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The following allegations were considered by a Panel of the Conduct and Competence Committee at the Final Hearing on 18-19 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
3. The matters described in paragraphs 1-2 constitute misconduct.
4. By reason of that misconduct your fitness to practice is impaired.
The Panel at the Final Hearing found the above, proved. The Panel found the proven particulars amounted to misconduct and found the Registrant’s fitness to practice impaired. A Suspension Order was imposed for a period of twelve months. At a review on 11 September 2015 a further period of 9 months suspension was imposed.
1. The Registrant did not attend and was not represented. The HCPC sent a Notice of Hearing to the Registrant’s registered address on 11 May 2016. The Notice set out all the relevant information about today’s proceedings. The Panel was therefore satisfied that service had been effected in accordance with the Health and Care Professions Council (Conduct and Competence) Committee (Procedure) Rules 2003.
Proceeding in absence and adjournment
2. The HCPC applied to have the case heard in the Registrant’s absence. Mr Doyle asserted that the Registrant had been properly served in accordance with the rules. Despite this, and despite the Registrant attending on the last occasion, he has not engaged with the HCPC for the purposes of this hearing. There is no real probability that if an adjournment is granted he will attend at a resumed hearing. The allegations found proved are extremely serious and it is in the interests of justice that the matter proceed today.
3. The Panel took advice from the Legal Assessor. The decision to proceed in absence of the Registrant must be exercised with the utmost caution. The Panel was referred to the recent authoritative decision in this area in GMC v Adeogba (2016) EWCA Civ. 162 in particular at paragraph 23 which states that while the starting point is the principles enunciated in R v Hayward,
“The first question which must be addressed in any case such as these is whether all reasonable efforts have been taken to serve the practitioner with notice. That must be considered against the background of the requirement on the part of the practitioner to provide an address for the purposes of registration along with the methods used by the practitioner to communicate with the GMC and the relevant tribunal during the investigative and interlocutory phases of the case. Assuming that the Panel is satisfied about notice, discretion whether or not to proceed must then be exercised having regard to all the circumstances of which the Panel is aware with fairness to the practitioner being a prime consideration but fairness to the GMC and the interests of the public also taken into account; the criteria for criminal cases must be considered in the context of the different circumstances and different responsibilities of both the GMC and the practitioner.”
4. The Panel did decide to proceed in the Registrant’s absence essentially for the reasons submitted by the HCPC. The Registrant was on notice of these proceedings having been sent the notice of hearing in mid- May. This was a mandatory review and the Registrant had failed to engage in the proceedings. The allegations found proved were serious and it was in the interests of justice that this review take place today.
5. The Registrant was employed by the Royal Orthopaedic Hospital NHS Foundation Trust in Northfield in Birmingham from March 2008 until September 2013. He was initially employed as a Band 7 Specialist Occupational Therapist. From August 2011, he stepped down a grade, and was employed as a Band 6 Occupational Therapist, responsible for pre and post orthopaedic inpatients.
6. 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.
7. 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 2012.
8. 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.
9. Thereafter a disciplinary investigation was commenced. 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. There were also further conditions attached in relation to supervision (consistent with a new OT) and agreement to an external review of his abilities, as “you accept there are fundamental concerns about your ability to function as a registered OT...” However, despite initially accepting this offer, the Registrant did not return to work and was dismissed on the 13 September 2013.
10. The Registrant did not attend the final hearing on 19 September 2014 and was not represented. The panel at the final hearing found that the Registrant did complete the SOAP notes before he had seen Patient A. It noted there are considerable implications for completing SOAP notes prior to actually seeing the patient. The Registrant would not have been able to confirm the patient’s actual position, for example, regarding whether the patient’s home circumstances had changed. The Registrant was due to go on leave and another team member might be required to review the notes, and this might lead to the incorrect assumption that the patient was ready for discharge on the basis that all the equipment required was in place. The panel found that the Registrant’s actions were misleading.
11. That panel found that the matters proved amounted to misconduct and the Registrant’s fitness to practice was impaired. The panel made the following findings at paragraphs 45-46 which are significant for the purposes of today’s hearing:
“45. Having arrived at an appropriate and necessary sanction the Panel considered that to impose the more restrictive sanction of striking the Registrant off the register would be unnecessarily punitive and disproportionate. However, the Registrant should be aware that this sanction will be a possibility for a future Panel if the Registrant does not remedy the concerns set out in this decision.
46. Whilst in no way seeking to bind any future Panel, at a subsequent review hearing, the Panel envisages that the following matters would be of assistance:
(a) The Registrant should attend in person to explain his actions,
(b) Providing a reflective account, focusing on the proven allegations, and what he has learnt and how his practice might develop,
(c) Evidence of up to date training and development and Continuous Professional Development.”
It ordered the Registrant to be suspended for 12 months.
12. At the mandatory review on 11 September 2015 the Registrant did attend. The Registrant did not provide any written documentation to support his reflection or the CPD he would need if restored to the register. The panel on that occasion was not satisfied that the Registrant appreciated the risks of writing up notes in advance of seeing a patient. That panel was of the view that he did not fully admit his culpability in the incident leading to his suspension, which suggested a lack of insight. He had stated that because of difficulties with his manager she made up allegations against him. There were also contradictions in his evidence in respect of whether he was working or not. The Registrant had not read in considered detail the previous decision outlining the actions recommended by the previous panel.
13. The review panel concluded that his fitness to practise remained impaired. In ordering a 9 months further period of suspension that panel stated that a future reviewing panel may be assisted by:
(i) A reflective account of how the Registrant would cope with stress in the workplace in the future
(ii) References and testimonials from any employer whether in the healthcare sector or otherwise
(iii) Evidence of Continuous Professional Development.
14. Mr Doyle for the HCPC brought the Panel’s attention to the previous recommendations made at the final hearing and the substantive review. The Registrant, it was submitted, has failed to engage with these recommendations in any way whatsoever. He has accordingly demonstrated no insight into the misconduct found proved against him nor has he demonstrated any remediation. The HCPC position in these circumstances was that the Registrant should be removed from the Register.
15. This Panel has taken into account all documentation placed before it. It has heard the HCPC’s submissions; taken and accepted the advice of the Legal Assessor; and it has reminded itself of the terms of the Council’s Practice Note- ‘Article 30 (2) Reviews’ which, while addressing a slightly different provision, contains useful guidance for the current application. In summary the legal principles in respect of an Article 30 (1) review are as follows:
i) The Primary objective of the Panel is to secure public protection in the most appropriate and proportionate way
ii) The Panel cannot go behind the original decision. Its task is to consider whether the order under review remains an appropriate and proportionate means of securing public protection
iii) The correct approach is to determine whether the Registrant’s impairment identified at the final hearing is still continuing and if so what level of restriction is appropriate
iv) The Panel can allow the current suspension order to lapse, extend or further extend it by a period up to one year or replace it with any sanction that could have been made at the time of the substantive hearing.
16. The Panel has no doubt that the Registrant’s fitness to practise remains impaired. The Registrant was found to have been guilty of serious misconduct at the final hearing and his fitness to practise was found to be impaired. Despite being provided with specific recommendations from both the final hearing Panel and the previous substantive review Panel the Registrant has chosen not to engage with those recommendations. The Registrant has evidenced no insight and no remediation whatsoever.
17. The Panel went on to consider which level of restriction was appropriate and proportionate to continue to provide Service User protection. In so doing it had to balance the Registrant’s interests in being able to return to safe unrestricted practice at an appropriate time with the protection of the public. Allowing the current Suspension Order to lapse or the imposition of a Caution Order would, in the Panel’s view, provide wholly inadequate Service User protection.
18. The Panel gave consideration as to whether a Conditions of Practice Order was proportionate and appropriate. The Panel has no evidence about the Registrant’s current circumstances. It has no indication if he is working, if so where and in what capacity. It is unaware of his plans for the future and knows nothing of his personal circumstances. Accordingly it is not in a position to formulate any realistic and workable conditions even if such a sanction would have been proportionate. For the avoidance of doubt the Panel is not, on the evidence it has before it, of the view that such a sanction would in any event be a proportionate means of securing adequate public protection.
19. The Panel then went on to consider the appropriateness of extending the current suspension order. The Panel was mindful of the previous review panel’s views expressed to the Registrant on the last occasion at paragraph 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.”
20. As previously indicated the previous panel went on to provide some recommendations for the type of material that would be useful to this Panel to demonstrate insight and remediation. Despite this the Registrant appears to have failed to heed that valuable guidance in any way whatsoever. The Panel believes this demonstrates an on-going lack of appreciation approach by the Registrant of his professional duties as well as the role of the regulator. The Panel is not therefore of the view that a further period of suspension will provide adequate public protection and the only appropriate sanction is removal from the register.
21. In making the aforesaid striking off order the Panel has had full cognisance of the HCPC Practice note ‘Indicative Sanctions Policy’ at paragraph 41 which states “Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. A registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate”. This guidance is apt to the present case.
Right of Appeal
You may appeal to the appropriate court against the decision of the Panel and the order it has made against you. In this case the appropriate court is the High Court in England and Wales.
Under Articles 30(10) and 38 of the Health and Social Work Professions Order 2001, an appeal must be made to the court not more than 28 days after the date when this notice is served on you.
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|