Mr Alex Anzelmo

Profession: Physiotherapist

Registration Number: PH46837

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 18/11/2019 End: 17:00 18/11/2019

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

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

Whilst registered as a Physiotherapist and during Service User A’s appointment on 14 July 2017:

 

  1. You did not stop treatment when Service User A asked you to do so.

 

  1. Your actions described at particular 1 constitute misconduct.

 

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

Finding

Background

1. Ms Burke, on behalf of the HCPC, outlined the background to the case.

2. The Registrant is a registered Physiotherapist, working in private practice. He graduated from Brunel University in 1993. From 1993 to 2000 he was employed in various hospitals as a senior physiotherapist and was the lead physiotherapist for the sports injury clinic at the Wellington Hospital. Since 2000 the Registrant has been a sole practitioner and runs his own clinic from his home.

3. On 10 July 2017, Service User A (SUA) made a phone call to the Registrant to make a physiotherapy appointment. SUA said that she did this because she had been suffering from lower back pain on and off for about 5 months and decided to contact the Registrant who had been highly recommended by a friend. She also said that she had received physiotherapy multiple times in the past and had treatment for her lower back from an Osteopath during the previous 5 months.

4. On 14 July 2017, SUA attended her appointment with the Registrant. Before treatment commenced she signed a consent form for the Registrant to perform physiotherapy on her.

5. During the appointment SUA alleged that the Registrant did not stop treatment after she asked him to do so.

6. The particulars of this complaint are that SUA alleged that during the course of the appointment she was asked to undertake a number of tests, one of which involved her sitting on the edge of the treatment bed. At this point she said that the Registrant held up her left leg, which was very tight, connecting to the lower back which was in a lot of pain at the time. She said that the Registrant then said “here comes the nasty part” and pushed her head down vigorously. She said this was violent and painful, and that the pain was both in the lower back, gluteal muscles and hamstring. She said that she knew it did not feel right as it felt as if it was further aggravating the area and her body braced itself against the pain.

7. She said that she asked the Registrant to stop but he did not. She said that whilst the Registrant pushed her head down, he was counting down from 10 to 0. She said that at 7 she asked him to stop but he continued down from 6 to 0. She said stop very loudly, a number of times. SUA said that the Registrant’s head was only a few inches away from hers and she could not believe that he did not hear her saying “stop, stop, stop.” She said that she pushed and pulled against the Registrant, but he continued to count down from 6 to 0. SUA said that at this point she started to cry and was shocked.

8. SUA said that the Registrant did not verbally acknowledge her tears, although he did provide her with a tissue and the treatment moved on and the Registrant asked her to do some other exercises. She stated that she felt humiliated, vulnerable, upset and shocked.

9. SUA said that during the subsequent exercises the Registrant was reading out the news from his computer. She also said that the Registrant showed his awards and certificates which were displayed on his wall to her and also told her that he was in the top 0.5% of physiotherapists in the country.

10. At the end of the session, SUA said that the Registrant asked her for a score on a scale of 1-10 to assess her pain. She said she indicated that the pain was 2 on that scale.

11. When it came to payment at the end of the appointment SUA said that she discovered that the Registrant said his card machine was broken and could she pay cash. They agreed, however, for payment to be made via bank transfer.

12. On 17 July 2017, SUA wrote to the Registrant by email, detailing her thoughts in relation to the appointment and cancelling her next appointment. SUA complained that the Registrant had been aggressive and had broken her trust. She pointed out that the Registrant had not stopped treatment when she said “stop stop stop”. She further stated that she was thinking of submitting an official complaint but wished to give the Registrant a chance to respond first.

13. On the same day, in response, the Registrant apologised that SUA was unhappy and accepted her request to cancel their next session. He also stated to SUA that her pain on departure from the appointment was less than when she arrived. He went on to threaten legal action in respect of non-payment of his fees.

14. SUA responded by email indicating that she was not satisfied with the Registrant’s response. SUA considered his email was threatening rather than apologising or attempting to explain. She indicated that she would pay the fees, which she did, and that she would make a formal complaint.

15. On the same day, SUA made a complaint about the Registrant to the HCPC.

16. In a detailed statement, the Registrant denied SUA’s version of events and particularly denied that he had continued treatment when SUA had asked him to stop the treatment.

17. Both SUA and the Registrant gave evidence at the final hearing. When considering the evidence of SUA, the final hearing panel stated:

“The Panel found that SUA provided clear and consistent evidence. In particular, the Panel gave significant weight to SUA’s recollection of what she described as “the moment.” She described the Registrant asking her to sit at the end of the bed, before saying to her “here comes the nasty part” and then performed what is referred to as the ‘slump’ test or technique. This involved the Registrant placing his hands on her head and her leg. She said that the Registrant pushed her head down vigorously and that she asked him to stop at number 7 during a countdown from 10 to 0, but he did not do so. She said that she was astonished that the Registrant denies this as she said “stop stop stop” repeatedly.

The Panel also considered that SUA provided important and persuasive detail in her account of the events in general. The Panel accepted SUA’s recollection that the Registrant said that the procedure would be “nasty and evil”; that he read out news relating to a fire, and told her that he was in the top 0.5% of physiotherapists in the country.

Further, the Panel considered that SUA’s account was corroborated by the email she sent to the Registrant 3 days after the incident and her subsequent complaint to the HCPC, in which she set out in detail her concerns as to the events of 14 July 2017.

Whilst the Panel accepts that there was some inconsistency in SUA’s account, for example, as to the exact chronology of events and discrepancy in her written evidence as to which leg was elevated during the procedures, overall, the Panel considered that SUA’s account was consistent and credible, and that SUA readily accepted any inaccuracies in her evidence. The Panel was impressed by her approach to giving her evidence, during which she indicated when she could not recollect something.”

18. When considering the evidence of the Registrant, the panel said:

“In considering the Registrant’s credibility, the Panel is aware of his previous good character and has paid particular heed to the good character direction given by the legal assessor. The Panel has however considered the full circumstances of this case and found numerous inconsistencies in the Registrant’s evidence and account of events. It was submitted by Mr Toms that this case was one of perceptions and that each party may have differing ones. The Panel noted that SUA was familiar with receiving physiotherapy treatment and was well versed with the various procedures adopted by physiotherapists. The Panel considered it unlikely that there was misperception in this case.

The Panel accepted that the Registrant had provided a contemporaneous handwritten medical record of the events of 14 July 2017. However, the Panel considered it to be incomplete as it failed to record certain matters that the Registrant suggested had happened, such as SUA’s distress and providing her with a tissue, providing SUA with a video recording of further exercises, and recording that the first attempt at the slump technique had been aborted due to SUA wriggling out of the correct position. The Panel also noted that the Registrant had included additional matters in the typed record, such as including a plan to give SUA the video recording, which he did not mention in the hand-written original note.

The Panel further considered, in light of the email sent to the Registrant 3 days after the incident, making serious allegations against him, it was reasonable to infer that he would have provided a response beyond that which he did. The Panel did not find the Registrant’s evidence credible on this point, when he said the reason why he didn’t respond to the allegations was “I should have but thought it would maybe seem to highlight guilt that wasn’t there.”

The Panel rejected the Registrant’s contention, that had SUA been treated in the way that she had, she would not have continued with the treatment session. The Panel was persuaded by SUA’s explanation as to why she continued with the treatment. She said that she was in shock and felt embarrassed by her tears and that ‘she wanted to power through to the end of the session’ She said part of her wanted to ‘run away’ and part of her wanted to ‘soldier on’. The Panel considered this account to be a credible one.

The Panel also considered that there were further issues of credibility in relation to the Registrant. He told the Panel that he had informed SUA, during their telephone conversation on 10 July 2017, that his card reader was broken and that she would need to provide him with cash at the appointment. This appears wholly inconsistent with SUA signing a form dated 14 July 2017 that her method of payment was to be by card. SUA maintained throughout that she had not been told that there had been any issue with the card reader prior to the date of the appointment. Further, SUA responded to the Registrant’s email on 17 July 2017, making it clear that the reason she did not pay for the session was because the Registrant’s card machine was broken.

Another issue as to the Registrant’s credibility related to his assertion that he had agreed to reduce his assessment fee. When the Registrant was questioned about this he accepted that his fee was £80 and that SUA paid him £80.

Further, the Registrant was specifically asked by the Panel as to the allegation that he had said “nasty” and “evil”. He said that he used a catchphrase but, despite being pressed on this issue, was unwilling to indicate the words he used.

The Registrant, relying on CCTV footage surveying the front of his house, asserted that SUA could not have been in as much pain as she alleged. The Panel disagreed with this analysis of the CCTV as it was almost impossible to discern this from the footage of SUA entering and leaving the Registrant’s private clinic, given the poor quality of the CCTV and the inability to see the facial expressions of SUA.

The Panel further noted that the Registrant was upset and angry with SUA for the email she sent him dated 17 July 2017 containing her complaints. He said he had gone ‘out of his way’ to help her, including extending the appointment.”

19. The original panel preferred the evidence of SUA over that of the Registrant and found the facts proved. The panel determined that the facts proved amounted to misconduct because the Registrant’s actions were the equivalent to treating a patient without consent. In its decision on impairment, the panel stated:

“The Panel considered that the Registrant did not intend to cause deliberate harm to SUA. However, the Panel was of the view that the Registrant’s conduct was serious and fell far below the standard expected of a physiotherapist. The Panels’ findings demonstrate that the Registrant did cause SUA harm in circumstances where SUA repeatedly said to the Registrant “stop stop stop”, thereby causing SUA both physical and emotional harm.

The Panel considered whether the Registrant’s conduct is easily
remediable, has been remedied and is highly unlikely to be repeated.

The Panel carefully considered the oral evidence of the Registrant and concluded that, currently, the Registrant has not satisfied the Panel that he has sufficient insight into his misconduct. As a starting point, the Panel considered that the Registrant expressed limited remorse. His apology to SUA was made today in oral evidence after his initial evidence in chief, cross examination and Panel questions, when Mr Toms sought to ask further questions after Panel questions. The Registrant showed no genuine appreciation of the pain and distress that SUA had suffered at the time, nor the impact on her associated with making the complaint and attending the hearing to give evidence.

A further concern was that the Registrant continued to assert, in answer to a question from Ms Williams that he acted within his professional body’s guidelines.

In Panel questions the Registrant was asked about how he would do things differently in the future, particularly in relation to explaining to patients the possibility of assessment or treatment techniques causing pain. The Registrant was unable to give any clear indication of how his practice would change in light of the facts found proved in this case.

The Panel had regard to the Registrant’s bundle which included a new consent form, details of CPD training and testimonials.

In relation to the new consent form, the Registrant indicated that he had changed his practice by altering his consent form and this happened to coincide with the new General Data Protection Regulation (GDPR) regime which came into force in May 2018. After hearing evidence, the Panel considered that the change to the consent form was made some 10 months after the incident, because it coincided with the new GDPR regime, rather than a proactive attempt to alter the terms of the consent form following the incident with SUA.

The Panel noted with the number of CPD courses that the Registrant has undertaken over many years and recognised that the Registrant is committed to undertaking training in relation to clinical aspects of his work. The Panel was concerned however that working as a lone practitioner for a number of years, the Registrant had not undertaken any courses to address his patient communication and active listening skills between 1993 – 2018. The Panel found this concerning given the failures that arose in this case.

The Panel next considered the testimonials and noted the absence of any up to date references from a registered physiotherapist. The Panel felt unable to attach significant weight to the testimonials as the Registrant admitted that he did not inform the referees of the details of the allegation against him and the individuals had no recent professional experience of him.

Whilst the Panel considers that the conduct of the Registrant is remediable, in light of the factors above, it considered that such conduct has not been remedied and is therefore likely to be repeated.

The Panel therefore finds that the Registrant is currently impaired in relation to the personal component in that the public would be put at risk if the Registrant was permitted to practice without restriction.

The Panel also considered the Registrant’s conduct, albeit on one isolated occasion, was so serious as to warrant a finding in respect of the public component, in order to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.”

20. When deciding on the appropriate sanction, the panel said:

“The Panel considered the aggravating factors as being the harm caused to SUA, the limited remorse of the Registrant, and to some extend his lack of insight. The Panel considered that the mitigating factors included the fact that this was an isolated incident; the Registrant had engaged with the HCPC and his previous good character.

The Panel considered each sanction in turn, starting with the least restrictive first. The Panel considered taking no action but concluded that, given the seriousness of the Registrant’s misconduct, this would be inappropriate because it would not protect either the public or the wider public interest.

The Panel then considered whether to make a caution order. Although the allegation concerns one isolated incident, the Panel considered that the incident was a serious one and that the Registrant’s remorse was limited and his insight insufficient. In these circumstances a caution order is not appropriate.

The Panel next considered the imposition of a Conditions of Practice Order. In doing so, the Panel was satisfied that:

the issues which the conditions seek to address are capable of correction;

there is no persistent or general failure;

appropriate, realistic and verifiable conditions can be formulated;

the registrant can be expected to comply with them; and
a reviewing Panel will be able to determine whether those conditions have or are being met.

The Panel is satisfied that the failure and/or deficiency in the Registrant’s conduct is capable of being remedied, and that the Registrant remaining in practice will not pose a risk of harm to patients, if his practice is restricted by the imposition of conditions.”


21. The panel considered the appropriate and proportionate length of the order was 12 months to allow the Registrant sufficient time to reflect on his misconduct, comply with the conditions and provide the necessary information to the HCPC prior to a review hearing.


22. Prior to confirming its decision to impose a Conditions of Practice Order the panel considered whether a Suspension Order should be imposed. However, the panel did not consider such an outcome to be a proportionate sanction and that conditions were sufficient to protect the public and the wider public interest.


23. The Conditions imposed were as follows (it should be noted that in the final hearing determination the conditions are erroneously numbered from (xi) to (xx) and that there is no (i) to (x)):

Education and training requirements

(i) No later than 12 weeks prior to the review date, you will undertake a training course which includes communication and active listening skills with patients and forward a copy of your attendance certificate and the course agenda to the HCPC.

Mentoring

(ii) You must register with the Chartered Society of Physiotherapy (CSP) mentoring scheme within 7 days of today.


(iii) Within 28 days from today you must obtain a mentor either through the CSP’s mentoring scheme or through another registered Physiotherapist, who should be the equivalent of Band 6 or above and provide their details to the HCPC.

(iv) You will discuss the events of this hearing with your mentor and develop a CPD plan to address the deficiencies that have been identified.

(v) You will discuss your cases on a monthly basis with your mentor.

(vi) You will provide a report from your mentor addressing the CPD plan, your progress and the review of your cases, to the HCPC no later than 28 days before the review hearing.

Reflective piece

(vii) You must compile a reflective statement concerning the issues that arose during and after the appointment with Service User A on 14 July 2017. Such statement to be provided to the HCPC within 8 weeks of the next review.

Informing the HCPC and others

(viii) You must promptly inform the HCPC if you take up any offer of employment.

(ix) You must promptly inform the HCPC of any disciplinary proceedings taken against you in relation to physiotherapy practice.

(x) You must inform the following parties that your registration is subject to these conditions:

d. any organisation or person employing or contracting with you to undertake physiotherapy work involving the treatment of patients.

e. any agency you are registered with or apply to be registered with to carry out any physiotherapy work involving the treatment of patients (at the time of application); and

f. any prospective employer (at the time of your application).

Submissions


24. Ms Burke, on behalf of the HCPC, submitted that the Registrant had not complied fully with his conditions of practice and the HCPC considered the Registrant’s fitness to practise remained impaired and that the appropriate sanction now was one of suspension.


25. Ms Burke submitted that from the evidence before the Panel it appeared that the Registrant had not provided his mentor, during their first three sessions together, with a copy of the final hearing determination. She said this could be inferred from the telephone attendance note of a call made by the mentor to the HCPTS dated 23 January 2019. During this call the mentor was saying that she did not have enough information about the Registrant’s deficiencies. The mentor said that the Registrant had sent her some information but she did not know what specifically the deficiencies were or how to address them. The mentor was asked if she had read the final hearing decision, but she was unsure if she had. She said she had been given a range of paperwork, but was not sure if the decision was part of it. She said she would look it up on the HCPTS website.


26. Ms Burke suggested this inferred a lack of probity on the part of the Registrant and was, she said, indicative of his behaviour as shown during the final hearing when he relied on references from people who had not been told the details of the allegations against him.


27. Condition (xvii) required the Registrant to provide a reflective statement concerning the issues that arose during and after the appointment with Service User A on 14 July 2017. Ms Burke acknowledged that the Registrant had provided a reflective piece, but said that rather than addressing the issues, the Registrant’s reflection was primarily fixated with his discovery at the final hearing that SUA had dyslexia. Ms Burke said this was entirely irrelevant to the facts found, namely that SUA had asked the Registrant to stop, and he did not do so. Ms Burke said that to attribute the incident to the SUA’s dyslexia was egregious. She added that the final hearing panel made no mention of SUA’s dyslexia as a mitigating factor, as it was entirely irrelevant.


28. Ms Burke said that the Registrant used the reflective piece to infer that service SUA, by virtue of her dyslexia, was: Catastrophising the encounter and conjuring perceived injustice; had mixed recollection of events and/or poor memory; was emotionally hypersensitive; had poor concentration; and was likely to place blame on another for her chronic pain.


29. Ms Burke submitted that the reflective piece was a highly concerning deflection of responsibility, and categorically demonstrated that the Registrant had not developed any insight or remorse.


30. Ms Burke also referred the Panel to Condition (xviii) that required the Registrant to promptly notify the HCPC if he took up any offer of employment. In his statement to the Panel, provided today, the Registrant  made reference to employment he had taken up in August 2019, teaching anatomy, physiology and biomechanics at Middlesex University. Ms Burke said that the Registrant, by his own admission, had not informed the HCPC about that employment.


31. Ms Owusu-Agyei submitted that the Registrant had complied with the spirit of the conditions and he was now fit to return to unrestricted practice. Accordingly she invited the Panel to either allow the current order to lapse on its expiry or to revoke it with immediate effect.


32. With reference to remorse she reminded the Panel that the Registrant had apologised to SUA and that it was never his intention to cause her harm or distress. Ms Owusu-Agyei took the Panel through the conditions and highlighted his compliance with them.


33. With reference to the suggestion that the Registrant had not provided his mentor with a copy of the final hearing determination she said this was simply not supported by the evidence. She said it was clear from the telephone attendance note that the Registrant had provided documents to the mentor and that the mentor, by her own admission was unsure if the determination was part of that documentation. She said it was also clear that the mentor and the Registrant had discussed the conditions of practice. Furthermore, she said the Registrant disputed the assertion that he had not told his referees, relied on at the final hearing, the details of the allegation. However, the Panel Chairman pointed out to Ms Owusu-Agyei that in the final hearing determination it was recorded that the Registrant had admitted he had not told his referees the detail of the allegation. The Legal Assessor advised the Panel that they could not go behind the determination of the panel at the final hearing.


34. Ms Owusu-Agyei took the Panel to the Registrant’s reflective statement and said that it was clear that the Registrant had reflected on the issues that arose on 14 July 2017. She said he had approached his reflection in a scientific manner and recognised that he had failed to control the session. When referring to the steps that need to be taken with a patient he wrote, “This process must be presented in a kind, caring and gentle manner, such that the patient feels part of the process and is happy with it (shared decision making). At all times, the patient must feel they can be involved in the process and modify it in a way that suits their lifestyle, disposition and comfort.” This, said Ms Owusu-Agyei, was a clear demonstration of insight by the Registrant.


35. Ms Owusu-Agyei said that it was wrong to equate a maintenance of innocence with a lack of insight and that a Registrant was entitled to maintain their innocence notwithstanding the findings of the panel at the final hearing. This did not mean, she submitted, that the Registrant was unable to show insight. She said the Registrant had taken practical steps to improve his practice and thereby ensure such matters would not arise again. Patients are asked to sign medical notes after the diagnoses and treatment strategy have been explained to ensure they are fully aware of the nature of the treatment and to what they are consenting. Ms Owusu-Agyei said the Registrant had shown in his reflection that he understands the importance of listening and he refers to approaching patients with “caution, gentility and respect.”


36. Ms Owusu-Agyei referred to the case studies in the Registrant’s reflective piece which, she submitted, showed he was someone that actively listens to his patients and that he understood the importance of both communicating and listening. She said that the Registrant had tried, in a scientific manner, to understand the circumstances of the complaint made by SUA and in his reflective piece he provided a detailed and considered scientific analysis of how the Registrant believed the events were caused.


37. All this, Ms Owusu-Agyei submitted, demonstrated insight by the Registrant and compliance with Condition (xvii).


38. With reference to Condition (xviii), Ms Owusu-Agyei said this condition was drafted in a very broad way encompassing any employment, whereas it might be thought the relevant employment was physiotherapy work involving the treatment of patients, as detailed in Condition (xx)(d). In any event, she submitted, the HCPC had been notified by the statement provided to the review Panel today.


39. Ms Owusu-Agyei concluded by saying that the Registrant had complied with all the conditions, certainly the spirit of them, he was no longer impaired and he should be allowed to return to unrestricted practice.


Decision


40. The Panel considered with care the documentation provided and the submissions of both parties. The Panel accepted the advice of the Legal Assessor and in reaching its decisions referred to the HCPTS’s Practice Note on ‘Finding Fitness to Practise is Impaired’. The Panel carried out a comprehensive review of the current order in light of the circumstances as they existed today.


41. The Panel first considered the issue of current impairment. The Panel took account of the principle set out in Abrahaem v GMC [2008] EWHC 183 (Admin) that there is, in practical terms, a persuasive burden at a review hearing for the Registrant to demonstrate that he has “fully acknowledged why past performance was deficient and through insight, application, education, supervision or other achievement sufficiently addressed the past impairments.”


42. On 26 December 2018, the HCPC received an email from the Registrant containing CSP mentor contact details.


43. The Registrant provided a certificate confirming his attendance on a Medical Protection Society three hour workshop on “Mastering Consent and Shared Decision Making”, which took place on 13 February 2019.


44. On 18 October 2019, the Registrant provided an undated reflective piece. On the same date he provided an undated CPD plan, developed with his mentor.


45. On 24 October 2019, the HCPC wrote to the Registrant reminding him that the Conditions of Practice Order would be reviewed shortly and asking him to provide evidence that, in compliance with his conditions, he had discussed his cases on a monthly basis with his mentor and of the need to provide a report from his mentor addressing his CPD plan, his progress and the review of his cases.


46. On the day of the review hearing, the Registrant provided a statement dated 13 November 2019, together with a letter and report from his mentor, enclosing a list of the mentoring/coaching sessions attended.


47. The Panel considered each of the conditions to determine whether and to what extent the Registrant had complied with them.


48. Condition (xi) specifically required the Registrant to undertake a training course which included communication and active listening skills with patients. The course that the Registrant attended was more concerned with risk rather than communication and active listening skills with patients. The Panel noted that the same provider runs a course entitled “Communication and Interpersonal Skills” and feels that this would have been a more appropriate course for the Registrant to have attended. The Panel concluded that the Registrant had not attended an appropriate course and had not, therefore, complied with this condition.


49. The Registrant did not provide evidence to show that he had registered with the CSP monitoring scheme within 7 days, as required by Condition (xii), however the Panel was satisfied that he had complied with the spirit of this condition in that he had registered with the scheme.


50. The Registrant had obtained a mentor and informed the HCPC, thereby complying with Condition (xiii).


51. Condition (xiv) required the Registrant to develop a CPD plan to address the deficiencies identified in this case. He did develop an extensive plan, however it did not address the core issues identified at the final hearing, in particular the issue of withdrawal of consent during an appointment. The plan talks about consent before treatment and actions taken at the end of a treatment session, but not withdrawal of consent during treatment or how to react when a patient expresses distress or pain during an appointment. Nor does the plan address how to deal with subsequent patient complaints in a more positive way. The Panel therefore concluded that this condition had not been complied with.


52. There was evidence from the mentor to show that discussion about cases had taken place on a monthly basis and accordingly the Panel was satisfied that Condition (xv) had been complied with.


53. The Panel was not satisfied that Condition (xvi) had been complied with. The condition required the Registrant to provide the HCPC with a report from his mentor no later than 28 days before the review hearing. That report was only in fact provided on the day of the hearing. More significantly, however, was the fact that the CPD plan was static, that is to say there was no signing off to show that the Registrant had actually achieved the learning referred to. No reviews or outcomes were documented and in any event, as referred to above, the plan failed to address the central issues in this case.


54. Condition (xvii) required the Registrant to provide a reflective statement concerning the issues that arose during and after the appointment on 14 July 2017. The Registrant did provide an extensive reflective piece. He did express some apology and identified changes he had made to his practice, such as a post initial assessment questionnaire and audio recording of the initial assessment process. He also obtains written consent from service users once they have discussed the diagnosis and treatment plan and he has incorporated a Patient Health Questionnaire as part of his initial assessment.


55. In his reflective piece the Registrant said he had changed his practice by getting patients to sign his notes at the point where he has given his explanation of what his treatment will be in order to demonstrate that “they are happy to proceed and that they have understood the results and explanations.” He said this process is not just a “tick box exercise” and must be presented in a kind, caring and gentle manner, such that the patient feels part of the process and is happy with it. However, nowhere in his extensive reflective piece does he specifically deal with the issues that arose during and after the appointment with SUA and in particular he does not mention what he would do if during treatment a patient asked him to stop. He provided case studies about patients with sensitivity to touch and concerns about possible diagnoses. In his reflection on these case studies he appeared to raise miscommunication as a possible issue, suggesting he still believed his misconduct arose out of a miscommunication, rather than through his failure to respond to the clear instruction from SUA that he was hurting her and should stop.


56. Most concerning was the Registrant’s attribution of various characteristics to SUA with the clear implication that these characteristics were what caused her to complain. In his reflective piece the Registrant referred to the fact that SUA was dyslexic (which he says he was not aware of at the time of her treatment) and the impact of that upon her behaviour. In addition, he referred to individuals who “catastrophize an encounter”, saying these individuals have “developed a sense of ‘perceived injustice” and that “no matter what is  done to help them, anything other than an instant and full ‘cure’ will result in a negative outcome being perceived by them.”   The Registrant also said  that “… the healthcare system will always produce complaints irrespective of how the patient/clinician interaction is conducted. It is our duty as clinicians to be wary of this and always provide the best service possible.” He added, “… it is clear clinicians will sooner or later fall foul of a patient complaint deserved or not. The latter is of most concern and most clinicians, and certainly the tribunal services that then sit in judgement of such matters do not think to address this possible element within the interaction that led to the complaint. This was certainly the issue in my instance by not having explored the area of dyslexia and all its ramifications as cited above. As previously stated, it was only known to me at the commencement of the hearing that the claimant was dyslexic.” He said he “failed to control the session by stopping it at the designated time point (45 minutes for initial assessments instead of the 68 minutes that was given for this appointment). I continued the session as sua had requested that I do so. I failed in my duty of care here as giving more resulted in less.”


57. The Registrant’s conclusion that his mistake concerning the incident was conducting a 68 minute session as opposed to a 45 minute session with SUA was of very real concern. The Registrant appeared to see himself as a ‘rescuer’ and in this instance he felt his ‘let me help’ drive prompted him to continue the session beyond the designated appointment time slot. He claimed that had he known of SUA’s dyslexia, he would have used a psychological flagging system which would have led him to the conclusion that she was only able to cope with a 45 minute session, and as such, her complaint would not have been made in the first place due to her tendency to catastrophize and mis-remember events. He concluded that in this sense, he had failed in his duty of care as giving more resulted in less.


58. This explanation completely fails to address the issue in this case. The issue was not that he continued the treatment to the end but that he did not stop at the point where SUA repeatedly asked him to do so. He simply does not address this in his reflective piece, nor does he address his behaviour after the appointment and his subsequent interaction with SUA.


59. The Panel considered it was deeply worrying that the Registrant had decided to attribute various cognitive impairments to SUA, without any evidence in support, in order to discredit her account and re-divert blame and position himself as a victim of injustice. The Panel found the Registrant’s attitude to the service user concerning and noted that at one point he appeared to suggest that the fact that English was not SUA’s first language may have been a contributory factor.


60. The Panel did not accept Ms Owusu-Agyei’s assertion that the reflective piece was a scientific enquiry since it appeared to take any possible attribute of SUA in order to blame or discredit her. A further example of that could be found when he referred to a dissatisfied group of patients that develop a condition known as ‘perceived injustice’. Without any evidence to show that SUA might be a member of such group, he went on to say, “The analyzed data showed that this dissatisfied group of patients develops a condition known as ‘perceived injustice’. He showed there was a high correlation between patients with perceived injustice and pain catastrophizing. The author concluded that this particular group of patients will go into any subsequent encounter with a healthcare professional with a preconceived notion that nothing will work and therefore catastrophize their encounter.”


61.  The Panel concluded that this was a wholly inadequate reflective piece and the Registrant should be aware that length does not equate to substance. These are straightforward issues which could and should have been dealt with much more succinctly. The Panel acknowledged the Registrant’s right to maintain his innocence, but that should not have prevented him from demonstrating insight. The Panel therefore concluded that Condition (xvii) had not been complied with.


62. The Registrant failed to comply with Condition (xviii) in that he had taken up employment in August 2019 at Middlesex University and not promptly notified the HCPC. The Panel did not accept the suggestion that telling the review Panel in a statement  provided on the day of the hearing in November 2019 could amount to ‘promptly’ and in any event it was not informing the HCPC, but rather the reviewing Panel. The HCPC suggested that the breach of this condition, together with other matters raised, indicated a lack of probity on the part of the Registrant. In the Panel’s view there was insufficient evidence to reach such a conclusion.


63. Conditions (xix) and (xx)(d) and (e) (there was no (a), (b) or (c)), had not come into effect, but (xx)(f) had not been complied with since the Registrant had provided no evidence that he had informed Middlesex University that he was subject to a Conditions of Practice Order imposed by his regulatory body.


64. In light of the Registrant’s failure to comply with many of these conditions, the Panel determined that there continued to be a risk of repetition, particularly given the lack of remediation or insight. Applying the criteria in the case of the Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Grant [2011] EWHC 927 (Admin), the Panel was of the view that the Registrant was liable in the future to put patients at unwarranted risk of harm; he was liable in the future to bring the profession into disrepute; and he was liable in the future to breach one of the fundamental tenets of the profession, namely the need to ensure he has consent for treatment and the need to put the welfare of his patients first.


65. The Panel therefore found the Registrant’s fitness to practise currently impaired on both public protection and public interest grounds. Confidence in the profession would be undermined if a finding of impairment were not made in these circumstances.


66. The Panel next considered the appropriate and proportionate sanction. It took into account the fact that this was a single patient incident in a practice otherwise without incident before or since July 2017. It also took into account the impact of a continued sanction upon the Registrant. However, such action was necessary in order to protect the public and the public interest.


67. Having identified a risk to the public it would not be appropriate to take no further action or to make a Caution Order.


68. The Panel thus considered whether to extend the current order or to make a new Conditions of Practice Order to take effect upon the expiry of the existing order. The Panel decided to do the latter. It was satisfied that these matters were remediable, provided the Registrant was prepared to take the necessary action, reflect genuinely and constructively and show the necessary insight to demonstrate that he was safe to return to unrestricted practice.


69. The Panel did give serious thought to a Suspension Order, but concluded that the Registrant ought to be allowed another chance to show that he could remediate his failings and demonstrate appropriate insight. In the Panel’s view the imposition of a Suspension Order at this point would be disproportionate.


70. The Panel therefore made a Conditions of Practice Order for a further 12 months, which ought to be sufficient time for the Registrant to show that he has truly learnt from this experience.

Order

ORDER: Upon the expiry of the existing order, the Registrar is directed to annotate the Register to show that, for a period of 12 months you, Mr Alex Anzelmo, must comply with the following conditions of practice:

Education and training requirements

(i) No later than 12 weeks prior to the review date, you will undertake training course(s) which directly address communication with patients and interpersonal skills. This training should include active listening skills as well as dealing with patient complaints and concerns. You must forward a copy of your attendance certificate(s) and the course agenda(s) to the HCPC.

Mentoring

(ii) Within 28 days from today you must obtain, either through the CSP’s mentoring scheme or through another registered physiotherapist, a mentor who should be the equivalent of Band 6 or above and provide their details to the HCPC;

(iii) You must meet with your mentor within 28 days of today and at a minimum frequency of once every 3 months thereafter;

(iv)  You must work with your mentor to develop a CPD plan to address the following issues:

• Managing the withdrawal of patient consent during treatment;
• Dealing with patient complaints or concerns;

(v) You will provide evidence that your mentor has signed off the CPD plan as completed to their satisfaction.
This should be provided to the HCPC no later than 28 days before the review hearing.

(vi) You will provide a report from your mentor confirming satisfactory completion of the CPD plan as well as providing a summary of the issues discussed during your meetings. This report should be provided to the HCPC no later than 28 days before the review hearing.


Reflective piece

(vii) You must provide a reflective statement directly addressing how you manage the withdrawal of consent during treatment and how you deal with patient complaints and concerns. This statement should also set out how you have applied your learning from:

• any training courses undertaken;
• completing the CPD plan;
• discussions with your mentor. 

Informing the HCPC and others

(viii) You must promptly inform the HCPC if you take up any offer of employment which requires you to be registered as a physiotherapist.

(ix) You must promptly inform the HCPC of any disciplinary proceedings taken against you in relation to physiotherapy practice.
 
(x) You must inform the following parties that your registration is subject to these conditions:

a. any organisation or person employing or contracting with you to undertake physiotherapy work involving the treatment of patients. This condition does not apply to the Registrant’s patients at his practice.

b. any agency you are registered with or apply to be registered with to carry out any physiotherapy work involving the treatment of patients (at the time of application); and

c. any prospective employer requiring you to be registered as a physiotherapist (at the time of your application).

The order will be reviewed again before its expiry.

 

Notes

No notes available

Hearing History

History of Hearings for Mr Alex Anzelmo

Date Panel Hearing type Outcomes / Status
18/11/2019 Conduct and Competence Committee Review Hearing Conditions of Practice
26/11/2018 Conduct and Competence Committee Final Hearing Conditions of Practice