Ishwari Sen

Profession: Physiotherapist

Registration Number: PH68151

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 14/12/2015 End: 17:00 17/12/2015

Location: ETC Venues, Avonmouth House, 6 Avonmouth Street, London, SE1 6NX

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

During the course of your employment as a Physiotherapist with United Lincolnshire Hospital NHS Trust:

 

1. On 02 June 2014, upon observation of injuries to Patient A and receipt of information regarding the welfare of Patient A from Patient A's Grandmother:

 

a) You did not notify and / or passed this information on to your manager; and/ or

b) You did not make a safeguarding referral.

 

2. You sent a letter to Patient A's General Practitioner dated 13 June 2014 regarding the injuries observed and information you received described in paragraph 1:

 

a) Without referring the matter to a paediatric consultant to confirm the injuries were due to abuse.

b) 11 days after the appointment.

 

3. You did not make a safeguarding referral to your manager regarding Patient A despite 2 further calls from Patient A's Grandmother on:

 

a) 05 June 2014; and

b) 09 June 2014.

 

4. The matters described in paragraphs 1 - 3 constitute misconduct and/or lack of competence.

 

5. By reason of that misconduct and/or lack of competence your fitness to practise is impaired.

Finding

Allegations (As amended at Final Hearing)

During the course of your employment as a Physiotherapist with United Lincolnshire Hospital NHS Trust:

1. On 2 June 2014, upon observation of injuries to Service User A and receipt of information regarding the welfare of Service User A from Service User A's Grandmother:

a) You did not notify and/or pass this information on to a manager; and/or;
b) You did not speak to the Safeguarding team for advice, and/or;
c) You did not contact Children’s Services for advice.
2. On 5 June 2014, upon receipt of a telephone call from Service User A’s Grandmother regarding the welfare of Service User A:

 a) You did not notify and/or pass this information on to a manager and/or;
 b) You did not speak to the Safeguarding Team for advice, and/or
 c) You did not contact Children’s Services for advice.

3. On 9 June 2014, upon receipt of a telephone call from Service User A’s Grandmother regarding both Service User A and his sister’s welfare:

 a) You did not notify and/or pass this information on to a manager; and/or
 b) You did not speak to the Safeguarding Team for advice, and/or
 c) You did not contact Children’s Services for advice.

4. You sent a letter to Service User A’s General Practitioner dated 13 June 2014 regarding the injuries observed and information you received described in paragraph 1 a), in which you made inappropriate assertions as to the cause of Service User A’s injuries that were beyond your remit.

5. You sent the letter 11 days after the appointment with Service User A during which safeguarding concerns were first reported to you by his Grandmother:

6. The matters described in paragraphs 1-5 constitute misconduct and/or lack of competence.
 
7. By reason of that misconduct and/or lack of competence your fitness to practise is impaired.

Preliminary Matters


1. The Registrant was present and represented by Mr Nick Toms, instructed by Messrs Thompsons, Solicitors. The Health and Care Professions Council (HCPC) was represented by Mr Jean-Jack Chalmers of Kingsley Napley, Solicitors. The Registrant admitted the facts of the allegation and admitted the facts were sufficiently serious to amount to either lack of competence or misconduct.


2. The Panel thereafter considered Mr Chalmers’ application to make the following amendments:-
• Particular 1 – deleting the word “patient” and substituting the words “service user” on three occasions in the stem of particular 1.
• Particular 1a) – deleting the word “passed” and substituting the word “pass”; deleting the word “a” and substituting the word “your”.
• Particular 1b) – deleting the words “make a safeguarding referral” and substituting the words “speak to the Safeguarding Team for advice and/or”.
• Inserting a new particular 1c) as follows – 1c) “You did not contact Children’s Services for advice”.
• Deleting particulars 2 and 3 and substituting the following –


2) “On 5 June 2014, upon receipt of a telephone call from Service User A’s Grandmother regarding the welfare of Service User A:
a) You did not notify and/or pass this information on to a manager; and/or
b) You did not speak to the Safeguarding Team for advice, and/or
c) You did not contact Children’s Services for advice.

  
3) On 9 June 2014, upon receipt of a telephone call from Service User A’s Grandmother regarding both Service User A and his sister’s welfare:
a) You did not notify and/or pass this information on to a manager and/or 
b) You did not speak to the Safeguarding Team for advice, and/or
c) You did not contact Children’s Services for advice.
New particulars 4 and 5 as follows:-
4) You sent a letter to Service User A’s General Practitioner dated 13 June 2014 regarding the injuries observed and information you received described in paragraph 1 in which you made inappropriate assertions as to the cause of Service User A’s injuries that were beyond your remit.
5) You sent the letter 11 days after the appointment with the Service User during which safeguarding concerns were first reported to you by his Grandmother, as follows:-
6) The matters described in paragraphs 1-5 constitute misconduct and/or lack of competence. 

7. Mr Chalmers advised that the amendments served to clarify the case against the Registrant and that notice of these amendments had been served on the Registrant on 19 March 2015. He also advised that the Registrant’s written submissions had been made following notice of these amendments. He stated that given the nature of the amendments, there would be no prejudice caused to the Registrant in granting the application.


8. Mr Toms, on behalf of the Registrant confirmed that notice of the amendments had been served on the Registrant and that he had no objection to the amendments. He advised that the Registrant had addressed these amendments in her written response.


9. The Panel considered the submissions of Mr Chalmers, Mr Toms and the advice of the Legal Assessor. The Panel was satisfied that amendments served to clarify the case the Registrant has to answer, better reflected the evidence and did not alter the nature of the allegation.  The Panel was therefore satisfied that the amendments could be made without causing any prejudice to the Registrant and agreed to grant the application.


Background

10. The Registrant was employed by United Lincolnshire NHS Trust as a Band 6 Paediatric Physiotherapist based at Lincoln County Hospital. She commenced her role on 11 October 2010 and was responsible for children admitted to the hospital paediatric wards in need of physiotherapy intervention and those attending as outpatients. She was also the Physiotherapy Children’s Safeguarding Champion.  

 
11. Service User A was referred to the Physiotherapy Department by his GP in March 2014 having had a two to three year history of right parascapular pain.


12. On 2 June 2014 Service User A attended a physiotherapy appointment with his grandmother. The appointment was with the Registrant. During the appointment the Registrant made a note that the grandmother alleged that Service User A had undergone physical abuse over a four year period by his mother’s boyfriend. It was noted that there was a reference to pulling Service User A’s ankles to the floor from a bunk bed, and the grandmother was enquiring as to whether the pain in his shoulder could be caused by this.

13. Following this, on 5 June 2014 the Registrant made a note of a telephone conversation with the grandmother in which the grandmother informed her that there was a history of physical trauma at the end of December 2013 involving the boyfriend of Service User A’s mother. She claimed that an injury to Service User A’s arm was caused by a fall and his mother had lied about the circumstances to the authorities.


14. On 9 June 2014 there was a further note by the Registrant which referred to another call from Service User A’s grandmother. The grandmother requested that the Registrant write a report and forward it to Service User A’s GP for use in court proceedings concerning Service User A.  During that telephone call the grandmother also disclosed that Service User A had a two and a half year old sister who was also being physically abused by the mother’s boyfriend.


15. On 13 June 2014 the Registrant sent a letter to Service User A’s GP.  In the letter she outlined the information that the grandmother of Service User A had disclosed to her on 2 June 2014 and in the subsequent telephone calls. At the end of the letter the Registrant concluded that she was “inclined to feel that the injuries…….may have been caused following the abuse”.


16. It is alleged that the Registrant did not follow the Hospital Trust’s Protocol set out as a Pathway, in particular by not notifying her manager and/or the Safeguarding Team and/or Children’s Services and sent a letter containing an inappropriate opinion to Service User A’s GP. Matters came to light when both Service User A’s mother and Social Services wrote to the hospital expressing concern regarding the Registrant’s letter to the GP. 


17. SE, Site Lead Physiotherapist, was appointed to investigate the matter. It did not proceed to a disciplinary hearing as the Registrant had submitted her resignation to the Trust on 15 July 2014 which was effective on 15 August 2014. 


 Decision on Facts


18. The Panel heard live evidence from two witnesses on behalf of the HCPC; CB, Physiotherapist, Clinical Specialist Physiotherapist with the Women’s Health and Children’s Physiotherapist Team and MF, Team Lead Physiotherapist in Outpatients with the Physiotherapy Department, both of whom were employed by United Lincolnshire County Hospital. The Panel also considered the written statements of NE, Head of Planned Care and Senior Business Manager with the Clinical Support Services based at Grantham Hospital and Sean East, Site Lead Physiotherapist at United Lincolnshire Hospitals NHS Trust. The Panel considered these two statements as hearsay evidence. The matters contained within their statements were not challenged by the Registrant.  The Panel also heard evidence from the Registrant. In addition the Panel considered all of the written documentation produced by the HCPC and by the Registrant which included a training certificate and  very positive testimonials from professional colleagues and patients.


19. The Panel has heard evidence in support of particulars 1 to 5 from two live witnesses and has considered the statements of two further witnesses. All four witnesses have given consistent accounts and their evidence has been largely unchallenged. The Panel has also had sight of documentation which supports that evidence, including the Registrant’s letter to the GP dated 13 June 2014, the case notes for Service User A written by the Registrant, the United Lancashire Hospitals NHS Trust Policy for Safeguarding Children and Young People and the Trust’s Safeguarding Children Referral Pathway. In addition the Registrant has made very clear admissions to the factual allegations in particular 1 to 5. The Panel therefore finds that the facts of particulars 1 to 5 are proved to the requisite standard.

Decision on Grounds


20. The Panel next considered whether the Registrant’s actions as set out in particulars 1 to 5 of the allegation amount to misconduct and/or lack of competence. The Panel has heard that the Registrant is an experienced physiotherapist who was the Physiotherapy Safeguarding Children’s Champion and as such had additional training in safeguarding. The Registrant was also responsible taking the lead in staff meetings on safeguarding issues and for providing advice to other staff in relation to potential safeguarding issues. The Registrant has given evidence that she has experience of putting her training into practice and had provided advice to colleagues on safeguarding issues. The Panel has had sight of Service User A’s medical notes following the telephone call on 9 June 2014 in which the Registrant has recorded a plan to liaise with the Safeguarding Team. It is clear from this and from her evidence that the Registrant knew what she should have done and failed to do so, having made an assumption that the information provided by Service User A’s grandmother was accurate, namely that Social Services were already engaged and court proceedings were ongoing. The Panel is therefore satisfied that the Registrant had the necessary knowledge and skills and does not find that her actions resulted from a lack of competence.


21. The Panel is of the view that the Registrant’s conduct fell well short of what would be proper in the circumstances and breached the following standards of the HCPC’s Standards of Conduct, Performance and Ethics:-
Standard 1 – You must act in the best interests of service users.
Standard 6 – You must act within the limits of your knowledge, skills and experience and if necessary, refer the matter to another practitioner.
Standard 13 – You must behave with integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.


22. Health care professionals have an important role in safeguarding. It is clear from the evidence that the Registrant knew the process she had to follow, the documentation was easily accessible and that it was a simple procedure to contact a manager, the Safeguarding Team or Children’s Services.  The Registrant received training on a number of occasions prior to this incident, the most recent being in February 2014 and further training in July 2014 and still failed to act in accordance with the Trust’s Safeguarding Policy when a disclosure was made to her. Information was disclosed to her on three separate occasions and she failed to follow the Safeguarding Pathway Referral on each of these occasions. There was a gross misjudgement on the part of the Registrant in relying on the grandmother’s word. The point of safeguarding is not to take information at face value and to share information with other agencies to allow this to be cross checked. The Registrant’s actions potentially left Service User A and his sister at risk of harm. The Registrant’s explanation of relying on the grandmother’s word does not apply to events on 9 June 2014 when the Registrant recorded her intention of speaking to the Safeguarding Team but still failed to do so for which she had no explanation.


23. The contents of the Registrant’s letter to the GP were seriously inappropriate in expressing an opinion which was outwith her scope of practice, particularly so where the Registrant was aware the letter was to be used for the purposes of court proceedings where significant decisions are made about the welfare of children. In addition, the Registrant’s letter caused inappropriate and unnecessary concerns for both Service User A’s mother and Social Services.


24. The 11 day delay in taking any action was completely unacceptable and potentially put children at risk of harm. Action should have been taken on the day the information was first disclosed. The Registrant has accepted that her actions were serious. In the Panel’s view, the Registrant’s actions were indeed serious and therefore amount to misconduct.


Decision on Impairment


25. The Panel next considered whether the Registrant’s current fitness to practise is impaired by that misconduct. In reaching its decision the Panel has considered both the personal component and the public component.

26. In terms of the personal component, the Registrant has fully engaged in the process and made full admissions of the facts at the outset. She has demonstrated some insight both in her written statement and in her live evidence. However she has been unable to fully explain to the Panel why she made the misjudgement of relying on the information provided by the grandmother when, in safeguarding, the crux of the matter is not to take information at face value and to share with other professionals who are in a position to check the information. The Registrant has advised the Panel that she is sorry for her actions and has demonstrated some remorse and an understanding of the potentially serious consequences of her failure to act.  However in the Panel’s view, the remorse appears to relate more to the writing of the letter to the GP as opposed to her failure to act. The Registrant has not been able to provide a satisfactory explanation for the delay of 11 days in writing the letter nor has she been able to explain why she recorded in the notes of 9 June 2014 that she would contact the Safeguarding Team and did not do so until 31 July 2014.


27. The Registrant has produced evidence of one e-learning module of refresher safeguarding training which she undertook on 5 October 2015. The Panel is of the view that given the severity of the Registrant’s failings, her limited evidence of training and reflection is insufficient for her to have fully remediated her failings. The Panel is aware that the Registrant is now working in private practice and has advised in her evidence that she would now adopt a different approach to reporting any safeguarding concerns. However having explored this with her, the Panel found that she did not give confident fulsome answers as to how she would do things differently, particularly given that she is now in private practice. Taking all of these matters into account, the Panel is of the view that there remains a risk of repetition. 


28. The Panel has also considered the critically important public policy issues which include the collective need to maintain public confidence in the profession and in the regulatory process, the protection of service users and the declaring and upholding of proper standards of behaviour.


29. The Panel is of the view there is a serious risk of an adverse impact on public confidence in the profession of physiotherapists as a result of the Registrant’s conduct. This is particularly important where the Registrant was the Children’s Safeguarding Champion. The safeguarding of children forms an integral part of the care offered by health professionals. While there is no evidence of actual harm caused to either Service User A or his sister, the consequences of failing to follow proper procedures could have placed these children at risk of harm. The Registrant’s behaviour constituted a serious departure from the standards expected of a health professional and the Panel determines that 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 these circumstances.


30. The Panel therefore finds that the Registrant’s current fitness to practise is impaired by her misconduct and the allegation is well founded.


Sanction


31.  The Panel has heard further submissions from Mr Chalmers and Mr Toms on the issue of sanction. The Panel is aware that the function of fitness to practise panels is not punitive, and that the primary function of any sanction is to address public safety from the perspective of the risk the Registrant may pose to those using or needing her services in the future. In reaching its decision, the Panel must also give appropriate weight to the wider public interest considerations, which include the deterrent effect on other registrants, the reputation of the profession and public confidence in the regulatory process.  The Panel has considered the sanctions available to it in ascending order of severity and has had regard to the HCPC’s Indicative Sanctions Policy and considered the advice of the Legal Assessor. The Panel has also considered the submissions on behalf of the HCPC and the Registrant.

 
32.   The Panel has paid careful regard to the following mitigating factors: the Registrant  has acknowledged her conduct at the earliest opportunity, has engaged fully with the HCPC, has made full admissions to the Panel and in doing so demonstrates a degree of insight; she has recognised the seriousness of her failings; she has had a previously unblemished career with no previous disciplinary issues or matters before the HCPC; the Registrant has produced positive testimonials from fellow professional and patients, albeit they do not all address specifically the issues in this case. 

 
33.   The Panel has also considered the aggravating factors as follows: the Registrant’s actions had the potential to leave vulnerable service users at risk of harm; her actions had an adverse impact on Service User A’s mother and Social Services; the Panel has identified a risk of repetition; there is a serious risk of an adverse impact on public confidence in the profession; the Registrant was in a leadership role in relation to safeguarding, and had additional safeguarding training;  the potential impact of her actions on the integrity of any court process; whilst Service User A’s Registrant acknowledged that she placed undue reliance on what she was told by the grandmother, she identified the need to contact the safeguarding team on 9 June 2014, yet has not been able to provide a satisfactory explanation as to why she did not take this action. 


34.   The Panel first considered whether to take no further action. It is of the view that this would not be sufficient to protect the public or to address the wider public interest considerations, given the risk of repetition and the seriousness of the Registrant’s conduct.

35.   The Panel next considered a Caution Order. In terms of the Indicative Sanctions Policy, a Caution may be appropriate where the lapse is isolated or of a minor nature, there is a low risk of recurrence and the Registrant has shown insight and taken remedial action. The Registrant has demonstrated some insight and has some evidence of remediation. However the Panel has found that there is a risk of repetition and this would not be addressed by a Caution Order.  In addition the Panel is of the view that a Caution would not be sufficient to address the critically important public policy issues.  In these circumstances, the Panel is of the view that a Caution would not be an appropriate or proportionate sanction.


36.   The Panel next considered a Conditions of Practice Order. The Panel has identified an area in the Registrant’s practice which is capable of being remedied. There is no evidence of a persistent or general failure which would prevent the Registrant from addressing these issues. The Panel is of the view that a Conditions of Practice would be an appropriate and proportionate sanction which would both address the protection of the public and the wider public interest considerations. While the Panel has identified a risk of repetition, given the steps taken by the Registrant so far including her reflection and study and the impact on her of these proceedings, the Panel is satisfied that, subject to these conditions, the Registrant is capable of safe and effective practice. 

37.   Having considered that a Conditions of Practice Order would be an appropriate sanction, the Panel considered a Suspension Order. However, given that the issues identified in this case arose in relation to one service user in respect of a specific area of her practice which is capable of remediation and that the Registrant has had an otherwise unblemished career, the Panel has concluded that a suspension order would be disproportionate.

38.   The Panel considers that a Conditions of Practice Order would be appropriate for a period of 12 months. The Panel is of the view that this period would be sufficient to allow the Registrant to fully remediate the failings identified.

Order

Order: The Panel directs the Registrar to annotate the Register entry for Ishwari Sen to show that for a period of twelve months from the date that this order takes effect (“the operative date”) you must comply with the following conditions:


1. Within three months of the Operative Date you must (1) attend in person and satisfactorily complete a course (not e-learning) on Safeguarding of at least one day’s duration and (2) forward a copy of evidence of your attendance to the HCPC within fourteen days of your attendance.

2.  Within two months of your completion of the course, you must submit to Hthe CPC a written reflective piece covering what you have learned from the course; what insights you have into the failings as found by this Panel and how your learning will be applied to your current practice.


3. Within two months of the operative date, you must provide to the HCPC a copy of your written safeguarding guidelines setting out the management of safeguarding issues within your private practice.


4. You must work with a clinical supervisor to formulate a Personal Development Plan (PDP) designed to address the learning needs which have been identified in relation to safeguarding and forward a copy of your PDP to the HCPC within three months of the Operative date. Your clinical supervisor must be a senior, experienced physiotherapist of at least Band 7 or above.


5.   You must meet with your supervisor at least once every two months to consider your progress towards achieving the aims set out in your PDP.


6.  You must allow your Supervisor to provide information to the HCPC  about your progress towards achieving the aims set out in your PDP.


7.   You must provide the HCPC with a report from your supervisor about your progress towards achieving the aims set out in your PDP not later than 28 days and not earlier than 56 days before this order is reviewed.

8.   You must provide to the HCPC a written reflective piece demonstrating what you have learnt since the Panel’s determination and in particular how you have dealt with any safeguarding issues which may have arisen in your practice not later than 28 days and not earlier than 56 days before this order is reviewed.


9.   You must inform the following parties that your registration is subject to these conditions
a) any organisation or person employing or contracting with you to undertake professional physiotherapy work;
b) any agency you are registered with or apply to be registered with as a physiotherapist (at the time of application)
c) any prospective employer ( at the time of application) of your services as a physiotherapist.

10. You will be responsible for meeting any and all costs associated with complying with these conditions.

Notes

A Final hearing took place at the HCPC on Monday 14 December to Tuesday 15 December 2015.

Hearing History

History of Hearings for Ishwari Sen

Date Panel Hearing type Outcomes / Status
21/12/2016 Conduct and Competence Committee Review Hearing No further action
14/12/2015 Conduct and Competence Committee Final Hearing Conditions of Practice