Miss Paru Vekaria

Profession: Occupational therapist

Registration Number: OT57462

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 12/06/2018 End: 16:00 14/06/2018

Location: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

Whilst registered as an Occupational Therapist, you:

1. prepared an Employment and Support Allowance Medical Report Form ("the report") following meeting Service User A on 24 October 2016, and:

a) did not conduct a physical examination of Service User A

b) the report was inaccurate and/or misleading in that it indicated a physical examination was conducted when this was not the case

c) the report was inaccurate and/or misleading in that it stated:

i) "[Service User A] walks to very local corner shop alone for 10
minutes at slow pace unaided. He walks back as well."

ii) "Can sit upright for over an hour to watch TV - soaps for an hour."

iii) "[Service User A] also writes screenplays on a PC computer for over an hour seated."

iv) "Hip Problem - Both"

2. Your actions described in paragraphs 1(b) and/or 1(c) were dishonest.

3. The matters set out in paragraphs 1 - 2 constitute misconduct.

4. By reason of your misconduct your fitness to practise is impaired.

Finding

Background:

1. The Registrant was an Occupational Therapist employed by Maximus Companies Limited to undertake Employment Support Allowance (“ESA”) assessments. 

2. Service User A attended a medical assessment in relation to his ongoing entitlement to ESA on 24 October 2016. He was assessed by the Registrant while accompanied by his daughter - Person B. The Registrant produced a report following her assessment of Service User A which was passed to the decision maker acting on behalf of the Department for Work and Pensions. The decision maker concluded that Service User A did not qualify for ESA. Service User A applied for reconsideration of this decision and, when that reconsideration was not successful, he appealed the decision with success in June 2017. As part of the appeal process Service User A was provided with a copy of the report prepared by the Registrant.

3. Upon receiving the report, Service User A had a number of concerns about it. He visited his GP and then made a formal complaint to the HCPC against the Registrant dated 27 March 2017. Both he and his daughter, Person B, have provided statements and co-operated with the investigation conducted by HCPC, including providing evidence to the Panel in person.

4. The Registrant has supplied to the Panel a copy of the Handbook for conducting ESA assessments provided to her by her then employer. She also provided a written statement to the Panel and attended the hearing in part via video link, gave evidence, answered questions and made submissions. Although she had had the benefit of some advice when drafting her witness statement, she was not represented at the hearing. She was advised of the benefits of remaining present throughout the whole hearing. However she chose not to remain in the hearing during the evidence of Service User A or Person B and therefore was unaware of the content of their oral evidence and did not cross-examine them.

Assessment of witnesses

Service User A 

5. This witness was the source of the complaint against the Registrant and provided written and oral evidence to the Panel. He answered questions from the Panel but, as the Registrant absented herself from the Hearing while he was giving evidence, was not cross examined. 

6. The Panel did not find Service User A to be a particularly impressive witness. In particular, he was ambiguous in his reporting. For example, he told the Panel “I did not used to walk to the corner shop. I could have. But that’s different from would have. And I don’t now.”  Similarly, he said he did not say at the assessment that he could sit for an hour to watch television, yet he confirmed to the Panel that he could sit for an hour but not comfortably.  In the view of the Panel, Service User A presented as being very driven in pursuing this matter because he blamed the Registrant for his having been refused ESA at first. He said he felt humiliated by this and felt that he had been called a liar. This, together with his use of phrases such as “that’s how they catch you out” caused the Panel to be mindful to treat his evidence with caution and look for evidence to corroborate it.

7. Nevertheless, Service User A was clear and consistent in his statement and evidence in chief that no physical examination had taken place. When asked by the Panel he confirmed that he had not been asked to do any exercises and had not been touched by the Registrant during the assessment other than to shake hands with her. 

Person B

8. The Panel considered this witness to be straightforward in her evidence – she identified where she could not remember and the Panel considered it understandable that she could not recall relatively unremarkable events which occurred in October 2016.  She was however clear about differences between this assessment and examinations she had attended previously with her father. She particularly noted the physical examination not taking place. She recalled the Registrant moving from her chair behind the desk to look at Service User A, and she herself offering to move from her position next to Service User A so the Registrant could examine him, and being told it was not necessary as the Registrant could see he was in too much pain for a physical examination.

9. Person B could not be considered independent by virtue of her relationship with Service User A. However, the Panel found that she gave her evidence neutrally, and for example would not speculate as to why the Registrant said physical examination had taken place when it had not. The Panel accepted her evidence in all respects but one.

Registrant

10. The Registrant gave her evidence in a straightforward way, doing her best to answer questions but hindered by her inability to recall specifically the assessment of Service User A.  The Panel find this understandable in view of the high volume of assessments she was conducting. Indeed, it was to her credit that she did not claim to remember this one assessment which for her would have been unremarkable.  She therefore relied entirely on the content of her report being an accurate record of the assessment. However, she accepted in her written statement and oral evidence that there was one inaccuracy, namely the failure to record that an adapted examination had taken place – i.e. that she examined Service User A while he remained seated in the chair rather than lying on the bed.   

  
11. In the Panel’s opinion, it was unfortunate that the Registrant did not avail herself of the option to prompt her memory by remaining in attendance during the evidence of Service User A or Person B. However, her oral evidence was consistent with her statement of 7 June 2018.


Decision on facts:

Allegation 1(a)    1. prepared an Employment and Support Allowance Medical Report Form ("the report") following meeting Service User A on 24 October 2016, and:

a) did not conduct a physical examination of Service User A

Found proved

12. In respect of allegation 1(a), the Panel heard from two witnesses who gave clear evidence that no physical examination of Service User A was undertaken by the Registrant on 24 October 2016. The Registrant herself had no recollection of the assessment at all and instead relied upon the report she had completed contemporaneously, but that she could not specifically recall completing. However, she accepted that there was room for error in her completion of the report in both the use of drop down menu selections and the detail she inserted via the free text function. She accepted that the report was erroneous in not reflecting in the free text areas the fact that she would have undertaken her assessment while Service User A remained seated by the   desk, instead of on the bed.

13. All those giving evidence were consistent in respect of the layout of the room in which the assessment of Service User A took place on 24 October 2016, the approximate length of time of the appointment and the fact that Service User A was in pain. However, the accounts in relation to the extent, if any, of the physical examination of Service User A are irreconcilably different.

14. The Panel consider that it is more likely than not that no physical examination was performed by the Registrant on Service User A during the assessment on 24 October 2016, whether on the bed or while he remained in the chair by the desk.  There is no evidence to suggest that the Registrant asked Service User A to undertake the lower right limb exercises, and the Panel did not accept that the Registrant touched Service User A on the right calf or shin as she described to assess his power.

Allegation 1(b)  the report was inaccurate and/or misleading in that it indicated a physical examination was conducted when this was not the case

 Found proved

15. Given the findings in relation to the physical examination set out in allegation 1(a), the Panel found that the report was inaccurate in that it stated that an examination had taken place when it had not. As a consequence, a person reading the report would be given the misleading impression that an examination had taken place when it had not.

Allegation 1(c)(i) the report was inaccurate and/or misleading in that it stated:

"[Service User A] walks to very local corner shop alone for 10 minutes at slow pace unaided. He walks back as well."

 Not proved

16.  The Panel reminded itself that it had to consider whether Service user A made the statement to the Registrant as outlined in Allegation 1(c) (i) and not whether he did walk to the shop. Given the ambiguity of Service User A’s oral evidence, the Panel found it likely that he was similarly ambiguous in his responses to the Registrant. It could not be satisfied therefore that he did not say this to her. Person B’s evidence about going to the shop for her father did not assist the Panel because it did not go to what was said in the assessment and how it was understood by the Registrant which was the only issue to be determined. Although Person B did tell the Panel in her oral evidence that Service User A had not said that in the assessment, she did not say this in her statement where she acknowledged she did not remember much detail from the assessment. The statement was made a year after the assessment and seven months before her oral evidence so her memory was likely to be less accurate now compared to then. The Panel therefore found she was mistaken about this.

Allegation 1(c)(ii) "Can sit upright for over an hour to watch TV - soaps for an hour."

 Not proven

17.  For the reasons already given about the ambiguity of Service User A’s  reporting,  the Panel was not satisfied he did not say he can sit upright for over an hour to watch TV.  The Panel was satisfied on the strength of Service User A and Person B’s evidence, that he did not say he watched soaps. As the Allegation has not been proven in its entirety, the Panel found it not proved.

Allegation 1(c)(iii) "[Service User A] also writes screenplays on a PC computer for over an hour seated."

Not proved

18.  For the reasons already given about the ambiguity of Service User A’s reporting, the Panel was not satisfied he did not say he writes screen plays on a computer for over an hour seated.  Service User A’s evidence was that he could not recall saying it and Person B’s evidence did not address this.

Allegation 1(c)(iv) – "Hip Problem - Both"

 Not proved

19. The Panel was satisfied that it was not inaccurate or misleading to describe Service User A as having reported  problems with both hips, given that the back pain related to his hip complaint and the Panel was satisfied that it was more likely than not that Service User A referenced this during the assessment. The Panel found support for this in a print out of Service User A’s GP records, showing he attended his GP on 21 October 2016, just three days before the assessment, in respect of “hip pain”.

Allegation 2 – Your actions described in paragraphs 1(b) and/or 1(c) were dishonest.

Not proved

20. The test for finding dishonesty on the part of a registrant was confirmed by the Supreme Court in the case of Ivey v Genting Casinos Ltd T/A Crockfords [2017] to be objective, even though a state of mind is a subjective mental state. That case also asserted that untruthfulness is often a powerful indicator of dishonesty, but that a dishonest person may be truthful about their dishonest opinion. The Panel was therefore required to subjectively ascertain the knowledge of the Registrant, and consider this by the objective standards of ordinary decent people. There is no requirement that the Registrant must appreciate that what she has done is dishonest.

21. The Registrant has consistently maintained her position that she can not recall Service User A or her assessment of him. The Panel had no evidence as to what state of mind led to her producing an inaccurate and misleading report. The Panel reminded itself that it is for the HCPC to adduce evidence to prove the Allegation that the Registrant was dishonest in respect of Allegation 1(a) and (b). Although Service User A believed that the Registrant was motivated by targets which influenced the payment of an annual financial bonus, in his oral evidence he accepted his only justification for this was what was said in online forums he had visited. The Panel found this to be speculative and without foundation. The HCPC advanced no evidence in relation to this issue. The HCPC advanced no other explanation or evidence to support the Allegation of dishonesty. Consequently, Panel was not satisfied on the balance of probabilities that the Allegation of dishonesty had been proved.

Decision on Grounds

Ground 1

22.  Having considered the facts of the Allegation, the Panel considered whether those facts amounted to the statutory ground, as set out in the Health and Social Work Professions Order 2001, of misconduct.  Roylance v GMC (No 2)[2001] defined misconduct thus:

“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a... practitioner in the particular circumstances.”


23. The HCPC has adopted standards of proficiency for Occupational Therapists, as well as standards in relation to conduct, performance and ethics that apply to registrants of all professions regulated by HCPC. The Panel considered that the following standards for Occupational Therapists are of relevance:

Standard 2 - be able to practise within the legal and ethical boundaries of your profession, and

2.1- understand the need to act in the best interests of service users at all times

2.2- understand what is required of you by the Health and Care Professions Council,

4.4 - recognise that they are personally responsible for and must be   able to justify their decisions.

8.9 - be able to listen to a service user’s occupational narrative and analyse the content in order to plan for the future

10 - be able to maintain records appropriately

12 - be able to assure the quality of their practice,
And that the following standards of general conduct, performance and ethics particularly apply in this matter:

1 - promote and protect the best interests of service users and carers;

10 - Keep accurate records

24. The Panel had concerns about the Registrant’s conduct in this matter, particularly her often repeated comments that she had stuck to the processes outlined in the Revised WCA Handbook (“Handbook”) provided by her employer. It appeared to the Panel that the Registrant preferred to comply with the contents of the Handbook rather than exercise independent professional judgement in the best interests of the client. Despite her assertions about complying with the Handbook, the Registrant’s evidence was that her training by her employer required her not to utilise active movements, but only to do passive movements. This contradicts the Handbook, which states at page 64 that “The range of joint movements must be assessed through active movements and the use of passive movements to assess these movements would not be considered appropriate in a work capability assessment”.

25. The Panel found that in a number of respects, the information the Registrant included in the report was wrong – such as recording that a physical examination was undertaken when it was not and the statement that Service User A watched soaps. This called into question whether the Registrant had met the standards of proficiency, conduct, performance and ethics set out above when practising her profession. 

26. The Panel was mindful, however, that it was required only to determine whether failing to perform a physical examination, and recording a physical examination as having taken place when it did not, amounted to misconduct - that is an act or omission which falls short of what would be proper in the circumstances. It was satisfied that the report was not accurate in respect of whether the examination was carried out, and that this amounted to misconduct.

Ground 2 - 5

27.  Aside from misconduct, the statutory grounds of impairment set out within the Health and Social Work Professions Order 2001 at article 22(1) have not been alleged by the HCPC (i.e. lack of competence, criminal conviction or caution, physical or mental health, or a finding of impairment by a regulatory body) and have not therefore been considered by the Panel.

Decision on Impairment:

28. To assist with determining whether fitness to practice is impaired, the HCPC has published a practice note for the guidance of Panels and to assist those appearing before them. This document confirms that Panels are required to consider for each allegation:

a)  whether the facts set out in the allegation are proved;

b)  whether these facts amount to the statutory ground set out in the  allegation (e.g. misconduct or lack of competence); and

c)  in consequence, whether the registrant’s fitness to practise is impaired.

29.  Further, the test of impairment is expressed in the present tense in relation to the need to protect the public against the acts and omissions of those who are not fit to practise, but this cannot be achieved without taking account of the way a person has acted or failed to act in the past.

30.  Given the Panel has found 1(a) and (b) proved, and that this amounted to the statutory ground of misconduct, the Panel must also consider public policy issues in addition to the behaviour of the Registrant. The Panel was mindful that a finding of impairment does not automatically follow a finding of misconduct – such as if the panel can properly conclude the act or omission was an isolated error and the chance of repetition in the future is remote. They also note the guidance in the case of Cohen v GMC [2008] that it must be highly relevant when determining impairment that the conduct leading to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated.

31.  When assessing the likelihood of recurrence of harm, Panels must take account of the degree of harm caused by the Registrant and the Registrant’s culpability for that harm, recognising that the harm could have been greater or less than the harm which was intended or reasonably foreseeable and should not be considered in isolation. Panels may also take account of character evidence. The Panel took account of the 2 testimonials provided which were of a general nature.

32.  The Registrant has no recollection of the events relevant to the allegations, and has relied upon the content of her report, which the Panel has already found to be inaccurate. She has demonstrated no insight into the shortcomings in her practice or reassured the Panel that the possibility of repetition is limited. The Panel has heard no expressions of remorse from the Registrant or acknowledgment of the impact of her actions on Service User A, even stating in her submissions that she considered that the harm to him was limited.  

33.  The Panel was satisfied that the Registrant was and is impaired by virtue of both the personal component and the public component. There is no evidence that the Registrant’s practice in other assessments was similarly impaired however her insight and lack of personal engagement by relying on the Handbook was of concern to the Panel. The Panel considered that there was a risk of harm to the public as a consequence of the lack of insight. Further, the Panel considered that a member of the public would be concerned about her approach and their confidence in the profession of Occupational Therapy was likely to be undermined.

34.  Although the Registrant was not the decision maker in relation to Service User A’s benefit entitlement, and not therefore solely responsible for the harm suffered by service user A, the purpose of the assessment by a qualified health care professional was to help the decision maker reach a fair and proper decision on benefit entitlement by providing advice which was fair, impartial, medically correct, consistent and complete, as set out at page 21 of the WCA handbook.  Her practice therefore had a substantial impact upon Service User A.

Decision on Sanction:

35. Having delivered the above findings to the Registrant and the Presenting Officer, the Panel invited both parties to address them as to sanction. An appropriate period of time was allowed for both to formulate their submissions however the Registrant declined to make submissions or indeed participate further in the proceedings, preferring that the final decision, including any sanction, be emailed to her. The only comment she had for the Panel was that she was not working as an Occupational Therapist and had provided two testimonials.

36. The Presenting Officer submitted that the HCPC do not make recommendations on sanction but, per the HCPC policy on sanctions, the Panel should start at the least serious sanction and work up from there. She highlighted the difference between insight and remorse and pointed out that the Registrant had denied the allegations throughout the investigation and hearing, relying on having followed the Handbook supplied by her employer. There had been no remedial action taken by the Registrant and it was the view of the HCPC that, as identified in the decision, the Registrant could pose a risk to the public as a result.

37. The aggravating features of this case were noted to be the impact on service User A, who felt that he had been humiliated and called a liar, and he had to pursue a lengthy appeal process to have his ESA reinstated. Further, the Registrant had included a high degree of misleading information in her report and not accepted the allegations or demonstrated any remorse.  

38. The mitigating features of the case were that the allegations appeared to be isolated, that the Registrant had an unblemished record and had engaged, albeit not fully, with the fitness to practise process.

39. The Panel reminded itself that each case must be determined on its own merits and therefore the HCPC does not have a tariff of sanctions. It has however adopted a policy in respect of indicative sanctions to aid panels to make fair, consistent and transparent decisions. Clear and cogent reasons should be given by any panel departing from this policy. The Panel received and accepted advice from the Legal Assessor in relation to the imposition of a sanction, had regard to the Indicative Sanctions Policy  and took into consideration the testimonials provided by the Registrant at the outset of the hearing.

40. The purpose of fitness to practise proceedings is not to punish but to:

a. protect the public by ensuring that registered health care professionals practise to a minimum universal standard;

b. maintain public confidence in the regulatory process;

c. protect the reputation of the profession concerned;

d. act as a deterrent to other registrants.

41.   Article 29 of the Health and Social Work Professions Order 2001 provides that the sanctions available to a panel to protect the public are:

a. Mediation;

b. Caution;

c. Conditions of practice;

d. Suspension;

e. Striking off.

Alternatively, a panel may decide that no further action is required.

42. When determining the appropriate level of sanction, panels must be proportionate so that the sanction:

a. Is appropriate in the circumstances;

b. Secures the protection of the public;

c. Takes account of the wider public interest

 d. Is the least restrictive means of securing public protection;

e. Is proportionate and strikes a proper balance between the rights of the Registrant and the protection of the public.

43. The Panel did not believe that the Registrant had demonstrated either insight or remorse for her conduct and the Panel therefore remained concerned as to her future practice. As a result, it was not appropriate for the Panel to take no action. It noted that there was no outstanding dispute and therefore mediation was also an inappropriate sanction in this matter.

44. The Policy identifies that a Caution Order may be an appropriate sanction for cases where:

• the lapse is isolated, limited or relatively minor in nature;

• there is a low risk of recurrence;

• meaningful practice restrictions cannot be imposed;

• the conduct is out of character;

• suspension from practice would be disproportionate.

45. However, the policy is clear that a Caution Order is unlikely to be appropriate in cases where the registrant lacks insight and the Panel does not therefore consider that a Caution Order would be appropriate in this matter.

46. The Panel therefore moved on to consider whether a Conditions of Practice Order would be appropriate. The purpose of a Conditions of Practice Order is to restrict a registrant’s practice, require the registrant to take remedial action or impose a combination of both. Imposition of a Conditions of Practice Order means that the panel is satisfied that the registrant is capable of practising safely and effectively, beyond the conditions, the conditions being remedial or rehabilitative in nature. However, conditions will rarely be effective unless the registrant is genuinely committed to resolving the issues to be addressed and can be trusted to make an effort to do so. The Policy points out that conditions of practice are unlikely to be suitable where, as in this case, the registrant has lacked insight and denied wrongdoing.

47. Notwithstanding the lack of insight or remorse, the Panel was conscious that it had found the Registrant to be honest in admitting her inability to remember Service User A, and they appreciated and gave her credit for the fact that she had not lied about recalling the detail of one assessment more than 18 months ago. The Panel was also mindful of the formulaic environment the Registrant was working in at the time, which was not conducive to independent judgement given the volume of clients seen each day, the length of time provided for assessments to be undertaken and the prescriptive approach evidenced by the Handbook. Had the Registrant recognised any possibility of error on her part, or accepted responsibility for the impact of her actions on Service User A, the Panel may well have been satisfied that she could continue to practise safely and effectively under conditions of practice.

48. Given that the Panel considered that neither a Caution nor Conditions of Practice Order would provide sufficient public protection, and that there were no psychological or other difficulties preventing the Registrant from understanding and seeking to remedy the failings identified by the Panel, suspension from practice was considered to be the appropriate and proportionate sanction to apply. Striking off was not considered by the Panel to be appropriate in this case as, despite the lack of insight and remorse, there was no evidence that the Registrant had been reckless or dishonest and the conduct was not so serious that confidence in the profession would be undermined.

49. Having determined that a Suspension Order was the appropriate sanction, the Panel considered the period of suspension, mindful of the HCPC policy statement that suspensions should not exceed one year. In this case, the Panel believed that it was appropriate to suspend the Registrant from practice for a period of one year.

50. A Suspension Order cannot be made subject to conditions. However, it may assist a future panel, when this order is reviewed, if the Registrant could present evidence as to how she has developed and reflected on: record keeping, professional autonomy and the impact of her actions on service users and the profession as a whole. This might be achieved by undertaking training and/or maintaining a reflective portfolio and/or receiving support from a mentor. However, the Panel recognised that it cannot be prescriptive and its recommendations do not bind or fetter the discretion of a future reviewing panel.

Order

ORDER: That the Registrar is directed to suspend the registration of Miss Paru Vekaria for a period of 12 months from the date this order comes into effect

Notes

No notes available

Hearing History

History of Hearings for Miss Paru Vekaria

Date Panel Hearing type Outcomes / Status
12/06/2018 Conduct and Competence Committee Final Hearing Suspended