Success for Gemma in professional discipline case

About the case

My client was a newly qualified Band 5 occupational therapist (OT), who was facing disciplinary proceedings from the Health and Care Professions Council (HCPC) as a result of some administrative errors she had made over the course of her employment within a large hospital.

Throughout all of her early career placements, including the one in relation to which she faced disciplinary action, my client had experienced numerous difficulties including bullying by colleagues, poor supervision by mentors, and excessive caseloads involving inappropriate levels of responsibility. These difficulties, which had previously led to my client being signed off work by her GP with work-related stress, ultimately resulted in her becoming extremely anxious and depressed and eventually handing in her resignation.

Some months later, the client’s mentor went through her work and found that the client had made some administrative errors in relation to three different patients within a five month period. These errors were reported, investigated and subsequently referred by the hospital manager to the HCPC, who decided to bring a case against the client. By this time, she had moved on to work in a different environment (albeit still as an OT), and was very concerned at the prospect of losing both her job and potentially even her career.

Our approach

The first step was to review the evidence with the client, so that she could provide her instructions. Although she admitted that she had indeed made some administrative errors, HSPC had ruled out disposal by consent (a process which would allow her to be sanctioned without having to undergo a lengthy formal hearing process) so a date had been fixed for the case to be heard by a panel at the Health and Care Professions Tribunal Service (HCPTS) in London.

The HCPTS panel could either decide to take no further action, or they could issue a caution, set conditions of practice, suspend or even strike my client from the register altogether. With her  livelihood on the line she was naturally extremely concerned, so I was instructed to represent her at the hearing.

Ahead of the hearing itself, I spent a lot of time preparing the client’s case, including extensive interviews with the client to understand her experience at the hospital and to obtain detailed instructions from her about the specific allegations.

Unsurprisingly, for those like my client who have not been through a hearing process before, the experience can be overwhelming. I was able to explain to her exactly what would happen at the hearing so that she knew what to expect, and I made sure that I kept her informed from one stage to the next to reassure her as much as possible about the process.

The hearing

At the hearing, my defence of the client was based on three main points:

1. The client had been badly let down by senior staff, including her own mentors. The errors took place at a time when the client’s mental health had deteriorated significantly as a result of the constant criticism and bullying at work, and the HCPC evidence confirmed that those working with her could see that she was anxious and depressed, but had failed to do anything about it.
2. The mistakes were relatively minor administrative errors, and no patients were harmed as a result. The allegations related to three different patients within a five-month period, during which the client would have seen around 70 patients – as a proportion of her overall caseload, they could not be considered serious failings.
3. It was for the panel to decide whether the registrant’s fitness to practise was currently impaired, rather than whether it was impaired when the events to which the allegations relate took place – while the client may have been unfit to practise at the time the mistakes were made, she was perfectly fit to practice now.

I cross-examined the medical professionals with whom my client had worked – something which would have been extremely difficult for the client to do herself had she been unrepresented, as she already had a difficult relationship with some of them.

The client herself also gave evidence – I took her through her evidence-in-chief and she was then cross examined. During her examination-in-chief, I asked her to take the panel through her experiences as a post-qualified OT. I also asked her to discuss her current employment, and how well she was doing in that role, working in a different OT environment. Before the hearing we had gathered witness statements and character references from various professionals with whom she had previously worked well (including her current employer), which we presented to the panel.

The result

After hearing all of the evidence, the panel agreed with our case and concluded that:

• Taking each allegation as a whole, the client’s failings were minor and this was supported by senior members of staff.
• The errors made were in relation to three patients only, and the client would have seen approximately 70 patients within the relevant period and so where there were failings on the part of the client, those failings were of a relatively minor nature.
• The evidence did not, even when aggregated, show an unacceptably low standard of professional performance, and nor is it based on a fair sample of the client’s work. On that basis, a lack of competence on the part of the Registrant was not proven and so the case was Not Well Found at Grounds.

No action was therefore taken by the panel. The client was of course delighted with this outcome – having had no restrictions placed upon her work as an OT, she was able to continue with a job that she enjoyed, without worrying about her future.

To speak to Gemma about professional discipline matters or any other case, contact her directly at gemma@reganpeggs.com.