Gotchagorn Mustow

Preliminary Matters

Service

1. The Panel was provided with evidence that the Notice of hearing letter had been served within an email sent to the Registrant at the email address registered by her with the HCPC. That Notice of hearing dated 5 April 2024 contained the correct details of today’s hearing. That Notice of hearing had also been sent to the Registrant’s Representative who confirmed that he and his client will waive the requirement for 28 days’ notice in consideration of the hearing being brought forward from 16 May 2024 as scheduled.

2. The Notice period from 5 April till today is 12 days and reflects that change of hearing date.

3. The Panel received advice from the Legal Assessor on the requirements for good service. She brought to the Panel’s attention that this was an application hearing for consent to a Voluntary Removal Agreement which is a non-statutory process adopted by the HCPC. It could be argued that this did not fall within the rules relating to service but in any event, the Panel has seen an email that the Registrant has waived their right to 28 days’ notice of this hearing by asking for an earlier hearing than was originally listed.

4. The Panel concluded that the information before it disclosed that there had been good service.

Proceeding in the Registrant’s absence

5. The HCPC submitted that the Registrant has voluntarily absented herself from the hearing and that this hearing should proceed in her absence. In support, the Presenting Officer in her skeleton argument had referred the Panel to an email from the Registrant’s representative dated 1 March 2024, (which predates the giving of the notice of this hearing) in which he stated that the Registrant was content for his email to be placed before the Panel. In that email he stated that the Registrant intends no disrespect to the Panel but, as she supports the HCPC’s application, she will not be attending the hearing or be represented. The Registrant’s Representative also states the Registrant was content for the HCPC’s application for a Voluntary Removal Agreement to be considered and confirmed by the Panel in her absence.
6. The Panel received legal advice and considered the matter carefully noting that it should exercise its discretion to proceed in the Registrant’s absence with extreme caution. The Panel has determined that it will proceed for the following reasons:
• The Registrant and her representative are aware of today’s hearing and given reasons for their absence.
• As the Registrant has noted, she is supportive of the application and so there is no reason for her to attend.
• Further, an adjournment would provide no benefit to the HCPC, the Registrant nor the public.

Background

7. On 4 February 2021, the HCPC received a referral in relation to the Registrant. That referral stated that the Registrant had been working as a locum physiotherapist at Morley Health Centre but, upon her leaving that post, her former colleagues noticed some issues with her practice.

8. Those issues related to the Registrant’s record keeping as well as her recording that she had carried out joint manipulation in circumstances where it would have been inappropriate for her to do so. There was also an allegation that she did not communicate professionally with a Service User.

9. On 31 March 2021, Locala Community Partnerships stated in a letter to the HCPC, that the Registrant had worked for them as a locum physiotherapist from 10 February 2021 to 22 February 2021. Her role had been as part of the Locala Discharge Team. Issues were raised in respect of her practice relating to not communicating in a professional manner with colleagues, and undertaking an assessment and physiotherapy session where she acted outside the scope of her role, in that she had not just assessed the patient but had additionally given treatment.

10. On 5 April 2023, a Panel of the Investigating Committee determined that there was a case to answer in respect of the following allegation, and referred the matter to the Conduct and Competence Committee:

As a registered Physiotherapist (PH79329) your fitness to practise is impaired by reason of your misconduct and/or lack of competence. In that:
1) Between 16 October 2020 and 07 December 2020, while contracted with Morley Health Centre, you did not keep complete and clear records for service users in that:
a. On 30 November 2020 and 07 December 2020 you did not capture full and clear records during your visit with Service User B in that they were brief and did not contain enough detail as expected of a Band 6 Physiotherapist.
b. On 07 December 2020 you did not capture full and clear records during your visit with Service User C in that they were brief and did not contain enough detail as expected of a Band 6 Physiotherapist.
c. On 16 October 2020, 23 October 2020 and 06 November 2020 you did not capture full and clear records during your visit with Service User F in that they were brief and did not contain enough detail as expected of a Band 6 Physiotherapist.
d. On 10 November 2020, 17 November 2020 and 07 December 2020 you did not capture full and clear records during your visit with Service User E in that they were brief and did not contain enough detail as expected of a Band 6 Physiotherapist.
e. On 01 December 2020 you did not capture full and clear records during your visit with Service User D in that they were brief and did not contain enough detail as expected of a Band 6 Physiotherapist.
f. On 02 December 2020 you did not capture full and clear records during your visit with Service User A in that they were brief and did not contain enough detail as expected of a Band 6 Physiotherapist.
2) Between 16 October 2020 and 07 December 2020, while contracted with Morley Health Centre you documented carrying out joint manipulations and/or mobilisations on service users with co-existing health conditions when it would be inappropriate to do so in that:
a. Between 16 October 2020, 23 October 2020 and 06 November 2020 you selected to treat Service User F, then 84 with osteopenia with spinal manipulation.
b. On 10 November 2020, 17 November 2020 and 07 December 2020 you selected thoracic and lumbar manipulation and mobilisation on Service User E’s left shoulder who had been referred due to left humeral fracture with presumed osteoporosis due to their age and previous fractures.
c. On 01 December 2020 you used spinal mobilisation on Service User D when contraindicated due to patients age and dementia.
d. On 02 December 2020 you completed manipulation of lumbar spine, pelvis and lower limbs on a Service User A with osteoporosis who had a physio treatment plan for manual therapy.
3) On the week commencing 09 November 2020, while contracted with Morley Health Centre, you did not communicate professionally with Service User G during your appointment when you called her feet dirty or words to that affect and raised your voice to them.
4) Between 10 February and 22 February 2021, while contracted with Locala, you did not communicate in an appropriate professional manner when:
a. You questioned the assessment of ward therapist of Colleague A in an unprofessional way and request their phone number.
b. You voiced your opinions of the ward therapy team in an unprofessional manner in an MDT, in Colleague B’s presence.
5) On 19 February 2021, whilst contracted with Locala as part of the Locala Discharge Team you completed an assessment and physio session and acted out of the scope of your role.
6) Your actions at allegations 1, 2 amount to lack of competence.
7) The matters set out in allegations 1, 2, 3, 4 and 5 above constitute misconduct
8) By reason of your misconduct and/or lack of competence your fitness to practice is impaired.

Submissions by HCPC in Support of Voluntary Removal

11. The HCPC helpfully set out its arguments in a Skeleton Argument which it relied upon at the hearing, adding little more by way of oral submissions. Those arguments were set out in two parts relating to the elements of public protection and public interest. Those submissions are set out below in italics.
Appropriate level of public protection
12. In the signed consensual disposal request pro-forma [page 180], the Registrant confirms that she admits the substance of the allegation and that her fitness to practise is currently impaired by reason of her misconduct/lack of competence. She confirms she would like

Voluntary Removal to be considered.

13. The Voluntary Removal Agreement [page 183 to 192] is signed by the Registrant and on behalf of the HCPC. This agreement confirms that the Registrant has admitted the allegation.

14. It is submitted that the Registrant’s admissions demonstrate that she has shown insight into her impaired fitness to practise.

15. The HCPC invite the Panel to conclude this matter on an expedited basis, pursuant to the Voluntary Removal Agreement, allowing the Registrant to resign from the Register, but on similar terms to those which would apply if the Registrant had been struck off.

16. It is submitted that, if this matter proceeded to a substantive hearing, the probable outcome would be the imposition of a conditions of practice order or suspension order. Therefore, the proposed disposal is in fact more restrictive than that outcome.

17. The notice of withdrawal [page 197 to 200] confirms that, if the Registrant at any time seeks to be readmitted to the HCPC Register, in considering any such application the HCPC shall act as if the Registrant had been struck off the register as a result of the Allegation.

18. The Registrant has confirmed within the consensual disposal request pro-forma that she has read the relevant practice note which confirms she would be treated as if she had been struck off the Register if she sought to be readmitted. In any event, within that form, she states that she has not practised since February 2021 and has no intention of practising again.

19. Therefore, if the Panel accedes to the application, the Registrant will no longer be able to practise as a physiotherapist, or use any title associated with that profession. As a result, it is submitted that adequate public protection will be secured.
Not detrimental to the wider public interest
20. Whilst an allegation that a Registrant’s fitness to practise is impaired on the basis of misconduct/lack of competence is a serious allegation, it is submitted that the case is not so serious that it cannot be dealt with on an expedited basis by way of Voluntary Removal.

21. Furthermore, there are no particular features of the case that would necessitate it being dealt with at a substantive hearing.

22. It is submitted that granting the application would be consistent with the wider public interest. A reasonably informed member of the public would be satisfied that, in the circumstances of this case, it is appropriate for the HCPC to withdraw proceedings on the basis the Registrant resigns from the register.

23. Finally, it is averred that it would not be in the public interest for this case to proceed to a substantive hearing. Given the Registrant’s admissions and her desire to no longer practise as a physiotherapist, it is submitted that this would be disproportionate and unnecessary.

Decision on Application

24. In her legal advice the Legal Assessor reminded the Panel that this process of voluntary removal is an extra statutory process which can produce a result that could be considered to be in the Registrant’s interests, as it removes her from the process of a final hearing. Conversely, it can also produce an outcome that may result in a more severe sanction for the Registrant, as they will be voluntarily removing themselves from a process that may not have resulted in a striking off order.

25. The Legal Assessor also advised that removal of the Registrant from the Register, therefore removing the potential for further harm to the public may also result in the reduction the overall expense to the public. However, those benefits should be weighed and balanced against the need to show that there has been due consideration of the issues and open justice where matters deem it necessary, and in the public interest for there to be full enquiry. In other words, the maintenance of confidence in the regulatory process.

26. There are no rules for this extra statutory process for disposal and the Panel should seek guidance from the HCPTS Practice Note. However, it was stressed by the Legal Assessor that this is guidance only and it is for the Panel to make its decision on whether to approve the Application based upon the information before it. One part of that decision making process will be, has the Registrant accepted the allegations and that her fitness to practise is currently impaired. The other part is whether the appropriate sanction proposed by the Application will provide public protection and be in the wider public interest.

27. She further directed the Panel to the following portion of the HCPTS guidance which stated:

The Health and Care Professions Council (HCPC) will consider resolving a case by consent:

• after an Investigating Committee Panel has found that there is a ‘case to answer’, so that a proper assessment has been made of the nature, extent and viability of the allegation;

• where the registrant is willing to admit both the substance of the allegation and that his or her fitness to practise is impaired. A registrant should not be prevented from resolving a case by consent simply because he or she disputes a minor aspect of the allegation. However, a registrant’s insight into, and willingness to address, failings are key elements in the fitness to practise process and it would be inappropriate to dispose of a case by consent where the registrant denied those failings; and

• where any remedial action proposed by the registrant and to be embodied in the Consent Order is consistent with the expected outcome if the case was to proceed to a contested hearing

28. The Panel noted that advice and accepted the submissions made by the HCPC. It also accepted that the Registrant was supportive of the Voluntary Removal Application.
29. The Panel noted that the HCPTS Practice Note on Disposal of Cases by Consent, dated March 2018, identified that the disposal of a case by consent can provide a fairer method of concluding a case, which reduces the time taken to deal with allegations. However, that consideration should be balanced with the HCPC’s overarching statutory objective which is the protection of the public, a Panel should not agree to a case being resolved by consent unless it is satisfied that:
- The appropriate level of public protection is being secured and
- Doing so would not be detrimental to the wider public interest.

30. The Practice Note also highlights that a Panel may reject the proposed consensual disposal and set the case down for a full substantive hearing. The Panel therefore gave careful consideration to the HCPC bundle of evidence that will assist it in making that decision.

31. The Panel further noted that before considering the issue of a consent order it should satisfy itself, as set out in that HCPTS guidance, 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 and
- Has made clear to the Registrant concerned that co-operation and participation in the consent process will not automatically lead to the Voluntary Removal being approved.

32. In relation to the documentation before this Panel, within the HCPC bundles were the following:
• Bundle of evidence placed before the Investigating Committee Panel and the Registrant’s Representations to that Panel.
• Correspondence between Capsticks, the HCPC’s solicitors instructed in this matter, and the Registrant’s representative dated 15 February 2024. Within this is the statement that the request has been approved by the Head of Fitness to Practise but “as you will be aware, a Panel will still need to meet to consider this matter at a VRA hearing, but at this hearing, the HCPC will ask the Panel to agree to a Consent Order”.
• The signed consensual disposal request pro-forma, in which the Registrant confirms that she has read the relevant HCPTS Practice Note on Disposal of Cases by Consent.

Issues arising from the paperwork before the Panel

33. The Panel found reference within the HCPC bundle to documentation produced by the Registrant. That documentation evidenced the fact that the Registrant had been the subject of previous HCPC proceedings which had resulted in a Conditions of Practice Order for a period of twelve months. That Conditions of Practice Order had been discharged upon review after the twelve month period. This information about previous proceedings had been before the ICP in 2021 by virtue of inclusion within the Registrant’s submissions to that panel. It is not known however what consideration that panel gave to those previous proceedings, nor the extent to which those proceedings had been considered by, and included within, the HCPC decision to pursue a VRA.

34. The Panel noted that the HCPC Skeleton Argument raised the issue of public protection, something which would be achieved by the adoption of a VRA. Given the concerns about the Registrant’s clinical judgment in going beyond her remit of providing an assessment service and providing treatment to vulnerable elderly service users the Panel considered whether this matter had been considered as a case appropriate for the imposition of an Interim Order.

35. The Panel noted from the documentation produced by the Registrant that she had initially denied the allegations. This was clearly set out in full in her representations to the Investigating Committee. Further from the information within the bundle it appeared that the Registrant had not worked in any capacity due to the effect that the HCPC proceedings had upon her employment potential. It was evident that the Registrant had been making efforts to obtain work. This raised two issues. First, where was the evidence for the submission that the Registrant had accepted the allegations and her impairment of fitness to practise and secondly, evidence of her stated intent to leave her profession and why.

36. As a result of these considerations during its deliberations the Panel requested the HCPC for further information on the following matters:
• Whether the consideration of a VRA had been with the knowledge of previous conduct proceedings in 2012 and 2013 arising from events in 2010, and to what degree those previous proceedings had been reflected in the decision to pursue a VRA;
• What distinguished and supported this conduct and competence case as one appropriate for the use of a VRA;
• Whether there had been consideration of an Interim Order as appropriate in this matter.

37. The HCPC informed the Panel that those previous conduct and competence proceedings had not been known or taken into consideration by the case manager and the Head of Fitness to Practise at the time of making this application for consent to a VRA.

38. The Panel was informed that the knowledge of those previous conduct proceedings had not altered the HCPC’s position that this was a matter suitable for disposal by consent. Reasons for that unchanged position were:
• the extent of the period between the two cases, which was over ten years:
• the issues raised in that previous allegation were different from those of this hearing, which were described as mostly record keeping matters.

39. The Panel was informed that the HCPC position was also unchanged in relation to this matter being suitable for a VRA. It was stated that the Panel should consider each consent order application on its individual merits, and it was not appropriate when using this consent order procedure to make a comparison of cases. It was emphasised that this process was available for those who sought to adopt this route and there was supporting evidence that the Registrant had made the appropriate request for this matter to be considered for a VRA and that this had gone through the appropriate internal process.

40. The Panel was also informed that an Interim Order Application had not been considered.

Decision

41. The Panel has reached its decision to reject this application on two bases. First, there is insufficient information before this Panel that the Registrant’s case fulfils the criteria for a consent order being granted. Secondly, there was information before this Panel which supported the position that the public interest would not be served by this course of action, and that it would be better served by a full exploration of the factors at a final hearing.

42. In reaching its decision on the first limb, evidence to support a VRA, the Panel’s decision reflected the following:
• There was nothing within the documentation that supported the submission why the Registrant has now accepted the allegations and that her position on this has changed from March 2023. The only evidence was her response to the ICP that she denied all the allegations.
• There is nothing to support the position that she has accepted that her current fitness to practise is impaired and why she now does so.
• There is evidence that the Registrant had been seeking employment, but the existence of these proceedings had thwarted those endeavours. Whilst the Registrant may have accepted that she is unable to find work, there is nothing to support the position that she has made an informed, considered, and voluntary decision to leave her profession.
• The evidence of two conduct and competence issues supported the position that there was insufficient insight into the Registrant’s actions.

The Panel refused the HCPC's applcation for a Voluntary Removal Agreement. 

No notes available

History of Hearings for Gotchagorn Mustow