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Legal help: a call away

CSP members don't always realise they have access to free legal help when they experience serious problems. Matthew Limb reports

Community physio Ann Rager fought a lone battle for about 10 years trying to avert a crisis after she was wrongly advised to leave the NHS pension fund. Acting on suggestions from an independent financial advisor, she moved her pension into a private fund. When she tried later to get her pension re-established, she faced a huge struggle that involved the financial services authorities as her advisor went bust.

'I tried to deal with it myself for several years but didn't get very far with it at all. It was incredibly worrying,' she says. 'One of my colleagues suggested the CSP might be able to help. I was very doubtful because I didn't think they would deal with very specific cases like that.' Her doubts were unfounded as CSP solicitors took up the case, securing a good settlement.

Ann says she now wishes she had contacted the Society much earlier. 'It's very reassuring to know there's skilled help behind you. It made an enormous difference. In the end, my pension was re-established in full, so my outcome was fantastically good.'

Another physiotherapist, Valerie McKee, also had a narrow escape after first turning to local solicitors to take up her compensation claim following a workplace injury. Valerie suffered a fall outside her department: thrown off balance by a sunken paving slab, she stepped straight on to another broken slab and was thrown to the ground. As well as 'massive loss of dignity', she sustained a cut knee and a painful broken collarbone.

However, when the family solicitor, who suggested Valerie try for compensation, later left the firm, she found not much had happened to progress the case. It was then, fortuitously, she found a leaflet in her department giving information about CSP legal services. 'I suppose I had been aware of it but I'd forgotten,' says Valerie. She contacted the Society and was put in touch with Thompsons, the specialist firm of employment and personal injury solicitors that handles the CSP's legal affairs. The end result was the trust admitting liability, and the case was settled out of court, with Valerie receiving financial compensation.

The CSP believes there are many more members like Valerie and Ann who perhaps aren't aware what the Society can do for them and risk wasting time, money and energy seeking help elsewhere or ignore the possibility of any legal redress at all. The CSP's employment relations and union services function, responsible for representing and supporting members with problems or difficulties in the workplace, offers a comprehensive range of legal services.

These include work-related criminal law representation, conveyancing, and wills and probate matters, as well as help with personal injury and professional misconduct cases. In addition, the Society has set up a service offering members free phone advice from a specialist in copyright law.

Statistics suggest physiotherapists under-report workplace accidents and injuries. The CSP is concerned that this means physiotherapists who suffer significant damage are losing out on compensation, while workplace hazards are not addressed.

Jennie Walsh, head of media at Thompsons, says latest figures suggest under-reporting is a continuing trend: 'The CSP sent us just 35 cases for the whole of last year, four of which concerned stress. This is under 0.1 per cent of the CSP's membership. The case intake is also down year on year.'

Other health unions refer cases for around one per cent of members, which includes those involving family members and road traffic claims. 'This is what we would expect from the CSP: around 350 cases a year. We are not convinced CSP members' workplaces or their lives are that safe, so members are going uncompensated.' (Roughly four per cent of the UK population has an accident each year and two per cent of those make a legal claim.)

The Society urges members not to use high street solicitors because many smaller firms don't have specialist experience in personal injury litigation. Jennie says: 'Members should not be using claims management firms or trying to settle cases themselves, as all the evidence shows that doing so results in less compensation... The CSP makes no deductions from compensation whether or not the claim is successful. That is in contrast to claims management firms and many high street solicitors, who make deductions in spite of their claims to be no win, no fee.'

The CSP's legal assistance scheme is free to members injured at or away from work, and to family members who are injured away from work. ERUS' successes include securing one of the CSP's highest personal injury awards ever in an out-of-court settlement of £115,000.

CASES INCREASE

In contrast to the situation with personal injury claims, members are increasingly asking for help with cases of alleged professional misconduct or incompetence. Here physiotherapists are referred to the profession's regulatory body, the Health Professions Council. (In October last year the CSP gave up its prosecution role).

Thompsons' employment rights unit solicitor Maliha Rahman is responsible for handling most HPC cases. She says: 'I think a lot of it is due to the Shipman inquiry. That's had a significant impact on the numbers of referrals coming through. The regulatory bodies are conscious that they need to be seen to be protecting the public and to be doing something.'

Donna Payne, ERUS negotiating officer (legal & health and safety), says: 'What came out of the Shipman inquiry was the need for better accountability to patients. HPC referrals are increasing; we're getting around 14 HPC cases a year.' This compares with only a handful of cases before 2004.

Of the referrals received in 2006, 11 went to the HPC for full hearing. Five were related to competency and four were for misconduct, the latter including alleged cases of inappropriate behaviour or involving personal relationships. She notes there is no obvious trend in the type of cases now coming forward.

Maliha Rahman suggests some cases that might have been dealt with at the initial investigatory stage a few years ago are now going to a full conduct or competency hearing. 'So the HPC, as well as the other regulatory bodies, seem to be taking their role of protecting the public rather more seriously.' But she adds: 'There's also pressure on them from the Council for Healthcare Regulatory Excellence, which oversees all the health regulatory bodies, to make sure they're dealing with referrals appropriately.'

The HPC can impose sanctions ranging from periods of suspension and striking off the register to conditions of practice. The CHRE may appeal to the High Court against HPC decisions where it thinks a judgement too lenient.

Jennie Archer, a past chair of the Medico-legal Association of Chartered Physiotherapists, says it is crucial that CSP members facing HPC investigations have expert advice and representation at all stages. Otherwise, she sees a danger of physiotherapists being put at a disadvantage in the legal process.

Jennie notes the need to have the right advice from an appropriate CSP expert witness. 'We need a level playing field where the person against whom a case is taken has a good defence.'

This is precisely the support that the CSP's legal services offer. In addition, a new CSP guide to HPC investigations, available on the Society's website, addresses these issues. It outlines the HPC's complaints procedures and takes members through the process, from the moment they learn a complaint has been lodged against them, to the investigatory stages, panel hearings of the conduct and competency and health committees, and reviews. It also describes how the CSP supports members throughout the process.

Donna Payne says some members don't appreciate that, as health professionals, they will be held to account over performance and breaches of trust. She adds: 'We want to get the message across that members need to involve us as early as possible. They need to listen and follow through the instructions we give them. We do know what we're doing: we have a wealth of experience built up over numerous years.' FL

FURTHER INFO

A copy of the Society's Member guide to HPC investigations can be downloaded from the website at www.csp.org.uk

 

Professional misconduct: case studies

The common misconduct cases described below show the help that is on offer to members. They do not relate to specific cases, but are based on typical examples

CASE ONE: PERSONAL/PROFESSIONAL BOUNDARIES

Carol had been providing physiotherapy to Tom, who was recovering from injuries sustained in a serious car accident. Shortly after she finished treating him, they began a sexual relationship. However, Carol decideds to end this relationship after a couple of weeks.

Tom made a complaint to the HPC, informing the regulatory body of the relationship.

The HPC investigating panel notified Carol she had 28 days to provide a written statement. Carol contacted her CSP senior negotiating officer. They work together on her response and get excellent references from colleagues, who testify to Carol's reputation and abilities as a physiotherapist.

Nevertheless, the investigating panel referred the complaint on to its conduct and competence committee on the basis that there was a case to answer. Carol faces the charge that her fitness to practise as a registered health professional was impaired by reason of her misconduct in that she had an inappropriate relationship with patient T, blurring professional and personal boundaries, and putting her profession into disrepute.

In three months Carol will face a hearing in front of a three-member panel. Thompsons solicitors and her barrister will now work with Carol on her defence, preparing her to give evidence at her hearing and arranging for witnesses to testify to her character and competencies.

The HPC will instruct lawyers to prosecute the case, arguing that the period of time between ending the treatment and starting a relationship was too short and  that boundaries were blurred to the detriment of the patient, which was inappropriate and unprofessional. 

CASE TWO: COMPETENCE

John received a written warning for not keeping his patient records up to date. His workload at St Crisis trust had been extremely heavy over the past year and he got behind with his treatment notes. He often completed his notes the day after seeing the patient, usually in his own time. His employer reported him to the HPC, whose investigating committee found there was a case to answer and referred the case to the regulatory body's conduct and competence committee. 

The hearing took place five months' later, where, after John and two of his managers had been cross-examined, the panel concluded it was John's responsibility to ensure his records were completed in a timely fashion. Standard 10 of the HPC's standards states the registrant must keep and maintain accurate patient records.

The panel did not overlook the practicalities of keeping records when dealing with a heavy workload, but timely record-keeping is an essential part of patient care. Failure to complete the notes was not judged to be misconduct as there was no evidence that patients were endangered or that the notes were clinically incorrect. However, at that time John showed a lack of insight into the potential risks to continuity of treatment and this constituted lack of competence, the panel found.

The panel acknowledged John had since – on CSP advice - attended an accredited record-keeping and time-management course. At the hearing, he had also shown, through prepared questioning from his CSP-appointed barrister, greater understanding and awareness of the importance of record-keeping. In light of his own actions to address his shortcomings, the panel issued a caution rather than suspending him from practising.

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