Mr Boben Zacharia
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Particulars: 1(a); 1(b)(i); 1(b)(ii) in relation to Patient B, 1(c)(i) and (ii); 1(d), 1(e)(i) in relation to 2 October, 1 (e)(ii), 1(f), 2(a)(ii), 2(b) in relation to patient C, 2(c), 3(a), 3(b), 3(c)
Facts not proved:
1(b)(ii) in relation to Patient C, 1(e) in relation to 9 October, 2(b) in relation to Patient B.
Proceeding in the absence of the Registrant
1. The Registrant did not attend the hearing. The Panel was satisfied that notice of the hearing was sent to the Registrant at his address as it appeared in the Register on 10 April 2019. The notice contained the date, time and venue of today’s hearing. The Panel accepted the advice of the Legal Assessor and is satisfied that notice of today’s hearing has been served in accordance with Rule 6(1) of the Conduct and Competence Committee Rules 2003.
2. On behalf of the HCPC, Ms Senior asked the Panel to proceed in the absence of the Registrant. Ms Senior had received an email from the Registrant at 9.12am today. The Registrant confirmed that he would not be attending the hearing. He did not request an adjournment or continuation. Ms Senior submitted that the Registrant was clearly aware of the hearing and had voluntarily decided not to attend. No useful purpose would be served by any continuation or adjournment.
3. The Legal Assessor drew the Panel’s attention to the guidance provided in the HCPTS Practice Note “Proceeding in the Absence of the Registrant”. The Panel was advised that it is competent to proceed in the absence of a registrant. However, the decision on whether that is appropriate in any individual case is a matter of discretionary judgment for the Panel.
4. The Panel took into account the advice of the Legal Assessor and the guidance provided in the relevant Practice Note. The Panel was satisfied that all reasonable steps had been taken to serve notice of the hearing on the Registrant. The Registrant was clearly aware of the hearing given the terms of his email to the HCPC. The Registrant had voluntarily decided not to attend. He has not requested an adjournment or a continuation of the hearing. He has not engaged in previous hearings. There is a public interest in the substantive order being reviewed before it expires. The Panel concluded that it is appropriate to proceed in the absence of the Registrant. The Panel accepted that the Registrant would be disadvantaged to some degree by his absence but concluded, on balance, that the wider public interests meant that the hearing should continue in the absence of the Registrant.
5. The Registrant is a physiotherapist.
6. The Registrant was employed by Greater Glasgow and Clyde NHS in July 2012 as a Band 2 Nursing Auxiliary. The Registrant was employed as a Band 5 Physiotherapist from 1 August 2014 until 4 March 2016. Concerns were raised in relation to the Registrant’s practice soon after he commenced work. The Registrant was unable to complete basic tasks without prompting from his supervisor.
7. Following a hearing on 8 to 11 May 2017, the Registrant’s fitness to practise was found to be impaired. A Suspension Order was imposed for a period of 12 months.
8. Ms Senior stated the HCPC’s position was that the Registrant’s fitness to practise remains impaired. There is no evidence to show that the lack of competence identified by the original panel has been addressed. The Registrant has not engaged in the proceedings and has not submitted any documents. Ms Senior accepted that the Registrant has not been suspended for a continuous period of two years and therefore it would not be open to the Panel to consider a Striking Off Order at this stage.
9. The Legal Assessor reminded the Panel that it required to conduct a comprehensive assessment of the Registrant’s fitness to return to unrestricted practice. Its role is not to conduct a rehearing of the allegations or to go behind the previous findings. In carrying out its assessment, the Panel must exercise its own independent judgement. The Legal Assessor drew the attention of the Panel to regulation 29(6) of the Health and Social Work Professions Order 2001 which provides that:
“A striking-off order may not be made in respect of an allegation of the kind mentioned in article 22(1)(a)(ii) or (iv) unless the person concerned has been continuously suspended, or subject to a conditions of practice order, for a period of no less than two years immediately preceding the date of the decision of the Committee to make such an order.”
10. If the Panel determined that the Registrant’s fitness to practise remained impaired, the options under Article 30 of the Health and Social Work Professions Order 2001 would be open to the Panel. The Legal Assessor reminded the Panel that it should consider the HCPTS Practice Note on Impairment and must always keep in mind the principles of fairness and proportionality. If relevant, it should also have regard to the HCPC’s Indicative Sanctions Policy. The Panel was reminded that any order it makes must be the least restrictive order that would suffice to protect the public or is otherwise in the public interest.
11. The Panel accepted the advice of the Legal Assessor.
12. The Panel first considered whether the Registrant’s fitness to practise is currently impaired.
13. The Panel noted that the panel that considered the Registrant’s case in 2017 was satisfied that the shortcomings identified by its findings were of a nature that were potentially capable of being remedied. However, the panel concluded that he lacked basic knowledge and was unable to complete routine tasks that would be expected of a physiotherapist.
14. The Panel was not provided with any evidence to satisfy it that the Registrant has insight into the shortcomings identified by the original panel or that he has taken any steps to remedy his shortcomings. The Panel considers that there remains a risk of a repetition of the Registrant failing to offer patients an adequate level of care. That necessitates a finding that the Registrant’s fitness to practise is currently impaired upon consideration of the personal component.
15. The Panel considers that the public component is also made out. The Panel concludes that there would undoubtedly be concern on the part of members of the public at the prospect of the Registrant returning to work wholly unrestricted. This is because he still presents a risk of repeating behaviour that would result in an inadequate level of care being offered to patients.
16. The Panel proceeds on the basis that it is not automatic that any sanction will be imposed merely because the Panel has found that the Registrant’s fitness to practise is impaired. The purpose of any sanction is not to be punitive. The primary objective is public safety. However, other public interest objectives have a role to play. These include:
(i) the deterrent effect to other registrants;
(ii) the reputation of the profession concerned; and
(iii) public confidence in the regulatory process.
17. In this case it is not appropriate to make no order because of the serious nature of the failings identified by the original panel.
18. A Caution Order is not appropriate because of the lack of competence identified by the original panel. The Registrant has shown no meaningful insight and has not provided any evidence of any remedial action being taken.
19. The Panel considered a Conditions of Practice Order. The Panel considers that the issues are capable of remediation by the Registrant. The major obstacle for the Panel in relation to this option is the lack of any meaningful engagement by the Registrant with the proceedings. He did not appear at the Tribunal and provided no material to the Panel. A Conditions of Practice Order is appropriate where a Panel is confident that a Registrant will adhere to the conditions, is genuinely committed to resolving the relevant issues and can be trusted to make a determined effort to do so. The Panel considers that the Registrant’s failings are capable of being remedied. However, the Panel has no evidence of any insight on the part of the Registrant regarding the serious nature of the failings identified above. At the moment, the Panel has no evidence that allows it to be confident that the Registrant is committed to resolving the issues identified by the original panel and that he will make a determined effort to comply with conditions. The Panel could not therefore formulate any Conditions of Practice that would provide sufficient public protection, maintain confidence in the profession and which would be workable and enforceable. Accordingly, the Panel concluded that such an order is not appropriate.
20. A Suspension Order may be appropriate where the allegation is serious and cannot be addressed by any of the lower sanctions, but there is a potential for the Registrant to remedy their failings. The view of the Panel is that the allegations that have been proved are of a serious nature. There is no evidence that the Registrant has any meaningful insight into the serious nature of the failings identified by the original panel.
21. In these circumstances, the Panel has determined that the Registrant should be suspended for a period of six months. This will provide the Registrant with a final opportunity to engage with the process and seek to address the issues relating to his practice. The Registrant should be aware that if he fails to engage with the process a future panel is likely to give consideration to making a Striking Off Order.
The Registrar is directed to suspend the registration of Mr Boben Zacharia for a further period of 6 months on the expiry of the existing order.
This order will be reviewed again before its expiry on 8 December 2019.