Viktoria Zambori

Preliminary matters
Application to amend the Allegation
1. There was an initial application by the HCPC to amend the Allegation. This comprised in fact two separate sets of amendments. The first proposed amendments were set out in a letter dated 16 March 2021. The Registrant has therefore been on notice of these proposed changes for approximately 12 months.

2. In addition, at the outset of the hearing, the HCPC made an application to further amend the Allegation.

3. It was submitted that the amendments were minor and did not alter the substantive nature of the Allegation. The purpose of the amendments was to clarify the Allegation and to ensure that the allegations better fit the evidence.

4. In some regards, the proposed further amendment narrowed the Allegation which the Registrant is facing, for example in Particular 1(c), making it clear that the Allegation referred to only a single patient and adding date ranges to Particulars 2 and 3. The amendment to Particular 3, suggested in the alternative that the Registrant’s actions were discriminatory “and/or inappropriate.” There were also some minor changes to formatting of the numbers of the Allegation.

5. The Registrant did not object to either of the proposed amendments.

6. The Panel concluded that there was no prejudice to the Registrant in granting the amendments. The Allegation set out above is the amended Allegation.

Bundle
7. The Panel was provided with a substantive bundle of documents which ran to 312 pages. In addition, there was a bundle of documents provided by the Registrant which ran to 50 pages. The Registrant also provided a link to a newspaper article which reported increased incidents of alleged bullying at NHS Tayside.

8. The Panel has seen a signed witness statements (and heard oral evidence from) the following witnesses on behalf of the HCPC:
(a) GC, Physiotherapy/Occupational Therapy Service Manager.

(b) KR, Occupational Therapist Lead.

(c) NC, Occupational Therapist.

(d) CT, Physiotherapist in Stroke Care.

(e) SS, Physiotherapist in the Vascular Team.

9. At the conclusion of the HCPC case, the Registrant told the Panel that she did not intend to give oral evidence but would instead make oral submissions. However, subsequently, after the HCPC had made its (albeit brief) closing submissions on the facts stage, the Registrant changed her mind and indicated that she now wished to reopen her case and to give oral evidence.

10. The HCPC was neutral on whether the Panel should allow the Registrant to reopen her case and to give evidence. The Panel accepted the Legal Assessor’s advice that the Panel had the power to allow the Registrant to give evidence, despite the stage the proceedings had reached, pursuant to Rule 10(4) of the Health and Care Professions Council (Conduct & Competence Committee) (Procedure) Rules 2003. The Rules allow the Panel to regulate its own procedure. The Panel, when exercising its discretion, should have regard to the requirement to ensure a fair hearing and consider any prejudice to either the HCPC or the Registrant.

11. The Panel concluded that it was in the interests of justice, and in particular fairness to the Registrant, to allow the Registrant the opportunity to give oral evidence. The Registrant is unrepresented, and English is not her first language. The HCPC closing submissions were brief and largely based on Ms Johnson’s opening note. The Panel also had regard to the fact that the HCPC were neutral on the application and that the HCPC was afforded a further opportunity to make submissions, if so advised, at the conclusion of the Registrant’s evidence.

Background
12. The Registrant is a registered Physiotherapist, who is a Hungarian national. In the course of evidence it became clear that the Registrant had obtained her physiotherapy degree in 2013. She had come to the UK in 2014. She had not practised as a Physiotherapist either in Hungary or the UK.

13. In December 2019, she was employed by NHS Tayside at Royal Victoria Hospital as a Bank Allied Health Professional Support Worker in Physiotherapy and Occupational Therapy (Band 3) (hereafter Support Worker). She covered various wards across Royal Victoria Hospital and Ninewells hospital, mainly working with elderly and frail patients.

14. The Registrant had initially applied for a Band 5 Physiotherapist role but after being interviewed it was felt she was not near the required level of knowledge or experience for the role, and she was offered the Support Worker role. This was a generic role, which at NHS Tayside, meant working for both the Physiotherapy and Occupational Therapy teams. A job description for the role is contained in the HCPC bundle.

15. The Registrant’s management structure at NHS Tayside is set out below:
(a) The Physiotherapy/Occupational Therapy service manager for the Trust was GC.

(b) In December 2019, CT was the Physiotherapy Team Lead working from Royal Victoria Hospital. His was the Medicine for the Elderly and Stroke Rehabilitation team. He provided the Registrant’s physiotherapy supervision.

(c) The Registrant then transferred to the acute hospital, Ninewells, where she worked in medical services providing generic support work services to the Occupational Therapy and Physiotherapy Service.

(d) KR was the Occupational Therapy Team Lead and NC provided the Registrant with OT clinical supervision.

16. The HCPC recognised that the Registrant was working outside of the profession for which she is HCPC registered. However, it is the HCPC case that the concerns raised concentrate on skills and judgement that it can reasonably be expected the Registrant to have possessed given that she is a qualified Physiotherapist, working in a role below her level of qualification.

17. A number of employees raised concerns around the Registrant’s lack of skills and knowledge to perform the role and alleged unprofessional and inappropriate comments about patients. A referral was made to the HCPC on 7 February 2020.

18. The Registrant resigned on 28 January 2020. Her letter of resignation stated that the reason for her resignation was because, “I feel uncomfortable due to discrimination.” The Registrant had complained that KR had made discriminatory remarks about Hungary, which she described as “very cheap”. These comments were denied by KR.

19. The Registrant’s contemporaneous complaints are set out in more detail in the file note in the HCPC bundle dated 28 January 2020, as dictated by GC. It is clear, however, from the file note, that GC also raised a number of concerns about the Registrant’s competence and had told her she would contact the HCPC to raise her concerns, prior to her resignation.

20. The Panel has heard and accepted the Legal Assessor’s advice and exercised the principle of proportionality at all times. In approaching the task of deciding the facts, the Panel has kept at the forefront of its deliberations, the importance of requiring the HCPC to prove matters against the Registrant. The standard of proof to which the HCPC is required to prove matters is the civil standard – on the balance of probabilities.

21. The Panel was very conscious that when a witness has not given oral evidence, this is hearsay evidence. When considering hearsay evidence, the Panel has paid due regard to the weight which it can attach to it, bearing in mind that it has not been possible for that evidence to be challenged or probed. It has sought where possible to corroborate such evidence with direct evidence pertaining to the Allegation.

22. At the outset of the hearing the Registrant denied each of the Particulars (with the exception of Particular 2(b) which she admitted). She alleged that the allegations made against her false, and the HCPC’s witness’s evidence was “revenge” as she had instigated Employment Tribunal proceedings against her former employer and two of the witnesses GC and KR. The Registrant was subsequently paid a sum of money in compensation, via an ACAS Settlement Agreement. The Panel heard no evidence as to the circumstances surrounding the settlement of the Employment Tribunal proceedings and was hence unable to draw any inference which was relevant to the facts alleged by the HCPC.

23. However, this line of argument, alleging an ulterior motive on the part of the HCPC witnesses, although raised briefly in cross-examination, was not pursued by the Registrant in her evidence, during which she made a number of relevant admissions.

Decision on Facts
Particular 1(a) – Found Proved
24. The allegation is that as a registered Physiotherapist, between 2 December 2019 and 28 January 2020, the Registrant was unable to correctly assess whether patients were safe to be seen.

25. The evidence from KR, as set out in her witness statement (paragraphs 8 and 10-15) is set out below:
8. I started to become concerned that she was spending time reading over this material as she needed to increase her knowledge as there was a lack of knowledge on certain basic things. For example, when Viktoria Zambori was asked to establish if patients were fit to be seen, she was unable to do this. Thus identifying patients she thought safe to see and if she proceeded to do so, patient safety would be at risk. One scenario I expected Viktoria Zambori to know was when she deemed a patient fit and appropriate to be seen yet the patient was waiting for an x-ray to rule out a hip fracture. This concern is detailed below. This is something I expect someone with a physiotherapy degree to know…
Assessing if patients are safe to seen

10. Viktoria Zambori was supervised by [NC]. I am [NC]'s Line Manager and the main concerns detailed below have been provided to me by [NC] except where I state otherwise.

11. Typically an OT assesses patients and sets out a care plan or rehabilitation plan for a Support Worker to carry out. However, Support Workers are also expected to screen patients and assess if they are safe to be seen and receive OT intervention. This screening by a Support Worker occurs once the OT has given them a list of patient names to see that day.

12. [NC] did a lot of work with Viktoria Zambori about understanding when a patient is safe to be seen and explained the process of how to carry out the assessment. She gave Viktoria Zambori a list of patient names and Viktoria Zambori was asked to screen them and identify if they were safe to be seen. Some issues arose when Viktoria Zambori identified a number of patients as safe to be seen when this was not appropriate.

13. It was a concern to me that Viktoria Zambori had identified patients that were not fit to be seen. She is a qualified physiotherapist and it was not appropriate for the patients to have OT intervention. One patient was waiting for an x-ray to rule out a pelvic fracture. It would not be safe for this patient to receive OT intervention of standing up or moving the patient about. This is something a Support Worker would be expected to be able to identify, let alone a qualified physiotherapist

14. The second patient was hyperactive, delirious and agitated. When a patient is in that state it is clear that they are not safe or appropriate to be seen and the OT or Support Worker should take a step back and risk assess as to whether the patient is fit to receive OT intervention.

15. Both [NC] and [JG] (Band 6 Occupational Therapist) came to me for advice about the concerns they had about Viktoria Zambori screening patients by herself. I did not work with Viktoria Zambori directly. As the Team Lead, members of staff report to me if they have any concerns or issues. I asked them to address concerns with Viktoria Zambori and see if there was any additional support they could provide.

26. The evidence from NC, in her witness statement is (paragraphs 11, 15-20):
11. I had a number of concerns during the supervision session. I was concerned that Viktoria Zambori lacked insight as to the level she was working at and what she was doing. She was employed as a Band 3 Support Worker but I was aware she was registered with the HCPC as a physiotherapist. I asked her how she was getting on and if there was anything she could identify to improve upon and whether she felt comfortable seeing patients. She said she was happy to see patients and she did not have any areas to develop. This was surprising as this was her first week working within an acute hospital and she had already demonstrated signs that she was not able to correctly assess if a patient was safe to be seen, and her views about working with some patients were slightly concerning. While I was aware Viktoria Zambori is registered with the HCPC as a Physiotherapist my concerns were that she was not able to carry out her role as a Band 3 Support Worker. I set out these concerns in more detail below…
Assessing if patients are safe to be seen
15. Viktoria Zambori was employed as a Support Worker but she reported to me that she was a registered physiotherapist. In the Support Worker role there was not the expectation for her to demonstrate understanding of medical terminology or interpret any of this. Throughout her time working with me we worked closely and I had to provide a significant level of supervision on the wards to support her working within the Support Worker role. When arriving on the ward in the morning I identified patients that were suitable for Viktoria Zambori to work with and review their medical notes to ensure that they were fit to be seen and there had not been any change in their condition from the previous day. Working within an acute hospital the medical condition of patients can change suddenly, therefore immediately prior to reviewing any patients their notes must be reviewed to ensure they are safe to be seen. In the Support Worker role there is not the expectation to understand the content of the documentation. However, there is an expectation to identify that there has been an additional medical entry from first thing in the morning or a change in the nursing observations scored on a National Early Warning Score (NEWS) chart. The NEWS is based on a simple aggregate scoring system in which a score is allocated to physiological measurements, already recorded in routine practice, when patients present to, or are being monitored in hospital.

16. Prior to seeing patients I asked Viktoria Zambori to check the NEWS chart, check the medical notes to see if there are any additional entries and review the OT notes to refresh her memory of the rehabilitation plan and the goals for that patient. If the NEWS score was above 0 or if there had been any additional medical input with the patient she was to report back to a senior member of staff so that they could confirm the patient was fit to be seen. The reasoning behind this for example, if the patient had a fall on the ward then they might no longer be suitable for OT intervention due to potential injury sustained.
17. Viktoria Zambori was very keen to increase her level of autonomously working therefore whilst under supervision I encouraged Viktoria Zambori to check patient notes to determine if they were fit to be seen. There were instances she checked and said the patient was or was not fit to see and that was correct. However, she was not consistent and there was one patient that had had a fall and was experiencing hip pain. The notes stated the patient needed an x-ray to rule out a fractured pelvis. I asked Viktoria Zambori if the patient was fit for OT intervention. She said we can see the patient and there was no problem. This was concerning as the patient was not safe to be seen if they were waiting for an x-ray to rule out a fracture. It would not be safe to get the patient up and complete OT rehabilitation when they could potentially have a fractured pelvis.

18. Another patient had fallen and had hit their head. The notes stated the patient required a scan to make sure there was no internal bleeding or injury. It was not appropriate for OT input as medical staff needed to rule out a head injury as there were new neurological symptoms. I asked Viktoria Zambori if the patient was safe to be seen. She said yes and was confident that she could see the patient.

19. Both of these incidents were concerning as she could potentially put the patient in risk of harm. For the patient waiting for an x-ray to rule out a fractured pelvis asking that patient to stand up or move could displace the fracture and cause pain to the patient. For the patient that had a fall and required a scan to rule out a head injury there was a risk of the patient having a further fall if there was intracranial damage as this could impact their ability to follow instructions or affect their balance.

20. Assessing if a patient is safe to be seen is there to protect patients and staff. We have a number of documents on the wards; there is a traffic light system to identify if a patient is safe to be seen. I simplified this chart for Viktoria Zambori so she could easily identify if a patient was safe to be seen. Along with using clinical reasoning the chart identifies a patient in the red category as not being safe to be seen and the clinician should consider if it is absolutely fundamental to see the patient. If the patient falls in the amber category there is a risk seeing the patient if they are waiting for blood results or have a concern that may affect balance and energy tolerance then the clinician should consider the risks of seeing the patient. If the patient falls in the green category they are safe to be seen….

27. The Registrant’s supervision record from 24 January 2020, with NC is signed by both women. This supervision took place at the end of the Registrant’s first week at Ninewells Hospital:
(a) There is a note in the personal development section that Ms Zambori should “be able to screen a new pt’s notes independently and determine if they are fit for OT” by 31/1.

(b) At page D31 in the same supervision record NC notes that:
“B3 [Ms Zambori] reports that she wishes some indepenecy [sic] – B6 [NC], discussed not possible at moment due to B3 requiring support ensuring pts re fit and appropriate to see, B3 understands this.”

28. In oral evidence NC confirmed that she would have expected the Registrant, as a qualified Physiotherapist, (despite being employed as a Support Worker) to identify that certain patients were not fit to be seen, such as the individual with a hip fracture awaiting an X-ray, or the patient waiting for a CT scan.

29. The Panel has also seen a document written by KR, after the Registrant’s resignation, at the behest of GC. In that document, KR highlights concerns that had been escalated to her by OT team members around Ms Zambori’s assessments including, “a hyperactive delirious patient, a patient waiting for an xray to rule out a pelvic fracture and a patient who’d had a fall on the ward and was waiting for CTB to rule out a subdural haemorrhage”

30. In oral evidence, KR stated that the patient referred to in the paragraph above had had a CT scan of the brain. There was a safety risk to the patient as they had had a bleed on the brain and nothing should be done which might extend the bleed, for example, following a fall. KR’s evidence was that the Registrant should have consulted a more senior member of staff before assessing if this patient was well enough to be seen.

31. The Registrant denied this allegation. She maintained that she had no recollection of the patient with the hip fracture and disputed the account given relating to the delirious/agitated patient. Her evidence was that she would have been able to persuade the patient to calm down and undertake the exercises.

32. However, in cross-examination, the Registrant conceded that given she had not worked in the “physiotherapy realm” since 2013 there were many things she had “forgotten.” When asked directly whether she was someone, in light of this significant time gap, who could not correctly and consistently assess if a patient was safe to be seen, she replied “absolutely”.

33. The Panel found this Particular proved. The Panel accepted the witness evidence from the HCPC, and the documentation set out above. It also had regard to the Registrant’s admissions during the course of cross-examination. The Registrant’s initial position had been that she was confident she could see and assess patients. However, it is clear that she was unable consistently to do so, largely due to her inexperience and the significant period of time since undertaking her physiotherapy qualification.

Particular 1(b) – Found Proved
34. The allegation is that as a registered Physiotherapist, between 2 December 2019 and 28 January 2020, the Registrant was unable to practice autonomously.

35. The evidence from NC is set out below (paragraphs 21-25):
Practice autonomously
21. One morning after ascertaining what patients were fit to be seen I identified a patient for Viktoria Zambori to see. My pager went off and I was required to go to the ward next door. I asked Viktoria Zambori if she was happy to see patients autonomously. I gave her verbal instructions for one patient. I asked her to review the patient's ability to get on and off a chair, in and out of a bed and a simple balance activity. Viktoria Zambori said she was happy to review the patient. I was away for around 10 minutes or so and when I returned I could not see Viktoria Zambori or the patient. I found them in one of the wash rooms. Viktoria Zambori had asked the patient to undress and wash and re-dress. These were not the instructions I left and the range of skills required for the patient to carry out these tasks is very different to getting in and out of a chair/ bed. There is a much higher risk of falls in dressing and un-dressing the lower half of the body. I asked Viktoria Zambori what she was doing. She said she was practicing. I said this was not the task I left her to complete and that the patient had a care package in place that stated she did not have the ability to wash and dress herself independently therefore this was putting the patient at risk.

22. I explained that it was not appropriate for her to do. Viktoria Zambori became highly defensive when I questioned her about washing and un-dressing the patient. We were still on the ward so I suggested we end our conversation and find a different time and place to discuss this in further detail. We did not have the chance to discuss the matter as she left NHS Tayside shortly afterwards.

23. Before I left the ward to respond to my pager I explained the instructions multiple times and she confirmed she had understood and knew what she had to do. I felt comfortable leaving her with the patient for 5 or 10 minutes while I attend to the ward next door, as she said she understood.
24. During that morning I decided to take a step back and see how Viktoria Zambori interacted and managed the patients on her own. I was on the ward keeping a discreet eye on her and supervising her from a distance. She went from patient to patient reviewing their notes. One patient had disappeared and we found her walking herself back from the toilet. The patient started undressing herself and appeared very confused and delirious. The nursing staff intervened and helped settle the patient in her bed.

25. Viktoria Zambori said that the nurses are helping the patient and that the patient was still safe for her to see once they had finished. I explained how it would not be appropriate to see this patient now as she was very confused and delirious. I did not have confidence leaving Viktoria Zambori to work independently. She did not demonstrate the appropriate skills or understanding of when a patient is safe to be seen. I did not feel comfortable to leave her unsupervised to carry out her Band 3 Support Worker role of attending on patients on the ward.

36. This incident is also corroborated by the documents in the HCPC bundle. In her internal witness statement, NC states:
Inability to follow my instructions regarding treatment session completed without direct supervision on ward.
• A patient was identified for VZ to complete a review of patients transfer ability. I was called away to adjoining ward to a priority that required dealt with urgently. Prior to leaving the ward, we screened the patient's notes together to ensure they were no changes to medical status and they remained appropriate to see. I gave instruction to VZ to review chair, bed and toilet transfers. I was off the ward for approximately 20 minutes and on my return found that VZ had the patient in a washroom and was completing full body washing and dressing. VZ stepped out of the washroom and I challenged what she was doing. VZ reported she was practicing washing patient. I highlighted that this was not what was instructed to complete with patient however VZ disagreed and felt it was appropriate to complete. At this point I stated to VZ that we would continue the conversation later as the patient was mid way through completing the task. Together we completed the task and NS escorted patient back to bed space. Further conversation was had between VZ and myself - I discussed that this was not the instruction left to complete with the patient and that it was not indicated to complete with patient. VZ disagreed and believed that this was what I wished her to complete as she was practicing daily task and was not happy with my explanation as to why it was not appropriate for her to have completed it. I stated that it could have put herself and the patient at risk. VZ continued to disagree with me, however due to being on the ward I asked for the conversation to end and if VZ wanted to further discuss this· could happen in a more appropriate area in the department. This offer was not taken up.

37. In oral evidence, NC confirmed that the patient required carers for activities such as washing and dressing and using a toilet. The patient was placed at a higher risk of injury by undertaking these tasks on her own, which were not her treatment goals. There was, for example, a higher risk of falling, as the patient would normally use a Zimmer frame and not stand independently. NC was also concerned about the Registrant’s ability to follow instructions.

38. NC also confirmed her account in her witness statement, as set out above, regarding the confused and delirious patient, found walking back from the toilet. The Registrant had worked with the patient, who had a mild cognitive impairment, the day before. There was a drastic change from the previous day in her presentation and she would have expected the Registrant as both a Support Worker and Physiotherapist to have identified that it was not in their interests to provide treatment at that time, as she was visibly distressed, confused, disorientated and was unable to follow nurses’ instructions.

39. The Registrant had no recollection of the incident with the patient who was confused/delirious. She maintained the first time she was aware of this incident was when she read it in NC’s witness statement.

40. The Panel has also seen the letter written by CT, dated 29 January 2020, in which he details his concerns about the Registrant’s lack of knowledge or skills:
1. Knowledge and Skills
a. Did not display a basic level of Physiotherapy knowledge and skills that would be expected of a qualified Physiotherapist. For example Viktoria wasn’t aware of differing types of walking aid, how to carry out basic mobility practice or basic exercises. There was full induction and training provided in these aspects to a level where no previous knowledge was presumed.

b. Viktoria displayed no previous understanding of common conditions that I may have expected her to have encountered considering her previous experience. Viktoria reported to have worked in Rheumatology and Orthopaedics but had no basic understanding of Hip fracture.

c. Further to this Viktoria was unable to reach the competence level of a Technical Instructor after 8 weeks despite having studied a Physiotherapy degree. There was a high level of support provided by myself and the wider team.

d. Felt unable to assist patients in the toilet as it made her feel ‘nauseated’. Discussed this was essential to the role.

41. In oral evidence, CT stated that he would have expected a Physiotherapist to have seen some of the walking aids they used, for example, a quad stick and how it could be used or how a patient could be assisted when mobilising. The Registrant did not appear to know which walking aids were appropriate for weight bearing and how to size up frames/stick. He would have expected the Registrant to demonstrate and understanding even as a newly qualified Physiotherapist, but she appeared to have no base line knowledge around walking aids. He stated he was surprised when in the gym, he was asked questions by the Registrant, about what a particular walking aid was used for.

42. CT, in oral evidence also referred to the incidents in paragraphs19 -21 of his witness statement:
19.There were also some concerns around her orthopaedic experience. To the best of my recollection she advised me that she had worked in a 'Rheumatology' hospital before and had significant experience of orthopaedic physiotherapy. On one occasion, despite discussing the patient before with Viktoria Zambori, when she went to see the patient she massaged the patients shoulder. This is not a treatment that was discussed with her as part of the induction and it is not treatment we would advise as it is not appropriate for the patient's stage of rehabilitation. Viktoria Zambori was made aware of the Neck of Humerus fracture Physiotherapy protocol prior to reviewing the patient. Massage would be an inappropriate treatment and Viktoria Zambori lacked the basic knowledge to identify that this would not be appropriate for an elderly patient with a very recently fractured shoulder.

20. Another example of Viktoria Zambori not displaying basic core knowledge was when she explained to a patient that they would definitely have a leg length discrepancy after a hip operation. Viktoria Zambori was describing to the patient incorrect information about the operation they had received and did not appear to have the knowledge of the different types of Hip Operations. She believed all hip operations were Total Hip Replacements which was not the type of operation the patient had.

21. There were also a number of issues around her willingness to help people with personal care. For example she said that she felt 'nauseated' about assisting patients in the toilet or with personal care needs. I recall an incident in the gym where one patient was sick in a sick bowl and Viktoria Zambori said she did not feel she could treat the patient as she could not deal with the sick.

43. CT, however, did confirm that the Registrant’s attitude had changed as she gained more experience in the role. His impression was that she had not worked in a hospital before. He commented that the Registrant was “not interested” in providing personal care to patients, such as assisting with toileting. She was “embarrassed and disgusted” at the idea of providing this sort of personal care.

44. CT’s evidence was that his main concern was the Registrant “understanding of her own limitations”. If the Registrant were to work as a Physiotherapist, he would have had concerns about whether she would be safe to do so. This was based on a “picture” of issues, as opposed to a single incident. The Registrant was progressing in some areas, as a novice Support Worker, but not what was expected as a qualified Physiotherapist.

45. When asked by the Panel, CT confirmed that he was a Clinical Educator and that had the Registrant been a physiotherapy student on a placement she would have failed the clinical placement.

46. In addition, the Panel has seen the document entitled: “Summary of Viktoria’s time in OT in the HCPC bundle, prepared by KR. This records that she advised her team that until they were confident that the Registrant had knowledge and safety awareness required, all patients for review by her would need to first be screened by a qualified member of the team.

47. The Registrant denied this allegation. She maintained that she had worked independently in her role as a Support Worker. However, when she was challenged as to the distinction between working independently and working autonomously, she conceded that she had had been out of the profession for a period of 6 years, when she began the role and admitted that, she “did not make decisions and was instructed as to what to do” and she was “sorry not know everything immediately.”

48. In cross-examination, she candidly accepted that she was not able to practice autonomously, given the period of time she had been away from physiotherapy.

49. The Panel find this Particular proved, based on the HCPC witness evidence set out above, the documentary evidence available and the admissions by the Registrant during the course of her evidence.

Allegation 1(c) – Found Not Proved
50. The allegation is that as a registered Physiotherapist, the Registrant’s fitness to practice is impaired in that between 2 December 2019 and 28 January 2020, she did not demonstrate the required level of competency to perform the job, in that she did not support a patients’ upper limbs or distinguish tonal changes.

51. The HCPC did not call any direct evidence as to this incident which was witnessed by other Support Workers. Instead, it relied upon the evidence from NC who had been told about the incident.

52. NC’s evidence in her witness statement is (paragraph 29):
Another patient had high muscle tone in their upper arm. Viktoria Zambori was asked if she wanted to hold the upper limb and see how this was impacting the movement in the arm by the support worker. As a registered physiotherapist it was thought she would be interested in how a neurological condition can impact a muscle function. The feedback I received from the Support Workers she was shadowing was that she held the arm it was like she was holding a foreign object and she did not know how to hold or support the arm. It was alarming that she was so confident to work with stroke patients but she did not appear to have any knowledge of stroke patients.

53. This incident is also recorded in the documents in the HCPC bundle. NC’s internal statement says:
Also when working with the patient with upper limb deficits VZ did not know how to correctly support the patient's upper limb or distinguish tonal changes which they felt was odd considering she was a qualified physiotherapist.

54. In oral evidence, NC confirmed that a Support Worker had drawn it to NC’s attention either the same day, or the following day. NC could not recall whether she had raised this incident with the Registrant.

55. The Registrant denied this allegation. She maintained in her evidence in chief that although she had forgotten things, how to support an upper limb was not one of them. In cross-examination, however, when challenged on whether her case was that the support workers who reported the incident were wrong, she said: “I cannot recall perfectly – I can believe it if I did something wrong.”

56. The Panel found this Particular not proved. The Panel were conscious of the lack of direct evidence to support the allegation. In addition, the allegation was vague. There was no evidence as to how the Registrant had held the patient’s arm, or how the Registrant should in fact have held the arm. In addition, there was no detailed evidence as to tonal changes which it is alleged the Registrant should have identified.

Particular 2(a) – Found Proved
57. The allegation is that on two separate occasions the Registrant did not follow the care plan and/or instructions as required. The first occasion was that she carried out a full body wash and dressing on a patient without being instructed to do so. This incident is referred to by NC in her witness statement, under the section dealing with whether the Registrant could practice autonomously (Particular 1(b)) and is set out above.

58. KR’s witness statement also addresses this issue:
16. [NC] informed me about one incident where she was called to another ward and she had given Viktoria Zambori a list of patients to see and instructions to see the patients. When [NC] returned she found Viktoria Zambori and a patient in the toilet area doing a self-care assessment with the patient. The patient did not need as assessment.

17. A self-care assessment is a standard assessment for an OT to do in a hospital setting. It is asking the patient to undress, wash, dry and dress and see if they can toilet themselves. This all falls under the umbrella term of a self-care assessment.

18. My understanding is that this patient was able to carry out these tasks and it was not part of the Occupational Therapy Assessment. It was not part of the instructions [NC] left for Viktoria Zambori. It was not appropriate for the patient to be in a position of undress when there was no requirement for them to be in that position…

59. This incident is also corroborated in the documents provided in the HCPC bundle and in particular the “Summary of Viktoria Zambori’s time in OT” document.

60. The Registrant denied this allegation. Her position was that she was assisting the nursing staff in undertaking this personal care task on behalf of the patient, who was not in a fit condition to practice transfers and standing up. The patient was “wet”, the implication being that the patient may have soiled themselves.

61. However, in cross-examination, the Registrant accepted that she was not asked to undertake this task by anyone in the Occupational Therapy team. She did not dispute the evidence from GC that the patient’s care plan stated that they were not able to wash independently. The Registrant also accepted that she was required as a Support Worker to follow the instructions provided by the Occupational Therapy team, not by other health professionals.

62. The Panel has not been provided with the care plan for this patient. The Panel therefore does not find that the Registrant failed to follow the care plan. However, the Panel does find, on balance, that the Registrant failed to follow the instructions from NC. The Panel accepted the evidence of NC on this issue and had regard to the concessions made by the Registrant in her evidence.

63. While the Particular was found proved the Panel felt that this incident, in fairness to the Registrant had to be placed in context. The Registrant was inexperienced and had not worked in a hospital before. She had very limited experience of Occupational Therapy in the UK and was unaware of this profession in Hungary. She thought she was assisting both the patient and the nursing staff. Her evidence was that as a “generic” Support Worker she should take instructions from other professionals, including nursing staff. This could be seen as team working.

Particular 2(b) - Found Proved
64. The allegation is that on two separate occasions the Registrant did not follow the care plan and/or instructions as required. The second incident was that the Registrant provided water to a patient who had been assessed as requiring thickened fluids only.

65. SS’s evidence in his statement is (paragraphs 13-20):
Incident in Stroke Physiotherapy Gym
13. I was asked to complete a DATIX incident report on 6 January 2020 following an incident in the Stroke Physiotherapy Gym at Royal Victoria Hospital. The event verifier for the DATIX team was Physiotherapist Caroline Duff. A copy of the DATIX can be found at Exhibit 12.

14. As explained above I work on 9 month rotations and in early January 2020 I was on rotation in Royal Victoria Hospital in the Stroke Ward. The Stroke Ward is upstairs and there is a rehabilitation gym for stroke patients. Downstairs is the Elderly Patient Ward where Viktoria Zambori was based. There is also a rehabilitation gym on that floor.

15. For two or three days in the week commencing 6 January 2020 Viktoria Zambori was working with me in the gym as my normal Support Worker was off work.

16. Before Viktoria Zambori assisted a patient in the gym I explained to her the· risks of stroke and went through the risks around a patient's ability to eat and swallow. I explained that if a patient is asking for water she must run it through with me, or another Physiotherapist, so that the patient's notes can be checked and the patient is given the correct consistency of fluid based on Speech and Language assessment.

17. Viktoria Zambori was assisting a patient with balance exercises. She had done this before in the elderly patients' gym. I was in the gym with her but assisting with another patient.

18. Viktoria Zambori's patient asked for water and she gave him a cup of water to drink. I looked over and noticed the patient drinking. I quickly removed what was left of the water and got rid of his cup. The patient was on thickened fluid and was not supposed to drink normal consistency water. I checked the patient over to see if there were any signs of trouble breathing/choking. He was fine and was not choking. He then returned to the ward, as it was near the end of the session. I informed the nursing staff to keep an eye on him for signs of deterioration. I also informed the Speech and Language Therapy Team in charge of his care around consumption of fluids and swallowing risks, who agreed to carry out further review.

19. I explained to Viktoria Zambori that she should not have given the patient water and that we had spoken about this prior to her seeing the patient. She said she recalled our conversation about this but she was just trying to be helpful as the patient said he was thirsty. I explained that she needed to check with a physiotherapist before giving a stroke patient any fluid due to the risk of choking. I informed her that I would be completing a DATIX incident report. She was upset about this as she was concerned it would impact her job. I reassured her it was protocol and the DATIX would be reviewed. [CD] reviewed the DATlX and was happy that no further action was required as I had informed all the relevant teams.

20. I was concerned by Viktoria Zambori's lack of knowledge around stroke patients. She would not have been expected to know the risks of a stroke patient consuming fluid as a Support Worker but as a qualified physiotherapist it was concerning to me that she did not know this. I had also discussed the risks with her prior to her seeing the patient and so I was concerned that she gave the patient water after we had discussed this.

66. This incident is corroborated by the documents in the HCPC bundle, and in particular the Datix report completed by SS, dated 6 January 2020. In oral evidence he said that the Datix was completed on the day of the incident, or possibly the following day. The following narrative is recorded in the Datix as to the circumstances of the accident and the immediate action taken:
Patient A was in the physiotherapy gym receiving treatment. Therapist B was with another patient when Support Worker C provided patient A with water while he was resting. Patient A. should be on texture 2 fluid as directed by Speech and Language therapist. No choking/discomfort seen/reported. by patient A.

Assessed patient to ensure he was not choking or feeling unwell. On arrival back to ward informed both nurse in charge and Speech and language therapist. Nurse agreed to monitor patient and speech and language to review swallow to see if Patient A is now safe with normal fluid. Support Worker C was also educated by Therapist B on the affects of stroke on swallow and why food or fluid should be discussed with therapy or nursing staff prior to providing patient.

67. The incident is also corroborated by documents in the HCPC bundle. There is an account prepared by SS:
This is a recollective account of the incident in the DATIX (ID: 124166)
I reported on (06/01/2020). The incident happened at Royal Victoria Hospital in the Stroke Physiotherapy gym beside Ward 4. I am a rotational band 6 physiotherapist and at the time I was working as the Stroke Physiotherapist for that ward. As is common with stroke patients, this ward’s patients varied in level of mobility, function, cognition and diet/swallow.

As is with any new physiotherapist, student or support worker that came through that department, I run through the basics of what stroke physiotherapy involves and the risks for these patients. One of the risks that is highlighted is that as the patients have varying levels of swallow and should not be given any food or fluids without first being discussed with myself (for which I would check the notes/clarify with nurses if I was not familiar with this patient). There would always be a Therapist present in the gym when a support worker was treating a patient.

For this incident, Viktoria was seeing a patient in the gym while I was performing therapy with another patient in the gym. When I looked over, I noticed Viktoria’s patient drinking water from a plastic cup she had given him from the water fountain. This patient was on type 2 thickened fluids at the time of this review. Immediately I removed the water from the patient and ensured he was not choking or feeling unwell. The patient was then returned to the ward and I informed both the Speech and Language therapist and the nurse looking after the patient, who agreed to review the patient, who appeared to suffer no ill effects that were reported.

Viktoria was very apologetic about this, she could recall our previous conversation about this subject and had simply forgotten at that moment in time. I again discussed with her while this patient appeared unaffected, there can be serious risks to giving a patient with impaired swallow food or water that is not within their current grading. Viktoria then agreed to check with myself before providing any fluids to patients in the future.

I then completed a DATIX for the incident and informed my Band 7 Physiotherapist [CT]. Viktoria was visibly upset by this and was worried she would get in trouble. I had to reassure her multiple times that the incident report is protocol and would be reviewed by an event verifier and I would be contacted should there be any issue.
This letter was from memory,

68. SS’s oral evidence was that he spent about 30 minutes speaking with the Registrant in the gym before they saw the first patient. The Registrant lacked basic knowledge about the symptoms commonly found in stroke patients. SS told the Registrant as part of this induction that she should check with him before giving any fluids to a patient. He could not recall whether he had told the Registrant specifically not to provide the patient with fluids. The patient, which the Registrant gave water to, was the first patient that morning. The danger of providing water to a patient with a swallowing impairment could pass into the airway and into the lungs. SS’s evidence was that he would have expected a qualified Physiotherapist to check notes or with him, prior to giving him water, in these circumstances. The patient’s notes, as documented in the Datix report, record that he was on texture 2 fluid as directed by a Speech and Language Therapist.

69. CT, in his oral evidence, accepted that other health professionals may accidentally give water to patients who are nil by mouth. The issue, from his perspective, based on his discussions with SS, was that the Registrant had been specifically instructed not to provide the patient with water, but then proceeded to do so.

70. The Registrant admitted this Particular. In cross-examination, the Registrant accepted there had been a specific instruction from SS that she should not give fluids without checking. She had not checked the patient’s medical records before giving the patient water. She accepted that a Physiotherapist in these circumstances would not have provided the patient with water and would have explained why this was not appropriate.

71. The Panel found this Particular proved on the basis of the witness evidence set out above and the Registrant’s admission. The Panel has not seen the care plan for the patient but finds the Particular proved on the basis that the Registrant failed to follow the direct instruction from SS.

Particular 3(a) – Found Proved
72. The allegation is that the Registrant behaved in a discriminatory and/or inappropriate manner, in that she asked whether a patient had a stroke because they were fat.

73. SS’s witness statement (paragraph 21) says:
Stroke patients
21. When working in the gym the patients are transferred from the ward to the gym and back. There is about a 5 minute gap in the gym waiting for the next patient to arrive. While Viktoria Zambori and I waited for the next patients to arrive we discussed stroke patients. She did not have a lot of knowledge about what stroke is and she asked me if it was because the patients were fat. We had supported one patient to sit upright which involved one of us in front and one behind the patient to support them as they work on their core muscles to sit upright. When we were on our own Viktoria Zambori asked me if it was because the patients were lazy that they could not sit upright. I was concerned by these comments, as a physiotherapist should know about stroke and understand how it is affecting the body.

74. SS told CT about this incident in December 2019. This is set out in CT’s witness statement, although the Panel was mindful that this was hearsay evidence.
Stroke Patient
12. In around December 2019, [SS] (Physiotherapist) informed me about an incident that occurred in one of Royal Victoria Hospital's two gyms. He explained that Viktoria Zambori approached a patient who was being reviewed by [SS] and he introduced her to the patient. The patient was recovering from a stroke and required rehabilitation. Viktoria Zambori then asked [SS] in the presence of the patient whether they had had a stoke because they were fat.

13. I was not present during this incident as I was in the other gym and the above information is my recollection of events as told to me by [SS]. It is my understanding that [SS] completed a DATIX Report about another incident- about giving a patient water when they were nil by mouth. I do not know any further details about this incident.

75. This incident is also corroborated in the HCPC bundle of documents. CT, in response to a “FTP query” states:
My response:
While the registrant was being inducted to the stroke gym there was a patient being treated by a senior physiotherapist and a physiotherapy support worker practising sitting balance. At this point the registrant asked the patient and the senior physiotherapist if the person had had a Stroke because of 'being fat'. The patient was dysphasic and unable to reply but this does not demonstrate the compassion and empathy we would expect from an HCPC registrant.

76. The Registrant denied this Particular. In evidence, she conceded she had no recollection of this patient or the conversation, whilst maintaining that she had awareness of the causes and/or contributory factors of strokes. She maintained that SS’s recollection was wrong. She stated “I don’t think I said this – I have a good manner.”

77. The Panel found this Particular proved. The Panel accepted the clear recollection from SS that the incident had taken place. He had told CT about it contemporaneously. There was a discrepancy between SS’s and CT’s accounts: SS recalled the incident taking place between patient treatments, whereas CT recalls it occurring in the presence of a patient. The Panel did not think this difference was material or undermined the veracity of SS’s clear recollection.

78. While the Particular was found proved the Panel was conscious of the fact that English is not the Registrant’s first language and had some sympathy with her evidence to the effect that she would not have been deliberately rude or intend to cause any offence. It may well be that she was unaware or could not recall the word obese, when asking questions about contributory causes of a stroke.

Particular 3(b) – Found Partially Proved
79. The allegation is that the Registrant behaved in a discriminatory and/or inappropriate manner, in that she told colleagues that she thought a patient’s “life was over” and that “there was no point” or words to that effect, after an assessment.

80. NC’s statement says (paragraphs 26-28):
Stroke patient
26. I arranged for Viktoria Zambori to shadow other Support Workers to see how they carry out their role of reviewing patient notes and carrying out the care plan and rehabilitation plan. This was part of her induction process to help understand her role as a Support Worker.
27. I was able to observe from a distance as the treatment room is opposite my office. I saw that Viktoria Zambori did not interact with the patients or other Support Workers and spent most of the time reading the patient notes. When Viktoria Zambori was finished I asked her how she found it. She made a comment that the patient's life was over and there was no point in continuing rehabilitation. She said the rehabilitation was pointless as the patient's life was over. I explained that it was the early stages of rehabilitation and that people could find it offensive if they heard her say those comments., It was explained that at that point it was not clear what rehabilitation potential these patients had and it was not appropriate to make judgement.

28. I addressed this again with Viktoria Zambori during supervision (Exhibit 7) and asked if she still felt the same way about the patient. She said she did. I asked how she would feel if she had to see a stroke patient. She said she had no concerns about this. I raised my concern that he made the inappropriate comments and during the session with the Support Workers she did not seem to engage with the patients. She did not seem to have insight into the level she was working at and continued to report that she would feel confident seeing stroke I neurological patients.

81. This allegation is partly corroborated in the HCPC bundle of documents:
(a) It is recorded in the Supervision notes: “B3 referred to pt seen in stroke as life being “over” – B6 discussed that no appropriate use of language + could be seen as derogatory. B3 acknowledges this.”

(b) It is also recorded in NC’s internal statement: VZ reported that there was "no hope" for the second patient and "her life is over". I queried what she meant by these comments, VZ made sweeping statements regarding her current functional status and again commented that "her life was over". I discussed that it was not professional to make sweeping statements regarding a patient's future when they are within a period of assessment and rehabilitation; Also how people could take offense to hearing her speak about patients in this way…

82. In oral evidence, NC stated that the Registrant’s response in supervision, was to confirm that she had made the comments. The Registrant was not fully aware of the gravity of her comments, if, for example, they had been heard by family members.

83. The Registrant denied this Particular. However, in evidence she conceded that she had used the phrase “life is over” to describe a patient. However, she denied saying “there was no point.” Her position was that she knew that you would not leave a patient like this, and treatment would be provided. She also placed the conversation in a different context: her recollection was that the conversation was only in the presence of NC in an office, with the door closed, as part of her personal development review. No one else would have been able to hear. Secondly, she had heard similar language being used by other therapists. She had not meant to hurt anyone or cause any harm.

84. The Panel found this Particular partially proved. The Panel concluded that the Registrant had said that “life is over” or words to that effect. This is corroborated by the contemporaneous supervision record and was admitted by the Registrant in her evidence.

85. However, the Panel was unable to find that the HCPC had proved its case on the “there was no point” comment. This was not referred to in the supervision record and there was no explanation as to its omission, given the weight which was subsequently placed on it. The Panel accepted the Registrant’s evidence on this point, having regard to her partial admission that she had said “life is over”. The Panel could see no reason why she would admit one comment, but deny the other, unless she was being truthful.

Particular 3(c) – Found Proved
86. The allegation is that the Registrant behaved in a discriminatory and/or inappropriate manner, in that she made a comment that she was uncomfortable working with gay patients who have HIV.

87. CT’s statement says (paragraphs 14-16):
HIV Patients
14. I recall at one point during Viktoria Zambori's time in the department we were having a conversation about the areas she might work in at Ninewells Hospital when she is transferred. When I mentioned that she could work in an infectious diseases ward, along with the other wards she may work in, she said she did not want to work with anyone who is gay and might have HIV. I do not remember my immediate response. As the incident was some time ago I cannot be sure who was present at the time.

15. I pulled her to one side afterwards and had a conversation about the comment she made. I explained that the comment was not acceptable and referred her to the training materials and online policy NHS Tayside: Equality, Diversity, and Human Rights documents. She acknowledged the comment and said she would review the training material. Viktoria Zambori confirmed the materials were received by completing the module online. Her online LearnPro training record demonstrated this.

16. I did not know Viktoria Zambori very well as she had only been in the department for a few weeks. I was unsure at the time if there was a language barrier or what she said was lost in translation and I am unsure if there was any malice behind the comment.

88. CT confirmed the above account in his oral evidence. He thought the comment related to patients as opposed to colleagues.

89. CT’s evidence was also aware of the comments referred to below by SS, although he had not heard these first hand.

90. This incident is also corroborated by the documents in the HCPC bundle. There is a document prepared by CT, dated 5 August 2020:
Retrospective Report of Discussion with Viktoria Zambori
I am unable to confirm the date /time or location of the conversation. This is reported to the best of my ability retrospectively and as accurately as I am able to sometime after the incident.

During Viktoria's time with us in the team we were discussing the potential areas in which Viktoria may be required to work - the medical team and the infectious disease ward was mentioned. At this point Viktoria questioned myself around whether there could be patients who were gay or had HIV on this ward. She reported that she would not want to have to see any gay patients.

Following this we had a private discussion in the office around equality and diversity ensuring that Viktoria was aware of the importance of treating all patients equally and with respect. I directed her towards NHS Tayside's policy and advised her to complete the Equality and Diversity learnpro as a priority. This conversation was not recorded and appeared resolved after this. Viktoria did not mention this again in the time that she was in the team.

91. SS, in his statement, adds:
Inappropriate comments
24. I recall during break times that Viktoria Zambori made a few comments that concerned me. The first is that she made a comment about her flat mate being homosexual and that she found it disgusting. From memory, I think she was looking for a new flat and was asking staff members for advice about moving. I cannot recall who else was around as it was a while ago but I remember being shocked.

25. The second comment Viktoria Zambori made around the same time was that she said she would never work with a patient that had AIDS. She said that it was disgusting as they had AIDS due to homosexual acts. I remember being shocked about this comment.

92. In oral evidence, SS confirmed that he was confident that the comments about her flatmate had been made. He did not challenge the Registrant about her comments, as he did not know the Registrant very well and had little rapport with her. He could not now recall if he had fed the comments back to the team lead, or another member of staff.

93. He was confident that both comments were made and took place in a peer group environment. The context was a discussion about infectious diseases in the hospital. SS did not think that the Registrant’s words were to the effect that she required further training before she could work with patients with AIDS.

94. SS denied having any personal grievance against the Registrant.

95. The Registrant denied this allegation. She had no recollection of making any comments about patient’s sexual orientation or HIV. She would have used the anacronym “AIDS” not HIV. She was worried about working in an infectious disease department and had expressed the view that first she would require the “right training”.

96. Secondly, whilst she accepted that she had a flatmate who was homosexual, she denied ever saying that this was “disgusting”, pointing out she had known about her flatmate’s sexual orientation before she moved in. They did subsequently have a disagreement which she had mentioned to SS, during a lunchbreak when they were having an informal discussion around a table.

97. The Panel found this Particular proved. The Panel found both CT’s and SS’s evidence on this issue credible and compelling. The Panel could not see any basis to allege any ulterior motive or that they were not being truthful or giving an accurate account of the events. They broadly corroborated each other.

98. The Panel noted that although the anacronym HIV had been used in the allegation, SS’s recollection was that the Registrant had used the anacronym AIDS. The Registrant’s evidence was that she would have used AIDS rather than HIV, which the Panel felt strengthened the credibility of SS’s account.

99. The Panel did not strictly have to make findings regarding the alleged comments about the Registrant’s flatmate. However, the Panel had no basis to conclude anything other than SS’s recollection was truthful and accurate, and the sentiments expressed corroborated the allegation, pertaining to the Registrant’s expressed unease working with homosexual patients.

Decision on Grounds
100. The Panel then considered, in light of all the evidence it had heard, whether the Registrant’s actions amounted to misconduct and or a lack of competence.

101. Ms Johnson, on behalf of the HCPC submitted that:
(a) The conduct and/ or failings alleged in Particulars 1 and 2 found proved, demonstrate a repeated lack of knowledge, skill and judgement on the part of the Registrant and amounted to a lack of competence.

(b) The findings in respect of Particular 3 and in particular the partial finding in Particulars 3(b) and 3(c) amounted to misconduct. The words used by the Registrant fell far short of what can reasonably be expected of a HCPC registered Physiotherapist.

(c) The Panel was directed to the HCPC Standards of Conduct, Performance and Ethics and Standards of Proficiency for Physiotherapist.

102. The Panel accepted the Legal Assessor’s advice on the definition of misconduct. In particular, the Panel paid regard to the definition given by Lord Clyde in Roylance v General Medical Council (No.2) [2000] 1 AC 311: “Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances…”

103. The Panel also had regard to the guidance in Nandi v GMC [2004] EWHC 2317, where Collins J suggested that misconduct could be defined as: “conduct which would be regarded as deplorable by fellow practitioners…”

104. The Panel first considered whether the Registrant’s actions amounted to a lack of competence, in relation to Particulars 1 and 2 - being a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the professional’s work. The Panel concluded that there was a lack of competence for the following reasons:
a. There was a very significant gap in the Registrant’s knowledge, some of which was fundamental to practice as a Physiotherapist.

b. The Registrant had not taken any real steps to fill the knowledge gap with relevant continuing professional development (CPD) or work experience.

c. The Panel had regard to the evidence from CT that had the Registrant been on a physiotherapy placement as a student she would have failed the clinical assessment.
d. The Panel was also mindful of CT’s evidence that the Registrant had “no baseline knowledge” and lacked awareness of appropriate boundaries and or limitations.

e. The evidence from SS was that there was a lack of knowledge around stroke patients.

f. The Panel also had regard to the Registrant’s admission, in evidence that she was not able to correctly and consistently assess if patients were safe to be seen or to practice autonomously.

g. The Panel concluded that it had seen evidence of a fair sample of the Registrant’s work, as set out in the factual findings above.

105. The Panel further concluded that the Registrant’s failings were sufficiently serious to amount to misconduct in respect of Particulars 3(b) and 3(c), falling short of what would be proper in the circumstances and amounting to conduct which fellow practitioners would regard as deplorable.

106. The Panel recognised that there may have been a language issue and hence did not find misconduct in relation to Particular 3(a). However, the other comments were wholly unacceptable. SS in his evidence stated that he was “shocked” by the Registrant’s comments. CT pulled the Registrant to one side and explained that her comments were “not acceptable” and referred her to online policy documents.

107. The Panel also had regard to the following Standard of Conduct, Performance and Ethics (January 2016) which it concluded had been breached:
Standard 1. Promote and protect the interests of service users and carers
1.5. You must not discriminate against service users, carers or colleagues by allowing your personal views to affect your professional relationships or the care, treatment or other services that you provide.

Standard 3. Work within your scope of practice
3.1. You must keep within your scope of practice by only practising in the areas you have appropriate knowledge, skills and experience for.

3.3 You must keep your knowledge and skills up to date and relevant to your scope of practice through continuing professional development.

3.5 You must ask for feedback and use it to improve your practice.
Standard 6. Manage Risk

6.2 You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.

108. The Panel also had regard to the Standards of Proficiency for Physiotherapists, dated 28 May 2013:
Standard 1 be able to practice safety and efficiently within their scope of practice
1.1 know the limits of their practice and when to seek advice or refer to another professional

Standard 3 be able to maintain fitness to practise
3.1 understand the need to maintain high standards of personal and professional conduct

3.3 understand both the need to keep skills and knowledge up to date and the importance of career-long learning

Standard 4: be able to practise as an autonomous professional, exercising their own professional judgement
4.1. be able to assess a professional situation, determine the nature and severity of the problem and call upon the required knowledge and experience to deal with the problem

4.2 be able to make reasoned decisions to initiate, continue, modify or cease techniques or procedures, and record the decisions and reasoning appropriately

4.3 be able to initiate resolution of problems and be able to exercise personal initiative

4.4 recognise that they are personally responsible for and must be able to justify their decisions

Standard 5: be aware of the impact of culture, equality, and diversity on practice
5.1 understand the requirement to adapt practice to meet the needs of different groups and individuals

Standard 6: be able to practise in a non-discriminatory manner

Standard 8: be able to communicate effectively
8.1 be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, colleagues and others

8.3 understand how communication skills affect assessment and engagement of service users and how the means of communication should be modified to address and take account of factors such as age, capacity, learning ability and physical ability.
Standard 9: be able to work appropriately with others
9.2. understand the need to build and sustain professional relationships as both an independent practitioner and collaboratively as a member of a team

9.4 be able to contribute effectively to work undertaken as part of a multi-disciplinary team

Standard 13: understand the key concepts of the knowledge base relevant to their profession
13.2 be aware of the principles and applications of scientific enquiry, including the evaluation of the efficacy of interventions and the research process

13.4 understand the structure and function of the human body, together with knowledge of health, disease, disorder and dysfunction, relevant to their profession
13.5 understand the theoretical basis of, and the variety of approaches to, assessment and intervention

Standard 14: be able to draw on appropriate knowledge and skills to inform practice

Standard 15: understand the need to establish and maintain a safe practice environment
15.1 understand the need to maintain the safety of both service users and those involved in their care

15.2 know and be able to apply appropriate moving and handling techniques

15.3 be aware of applicable health and safety legislation, and any relevant safety policies and procedures in force at the workplace, such as incident reporting and be able to act in accordance with these.

Decision on Impairment
109. The Panel had to consider whether the Registrant’s fitness to practise is currently impaired, in light of the Registrant’s proven misconduct and lack of competence. The Panel had regard to the HCPTS Practice Note ‘Finding that Fitness to Practise is Impaired’ and has accepted the advice of the Legal Assessor. The Panel has also exercised the principle of proportionality.

110. The Panel is mindful of the forward-looking test for impairment.

111. The Panel heard submissions on the issue of impairment from the HCPC and on behalf of the Registrant.

112. Ms Johnson, on behalf of the HCPC submitted that:
a. The Registrant had not practiced as a Physiotherapist since gaining her qualification;

b. Her qualification was now somewhat dated, having been obtained in 2013;

c. She had not worked in the physiotherapy realm since leaving the job with NHS Tayside;

d. There was no evidence that she had kept her skills up to date – the evidence being that she had purchased only one physiotherapy book.

e. Although the Registrant was working in a client facing role as a carer she was not demonstrating physiotherapy skills.

f. The Registrant was not safe to practice as a Physiotherapist and public confidence in the profession would be undermined if there was not a finding of impairment.

g. There was some evidence of insight on the part of the Registrant, who made admissions during the course of her evidence.

113. The Registrant submitted:
a. She accepted that she was not in a position to practice as a Physiotherapist, given her limited experience and time since she qualified;

b. She expressed remorse and made it plain that she had not intended to hurt anyone;

c. She had not taken any CPD courses to keep up to date. However, she followed a physiotherapy group on Facebook and had purchased a physiotherapy book on the shoulder.

114. The Panel concluded that the Registrant’s current fitness to practice is impaired, having regard to both the public and personal components of impairment, for the following reasons:
a. The Registrant’s misconduct was serious.

b. There was a risk of harm to patients caused by the Registrant’s lack of competence.

c. The Panel could not be satisfied that there would not be a repetition of the Particulars found proved if the Registrant were to be allowed to practice without restriction.

d. There was some evidence of limited but developing insight. The Registrant made admissions in her evidence and was candid in admitting that she was not in a position to safely practice as a Physiotherapist. This was in contrast to her initial position that she was competent and safe to see patients.

e. The Registrant expressed remorse for the inappropriate comments.

f. The Panel formed the view that the Registrant’s failings were capable of remediation. This would require a lot of work, focus and support and would be challenging.

g. However, there was no evidence of current remediation.

h. The Panel had regard to the public component of impairment and concluded that a reasonably well-informed member of the public would be shocked to learn that the Registrant’s current fitness to practise had not been found to be impaired, given the nature of her misconduct/lack of competence and the findings set out above.

i. The Panel concluded that the Registrant’s actions have brought the reputation of the Physiotherapy profession into disrepute, and that she has breached a fundamental tenet of the Physiotherapy profession.

j. The Panel also had regard to the need to uphold proper standards of behaviour, in concluding that the public component of impairment is clearly established. The Panel concluded that confidence in the Physiotherapy profession would be undermined, if there was no finding of impairment, given the nature of the misconduct/lack of competence which has been identified.

Decision on Sanction
115. The Panel has heard submissions on sanction, from Ms Johnson, on behalf of the HCPC.

116. Ms Johnson highlighted the mitigating features. These are the developing (albeit limited) insight identified by the Panel, and the expression of remorse.

117. Ms Johnson argued that the aggravating features were:
a. The risk of repetition,

b. There was a pattern of unacceptable behaviour – with similar concerns being raised by two separate teams,

c. There was a lack of understanding of the requirements required to be a Physiotherapist,

d. The Registrant had not undertaken further relevant training since she had left NHS Tayside,

e. The lack of remediation,

f. There was a risk of harm to patients, including, amongst others, the stroke patient to whom water was given when they were limited to thickened fluids,

g. The Registrant could not assess safely if patients were fit to be seen or practice autonomously,

h. She did not have basic knowledge regarding stroke patients.

118. The Panel also had regard to submissions from the Registrant, in relation to sanction.
(a) She is now employed as a self-employed carer and this is likely to be the position in the immediate future.

(b) Whilst she expressed the view that she would like at some point to consider returning to physiotherapy, this was expressed to be in a “few years’ time.”

(c) She again expressed remorse and apologised.

(d) She planned to undertake online physiotherapy courses in the future.

Panel’s decision on Sanction
119. The Panel has paid regard to the HCPC’s Sanctions Policy and has accepted the advice of the Legal Assessor. The Panel paid particular regard to the principal of proportionality and the need to strike a careful balance between the protection of the public and the rights of the Registrant.

120. The Panel has also reminded itself that the purpose of fitness to practise proceedings is not to punish registrants but to protect the public and to maintain high standards amongst registrants and public confidence in the profession concerned.

121. The Panel accepted Ms Johnson’s submissions as to the aggravating and mitigating circumstances in this case and does not intend to repeat them here. One additional mitigating feature is that the Registrant has engaged fully in these proceedings, attending throughout, giving evidence and making submissions, despite being a litigant in person and in circumstances where English is not her first language.

122. In light of the aggravating factors, the Panel determined that given the nature of the Registrant’s misconduct/lack of competence in the findings set out above, that to take no action or to impose a Caution Order would not protect the public, retain public confidence in the regulatory process or have the necessary deterrent effect on other registrants. The Panel further concluded that public confidence in the profession would be undermined by imposing either of these sanctions, given the seriousness of the Registrant’s misconduct.

123. In addition, a Caution Order is not appropriate having regard to the HCPC Sanctions Policy. This suggests (at paragraph 101) that a caution order is likely to be the appropriate order where (1) the issue is isolated, limited or relatively minor in nature, (2) there is a low risk of repetition, (3) the registrant has shown good insight and (4) the registrant has undertaken appropriate remediation. The Panel’s findings in this case were that there was a pattern of behaviour which was not minor in nature and that there was a risk of repetition. The Registrant has only developed limited insight and has not undertaken appropriate remediation.

124. The Panel next carefully considered whether to impose a Conditions of Practice Order. The Panel struggled to identify any conditions which would be workable or practicable, given the fact that the Registrant is currently not practicing as a Physiotherapist and has no intention of doing so in the near future and in light of the very significant knowledge gaps demonstrated by the Registrant.

125. The Panel next considered whether to make a Suspension Order. The Sanctions Policy (paragraph 121) suggests that a Suspension Order is appropriate where there are serious concerns, but which do not require the registrant to be struck off, but where the concerns cannot be addressed by a Conditions of Practice Order. The Panel concluded that this was an appropriate sanction to address the identified concerns, protect the public and address the wider public interest concerns which the Panel identified.

126. The Panel had regard to the limited degree of insight as set out above but concluded that the identified failings are potentially capable of being remedied in the future if the Registrant engages with a future review Panel. The Panel determined that the Suspension Order should be imposed for a period of 12 months.

127. Having arrived at an appropriate sanction, the Panel concluded that to impose the more restrictive sanction of a Striking Off Order would be unnecessarily punitive and disproportionate. The Panel noted that striking off should be reserved for cases where there is no other way to protect the public and in this case the Panel determined that an adequate level of public protection could be achieved by the lesser sanction of a Suspension Order. The Panel also took the view that the concerns identified were not so serious as to warrant a Striking Off Order.

128. Whilst in no way seeking to bind any future review panel, this Panel anticipates that the following matters are likely to be off assistance to any future reviewing panel:
(a) The Registrant should seek to identity a HCPC registered Physiotherapist who could provide her with mentoring and support.

(b) As part of the mentoring support, a professional development plan should be drawn up and commenced, with the aim to identify steps which could be taken to prepare the Registrant for a return to practice.

That the Registrar is directed to suspend the registration of Mrs Viktoria Zambori for a period of 12 months from the date this order comes into effect.

Right of Appeal:
You may appeal to the Sheriff Court against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health and Social Work Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

Application for an Interim Order
1. Ms Johnson, on behalf of the HCPC, made an application for an Interim Order, to cover the appeal period, pursuant to Article 31 of the Health and Care Professions Order 2001.

2. The Registrant did not oppose the application for an Interim Order.

3. The Panel accepted the Legal Assessor’s advice and had regard to the HCPC Practice Note on Interim Orders, and the guidance contained in the Sanctions Policy. The Panel concluded that an Interim Order was necessary for the protection of the public and otherwise in the public interest, to cover the expiry of the appeal period (28 days from the service of this determination) or if there is an appeal, the determination of that appeal.

4. The Panel concluded that in light of its findings, as set out above, that an average member of the public would be shocked or troubled to learn that the Registrant was permitted to continue in unrestricted practice for the duration of any appeal period.

5. The Panel considered whether it could impose an Interim Conditions of Practice Order but concluded that this was not practicable and would not provide the necessary degree of public protection, that was required, for the same reasons as identified above, when considering what sanction to impose on the Registrant. The Panel therefore concluded that the appropriate order was an Interim Suspension Order.

6. The Panel concluded that it was necessary to impose an Interim Suspension Order for a period of 18 months. Different considerations apply as to the duration of the Interim Order, as opposed to the substantive Suspension Order, as the period in question, is designed to cover how long it may take the High Court to finally dispose of any appeal that might be made.

Interim Order:
The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Viktoria Zambori

Date	Panel	Hearing type	Outcomes / Status
17/03/2023	Conduct and Competence Committee	Review Hearing	Voluntary Removal agreed
14/03/2022	Conduct and Competence Committee	Final Hearing	Suspended