Mrs Maria E Barnes

: Orthoptist

: OR01277

: Final Hearing

Date and Time of hearing:10:00 26/02/2018 End: 17:00 28/02/2018

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

: Conduct and Competence Committee
: Suspended

Allegation

Whilst registered as an Orthoptist and during the course of your employment as an Orthoptics and Lead Clinician for the Literacy Difficulty (LD) Clinic at Taunton and Somerset NHS Foundation Trust:

 

1)    Abused your position in relation to at least 12 patients, in that you:

 

a)    Breached their confidentiality by accessing their private contact details recorded on NHS patient referral records;

b)    Used the private contact details set out in particular a) in order to seek to make unsolicited telephone calls which sought to redirect NHS literacy difficulty referrals to your private practice, ‘Maria Barnes Vision Services’.

 

2)    Your conduct as described at particular 1 was dishonest.

 

3)    The matters described at particulars 1a), and 1b) and/or 2 constitute misconduct.

 

4)    By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary matters

Service and proceeding in absence


1. A written Notice of Hearing dated 27 September 2017 was sent on that date by first class post to the Registrant at her registered address. In those circumstances, the Panel was satisfied that good service of the Notice of Hearing had been established for the purposes of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 as amended (‘the Rules’).


2. Ms Shameli applied to proceed in the absence of the Registrant and referred the Panel to a bundle of documents. These included a completed ‘Response Proforma’ dated 8 June 2017, in which the Registrant made clear that she did not intend to appear in person, or to be represented at, the hearing. Kingsley Napley, acting on behalf of the HCPC, sent the hearing bundle to the Registrant under cover of a letter dated 8 January 2018 in which they asked the Registrant to confirm whether she would be attending the hearing, and enclosing another pro forma questionnaire. The Registrant responded by letter dated 18 January 2018, enclosing the questionnaire she had completed and copies of a statement she had prepared for this hearing, paragraph 6 of which stated, -
‘I have chosen not to attend the hearing as I do not wish to add to the stress I have felt for the last two years since the inappropriateness of my actions was brought to my attention.’


3. The completed questionnaire again confirmed that the Registrant did not intend to attend the hearing and that she did not intend to be represented at the hearing.


4. The Legal Assessor referred to r. 11 of the Rules, which states –
‘Where the registrant is neither present nor represented at a hearing, the Committee may nevertheless proceed with the hearing if it is satisfied that all reasonable steps have been taken to serve the notice of the hearing under rule 6(1) on the registrant.’

He also referred to the principles identified in the decision of the Court of Appeal in GMC v Adeogba [2016] EWCA Civ. 162, to the HCPTS’ Practice Note, Proceeding in Absence and to Davies v HCPC [2016] EWHC 1593 (Admin) at [19].


5. As there had been proper service of the Notice of Hearing, the Panel proceeded to decide whether or not it would be appropriate to proceed in the absence of the Registrant. The Registrant has engaged with the HCPC in relation to these proceedings. Her absence is the result of a voluntary decision on her part not to attend. She has also chosen not to be represented and has not asked for an adjournment. The witnesses for the HCPC are also in attendance. In those circumstances, the Panel has decided that it would be fair and appropriate in all the circumstances to proceed in the absence of the Registrant.


Amendment


6. Ms Shameli applied to amend the Allegation. Notice of the application to amend had been given to the Registrant by the HCPC’s letter dated 11 September 2017. She submitted that the proposed amendments were to make the allegation more accurately reflect the evidence in the case. The Legal Assessor advised that the amendments might be allowed if they could be made without injustice to the Registrant. The Panel decided that the Registrant had been given fair notice of the amendments proposed, she had not opposed them and there would be no prejudice to her if they were made, as the amendments did not change the import of the Allegation.  Therefore, the Panel granted permission to amend the Allegation in the form sought.


Possible Bias


7. Shortly before Ms Shameli called the third witness, JD, to give evidence on the first day of the hearing, a question of possible bias arose as JD and Mr Newsham, the Registrant member of the Panel, knew each other as a result of their occasional work together (with others) over the past two years on an education committee of the British and Irish Orthoptic Society.  During the past six or seven months JD had been on maternity leave so had not attended. They had both attended the same four or five meetings of the Committee and had also made a joint, two-hour visit of a hospital to assess its orthoptist services. There had been some brief email correspondence between them over travel arrangements for that visit and each had been copied in on correspondence relating to the work of the Committee. 


8. The Legal Assessor advised that the test was that stated by Lord Hope of Craighead in Porter v Magill [2002] 2 AC 357 at 494H, namely -


‘the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.’        

 
He advised that in the present circumstances, the fair-minded and informed observer would not so conclude. The Panel agreed. There had been limited contact, which was of a professional nature and in the circumstances, there was no real possibility of bias. Accordingly, there was no requirement on the part of Mr Newsham to recuse himself and the Panel decided that the hearing should proceed.


Decision on Facts


9. The Panel heard oral evidence on behalf of the HCPC from the following witnesses, -


SJ – Secretary at the Hospital, working in in the Orthoptic Department.


GW – Orthoptic Administrator at the Hospital.


JD – Lead Orthoptist at the Hospital and formerly, the Registrant’s Line Manager from March 2015.


AN -   Local Counter Fraud Manager.


The Panel found each of these witnesses to be honest and credible. They did their best to assist the Panel. In large measure the Registrant did not dispute the contents of the witness statements made by each, although she raised a few minor issues. The Panel accepted their factual evidence on the important matters in issue, though disregarded any irrelevant opinion evidence on the advice of the Legal Assessor.  


10. Although the Registrant did not give oral evidence, she provided two written statements that she had prepared. The first in time we refer to as ‘the first statement’ and that provided with the letter of 18 January 2018 we refer to as ‘the second statement’. The Panel gave such weight to the content of those documents as appears later in this decision. 


11. There were also, in all, three bundles of documents relied on by the HCPC. The Registrant relied on no other documents and provided no further documents herself. 

12. In making its decision, the Panel has taken into account all the evidence, both oral and documentary as well as the submissions made by Ms Shameli for the HCPC as well as the written statements of the Registrant. The Panel has also received legal advice from the Legal Assessor, which it has accepted.


13. The HCPC bears the burden of proving its factual case to the standard of the balance of probabilities.


Introduction


14. The Registrant qualified as an Orthoptist in 1980. She commenced her employment with the Taunton and Somerset NHS Foundation Trust (‘the Trust’) on 1 July 1993, at Musgrove Park Hospital (‘the Hospital’). From 5 November 2012, and at the time of the Allegation, the Registrant was employed as a Lead Orthoptist for Enhanced and Supplementary Services. This role involved the provision of orthoptic services as an autonomous practitioner, assessing, diagnosing and managing patients who had been referred to the Orthoptic Department (‘the Department’) of the Hospital.


15. She was also the Team Leader for the Orthoptic Literacy Difficulty Services (‘the Service’), an NHS service. It was a service to help children and young people with problems of literacy. The Registrant led a team of orthoptists and orthoptic assistants to provide and develop these services for the Trust. The Registrant was also responsible for general paediatric orthoptic work and led the School Vision Screening Service. She worked three days a week for the Trust.


16. The Service had been set up by an Orthoptist who had formerly worked at the Trust. The referrals to the Service were made by GPs, paediatricians, Special Educational Needs Co-ordinators (SENCO’s) at schools and Occupational Therapists. The Registrant had taken over the running of the service, which she had expanded and which she had promoted when carrying out school screenings of child literacy.


17. Alongside her work for the NHS, the Registrant ran her own private clinic called “Maria Barnes Vision Services”. She used clinic rooms at the Trust and at other sites in order to carry out her private work. The Registrant charged £120 for an initial private consultation. She operated a website for this private practice and its existence was well known to her colleagues in the Department. There was another Orthoptist who worked in the Service and who saw patients with literacy difficulties on a private basis.


18. All written referrals to the Department for orthoptic services at that time were received by post. SJ and GW separated the referrals into the different areas of service, including literacy difficulty, and placed into a file for each. The files were passed to the Registrant, who wrote on the file when she wanted the NHS appointment to take place and the referral was sent to the booking team to make an appointment for the patient. An appointment would then be made and notified to the patient’s parent(s) or guardian.


19. The referral letter contained contact details relating to the patients, including names and telephone numbers, and these were cross-checked against the Hospital’s patient record system by the booking team and this online record was updated where necessary in the light of the information on the referral letters and also when patients attended the Hospital. All clinicians, secretaries and administration staff in the Department had access to this central record.


20. By January 2015, the growing demand for the Service had resulted in an increase in waiting times from a couple of months at most to around eight months. By March 2015, waiting times were no shorter and there was a significant waiting list due to the level of NHS referrals being received. It was against this background that two telephone calls were received by the administration team that gave rise to concerns about the Registrant’s conduct.


21. The first call was received by GW on 16 March 2015 and the second call was received by SJ on 20 March 2015. Both calls related to the Registrant contacting NHS patients and offering them private appointments. As a result of their concerns, GW and SJ spoke to their manager, JD. The case was then referred for investigation to a local counter fraud specialist, AN.


Particular 1


 ‘Whilst registered as an Orthoptist and during the course of your employment as Lead orthoptist for Enhanced and Supplementary Services at Taunton and Somerset NHS Foundation Trust:

1. In relation to approximately 12 patients you:

a) Accessed their private personal contact details recorded in NHS patient referral records;


22. By Christmas 2014 the Department had become very busy with referrals. The Registrant told GW that she was taking the referral letters home to look through them. In around January and February 2015 the Registrant also regularly asked GW how to look up contact details on the central record system.

23. The investigations made by AN resulted in telephone calls made by her to the parents or guardians of patients who had been referred to the Service but who, in the light of investigations made by her and the Clinical Services Manager of the Trust, had seen the Registrant for a private appointment as their first appointment following the referral. AN asked the twelve patients relevant to the Allegation a number of set questions. One of these was, ‘How did the individual contacting you obtain your contact details?’ Of those twelve, one stated that this could only have been through the NHS patient notes and others identified the NHS records or the NHS referral. The twelve also specifically identified the Registrant as being the person who had made a call to them about the appointment.


24. JD’s evidence was that the Registrant must have accessed the contact details relating to the patients from information held by the NHS, either from the central hospital records or the paper referrals or a combination of the two. 


25. In those circumstances, the Panel has concluded that the Registrant did access the personal contact details relating to 12 patients recorded in NHS records. The Registrant has also admitted this sub-particular of the Allegation. Therefore, both the stem of the Allegation and particular 1a) have been found proved.


‘b) Used the personal contact details set out in particular 1a) in order to make unsolicited telephone calls to the patients’ parents and/or guardians;’

26. On 16 March 2015, GW received a telephone call from the mother of one child patient who had been the subject of an NHS referral to the Service. She asked GW how she could get in touch with the lady who had previously contacted her about her child being seen privately. Asked to identify that person, the patient’s mother named the Registrant. The mother explained to GW that at first she had not wished to see the Registrant privately, but since receiving that call, her child’s grandparents had “clubbed together” to be able to afford to pay for the private service.


27. On 20 March 2015, SJ received a call from the mother of another child who had been referred to the Service. She rang, because her ex-husband, from whom she had been separated for five years, had been contacted about her child’s appointment. The mother informed SJ that her ex-husband had been informed by the caller that the first NHS appointments were in September 2015, but a fee-paying private appointment could be made sooner, if payment were made. When asked by SJ to identify the name of the caller, the mother could not do so. However, the Panel has concluded that on the balance of probabilities that person was the Registrant. 


28. The results of the investigations made by AN and of her phone calls to the  parents and guardians of all 12 of the selected patients led AN to conclude that the Registrant had contacted each of them by making unsolicited telephone calls to their home or mobile telephone numbers, which she had accessed. The Panel has accepted that evidence. The Registrant has also admitted this sub-particular of the Allegation.

29. In the circumstances set out above, particular 1b) of the Allegation has been found proved.


‘c) During the telephone calls referred to in particular 1b sought to redirect NHS literacy difficulty referrals to your private practice, ‘Maria Barnes Vision Services’.

30. The Registrant’s position in her response to the written Notice to Admit Facts was that if ‘re-direct’ was meant to refer to a permanent diversion of patients, she disputed that she did so. Her intention was, so she stated, to provide earlier intervention, but for the patients then to continue their further care in the NHS service. ‘However, if that fits the meaning of ‘redirect’ in this circumstance, then my response is Admit.’    


31. The Panel approached the reference to ‘re-direct’ in this sub-particular of the Allegation to mean that the Registrant sought to transfer patients who had been the subject of an NHS referral to a privately paid appointment.


32. The Registrant did not dispute that she had contacted patients’ parent or guardian. In her first statement the Registrant stated that,
‘Contact with the patient’s parent / guardian was to notify them of the wait time and advise them that there was a private alternative.’ 

The Panel also took into account the evidence of AN, derived from the telephone interviews. The evidence given by her to the Panel was that when the Registrant had telephoned the parents of the 12 patients, she had told them that that she was phoning as an NHS member of staff to advise of the long waiting time for an NHS appointment, but that she could offer an earlier private appointment, offering specific dates which were sometimes within the following few days.

33. In those circumstances, the Panel has found particular 1c) of the Allegation to have been found proved.

‘2. Your conduct as described at particular 1 was dishonest.’


34. The proper approach to the meaning of dishonesty was recently authoritatively stated by the Supreme Court in Ivey v Genting [2017] UKSC 67, where Lord Hughes giving the judgment of the court stated, at [74] -


‘…. When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.’


An allegation of dishonesty is serious, requiring cogent evidence and a very careful consideration of all relevant factors is necessary before such a finding is made: In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586D-H and In re B [2008] UKHL 35 at [70], Quereshi v GMC [2015] EWHC 3729 (Admin) at [65].


35. The HCPC’s case was that the Registrant acted dishonestly by accessing and using the contact details relating to the 12 patients who had been referred under the NHS in order to solicit private fee-paying work for herself.


36. The Registrant’s case may be taken from her second statement. She stated as follows, -
‘I acted in what I believed were the best interests of the patients and lost sight of other important considerations. 6 months is a long time in the development of a child, and if their ability to acquire learning were improved 6 months earlier, then their entre educational attainment could be changed.’  


37. The Panel has accepted that at the relevant time (December 2014 – March 2015 in particular), there were long waiting times of up to eight months.  The Panel refers to the differing accounts of AN and the Registrant as to what the Registrant said to the parents and guardians of the 12 patients: see the Panel’s findings in respect of particular 1 c). The Panel has concluded that AN’s account of the conversations is the more likely, being based on the interviews she conducted. Therefore, the Registrant did not put the choices neutrally when she spoke to the parents and guardians. She did not simply point out the availability of the private service (which included her colleague Orthoptist in the Department). She was, in fact, canvassing private appointments for herself, with specific dates for private appointments offered by her to those to whom she spoke.


38. The Registrant also stated (first statement) that, -
‘I believed that as service lead I was entitled to use the contact details to notify them of the delays in the system.’    


The Panel does not accept that the Registrant held that belief. If that had been the case, there was no reason why she could not have asked the secretarial or administrative staff to contact the parents and guardians of the 12 children. Further, the Registrant had been working in the NHS for many years and must have been well aware that it was not permissible to take confidential patient information and use it for her personal advantage. This was to offend against fundamental principles of registered practice, as stipulated by the HCPC, her regulator: standard 2 of the Standards of Conduct, Performance and Ethics in force at the time (‘the Standards’).  The applicable Confidentiality Policy of the Trust also made clear that personal information relating to patients could only be used for limited purposes, as the Registrant must have known.


39. The Panel accepts that the Registrant was in part motivated by a desire to protect the wellbeing of the children who had been referred to the NHS service for reading difficulties. The Panel took into account that she had carried out a lot of work to build up the Literacy Difficulty Service before she began to take on private patients in that area of her practice. She did have a genuine concern for the children.


40. However, the Panel does not accept that this was her sole motivation in canvassing the parents and guardians of the 12 patients. The Panel has concluded that her main motivation in doing so was to boost her own private practice, for the following reasons.


41. First, when the Registrant contacted the parents and guardians, she did not refer to the availability of the Literacy Difficulty Service in neutral terms, but in a manner that favoured her personally, but not also mentioning her colleague’s private practice: see above.


42. Second, there was a measure of concealment in the Registrant’s conduct. In normal circumstances, the administrative teams would contact patients. She could have asked them to make the telephone calls but chose not to do so.


43. She also told GW that she was taking the referral letters home “just to have a look through them.” The Registrant (in her second statement) did not challenge this part of GW’s witness statement. The Panel has concluded that the Registrant took the letters home in order to select which parents to approach for private work. Therefore, she was not being open with GW as to why she was taking the letters away.


44. The Panel also accepted that the Registrant asked GW for assistance in accessing patient phone numbers, without explaining why she was doing this.


45. Furthermore, as set out above, the Panel rejected the Registrant’s contention that she believed that she was at liberty to use the contact details relating to the 12 patients. The Panel has concluded that she knew that it was forbidden for her to use those details to further her private practice, even if there were long waiting times.        
46. Next, when faced with the possibility of giving the parent of Patient B who had booked a private appointment following an NHS referral a prompt NHS appointment resulting from a cancellation, the Registrant instructed GW not to offer that appointment to Patient B. (Patient B was the patient who grandparents had “clubbed together” to pay for a private appointment).  This appeared from a conversation between GW and the Registrant on 17 March 2015, the day after the parent had spoken to GW. The Registrant’s justification for taking this position was, as she says she said to GW in that conversation, that it was unfair on children who had been waiting a long time for an appointment. However, that is exactly how the system worked, as GW told the Panel. If a patient or their carer was lucky enough to make an enquiry for an earlier appointment when there had been a cancellation, the cancelled appointment was given to that patient. So, there would have been nothing unusual about allocating that appointment to Patient B.


47. Having made these findings, the Panel has considered whether the Registrant acted dishonestly in accessing and using the personal contact details recorded in the NHS records in relation to the 12 patients in order to transfer patients who had been the subject of an NHS referral to privately paid appointments with her. In view of the circumstances as the Panel has found them to be, the Panel has concluded that in so doing the Registrant did act dishonestly by the standards of ordinary decent people.


48. The Panel observes that the Registrant did admit dishonesty with respect to particular 1a) and 1 b), if not 1c) as well (the latter is not wholly clear). However, in reaching its conclusions on particular 2 of the Allegation, the Panel did not take this admission into account for the purposes of deciding the issue of dishonesty, following advice from the Legal Assessor.   

49. The Panel has found particular 2 to have been proved in respect of each of particulars 1a), b) and c).    


Decision on Grounds


50. The Panel received and accepted further legal advice from the Legal Assessor on the issue of the statutory ground. The facts proved will amount to the statutory ground of misconduct if they fell short of what would have been proper in the circumstances and if, in context, they were sufficiently serious bearing in mind any relevant mitigating factors:  Roylance v GMC [2000] 1 AC 311, PC at pp. 330 to 331 and R (Campbell) v GMC [2005] 1 WLR 3488, CA at [19] - [21].


51. In view of the findings of fact made by the Panel, it has concluded that the Registrant failed to comply with the following parts of the Standards, -

Standard 2 - ‘You must respect the confidentiality of service users.


Standard 13 -  ‘You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.’ 


52. The Panel has concluded that the Registrant has failed to comply with relevant professional standards and breached fundamental tenets of the profession by misusing confidential information made available for the care of patients by the NHS in order to solicit for privately paid work and that she was dishonest in doing so. As a result, the Registrant has also brought the profession into disrepute. Therefore, the conduct did cross the threshold of seriousness and amounted to the statutory ground of misconduct.


Decision on Impairment 


53. The Panel directed itself in accordance with the advice given by the Legal Assessor, who referred to the relevant case law, including CHRE v NMC & Grant [2011] EWHC 927 (Admin) at [64] – [76], to the guidance given in the HCPTS’ Practice Note,  ‘Finding that Fitness to Practise is Impaired’ and to the Overarching Objective contained in Art. 3(4) and 3(4A) and paragraph 18(10A) of Schedule 1, Health and Social Work Professions Order 2001, as amended.


54. The Registrant has shown a measure of insight into her misconduct. She admitted substantially all the facts alleged against her, including dishonesty. She has apologised to her professional colleagues for causing them to become involved in the fitness to practise process and to attend the hearing, so taking them away from their jobs of patient care. She stated that ‘with hindsight’ she could see that she had been mistaken in what she had done (first statement). Her actions were ‘wrong, extremely stupid, and unprofessional’ (second statement).

55. The dishonesty in this case is capable of remediation and has been remediated to some extent. However, the Registrant has not persuaded the Panel that she would not repeat her actions if placed in the same or a similar situation in the future. The Registrant has provided no evidence of any detailed reflection on her actions and no insight into the impact of her conduct on patients. Not only did Patient B’s family incur unnecessary private expense, but a number of other patients contacted as part of AN’s investigations commented that they had found the Registrant’s unsolicited call “odd” or words to that effect. The Registrant has not shown any awareness of this impact on patients. The Registrant’s explanation of her motives in acting as she did was at odds with the conclusions of the Panel on the issue of dishonesty. This is a further reason why (without further reflection on the part of the Registrant) there remains some risk of repetition of the misconduct.


56. In weighing the matters relevant to the wider public interest, the Registrant has breached fundamental tenets of the profession by misusing confidential information and by acting dishonestly in soliciting privately paid work on the back of NHS referrals. By bringing the profession into disrepute as a result of those actions have not caused any clinical harm to patients, the Registrant has undermined public confidence in the profession of Orthoptics. That is the case, even though the Registrant’s actions have not harmed patients.  


57. In the circumstances, a finding of impairment is necessary in order to protect the health, safety and wellbeing of the public and also to maintain public confidence in the profession and to maintain proper professional standards and conduct for members of the profession.     


Decision on Sanction


58. Ms Shameli informed the Panel that there had been no previous fitness to practise concerns concerning the Registrant and that no Interim Order of Suspension was, or had been, in place. She drew the Panel’s attention to the purpose of sanctions and to the particular considerations of public protection and the wider public interest and referred to the HCPTS’ Indicative Sanctions Policy, 22 March 2017 (‘the ISP’). 


59. The Panel also accepted the advice of the Legal Assessor, who referred to the principles from the ISP and drew attention to the statutory overarching objective to which the Panel was required to have regard, namely the protection, promotion and maintenance of the health, safety and well‐being of the public; the promotion and maintenance of public confidence in the profession and proper professional standards and conduct for members of the profession: Article 3(4),(4A) and paragraph 18(10A) of Schedule 1 of, the Health and Social Work Professions Order 2001 (as amended). 


60. The primary function of any sanction is to address public safety from the perspective of the risk which the registrant concerned may pose to those who use or need his or her services. However, in reaching its decision, the Panel must also give appropriate weight to the personal interests of the registrant and strike an appropriate balance with the public interest, which also includes the deterrent effect to other registrants, the reputation of the profession and public confidence in the regulatory process.


61. The Panel has taken into account the following mitigating factors, -
• The Registrant was motivated in part to protect the wellbeing of patients;
• She had undertaken considerable work in building up the Service and did not seek to take immediate advantage of her position to divert NHS referrals to her private practice;
• She referred the patients back into the NHS, using what was their initial NHS appointment as their follow-up appointment after she had seen them privately;
• No clinical harm was done to any of the 12 patients;
• The Registrant made admissions and expressed some remorse for her actions;
• Her dishonesty has been remediated to some extent;
• The Registrant has had a long career with no other fitness to practise concerns having been raised with the HCPC;
• The Registrant has engaged with the HCPC throughout this process.


62. In contrast, the Registrant’s dishonesty was serious. The Registrant’s misuse of private contact details supplied for the purpose of NHS treatment to solicit privately-paid work for herself brought the profession into disrepute, as the Panel has found. In the case of Patient B, this conduct was aggravated by the Registrant’s decision to prevent Patient B from taking an early NHS appointment that arose due to a cancellation. As a result, that family was put to the expense of a private appointment, which they had had to club together to afford. Overall, the dishonesty was also aggravated by the Registrant’s seniority and the length of her career, as she must have known that hat she was doing was wrong.


63. The Panel considered the available options in ascending order of severity. This was plainly not a ‘no action’ case in view of the gravity and nature of the misconduct. Mediation is inappropriate in this context.


64. Although the Panel considered the risk of repetition to be low, it is not insignificant. Therefore, a caution would provide insufficient protection to the public in view of that risk. In view of the seriousness of the dishonesty, a caution also would not meet the demands of the wider public interest, in particular the need to maintain public confidence in the profession and to uphold professional standards.


65. The Panel did consider the possibility of a conditions of practice order. However, the nature of the misconduct, namely dishonesty, is not amenable to conditions.  


66. Despite the mitigating factors present in the case and the potential effects of an order of suspension on the Registrant, the Panel has concluded that an order of suspension is necessary. A suspension will provide the necessary degree of public protection, mark the seriousness of the misconduct, have the necessary deterrent effect on other members of the profession and signal that misconduct of this nature is wholly unacceptable. Thus, an order of suspension is also necessary to maintain public confidence in the profession and to maintain proper professional standards.


67. The Panel has concluded that a period of suspension of 12 months is appropriate, both to mark the seriousness of the misconduct and to give the Registrant sufficient time and opportunity to develop and demonstrate full remediation and insight.


68. The Registrant’s case will be re-considered before the expiry of the order of suspension by a reviewing Panel, which may be assisted by the following –


• A detailed written piece from the Registrant containing reflections on the misconduct, showing insight into the potential and actual effects of the misconduct and its implications for all relevant stakeholders, and for public confidence in the profession and the wider public interest; 
• Testimonials addressing the Registrant’s character and probity in particular;
• Any other evidence that the Registrant may consider to be helpful. 


69. The Panel did consider whether a striking off order would be appropriate, but decided that it would be a disproportionate response in the circumstances. Serious as the dishonesty was, it was not dishonesty of the worst kind and, coupled with the mitigating factors, a striking off order would be excessive.

Order

Order: That the Registrar is directed to suspend the registration of Maria E Barnes for a period of 12 months on the date this order comes into effect.  

Notes

The Panel made 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.
 

Hearing history

History of Hearings for Mrs Maria E Barnes

Date Panel Hearing type Outcomes / Status
26/02/2018 Conduct and Competence Committee Final Hearing Suspended