Mr Boben Zacharia
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Allegations (as amended at Substantive Hearing):
Between 1 August 2014 and January 2016, during the course of your employment as a Physiotherapist with NHS Greater Glasgow and Clyde, you:
1. Did not carry out complete subjective and/or objective assessments for your patients in that:
(a) While assessing Patient A on or around 14 September 2015 and/or 22 September 2015, you did not question the Patient specifically enough, to identify a pattern of pain;
(b) On 23 September 2015, while assessing Patient B and/or Patient C, you:
(i) did not extract relevant information from the patient and/or the patient’s carer without prompting and/or at all;
(ii) did not ask the patient and/or the patient's carer clear questions without prompting and/or at all.
(c) On 2 October 2015, during an assessment of Patient D, you:
(i) did not identify a Warfarin issue as a Precaution:
(ii) did not complete a respiratory assessment of the patient.
(d) On 6 October 2015, during an objective assessment of Patient E, you did not assess the patient's hamstring and/or ankle strength adequately or at all.
(e) On 2 October and/or 9 October 2015, during an assessment of Patient F, you :
(i) used a bilateral Straight Leg Raise to assess the Patient who had received a total knee replacement;
(ii) Did not assess the patient's knee extension adequately or at all.
(f) On 12 October 2015, during a subjective assessment of Patient G, you did not include the patient.
2. Did not complete full and/or written records of assessments for your patients, in that:
(a) following an assessment of Patient A on 22 September 2015, you:
(i) did not document the assessment in the SOAP format;
(ii) did not make an accurate recording of what had been discussed and/or assessed.
(b) following an assessment of Patient B and/or of Patient C on 23 September 2015, did not record what had been discussed and/or assessed sufficiently and/or in a timely manner.
(c) On 6 October 2015, during an objective assessment of Patient E, you documented the Patient’s hamstring and/or ankle strength as 3+ in the notes, even though this was not assessed adequately or at all.
3. Did not prescribe appropriate exercise programmes for your patients, in that:
(a) On 2 October 2015, in respect of Patient D who had Chronic Obstructive Pulmonary Disease (COPD), you provided the patient with a treatment plan of sitting strength exercises, despite the patient being independently mobile.
(b) On 2 October 2015, in respect of Patient F, did not provide a program appropriate for a Total Knee Replacement Patient.
(c) On 12 October 2015, developed an exercise plan for Patient G in a lying position, despite the Patient being independently mobile.
4. The matters described paragraphs 1 – 3 constitute misconduct and/or lack of competence.
5. By reason of your misconduct and/or lack of competence, your fitness to practise is impaired.
1. The panel at the substantive hearing found that the above matters amounted to lack of competence on the part of the Registrant.
2. The panel at the substantive hearing also found that the Registrant’s fitness to practise was impaired by reason of his lack of competence.
Service of Notice
3. The notice of this hearing was sent to the Registrant at his address as it appeared in the Register on 29 March 2018. The notice contained the date, time and venue of today’s hearing.
4. The Panel accepted the advice of the Legal Assessor, and is satisfied that notice of today’s hearing has been served in accordance with Rule 6(1) of the Conduct and Competence Committee Rules 2003 (the “Rules”).
Proceeding in the absence of the Registrant
5. The Panel then went on to consider whether to proceed in the absence of the Registrant pursuant to Rule 11 of the Rules. In doing so, it considered the submissions made by Mr Mason on behalf of the HCPC.
6. Mr Mason submitted that the HCPC has taken all reasonable steps to serve the notice on the Registrant. He further submitted that the Registrant has indicated in an email dated 25 April 2018 to the HCPC that he would not be attending this hearing, as he no longer wishes to practise as a Physiotherapist. Mr Mason submitted that an adjournment would serve no useful purpose. He reminded the Panel that there was a public interest in this matter being dealt with expeditiously.
7. The Panel accepted the advice of the Legal Assessor. It was clear, from the principles derived from case law, that the Panel was required to ensure that fairness and justice were maintained when deciding whether or not to proceed in a Registrant’s absence.
8. The Panel was satisfied that all reasonable efforts had been made by the HCPC to notify the Registrant of the hearing. It was also satisfied that the Registrant was aware of the hearing.
9. In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPTS practice note entitled ‘Proceeding in the Absence of a Registrant’. The Panel weighed its responsibility for public protection and the expeditious disposal of the case with the Registrant’s right to a fair hearing.
10. In reaching its decision the Panel took into account the following:
• The Registrant has not made an application to adjourn today’s hearing and implicit in his email is an expectation that proceedings today proceed in his absence;
• There is a public interest that this substantive order is reviewed before it expires.
11. The Panel was satisfied that the Registrant had voluntarily absented himself from the hearing. There is a distinction between a case where the Registrant is clearly aware of the hearing date, and one where there has been no response from the Registrant. It determined that it was unlikely that an adjournment would result in the Registrant’s attendance at a later date, in the light of the indication from the Registrant that he no longer wishes to engage in the process, nor practise as a Physiotherapist. Having weighed the public interest for expedition in cases against the Registrant’s own interest, the Panel decided to proceed in the Registrant’s absence.
12. Mr Boben Zacharia (“the Registrant”) commenced employment with Greater Glasgow and Clyde NHS in July 2012 as a Band 2 Nursing Auxiliary. The Registrant then worked as a Band 5 Physiotherapist from 1 August 2014 until 4 March 2016.
13. Whilst working as a Physiotherapist, the Registrant worked within the Community Rehabilitation Team in Primary Care. Concerns were highlighted regarding the Registrant’s practice very soon after his commencement as a Physiotherapist in August 2014. These concerns were that the Registrant was not able to complete work without prompting from his supervisor. He required guidance in order to complete his written assessments and patient notes.
14. The Registrant was made subject to an Informal Supported Improvement Framework in October 2014, which was to include additional supervision and support.
15. The Registrant was on a period of sickness leave from 9 October 2014 until 18 August 2015; the Support Improvement Plan re-commenced on his return to the Trust.
16. The Registrant went on a further period of sick leave on 23 October 2015; whilst away from work, he resigned from his physiotherapy post and requested redeployment in a Band 2 role.
17. At the substantive hearing held on 8-11 May 2017, the above allegation was found proved, the Registrant’s fitness to practise was found to be impaired, and a sanction of 12 months suspension was imposed upon his registration.
18. Mr Mason, on behalf of the HCPC, outlined the background to the Panel. He submitted that the Registrant’s fitness to practise remains impaired, as there is no evidence to show that the lack of competence in the Registrant’s practice has been remedied. The Registrant has not engaged in any meaningful way in these proceedings, nor has he submitted any documents for the attention of this Panel reviewing the Order.
19. The Legal Assessor reminded the Panel that its purpose today was to conduct a comprehensive appraisal of the case to determine if the Registrant is fit to return to unrestricted practice. Its role was not to conduct a rehearing of the allegations nor was it to go behind the previous findings. He advised that in carrying out this assessment, the Panel must exercise its own independent judgment.
20. The Legal Assessor advised the Panel that if it determined that the Registrant’s fitness to practise remained impaired then the Panel must go on to consider what sanction, if any, should be imposed. The Legal Assessor reminded that the Panel this was a case involving lack of competence. He advised that a Striking Off Order cannot be imposed because the Registrant has not been continuously suspended, nor has he been subject to a Conditions of Practice Order for a period of at least two years. He further advised the Panel that it should bear in mind the principles of fairness and proportionality and have regard to the Indicative Sanctions Policy document issued by the HCPC. He reminded the Panel that any order that it makes under Article 30 should not be punitive in purpose, and that it should be the least restrictive order that would suffice to protect the public and/or is otherwise in the public interest.
Panel’s considerations and decision
21. The Panel accepted the advice of the Legal Assessor. The Panel first considered whether the Registrant’s fitness to practise is currently impaired. The Panel took into consideration all the documentation before it. In particular it noted the following:
a) The lack of meaningful engagement of the Registrant with the process and his lack of commitment to remaining in the profession;
b) The findings of the previous panel that:
i) the Registrant lacked insight into the shortcomings in his practice;
ii) the Registrant lacked the basic knowledge and basic competence expected of even a student physiotherapist; and
iii) the Registrant had the propensity to ignore the concerns of patients.
22. Taking all of the above into consideration, the Panel determined that the Registrant’s fitness to practise remained impaired because of his lack of competence.
23. The Panel went on to consider what action to take today. The Panel took into account the HCPC’s Indicative Sanctions Policy document and considered its powers under Article 30(1).
24. The Panel first considered taking no further action and allowing the Order to lapse upon expiry. The Panel determined that this was not appropriate as the Registrant’s fitness to practise remains impaired today and taking no action would neither protect the public nor be in the public interest.
25. The Panel went on to consider whether to impose a Caution Order upon the expiry of the current order. For the same reason set out above, the Panel determined that the imposition of a Caution Order upon expiry of the current order is not the appropriate action to take today.
26. The Panel next considered whether Conditions of Practice could be imposed whilst keeping the public safe. In the absence of any new information from the Registrant, the Panel could only conclude that the Registrant’s lack of competence remained sufficiently severe that any conditions imposed would be so restrictive that it would be tantamount to a suspension. Furthermore, the indication from the Registrant that he no longer wishes to practise as a Physiotherapist means that imposing conditions upon his registration would serve no useful purpose.
27. In the light of the above, the Panel determined that a Conditions of Practice Order would not be sufficient to protect the public and/or in the public interest.
28. The Panel then considered whether a Suspension Order was the appropriate and proportionate response to the risk to the public and the public interest identified. It determined that in the light of all of the above considerations, the appropriate sanction is that of a Suspension Order for 12 months. The Panel exercises its powers under Article 30(1) of the Health and Social Work Professions Order 2001 and imposes this 12 month Suspension Order upon the expiry of the current order.
29. The Panel reiterates the position of the panel at the substantive hearing, articulated in the last paragraph of their decision. The Registrant continues to communicate that he no longer wishes to continue in the profession, and has continued to engage with the HCPC only in so far as he responds to their correspondence. Consideration should be given to an alternative means of disposal other than the imposition of the ultimate sanction, in light of the case of Clarke v GOC  EWHC 521 (Admin). This means offering removal of the Registrant’s name from the Register by consent. The Panel is disappointed that this recommendation has not been acted upon to date.