Umalini Kathirgamanathan

Preliminary Matters

Hearing in Private
1. The HCPC made an application that any reference to matters of a health nature should be discussed in private thereby preserving the Registrant’s right to a private life. In this regard the HCPC relied upon the terms of Rule 10(1)(a) of the HCPC Conduct and Competence Rules 20023 (as amended) which states that all hearings should be held in public ‘unless the Committee is satisfied that, in the interests of justice or for the protection of the private life of the registrant..’ the hearing should be held in private.

2. The Panel took the advice of the Legal Assessor who confirmed that this ability to hear matters in private was a discretion which can be adopted to hear the case in whole or in part in private.

3. After careful consideration, the Panel came to the conclusion that it would hear matters that relate to issues concerning the Registrant’s health in private and that those considerations will be confined to discrete parts of the hearing. In the event, this Panel was not required to go into private session as the only reference to historic health issues was contained within the documentation and there was no requirement today to refer to those historic matters.

Terms of the current Conditions of Practice Order
4. This Panel of the Conduct and Competence Committee has been convened today to consider whether the Substantive Conditions of Practice Order set out below has been complied with and fulfilled.

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.

Background to original Allegation and outcome of Application for Restoration5. The Registrant began working for Mid-Yorkshire Community Rehabilitation and Intermediate Care Service at Mid-Yorkshire Hospital NHS Foundation Trust in August 2009. The Registrant was employed as a rotational Occupational Therapist and worked with community rehabilitation patients who were medically stable providing generic rehabilitation for a wide range of conditions.

6. Concerns regarding the Registrant’s capability arose in the induction period which was initially extended. The Registrant was then placed on an informal capability process for a month but by October 2009 the Registrant had not met her objectives. In November 2009, the Registrant was moved to a bedded unit. However, by December 2009, whilst the Registrant had made improvements, she was still failing to perform at the level expected of a Band 5 Occupational Therapist.

7. Between January 2010 and May 2011, the Registrant was subject to a formal capability process. However, on 18 May 2011 it was determined that the Registrant had failed to meet her objectives and she was dismissed on the grounds of capability.

8. A hearing before the HCPC’s Conduct and Competence Committee (‘CCC’) took place between 3 and 5 September 2012 which considered a number of allegations arising from the Registrant’s employment at Mid-Yorkshire NHS Foundation Trust.

9. Not all of the allegations were upheld and the CCC did not find that the Registrant had falsified notes or acted dishonestly. However, the CCC found allegations proved which related to the following areas of practice:

• Failures to adequately manage a caseload
• Poor assessment skills
• Failures to communicate clearly and appropriately with staff members, patients and family members
• Failures in clinical competence; including failures to provide clinical reasons for actions, failures to consistently respond in a timely manner to situations, and failures in respect of prescribing and fitting equipment as well as failures to identify plans of intervention
• Failure to complete patient notes.

10. The CCC determined that the Registrant’s conduct amounted to lack of competence and that the Registrant’s fitness to practise was impaired. A 12-month Suspension Order was imposed by way of sanction.

11. The first review of the Suspension Order took place on 3 September 2013. The Registrant did not attend, and the Order was extended for a further 12 months. The second review took place in September 2014 and the Suspension Order was further extended for a period of 12 months. On 15 December 2014, the Registrant applied for voluntary removal from the Register which was granted.

12. On 1 March 2022 the Registrant applied for restoration to the Register. The Registrant also outlined that between 2011 and 2020 she had worked as a support worker for people with disabilities and that specifically between 2021 and 2022 she had worked within an Occupational Therapy (OT) team, undertaking a variety of interventions. The Registrant had also undertaken research and training and had reflected on her practice.

13. The CCC found that the Registrant had shown genuine remorse for her previous failures and that she had shown significant insight into what had caused those issues. However, the CCC was not persuaded at that time that the Registrant had fully remediated her failings and/or that she did not continue to pose a risk to the public despite the efforts that she had made. The CCC was however satisfied that these risks could be addressed through a Conditions of Practice Order. The Registrant was therefore restored to the Register with conditions.

HCPC submissions on compliance with the Order
14. On 27 November 2022, the Registrant informed the HCPC that she had secured work at the Leeds and York Partnerships Foundation Trust (‘the Trust’) and the details of her manager, to start in January 2023, in line with condition 1 of the Conditions of Practice Order. The Registrant also updated the HCPC with the details of her manager once she began. The correspondence between the Trust and the HCPC also clearly demonstrates that the Trust are aware of the Conditions of Practice Order.

15. In line with conditions 2 and 5 of the Conditions of Practice Order, the HCPC have been able to exchange information with the Registrant’s employer and the Trust has provided detailed reports to the HCPC on 1 April 2023; 13 July 2023; January 2024; and April 2024.

16. The Registrant joined the South Leeds Older People’s Community Mental Health Team. The first report from AF, her supervisor, dated 1 April 2023 indicated that the Registrant’s progress had been slow and that was impacting the Registrant’s self-esteem and confidence and that the approach of grading the Registrant into work had not had the success hoped for. It was noted that the Registrant was willing to learn and was professional as well as caring. The main areas of improvement that were required were noted as the Registrant’s verbal and written communication, clinical reasoning and time management.

17. The second report sent through in July 2023 noted that the Registrant’s progress was still slow but that may have been in part due to the graded approach that had initially been taken. This report noted that the Registrant was managing a caseload of 10 service users with supervision but that the Registrant was taking the lead on some assessments and reviewing intervention plans. The report noted that the Registrant’s time management was now excellent, and that the Registrant’s confidence was growing but that the Registrant required re-assurance around decision making. Overall, the report did state that the Registrant had improved significantly.

18. On 23 December 2023, the Trust informed the HCPC that the Registrant was being placed on the first step of the Trust’s performance framework at an informal level. The following report from January 2024 (dated January 2023 but sent in 2024) stated that the Registrant was struggling with her development and was struggling to act independently and needed assistance with assessment, intervention, planning and evaluation and that there were issues with her tailoring her communication. A detailed copy of the Registrant’s support plan was included. The report confirmed that the Registrant’s performance would be reviewed in March 2024.

19. The latest report from April 2024 has confirmed that the Registrant has been placed on a formal performance management plan. The report notes that there has been a small amount of development in the Registrant’s initial rapport building with patients but that the Registrant struggled with her clinical reasoning skills and required support with intervention planning and risk assessments. Feedback was also provided by two families. One noted that the Registrant failed to build rapport, failed to amend a plan when the techniques were not beneficial, and the second feedback raised concerns about the Registrant’s interactions with a service user who was expressing suicidal thoughts. It was noted that the Registrant did not always tailor her approach and that she had an inability to recognise verbal and non-verbal cues. Concerns were also raised around the Registrant’s record keeping.

20. The Registrant’s preceptorship has been extended in line with the performance management plan which is due to last for 12 weeks.

HCPC Submissions on continuing practice concerns
21. The HCPC submits that the Registrant continues to be impaired and that accordingly the Order should not be allowed to lapse upon its expiry, but that consideration should be given to an extension of the existing Order.

22. The detailed reports which have been submitted by the Trust contain information which suggest that there continues to be issues with the Registrant’s practice which are in a similar vein to those which were the subject of the original substantive hearing. In particular, concerns regarding the Registrant’s communications skills with patients and relatives appear still to be of concern as do matters regarding the Registrant’s clinical reasoning skills and record keeping.

23. Since starting her employment at the Trust in January 2023 there have been concerns noted regarding the Registrant’s practice. Despite being supported by the Trust to develop these skills, the Registrant has still not developed to the extent where she is at the standard required. This has necessitated a recent extension to the Registrant’s preceptorship as well as her placement on a formal performance improvement plan.

24. The recent issues which have been noted regarding the Registrant’s practice are widespread and relate to areas that are fundamental to effective practice, such as communication and clinical reasoning. Although the Registrant appears to have insight and has shown a willingness to learn and develop, it is submitted that this alone is insufficient in fully remediating the current risk posed by the Registrant.

25. It was submitted that the Registrant is liable to place patients at risk of harm in the event that she was allowed to practise without restriction. It is further submitted that an order is required in order to maintain public confidence and standards in the profession where there are current concerns noted regarding the Registrant’s practice. A well-informed member of the public would expect in these circumstances that some form of Order should remain in place.

26. It was further submitted that the documents produced by the Trust demonstrate that the Registrant has complied with her conditions and that the Trust is still willing to support the Registrant to try to develop so that she meets the standards required. From the reports and communications with the Trust it also appears that the Registrant is willing to engage with any development plans put in place and that she is committed to her chosen profession and to improving her practice.

27. To be proportionate, any Order which is put in place upon the expiry of the current Order needs to be the least restrictive measure in securing public protection and/or uphold the public interest. In circumstances where the current Conditions of Practice are workable and there is a further performance plan in place, the Panel may consider that an extension to the existing Order is proportionate, particularly as this will enable the formal performance improvement plan to take effect and be reviewed.
28. The HCPTS offered only one suggestion for amendment of the current conditions and that was to reflect the fact that the Registrant is now the subject of a performance review.

Registrant’s submissions
29. The Registrant told the Panel that there were difficulties in working part time for only three days per week. She had offered to come in on her days off to obtain more supervision and observation opportunities but those who were charged with her oversight were busy on other days with clinical appointments.

30. The Registrant recognised that her current working pattern of three days on Monday, Wednesday and Thursday, with the Multi-Disciplinary Team (MDT) meeting taking place on a Wednesday resulted in her using part of Tuesday to be prepared for the MDT meeting. She was intending to change her working pattern to Tuesday, Wednesday and Thursday.

31. The Registrant stated that she had not been made aware of the degree of concern relating to her record keeping and had previously received conflicting information on the time scale for completion of notes and would in future attempt to ensure that these were completed within the 24-hour deadline. She would seek further feedback on how her record keeping was deficient and how it may be improved.

32. The Registrant was aware of difficulties with her communication skills, and she has identified more strategies to help her to deal with this. She was aware that there was a need to gain more rapport with service users. She stated that it was difficult to do this whilst also being observed but she will strive to be more relaxed.

33. She stated that it was difficult to mentally work things out and to make clinical observational assessments whilst being observed herself, but again she hoped to be able to address this.

34. The Registrant stated that her employer was still supportive and had indicated they would welcome further guidance from the HCPC as to whether there were any more ways it could provide help for the Registrant.
Legal Assessor’s advice
35. Article 33(8) of the Health and Care Professions Order 2001 states that a Conditions of Practice Order made under paragraph (7) (Restoration to the Register) shall have effect as though it were a sanction imposed pursuant to Article 29 (Orders of the Conduct and Competence Committee) and that in regard to any review of that Substantive Order the provisions of Article 30 shall apply.

36. Article 30(1) of the Order provides that a Conditions of Practice Order or Suspension Order must be reviewed before it expires and that the reviewing Panel may:
• extend, or further extend the period for which the order has effect from the date of expiry of the order;
• make an order which could have been made when the order being reviewed was made from the expiry of the order.

37. Any Order made following an Article 30(1) review only takes effect from the date on which the Order under review expires, which is in this instance 13 May 2024. Article 30(5) states that a Conditions of Practice Order cannot be extended by more than three years.

38. The HCPTS Practice Note on Article 30 Reviews of Sanction Orders sets out that the relevant considerations for the Panel in respect of a review are whether the Registrant’s fitness to practise remains impaired and if so whether the existing Order (or any other order determined by this Panel) is required to uphold and maintain confidence in the profession.

39. The Legal Assessor highlighted that this review of a Substantive Conditions of Practice Order based upon competence issues (as set out in Article 22(1)(a)(ii)) would, by virtue of Article 29(6), not provide this Panel with the option of a strike off sanction because there has not been a continuous and uninterrupted period of two years that a Conditions of Practice Order has been in place. In this instance that would be 13 November 2024. The Panel therefore can make no order, reduce the current order to one of a Caution, extend or vary the current Order or impose a Suspension Order.

40. The Legal Assessor outlined the range of restrictions and their terms. She emphasised that the restriction chosen should be the minimum required to guard against any continuing risks to the public and will also allow the Registrant the opportunity to redress those continuing concerns.

Panel Decision
41. The Panel noted that it was undertaking an assessment of the Registrant’s fitness to practise as of today and was not here to revisit prior decisions nor to go behind any earlier findings. The Panel accepted the legal advice it had received and was aware of the range of its remit today.

42. The Panel noted the robust and detailed information it had received from the Registrant’s employers. That organisation had clearly given support to the Registrant, and this was reflected in the various ways in which the Registrant’s practice had improved. The terms of the Performance Improvement Plan were aimed at assisting the Registrant in a more structured manner. From what the Panel has heard today, the Registrant is responding positively to that initiative. All the evidence before this Panel supports the position that there are still areas of concern such that the Registrant’s fitness to practise may be considered to remain impaired. The Registrant herself acknowledges this.

43. The Panel therefore moved onto considering what is the appropriate and proportionate restriction to place upon the Registrant’s registration. In this the Panel not only took into account the Legal Assessor’s detailed guidance on this issue but also the terms of the HCPTS Sanctions Policy.

44. The Panel noted that the extent of the failings remained communication and record-keeping and, on the clinical side, the ability to make clinically supportable observational assessments. Those areas of concern it noted were exacerbated by the Registrant’s Practice being observed.

45. The Panel concluded that, given those continuing concerns, imposing a sanction which removed that degree of supervision and observation was not supportable. Therefore, taking no further action or imposing a Caution Order were not suitable options in this case.

46. The Panel considered that the concerns identified were still capable of remedy and that Conditions of Practice remained the most appropriate means of addressing those concerns. That being the case, the Panel considered carefully the terms of the existing Order to see if they may be varied to reflect the current situation and to better support the Registrant in achieving her ambition of returning to unrestricted practice.

47. One of those variations is for the Registrant to undertake further training. This further training is generic in nature and would allow the Registrant to improve her overall clinical skills should she decide to move outside of her current area of practice.

48. The Panel identified the following ways in which conditions could be varied and this resulted in numerated conditions 1, 3, 4, 6, 7 and 8 being varied or replaced and an additional condition imported to reflect further training which this Panel considered would be beneficial for the Registrant. Those changes are:

(a) Removal of the Order relating to restoration onto the Register, matters which had been completed.
(b) In the stem of the remaining order, to remove the reference to ‘further’ as the current order is now the only one.
(c) Condition 1 - Removal of the words ‘or are currently undertaking’ as they are no longer relevant. Addition at the end to ‘work which requires your registration’ reflecting the fact that this condition only refers to her obtaining work as an OT.
(d) Condition 3 – change to reflect that this order will only become effective on 13 May 2024, by inserting ‘, and, if you have not already done so,’.
(e) Condition 4 – addition of the words ‘and/or Performance Improvement Plan’ which reflects the fact that at present the Registrant is the subject of such a plan.
(f) Condition 6 – removal of this condition and replaced with one which better reflects the wording adopted within the HCPTS Conditions Bank.
(g) Condition 7 – replace ‘your’ with ‘these’; and replace ‘these conditions take effect’ with ‘the Operative Date’. Also, deletion of ‘or voluntary confirming that your registration is the subject to the conditions listed’ and replaced by ‘or unpaid work which requires your registration’.
(h) Condition 8 – insertion of ‘as an OT’ after ‘You must not work’. Insertion of ‘or’ after the word ‘agency’.
(i) Addition of a condition 11 which, in this Panel’s view is required to support the Registrant’s further development of her communication and record keeping skills. The Panel concluded that it did not require evidence of the successful conclusion of that training which would be reflected in improved performance.

49. The Panel considered that the set of conditions are appropriate and proportionate in all the circumstances of this case and will provide the public with the requisite level of service protection and are also in the wider public interest. There is a public interest in ensuring that a registrant who has shown commitment and determination is given the opportunity to continue with her professional development towards being a proficient and safe practitioner.

50. The Panel concluded that a period of twelve months was appropriate for these conditions to run before review. It is of course open to both parties to call for an earlier review under Article 30(2) of the Order. A period of twelve months will provide the Registrant with the opportunity to conclude her Performance Improvement Plan and to demonstrate a sufficient period of nine months in which to evidence continuing safe practice.

51. One final matter, which was raised in this hearing, relates to the Registrant’s observation that there had been a lack of response to her request that the information shown on the HCPC website be amended to reflect the findings made historically that factually no dishonesty issues had been found. The HCPC confirmed that the information currently shown on the website was inaccurate in that it does not reflect the final hearing panel’s decision. This Panel supports the making of appropriate amendments to that information which remains in the public domain.

ORDER: The Registrar is directed to vary the Conditions of Practice Order against the registration of Ms Umalini Kathirgamanathan for a further period of 12 months on the expiry of the existing Order. The conditions are:

1. You must notify the HCPC within 7 days of any professional appointment whether paid or unpaid, which requires your registration, and provide the contact details of your employer;

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 with the HCPC, and, if you have not already done so, 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 and/or Performance Improvement Plan;

5. You must allow your supervisor to 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 seven days of becoming aware of any:
• patient safety issues that you are involved in;
• investigation started against you; and
• disciplinary and/or competency proceedings.

7. You must provide a written copy of these conditions, within 7 days from the Operative Date to any organisation or person employing or contracting you to undertake Occupational Therapy work, whether paid or unpaid, which requires your registration;

8. You must not work as an Occupational Therapist for an agency or 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.

11. Within six months of the Operative Date you must complete further training in the following areas:
• Communication skills,
• Record-Keeping.

The Order imposed today will apply from 13 May 2024.

This Order will be reviewed again before its expiry on 13 May 2025.

History of Hearings for Umalini Kathirgamanathan