Mr Dinakar Premkumar
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(As amended on Day 1 of the hearing, 18 June 2018)
During the course of your employment as a Physiotherapist at Central Surrey Health (CSH), you:
1. did not attend appointments with:
A. Service User A on 13 July 2015;
B. The HCPC Offered No Evidence
C. Service User C on:
i. 3 July 2015;
ii. 6 July 2015;
iii. 14 July 2015;
iv. 31 July 2015;
v. 12 August 2015.
D. Service User D on 27 July 2015
E. Service User E on:
i. 27 July 2015;
ii. 3 and/or 5 August 2015;
iii. 14 and/or 17 August 2015.
F. The HCPC Offered No Evidence
G. Service User G on:
i. 20 July 2015;
ii. 24 July 2015.
H. Service User H on:
i. 14 July 2015
ii. 31 July 2015
iii. 14 August 2015
I. Service user I on:
i. 6 July 2015;
ii. 14 July 2015;
iii. 20 July 2015;
iv. 7 August 2015;
v. 14 August 2015.
J. The HCPC Offered No Evidence
K. Service User K on 15 July 2015.
L. Service User L on:
i. 3 August 2015
ii. 14 August 2015
M. Service User M on:
i. 24 July 2015
ii. 30 July 2015
iii. 17 August 2015
2. You recorded you had attended the visits for the Service Users on the dates set out in 1 (A) – (M).
3. The matters set out in particulars 1 – 2 amount to dishonesty.
4. The matters set out in paragraphs 1 - 3 constitute misconduct.
5. By reason of your misconduct your fitness to practice is impaired.
1. The Panel has seen a copy of the Notice of Hearing dated 2 March 2018 which contains all relevant information, the proof of posting of the same date, and a copy of the certificate of the Registrant’s registered address. The Panel determined that there was good service of the Notice of Hearing on the Registrant at his registered address in accordance with the provisions of rules 3(1) and 6(1) of The Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003, as amended (“the Rules”).
Proceeding in absence
2. The Panel heard a submission from Mr Ferson, on behalf of the HCPC, to proceed in the absence of the Registrant under rule 11 of the Rules. The Registrant was not present or represented. Mr Ferson said that this was the second listing of the case. It was previously listed for 21 August 2017, but was administratively adjourned at the request of the Registrant on health grounds.
3. In respect of the current hearing, Mr Ferson referred the Panel to an email sent by the Registrant’s legal representative dated 13 June 2018 to the HCPC stating that the Registrant is aware of this hearing, but that he will not be attending the hearing because of health reasons. Further, it stated that he wished the Panel to consider his attached response to the allegations dated 8 August 2016 and that the Registrant was aware of the sanctions at the Panel’s disposal. There was no application for an adjournment from the Registrant or his legal representative. Mr Ferson finally submitted that six witnesses are to give evidence including some who were vulnerable and they would be inconvenienced if the hearing was adjourned.
4. The Panel accepted the Legal Assessor’s advice to consider all the circumstances and take account of the guidance in the relevant HCPTS Practice Note on “Proceeding in the Absence of the Registrant” (March 2017), and that the Panel had a duty to test the HCPC’s evidence if the Panel proceeds in the Registrant’s absence.
5. The Panel noted that the Registrant had not applied for an adjournment as he had done on the previous listing. These were serious matters. The Panel took account of the public interest in final hearings being dealt with at the appropriate time and that the witnesses would be inconvenienced if the hearing did not proceed.
6. The Panel determined that the Registrant had exercised his choice not to attend or be represented at the hearing today and there was nothing to suggest that he would attend, or be represented, on a future date if this hearing was adjourned. It was accordingly fair, proportionate and in the public interest to proceed with this final hearing in his absence.
Amendments to the Allegation and offering no evidence on some particulars
7. Mr Ferson applied to amend the Allegation in accordance with the proposed amendments notified to the Registrant by letter dated 7 April 2017. The reasons for the proposed amendments were the result of further analysis of the evidence and the HCPC’s decision to offer no evidence, on the basis that there was no reasonable prospect of proving the following particulars:
- 1 B (i) and (ii)
- 1 D (ii)
- 1 F
- 1 J (i-v)
- 1 M (i)
8. Mr Ferson also applied to remove the word “and” in particular 2 on the ground that it was a typographical error and was superfluous. During the hearing Mr Ferson applied to remove the words “complete” and “pre-arranged” from the stem of Particular 1. He also applied to remove the word “completed” from Particular 2. Finally Mr Ferson indicated that in respect of Particular 1 H (i) (ii) the year being 2015 had been struck through erroneously and should be reinstated for sake of completeness. He submitted that none of the amendments were prejudicial to the Registrant.
9. The Panel accepted the Legal Assessor’s advice that the Panel could allow amendments to the particulars of the Allegation if it considered that they could be made without injustice to the Registrant, and that they could allow the offering of no evidence if it was satisfied that there was no undercharging of matters by the HCPC.
10. The Panel considered the submissions and determined that it would allow the withdrawing of all the particulars sought by Mr Ferson because it was satisfied there was no reasonable prospect of them being proved and thus there would be no undercharging by the HCPC. Further, the Panel concluded there would be no unfair prejudice to the Registrant by allowing the amendments.
11. The Registrant was employed for three days a week from 29 April 2015 as a locum Band 6 Physiotherapist at Central Surrey Health (CSH). After an initial complaint in August 2015 from Service User I that the Registrant had not attended upon her, CSH undertook an investigation which suggested that the Registrant had failed to attend upon appointments with many service users whilst recording that he had. These concerns were referred to the HCPC by CSH in September 2015.
Decision on facts
Witness 1 - Service User I
Witness 2 - Service User D’s wife
Witness 3 - Manager of Service User E’s care home
Witness 4 - Head of Planned Care at CSH
Witness 5 - Band 7 physiotherapist at CSH based at Epsom
Witness 6 - Band 7 physiotherapist at CSH based at Leatherhead
12. Witness 1 was Service User I and she gave her evidence over the telephone in accordance with an earlier case management direction. Witness 1 confirmed the contents of her signed witness statement dated 8 May 2017 and that she had only received physiotherapy treatment from the Registrant on one occasion, 22 June 2015. The Panel had sight of the detailed diary entries of Service User I. Witness 1 remembered that all he did was tell her to wiggle her toes.
13. When asked by the Panel to look at her own diary entry for 6 July 2015, which seemed to record another physiotherapy attendance, Witness 1 said that that was the day he asked her to wiggle her toes, so it was agreed that the Registrant had visited her twice, not once. Witness 1 could not recall talking to either Witness 5 or Witness 6 about the Registrant not attending his appointments with her, but she did remember making a formal complaint to CSH. Furthermore, she did not remember Witness 6 attending her house in order to treat her on multiple occasions.
14. Witness 2 was Service User D’s full-time carer and wife. She gave her evidence over the telephone in accordance with an earlier case management direction. She confirmed the contents of her signed witness statement dated 4 April 2017 that she keeps a diary detailing all of her husband’s medical appointments and related issues and that she was confident that it would be 99 percent, if not 100 per cent, accurate. The diary records that the Registrant did attend her husband on 1 May 2015, but thereafter two female Rehabilitation Assistants attended appointments with her husband. There was no record in her diary of a visit by the Registrant on 27 July 2015.
15. Witness 3 was the Service Manager at Bales Court Residential Care Home in Dorking where Service User E lived in 2015. She explained that the care home used a daily diary to record events relating to the Service User and a signing-in book which visitors should sign on each visit. In addition, any visiting health care professional will be accompanied by a member of care home staff and the visiting professional, or a member of the care home staff would be asked to complete a Health Appointment Record for that Service User.
16. Those records confirm that the Registrant signed into the care home on 8 July 2015 and in her witness statement, Witness 3 confirmed there was a note daily diary stating that Service User E had a “physio visit”. Witness 3 said that there was no record of the Registrant’s signature in the signing-in book throughout July and August 2015 and there was no Health Appointment Record completed by the Registrant in either month. Witness 3 added that there was no record in the daily diaries of the Registrant giving Service User E physiotherapy treatment. In fact the entries indicate that there were no “Health Appointments” on 3 and 14 August 2015.
17. Witness 4, previously Head of Planned Care at CSH from August 2015, explained that she was asked by CSH on 3 September 2015 to conduct an investigation into whether the Registrant had attended all physiotherapy appointments with service users. Witness 4 confirmed the contents of her signed witness statement dated 13 June 2016 which detailed the steps she took in her investigation and she produced her Investigation Report dated 21 October 2015.
18. Witness 4 had been given an audit of all of the Registrant’s cases conducted by CSH administrators, and compared those results with the Registrant’s own notes made on the electronic case management system used at CSH called RiO. As a physiotherapist, the Registrant needed to “outcome” an appointment from a drop-down list, e.g. “patient refused treatment”. There was a separate page on RiO to include the patient progress notes which detail the assessment and treatment.
19. Witness 4 explained how the audit of the Registrant’s entire caseload of 78 patients was organised and carried out. Witness 4’s line manager had devised a script for the administrators at CSH to use. Each patient was telephoned and asked for general feedback about the service they had received. The responses were recorded on to an initial rough audit sheet and then transferred on to a formal audit sheet.
20. The comparison of the records and the audit showed many discrepancies. The Registrant attended an investigatory meeting with Witness 4 on 21 October 2015 and the notes of this meeting were produced in the hearing bundle. At this meeting the Registrant denied all suggestions by service users that he had failed to arrange and attend visits.
21. Witness 5 is a Band 7 physiotherapist at CSH based at Epsom. She confirmed the contents of her signed witness statement dated 12 June 2017 and explained that she had spoken to Service User I over the telephone on 20 August 2015. Service User I was complaining that a physiotherapist had only visited once in June 2015, although the physiotherapist had said that he would be back in two weeks’ time. Witness 5 spoke to the Registrant about this on 21 August 2015 and the Registrant maintained that he had carried out visits every two weeks.
22. Witness 5 assessed Service User C on 1 September 2015. Her assessment findings were significantly different to the Registrant’s assessment recorded on 10 June 2015, and Service User C’s condition was not consistent with the improvement in his condition recorded by the Registrant in the clinical notes for 17 June 2015, 6 July 2015, 14 July 2015, 31 July 2015 and 12 August 2015.
23. Witness 5 also made a visit to Service User H on 3 September 2015. This was a 97 year old lady whom Witness 5 was confident had an excellent memory and was able to recall in detail what Witness 5 was asking her. Service User H told Witness 5 that the Registrant had visited her on 30 June 2015, but that she had not had any follow up for a long period until about two weeks before 3 September 2015. That visit had only been for about five minutes. This contrasted with the Registrant recording follow up appointments on 14 July 2015, 31 July 2015, 7 August 2015 and 14 August 2015. Witness 5 assessed Service User H’s condition to have deteriorated from the initial assessment of 30 June 2015, whereas an improvement would have been expected with the number of physiotherapy treatment sessions recorded. The deterioration was similar to that which Witness 5 had seen with Service User C.
24. Witness 6 is a Band 7 physiotherapist at CSH, based at Leatherhead Hospital, where the Registrant was based in 2015. She was not the Registrant’s line manager, but was responsible for his induction and signing off his weekly timesheets. Witness 6 confirmed the contents of her signed witness statement dated 24 April 2017. Witness 6 explained that after Service User I’s complaint was received, the Clinical Manager at CSH decided that she should visit Service User I with the Registrant to establish why Service User I was saying that she had not been visited. On 24 August 2015 the Registrant spoke to Witness 6 and told her that he did not wish to accompany her to visit Service User I because of his health and because he felt “victimised”.
25. Witness 6 visited Service User I alone on 24 August 2015. Service User I was clear that the Registrant had only visited her once and showed Witness 6 her diary which recorded his visit on 22 June 2015 and Witness 6 checked the rest of the diary from June to August to confirm that she had no other physiotherapy appointments on any other date. Service User I’s carer was present during the visit and the carer suggested that the Registrant had also not been visiting another service user, Service User F.
26. Witness 6 also visited Service Users E, F and L, and spoke to Service User J over the telephone to compare what they recalled with the Registrant’s records and detailed the discrepancies in her witness statement.
27. Mr Ferson submitted that the HCPC had produced sufficient evidence for the Panel to find that each particular of the Allegation proved on the balance of probabilities, except particular 1 L (i) where Service User I had accepted that there was a visit on 6 July 2015. He submitted that the evidence of the six HCPC witnesses was both credible and reliable, and supported by the exhibited documents they provided.
28. The Registrant submitted in his written representations that he had carried out all appointments that he is alleged to have not attended, but he accepted that “some of the notes were not made within the normally required timescales.”
29. The Panel accepted the Legal Assessor’s advice that the burden of proof was upon the HCPC to prove each and every Particular in the Allegation, and the standard of proof required was that a fact had to be proved on the balance of probabilities. The Panel also accepted that it should apply s.4 of the Civil Evidence Act 1995 in determining what weight to give the hearsay evidence of what the various service users told the administrators when the audit was undertaken.
30. The Panel carefully considered all the documentary and oral evidence, and the submissions made by Mr Ferson and the written representations of the Registrant.
31. The Panel first assessed the witnesses who had given evidence and made the following conclusions:
Witness 1 – she was elderly and, three years on from the relevant events, was a bit confused about events and therefore inconsistent at times. However, she was clearly a truthful witness and the Panel considered that her contemporaneous diary entries in 2015 were credible and reliable.
Witness 2 - she was a committed carer of her husband and carefully recorded each day all healthcare appointments. She gave her evidence in a measured way and the Panel determined that her evidence was both credible and reliable.
Witness 3 - in 2015 she was a newly appointed manager of the care home and was putting improved management systems in place. She gave her evidence in a clear and balanced way.
Witness 4 - she was a senior manager in physiotherapy services at CSH and was very knowledgeable of CSH’s processes. She gave her evidence in a consistent and credible way.
Witness 5 - her evidence was clear, openly stating which specific matters she either recalled or could not recall.
Witness 6 - she gave her evidence in a very open and balanced way. She was honest, credible and reliable.
32. The Panel determined to evaluate the specific hearsay evidence recorded in the audit conducted by administrators at CSH of the Registrant’s case load when it considered each particular of the Allegation in turn.
Particular 1 A – found not proved
33. The Registrant had recorded progress notes on the RiO system visits on 15 and 27 May 2015, 10 June 2015 and 13 July 2015. Only the RiO outcome entry by the Registrant for 13 July 2015 had been produced by the HCPC, not screenshots for the other three dates. The Registrant had also produced his own diary entry indicating he had visited Service User A on 13 July 2015. The only evidence to support the allegation that the Registrant did not attend Service User A on 13 July 2015 was the hearsay evidence of Service User A recorded in the audit, in which it recorded that Service User A said that the Registrant had only attended on three occasions. The notes in the audit are brief, and undated, both in respect of when Service User said this and in respect of the dates of the Registrant’s visits according to Service User A. This also conflicted with the rough audit notes in which it is recorded that Service User A said that the Registrant only visited once. The hearsay evidence could not be tested by the Panel.
The Panel determined that this particular was not proved on the balance of probabilities on this evidence.
Particular 1 C (i) – (v) – not proved
34. The Registrant had recorded outcomes on RiO for visits on 3, 6, 14 and 31 July 2015 and 12 August 2015. The Registrant had also made progress notes on RiO in respect of 10, 17, June 2015 and 6,14 and 31 July 2015 and 12 August 2015 but there was no progress note for 3 July 2015. He had produced his own diary entries noting all those visits including 3 July 2015. The audit by CSH records that Service User C’s daughter said that he had only had two visits from the physiotherapist “the last being over a month ago”. No date is provided for when that conversation took place nor dates provided of when the two visits by the physiotherapist took place. The HCPC also sought to rely on the similarity of the progress note entries. The hearsay evidence could not be tested by the Panel. The Panel determined that this particular was not proved on the balance of probabilities on this evidence.
Particular 1 D – found proved
35. The Registrant entered an outcome for the visit on 27 July 2015 on RiO, but did not complete a progress note on RiO in respect of this visit. The Registrant produced his own diary entry which recorded a visit to Service User D on 27 July 2015. Witness 2, Service User D’s wife, had given evidence that she carefully recorded all her husband’s healthcare visits and produced her diary entry for that day which did not record a physiotherapy visit. The Panel determined that this particular was proved on the balance of probabilities by Witness 2’s written and oral evidence supported by her diary entry.
Particular 1 E (i) – found not proved
36. The Registrant recorded the creation of an appointment and an outcome on RiO on 30 July 2015 for this visit of 27 July 2015, and produced his own diary entry recording a visit on 27 July 2015 to Service User E. The Registrant had not made any progress note on RiO in respect of this visit.
37. The care home signing-in book for 27 July 2015 has no entry recording the Registrant visiting Service User E on 27 July 2015. The Panel noted that Witness 3 had accepted that on occasion some visitors may not have signed in to the care home. However she was confident that all patients would be supervised during a healthcare visit and that all such visits would be recorded in the daily diary and any treatment received would be recorded in the health appointment record. This gave the Panel confidence that if nothing was written in any 3 of the places described then the visit did not occur. However, the care home’s Daily Diary entry for 27 July 2015 had not been requested or produced. The Panel determined that this particular was not proved on the balance of probabilities on this evidence.
Particular 1 E (ii) – found proved for 3 August not proved for 5 August 2015
38. The Registrant recorded both an outcome and progress notes on RiO visit for the 3 August 2015, although the progress note was entered 2 days later. In his written representations the Registrant does not suggest a visit took place on 5 August 2015, but confirms he attended on 3 August 2015. The Registrant confirmed he documented the visit on RiO on 5 August 2015. Witness 5 and 6 stated that as a part-time member of staff this delay in recording was acceptable.
39. The care home’s Daily Diary for Service User E 3 August 2015 records “no health appointment or concerns” for that day. The Registrant is not recorded as a visitor on that day in the care home’s signing-in book. The totality of this evidence persuaded the Panel to find on the balance of probabilities that the Registrant did not visit Service User E on 3 August 2015, despite claiming and recording that he had. The Registrant does not claim to have visited Service User E on 5 August 2015.
Particular 1 E (iii) – found proved for 14 August 2015. Not proved for 17 August 2015
40. The Registrant recorded an outcome note for 14 August 2015 on RiO on 17 August 2015, and also made progress notes on RiO on 17 August 2015. The Registrant has produced his own diary entry for 14 August 2015 recording a visit to Service User E on 14 August 2015 and in his written representations asserts that the visit was on 14 August 2015 rather than 17 August 2015.
41. The care home’s Daily Diary for Service User E for 14 August 2015 records “she didn’t have any health appointments to note”. The Registrant is not recorded as a visitor on that day in the care home’s signing-in book. The totality of this evidence persuaded the Panel to find on the balance of probabilities that the Registrant did not visit Service User E on 14 August 2015, despite claiming and recording that he had. The Registrant does not claim to have visited Service User E on 17 August 2015.
Particular 1 G (i) – found proved
42. The Registrant recorded an outcome on RiO for a visit on 20 July 2015 but dated progress notes 22 July 2015. His own diary records a visit to Service User G on 20 July 2015.
43. The Panel noted that the progress notes on RiO in the preceding weeks do not suggest that a physiotherapy visit was anticipated for Service User G on 20 July 2015, but it was recorded in the progress notes by a rehabilitation assistant on 22 July 2015 that the Registrant was due to review Service User G on 24 July 2015. This evidence persuaded the Panel on the balance of probabilities that the Registrant did not visit Service User G on 20 July 2015.
Particular 1G (ii) – found not proved
44. The Registrant recorded an outcome and a progress report on RiO for a visit on 24 July 2015. His own diary records a visit to Service User G on 24 July 2015. On 22 July 2015 a rehabilitation assistant recorded “Dinakur is due to r/v pt on Friday, so no RA visit this week.” This corresponds to the visit the Registrant claimed he had attended. The hearsay evidence could not be tested by the Panel. The Panel determined that this Particular was not proved on the balance of probabilities on this evidence.
Particular 1 H (i) – (iii)– found proved
45. The Registrant recorded outcomes and progress notes on RiO for visits to Service User H on 14 July 2015, 31 July 2015, 7 August 2015 and 14 August 2015, and produced his own diary entries for these dates to demonstrate those visits. A previous visit on 30 June 2015 is also recorded on RiO by the Registrant, as an outcome and in the progress notes.
46. The audit records that Service User H said that she had seen her physiotherapist on 7 August 2015 and had only seen him once before that visit, but no date for that visit is recorded in the audit. Witness 5 had visited Service User H on 3 September 2015 and was satisfied that, despite her great age, Service User H had an excellent memory and recall. Service User H told Witness 5 that she had seen the Registrant on 30 June 2015 for an initial assessment, but had not seen him again until a five minute visit about two weeks before Witness 5’s visit.
47. The Panel determined that Service User H’s hearsay evidence about the Registrant’s visits was reliable and, on the balance of probabilities, the Registrant had visited Service User H on 30 June 2015 and 7 August 2015, but had not visited her on 14 July 2015, 31 July 2015 and 14 August 2015.
Particular 1 L (i) – found not proved
48. As Mr Ferson had conceded, Service User I’s own diary had recorded a physiotherapy visit on 6 July 2015, so this particular was found not proved.
Particulars 1 L (ii) – (iv) – found proved
49. The Registrant had recorded outcomes on RiO for visits on 14 and 20 July 2015 and 7 August 2015, and had made progress notes for 20 July 2015 and 7 August 2015. He had also provided his own diary for those dates which recorded visits to Service User I.
50. Witness 1 was Service User I and the Panel found her oral evidence confused, but her daily contemporaneous diary entries reliable. There was also evidence from Witnesses 5 and 6 who said that they had discussed with Service User I the lack of visits described close to the time they were alleged. Witness 6 in her written and oral evidence said that there was “no evidence of any cognitive impairment of Service User I at the time she talked to her. That diary did not record any physiotherapy on any of those three dates. This evidence persuaded the Panel, on the balance of probabilities, that the Registrant had not visited Service User I on any of these three dates.
Particular 1 L (v) – found not proved
51. The Registrant recorded a visit on 14 August 2015 as an outcome on RiO and made a progress note on RiO on 14 August 2015. His own diary recorded a visit to Service User I. The Panel did not have Service User I’s diary after 12 August 2015. In the absence of Service User I’s diary entry for 14 August 2015, the Panel determined that it was not proved on the balance of probabilities that the Registrant did not visit Service User I on this date.
Particular 1 K – found not proved
52. A referral of Service User K to physiotherapy is recorded on 26 June 2015. An initial assessment by the Registrant was recorded on RiO for 30 June 2015 and a copy of the paper assessment provided. The Registrant had recorded on RiO for 24 July 2015 a visit on 15 July 2015 as an outcome and had made progress notes for that visit. His own diary recorded a visit to Service User K on 15 July 2015.
53. The audit notes record Service User K saying that he had only been visited once. The HCPC also sought to rely on the fact that Witness 5’s subsequent assessment of Service User K on 22 September 2015, as detailed in his progress notes, had very different results for the service user’s 180 degree turn (16 steps rather than 5 steps) as evidence of the Registrant not visiting on 15 July 2015.
54. The hearsay evidence could not be tested by the Panel. The Panel determined that this Particular was not proved on the balance of probabilities.
Particular 1 L (i) – (ii) – found not proved
55. The Registrant had outcomed a visit on 3 August 2015 on RiO on 5 August 2015 and had entered progress notes on 3 August 2015. He had also outcomed on RiO on 17 August 2015 a visit that appears on the screenshot to have been for 10 August 2015. The Registrant also made progress notes on RiO on 14 August 2015. In addition the Registrant produced his own diary which recorded visits to Service User L on 3 and 14 August 2015.
56. In the audit Service User L is recorded as being seen once by a male physiotherapist. There were no dates given for that visit, nor was there further information about when Service User L was spoken with.
57. The hearsay evidence could not be tested by the Panel. The Panel determined that this Particular was not proved on the balance of probabilities based upon the evidence.
Particular 1 M (i) – (iii) – found not proved
58. The Registrant recorded outcomes on RiO for visits on 24 and 30 July 2015 and 17 August 2015, and he had also recorded progress notes in respect of these visits. His own diary records visits to Service User M on all three of those dates.
59. In the audit, Service User M is recorded as not having had physiotherapy of any kind.
60. The hearsay evidence could not be tested by the Panel. The Panel determined that this Particular was not proved on the balance of probabilities based upon the evidence.
Particular 2 – found proved (1 D, 1 E (ii) (3 August 2015), 1 E (iii) (14 August 2015), 1 G (i), 1 H (i) – (iii), 1 L (ii) – (iv)
61. The Panel has already set out above that the Registrant had recorded that he had attended the visits which the Panel had determined that he did not attend.
Particular 3 – found proved (1 D, 1 E (ii) (3 August 2015), 1 E (iii) (14 August 2015), 1 G (i), 1 H (i) – (iii), 1 L (ii) – (iv), and 2)
62. The Registrant’s case through his written representations and his diary entries was that he did attend each and every appointment it was alleged by the HCPC that he had not attended. There was no issue concerning his state of mind about whether what he did was or would be considered dishonest or not. The Panel therefore only had to consider the issue of whether the Registrant not attending service users on the proven occasions, but recording that he had made those visits, would be considered dishonest by the objective standard of ordinary decent people.
63. The Panel determined that the proven facts in both particular 1 and particular 2 of the Allegation would be considered dishonest by those objective standards.
Decision on ground
64. Mr Ferson submitted that it was a matter for the independent professional judgement of the Panel to determine whether the proven facts amounted to misconduct which was serious. He submitted that the proven facts could properly be regarded as amounting to misconduct which was serious because they amounted to the Registrant’s breach of the following standards in the HCPC’s published “Standards of conduct, performance and ethics” relevant in 2015:
“1. You must act in the best interests of service users.
10. You must keep accurate records.
13. You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.”
65. The Registrant made no written representations about the ground of misconduct.
66. The Panel accepted the Legal Assessor’s advice that the matters of misconduct were matters for the independent professional judgement of the Panel. Misconduct requires a serious departure from the proper professional standards. A single negligent act or omission was unlikely to amount to misconduct, but could do so if particularly serious. Further, multiple negligent acts or omissions were more likely to cross the threshold of misconduct. Serious misconduct has been described by Cox J in CHRE v NMC & Grant  EWHC 927 (Admin) as conduct which put service users at unwarranted risk of harm; conduct which brought the profession into disrepute; conduct which breached a fundamental tenet of the profession, acting dishonestly, and conduct which fellow professionals would regard as deplorable.
67. The Panel carefully considered the proven facts and determined that a physiotherapist dishonestly not attending service users and making records stating that he had attended those service users, amounted to serious breaches of HCPC standards 1, 10 and 13. There was a risk to patients as it would be considered that they had received physiotherapy when they had not and their conditions could deteriorate. The proven facts also fell within all five categories of conduct capable of amounting to misconduct as identified by Cox J.
68. Accordingly, the Panel determined that the proven facts amounted to the ground of misconduct.
Decision on impairment
69. Mr Ferson submitted that the question of current impairment of fitness to practise by reason of the past misconduct was a matter for the independent judgement of the Panel. He further submitted that the Panel could properly consider the Registrant’s fitness to practise as being currently impaired by reason of the seriousness of the proven facts which all involved dishonesty, together with the lack of any evidence of the Registrant’s insight or any intention or willingness to seek to remediate his misconduct.
70. The Registrant made no written representations in respect of the issue of current impairment.
71. The Panel accepted the Legal Assessor’s advice that the Panel had to consider whether that past misconduct leads to this Registrant’s fitness to practise being impaired now. There are two component parts of the test for impairment. First, there is what may be termed the personal component of this decision. The Panel considers the proven past misconduct or other ground, together with all the other evidence the Panel have in respect of the Registrant, (e.g. insight, any evidence of the remedying of the deficiencies, the risk of repetition, the risk to the public presented by any repetition of the misconduct). Second, the Panel must also consider what may be termed the public component, namely, what would be the effect of not finding impairment on the wider public interest? That wider public interest includes the maintenance of public confidence in the profession and its regulator, and the declaring and upholding of proper standards of conduct. Those components are dealt with in the HCPTS’s Practice Note
“Finding that Fitness to Practise is ‘Impaired’ ” (March 2017).
72. The Panel determined that the Registrant had failed to demonstrate any insight into his dishonest conduct and his expressed intention of not continuing with a career in physiotherapy only demonstrated a lack of willingness to address and remediate his misconduct. In addition, there was a clear need in this case to find impairment in order to maintain public confidence in the profession and to declare and uphold proper standards of conduct for the profession.
73. Accordingly, the Panel determined that the Registrant’s fitness to practise is currently impaired by reason of his proven misconduct.
Decision on Sanction
74. Mr Ferson submitted that the determination of the appropriate sanction included the Panel weighing up the aggravating and mitigating factors. He submitted that the aggravating features of this case were its sustained nature; the vulnerability of the service users; the unwarranted risks to service users; and the Registrant’s complete lack of insight. Balancing against that were the mitigating factors of the Registrant’s previous good character and the matters in his personal life and health which were set out in his written representations.
75. The Registrant made no written representations regarding sanction.
76. The Panel accepted the Legal Assessor’s advice that:
a) The appropriate sanction, if any, is a matter for the independent judgement of the Panel;
b) The Panel must at all times bear in mind that the purpose of imposing a sanction is to protect the public in accordance with the over-arching objective of the exercise of the HCPC’s powers set out in Art. 3(4) of the 2001 Order, as amended. This includes promoting and maintaining the public’s confidence in the profession and promoting and maintaining proper standards of conduct. The purpose of a sanction is not to rehabilitate the Registrant, nor to punish the Registrant, although a restriction on the Registrant’s registration may have a punitive effect;
c) The Panel should consider the impact of a particular sanction on the Registrant, but it is not the primary consideration;
d) In a case involving dishonesty, the Panel must bear in mind that there is a broad spectrum of dishonest misconduct and dishonesty does not automatically lead to a striking off order Lusinga v NMC  EWHC 1458 (Admin) and Watters v NMC  EWHC 1888 (Admin);
e) The Panel must take account of the HCPC’s guidance in its published “Indicative Sanctions Policy” March 2017 (ISG), which includes the need for the Panel to exercise the principle of proportionality. This means that if a sanction is required, the sanction imposed should be the minimum appropriate sanction to achieve the over-arching objective. If the Panel deviates from the Policy, it should state clear and cogent reasons for so doing.
77. The Panel carefully considered all the circumstances of the case. The Panel determined that this case involved dishonesty at the higher end of the spectrum of dishonesty because the Registrant misled his employers into believing that he had undertaken his duties when he had not. Further, not attending vulnerable service users to carry out physiotherapy risked the welfare and health of those vulnerable service users. The Panel determined aggravating features of the case recited by Mr Ferson far out-weighed the mitigating factors he had also referred to.
78. The Panel determined that the gravity of the dishonesty and the risks it presented to service users, together with the need to maintain the public’s confidence in the profession and declare and uphold proper standards of conduct, meant that taking no action or issuing a caution would be wholly inadequate.
79. The Panel next considered the sufficiency and practicality of conditions of practice. The Panel determined that the Registrant’s complete lack of insight and his failure to express willingness to undertake remediation, made this sanction inappropriate and insufficient to achieve the over-arching objective.
80. The Panel therefore went on to consider suspension. The ISG states at paragraph 39:
“Suspension should be considered where the Panel considers that a caution or conditions of practice would provide insufficient public protection or where the allegation is of a serious nature but unlikely to be repeated and, thus, striking off is not merited.”
81. The Panel determined that it could not be said that the misconduct and dishonesty were unlikely to be repeated as referred to in paragraph 39. As Kerr J said in Burrows v General Pharmaceutical Council  EWHC 1050 (Admin) at :
“In a case of obvious dishonesty, not attending the hearing amounts virtually to courting removal”
82. The Panel determined that paragraph 41 of the ISG applied. That states:
“If the evidence suggests that the registrant will be unable to resolve or remedy his or her failings then striking off may be the more appropriate option...”
83. The Panel therefore determined that the appropriate, sufficient and proportionate order in this case was a striking off order.
84. Mr Ferson applied for an Interim Order on the grounds that it was necessary for the protection of the public and/or was otherwise in the public interest. These were serious matters that the Panel had determined had put service users at risk of harm.
85. The Panel accepted the advice of the Legal Assessor that the Panel should take into account the HCPTS Practice Note “Interim Orders” and could only make an Interim Order if it was of the view that an Interim Order was:
(i) necessary for the protection of members of the public;
(ii) is otherwise in the public interest; and/or
(iii) is in the interests of the Registrant.
86. The Panel took all the circumstances of this case into account, the submissions of Mr Ferson and the contents of the HCPTS Practice Note “Interim Orders”.
87. The Panel determined that, given its reasons for determining to make the substantive Order of Striking Off under Article 31(2) of the Health and Social Work Professions Order 2001, it would be inconsistent not to make an Interim Order of Suspension for 18 months. The Interim Order is necessary for the protection of the public and is otherwise in the public interest. The period of 18 months is appropriate because, if the Registrant appeals, it could take a considerable amount of time before the appeal is determined by the Court.
The Registrar is directed to strike the name of Mr Dinakar Premkumar from the Register on the date this order comes into effect.
No notes available
History of Hearings for Mr Dinakar Premkumar
|Date||Panel||Hearing type||Outcomes / Status|
|18/06/2018||Conduct and Competence Committee||Final Hearing||Struck off|