.

Standard 12, be able to assure the quality of their practice.

Standard 14, be able to draw on appropriate knowledge and skills to inform practice.

30. The Panel is satisfied that it has been presented with a sufficient sample of the Registrant’s professional work to be able to make an assessment of her competence, and having considered the findings has formed the judgement that there was a lack of competence on the part of the Registrant.  For the avoidance of doubt, the Panel does not find misconduct.

Decision on Impairment

31. Having found lack of competence arising from events that occurred in the second half of 2014, it is necessary for the Panel to decide if that lack of competence is still impairing the Registrant’s fitness to practise as a Dietitian.  In making this assessment, the Panel has considered the matter both from the point of view of the personal component and from the point of view of the public component.

32. So far as the personal component is concerned, the following factors are relevant:

• The Registrant expressed remorse at having jeopardised the well-being of service users. The Panel also took the view there has been limited insight into the extent of her failings.  The Panel accepted the evidence of Mrs VS that the Registrant viewed her main problem as being the timeliness of her record keeping, as opposed to any wider failing.

• Although the Registrant wrote to the HCPC very nearly a year ago stating that she was undertaking a Masters degree course in Clinical Nutrition in her home country, the Panel still has no evidence that she has completed that course of study, still less that the study had been translated into safe and effective practice.

• The consequence of these matters is that the Panel is unable to find that the shortcomings have been remediated with the inevitable consequence that there would be a risk of repetition of similar failings were the Registrant to be permitted to return to unrestricted practice.

33. The conclusion of the Panel is that, upon consideration of the personal component, the Registrant’s fitness to practise is currently impaired.

34. The Panel also found that it is necessary to declare that the Registrant’s fitness to practise is impaired in the wider public interest.  It is necessary to declare and uphold proper professional standards and it is also necessary to reassure fair minded members of the public who would lose confidence in the profession if a practitioner against whom findings of this sort has been made, and who has not remediated their shortcomings, were to be permitted to return to practise unrestricted.

35. The finding that there is lack of competence currently impairing the Registrant’s fitness to practise has the consequence that the lack of competence allegation is well founded with the result that the Panel must proceed to consider the issue of sanction.

Decision on Sanction

36. After announcing the Panel’s decision on the allegations, the Presenting Officer made submissions on the issue of sanction.  She reminded the Panel of the proper approach to the imposition of a sanction, identified aggravating and mitigating factors and urged the Panel to have regard to the Indicative Sanctions Policy.

37. The Panel has approached its decision on sanction on the basis that a sanction is not to be imposed to punish the Registrant.  Rather, a sanction is only to be imposed to the extent that it is required to protect the public, maintain proper professional standards and public confidence in Dietitians.  It being the case that a finding that an allegation is well founded does not necessarily require the imposition of a sanction. The first question to be answered by the Panel is whether the particular findings in this case do require a sanction to be imposed.  If the answer to that first question is that a sanction is required, then the available sanctions must be considered in ascending order of gravity until one that addresses the proper sanction aims just identified is reached.  As the finding in the present case is of lack of competence, the available sanction range ends with the making of a Suspension Order.  In reaching its decision the Panel has had regard to the HCPC’s Indicative Sanctions Policy.

38. In the view of the Panel the aggravating factors of the case were that the service users were put at risk of harm.  Furthermore, the shortcomings were not isolated and continued over a lengthy period, including a time when the Registrant was being closely supervised and supported.  She has shown limited insight and the Panel has not received evidence of remediation.  The mitigating factors are that the problems did not arise because of a wilful disregard for the safety of the service users and she has expressed regret for placing them at risk of harm.  Additionally, the Registrant was experiencing some difficult personal circumstances at the relevant time.

39. In the judgement of the Panel the findings against the Registrant are serious, not only because the five service users relevant to the Panel’s findings were put at risk of harm, but also because of the future risk of harm to service users given the Panel’s expressed view that there is a risk of repetition.

40. The Panel is satisfied that its findings on the allegation require the imposition of a sanction.  Furthermore, a caution order would not afford a sufficient degree of public protection because it would not restrict the Registrant’s practice.

41. The Panel next considered whether a Conditions of Practice Order should be imposed.  The Panel concluded that such an order would not be appropriate in this case for a number of reasons, namely:

• there has been very limited engagement on the part of the Registrant in this regulatory process;

• the Registrant is not practising as a Dietitian in the United Kingdom, and accordingly, there is no work she is undertaking to which conditions could apply;

• the fact that many of the shortcomings identified by the Panel occurred during the time when the Registrant was being closely supervised and receiving extra support, at the very least raises a question as to whether safe and effective practice could be ensured by permitting the Registrant to work under conditions of practice.

42. The consequence of these findings is that a Suspension Order is the only appropriate sanction.  The Panel is satisfied that this is a necessary sanction because unless and until the Registrant is able to demonstrate that she is capable of offering safe and effective practice, the risks she presents require her to be prevented from practising.  It is a proportionate outcome because it allows the Registrant the opportunity of returning to work as a Dietitian.  In the judgement of the Panel the appropriate length of the order is 12 months, as such a period might be required by the Registrant to address the shortcomings identified.

43. The Registrant should be aware that, in common with all suspension orders, the suspension order made by this Panel will be reviewed before it expires.  When it is reviewed, the panel undertaking the review will have all the sanction powers that are available to the present Panel.  It is a matter for the Registrant to decide how she would wish to deal with the review of the suspension order.  However, the present Panel would suggest that if she wishes to regain the ability to practise as a Dietitian she would be well advised to consider presenting to the reviewing panel the following information:

• Evidence of professional development, particularly with regard to record keeping and time management.

• Evidence of C.P.D. undertaken.

• References and testimonials. It is usually difficult asking for professional references where the Registrant is suspended, but I suppose here there is a prospect that she will be able to work as a Dietitian in Portugal.

• A reflective piece of writing dealing specifically with her learning arising from the Panel’s findings in relation to the allegations.

 

Order

Order: The Registrar is directed to suspend the registration of Ms Vera Franco for a period of 12 months from the date this order comes into effect.

Notes

Interim Order:

The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.  This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

Reasons for the making of an interim suspension order:

1. The Panel was satisfied that it had jurisdiction to consider the making of an interim order in the absence of the Registrant because she was informed that an application for an interim order might be made in the notice of hearing letter and email dated 27 September 2017.  Accordingly, the Registrant had been afforded an opportunity of making representations on the issue of whether such an order should be made.

2. The Panel approached its decision on whether an interim order should be made by accepting that the default position is that when a substantive sanction is imposed a Registrant’s ability to practise should remain unrestricted while their appeal rights remain outstanding.

3. However, in the present case the Panel has concluded that the Registrant’s lack of competence had clear and serious implications for the safety and well-being of the service users relevant to the findings against her, and would have the same implications for future service users were she to be permitted to practise unrestricted.  This has resulted in the Panel concluding that an interim order is necessary for the protection of members of the public and is also required in the wider public interest.  It follows that an interim order is required.

4. The Panel considered whether conditions of practice imposed on an interim basis would provide an adequate degree of protection and sufficiently maintain public confidence while the Registrant’s appeal rights remain outstanding.  However, having carefully considered the matter, the Panel concluded that interim conditions of practice were not appropriate for the same reasons already expressed by the Panel for rejecting substantive conditions of practice as a substantive sanction outcome.

5. The result of these findings is that the Panel concluded that an interim suspension order is the necessary and proportionate order to make.

Hearing history

History of Hearings for Miss Vera Franco

Date Panel Hearing type Outcomes / Status
29/01/2018 Conduct and Competence Committee Final Hearing Suspended