Ms Umalini Kathirgamanathan

Preliminary Matters
 
Privacy application
 
At the outset of the hearing, Ms Welsh appearing on behalf of the HCPC, made an application to hold parts of the hearing in private. Ms Welsh drew the Panel’s attention to the matters relating to the Registrant’s health and private life, which she stated would be raised in evidence during the course of the hearing. She submitted that, notwithstanding the presumption that hearings should be conducted in public, conducting parts of the hearing in private would protect the Registrant’s right to a private life.

2.    Ms Kathirgamanathan raised no objection to the application.

3.    The Panel accepted the Legal Assessor’s advice.

4.    The Panel carefully considered the public interest grounds in the case being heard in public however, the Panel was satisfied that there was a need to protect the Registrant’s right to a private life and health and determined that the parts of the hearing pertaining to the Registrant’s health and private life should be conducted in private.

Background
 
5.    Ms Kathirgamanathan began work with the Mid-Yorkshire Community Rehabilitation/Intermediate Care (“MY Therapy Services”) at the Mid-Yorkshire Hospital NHS Trust in August 2009. She was employed as a rotational Band 5 Occupational Therapist. Ms Kathirgamanathan worked with Community Rehabilitation patients who were medically stable, providing generic rehabilitation for a wide range of conditions in a service led by non-medical staff.

6.    All new employees of MY Therapy Services undertake a structured six- week induction period. Ms Kathirgamanathan’s induction began on 01 August 2009. Catherine Thomas, a Band 6 Occupational Therapist was appointed as Ms Kathirgamanathan’s supervisor. During the induction period Ms Kathirgamanathan had weekly formal supervision sessions with Mrs Thomas who was also available for informal supervision as needed.

7.    Concerns about Ms Kathirgamanathan’s capability arose during the induction period and Mrs Thomas drew those concerns to the attention of the MY Therapy Services Service Lead, Stephanie Butterfield. Following discussions with Ms Kathirgamanathan it was decided that her induction period would be extended. It was agreed that Ms Kathirgamanathan would observe three assessments, jointly conduct three assessments and then conduct three assessments on her own.

8.    Between 10 September 2009 and 24 September 2009 Ms Kathirgamanathan conducted initial assessments of patients, which caused a number of staff members to question her ability to complete treatment goals for patients independently and to autonomously manage her caseload.

9.    After discussions with Mrs Thomas about the capability concerns that had been raised, Mrs Thomas, Mrs Butterfield and Ms Kathirgamanathan attended a supervision session on 28 September 2009. At this session Ms Kathirgamanathan was provided with an Action Plan, a copy of the Trust’s Capability Policy and she was notified that the informal stage of the Capability Procedure had been instigated.

10. The informal stage of the Capability Procedure lasted for one month. During this time Ms Kathirgamanathan observed senior staff conduct initial assessments of patients and was observed conducting initial assessments herself.

11. At a Capability Review Meeting on 29 October 2009 Ms Kathirgamanathan conceded that she had not achieved the objectives set for her in September. Subsequently the Trust’s formal Capability Procedure was implemented.

12. On 13 November 2009, at a formal Capability Review meeting where she was represented, it was decided that Ms Kathirgamanathan would be moved to a bedded unit known as the Bevan Unit which dealt with patients who needed rehabilitation after being in the acute setting before being discharged into the community. Ms Kathirgamanathan believed that the slower pace of this non-acute environment and the opportunity for a fresh start would enable her to demonstrate her ability to operate to the required standards. It was agreed that Claire Wainwright, a rotational Band 6 Occupational Therapist would be Ms Kathirgamanathan’s supervisor on the Bevan Unit and Ms Kathirgamanathan was re-set objectives originally provided to her in September 2009.

13. In December 2009, a formal Capability Review Hearing determined that despite having made some improvements Ms Kathirgamanathan was still failing to perform at the level expected of a Band 5 Occupational Therapist. Concerns centred around Ms Kathirgamanathan’s ability to work autonomously, her equipment choices for particular patients and her ability to communicate clearly and appropriately with patients. It was decided that there should be a formal hearing under the Capability Policy.

14. This meeting took place on 26 January 2010 and the outcome was that Ms Kathirgamanathan was given a First Capability Caution. She remained based at the Bevan Unit and continued to be supervised by Mrs Wainwright.

15. In February 2010, Ms Kathirgamanathan was given two months to meet objectives, which were linked to the core skills expected of a Band 5 Occupational Therapist.

16. In April 2010, a formal Capability Review Meeting reviewed Ms Kathirgamanathan’s case and referred it to a Panel Hearing under the Capability Policy on the basis that she had failed to make sufficient improvements in her performance and had not achieved any of the objectives previously set for her.

17. A second Capability Hearing took place on 14 May 2010 and Ms Kathirgamanathan was issued with a Final Caution.

18. Ms Kathirgamanathan was on sick leave from May 2010 to 18 October 2010. She returned to work under the supervision of Mrs Wainwright who had by now rotated from the Bevan Unit into a community role. Ms Kathirgamanathan elected to follow Mrs Wainwright working with community patients in order to ensure continuity of her supervision. Following a phased return to work Ms Kathirgamanathan returned to her full contractual hours after one month. New objectives were agreed to enable Ms Kathirgamanathan to reach the expected level of a Band 5 Occupational Therapist, on 14 December 2010.

19. Between 14 December and 12 April 2011 Ms Kathirgamanathan undertook a number of patient assessments whilst being observed by more senior staff.

20. A review meeting on 12 April 2011 concluded that Ms Kathirgamanathan had made little progress towards achieving her agreed objectives. Ms Kathirgamanathan was given a further month to demonstrate that she could meet the required standards. Ms Kathirgamanathan undertook further observed assessments during this additional period but was unable to demonstrate that she met the standards required of a Band 5 Occupational Therapist

21. At a Final Capability Hearing on 18 May 2011 it was determined that Ms Kathirgamanathan had failed to meet the objectives, which had been set for her, and she was dismissed on the grounds of capability.

Substantive Hearing – 03 – 05 September 2012

22. The substantive hearing panel convened between 03 and 05 September 2012. It determined that a number of facts were proved (1a, 1b, 1c, 1d, 1e (ii) and 1f) and that the matters set out in particulars 1.a to 1.d, 1.e.ii and 1f constituted a lack of competence.

23. The substantive hearing panel determined that Ms Kathirgamanathan’s fitness to practise was impaired and it imposed a Suspension Order for a period of 12 months.

First review hearing – 03 September 2013
 
24.  Ms Kathirgamanathan did not attend the first review hearing and the hearing proceeded in her absence. The review panel noted, in its determination, that Ms Kathirgamanathan had informed it that she had ‘not been in a position to do voluntary work or to study’.

25. The review panel concluded that the appropriate order was one of suspension and directed the Registrar to extend the Suspension Order by a further period of 12 months. 

Second review hearing - September 2014
 
26. Ms Kathirgamanathan did not attend the second review hearing and the hearing proceeded in her absence. Ms Kathirgamanathan did however, provide written representations for the reviewing panel to consider whereby she stated that she had been on maternity leave and wished for her name to be removed from the HCPC Register. She also stated ‘I do not intend to practice as an Occupational Therapist again’.

27. Noting that Ms Kathirgamanathan could not be removed from the Register as she had not been subject to a period of continued suspension of more than two years, the second reviewing panel further suspended Ms Kathirgamanathan for a period of one year on the grounds that a further period of suspension was required to protect the public and that it was otherwise in the public interest.

 Application for voluntary removal – 15 December 2014
 
28.  Ms Kathirgamanathan did not attend the hearing and the hearing proceeded in her absence. The panel on that date determined that it was appropriate to agree to Ms Kathirgamanathan’s request for Voluntary Removal. The effect of that panel’s decision was that Ms Kathirgamanathan was removed from the public register of practitioners registered with the HCPC.

Application for restoration to the HCPC Register – 01 March 2022
 
29. On 01 March 2022, Ms Kathirgamanathan completed an application for restoration to the HCPC register as an Occupational Therapist. Today’s hearing is to consider that application.

 Applicant’s evidence
 
30. Ms Kathirgamanathan elected to give evidence to the Panel.

31. Ms Kathirgamanathan drew the Panel’s attention to two letters drafted by her and sent to the HCPC and which were contained within the HCPC bundle (dated 01 March 2022 and 08 July 2022). She also drew the Panel’s attention to the eight references contained with the HCPC bundle.

32. Ms Kathirgamanathan stated that in 2011 she was dismissed from her employment but stated that between 2012 – 2020 she had worked as a support worker helping those with disabilities. She drew the Panel’s attention to her project work outlined within the HCPC bundle.

33. During the Covid-19 Pandemic in 2020, Ms Kathirgamanathan stated that she found a mentor who helped her to build her confidence and who suggested that she return to the OT profession. In 2021, she explored this option with the HCPC.

34. Between 2021 and 2022, Ms Kathirgamanathan stated that she was working within an OT team and had undertaken a number and variety of interventions and had worked independently with service users in their homes. She also highlighted to the Panel the supervised OT work that she had recently undertaken. Ms Kathirgamanathan also outlined the details of her recent self-directed reading and research and drew the Panel’s attention to the training certificates obtained and which were also contained with the HCPC bundle.

35. Ms Kathirgamanathan stated that she had reflected on her practice and drew the Panel’s attention to her recent hours worked and the fact that she had undertaken 70 days work, in excess of what was required of her. Ms Kathirgamanathan explained that she is also now able to articulate herself more clearly and that her confidence has grown during the last eleven years, since the Fitness to Practise proceedings had taken place.

36. Ms Kathirgamanathan explained to the Panel that she has not worked as an OT since 2011. She stated that her knowledge in respect of equipment would need to be updated, but she would ask for assistance from her supervisor in this regard. She also stated that knowledge regarding equipment was not required for her current role. In respect of a prospective Preceptorship, Ms Kathirgamanathan stated that the Trust which she is currently working for have said that they will work with her to make it as successful as possible for her and would support her needs.

37. In respect of the substantive hearing panel’s findings in relation to her communication, Ms Kathirgamanathan stated that she had not undertaken any specific training to improve her communication skills. She stated that she had just grown more confident ‘with age’ and ‘her interactions with others’. In response to Ms Welsh’s questions in respect of her communication improvements, Ms Kathirgamanathan drew the Panel’s attention to examples where she had worked with challenging service users and she stated that she was ‘in a much better place’ to be able to deal with service users and their families.

38. Ms Kathirgamanathan accepted that in respect of her caseload, in her recent role she had a limited caseload. However, she highlighted to the Panel that in respect of Preceptorship her caseload would be built up slowly and would be supervised. Ms Kathirgamanathan stated that she felt confident about returning to practice because it would be a ‘slow’ increase in cases and she would be co-working with others including a care coordinator.

39. Ms Kathirgamanathan stated that she accepted the final hearing panel’s findings and that whilst she did not accept that she poses a current risk, she did acknowledge that at the time (2011) the substantive hearing panel’s findings against her were wide-ranging and that the findings may impact the public’s perception of her as a practitioner. She stated that she now understood that communication was critical to be able to undertake effective assessments for service users and if she was unable to do this, the risk to service users may be that she failed to adequately address and identify appropriate interventions and/or that her interventions would not be as person centred as they ought to be as she would not have the required information.

40. Ms Kathirgamanathan stated that in respect of her colleagues, poor communication would decrease the confidence in her as a practitioner and would also undermine their confidence in her ability to manage a service user’s needs. She also explained that colleagues may also have concerns that risks were not being appropriately managed for service users.

41. Ms Kathirgamanathan also stated that she understood the public confidence in her as an OT practitioner would have been undermined as a result of her lack of competence and the wider failings identified. She stated that she has addressed the failings and is a lot more confident and a lot more experienced and the eight references provided by her colleagues spoke to this fact.

42. In response to Panel questions, Ms Kathirgamanathan stated that in respect of clinical competence she had undertaken functional assessments and gave examples to the Panel of the assessments undertaken. She also stated that she had undertaken individual research and self-directed learning in respect of the models utilised by OT practitioners and gave examples of the models to the Panel. However, she also accepted that she had not undertaken any formal qualifications or training in respect of models to be utilised by an OT.

Submissions:
HCPC

43. Ms Welsh submitted that the HCPC did not oppose the application for restoration but stated that it should be subject to a Conditions of Practice Order. Stating that a supervisor should be appointed prior to any review.

44. Ms Welsh also accepted, on the HCPC’s behalf, when questioned by the Chair of the Panel, that Ms Kathirgamanathan had met the general requirements for registration.

Applicant
 
45.  Ms Kathirgamanathan stated that she accepted that there were wide ranging competence issues in her practice in 2011 however, she also outlined that she has worked hard to rectify these. Ms Kathirgamanathan told the Panel that she had been unable to apply for formal training courses owing to the fitness to practise matters on her record. She also stated that a Conditions of Practice Order would be very similar to a Preceptorship and would allow her to work as an OT in the future and therefore, she would be happy to comply with any conditions imposed by the Panel.

 
 Decision
 
46. Throughout its deliberations, the Panel remained conscious that the burden of proving that the Applicant is a fit and proper person to be restored to the Register was on the Applicant and that the applicable standard of proof is the civil one, namely on the balance of probabilities.

47. The Panel had regard to the HCPTS practice note ‘Restoration to the Register’ (updated June 2022) and it accepted the advice of the Legal Assessor, which reminded the Panel of the following:

1.    Article 33(5) of the Health Professions Order states that the Panel must be satisfied that the applicant:

                    i.        meets the general requirements for registration; and is a fit and proper person to practise the OT profession, having regard to the particular circumstances that led to Ms Kathirgamanathan’s removal from the Register.

                   ii.        It is not sufficient for Ms Kathirgamanathan to merely establish that she meets the requisite standard of proficiency and the other general requirements for registration. Ms Kathirgamanathan must satisfy the Panel that she has developed the required insight, remorse and remediation and that she no longer poses any risk, as identified by the Panel, which decided to remove Ms Kathirgamanathan from the HCPC Register.

                 iii.        In determining the application the Panel should consider the following:

a)    the matters which led to the removal and the reasons given by the substantive hearing panel;

b)    whether Ms Kathirgamanathan accepts and has insight into those matters;

c)    whether Ms Kathirgamanathan has resolved the matters, has the willingness and ability to do so, or whether they are capable of being resolved by Ms Kathirgamanathan;

d)    what other remedial or rehabilitative steps Ms Kathirgamanathan has taken;

e)    the period of time since being removed;

f)     Ms Kathirgamanathan employment history since she was removed from the Register;

g)    what steps Ms Kathirgamanathan has taken to keep her professional knowledge and skills up-to-date;

h)    taking all of the aforementioned factors into account, whether Ms Kathirgamanathan would be able to practise safely as OT in the future; and

i)     whether, in the context of the concerns that led to the previous removal order, public confidence in the OT profession would be undermined if Ms Kathirgamanathan were restored to the register.

2.    Should the Panel decide to grant Ms Kathirgamanathan’s application for restoration, the Panel may do so unconditionally, or subject to Ms Kathirgamanathan:

·         meeting any applicable education and training requirements specified by the Council; or

·         complying with a conditions of practice order imposed by the Panel.

48. In considering Ms Kathirgamanathan application, the Panel paid due regard to all of the documents in the case, the oral evidence of Ms Kathirgamanathan and the submissions made by both parties.

49. The Panel noted the stance adopted by the HCPC that being that it did not oppose Ms Kathirgamanathan’s application for restoration and accepted that she had met the general requirements for registration. The Panel was also satisfied of the fact of general requirements for registration being met.

50. The Panel had regard to the numerous testimonials and certificates of training undertaken by Ms Kathirgamanathan.

51. There was no doubt, in the view of the Panel, that the matters found proved by the substantive hearing panel were wide-ranging and related to fundamental aspects of an OT’s role. In forming this view, the Panel noted that the substantive hearing panel found a lack of competence in respect of Ms Kathirgamanathan’s: record-keeping; communication with colleagues, service users and their families; ability to manage her workload and cases; ability to undertake assessments; and clinical reasoning for decisions.

52. The Panel also had regard to Ms Kathirgamanathan’s detailed oral evidence and the documentation contained within the HCPC bundle.

53. The Panel was satisfied that Ms Kathirgamanathan demonstrated genuine remorse for her failings and had provided an explanation and significant insight into why it was that she ended up in the situation she did whilst working for MY Therapy Services. However, whilst the Panel commend Ms Kathirgamanathan for the steps that she has taken thus far to remediate her lack of competence, the Panel was not persuaded that Ms Kathirgamanathan had fully remediated her failings or that she didn’t continue to pose a risk to the public. In forming this view, the Panel had regard to the fact that whilst Ms Kathirgamanathan had undertaken some training, in addition to her self-directed learning, the training courses attended by her did not address the areas of concern identified by the substantive hearing panel.

54. In the Panel’s view, whilst Ms Kathirgamanathan’s self-directed learning was to be commended, and the Panel had regard to the evidence provided of her ability to undertake assessments and provide reasons for her decisions, the Panel was unsatisfied that she had addressed, in particular, an ability to manage a full workload of cases. Whilst the Panel also had regard to the testimonials provided on Ms Kathirgamanathan’s behalf, it noted that she had only been working as a therapy assistant for approximately one year and on a part time basis. Additionally, Ms Kathirgamanathan also accepted that she had a limited caseload and that there remained areas of her wider practice, which were lacking; namely, in relation to the use of equipment.

55. Having regard to these matters, the Panel was not satisfied that Ms Kathirgamanathan has demonstrated sufficient remediation and reflection on the identified failings such that she would not pose an ongoing risk to the wider public should she be permitted to return to unrestricted practice as an OT with the HCPC. 
56. Notwithstanding the aforementioned however, the Panel was satisfied that the identified concerns could be addressed with a Conditions of Practice Order. The panel determined that conditions of practice would ensure that Ms Kathirgamanathan was appropriately supervised and monitored during her return to the profession. Further, the Panel was also satisfied that a Conditions of Practice Order was appropriate, workable and proportionate in this case and that Ms Kathirgamanathan would comply with it.

57. Having determined that a Conditions of Practice Order was appropriate, the Panel went on to consider the term of the Order. The Panel considered that the appropriate length of the Conditions of Practice Order was 18 months. In the Panel’s view, 18 months was appropriate to allow Ms Kathirgamanathan sufficient time to complete her Preceptorship, demonstrate her ability to work in an OT role with a full caseload and to demonstrate full remediation in respect of the substantive hearing panel’s findings. In deciding upon 18 months, the Panel also noted that should Ms Kathirgamanathan complete her Preceptorship prior to the 18 months and be able to demonstrate full remediation, she could also apply for an early review of the Order.

58. Consequently, the Panel decided to grant the application to restore Ms Kathirgamanathan to the OT part of the HCPC Register with conditions. Her return to practise will be subject to the Registrar being satisfied that she has successfully completed the requirements outlined in the Order below.

RESTORED WITH CONDITIONS

The Registrar is directed to restore the name of Ms Umalini Kathirgamanathan (the Applicant) to the Occupational Therapist Part of the Register, but restoration is only to take effect once the Applicant has:
 
(a)       provided the Registrar with the information and declarations required for admission to the Register; and
 
(b)       paid the prescribed restoration fee; and
 
(c)       satisfied the Registrar that, in relation to the Applicant, there is or       will be in force appropriate cover under an indemnity            arrangement; and
 
(d)       provided evidence which satisfies the Registrar that the Applicant has successfully completed a 60 day period of professional updating in accordance with the HCPC Standards for Return to Practice.
 
The Registrar is further directed to annotate the Register to show that, for a period of 18 months from the date that this Order takes effect (the Operative Date), the Applicant must comply with the following conditions of practice:
 
1.    You must notify the HCPC within 7 days of any professional appointment you accept or are currently undertaking and provide the contact details of your employer, whether paid or unpaid;

2.    You must allow the HCPC to exchange information with your employer and/or supervisor referred to in these conditions;

3.    You must place yourself and remain under the supervision of a workplace supervisor registered by the HCPC and supply details of your supervisor to the HCPC within 14 days of the Operative Date. You must attend upon that supervisor as required and follow their advice and recommendations;

4.    You must meet with your supervisor on a monthly basis to review your performance and your progress in your Preceptorship;

5.    Your supervisor must provide a report to the HCPC as to your progress every 3 months and at least 14 days prior to any review;

6.    You must inform the HCPC within 7 days of receiving notification of any formal disciplinary proceedings taken against you from the date these conditions take effect;

7.    You must provide a written copy of your conditions, within 7 days, from the date these conditions take effect, to any organisation or person employing or contracting you to undertake OT work, whether paid or voluntary confirming that your registration is subject to the conditions listed;

8.    You must not work for an agency, as a locum or undertake out-of hours work or on call duties without the prior written agreement of your workplace supervisor;

9.    You must confine your professional practice to working for one employer; and

10. You will be responsible for meeting any and all costs associated with complying with these conditions.
 

No notes available

History of Hearings for Ms Umalini Kathirgamanathan