Mrs Viktoria Zambori

SUMMARY
Decision of the Health and Care Professions Tribunal, sitting as the Conduct and Competence Committee of the Health and Care Professions Council.

Allegation (as amended and found proved at Final Hearing):

As a registered Physiotherapist (PH118922) your fitness to practise is impaired by reason of misconduct and/or lack of competence. In that:

1. Between 2 December 2019 and 28 January 2020, you:
a. Did not correctly assess whether patients were safe to be seen;
b. Were not able to practice autonomously;

2. Between 2 December 2019 and 28 January 2020, on two separate occasions you did not follow a care plan and/or instructions as required, in that:
a. You carried out a full body wash and dressing on a patient without being instructed to do so.
b. You provided water to a patient who had been assessed as requiring thickened fluids only.

3. Between 2 December 2019 and 28 January 2020, you communicated in a discriminatory and/or inappropriate manner by:
a. Asking whether a patient had a stroke because they were fat;
b. Telling colleagues, after an assessment, that you thought a patient’s “life was over” and that “there was no point” or words to that effect; (partially proved)
c. Commenting that you were uncomfortable working with gay patients who have HIV.

4. The matters set out in allegations 1 & 2 constitute lack of competence.

5. The matters set out in allegation 3 constitutes misconduct.

6. By reason of your misconduct and or lack of competence your fitness to practise is impaired.

Preliminary Matters
Service

1. The Notice of Hearing was sent to the Registrant, by email, to her registered email address on 9 March 2023 informing her that there would be an application to review the substantive order today at a video hearing. A Certificate of Service has been provided. It was subsequently confirmed that this hearing would be altered from a substantive review hearing to a voluntary removal hearing. The Panel was satisfied that there had been proper service of the notice of hearing.

Proceeding in the Absence of the Registrant

2. Ms Snookes on behalf of the HCPC applied for the hearing to proceed in the Registrant’s absence. The Panel was referred to the email from the Registrant dated 8 February 2023 in which it was stated ‘My suspension will be expiring in March, so then I would like to come off the Registration if it is possible, please? What do I need to do?’.

3. On 3 March 2023 the case manager responded to the Registrant to acknowledge receipt of the request and to provide further information about the process. The information included the Practice Note for Disposal by Consent and copy of a pro forma response for the Registrant to complete.

4. On 9 March 2023, the HCPC case manager sent a further email attaching the Voluntary Removal Agreement, which was signed and sent back by the Registrant on the same day. The Registrant also confirmed that she would not be attending the hearing on the 17 March 2023 as it was not mandatory. The Registrant is clearly aware of today’s hearing. An email was received from the Registrant on 17 March 2023 advising that she will not be attending the hearing.

5. The Registrant has been provided with detailed information about the consent process and the effect of voluntary removal from the Register, should the application be granted. The Registrant has had time to review this information and query its implications with the HCPC.

6. Ms Snookes submitted that the Registrant was aware of today’s hearing and had voluntarily absented herself and that no application had been made for an adjournment. She submitted that it would be fair and in the interests of justice to proceed in her absence.

7. The Panel had regard to the HCPTS Practice Note on “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor. The Panel was mindful that today’s application is for a voluntary removal agreement order which, if granted, would serve to protect the public interest, including the protection of the public.

8. The Panel finds that the Registrant was served in accordance with the
Procedure Rules. The Panel is satisfied that good service of notice of today’s hearing has been effected. The Panel considered that the Registrant had voluntarily absented herself, that an adjournment would be unlikely to secure the Registrant’s attendance at a future date and that no useful purpose would be served by an adjournment. In all the circumstances the Panel decided that it was fair and in the interests of justice to proceed with the hearing in the absence of the Registrant.

Background

9. The Registrant is a registered Physiotherapist, who is a Hungarian national. The Registrant obtained her physiotherapy degree in 2013. She came to the UK in 2014. She had not practised as a Physiotherapist either in Hungary or the UK.

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

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

12. The Registrant’s management structure at NHS Tayside is set out below:
(a) The Physiotherapy/Occupational Therapy service manager for the Trust was GC.
(b) In December 2019, CT was the Physiotherapy Team Lead working from Royal Victoria Hospital. His was the Medicine for the Elderly and Stroke Rehabilitation team. He provided the Registrant’s physiotherapy supervision.
(c) The Registrant then transferred to the acute hospital, Ninewells, where she worked in medical services providing generic support work services to the Occupational Therapy and Physiotherapy Service.
(d) KR was the Occupational Therapy Team Lead and NC provided the Registrant with OT clinical supervision.

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

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

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

16. GC raised a number of concerns about the Registrant’s competence and had told her she would contact the HCPC to raise her concerns, prior to her resignation.

17. At the outset of the final hearing the Registrant denied each of the Particulars (with the exception of Particular 2(b) which she admitted). She alleged that the allegations made against her were false, and the HCPC’s witness evidence was “revenge” as she had instigated Employment Tribunal proceedings against her former employer and two of the witnesses GC and KR.

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

19. The final panel heard the case between 14-16 and 18-21 March 2022.

20. In its consideration of the particulars 1-2 of the Allegation, the panel concluded that the Registrant’s actions amounted to a lack of competence, being that the standard of her professional capacity was unacceptably low and which has been demonstrated by a reference to a fair sample of her work. The panel went on to say that there existed a lack of competence for the following reasons:
a. There was a significant gap in the Registrant’s knowledge, some of which was fundamental to practice as a Physiotherapist.
b. The Registrant had not taken any real steps to fill the knowledge gap with relevant continuing professional development (CPD) or work experience.
c. The panel had regard to the evidence from CT that had the Registrant been on a Physiotherapy placement as a student she would have failed the clinical assessment.
d. The panel was also mindful of CT’s evidence that the Registrant had ‘no baseline knowledge’ and lacked awareness of appropriate boundaries and or limitations.
e. The evidence from SS was that there was a lack of knowledge around stroke patients.
f. The panel also had regard to the Registrant’s admissions, in evidence that she was not able to correctly and consistently assess if patients were safe to be seen or practice autonomously.
g. The panel concluded that it had seen evidence of a fair sample of the Registrant’s work, as set out in the factual findings.

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

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

23. The panel found that the Registrants' fitness to practise was currently impaired. It imposed a suspension order for 12 months. The panel had regard to the limited degree of insight on the part of the Registrant but concluded that the identified failings were potentially capable of being remedied in the future if the Registrant engaged with a future review Panel. The panel stated that any future reviewing panel would likely be assisted by:
(a) The Registrant should seek to identify a HCPC registered Physiotherapist who could provide her with mentoring and support.
(b) As part of the mentoring support, a professional development plan should be drawn up and commenced, with the aim to identify steps which could be taken to prepare the Registrant for a return to practice.

Submissions made by HCPC

24. Ms Snookes adopted the representations advanced in the skeleton argument dated 13 March 2023 and advised the Panel that prior to the first review of the substantive suspension order the Registrant contacted the HCPC asking to be removed from the Register.

25. The statement in support completed by the Registrant states ‘Dear Panel The reasons of the voluntary removal application are I am out of the physiotherapy profession 9 years ago. I have been working as a carer 3 years by now and my job is very stable ever since. Also, to organise supervised physiotherapy practice is very challenging, almost impossible in Scotland. I cannot move to England in those days, where there could be more availability for that purpose. Furthermore, I have not managed to decide yet whether I will return to the physiotherapy profession or not. Thank you very much for your consideration’.

26. The Voluntary Removal Agreement is an agreement to the effect that the HCPC will not take any further action against the Registrant in relation to this matter on the understanding that she will remove herself from the Register and cease from practising as a Physiotherapist.

27. If the Registrant were to apply to come back on to the Register, their application would be treated in the same way as someone who had been struck off.

28. The HCPC submits that, in all the circumstances, voluntary removal from the Register would be an appropriate means of resolving these proceedings.

29. Following the hearing outcome, the Registrant has not expressed a desire to continue to practise in the future and expressed a wish to be removed from the Register. Further, she has admitted the substance of the allegations and impairment in the following terms ‘(the Registrant) was the subject of an allegation in relation to matters of inadequate practice and inappropriate communication during the course of their employment as a Physiotherapist with NHS Tayside at Royal Victoria Hospital. The matter was considered by way of a Substantive Order by HCPC’s Conduct and Competence Committee on 14 -16 & 18, 21 March 2022 and a Suspension Order for a period of 12 months was made against the Registrant. The Registrant has now admitted the allegation and has undertaken not to practise as a Physiotherapist. If the Registrant seeks to return to the HCPC Register at any time the application would be treated as if the Registrant had been struck off as a result of that allegation’.

Legal Assessor’s Advice

30. The Practice Note on Disposal by Consent states that a Panel should not agree to resolve a case in this way unless it is satisfied of two things: firstly, that the appropriate level of public protection is being secured and, secondly, that doing so would not be detrimental to the wider public interest.

31. In Cohen v GMC the High Court stated that there are “critically important public policy issues” which must be taken into account by Panels in fitness to practise proceedings, including the ‘public’ component of impairment which requires consideration of the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

32. Disposal by consent does not affect the Panel’s powers or the range of orders available to them, it is merely a process by which the HCPC and the Registrant concerned may propose what they regard as an appropriate outcome to the case. If a Panel is content to do so, it may conclude the case on an expedited basis, upon the terms of the Voluntary Removal Agreement. Equally, it may reject that proposal and the case would return to the substantive order review cycle.

33. Panels retain the option of rejecting a proposal for disposal by consent. Consequently, before considering a draft Consent Order, a Panel should satisfy itself that the HCPC:

• has provided a clear, appropriately detailed and objectively justified explanation within its supporting skeleton argument of why the matter is suitable for disposal by consent on the terms set out in the draft Consent Order; and
• has made clear to the registrant concerned that co-operation and participation in the consent process will not automatically lead to a Consent Order being approved.

34. The HCPC’s governing legislation (Rule 12(3) of the Health and Care Professions Council (Registration and Fees) Rules 2003) prevents a registrant from resigning from the HCPC register whilst the subject of an allegation or suspension order.

35. In cases where the HCPC is satisfied that it would be adequately protecting the public if the Registrant was permitted to resign from the Register, it may enter into a Voluntary Removal Agreement allowing the Registrant to do so, but on similar terms to those which would apply if the Registrant had been struck off. In cases where a suspension order is in place, such an agreement cannot take effect unless a Panel revokes the order. In such cases the HCPC will ask it to revoke any existing order. As with consensual disposal, a Panel should only agree to revoke an existing order where it is satisfied that voluntary removal would secure an appropriate level of public protection and would not be detrimental to the wider public interest.

Decision on Application

36. The Panel accepted the advice of the Legal Assessor and concluded that the wider public interest would not be put at risk should this matter be disposed of by way of consent. The public would not be concerned, nor would public confidence in the profession be put at risk if the Panel agrees voluntary removal.
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37. The Registrant has admitted the substance of the Allegations and that her fitness to practise is currently impaired. As she agrees to removal from the Register and could not reapply for at least five years the Panel is satisfied that this would provide the appropriate level of public protection as she would not be able to practise as a Physiotherapist during this period. The Panel is also satisfied that this course of action would not be detrimental to the wider public interest.

38. The Panel has therefore concluded that it is appropriate to dispose of this matter in accordance with the terms of the Voluntary Removal Agreement as attached to the application and that this is a suitable, pragmatic, proportionate and expeditious way of dealing with this matter.

The Panel therefore agrees to revoke the existing suspension order and approve the Registrant’s voluntary removal from the Register on the terms within the agreement with effect from today.

No notes available

History of Hearings for Mrs Viktoria Zambori