Miss Sarah Neita

Preliminary Matters

Proceeding in private
1. The Panel heard that matters relating to the Registrant’s health were to be discussed as part of this application. Ms Sampson submitted that it was appropriate that parts of the hearing be held in private where the Registrant’s health was to be discussed. The Panel accepted the Legal Assessor’s advice and it noted Rule 10(1)(a) of the Health and Care Professions Council (Conduct and Competence Committee) Procedure Rules 2003 (“Procedural Rules”) whereby matters pertaining to the health and private life of the Registrant, the complainant, any person giving evidence or of any Patient or Client should be heard in private. The Panel agreed the parts of the hearing, where reference was to be made to the Registrant’s health, should be heard in private.

Background

2. The Registrant was employed as an Occupational Therapist at the Lewisham Healthcare NHS Trust (‘the Trust’) from November 2009. The Registrant was primarily responsible for working with children with co-ordination difficulties in mainstream schools and with children with severe learning and movement disorders within Special Schools. The Registrant’s role was to meet patients and their families on both a one-to-one and group basis, assess patients, and set goals and targets for the development of their coordination.
3. There were some concerns within the Trust about the Registrant’s performance, which led to a Performance Management Plan being instituted, which was satisfactorily completed in May 2011. By then, in April 2011, the Registrant had been promoted to a Band 6 role, which required, on her part, more complex clinical reasoning and assessment. It also needed her to work at an increased pace.
4. In November 2010, Child 6 had been allocated to the Registrant and she carried out an Initial Assessment in November 2010. By October 2011, the Registrant had still not written a report on this child.
5. The Registrant demonstrated further poor record keeping by a failure to complete relevant paperwork following her assessment of three other children. There were other examples of poor record keeping and failure to complete records within required timescales in June 2010, March 2011, October 2011 and January 2012. In February 2017, the Substantive Hearing panel, found all these matters, to amount to examples of lack of competence.
6. Particular 2 alleged that the Registrant had not demonstrated satisfactorily clinical practice in that, in a particular case, she had failed to follow up on her recommendation for a weighted hand-splint. In the view of the Substantive Hearing panel, this allegation, which was found proved, was linked to the failures of record keeping and amounted to another example of lack of competence. That panel determined that there had been a pattern of failure on the Registrant’s part to take required action on cases in a timely manner. Although, in that panel’s stated view, health reasons had contributed to the level of the Registrant’s ability to meet the required standards, she was unable sufficiently or consistently to improve the standard of her work.
7.  In March 2012, the Registrant submitted her resignation to the Trust. She took with her, on leaving, a number of documents which contained confidential information about children who had been allocated to her and their families. These papers included supervision forms, caseload forms, reports and notes of action plans. The Substantive Hearing panel determined that there was no justification for removing these documents and that the decision of the Registrant to do so amounted to disrespect of the confidentiality of service users; as such, this amounted to misconduct.
8. The Substantive Hearing panel heard the case between the 20 - 28 February 2017 and found the particulars, outlined above, proved. The Substantive Hearing panel concluded that the Registrant was impaired on both the personal and public component and imposed a Conditions of Practice Order for a period of 2 years.
9. The Conditions of Practice Order directed the following:
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, Sarah Neita, must comply with the following conditions of practice:
1.  Within six months of the Operative Date you must:
(1)  satisfactorily complete a course on data protection/information governance/confidentiality;
(2)  forward a copy of your results or course certificate to the HCPC;
(3)  write a reflective piece demonstrating your understanding of the importance to service users of maintaining confidentiality.
2.  You must send a copy of your reflective piece on confidentiality to the HCPC at least four weeks before the date of the Review Hearing
3.  If you engage in professional work as an Occupational Therapist you must place yourself and remain under the supervision of a supervisor and supply details of your supervisor to the HCPC within fourteen days of commencing such work.
4.  If you engage in professional work as an Occupational Therapist you must:
(a)  work with your supervisor to formulate a Personal Development Plan designed to address the following areas of your practice:
(i)  Completing written assessments within the required timeframe;
(ii)  Completing clinical records within the required timeframe;
(iii)  Progressing cases by following up on recommendations for intervention.
(b)  Within three months of commencing work as an Occupational Therapist you must forward a copy of your Personal Development Plan to the HCPC.
(c)  You must meet with your supervisor on a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.
(d)  You must allow your supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.
5.  You must promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.
6.  You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.
7.  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
B.  any agency you are registered with or apply to be registered with (at the time of application); and
C.  any prospective employer (at the time of your application)
8.  You will be responsible for meeting any and all costs associated with complying with these conditions.

Early review hearing – 27 October 2017
10. The Registrant made an application for an early review, which was heard on 27 October 2017 as she had completed a Data Protection training course on 24 October 2017 and submitted a Reflective Learning piece that she had written for her course, dated October 2017.
11. At the time of the early review hearing, the Registrant was employed as a Functional Analyst, but was on long term sick leave. She argued that she was at risk of losing her job. She therefore wanted her case reviewed as she argued that the conditions were “harsh” and that it was inappropriate for her practice to be subjected to any restrictions at all. She argued that the Substantive Hearing in February 2017 related to events which had taken place between 2010 and 2012, and that no service user had ever complained about her conduct or competence. She added that she had learnt from her errors and had taken steps to ensure that she had addressed the issues. The early review hearing panel noted that since the Substantive Hearing, the Registrant had not applied for a post as an Occupational Therapist but had continued to be employed as a Functional Analyst.
12. The panel found that conditions 1 and 2 of the Order should no longer be applied because the Registrant had successfully completed the Data Protection Course and shown insight in relation to her misconduct.
13.  However, in relation to the other issues relating to lack of competence, the panel found that both statutory grounds applied, namely public protection and the public interest. The panel considered that the Registrant was remorseful and had developed some further insight, but that she had not fully remediated them and the panel considered that without evidence of remediation and full insight, there was a risk of repetition if restrictions were not placed upon her practice. The panel therefore extended the Conditions of Practice Order in relation to the other six conditions, adapting condition 4.

Previous review hearings - 21 February 2019 and 25 February 2020:
14. The Order was subsequently reviewed on the 21 February 2019 and 25 February 2020. The Registrant was present and represented herself at both of the review hearings and made representations to both of the previous reviewing panels.
15. The reviewing panel, on the 25 February 2020, determined that the Registrant’s fitness to practise remained impaired. It expressed its reasons in the following terms:
‘The Panel found that the Registrant was open and honest and that she has recently begun to take active steps to return to work. She has clearly experienced significant health issues and the Panel were impressed by her commitment, determination and developing insight.
The Panel have considered the HCPC Practice Note “Finding that Fitness to Practise is ‘Impaired’, the documentary evidence and the submissions from both parties. The Panel finds that, despite the Registrant’s efforts, her fitness to practise remains impaired. Both statutory grounds continue to apply, namely public protection and the public interest
16. The Panel determined that the Registrant's essential failings had not been remediated. In particular, there was no evidence before the Panel that she had remediated in relation to her report writing, note taking, completion and submission of records in a timely manner and follow-up work. In all the circumstances there was a risk of repetition. The Panel did not believe that the Registrant was capable of safe and effective unrestricted practice. Moreover public confidence in the profession of Occupational Therapist and in the HCPC as its regulator would be undermined by a finding that the Registrant’s fitness to practise was no longer impaired.’
17. Having determined that the Registrant’s fitness to practise remained impaired the previous panel imposed a further Conditions of Practice Order for a further period of 12 months.
Decision
Submissions
18. Ms Sampson, on behalf of the HCPC, outlined the background of the case and the previous reviews to the Panel. She submitted that the Registrant’s fitness to practise remains impaired, as there is no evidence to show that the deficiencies in the Registrant’s practice have been remedied. Ms Sampson accepted that the Registrant was unable to present the Panel with a Personal Development Plan as envisaged by the Conditions of Practice Order because the Registrant has not been able to obtain employment as an Occupational Therapist.
19. The Registrant gave oral evidence and expressed remorse and had reflected on matters. She told the Panel that part of the reason she had been unable to find employment as an Occupational Therapist is because Condition 1 of the Substantive Order was being interpreted by potential employers as requiring direct supervision. She asked for that condition to be amended to achieve better clarity in the event the Panel determines that her fitness to practise remained impaired. She submitted that it would be reasonable if the condition were to be re-worded to indicate that the supervision referred to was the normal level of supervision that would be expected of any Occupational Therapist in employment. Ms Sampson indicated that was the original intention of the condition imposed and it was never interpreted by the HCPC as referring to direct supervision.
The Registrant referred the Panel to the evidence of her numerous job applications and interviews she had attended. She told the Panel of her medical conditions and how they affected her and how she had to take extended sick leave in order to recover and cope.
Legal Advice
20. The Legal Assessor reminded the Panel that its purpose today was to conduct a comprehensive appraisal of the Registrant to determine if she is fit to return to unrestricted practice. Its role was not to conduct a rehearing of the allegations nor was it to go behind the previous findings. He advised that in carrying out this assessment, the Panel must exercise its own independent judgment.
21. The Legal Assessor advised that the Panel might find the questions formulated in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin) of some assistance, albeit slightly modified for these proceedings:
‘Does the evidence before the Panel today show that the Registrant’s fitness to practice remains impaired in the sense that she:
a) is liable in the future to act so as to put a service user at unwarranted risk of harm; and/or
b) is liable in the future to bring the Occupational Therapy profession into disrepute; and/or
c) is liable in the future to breach one of the fundamental tenets of the profession?’
22. The Legal Assessor advised the Panel that if it determined that the Registrant’s fitness to practise remained impaired then the Panel must go on to consider what sanction, if any, should be imposed. The Legal Assessor advised the Panel of its powers under Article 30 of the 2001 Order. He advised the Panel that it should bear in mind the principles of fairness and proportionality and have regard to the Indicative Sanctions Policy document issued by the HCPC. He reminded the Panel that any order that it makes under Article 30 should not be punitive in purpose, and that it should be the least restrictive order that would suffice to protect the public and/or is otherwise in the public interest.
Panel’s considerations and decision
23. The Panel accepted the advice of the Legal Assessor. The Panel first considered whether the Registrant’s fitness to practise is currently impaired. The Panel took into consideration all the documentation before it, the oral evidence of the Registrant and the submissions of both parties. In particular it noted the following:
a) The engagement of the Registrant with the process and her commitment to remaining in the profession;
b) The assessment by her current line manager in her voluntary role in relation to the transferrable skills of her current role;
24. The Panel were particularly impressed by the commitment of the Registrant to remain in the profession and her continued engagement with the process.
25. The Panel took into account that the Registrant has remediated her misconduct in relation to Particular 3 as indicated by the first review panel on 27 October 2017 when it determined that the Registrant had shown insight and that the conditions imposed in relation to her misconduct were no longer required and varied the order accordingly.
26. The Panel was satisfied that the Registrant recognised the shortcoming in her practice in relation to timeliness of her report writing and assessment. It was also satisfied that she has insight into those shortcomings and that there were no attitudinal issues. The issue remains as to whether she has demonstrated that she has remediated those shortcomings and is able to safely operate as an Occupational Therapist without restrictions.
27. The Panel took into account the employment that the Registrant had as a Functional Analyst and the overlap between the work that the Registrant did as an Functional Analyst and the work of an Occupational Therapist. The Panel also noted that the Registrant has been on long term sickness absence from this employment since 2016. The Panel also took into account the Registrant's medical conditions and considered whether the Registrant had demonstrated that she has taken sufficient steps or her health conditions were such that it was safe for her to practise without restrictions if her employer put in place reasonable adjustments in line with their legal obligations.
28. The Panel considered the evidence before it and determined that the only concern that remains relates to the Registrant's ability to maintain timeliness of her report writing and assessments under pressure, even where an employer has put in place reasonable adjustments for her health conditions. The Panel noted the Registrant’s submission that she had encountered difficulty obtaining employment as an Occupational Therapist due to the manner in which prospective employers had misinterpreted condition 1 as requiring 'direct supervision'.
29. The Panel took into account that the Registrant had been doing voluntary work that required her to create and complete reports and assessments. The Panel was satisfied that the Registrant had taken active steps to try and demonstrate that she has remediated the shortcomings in her practice. However, the Panel determined that these reports and assessments were not at the level of an Occupational Therapist. The Panel also noted the Registrant’s statement that these reports and assessments, at the highest, would be at the level of Band 2 or Band 3.
30. The Panel recognised that because the Registrant had encountered difficulties in obtaining employment as an Occupational Therapist, she has not been able to demonstrate that she is able to maintain timeliness of writing reports and assessments at the level of an Occupational Therapist.
31. The Panel determined that on the evidence before it the Registrant's fitness to practise remained impaired.
32. Having determined that the Registrant’s fitness to practise remained impaired by reason of her lack of competence, the Panel went on to consider what action to take today. The Panel took into account the HCPC’s Indicative Sanctions Policy document and considered its powers under Article 30(1).
33. The Panel first considered taking no further action and allowing the Order to lapse upon expiry. The Panel determined that this was not appropriate as the Registrant’s fitness to practise remains impaired today and taking no action would neither protect the public nor be in the public interest. 
34. The Panel went on to consider whether to impose a Caution Order upon the expiry of the current order. For the same reason as set out above, the Panel determined that the imposition of a Caution Order upon expiry of the current order is not the appropriate action to take today.
35. The Panel next considered the current Conditions of Practice Order and determined that it remained the appropriate and proportionate response that would protect the public and was also in the public interest. It determined that the current conditions, albeit slightly amended for clarity, imposed upon her practice remained workable and measurable conditions that would not only protect the public and was also in the public interest but also enables the Registrant to ultimately return to unrestricted safe practice. This is because:
a) The conditions only apply if the Registrant is carrying out employment as an Occupational Therapist;
b) The level of supervision that is envisaged is that which would be normal to the Occupational Therapist level at which the Registrant is to be employed; and
c) The supervisor does not have to be an Occupational Therapist so long as they are a healthcare professional registered with any of the healthcare regulators.
36. The Panel considered that a sanction of suspension or striking off would be disproportionate in these circumstances where the Registrant has not been able to demonstrate remediation through no fault of her own.
37. The Panel therefore determined to amend and extend the current Conditions of Practice Order for a further period of 12 months. It is hoped that the amendment and clarification of Condition 1, will enable the Registrant to obtain employment as an Occupational Therapist and demonstrate that she is no longer impaired.
38. The Conditions of Practice Order will be reviewed before it expires. A future reviewing Panel may be assisted by:
a) testimonials from current or recent employers or supervisors including (if relevant) to comment on the Registrant’s ability to consistently keep satisfactory and timely records. This does not necessarily have to be in the context of employment as an Occupational Therapist. The concerns relate to the Registrant's ability to produce reports and assessments in a timely manner under normal working pressures. Testimonials that address that point, particularly where they also deal with how technical those reports are and the time constraints would be particularly relevant;
b) evidence that the Registrant continues to keep up to date with the appropriate CPD requirements for the profession;

Order: The Registrar is directed to extend the Conditions of Practice Order against the registration of Miss Sarah Neita for a further period of 12 months on the expiry of the existing Order. The Registrar is directed to annotate the HCPC Register to show that for a period of 12 months, you must comply with the following conditions of practice:
1)  If you work as an Occupational Therapist, you must place yourself and remain under, the supervision of a supervisor who must be a healthcare professional registered with any of the healthcare regulators and supply details of your supervisor to the HCPC within fourteen days of commencing such work. For the avoidance of doubt, this condition envisages the level of supervision to be that which would be normal for the Occupational Therapist level at which the Registrant is employed.
2)  If you engage in professional work as an Occupational Therapist you must:
a)  Work with your supervisor to formulate a Personal Development Plan designed to address the following areas of your practice:
(i)  Completing written assessments within the required timeframe;
(ii)  Completing clinical records within the required timeframe;
(iii)  Progressing cases by following up on recommendations for intervention.
b)  Within three months of commencing work as an Occupational Therapist you must forward a copy of your Personal Development Plan to the HCPC.
c)  Following the submission of your Personal Development Plan in accordance with (b) above, you must then provide, every three months, an updated Progress Report on your Personal Development to the HCPC, to be endorsed by your supervisor.
3)  You must promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.
4)  You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.
5)  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
b)  any agency you are registered with or apply to be registered with (at the time of application); and
c)  any prospective employer (at the time of your application)
6)  You will be responsible for meeting any and all costs associated with complying with these conditions.

This order will be reviewed before its expiry.

Right of Appeal:
You may appeal to the appropriate court against the decision of the Panel and the order it has made against you.  The appropriate court is the High Court in England and Wales.
Under Articles 30(10) and 38 of the Health Professions Order 2001, an appeal must be made to the court not more than 28 days after the date when this notice is served on you. 

History of Hearings for Miss Sarah Neita