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The following allegation was put before a Panel of the Conduct and Competence Committee at a substantive hearing on 18 and 19 September 2014.
During the course of your employment as an Occupational Therapist, with the Royal Orthopaedic Hospital NHS Foundation Trust, on the 12 April 2012 you:
1. Created a patient record in the SOAP notes on the TIARA system in respect of Patient A before seeing and or assessing the patient,
2. Your actions at paragraph 1 were
(a) Misleading, and/or,
3. The matters described in paragraphs 1-2 constitute misconduct,
4. By reason of that misconduct your fitness to practice is impaired.
At the substantive hearing on 18 - 19 September 2013 the Panel found particulars 1 and 2(a) proved. Particular 2(b) was not found proved. That Panel found the proven particulars amounted to misconduct and found Mr Sengupta’s fitness to practise to be impaired. That Panel imposed a Suspension Order for a period of 12 months.
1. The Registrant was initially employed as a Band 7 Specialist Occupational Therapist with the Royal Orthopaedic Hospital NHS Foundation Trust in Northfield, Birmingham from March 2008 until September 2013.
2. In August 2011, he stepped down a grade, and was employed as a Band 6 Occupational Therapist, responsible for pre and post orthopaedic inpatients.
3. On the 12 April 2012, the Registrant received a referral in respect of Patient A, who was recovering from a hip replacement. He was handed a paper referral by physiotherapy staff.
4. The Registrant then created an electronic patient record, even though he had not seen the patient that day. The record was in the form of SOAP (Subjective, Objective Analysis and Plan) notes and created the impression that the Registrant had in fact seen Patient A, stating: “patient reports to have all equipment at home” and that: “OT reviewed the home situation.” The patient is recorded as having given consent, and being seen on the afternoon of 12 April 2014.
5. When confronted with the allegation, the Registrant stated that he had seen the patient preoperatively. He did however confirm that the SOAP notes had been produced before seeing the patient again. The Registrant stated that he had done this because he was in a hurry, and his notes were being reviewed in supervision sessions.
6. A disciplinary investigation was commenced by the Trust. The Registrant subsequently went on sick leave. He was later interviewed on the 18 December, an interview which concluded on the 11 February 2013, again due to ill health. A disciplinary hearing took place on the 11-12 June 2013. The outcome was that the Registrant was dismissed without notice. He subsequently appealed and was offered an alternative to dismissal – namely demotion to a Band 5 Occupational Therapist and a Final Written Warning.
7. However, despite initially accepting this offer, the Registrant did not return to work and was dismissed on the 13 September 2013.
5. At the HCPC substantive hearing on 18 and 19 September 2014 the allegations, as set out above, were considered by a Panel of the Conduct and Competence Committee and the Registrant’s fitness to practise was found to be impaired by reason of misconduct. A Suspension Order for 12 months was imposed.
6. This is a comprehensive review of that Order.
At the hearing today:
7. Mr Sengupta has attended this hearing and been accompanied by his wife in support.
8. The Panel heard submissions on behalf of the HCPC from Ms Alison Kavanagh who reminded it of the facts of the case and submitted that the question of impairment and a further order were matters for the Panel to decide.
9. Mr Sengupta gave evidence on oath and responded to questions from the Panel. He said that since the hearing when he was suspended he has “done a lot of reading” He said he had been working to ensure the error which brought him to the attention of the HCPC would not happen again. He emphasised that he had not harmed any patient and would never do so. He said his reading had made him reflect on his misconduct. He referred the Panel to the stresses his manager had been causing him at the time. He said he was keeping his professional understanding of occupational therapy up to date. He said his health was now “better off”. In essence he was now more focused.
10. On being questioned by the presenting officer he maintained that his practice now was to see the patient first and only having done so then create the documentation. He was adamant that he would not write up the notes before seeing the patient.
11. On being questioned by the Panel he said that although he had reflected on the misconduct he had written it but had not brought it with him to show the panel today. He said he was always reflecting, reading and talking to colleagues. He reiterated that he had had a difficult relationship with his manager. He said that if a similar situation presented itself again he would take a rest. He said he would ask a colleague to assist him. He accepted he had been out of practice now for 2 years and he would have to undertake his Continuous Professional Development (CPD). He spend time with his colleagues and undertake a refresher course. He accepted he was no longer a member of his professional organisation and will now consider rejoining it. This would enable him to read the journals that this organisation produced. He emphasised that he would continue to read and learn in particular about a pre-operative role. He accepted ha had not asked for testimonials or references although he maintained he could provide them.
12. Miss Kavanagh for the HCPC submitted that the Registrant’s fitness to practice was still impaired. He had admitted the allegations early in the process, and had some insight. He had explained his situation that caused him to act as he did. She emphasised that that he had provided no documentary evidence to support the points he was making. She submitted that he had not remediated the misconduct found by the previous Panel. She then reminded the Panel of its powers should it find the registrant still to be impaired. She accepted that a striking off order in the circumstances would be disproportionate.
13. The panel then took advice from the Legal Assessor which it accepted. He advised that the Panel should first consider whether all the concerns raised in the original findings had been sufficiently addressed by the Registrant. He advised that there was a persuasive burden on a Registrant to demonstrate that he has addressed his past impairment. He advised if the Panel was satisfied the Registrant was no longer impaired then it had the power to revoke the order or allow it to lapse. If it found the Registrant still impaired then it all the powers that were available to the original Panel.
14. This Panel cannot go behind the findings of the original panel.
15. In coming to its decision, the Panel took into account all the written and oral evidence before it. It had regard to the submissions of the Parties and to the advice of the Legal Assessor and exercised the principle of proportionality. The Panel also took into consideration the HCPC’s Indicative Sanctions Policy and its Practice Note on ‘Finding that Fitness to Practise is Impaired’.
16. The Panel considered whether the Registrant’s fitness to practice remains impaired. It took into account the Registrant’s oral evidence given today. The Panel noted that the Registrant had not provided it with any written documentation to support his reflection or the CPD he would need if restored to the register. Although the Registrant states he must see the patient before he writes his notes he does not appreciate the risk involved if he writes the notes first. He tells the Panel that because of difficulties with his manager she made up allegations against him. He does not admit his culpability in this regard which suggests a lack of insight.
17. The Panel also noted contradictions in his evidence. The Registrant stated he had to obtain a mortgage and “tell his bank certain things” yet he also told the Panel he was not working in any capacity. The Panel also notes that he had not read in considered detail the previous decision outlining the actions recommended by the previous Panel.
18. The panel is therefore satisfied the Registrant has not been able to demonstrate that his fitness to practice is no longer impaired.
19. In the circumstances the Panel considered that the Registrant’s fitness to practise remains impaired. In coming to this conclusion it took into account the public interest which includes protection of service users, maintenance of public confidence in the profession and declaring and upholding proper standards of conduct and behaviour.
20. The Panel therefore went on to consider what sanction, if any, to impose. The Panel concluded that it would be inappropriate to revoke the current order and that a caution or mediation would not be appropriate given that this case concerns potential risks to service users.
21. The Panel next went on to consider whether it could formulate practicable and workable conditions to enable the Registrant to return to safe practice. However, after careful consideration the Panel concluded that it could not formulate conditions that would be workable taking account of the Registrant’s current situation. He needs to address the concerns previously found and needs time to deal with them.
22. The Panel therefore concluded that a further period of suspension for a period of 9 months upon the expiry of the existing order is the only appropriate and proportionate sanction. It has concluded this having carefully balanced the interests of the Registrant with the public interest.
23. The Panel did consider whether a striking off order might be imposed but considered that this would be disproportionate in the circumstances. The Registrant is able to remediate and a period of 9 months should be sufficient time for him to do so.
24. Although this Panel cannot bind any future reviewing Panel, the next reviewing Panel may be assisted by evidence of the following:
a) Providing a reflective account on how the Registrant would cope with stress in the workplace in the future
b) Providing references and testimonials from any employer whether in the healthcare sector or otherwise
c) Evidence of Continuous Professional Development.
That the Registrar be directed to suspend the registration of Mr Subhajit Sengupta from the HCPC register for a period of nine months from the date of the expiry of the current order.
The order imposed today will apply from 17 October 2015.
This order will be reviewed again before its expiry 17 July 2016.
History of Hearings for Subhajit Sengupta
|Date||Panel||Hearing type||Outcomes / Status|
|17/06/2016||Conduct and Competence Committee||Review Hearing||Struck off|
|11/09/2015||Conduct and Competence Committee||Review Hearing||Suspended|