Mr Zuber Haji

Profession: Occupational therapist

Registration Number: OT31348

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 24/09/2018 End: 16:00 26/09/2018

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

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

(as amended at the Final Hearing commencing 24 September 2018)


While registered with the Health and Care Professions Council as an Occupational Therapist, you:


1. Sometime before 25 November 2014, completed an application form for a post as a Senior Practitioner with the East London NHS Foundation Trust, and stated on the application form that your reason for leaving a previous employer, the North East London NHS Foundation Trust (NELFT), was to “return to clinical work”, when in fact you had been dismissed by NELFT for gross misconduct.


2. Did not declare that you had been dismissed by NELFT for gross misconduct after you were offered the position of Senior Practitioner at East London NHS Foundation Trust.


3. While employed by NELFT:


a) submitted NHSP e-timesheets claiming that you had worked on the following dates, when you had not:

i) 21 January 2010

ii) 12 February 2010

iii) 21 May 2011

iv) 30 May 2011


b) self-authorised NHSP e-timesheets for 81 shifts from 2009 onwards.


4. The matters described in particulars 1 - 3 are dishonest.


5. The matters set out in Paragraphs 1 - 4 constitutes misconduct.


6. By reason of your misconduct, your fitness to practise is impaired.

 

Facts Proved: 1, 2, 3(a)(i-iv), 3(b), and 4 in relation to Particulars 1, 2 and 3(a).

Facts Not Proved: 4 in relation to particular 3(b).

Grounds: Misconduct

Fitness to Practise Impaired: Yes

Sanction: Striking Off Order

Finding

Preliminary Matters

1. The Registrant, Mr Zuber Haji, did not attend this hearing. Accordingly, at the commencement of the hearing the Panel requested that it should be satisfied that he had been given notice of the hearing. A letter informing the Registrant of the date, time and location of the hearing was sent to the Registrant’s HCPC Register address on 10 July 2018. The Panel was satisfied that this constituted good service of the Notice of Hearing.

Proceeding in the absence of the Registrant

2. After the Panel announced its decision that it was satisfied that there had been good service of the Notice of Hearing, the Presenting Officer applied for a direction that the hearing should proceed in the absence of the Registrant. In connection with this application, the Presenting Officer informed the Panel that the history of the fitness to practise proceedings was somewhat more involved than is usually the case. Initially, the Investigating Committee was asked to consider whether there was a case to answer in relation to the HCPC’s case in relation to the application for employment with the East London NHS Foundation Trust (“ELFT”), that is to say, essentially the issues reflected in Particular 1 before the present Panel. Finding that there was a case to answer in relation to that allegation, on 14 December 2016, the Investigating Committee referred an allegation to the Conduct and Competence Committee for a substantive hearing.

3. In due course the substantive hearing was listed for hearing over three days in mid-October 2017. However, before that substantive hearing took place, the HCPC decided that it wished the Investigating Committee to consider whether there was also a case for the Registrant to answer in relation to the Registrant’s alleged dishonesty when working at the North East London NHS Foundation Trust (“NELFT”). That matter was considered by the Investigating Committee on 23 May 2018 when it was decided that there was a case to answer. This procedural history is relevant to the explanation of very limited engagement of the Registrant in the HCPC fitness to practise process.

4. The Panel was told that the Registrant did not make any representations for either of the Investigating Committee “case to answer” decisions. Indeed, the only contact made by the Registrant to the HCPC was his return to the HCPC in June 2017 of a pro-forma document entitled “PRE HEARING INFORMATION FORM” in which he stated that he did not have a representative and that he was not planning to attend the final hearing as originally scheduled after the initial Investigating Committee decision.

5. In considering the application to proceed in the Registrant’s absence, the Panel heeded the advice it received from the Legal Assessor and fully took into account the guidance contained in the HCPTS Practice Note entitled, “Proceeding in the absence of the Registrant”. The conclusion of the Panel was that the hearing should proceed in the Registrant’s absence. The reasons for this decision were as follows:

• The Panel concluded that the Registrant had voluntarily waived his right to attend the hearing. The details of the present hearing had not only been communicated to the Registrant by the Notice of Hearing dated 10 July 2018 to which reference has already been made, but was also contained in the hearing bundle sent to him by the HCPC’s Solicitors. The hearing bundle was sent to him by special delivery on 3 August 2018 and was not returned to the Solicitors. In addition to correspondence concerning the specific date of the present hearing, the Panel accepts that there were many other communications that alerted the Registrant to the on-going fitness to practice process. These included letters written before the two Investigating Committee decisions inviting representations from the Registrant, and letters sent on 8 February 2018 and 24 May 2018 concerning proposed amendments to the factual particulars of the Allegation. Looked at in the round, and notwithstanding the return of the pre-hearing enquiry document in June 2017, it was apparent that the Registrant did not desire to engage further in this process.

• There was no application for an adjournment of the hearing or explanation for non-attendance.

• It followed that there were no grounds on which the Panel could conclude that the Registrant would engage to a greater extent in the future if the hearing did not proceed at the present time.

• The records of interviews of the Registrant undertaken on behalf of the two Trusts involved, provided some evidence of the Registrant’s case in relation to the relevant matters.

• There were two witnesses already in attendance, a further witness due to attend on the afternoon of the first day and another witness the following day.

• The factual issues were already very old – dating back more than 8 years, thereby rendering further delay particularly undesirable.

• For all these reasons the Panel concluded that the public interest in an expeditious disposal of the case outweighed any disadvantage arising from the absence of the Registrant, such a conclusion requiring a direction that the hearing should proceed in the absence of the Registrant.

Application to amend the factual particulars of the allegation.

6. The HCPC wrote to the Registrant on 8 February 2018 informing him of its intention to seek an amendment of the factual particulars at the commencement of the hearing. The proposed amendments notified to him was to add as a separate and discreet head of complaint that the earlier dismissal for gross misconduct was not disclosed after the later position was offered. At the hearing the Presenting Officer also sought to amend the date contained in particular 1 from “In or around March 2013” to “Sometime before 25 November 2014”. This latter proposed change was sought on the basis that the date originally alleged was incorrect as it was the date of the earlier dismissal and not the date of the application for the later employment. As such, it was submitted, although the Registrant had not been put on notice of the proposed change, he could not be prejudiced as the issue was clear and he was aware of the true period when he made the allegedly false declaration.

7. The Panel approached this application on the basis that the proposed changes accorded with the case the HCPC proposed to advance, and that therefore they would be desirable if they accorded with the thrust of the first “case to answer” decision referring that part of the case to the Conduct and Competence Committee, and could be made without the risk of prejudice to the Registrant. The Panel was satisfied that they did accord with the “case to answer” decision and that, if permitted, would not prejudice the Registrant. The Panel therefore acceded to the HCPC’s application to amend the factual particulars. The allegation as it appears at the head of this document includes the factual particulars as amended.

Application in relation to the witness NS.

8. The HCPC had intended to call NS (whose involvement in the matters reflected in Particulars 3(a) and (b) will be described later) to give oral evidence before the Panel. Within the last week the HCPC had been informed by NS that ill-health prevented him from attending the hearing. The Panel therefore considered whether further enquiries should be made to see if NS could participate by telephone, or whether the HCPC should be permitted simply to rely on his witness statement. For reasons that again will be described below, the Panel was satisfied that there were no issues it was necessary to explore with NS, and accordingly stated that it was content for the HCPC to rely on the written witness statement alone.


Background

9. In February 2015, the Registrant commenced working as a Band 7 Occupational Therapist with the ELFT. In August 2015, ZB, a Counter-Fraud Specialist working with the ELFT, undertook what is known as an “Intra Authority Transfer Review” (“IAT”). It was not an exercise targeted at the Registrant, or indeed any particular individual. The exercise involved taking a random selection of employees and reviewing their “Portable Data Set” (records that accompany an individual as they move between roles in the NHS). The focus of the review was the dates individuals had left previous positions, and the reasons why they left them. The Registrant was one of the individuals selected for examination. On checking his records, ZB discovered that his previous position came to an end on 19 March 2013 and the reason for it ending was that he was dismissed on the grounds of his conduct. This discovery led to an examination of what the Registrant had disclosed about this earlier employment and the reason for it ending. Particulars 1 and 2 are concerned with this issue.

10. The post from which the Registrant was dismissed on the grounds of gross misconduct was with NELFT. The Registrant commenced working for NELFT in 2009 as an Occupational Therapist, but by the time he was dismissed he was working at Band 8a as Manager of the Home Treatment Team in Waltham Forest. The basis for his dismissal on the ground of gross misconduct was the matters reflected in Particulars 3(a) and (b) being considered by the Panel.

11. The HCPC allege that all of the matters alleged against the Registrant amount to dishonest behaviour. It is alleged that the Registrant’s fitness to practise as an Occupational Therapist is impaired by reason of the misconduct demonstrated by the factual particulars.


Decision on Facts

12. The Panel received and accepted legal advice.

13. The HCPC relied upon the evidence of four witnesses who gave evidence before the Panel. The following is a description of these witnesses, together with a brief description of their involvement in the relevant matters and the Panel’s general assessment of them:

• Witness ZB. The role of ZB as a Counter Fraud Investigator who was working with ELFT in 2005 and who undertook the sampled IAT review has already been explained. The Panel found her to be independent, objective and balanced in her evidence. The Panel could find no reason to doubt the evidence she gave.

• Witness AO. Employed by ELFT as the Borough Lead Nurse, AO was charged with the task of undertaking an investigation on behalf of ELFT into the matters reflected in Particulars 1 and 2 being considered by the Panel. AO gave a credible and balanced account of his involvement, and the Panel was satisfied that it could safely rely upon the evidence he gave.

• Witness GN. Under a secondment arrangement GN was the Operational Lead of the Stepney and Wapping Community Mental Health Team. In that role he drafted the job application, sifted the applications and was the lead interviewer for the post to which the Registrant was appointed with ELFT. When the Registrant was in post he was his line manager. The impartiality of his evidence was demonstrated by the positive view he expressed of the Registrant’s clinical work. The Panel had no reason to doubt his evidence.

• Witness MG was employed by NELFT as a Service Manager of Child and Adolescent Mental Health Services. She took over the investigation commenced by NS into the claims for shifts worked by the Registrant. The Panel found her to be a particularly credible witness who undertook a thorough investigation that was demonstrably fair to the Registrant.

14. It is fair to record that all of the witnesses were being asked to recall their respective involvement in events that occurred some considerable time ago. The passage of time necessarily created difficulties for them, but the Panel was satisfied that notwithstanding those difficulties the evidence it received, together with the documentation produced, was reliable.

15. In addition to the evidence of the four witnesses who gave evidence before the Panel, the HCPC also relied upon the written witness statement of NS. NS was a counter-fraud specialist who commenced the investigation into the allegations concerning the Registrant’s claims for shifts worked. Although NS gathered relevant information (for example, he sought a report of the Registrant’s activities on the RiO electronic recording system and with regard to fob access to relevant buildings), the investigation was transferred to MG who completed the exercise. Crucially the Panel considered that there would be no unfairness to the Registrant in permitting NS’s evidence to be given only by his witness statement as MG’s investigation subjected NS’s findings to close scrutiny and resulted in it being alleged that far fewer shifts (4 instead of 69) had been claimed for when not worked.

16. In addition to the written and oral evidence of the witnesses, the Panel was provided with a significant body of documentary evidence, including appendices to investigation reports. Included in the documentary exhibits were records of interviews with the Registrant and other individuals. In reaching its decisions the Panel fully considered the accounts given by the Registrant during the two Trust investigations.

17. The Panel remembered at all times that in relation to its findings on the facts that the burden of proof rested squarely on the HCPC. All of the evidence was considered by the Panel when making its decisions. There is one issue that should be specifically mentioned. It was appropriate that the Panel should have been informed of the outcome of the NELFT disciplinary process for the simple reason that the reason for the termination of the Registrant’s employment with that Trust was central to Particulars 1 and 2. However, the evidence produced by the HCPC was limited to the outcome of the internal disciplinary process and did not include any detail of the reasons for that outcome. In reaching its decisions on Particulars 3(a) and (b) the Panel was careful to be wholly uninfluenced by any inference that might have been drawn from the outcome of the NELFT disciplinary process.

Particular 1 – Found Proved

1. Sometime before 25 November 2014, completed an application form for a post as a Senior Practitioner with the East London NHS Foundation Trust, and stated on the application form that your reason for leaving a previous employer, the North East London NHS Foundation Trust (NELFT), was to “return to clinical work” when in fact you had been dismissed by NELFT for gross misconduct.

18. The interview that resulted in the Registrant being appointed by ELFT was held on 25 November 2014. The Panel is therefore satisfied that he completed the application form before that date. The Panel has been supplied with a copy of the application form completed by the Registrant. His employment with NELFT was disclosed, but against the question relating to the reason for the Registrant leaving that employment, he stated, “Return to clinical work”. On the basis of the evidence of GN, the Panel is also satisfied that the Registrant did not disclose during the interview that he had been dismissed. The documentary evidence provided to the Panel, in particular the letter dated 19 March 2013, communicating the outcome of the Registrant’s appeal against his dismissal, demonstrates that his NELFT employment ended as a result of dismissal on the grounds of his gross misconduct. When interviewed by AO on 8 December 2015 the Registrant did not dispute that he had not given the correct reason for his dismissal. He stated, “I take responsibility for not choosing to disclose it on my application form.”

19. For these reasons the Panel finds particular 1 to be proven.

Particular 2 – Found Proved

2. Did not declare that you had been dismissed by NELFT for gross misconduct after you were offered the position of Senior Practitioner at East London NHS Foundation Trust.

20. On 4 December 2014 the Registrant was sent a “Conditional Offer of Employment” letter. The letter stated, “you must sign and return pages 9, 10 & 11”. Page 9 was the Staff Appointment Acceptance Form, and pages 10 and 11 were the “Criminal Conviction and Professional Practice Declaration”. This document included the words, “Please return to your Recruitment Officer” and “THIS FORM MUST BE COMPLETED IN FULL”. The instructions required that the appointee should check all the boxes that applied. One box was particularly relevant because it required a reply to the question, “I have not previously been dismissed from any employment, office or other position by reason of misconduct.”

21. On 12 February 2015, shortly after the Registrant started his employment with ELFT, he was sent an email by a Recruitment Officer who noted that he had not received a copy of the Registrant’s acceptance of offer. Following this request the Registrant hand delivered page 9, and when ZB investigated matters this document was in the Registrant’s HR file. However, pages 10 and 11 were not on that file, and the Recruitment Officer who emailed the Registrant on 12 February 2015 confirmed to ZB that those pages had not been received from the Registrant. Further, GN, the Registrant’s line manager, informed the Panel that he had been unaware of any issue concerning the earlier employment until shortly before ZB interviewed him in October 2015. When the Registrant was interviewed by AO on 8 December 2015, he was asked why he had not disclosed the dismissal despite being given a few opportunities to do so, he replied, “I wanted to find another job.” He was specifically asked why he had not completed the Criminal Conviction and Professional Declaration Form and said, “To be honest it slipped my mind. That is why I had not sent it back”. On the basis of all this evidence the Panel was satisfied that the Registrant did not declare that he had been dismissed by NELFT for gross misconduct after he was offered the ELFT post.

22. Particular 2 is proven.

Particular 3(a)(i-iv) – Found Proved

3. While employed by NELFT:

a) submitted NHSP e-timesheets claiming that you had worked on the following dates, when you had not:

i) 21 January 2010

ii) 12 February 2010

iii) 21 May 2011

iv) 30 May 2011

23. The nature of the work being claimed for by the e-timesheets is central to the Panel’s decision on this particular. It has already been explained that the Registrant’s employment with NELFT was as a Manager of a Home Treatment Team, working at Band 8a. The e-timesheets were submitted in respect of work said to have been undertaken for an organisation known as NHS Professionals (“NHSP”), a provider of temporary staff. Importantly, the work claimed for by the Registrant in respect of this work was not managerial work, but rather clinical work at Band 6 level. In order to be paid for this work it was necessary for e-timesheets to be submitted and authorised.

24. MG was appointed as an Investigating Officer on 23 August 2012. The information she inherited from NS who had commenced the investigation suggested that there were 69 shifts claimed for that had not been worked. However, MG as a manager working in CAMHS had a better understanding of the RiO electronic recording system than NS, and she was able to interrogate that system beyond that which had been undertaken by NS. In addition to interrogating different levels of RiO, MG also looked for evidence of RiO use by the Registrant for two days either side of the days said to have been worked. This was to check whether service user details had been obtained in advance of working the clinical shift, and to allow for the possibility that clinical involvement was not recorded promptly after any clinical contact. MG also went to the premises from which the work would be undertaken, and she ascertained that there were parts of the building that could be accessed without the use of a fob. Furthermore, the Registrant told her that he might have lost fobs or used temporary fobs. Her conclusion was that in relation to fob access, evidence of fob use would be sufficient to suggest a shift had been worked, but the absence of fob access on its own would not justify an allegation that a claim had been made for a shift not worked. She also interviewed the Registrant more than once and took account of any evidence he provided as to activities undertaken on the shifts she was considering. The conclusion of MG was it was only in respect of the four shifts alleged in Particular 3(a) that it could safely be concluded that the Registrant had not worked during the period claimed for.

25. The Panel approached its decision on this issue by considering, first, whether it was a proper, safe and fair approach to say that if work had been undertaken there would have been fob access or email exchange or other RiO activity around the shift. It is in respect of this issue that it is crucial that the work was clinical and not managerial. The Panel concluded that had a shift been worked there would have been at least one form of evidence present as outlined above, namely use of fob, email or RiO access. The second issue the Panel considered was whether it accepted the evidence of MG that in relation to the four relevant shifts there was no such contemporaneous evidence. The Panel concluded that the fairness and thoroughness of the investigation undertaken by MG had the consequence that her account that there was no evidence of fob, email or RiO access was to be accepted. Accordingly, the Panel found that on a balance of probabilities, the HCPC had discharged the evidential burden in relation to Part
icular 3(a).

26. There is one aspect of the evidence considered by MG that should be mentioned by the Panel. As already stated, MG interviewed the Registrant who took the opportunity to produce information relating to work he had undertaken. The approach of MG was to exclude as a shift alleged not to have been worked one in relation to which the Registrant produced some evidence of activities. In relation to the four shifts being considered by the Panel, the Registrant did not produce any evidence of work undertaken, a fact he acknowledged in an interview on 8 December 2015 during the ELFT investigation. However, given the passage of time between the dates of the shifts allegedly not worked and the investigation by MG (a period that extended from three years to well over one year), the Panel would not consider it fair to place any weight on the inability of the Registrant to prove that he had worked on those days.

27. Particular 3(a) is proven.

Particular 3(b) – Found Proved

3. While employed by NELFT:

b) self-authorised NHSP e-timesheets for 81 shifts from 2009 onwards.

28. At the outset of the hearing the Presenting Officer clarified that the criticism in relation to the self-authorisation of e-timesheets for 81 shifts was that authorisation should not have been undertaken by the person making the claim.

29. The Panel was presented with a copy of the print-out of the claims made by the Registrant for 81 shifts. When interviewed for the purposes of the NELFT the Registrant accepted that he had authorised these claims, advancing an explanation to which it will be necessary for the Panel to return when it explains its reasons on dishonesty relating to this issue. However, on the simple issue of whether the claims were self-authorised, the Panel finds that they were.

30. Particular 3(b) is proven.

Particular 4 – Found Proved (in part)

4. The matters described in particulars 1 – 3 are dishonest.

31. The Panel accepted the advice it received that in relation to the contention that the Registrant’s actions were dishonest, it was necessary for the Panel to:

• consider the matter separately in relation to each of the Partiuclars, 1, 2, 3(a) and 3(b); and in doing so,

• apply the approach outlined by the Supreme Court in Ivey v Genting Casinos.

32. Particular 4 with regard to Particular 1. In interview the Registrant stated that he accepted responsibility for not choosing to disclose the NELFT dismissal. He stated that he needed stability and referred to difficulties he had encountered in his personal life. The Panel is satisfied that the Registrant knew that he should have disclosed the dismissal but did not do so because disclosure would have jeopardised his prospects of securing the position he had applied for. The Panel is also satisfied that by the standards of ordinary decent people that was dishonest conduct.

33. Particular 4 with regard to Particular 2. The evidence discloses that the Registrant was selective in the documents he returned to the Recruitment Officer, returning page 9 but not pages 10 and 11. The Panel is satisfied that the omission was deliberate, the Registrant’s intention being to maintain ELFT’s ignorance of his earlier dismissal that started with the false statement in the application form. The Panel rejects the explanation advanced by the Registrant to AO that the return of the relevant pages had slipped his mind. Given the deliberate nature of the Registrant’s failure to declare the dismissal following the offer of the ELFT employment, the Panel is satisfied that ordinary decent people would consider the Registrant’s actions to be dishonest.

34. Particular 4 with regard to Particular 3(a). The submission of the e-timesheets (in effect the self-authorisation of the four relevant claims) was undertaken so soon after purported working of the shifts, the Panel is satisfied that the claims cannot have been made in error or as a result of the Registrant being confused about the days on which he had worked. When the claims were made he knew that he had not undertaken the relevant work. The claims were made dishonestly.

35. Particular 4 with regard to Particular 3(b). There being no discernible difference between submission of e-timesheets and the self-authorisation, the Panel has concluded that in fairness to the Registrant it is necessary to consider this issue in relation to the 77 e-timesheets represented by the 81 included in Particular 3(b) less the 4 in Particular 3(a). The issue is therefore not whether the work claimed for was undertaken, but whether, on the assumption that it was undertaken, the claim for it could have been authorised by the Registrant himself. When asked about this issue the Registrant stated that he had not intended to be fraudulent but had never been given any guidance. The HCPC has advanced the case against the Registrant on the basis that it is self-evident that authorisation would be required by someone other than the claimant; the HCPC did not rely on any protocols or evidence that the Registrant had in fact been given any guidance. The Panel concluded that it might be thought surprising that the Registrant, working at Band 8A in a managerial position, did not appreciate that it was inappropriate to self-authorise, but that the HCPC had not discharged the burden of proving that the Registrant had that actual knowledge. That being the case, the Panel concluded that the evidential threshold required to prove that Particular 3(b) would be considered dishonest by ordinary decent people was not reached.

36. Particular 4 summary. It follows from these findings that Particular 4 is proven with regard to Particulars 1, 2 and 3(a), but not with regard to particular 3(b).


Decision on Grounds

37. The Panel received and accepted legal advice.

38. The facts found proved by the Panel demonstrate that over a period in excess of 5 years the Registrant committed acts of dishonesty with the intention of gain. The intention with regard to the submission of e-timesheets in respect of the four shifts not worked was pecuniary gain. The intention with regard the failure to disclose the dismissal by NELFT and the reasons for it was to secure employment the Registrant feared he would not obtain if he made the disclosure he knew he should have made. The Registrant was dishonest in his failure to disclose dishonesty.

39. The requirement of honesty lies at the heart of the responsibilities of all professionals. This applies to Occupational Therapists just as much as other professionals. This obligation is underscored by the terms of Standard 13 of the HCPC’s Standards of Conduct, performance and ethics as they were framed at the relevant time, “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.”

40. The Panel is satisfied that the shortcomings identified by the Panel’s findings represent behaviour sufficiently serious as properly to be characterised as misconduct. Given the fact that the Panel did not find that Particular 3(b) amounted to dishonest behaviour, the Panel did not include that particular in the finding of misconduct.


Decision on Impairment

41. The issue it is necessary for the Panel to decide is whether the established misconduct, arising as it does from the proven particulars, is currently impairing the Registrant’s fitness to practise as an Occupational Therapist. In reaching its decision the Panel has had regard to the HCPTS Practice Note on the topic, and it has heeded the guidance in that document to consider both the matter from the perspective of both the personal component and the public component.

42. So far as the personal component is concerned, the Panel is of the view that shortcomings of the type identified by this case are not easily remedied. It is fair to the Registrant to acknowledge that when interviewed on behalf of ELFT he accepted that he had knowingly failed to make the required disclosure, and he offered an apology for failing to do so and gave an explanation as to his personal circumstances at the time. However, even in relation to the ELFT employment his acceptance of wrongdoing was limited because he did not acknowledge a deliberate failure to return or make the declaration after being offered the post. In relation to claiming for work not undertaken during the NELFT employment, there was no acceptance by the Registrant that he had acted inappropriately. These limitations, coupled with the fact that there has been no meaningful engagement with his professional regulator, has resulted in the Panel concluding that the Registrant may repeat behaviour of the sort that has been found against him.

43. It follows from these findings that the Registrant’s fitness to practise is impaired upon consideration of the personal component.

44. In relation to the public component the Panel is of the view that there can be only one decision. Even if the risk of recurrence was not as it is, the Panel is of the clear view that the wider public interest would require a finding of current impairment of fitness to practise in order to declare and uphold proper professional standards and to make it very clear that behaviour of the sort found in this case will not be overlooked by the regulator. Given that there is a risk of recurrence, the Panel is satisfied that fair-minded members of the public would be dismayed were the matter not to be marked by a finding of impairment of fitness to practise.

45. The finding that the Registrant’s fitness to practise is impaired has the consequence that the Panel must consider the issue of sanction.


Decision on Sanction 

46. After the Panel announced its decision on the allegation, the Presenting Officer made submissions on the issue of sanction. He identified what he submitted were aggravating factors, namely that the dishonesty was repeated and spanned a number of years. He also submitted that it was premeditated and undertaken with the intention of gain. As a factor to be considered in the Registrant’s favour he reminded the Panel of the positive evidence concerning his clinical abilities. The Presenting Officer urged the Panel to have regard to the HCPC’s Indicative Sanctions Policy and he took the Panel to various paragraphs in it and highlighted aspects of the guidance relating to specific sanctions. The Presenting Officer submitted that ultimately the decision was one for the Panel’s discretion.

47. The Panel received and accepted legal advice and the guidance contained in the Indicative Sanctions Policy. Accordingly, it has approached the issue of sanction on the basis that a sanction is not to be imposed to punish the Registrant. Rather, a sanction is required to be the least restrictive outcome consistent with the need to protect the public and maintain a proper degree of confidence in the Registrant’s profession and the regulation of it. In order to ensure that any sanction decision accords with this approach, the Panel must first decide if the finding on the allegation requires the imposition of any sanction. If it does, then the available sanctions must be considered in an ascending order of seriousness until one that meets the identified goals is reached. The appropriateness of any sanction decided upon by this process is to be tested by the Panel being satisfied that the next more restrictive sanction is not appropriate. As the finding in the present case is one of misconduct, the whole sanction range up to and including striking-off is available.

48. The Panel began its deliberations on the issue of sanction by identifying positive and negative aspects of the case. Although the allegation found proved against the Registrant did not bring into question his professional skills and knowledge, the Panel considered that it was relevant to note the positive evidence concerning the Registrant’s professional performance given by GN and contained in written references included in the HCPC’s documentary exhibits. It is also fair to record that the Registrant apologised for his actions with regard to the ELFT job application. The aggravating factors were the repeated actions over a period of time undertaken with a view to obtain gain. Also, there was no acceptance of wrongdoing in relation to the four shifts not worked at NELFT.

49. In the judgment of the Panel the findings made against the Registrant are far too serious to result in no further action being taken, or for a caution order to be imposed. Furthermore, a conditions of practice order is not appropriate not only because of the inapplicability of conditions to address findings of dishonesty but also because of the lack of engagement in the process. It followed that the Panel was left with a choice between making a suspension order or the ultimate sanction of striking off.

50. In order to be permitted to practise there must be confidence that a practitioner will act honestly and with integrity. The Panel has found there is a risk that the Registrant will repeat dishonest behaviour. It follows that while such a risk remains the Panel cannot impose a sanction that would enable the Registrant to return to practise.

51. Despite the serious dishonesty found proved, if there had been reasons for believing that the Registrant intended to address matters and take steps to reassure a future panel that the risk of further dishonest conduct was significantly reduced, then the present Panel would not consider that a striking-off order would be appropriate. In such circumstances the Panel would consider that a suspension order preventing practice during the period before a future panel could fully assess the future risk would be appropriate. However, the position in the present case is that there are simply no grounds on which the Panel can conclude that the Registrant would wish to avail himself of the opportunity to demonstrate to a future panel that the risk of further dishonest behaviour has reduced. The sole act of engagement on the part of the Registrant was to state in June 2017 that he did not intend to engage in the final hearing that was then envisaged to take place later that year. Apart from that single communication the Registrant has not taken any steps to participate in the fitness to practise process. The inability of the Panel to conclude that the Registrant would take advantage of any period of suspension to demonstrate that the risk of repetition has reduced has the inevitable consequence that the risk of repetition at the conclusion of any period of suspension would be as great as it is at the present time. For this reason the Panel has concluded that the imposition of a suspension order is not appropriate.

52. The inevitable consequence of these findings is that the sanction to be imposed is a striking-off order. The Panel has considered whether this is a proportionate outcome, and is satisfied that it is. This is a case in which serious and repeated dishonesty has been demonstrated, and there are no grounds on which it can be concluded that the risk of repetition will be reduced. That being the case, only a striking-off order will extend the required degree of protection and provide the necessary reassurance that dishonest behaviour of the sort proved is incompatible with HCPC registration.

Order

The Registrar is directed to strike the name of Mr Zuber Haji from the Register on the date this Order comes into effect.

Notes

Interim Order

The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

Reasons for making the Interim Order:

1. The Panel initially considered whether it was appropriate to consider making an interim order in the absence of the Registrant. The Panel concluded that it was because by the notice of hearing letter dated 10 July 2018 sent in respect of the present hearing the Registrant was put on notice that in in the event of the imposition of a sanction which removed, suspended or restricted his right to practise, the Panel might also impose an interim order. In the judgement of the Panel this notice afforded the Registrant the opportunity to make representations on the issue of an interim order.

2. The Panel approached the question whether an interim order should be made by accepting that the default position established by the legislation is that there is no restriction on a registrant’s right to practise while his or her appeal rights remain extant.

3. However, the Panel concluded that the serious misconduct found in this case requires an interim order because it is necessary for protection of members of the public and is otherwise in the public interest.

4. Notwithstanding the fact that the Panel rejected conditions of practice as a substantive sanction, it considered whether conditions imposed on an interim basis would address the reasons why an interim order is required. The Panel concluded that interim conditions were not appropriate for the same reasons it rejected them as a sanction.

5. It followed from these findings that an interim suspension order is required.

6. The Panel considered the appropriate length of the interim order and decided that it should be for the maximum period of 18 months. This is because the interim order will automatically fall away if no appeal is made within the 28 day period, yet if an appeal is brought it could take the full period of 18 months for the appeal to be finally determined.

Hearing History

History of Hearings for Mr Zuber Haji

Date Panel Hearing type Outcomes / Status
24/09/2018 Conduct and Competence Committee Final Hearing Struck off
16/10/2017 Conduct and Competence Committee Final Hearing Adjourned