FTP02498: 1, 2, 3, 4a, 4b, 4c, 4d, 4e, 6a, 6b, 6c, 6d, 7
FTP02750: 1a, 1b 1c, 1d, 1e, 2a, 2b
Facts Not Proved:
FTP02498: Lack of competence in respect of 1, 2, 3, 4a, 4b, 4c, 4d, 4e, 6a, 6b, 6c, 6d, 7
FTP02750: Misconduct in respect of 2b, and Lack of competence in respect of 1a, 1b 1c, 1d, 1e, 2a.
Fitness to Practise Impaired?:
Yes, due to serious deficiencies in practise and for public protection and the reputation of the profession.
Conditions of Practice Order for 12 months
The Panel found that there had been good service of the proceedings and Miss Elliott was present and represented by counsel, Ms Presland. The Health Professions Council (HPC) was represented by Ms Buckley of Kingsley Napley Solicitors.
The Registrant Miss Elliott denies misconduct and denies that her fitness to practise is impaired
The Panel has considered and accepts the advice of the Legal Assessor to apply the civil standard of proof to the allegations namely: the balance of probability, in accordance with the decision of the Supreme Court in Re S-B  UKSC 17. The burden of proving the allegations rests upon the HPC.
The Panel has adopted a three stage process to decide whether:
• the facts giving rise to the allegations are proved;
• the proved facts amount to Misconduct and/or lack of Competence;
• Miss Elliott’s fitness to practice is presently impaired.
Miss Elliott was employed as a locum Speech and Language Therapist by North East Essex NHS Trust from 6 July to 14 August 2009 and by South West Essex Community Services in November 2009.
The Panel heard evidence from the following witnesses called by the HPC: Rebekah Anokhina, Head of Speech and Language Therapy for children’s services at the North East Essex Provider Services, Miriam Mitchell, Service Lead for Adult Speech and Language Therapy South West Essex Community Services NHS Trust.
The Panel also heard evidence from the Registrant Miss Elliott and considered documents submitted by her from Frances Brown, Neil Simons and Elliott Maning.
In respect of FTP02498 she admits allegations: 1 (in part), 2, 3, 4a, 4c, 4d, 4e, 6a, 6b, 6c, 6d, and 7.
In respect of FTP02750 she admits allegations: 1a, 1b, 1c and 1d.
The Panel has had regard to the whole of the evidence from both parties.
The allegations under FTP02498 are in summary as follows:
Use of dictaphones
Miss Elliott recorded two children without parental consent.
Use of USB memory stick
On 14 August 2009 Ms Anokhina explained to Miss Elliott that her employment with North East Essex Provider Services had ceased and she could no longer have access to patient files. However on 17 August 2009 Miss Elliott informed Ms Anokhina that she had retained patient information on a memory stick.
When the memory stick was supplied to Ms Anokhina she found it contained 111 reports on clients.
Inadequate clinical reasoning in diagnoses
On 15 July 2009 Miss Elliott queried an existing Consultant diagnosis of autism at a pupil’s annual review causing upset to teaching staff and parents, based upon a test which cannot be used to diagnose autism.
Miss Elliott made a premature diagnosis of autism at a first appointment causing distress to the child’s mother.
Overestimated the severity of prognosis for a number of children and made inappropriate referrals, in particular using inaccurate Specific Language Impairment and Phonological Disorder. Miss Elliott also failed to provide sufficient detail to link the outcome of assessments with treatment plans and failed to link conclusions to clearly reasoned data.
Miss Elliott’s manner of communication and attitude to service users and other professionals was inappropriate.
Miss Elliott’s time management skills were inadequate in that she failed to complete clinical reports causing appointments to be cancelled or reallocated. She failed to keep clinical notes in 16 files or to utilise pro-forma documents. As a result her reports were too long and took an average of ten hours to complete. As a result forty five reports were outstanding when Miss Elliott’s contract ended.
Under FTP02750 the allegations are in summary as follows:
Inadequate standard of clinical care
Miss Elliott was only seeing 2 or 3 clients per day on a stroke rehabilitation unit whereas she should have seen at least 6. The VAST test was always performed by her and repeated although it was not appropriate but any necessary therapy or treatment was not provided. She failed to make any care plans or to communicate that she had changed Patient A’s plan. She failed to request a review of Patient B by a therapist qualified to manage dysphagia.
Failed to recognise the limitation of skills, training and knowledge
Made observations about what a patient was doing when swallowing when not qualified to do so. Continued to practise without NQP (Newly Qualified Practitioner) sign off as a locum when she should not have been working unsupervised or above Band 5.
Miss Elliott’s Response to the Allegations
Allegation 1 Miss Elliott used a recorder with parental consent given verbally or usually sought from SENCo. Recordings were deleted after transcription.
Allegation 2 The USB was NHS encrypted.
Allegation 3 Work which was unfinished was being completed outside working hours and this was a common practice.
Allegation 4a An inappropriate challenge to the diagnosis was made in discussion with parents based upon a detailed history and other professional input.
Allegation 4b No diagnosis of autism was given but the notes were lacking.
Allegation 4c Some referrals may not have been necessary due to an over cautious approach.
Allegation 4d therapy goals were not transparent.
Allegation 4e clinical reasoning was unclear
Allegation 5 the allegation is vague and based on hearsay.
Allegation 6a patients were generally seen on time.
Allegation 6b found it difficult to keep on top of note taking.
Allegation 6c due to being out of depth and lacking supervision.
Allegation 6d pressure of time limited the extent of records.
Allegation 7 NQP not completed
Allegation 1a she was only in place for 6 days and requested supervision on arrival.
Allegation 1b VAST is a recognised test for stroke disorders.
Allegation 1c no training was given for the on-line system.
Allegation 1d she was unable to update the care plan on the system and she gave feedback to the therapy assistant.
Allegation 1e not enough information is available for her to comment.
Allegation 2a she should not have been left unsupervised.
Allegation 2b she was not aware of the information being provided by the agency.
Miss Elliott states that she commenced an MSc in Language Pathology at Reading University in 2000 which she completed in 2006 following maternity leave. She was not aware of NQP when she started working with a local stroke group. She applied for a post through a locum agency and became aware that she needed the NQP. She obtained a position with Havering but the staff in post could not sign her NQP. This post came to an end in 2009. Miss Elliott then obtained a post in North East Essex NHS Trust. At the conclusion of that contract she was then contacted by several agencies and informed them that she would only consider a band 5 position with supervision. She did not register with Hays Health. She was offered a position with South West Essex Community and told she would be supported to complete her competency framework and receive dysphagia training. However the level of supervision agreed was not provided and the contract was terminated after six days.
Miss Elliott obtained a new post in February 2010 with an induction programme and a minimum period of employment of six months. However the contract has now been terminated for funding reasons, without Miss Elliott obtaining her NQP. She obtained employment at a special needs school which is about to end and she has now obtained a locum position working with SEN children in schools which is about to commence. An independent therapist is also willing to provide supervision for Miss Elliott but the details have not yet been finalised.
Findings of Fact
There was a consistent pattern of evidence from the 2 HPC witnesses concerning Miss Elliott’s practice. The Panel finds the evidence of the HPC witnesses is likely to be correct. The Panel finds there were failures of understanding to assess patients and this put patients at risk, record keeping and report writing was seriously deficient and this put patients at risk because other clinicians were unaware of objective markers or patients needs and abilities. She used inappropriate assessments and treatment and failed to follow up or implement interventions required. Her record keeping was inadequate and writing up was seriously delayed.
In relation to allegation FTP02498 2b the Panel finds Miss Elliott held herself out misleadingly as a highly qualified therapist. She deliberately omitted information concerning posts she had held and gave a false picture of her experience, in particular in relation to staff training.
The Panel finds allegations FTP02498: 1, 2, 3, 4a, 4b, 4c, 4d, 4e, 6a, 6b, 6c, 6d, 7. FTP02750: 1a, 1b 1c, 1d, 1e, 2a, 2 proved.
Allegations FTP02498: 5 is not proved because the Panel finds the evidence is vague and relates to the style of communication rather than an unprofessional manner.
Misconduct and/or Lack of Competence.
In respect of FTP02498 Miss Elliott admits that her actions showed lack of competence and experience. Her role required a practitioner qualified to band 7 which was beyond her capability and she states that this was made clear to her employers. She also stated that she required supervision and did not suggest she had NQP Competency Framework.
In respect of FTP02750 Miss Elliott admits elements of her actions showed lack of competence but states she did not suggest she was able to work above a band 5 level and required supervision to obtain her NQP.
She denies both allegations of misconduct.
The Panel has considered Article 22 of The Health Professions Order 2001 and the principles set out in the cases of: Roylance v GMC  1 AC 311 and R (on the application of Remedy UK Ltd.) v GMC  EWHC 1245 in respect of the alleged misconduct and/or lack of competence. In particular, misconduct: “is a word of general effect involving some act or omission which falls short of what would be proper in the circumstances.” (per Lord Clyde in Roylance v GMC) and: “Misconduct is of two principal kinds. First, it may involve sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practice…Deficient performance or incompetence, like misconduct falling within the first limb, may in principle arise from the inadequate performance of any function which is part of a medical calling. Which charge is appropriate depends on the gravity of the alleged incompetence….” (per Elias LJ in R v GMC).
The Panel has considered the HPC Standards of conduct, performance and ethics. Miss Elliott is in breach of: standards 1(you must act in the best interests of service users), 2 (you must respect the confidentiality of service users), 5 (you must keep your professional knowledge and skills up to date), 6 (you must act within the limits of your knowledge, skills and experience and, if necessary, refer the matter to another practitioner), 7 (you must communicate properly and effectively with service users and other practitioners), 10 (you must keep accurate records) and 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).
A lack of competence requires a finding that competence is below the minimum acceptable level. As an autonomous professional Miss Elliott should have flagged up the difficulties she was experiencing. Her failure to do so demonstrates a serious lack of understanding and is properly categorised as lack of competence rather than misconduct. However her conduct was wilful in respect of allegation FTP02750: Misconduct in respect of 2b.
The allegation of lack of competence but not misconduct is well-founded in respect of FTP02498: 1, 2, 3, 4a, 4b, 4c, 4d, 4e, 6a, 6b, 6c, 6d, 7 and FTP02750 1a, 1b 1c, 1d, 1e, 2a
The Panel has decided that: the allegation of misconduct is well-founded in relation to allegations: FTP02750: 2b.
In respect of FTP02498 Miss Elliott denies that her fitness to practice is impaired because her admitted lack of competence is due to a lack of experience and supervision within the correct roles.
In respect of FTP02750 Miss Elliott denies that her fitness to practice is impaired within the appropriate banded roles. Impairment must be current and the Panel has considered the context giving rise to the allegations and the lapse of time.
The Panel finds that Miss Elliott has shown a lack of insight in respect of the proved deficiencies in her practice. The serious failings proved were not admitted demonstrating a lack of remorse. The steps taken to remedy her deficiencies are not adequate in view of the nature and seriousness of the proved allegations. In considering whether Mrs Elliott’s fitness to practice is currently impaired, the Panel may take into account any failure to comply with the standards of conduct performance and ethics which is proved to have occurred. However, in accordance with Rule 9 of The Health Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003, any such failure does not of itself establish that her fitness to practice is impaired.
The Panel has followed the guidance in the HPC Practice Note: Finding that Fitness to Practice is Impaired (July 2010) and the advice of the Legal Assessor that an allegation that fitness to practice is impaired is comprised of up to four separate elements. The Panel has considered sequentially: whether the facts set out in the allegations are proved, whether the facts proved amount to misconduct or lack of competence and if so, whether the Registrant’s fitness to practise is currently impaired. If her fitness to practise is presently impaired the Panel determines what, if any sanction to impose. The Panel has decided that: under the principles set out in Meadow v GMC and the HPC Practice Note on Finding that Fitness to Practice is Impaired, the Panel may consider a Registrant’s past conduct in reaching a judgment on likely future behaviour. Applying the principles in Cohen v GMC the Panel should consider both personal and public policy issues. In particular: the need to protect patients, to maintain confidence in the registered profession, to uphold standards of conduct and ethics and to consider the impact of proved allegations on Miss Elliott’s ability to practice.
In relation to the personal element of impairment the Panel finds that she has not addressed or displayed adequate insight into the deficiencies in her practice and misconduct which has been proved.
In relation to the public element of impairment it is necessary to consider the protection of patients, public confidence in the profession and the regulatory process and the need to uphold standards of conduct and ethics.
The Panel has therefore decided the allegation that Miss Elliott’s fitness to practice is impaired as at today’s date is well founded.
The Panel has considered the HPC Indicative Sanctions Policy which states fitness to practice proceedings are not intended to be punitive. Even though a panel has determined that fitness to practice is impaired, it is not obliged to impose a sanction. The Panel has applied the principle of proportionality to strike a proper balance between the protection of the public and the rights of the registrant.
The panel has considered Miss Elliott’s past acts to determine whether she may pose a risk to those who need to use her services in the future. Where such a risk is identified, the Panel must then determine what degree of public protection is required.
The Panel has heard submissions in respect of mitigating or aggravating factors and advice from the Legal Assessor, before deciding what, if any sanction to impose. The mitigating factors are the testimonials. The aggravating factors extend to which applicable standards were breached and the deficiencies found in relation to core skills and the potential risk to the public and patients posed by a return to practice. A sanction is only to be imposed to the extent that it is required in the public interest. The public interest includes the protection of patients, the maintenance of public confidence in the profession and the regulatory process, the declaring and upholding of proper standards of conduct and behaviour.
We have considered the available sanctions under Article 29 of the Health Professions Order 2001, in ascending order of gravity. We considered whether it would be appropriate to take no action or to refer the case to mediation and rejected these options on the grounds that the severity of the issues raised are such that this would not adequately meet the situation.
The Panel next considered imposing a Caution, and felt that was not appropriate in this case having regard to the need for patients to be protected and to maintain confidence in the regulatory process and the profession. A Caution order may be appropriate where there is an isolated incident, a low risk of recurrence the lapse has been corrected and was of a minor nature. The lack of competence and misconduct found proved in this case does not fall into this category and therefore a Caution order is not appropriate.
A Conditions of Practice order may be appropriate as a rehabilitative measure where the panel is satisfied that appropriate, realistic and verifiable conditions can be formulated and the failures identified are capable of being remedied. The Panel has decided a Conditions of Practice Order is appropriate.