Dinusha Arya

Preliminary Matters

Application to amend the Allegation

1. Ms Collins applied to amend the Allegation. Ms Collins submitted that the Registrant had been notified of the majority of the proposed amendments on 26 May 2021 and had not raised any objections to them. The Registrant did not oppose the application.

2. Ms Collins explained that the proposed amendments to the start and end dates in the stem of Particular 1 more accurately reflected the evidence that the HCPC proposed to call. Ms Collins submitted that the proposed amendments to Particular 1b were to reflect that two of the witnesses refer in their witness statements to the Registrant having used a raised voice when communicating with the Registrant rather than shouting at him (during the incident about which each gives evidence). There was also a small amendment to one letter in one word from an upper-case to a lower-case letter.

3. Ms Collins also applied to amend Particular 2 to make it clear that all or any of the sub-particulars of Particular 1, if found proved, constitute misconduct.

4. The Panel has considered each of the proposed amendments separately. It has received and accepted legal advice. The Panel is satisfied that the proposed amendment to the stem of Particular 1 will more accurately reflect the evidence as to dates which the HCPC expects to call. The Panel considers that while the proposed amendment to Particular 1b does add a subtle difference to the allegation, it is satisfied that it does not cause any unfairness or prejudice to the Registrant. The Panel takes the view that it reflects the evidence the HCPC expects to call from two of its witnesses in relation to the incidents each observed.

5. The Panel also considers that the proposed amendment to Particular 2 merely makes explicit that which was implicit in the way it had been originally drafted. The Panel is therefore satisfied that none of the proposed amendments prejudices or causes unfairness to the Registrant and grants Ms Collins’ application in full.

Background

6. The Registrant is a registered physiotherapist and was employed in 2000 by the London North West University Healthcare Trust (“the Trust”). Apart from a short period in about 2001, when the Registrant was employed at other hospitals in the London area, she was based at Ealing Hospital (“the Hospital”). In 2004, the Registrant became the In-patient Therapy Coordinator at the Hospital. Later she took on responsibility for both in-patients and out-patients and as Trauma Rehabilitation Coordinator. Between 1 November 2015 to 25 October 2019, the Registrant was the Senior Physiotherapy Lead (Band 8a). The Registrant’s line manager was BM, Band 8c, Physiotherapy Lead for Ealing Hospital. The Registrant also line managed other physiotherapists at the Hospital.

7. Colleague A was appointed as a Band 7 physiotherapist by the Trust after being interviewed for the position by BM and the Registrant in early 2018. Colleague A started with the Trust in May 2018. The Registrant was Colleague A’s line manager. Initially the Registrant also supervised Colleague A.

8. In December 2018, Colleague A made a written complaint to the Trust regarding the Registrant’s conduct towards him. On 14 March 2019, the Trust appointed JS, then a Band 8a Dietetic Team Lead employed by the Trust, to carry out an internal investigation. JS concluded her investigation and reported to the Trust on 23 July 2019. The matter went no further. By this time, Colleague A had resigned from the Trust, leaving at the end of April 2019. The Registrant had also left the Hospital at the end of March 2019, going on secondment as a Band 8b Head of the Community Care Team to another hospital outside the Trust.

9. The Registrant relocated to Mumbai, India in December 2019 to care for a sick relative. She remains a resident in Mumbai where she is currently working as a Hospital Manager.

10. On 22 December 2019, Colleague A referred his concerns regarding the Registrant to the HCPC.

11. On 29 January 2021, a panel of the Investigating Committee found there was a case to answer against the Registrant and referred an Allegation to this Committee. On 9 February 2021, the HCPC instructed Kingsley Napley LLP to prepare the case for a final hearing.

Decision on Facts

Evidence

12. The Panel was provided with a bundle of documents by the HCPC (which numbered 158 pages in total) of which some 97 pages were documentary exhibits in the case. The Panel also received a 3-page document prepared by the Registrant. The Panel heard live evidence from four witnesses called by the HCPC. Hearsay evidence was adduced by one of the HCPC’s witnesses (Colleague B). The Panel also received in evidence, as part of the HCPC’s case, a production statement in which various documents relating to the Trust’s internal investigation were formally exhibited. Within the internal investigation report were notes of interviews and statements from staff members who were not called by either party in these proceedings. The Panel understands that this is hearsay evidence. The Panel received and accepted legal advice as to how it should approach hearsay evidence and has exercised particular care and scrutinised this evidence before relying on any of it. The Panel also heard evidence from the Registrant.

Colleague A

13. The Panel will refer to the relevant parts of Colleague A’s evidence in relation to Particular 1 below.

14. Colleague A told the Panel that he has been employed since September 2019 as a Community Physiotherapist by the Central London Community Health NHS Trust. At the relevant time, Colleague A was employed by the Trust as a Band 7 Physiotherapy Team Lead for Acute Care of the Elderly and Neurological Teams, based at the Hospital. In that role, Colleague A worked alongside the Acute Physiotherapy Coordinator in planning, delivering, and evaluating the physiotherapy service provided to this patient care group. Prior to this, Colleague A's experience had been working in the community rather than in a hospital setting with acutely unwell patients.

15. Colleague A told the Panel that when he started with the Trust in May 2018, the Registrant who was his line manager was on sick leave. She returned in mid-October 2018. Colleague A said that from the time the Registrant returned until the day she left on her secondment, they worked together every day.

16. Colleague A said that he had started to fill out an internal complaint form on 6 December 2018, completing it on 12 December 2018 when he signed it and handed it to the Human Resources Department. The Panel has seen a copy of this formal complaint which effectively sets out in short form those matters which are now the subject of these proceedings. Colleague A also told the Panel that he had handed his resignation to BM on 14 February 2019 whilst waiting for his complaint to be investigated. He said BM had declined to accept it and advised him to consider the notice carefully as he was very upset at the time. A week later, Colleague A withdrew his resignation.

17. Colleague A accepted that he was put on a capability procedure. Colleague A accepted that when he had first started his employment at the Trust in May 2018, support measures had been put in place to assist him to adjust from working in the community to working on acute wards. He spent some four weeks at Northwick Park Hospital where there were specialist physiotherapists to observe and learn from. Colleague A said that when he returned to the Hospital he was without a supervisor and line manager as the Registrant was still on sick leave. By the time of a capability assessment on 7 March 2019 in which Colleague A accepted he had not performed well, he had decided to leave the Trust. He handed in his resignation before he received the result of his capability assessment.

18. During the course of Colleague A’s evidence there were some references to matters relating to his private life. The Panel decided that any matters relating to Colleague A’s health should be heard in private to protect his private life and that all other matters would be heard in public.

Colleague B (hearsay evidence)

19. The Panel received hearsay evidence from Colleague B who is currently employed by the Trust as a Principal Speech and Language Therapist, working in the Adult Acute Speech and Language Therapy (“the SLT”) department, based at the Hospital. The Panel has considered Colleague B’s evidence with care and has decided that it is appropriate to afford it less weight than if she had been present at the hearing. This is particularly so as the Registrant would have cross examined Colleague B had she been present. Colleague B’s evidence is therefore untested.

20. Colleague B has known the Registrant since she started work at the Hospital in July 2007 and shared an office with the Registrant for 12 years. Colleague B said that she generally got on very well with the Registrant who had been kind and good to her. Colleague B also said that she had witnessed what she described as another less kind side to the Registrant towards staff members who she did not like or felt were not competent enough.

21. Colleague B said that she was not very familiar with Colleague A as they did different types of work and so did not work together very often. From the joint sessions or meetings that they sometimes had Colleague B had formed the general impression that he was a “nice guy”. As she shared an office with the Registrant, Colleague B said she would occasionally see him when Colleague A came in to speak to or meet with the Registrant.

22. Colleague B gave evidence regarding Colleague A in relation to two incidents where she said she had witnessed the Registrant’s behaviour towards Colleague A. One incident had taken place in the office she shared with the Registrant. The second incident was on 11 February 2019 immediately after a multi-disciplinary meeting (“MDT”) at which other colleagues had been present. The Panel will refer to these two incidents under Particular 1a below.

JS – Internal Investigator for the Trust

23. The Panel heard evidence from JS, who is employed as an Acute Dietetic Manager in the Nutrition and Dietetics Department at the Trust, a role she has been in for over two years. Prior to that JS was a Band 8a Dietetic Team Lead within the Trust, a role she held for 9 years.

24. JS was appointed on 14 March 2019 to conduct an internal investigation for the Trust into the formal complaint made by Colleague A in December 2018 about his treatment by the Registrant. JS’s terms of reference were to investigate:

a) That condescending comments have been made by [the Registrant] when talking with Colleague A in the presence of others or in 1:1’s;

b) That a raised voice used by [the Registrant] when talking to Colleague A;

c) That [he Registrant] has not allowed Colleague A to justify his actions;

d) Treatment by [the Registrant] towards Colleague A is humiliating and belittling.

25. As part of her investigation, JS interviewed twelve members of staff based at Ealing Hospital, including Colleague A, Colleague B, LF and BM. One other person was not interviewed by JS but did provide a written statement. JS also interviewed the Registrant. Contemporaneous but not verbatim notes were taken of each interview, usually by a member of the Human Resources staff. At the conclusion of each interview, and after JS had checked the notes against her own, the notes of the interview were sent to the person who had been interviewed so that they could check them, correct them, and/or add anything to them. Witness statements from all those interviewed by JS were then prepared from the interview notes. Copies of both the interview notes and the witness statements were appended to JS’s Investigation Report. While the Panel has read the interview notes and statements, it has decided not to rely on the hearsay evidence of any of the staff members who might have supported the HCPC case against the Registrant but from whom the HCPC did not obtain witness statements.

26. JS told the Panel that she was aware from her investigation that there were concerns about Colleague A’s competence in his role at the Hospital. However, this was not the focus of her investigation, and so she had not looked into it.

27. JS concluded her investigation and reported to the Trust on 23 July 2019.

LF

28. The Panel heard evidence from LF, a Band 7 Neuro Occupational Therapist employed at the Ealing Hospital by the Trust, working in the Rehabilitation Services Team within the Occupational Therapy Department. LF has been at the Ealing Hospital since 2016. Her role involves the assessment, treatment, management, and discharge planning of neurological care for elderly patients. LF also has some supervision responsibility of junior staff and carries responsibility for the day-to-day management and prioritisation of patient caseloads.

29. LF knew the Registrant for approximately 3 years between 2016 and 2019 and worked with her, on average, 2-3 times per week. LF’s main involvement with the Registrant was attending meetings and occasionally seeing patients with her. There were also a lot of phone calls between them to discuss referrals and patients within the department.

30. LF described the Registrant as a highly experienced physiotherapist. She stated the Registrant was a very dismissive person who found it difficult to accept an alternative view of matters to the view she had, and who always seemed to want the upper hand. LF referred to one incident when the Registrant had disagreed with her decision in respect of the level of rehabilitation centre a patient should be referred to. LF said that the Registrant had brought in an external assessor for a second opinion instead of accepting her assessment. The Registrant did not herself have the experience to make such a decision. LF described herself as a timid or anxious person and said that she did not like confrontation. She said that the Registrant had made her feel anxious at times. LF said a number of times in her oral evidence that she wished she had done more to support Colleague A in his concerns about the Registrant’s conduct towards him.

31. LF worked almost every day with Colleague A. She described him as a “very likeable person”. LF accepted that Colleague A had struggled with moving from working within the community setting to working in a physiotherapy role within an acute hospital setting. She explained that working in the community was quite different to working on a ward which can be a very busy and often high-pressured environment. LF explained that the ward works as a large team whereas community work is more autonomous. LF said that while Colleague A had started to grow into his role by the time the Registrant returned from her sick leave, he was still not quite at the level he should have been.

32. LF described MDT meetings as taking place once a week with occupational therapists, physiotherapists, speech and language therapists and the neuro discharge coordinator in attendance. LF would usually chair these meetings. Colleague A would usually be in attendance, but it was not usual for the Registrant to attend.

33. LF’s evidence in relation to Particular 1 will be referred to below.

BM

34. BM is now retired from the NHS. Up to the end of November 2019, BM was employed as the Head of Physiotherapy (with an alternative title of the Head of Acute Therapy Services) at the London North West Hospital. Her responsibilities in that role included managing physiotherapy services at the Hospital.

35. BM said that she had become the Registrant’s line manager at some point, and they would then communicate virtually every day. BM explained that this level of communication was the nature of the Registrant’s role at the time, and that the Registrant would communicate daily not just with her but also with others. BM told the Panel that the Registrant line managed everyone in the Physiotherapy Team.

36. BM described the Registrant as being “very organised and efficient in how she did her job”. BM said that the Registrant was “also forthright and assertive and did not suffer fools gladly”. BM said that sometimes the Registrant’s communication could be seen as “quite challenging” and she had seen this in her office when the Registrant and Colleague A were present. BM described the Registrant as having “strong views” and said that it was part of the job to be challenged on your decisions.

37. BM explained that Colleague A had been employed as a Band 7 Physiotherapist to cover in-patients within the Neurology Department. During his interview, it was picked up that Colleague A needed some support as he was moving from community work to an acute setting. BM said that support was put in place, and it was arranged that Colleague A would spend time at Northwick Park Hospital as the Physiotherapy Team there had a strong specialism in neurology. BM explained the difference in the pace of work in the community compared with that in an acute setting where there is a push for people to be discharged and a demand to be on top of the discharge planning to ensure the smooth running of the set-up.

38. BM said that the competency issues with Colleague A’s practice required close monitoring on his return to the Hospital. This became the responsibility of the Registrant as Colleague A’s line manager, on her return to the Hospital in mid-October 2018 after sick leave.

39. BM said that in supervision sessions with Colleague A at which she had been present, the Registrant had been very frustrated with Colleague A’s inability to achieve very simple basic things such as completing documentation, lack of clinical reasoning and his knowledge base considering he was a Band 7.

40. BM told the Panel that at some point (she could not recall when) she had taken over Colleague A’s supervision from the Registrant. It was during this time that a formal capability process was started with Colleague A.

41. On 3 December 2018, BM referred Colleague A to Occupational Health. According to BM’s written referral which the Panel has seen, Colleague A was at that time on sick leave and due to return on 10 December 2018. In the referral form, BM had ticked boxes indicating that adjustments would have to be made on his return and that the problem was caused or made worse by work. The Panel has also seen the Occupational Health letter to BM dated 17 January 2019 after Colleague A had been seen by them. This letter suggests that the measures already put in place to support Colleague A in his problem with a senior member of staff should be sufficient. The measures referred to were that the Registrant would cease to supervise Colleague A and BM would continue to take this role. The Registrant would continue as his line manager.

42. BM said that she had regular supervision sessions with Colleague A and during one of these sessions, Colleague A had handed her his resignation. BM said that she had not accepted this at the time as she thought it was a “knee-jerk” reaction to the situation. A few weeks later, Colleague A had told her that he was leaving because he was unhappy. BM believes that Colleague A left because of the capability process.

AC – trainee solicitor with Kingsley Napley LLP

43. AC was not called to give live evidence as his witness statement set out how he had obtained certain of the exhibits in the case.

The Registrant

44. The Registrant gave evidence in which she described her employment by the Trust and the various different roles she had held at Ealing Hospital. She explained that she had started in the NHS in 1997 because she believed in the NHS and its high standards of care, putting patients first without discrimination. She said she believed that in her role as a Lead she should make the need for high standards of care clear to her team. The Registrant described herself as very organised, self-motivated to ensure that the team grew together, and no one was left behind. She saw it as part of her role to ensure that expectations were met. The Registrant told the Panel that she is still in touch with previous colleagues from the Hospital.

45. The Registrant denies all the matters alleged in Particular 1 of the Allegation. She accepted that her communication style might be considered to be forthright, assertive, and passionate but believed that she had, at all times, kept on the right side of the line between “assertive” and “aggressive” communication in her dealings with Colleague A. In relation to the various comments which Colleague A alleges were made by her and which he alleges were abusive, the Registrant either denied making the comment at all, or said that the Registrant had misunderstood what she had been saying to him. She said that she had not shouted at Colleague A or raised her voice.

46. When she was cross examined, the Registrant agreed that bullying and humiliating behaviour was wrong, unacceptable in the workplace and that it should be called out. The Registrant also agreed that bullying and humiliating behaviour fell far below the standards expected of a practitioner and that it was a serious failing. The Registrant agreed that bullying and humiliating conduct could arise when condescending and belittling language was used, or when a colleague was shouted at, or when abusive comments were directed at a colleague. The Registrant also agreed that not allowing a colleague to respond to questions by talking over them could also amount to bullying and humiliating conduct.

47. The Registrant whilst maintaining her overall denial of the Allegation, did tell the Panel that with hindsight if she had known of the effect her communications with Colleague A were having on him, she would have apologised to him and modified her behaviours.

48. The Registrant explained that the reason she stopped being Colleague A’s supervisor was her choice and nothing to do with any complaint he had about her. She explained that at that time, she had three roles in the Hospital which was understaffed, and she did not have the time to supervise Colleague A to the level he required.

49. The Panel has considered the evidence of the Registrant’s good character in her favour when considering her credibility and her propensity to do the matters alleged against her. The Panel notes that good character evidence in itself does not provide a defence to any registrant facing regulatory allegations. The Panel also notes that the Registrant chose to focus on Colleague A’s capability issues during her evidence. However, the Panel does not consider that in doing so she tried to mislead it in any way. Nor does it consider that she was dishonest.

The Panel’s approach

50. The Panel has borne in mind that the burden of proving the Allegation is on the HCPC and that there is no burden on the Registrant to disprove it. The Panel has applied the civil standard of proof when coming to separate decisions in respect of the three sub particulars and the stem of Particular 1 of the Allegation. The Panel was referred to and has taken note of the case of Khan v GMC [2021] EWHC 374 (Admin) as to how the issue of determining a witness’s credibility should be approached, and as to evidence of a registrant’s good character.

Particular 1 is found proved (with the exception of Particular 1b (shouted only)

51. The Panel has approached Particular 1 by considering first whether all or any of the sub-particulars have been proved before then considering whether those matters that it has found proved amount to the Registrant having bullied and humiliated Colleague A, as is alleged in the stem of Particular 1.

Particular 1 a) is found proved

52. The Panel accepts Colleague A’s evidence that there were many occasions when the Registrant spoke to him in meetings at which other colleagues were present. These included an MDT meeting with the Registrant at which LF was also present, together with other physiotherapy colleagues, occupational therapy colleagues and an external colleague, and 2:1 meetings with BM. The Registrant accepts that she did speak regularly to Colleague A and that this was sometimes in private meetings where just the two of them were present and sometimes in the presence of others.

53. Colleague A told the Panel that there were many occasions where the Registrant spoke to him using condescending and belittling language. He said this had made him feel humiliated and undermined. He gave examples of this in his evidence.

54. Colleague A told the Panel that in the first MDT meeting at which the Registrant was present, the Registrant had started dictating to him what to do without letting him justify his own treatment plans with his patients. This was in front of other colleagues. Colleague A said that after the MDT meeting, the Registrant had asked him why he had not challenged the occupational therapists. Colleague A referred to a meeting on 26 November 2018 when the Registrant had told him in front of other therapists that he did not know what he was doing. The Registrant denied making such comments in front of colleagues in the way described by Colleague A, or that any of them was condescending and belittling.

55. The Panel accepts the evidence of LF that at one MDT meeting when several other members of staff were present, the Registrant had constantly questioned Colleague A’s assessment/treatment plans, especially regarding what seemed to LF to be irrelevant issues regarding patients given the purpose of the MDT meeting. LF told the Panel that the Registrant was sitting about a foot away from Colleague A and was facing him. LF said that the Registrant was not interacting with the rest of the room. LF also said that the Registrant had spoken inappropriately to him using a harsh tone and a very loud volume. When asked on a scale of 1 to 10 (with 10 being the loudest), LF had said that the volume was 7 out of 10. LF described the Registrant’s questioning as “brutal” and said that the Registrant had not given Colleague A the chance to respond properly to her questions. LF described Colleague A as getting shaky, sweaty and he was stuttering. LF said she considered the Registrant’s conduct to have belittled and undermined Colleague A in front of his colleagues. LF had only questioned Colleague A during the meeting. LF was herself embarrassed by the Registrant’s conduct especially as there was an external person from the commissioning group present. She said that Colleague A had clearly been humiliated by it.

56. LF told the Panel that she had tried to intervene, but the Registrant had put her hand in her face and said, “I’m not talking to you”, or words to that effect. LF said that she reported her concerns about the Registrant’s conduct to BM and suggested that the Registrant be asked not to attend these MDT meetings in the future. BM told the Panel that she recalled LF coming to her and that she had used the word “brutal” to describe the Registrant’s questioning of Colleague A. BM did not recall how she had dealt with LF’s concerns.

57. LF told the Panel that Colleague A’s junior colleagues did not take him seriously and began to consider him as “a joke”. They had no respect for him either as his ability as a physiotherapist or as a Band 7 manager. Some refused to carry out his instructions. LF said that she spoke to Colleague A after he had supervision meetings with the Registrant when he would be upset and shaking, and it was obvious to her that it was affecting his confidence.

58. The Panel is satisfied that it is more likely than not that the meeting about which LF gave evidence is the same MDT meeting about which Colleague A gave evidence. The Panel is also satisfied that it is more likely than not that the Registrant’s language at the meeting, when questioning Colleague A was condescending in tone and content, and was belittling.

59. Colleague A also told the Panel that on 29 November 2018, after an MDT meeting, the Registrant had wrongly accused him of not knowing that the Modified Ashworth Scale was out of 5 and not out of 4. The Modified Ashworth Scale is a universally accepted clinical tool used to measure of muscle tone. Later the Registrant had told him that she had Googled it herself and took back what she said as she agreed with him that the scale was out of 4. The Registrant accepts that there was a discussion about the Modified Ashworth Scale and that she had made a mistake about it as it was not something she used in her practice. She denied using condescending and belittling language when discussing the matter.

60. Colleague A referred to a meeting in the gym with the Registrant on the same day which, he says, he asked for to discuss why the Registrant was treating him as she did. He told the Panel that the Registrant had told him that she had given up on him and wanted nothing more to do with him. The Panel has seen a diary note made by Colleague A dated 18 December 2018 which refers to this.

61. The Panel is satisfied that it is more likely than not that when the Registrant challenged Colleague A about the Modified Ashworth Scale, she did so, using condescending and belittling language.

62. Colleague A also told the Panel that in his presence at a meeting of all the physiotherapists, the Registrant had said that they had to discuss their Neuro patients with her first and then she would decide whether Colleague A would see those patients or not. Colleague A told the Panel that on 18 December 2018 during the morning physiotherapists meeting in the staff room, the Registrant had asked him to copy all of his patient notes and email them to her every morning. The Panel has seen a diary note made by Colleague A which refers to this. The Panel notes that by 18 December 2019, Colleague A has made a formal complaint about the Registrant’s treatment of him. The Panel notes that there are only entries in the diary for 4 dates.

63. The Registrant denies ever making such condescending or belittling comments to Colleague A. It was never her intention to do so, and she did not believe that she had done. She told the Panel that as part of the capability process Colleague A’s patients notes were being monitored and she needed to have these in email form to send to an appropriately qualified physiotherapist at Northwick Park Hospital to access them. The Registrant also explained that she had only asked the other physiotherapists to discuss their Neuro patients with her first as she was monitoring Colleague A’s caseload.

64. The Registrant denied making these requests in front of others. There is no evidence from any HCPC witness that these requests were made in front of them. However, the Panel prefers Colleague A’s evidence to that of the Registrant’s in that the Panel found the way in which the Registrant communicated these requests to Colleague A to be condescending and belittling.

65. Colleague B said that she had been present in the office she shared with the Registrant when the Registrant was having a meeting with Colleague A. Colleague B said that she thought the meeting should have been held in private as the Registrant was being quite critical of Colleague A. Colleague B described the Registrant making comments to Colleague A which were made in an “aggressive and condescending manner”. Colleague B thought that the comments were “clearly humiliating” for Colleague A. She thought the Registrant was very irritated by Colleague A.

66. The Registrant told the Panel that she would have obtained Colleague A’s consent to continue a 1:1 meeting if Colleague B had entered during their discussions. She recalled one such meeting where Colleague B had come into their office and said she had stopped her discussion with Colleague A to obtain his consent to continue in Colleague B’s presence. The Registrant did not accept that she was speaking in an aggressive or condescending manner. The Panel having considered Colleague B’s hearsay evidence with care an affording it less weight than it might had she been at the hearing, accepts that Colleague B evidence provides support for Colleague A’s evidence that the Registrant used condescending and belittling language when communicating with him.

67. Colleague B also referred to a multi-disciplinary team (“MDT”) meeting on 11 February 2019 at which Colleague A had been explaining “Pathway 1” which was, at that time, a fairly new referral term for patients. Colleague B described the Registrant as entering the room at the end of the MDT, sitting down with Colleague A, and then asking him questions in a manner which Colleague B described as “grilling”. Colleague B also said that after Colleague A had left the room, the Registrant had asked those still present in the room whether Colleague A had explained the “Pathway 1” issue properly. When one of those present had said she did not think so, the Registrant had commented that as Colleague A was a Band 7, he should have been able to explain it properly. The Panel accepts Colleague B’s hearsay evidence of this incident as support for Colleague A’s evidence as to the manner in which the Registrant spoke to him being condescending and humiliating.

Particular 1 – the stem as it relates to Particular 1a

68. The Panel takes the view that it is never right for a senior practitioner to use condescending and belittling language towards a more junior practitioner even if there are issues with their competency for their role. The Panel considers that this amounts to bullying and humiliating conduct. The Panel is satisfied that by treating Colleague A in this way, the Registrant bullied and humiliated him, with the result that he was undermined to the point that he could no longer command the respect of colleagues more junior to himself for whom he had management responsibilities.

Particular 1 b) is found proved (used a raise voice) and made abusive comments and found not proved (shouted)

69. The Panel has considered first whether it is satisfied on the balance of probabilities that the Registrant shouted and/or used a raised voice at Colleague A.

70. The Registrant denied shouting or raising her voice when communicating with Colleague A. She agreed that she had been forthright, assertive, and passionate at times when speaking with him.

Shouted

71. Colleague A referred to some occasions when he believed the Registrant was shouting at him. There has been no evidence independent of Colleague A to support his assertion. The Panel has however, heard evidence from other witnesses that they would describe the Registrant as using a raised voice when communicating with him. Both Colleague A and LF were asked to rate the volume of the Registrant’s voice on a scale of 0 to 10 (with 10 being the loudest). Neither witness rated the volume of the Registrant’s voice as higher than 7 or 8 out of 10. The Panel considers that shouting would require a rating higher than this. The Panel accepts the Registrant’s evidence that she did not shout at Colleague A when communicating with him. The Panel has therefore concluded that it is not satisfied on a balance of probabilities that the Registrant shouted at Colleague A and so that part of Particular 1b is found not proved.

Used a raised voice

72. The Panel accepts that in his evidence Colleague A described an occasion where the Registrant had spoken to him in a raised voice which he rated as 7 or 8 out of 10 (with 10 as the loudest). On 29 November 2018, during a handover meeting in front of a number of staff members, Colleague A described a comment made by the Registrant which he rated as 6–8 out of 10.

73. The Panel accepts the evidence of LF that in one MDT meeting at which she was present, the Registrant had spoken to Colleague A harshly in a loud raised voice which she rated as 7 out of 10 (with 10 being the loudest). LF told the Panel that she had witnessed the Registrant speaking to Colleague A using a raised voice on other occasions.

74. LF said that she had witnessed this in the physiotherapy office, and on one occasion in front of a patient. LF told the Panel that the patient had asked her if Colleague A was a trained physiotherapist as he had just witnessed the Registrant speaking to him in a manner that implied that he was not. The Panel considers that there is no evidence to suggest that LF has any ill-feeling towards the Registrant which would affect the veracity of her evidence.

75. BM told the Panel that she had witnessed the Registrant raising her voice when speaking with Colleague A. The Panel accepts this evidence as it supports both Colleague A and LF’s evidence as to this part of Particular 1b.

76. The Panel is therefore satisfied on the balance of probabilities that the Registrant used a raised voice in communicating with Colleague A and that this part of Particular 1b is proved.

Made abusive comments

77. The Panel notes that Particular 1b alleges that the Registrant made abusive comments (plural) to Colleague A but only sets out one example of this. Colleague A gave evidence as to a number of comments made to him by the Registrant which he considered to be abusive. The Panel has considered first whether, on a balance of probabilities that the Registrant made any of these comments. Then, whether those comments which it is satisfied were made, and were, on the balance of probabilities, abusive comments. The Registrant denies making any of the alleged abusive comments or, if she did, they have been misunderstood by Colleague A as she did not intend to be abusive towards him. The Panel has decided in the event it were to find one of the comments made and that it was an abusive comment, that this provides some support for the Colleague A’s evidence that the other alleged abusive comments were made.

78. Colleague A said that on 15 November 2018 in a 1:1 meeting, the Registrant accused him of being “criminal” towards one of the patients. The Registrant denies ever saying such a thing to him. The Panel notes that there is no evidence from any of the witnesses in the case which supports Colleague A’s assertion. Nor is there any contemporaneous record of it or even a diary entry in his diary by Colleague A.

79. However, the Panel has decided that on balance it prefers the evidence of Colleague A to that of the Registrant. It is clear from her evidence that the Registrant had a problem with Colleague A’s treatment of this patient. The Panel accepts that the Registrant’s focus was always on prioritising patient care, but it has concluded that there were times when this focus was to the detriment of Colleague A, and this was one such occasion. The Panel is satisfied that it is more likely than not that the Registrant did refer to Colleague A’s treatment of the patient as being “criminal”.

80. The Panel has no doubt that such a comment made by a senior practitioner to a more junior practitioner is abusive. The more senior practitioner should have been able to raise concerns about the junior practitioner’s patient treatment in a less emotive and more constructive way.

81. Colleague A also referred to an incident on 29 November 2018 which occurred in the presence of other staff members, when the Registrant has said words to the effect that “Ward 5S which Colleague A was leading at that time, had the worst handover of patient information she received and that if we could not do our “fucking job properly” then she would know what route to take”. Colleague A explained that handovers took placed at the Nurses’ Point and other therapists and assistants would be present. He said that the comment was directed at him as the Registrant had seemed happy with the other ward handovers.

82. The Registrant accepted that there were problems with the Ward 5S handovers but denied making the comment and said that it was not in her nature or her culture to swear.

83. The Panel heard evidence from BM about meetings at which Band 8 staff members were present and which were in effect “a safe space” where they could say what they liked about e.g., the merger with Northwick Park Hospital or staff shortages. BM said that the “air turned blue” at these meetings. While BM did not specifically say whether the Registrant herself used swear words during these meetings, the Panel considers that it appears to have been acceptable for staff members to do so at such meetings. The Panel accepts that it may well be that it is not the Registrant’s usual practice to swear at work, but it has concluded that it is more likely than not on this occasion that she did when she made the comment to Colleague A about the inadequacy of the Ward 5S handover. The Panel considers that it may be that her frustration with the situation got the better of her.

84. The Panel is also satisfied that it is more likely than not that the comment was directed at Colleague A as he was in charge of the handover for Ward 5S and that it was an abusive comment. It was insulting and upsetting for Colleague A to be sworn at, and the comment in the context of the Registrant’s relationship with Colleague A and her concerns as to his competency, carried an implied threat.

85. Colleague A referred to an incident on 13 February 2019 when the Registrant had called him “a liar” without any evidence or reason. This had been in BM’s office. The Panel notes that BM did not give evidence of this incident, and it was not clear if she was said to be present at the time. The Panel has seen a diary entry made by Colleague A on13 February 2019 which refers to this incident. The Registrant denies ever calling Colleague A “a liar”.

86. The Panel prefers Colleague A’s evidence on this matter and notes that he made an entry about it in his diary on the same date. The Panel considers that Colleague A would not make such an entry unless it was what had been said to him. The Panel is also satisfied that a comment such as this is abusive. It is never appropriate to accuse a person of being a liar with no reason or evidence.

87. Colleague A also gave evidence of another incident on 13 February 2019 when he said that in ward 7S the Registrant had said to him that she would escalate an issue with one of his patients in order to have him sacked. The Registrant denied making such a comment but accepted that she had discussed the patient concerned with Colleague A. This was a patient that both Colleague A and the Registrant agree had been transferred to the Hospital but whose notes had not been transferred with him. Colleague A said that the Registrant had told him that she would get the missing notes. The Registrant agrees that this is the case. Colleague A said he was waiting for the notes before going to treat the patient. The Registrant told the Panel that Colleague A should not have waited for the notes but should have seen the patient anyway. The Panel has seen Colleague A’s diary entry relating to this incident. It notes that the entry is not in precisely the same terms as the evidence Colleague A gave but it does refer to Ward 7S and “escalate pts case” (i.e., patient’s case).

88. Whether or not there was a misunderstanding on Colleague A’s part as to when he should have assessed the patient, the Panel is satisfied that it is more likely than not that the Registrant made the comment to him. It considers that this is another example of the Registrant’s focus of prioritising patient care was to the detriment of her treatment of Colleague A.

89. The Panel takes the view that to effectively threaten a more junior colleague with dismissal over the treatment of a patient can only be described as abusive. It was incumbent on the Registrant as the more senior practitioner to raise her concerns about Colleague A’s treatment, or lack thereof, to patients in a less threatening and more constructive way.

90. Colleague A told the Panel that on a date he could not recall, the Registrant had said to him words to the effect of “you don’t know what you are doing. What sort of Band 7 are you?”. Colleague A described that this was said at a 1:1 meeting with the Registrant when they were discussing a patient with cerebral palsy. Colleague A said that the Registrant’s comment had made him feel humiliated. The Registrant confirmed in her evidence that she recalled discussing this patient with Colleague A but denied making the alleged comment.

91. The Panel is satisfied that it is more likely than not that the Registrant did make such a comment, or words to that effect to Colleague A. The comment in effect reflects the Registrant’s view of Colleague A’s practice and the issues with regard to his capabilities. This is another incident when the Panel considers that the Registrant’s frustrations with Colleague A may have got the better of her and resulted in such a comment.

92. The Panel has concluded that the comment was abusive. Where a senior practitioner with line management responsibilities over a more junior colleague makes comments such as this it is not only wholly inappropriate, but it is also abusive. The Registrant should have had the skills given her experience to manage Colleague A appropriately without resorting to abusive comments.

Particular 1 – the stem as it relates to Particular 1b

93. The Panel is in no doubt that the matters it has found proved regarding the Registrant regarding her use of a raised voice when communicating with Colleague A and making various abusive comments to him, amounts to bullying and humiliating behaviour towards Colleague A. The Panel has concluded that to use a raised voice towards a more junior colleague who may be struggling in his practice and to make abusive comments such as those found proved, is conduct that can only be described as bullying and humiliating.

Particular 1 c) is found proved

94. The Panel accepts Colleague A’s evidence that there were occasions when the Registrant had asked him to justify his actions and decisions in relation to patients but had not allowed him to respond, and instead talked over him. He said that the Registrant would move quickly from issue to issue and that he had sometimes asked her “please let me finish”. Colleague A told the Panel that the Registrant had not allowed him to finish saying to him “you don’t explain to me the physiology” or words to that effect.

95. The Panel also accepts the evidence of Colleague A that a meeting took place on 15 November 2018 in BM’s office which had been arranged after Colleague A had raised concerns with BM as to how the Registrant had been treating him. Colleague A told the Panel that during the meeting, the focus was shifted from the Registrant’s treatment of Colleague A to issues regarding Colleague A’s capabilities. The Panel also accepts Colleague A’s evidence that during the meeting the Registrant had talked over him without letting him respond to any questions or concerns raised.

96. Colleague A’s evidence is supported to some extent by BM’s evidence. BM told the Panel that at meetings between Colleague A and the Registrant at which she had been present, she had had to intervene because they had both spoken over each other. BM told the Panel that the Registrant may have interrupted Colleague A as she was frustrated with how much of a challenge it was to manage him. BM also said that Colleague A was finding the situation difficult and accepted that it would have been upsetting for him to have someone challenging his work. The Registrant accepted that at a meeting in BM’s office both she and Colleague A had at times spoken over each other, but she denies that she did not allow Colleague A to explain himself.

97. Colleague A’s evidence was supported by the evidence of LF which the Panel accepts. LF told the Panel that during an MDT meeting on 1 November 2018, the Registrant had constantly questioned Colleague A in front of several members of staff (some of whom were more junior to him and one of whom was an external attendee), about his treatment plans, and other matters which LF considered to be irrelevant to that particular the MDT meeting. LF told the Panel that Colleague A was not given an opportunity by the Registrant to properly explain himself. LF told the Panel that when she had attempted to intervene, the Registrant had put her hand in LF’s face and said “I’m not talking to you” or words to that effect. The Panel notes that the Registrant accepts that she did raise her hand towards LF but denied that she put it in her face. After the meeting, LF said that she had reported her concerns regarding the Registrant’s conduct towards Colleague A to BM. LF had felt that the Registrant’s questioning of Colleague A was bullying conduct.

Particular 1 – the stem as it relates to Particular 1c

98. The Panel considers that where a more senior practitioner in a position of authority over a more junior colleague asks questions but does not let the junior colleague answer and talks over them on a number of occasions, this is bullying and humiliating conduct on the part of the senior practitioner. The Panel is satisfied that the matters it has found proved in Particular 1c amount to bullying and humiliating conduct by the Registrant in her treatment of Colleague A.

99. Accordingly, the Panel finds that the Registrant bullied, and humiliated Colleague A as alleged in Particular 1 in the ways found proved in Particular 1a, 1b and 1c.

Decision on Grounds

100. In reaching its decision on the statutory ground of misconduct as alleged in Particular 2 of the Allegation, the Panel has taken note of the submissions of both parties. It has received and accepted legal advice.

101. Ms Collins submitted that if any of the matters set out in Particular 1 is found proved, then the Registrant’s conduct had fallen far short of what would be proper in the circumstances and what the public would expect of a registered physiotherapist. Ms Collins submitted that the Registrant had breached standards 2 and 9 of the HCPC Standards of Conduct, Performance and Ethics (2016).

102. The Registrant denied her conduct had fallen far short of what would be proper in the circumstances. She submitted that far from breaching Standard 2.5 and Standard 9.1 of the HCPC Standards of Conduct, Performance and Ethics (2016), she had worked in partnership with Colleague A by obtaining support for him and creating a programme to address his capability issues. The Registrant submitted that she had complied with Standard 9.1 and believe that her conduct did justify the public’s trust and confidence in her and her profession, and in the National Health Service.

Decision

103. The Panel has considered Particular 1 to decide if the facts found proved constitute misconduct.

104. In relation to Particular 1a, the Panel has concluded that it is never appropriate for a registrant who is in a senior position to bully and humiliate a more junior colleague by using condescending and belittling language when speaking to them in any situation. The Panel has found that the Registrant was acting in this way towards Colleague A not only in 1;1 meetings but also, in some instances, in front of other colleagues. The Panel is satisfied therefore that the Registrant’s conduct in this regard fell far below the high standards to be expected of a physiotherapist, and that it amounts to serious misconduct.

105. In relation to Particular 1b, the Panel has concluded that it is not appropriate for a registrant who is in a senor position to bully and humiliate a more junior colleague by using a raised voice when speaking to them. The Panel has also concluded that it is never appropriate for such a registrant with managerial responsibilities to make abusive comments to a colleague, particularly to a more junior colleague. The Panel is satisfied that the Registrant’s conduct in this regard fell far below the high standards to be expected of a physiotherapist, and that it amounts to serious misconduct

106. In relation to Particular 1 (c), the Panel has concluded that it is not appropriate for a registrant who is in a senor position to bully and humiliate a more junior colleague by not allowing them to explain their actions despite having been asked to do so, and by speaking over them. The Panel is satisfied that the Registrant’s conduct in this regard fell far below the high standards to be expected of a physiotherapist and that it amounts to serious misconduct

107. The Panel is satisfied that the cumulative effect of the Registrant’s misconduct has impacted adversely on Colleague A, who told the Panel that he had felt bullied, humiliated, and undermined in his role as a Band 7 physiotherapist. He described how after the Registrant had returned from sick leave, her treatment of him over time, affected how the more junior physiotherapists viewed him. Colleague A gave examples of how junior colleagues lost all respect for him and would not carry out his instructions. Colleague A said that he had lost confidence in his own abilities.

108. In reaching its decision on misconduct, the Panel has had in mind the HCPC Standards of Conduct, Performance and Ethics (2016) and has concluded that the following standards are engaged and have been breached:

“Standard 2 Communicate appropriately and effectively

2.5 You must work in partnership with colleagues, sharing your skills, knowledge, and experience where appropriate, for the benefit of service users and carers.

Standard 9 Be honest and trustworthy

Personal and professional behaviour

9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.”

109. The Panel takes the view that by bullying and humiliating Colleague A, the Registrant was not working in partnership with him. Her conduct had the effect of undermining him and this was not ultimately for the benefit of his patients.

110. The Panel has also concluded that the Registrant failed to make sure that her conduct justified the public’s trust and confidence in her and her profession when she bullied and humiliated Colleague A in the various ways found proved against her. The Panel heard evidence that the Registrant is a very good physiotherapist, and it has no doubt that she performs her clinical role to a very high standard. However, in terms of her management skills, the Registrant let herself and her profession down in her dealings with Colleague A. Whatever competency issues there were with Colleague A, it is never acceptable to bully or humiliate a colleague.

111. The Panel has also had in mind the HCPC Standards of Proficiency for Physiotherapists (2013) and has concluded that the following standards are engaged and have been breached:

“Standard 3 - be able to maintain fitness to practise

3.1 understand the need to maintain high standards of personal and professional conduct.

Standard 8 - be able to communicate effectively

8.1 be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating advice, instructions and professional opinion to service users, colleagues, and others.”

112. The Panel considers that the Registrant failed to understand the need to maintain high standards in her professional conduct towards Colleague A in the way she managed him. Whatever competency issues there were with Colleague A, it is never acceptable to bully or humiliate a colleague.

113. The Panel also considers that the Registrant was not able to communicate effectively with Colleague A. It is never acceptable to use condescending and belittling, or abusive language towards a colleague, especially when in a position of seniority. Nor is it effective communication to talk over a colleague who has been asked to explain their actions, effectively not allowing them to do so. The Panel accepts that the Registrant may have believed that in her communications with Colleague A she was only being forthright, passionate, and assertive (to use her words) because of her overriding concern for patient safety. The Panel also accepts that she may have been frustrated by the level of support Colleague A needed when the Hospital was short-staffed and in the process of implementing a merger with Northwick Park Hospital. But as an experienced team leader with many years of line managing physiotherapists at all levels of seniority, the Registrant should have had the skills and ability to communicate with Colleague A in such a way that it did not amount to bullying and humiliating him. The Panel considers that the Registrant failed to maintain high standards in her professional conduct when communicating with Colleague A.

114. Accordingly, the Panel finds the statutory ground of misconduct proved in this case.

Decision on Impairment

115. The Panel moved on to consider whether the Registrant’s fitness to practise is currently impaired, in light of the Registrant’s proven misconduct. The Panel had regard to the HCPTS Practice Note “Finding that Fitness to Practise is Impaired” and noted that although fitness to practise is not defined in the Health Professions Order 2001, it is generally accepted to mean that a registrant has the skills, knowledge, character and health to practise safely and effectively.

116. The Panel reminded itself that insight is concerned with the future risk of repetition. It is different to remorse for past misconduct and it is wrong to equate maintenance of innocence with a lack of insight. A registrant is entitled to advance a defence to an allegation without fear that this will result in a finding that they lack insight. If a registrant does no more than require the HCPC to prove its case and properly challenge the evidence called to establish it, then it is unlikely that a panel could properly conclude that this alone demonstrated a lack of insight.

117. The Panel accepted the advice of the Legal Assessor and also exercised the principle of proportionality. The Panel was also mindful of the forward-looking test for impairment.

118. The Registrant gave further evidence at the impairment stage and was subject to cross-examination and questions from the Panel. The following points are relevant:

(a) Whilst she cannot undo the past, the Registrant expressed the wish that she could.

(b) After she left Ealing hospital, she worked on secondment as a Band 8b at Homerton hospital where she developed a “great rapport” with all staff, managers and junior colleagues. Her employers were keen to create a permanent position for her, but she had to relocate to India for personal reasons.

(c) She has not practised as a physiotherapist since December 2019. She began work in India in March 2020 as a hospital manger, initially as a trainee on probation. She is now the Chief Operating Officer. No issues have been raised with her regarding her communication style. She is a “sounding board” for staff, patients and relatives. She said she was a “go to” person and “not just in a crisis”. She was a “well loved and respected person.”

(d) She accepted that her voice was slightly louder than others but said that this could happen when you are passionate.

(e) She had not undertaken any training courses, such as on effective communication, or anti-bullying, as a requirement for this had not been highlighted to her.

(f) She did not have the opportunity to speak to Colleague A after she found out about the allegations. Had she known, she would have apologised and sought to rectify matters. At the time she though the issue was Colleague A’s competency and not her behaviour.

(g) She has learnt from her experiences and is now “more mindful.” If faced with a situation again where she had to manage someone with competency issues, she would seek help earlier if she could not manage the situation effectively. She would talk “slower and softly” and allow more time for supervision.

(h) When asked whether her conduct amounted to bullying or humiliation she said: “I can see that he may have perceived it like that.” She disagreed that her behaviour had fallen well short of what was proper in the circumstances but admitted she “could have done better.” She did not accept that her actions amounted to “serious behaviour.”

(i) When asked about the impact on Colleague A, she said that the first time she was aware of this was when he gave evidence. She apologised that he “has gone through that.” The issues could have been resolved by informal mediation. She apologised for how Colleague A and LF had felt. This was clarified in questions from the Panel – the apology was for her conduct, not just for how Colleague A had perceived it.

(j) The Registrant did not accept that her behaviour had any implications for patient care. Colleague A’s patients, in her view, were impacted by his lack of competence, as opposed to any effect her behaviour had had upon him.

(k) She did not think that she had brought the profession into disrepute. She did accept that the public should be confident that physiotherapists worked in a bully free environment.

(l) The situation had arisen because of the situation she found herself in at work: “constantly walking a tightrope and juggling and overwhelmed with work pressures…”

(m) The Registrant had wanted to give up her HCPC registration in February 2019 but had been prevented from doing so by these fitness to practise proceedings. She did not think she would return to the NHS as a physiotherapist or as a manager.

(n) The Registrant now facilitates a soft skills communication programme, teaching, for example, receptionists and nurses, how to manage conflict situations, and to communicate appropriately with other professionals, patients and their families.

119. During the course of her evidence, the Registrant mentioned that she had WhatsApp messages received from colleagues which demonstrated how she was regarded by her colleagues. The Panel was subsequently provided with a 7-page document, containing screenshots of the messages.

120. The Panel heard both oral and written submissions from Ms Collins. The written submissions were 6 pages long and ran to 19 paragraphs. The Panel does not intend to set out the submissions in full. However, the following extracts are relevant:

“The personal component

4.The personal component must be considered first. In so considering, the Practice Note helpfully identifies that the key questions which need to be answered are: a) are the acts or omissions which led to the allegation remediable; b) has the registrant taken remedial action? c) are those acts or omissions likely to be repeated?”

5. In assessing the personal component, a further key consideration for the Committee will be the level of insight demonstrated by the Registrant. The Committee shall form its own view of the level of the Registrant’s insight based upon the evidence provided by the Registrant.

6. Does the Registrant demonstrate an understanding of:

a) the seriousness of her conduct?

b) the potential and actual impact of her conduct on patients?

c) the impact of her conduct on the public?

d) the impact of her conduct on the profession?

e) the impact of her conduct on her colleagues?

f) the causes of her conduct and how to address those causes?

It is submitted that the evidence provided by the Registrant both in oral and written form demonstrates very little understanding of those issues and does not amount to evidence of sufficient, developed insight. In the Registrants Bundle she states, “the claims that he (Colleague A) felt bullied and left due to me are false and defamatory” … “my work ethics and integrity are beyond reproach.” During the course of the Registrants evidence she suggested her colleagues were mistaken in their recollections and her behavior had been appropriate at all times. She denied she had subjected Colleague A to bullying and humiliation. She stated in her evidence when closing her case on facts and grounds, “I can only say sorry for how he felt.” Of course, the Registrant was entitled to put forward a defence.

It is the Registrant’s on-going denials which demonstrate an on-going lack of insight. To date, the Registrant has failed to accept that her behaviour had amounted to misconduct and as such there is an on-going risk of repetition; and the Registrant has shown no remorse in relation to the behaviour alleged and continues to minimise and excuse her actions as misunderstandings by others.

7. In its consideration of the personal component, the Committee should also consider whether the Registrant has demonstrated she has taken action to address her failures in a manner which remedies any past harm and avoids any future repetition. What evidence has the Committee seen which could support such a conclusion? In the HCPC’s submission, there is very little. In respect of those factual particulars the Committee has found to amount to misconduct, it is submitted the Registrant has not provided a proper explanation as to why those factual particulars occurred. Following her leaving Ealing Hospital in March 2019 she has gone onto her secondment within a community setting. She then relocated to India where she has informed the panel she is currently working as a hospital manager. No evidence of remediation in the period since leaving Ealing Hospital has been evidenced and so those deficiencies in her practice will inevitably remain.

8. The extent of the Registrant’s remediation and remedial steps is, in the HCPC’s submission, a consideration of great importance. A Registrant who has taken insufficient steps to acknowledge and address deficiencies in their practice may pose a significant risk of repetition.

9. As Sir Anthony Clarke, in Meadow v. General Medical Council said:

“In short, the purpose of FTP proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FTPP thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past.”

10. The extent of the Registrant’s remediation is a matter for the Committee’s assessment. In the HCPC’s submission, there is no real evidence of remediation.

11. In the HCPC’s submission, a finding of impairment should be made on the private component.

The public component

12. Panels must consider the 3 elements of the public component, the critically important public policy issues:

i) The need to protect service users,

ii) Declaring and upholding proper standards of behavior,

iii) Maintain public confidence in the profession concerned.

13. In respect of the public component, the HCPC invites the Committee to bear in mind the words of Mrs Justice Cox in CHRE v (1) NMC and (2) Grant: it is essential not to lose sight of the fundamental considerations emphasised by Silber J in R (on the application of Cohen) v General Medical Council, that is the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession.

14. Mrs Justice Cox further added: “In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.”

15. In the HCPC’s submission, if a finding of impairment were not made in this case, public trust in the profession and the upholding of proper professional standards would be undermined. Bullying and humiliating behavior in the workplace cannot be allowed or excused. Such behavior has serious implications for the mental health of members of staff (not only those subjected to such behavior directly), has a negative effect on the working environment as a whole, impacts staff retention rates and has implications on patient care.

16. The Panel may also think it relevant to consider the risk of harm. Concerning the risk of or degree of harm caused by the registrant, the registrant’s culpability for that harm or the risk exposure to others. In assessing the likehood of a registrant causing similar harm in the future.

17. The Panel may find the fourfold test proposed by Dame Janet Smith in the Fifth Shipman Inquiry useful: Do the findings made by the Committee indicate the Registrant’s fitness to practise is impaired in the sense that she: a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or b. has in the past brought and/or is liable in the future to bring the profession into disrepute; and/or c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession; […] d. Has in the past acted dishonestly and/or is liable to act dishonestly in the future.

18. In the HCPC’s submission, limbs (b)-(c) are engaged in the Registrant’s case and a finding of impairment on the public component is necessary.” [sic]

121. The Panel heard oral submissions from the Registrant on impairment. She submitted to the Panel that they should not find impairment on either the personal or public components of impairment. She made the following points:

(a) The misconduct is remediable. She had not had opportunity to mediate with Colleague A. Had she done so, she would have apologised unconditionally and modified her tone.

(b) She had taken some remedial actions. These included soft skills workshops she now runs in her current employment.

(c) With the exception of Colleague A, no-one else, either before or after, has raised any concerns about bullying or the manner in which she manages staff. The Registrant relied upon the WhatsApp messages as demonstrating the high regard in which she is held by both former and current colleagues, as well as patients.

(d) The Registrant stated that she understood how Colleague A felt and the impact of her behaviour on him. She had insight and felt that the HCPC had based its submissions on a few instances of behaviour some years ago, which did not reflect her current behaviours.

(e) The Registrant said she had substantiated to the Panel that she took high standards very seriously, both as an individual and the team that she leads. She points to her success in her current role in India, and the fact that she managed a 1700-bed COVID care centre for the Government during the third wave of the pandemic.

(f) Bullying is not acceptable and she condemned it, and would be more mindful in the future.

122. The Panel concluded that the Registrant’s current fitness to practice is impaired.

123. The Panel first considered the personal component of impairment and had regard to the following matters:

(a) The proven misconduct was very serious amounting to bullying and humiliating behaviour towards Colleague A, who was a more junior colleague. The Registrant was in a senior role as a Band 8a physiotherapy manager, and her behaviour had a significant impact on Colleague A. In addition, there was also an impact on both colleagues and patient care, as Colleague A’s confidence was undermined.

(b) The Panel agreed that the misconduct is potentially remediable.

(c) The Registrant has expressed remorse and offered an unconditional apology.

(d) The Panel concluded that the Registrant had developed some level of insight, but that this had occurred only relatively recently, having seen Colleague A give evidence, and detailing the impact which her behaviour has had upon him. However, that insight, although developing, is not yet complete.

(e) The Registrant, when giving evidence and making submissions, did not demonstrate that she understood the seriousness of her behaviour or the full nature of the impact of her actions on Colleague A, who was observed by LF leaving meetings “physically shaking.” She also failed to appreciate how her behaviour also affected colleagues and the implications for patient care, which she ascribed as only being caused by Colleague A’s competency issues. This is in contrast with LF who described Colleague A becoming a “less competent therapist” as a result of the Registrant’s treatment of him.

(f) The Panel recognised that the Registrant had taken some steps towards remedying her misconduct. The Panel noted the Registrant’s obvious passion for delivering high standards of patient care and this was reflected both in the WhatsApp messages and the success which she has enjoyed in her subsequent career and promotion.

(g) The Panel also noted that the Registrant’s opportunities to undertake courses on conflict resolution and bullying awareness had been limited by her relocation to India. The Panel did have regard though to the soft skills workshops which the Registrant has delivered around communication issues.

(h) The Panel accepted that this was a one-off episode in the sense that the conduct was only directed towards Colleague A. There is no evidence of any previous or subsequent behaviour of a similar bullying nature against work colleagues. However, it did continue for a period of approximately six months, sometimes on a daily or a very frequent basis.

(i) Overall, the Panel concluded that although there was a risk of repetition, that risk overall was relatively modest. These proceedings, and the findings which the Panel has made, have clearly come as a significant shock to the Registrant who had disputed any misconduct on her part, or that her behaviour could be regarded as bullying and humiliating.

(j) However, this relatively low level of risk of repetition has to be balanced against the initial seriousness of the bullying behaviour from a senior manager, and the only partial insight which the Registrant has developed.

124. The Panel considered the public component of impairment, and also concluded that she was impaired on this ground, for the following reasons:

(a) The serious misconduct, bullying behaviour towards Colleague A as a more junior colleague, brought the physiotherapy profession into disrepute.

(b) The Registrant has breached a fundamental tenet of the physiotherapy profession.

(c) The Panel 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 serious nature of his misconduct and the findings set out above.

(d) 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. Although there is no ongoing risk to public safety, bullying behaviour is not acceptable in the workplace, particularly from senior members of staff who are expected to uphold high standards of behaviour and set a good example to more junior colleagues.

(e) The Panel concluded that confidence in the physiotherapy profession would be undermined if there was no finding of impairment, given the serious nature of the misconduct which has been identified.

Sanction

125. The Panel received both written and oral submissions on sanction from Ms Collins, on behalf of the HCPC. The written submissions were 6 pages long and ran to 21 paragraphs. The Panel does not intend to set out the submissions in full. However, the following extracts are relevant:

“Mitigating factors

7. At [25] the Policy states that:

Matters of mitigation are likely to be of considerably less significance in regulatory proceedings, where the overarching concern is the protection of the public, than to a court imposing retributive justice.

8. In terms of mitigating features the Registrant has no previous fitness to practice finding against her.

Aggravating factors

9. Aggravating facts are any features of a case which increase the seriousness of the concerns. The panel may think this case is aggravated by:

i) The fact inappropriate behaviour took place in front of other colleagues and service users.

ii) That the Registrant was Colleague A’s line manager.

iii) Colleague A was signed off work with stress for one week.

iv) Colleague A stated he resigned from his position as an indirect result of the Registrants behaviour.

v) The Registrant followed a pattern of unacceptable behaviour over a period of 3 months. You might think this repetition/ course of conduct leads to a greater risk of repetition and indicates the Registrant may lack insight.

10. Pattern of unacceptable behaviour

The Policy sets out at [49]:

“A repetition of concerns, or a pattern of unacceptable behaviour, leads to greater potential risks to the public, for a number of reasons such as:

• the fact the conduct or behaviour has been repeated increases the likelihood it may happen again; and

•the repetition indicates the registrant may lack insight.

At [50] Repeated misconduct or unacceptable behaviour, particularly where previously addressed by employer or regulatory action, is likely to require more serious sanctions to address the risks outlined above.”

The Panel have found within its decision although there was a risk of repetition that risk overall was relatively modest.

11. Lack of Insight, Remorse or Apology

The panel will need to consider the extent of the Registrants insight, remorse and apology when considering sanction.

In the panels determination they have found:

- The Registrant expressed remorse and offered an unconditional apology

-The panel found the Registrant has ‘some insight,’ all be it formed recently

- The Panel found the Registrant has taken some steps to remediate

If the Registrant lacks insight, remorse or apology the policy states;

At [51] Where a registrant lacks insight, fails to express remorse and / or refuses to apologise in a timely manner, they may pose a higher risk to service users.

At [52] Registrants who lack a genuine recognition of the concerns raised about their fitness to practise, and fail to understand or take responsibility for the impact or potential impact of their actions, are unlikely to take the steps necessary to 4 safeguard service user safety to address the concerns raised. For this reason, in these cases panels are likely to take more serious action in order to protect the public.

12. Serious Cases

As set out in of the Sanctions Policy [40], “There are some concerns which are so serious, that activities intended to remediate the concern cannot sufficiently reduce the risk to the public or public confidence. Despite the steps the registrant has taken to attempt to remediate the concern, the panel is still likely to impose a series sanction. These might include cases involving: Failure to work in Partnership [61-62]

13. Failure to work in Partnership. The policy sets out at [61]:

The Standards of conduct, performance and ethics require registrants to ‘work in partnership with colleagues’ for the benefit of service users (Standard 2.5).As a result registrants must share their skills, knowledge and experience with colleagues, and, where appropriate, relevant information about the care, treatment or other services provided to a service user.

At [62]: Cases where a registrant has therefore refused to cooperate with colleagues, whether that be the result of bullying, discrimination or dishonesty, are likely to result in a more serious sanction.

Available Sanctions

14. In this case given the nature of this case, bullying and humiliating behaviour towards a colleague, the Panel might think taking no action would be neither appropriate nor proportionate.

15. A caution you might think is unsuitable as likely to be appropriate where the issue is isolated, minor in nature, the registrant has shown good insight and undertaken appropriate remediation. You may think that is not the case here.

16. The Policy states that conditions of practice would only be effective in cases where the registrant is “genuinely” committed to resolving the concerns raised. They are unlikely to be suitable in cases where there are “serious” failings as set out above or where the deficiency is not capable of being remedied. The Sanctions policy sets out these are likely to be appropriate where the Registrant has insight and the Registrant does not pose a risk of harm by being in restricted practice. 5 As the policy at [109], “There may be circumstances in which a panel considers it appropriate to impose a conditions of practice order in the above cases (i.e Serious Cases). However, it should only do so when it is satisfied that the registrant’s conduct was minor, out of character, capable of remediation and unlikely to be repeated.

17. Any conditions if imposes should be appropriate to remedy the concerns raised and the panel should be assured that they mitigate any risk posted by the Registrant remaining in unrestricted practice [111].

18. Conditions should be workable and consider the Registrants practice setting, and not impose a condition, or combination of conditions, which effectively suspend the Registrants practice [114]. The relevant considerations here being that the Registrant is not currently practicing under her HCPC registration and is residing in India.

19. The Policy states that a suspension order is appropriate typically in cases where (among other things) “the registrant has insight,” “the issues are unlikely to be repeated” and “there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings…”

126. The Panel also heard submissions from the Registrant, in relation to sanction:

(a) She regretted not being legally represented, as she felt she lacked the appropriate legal language to address the Panel.

(b) She expressed remorse. It was emphasised that she would apologise for her misconduct to Colleague A. She accepted that she had committed misconduct and that there had been an impact from her behaviour on Colleague A. Had he approached her at the time, the issues could have been resolved via mediation.

(c) It was pointed out that her ability to undertake relevant training courses had been limited by her relocation to India. However, she had been involved in facilitating soft skills communication courses to staff in her current role, as set out above.

Panel’s decision on Sanction

127. 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.

128. 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 proper standards amongst registrants and public confidence in the profession concerned.

129. The Panel has identified the following mitigating features:

(a) The Registrant had a long and previously unblemished career as a physiotherapist.

(b) She is of good character. There is no evidence of any other regulatory concerns.

(c) The Registrant has engaged fully in these proceedings, despite having relocated to India and not currently practising as a physiotherapist.

(d) The Registrant has expressed remorse and offered to apologise to Colleague A.

(e) The Registrant has developed some insight. She has been involved in facilitating soft skills communication courses in her current role, as set out above.

130. The aggravating features are:

(a) The seriousness of the proven misconduct. Bullying and humiliating a colleague is very serious, particularly when this is done in front of colleagues and service users.

(b) There was a power imbalance between the Registrant and Colleague A. The Registrant as Colleague A’s line manager was in a position of authority over him.

(c) The Registrant’s actions had a significant impact on Colleague A, in terms of his health, confidence as a practitioner and career plans.

(d) Although the bullying/humiliation was a one-off event, in the sense it was only aimed at Colleague A, it was repeated over a number of months, forming an unacceptable pattern of behaviour.

131. In light of the above factors, the Panel determined that, given the serious nature of the Registrant’s misconduct and the findings set out above, 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.

132. A caution order would not be 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.

133. The Panel’s overall view was that the proven misconduct, bullying and humiliation could not be regarded as isolated, limited or relatively minor in nature. In addition, the Registrant’s insight, although developing, was only limited and could not be described as “good”.

134. The Panel next carefully considered whether to impose a conditions of practice order, having regard to the Sanctions Policy. The Panel concluded that conditions were not likely to be workable in a case where the Registrant had relocated to India and was not working as a physiotherapist.

135. In addition, the Panel had regard to paragraph 108 of the Sanctions Policy, which states that conditions are less likely to be appropriate in more serious cases, including those where there has been a failure to work in partnership. This includes cases of bullying, as set out in paragraph 62 of the Sanctions Policy.

136. Conditions might be appropriate in such a case, according to paragraph 109 of the Sanctions Policy, but only where the Registrant’s conduct was minor, out of character, capable of remediation and unlikely to be repeated. The Panel, considering its findings set out above, concluded that the Registrant’s conduct was not minor and that there was some risk of repetition, albeit low.

137. 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 mark the seriousness of the misconduct, protect the public and address the wider public interest concerns which the Panel identified.

138. 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.

139. The Panel determined that the Suspension Order should be imposed for a period of 9 months. This would allow the Registrant to take the steps identified below which might be of benefit to a future reviewing panel, as well as marking the seriousness of the proven misconduct and hence providing a suitable degree of public protection.

140. Having arrived at an appropriate sanction, the Panel concluded that to impose the more restrictive sanction of a striking off order would be disproportionate. The Panel noted that a striking off order 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.

141. Whilst in no way seeking to bind any future review panel, this Panel anticipates that the following matters are likely to be of assistance to any future reviewing panel:

(a) The Registrant should provide evidence of relevant CPD to address the issues identified in these proceedings, including for example, attendance at an effective communication or bullying/harassment course. Whilst recognising the difficulties posed by the fact that the Registrant has relocated to India, such courses might be available online.

(b) A reflective piece addressing the impact of her bullying and harassment on Colleague A, but also upon other colleagues in the multi-disciplinary team and the indirect effect on patient care.

(c) Written testimonials, directed towards the Registrant’s skills as a manager.

Order: That the Registrar is directed to suspend the registration of Ms Dinusha Arya for a period of 9 months from the date this order comes into effect.

Application for an Interim Order

1. Ms Collins, 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. She submitted that an order was necessary on public protection grounds and in the public interest, in light of the Panel’s findings.

2. The Registrant heard the application being made by Ms Collins, but thereafter declined to return to the hearing. The Registrant chose to voluntarily absent herself after the Panel handed down their decision on sanction.

Proceeding in Absence

3. The Panel considered whether it ought to exercise its discretion to continue with the interim order application in the absence of the Registrant.

4. The Panel concluded that it was in the public interest to do so, having considered the HCPC Practice Note on “Proceeding in the Registrant’s Absence”, having taken the Legal Assessor’s advice, and having considered the guidance in R v Jones [2002] UKHL 5 and GMC v Adeogba, R v Hayward [2001] EWCA Crim 168 and GMC v Visvardis [2016] EWCA Civ 162 and Sanusi v GMC [2019] EWCA Civ 1172.

5. The Panel concluded that the Registrant had chosen to deliberately absent herself from the interim order application part of the hearing. The Registrant has not applied for an adjournment, and it is unlikely that if the hearing was adjourned, she would attend on a subsequent occasion. The Panel concluded that it was in the public interest to proceed, given the nature of the interim order application, which was made on public interest grounds.

6. 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. The Panel has concluded that there is some ongoing risk of repetition, with only developing insight on the part of the Registrant. In addition, 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.

7. 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.

8. 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 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; or (if an appeal is made against the Panel’s decision and Order) upon the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Dinusha Arya

Date	Panel	Hearing type	Outcomes / Status
23/05/2023	Conduct and Competence Committee	Review Hearing	Voluntary Removal agreed
04/10/2022	Conduct and Competence Committee	Final Hearing	Suspended