Mr Boben Zacharia

Profession: Physiotherapist

Registration Number: PH77211

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 06/11/2019 End: 13:00 06/11/2019

Location: Venue to be Confirmed

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Allegations (as amended at Substantive Hearing):

Between 1 August 2014 and January 2016, during the course of your employment as a Physiotherapist with NHS Greater Glasgow and Clyde, you:

1. Did not carry out complete subjective and/or objective assessments for your patients in that:

(a) While assessing Patient A on or around 14 September 2015 and/or 22 September 2015, you did not question the Patient specifically enough, to identify a pattern of pain;

(b) On 23 September 2015, while assessing Patient B and/or Patient C, you:

(i) did not extract relevant information from the patient and/or  the patient’s carer without prompting and/or at all;

(ii) did not ask the patient and/or the patient's carer clear questions without prompting and/or at all.

(c) On 2 October 2015, during an assessment of Patient D, you:

(i) did not identify a Warfarin issue as a Precaution:

(ii) did not complete a respiratory assessment of the patient.

(d) On 6 October 2015, during an objective assessment of Patient E, you did not assess the patient's hamstring and/or ankle strength adequately or at all.

(e) On 2 October and/or 9 October 2015, during an assessment of Patient F, you :

(i) used a bilateral Straight Leg Raise to assess the Patient who had received a total knee replacement;

(ii) Did not assess the patient's knee extension adequately or at all.

(f) On 12 October 2015, during a subjective assessment of Patient G, you did not include the patient.

2. Did not complete full and/or written records of assessments for your patients, in that:

(a) following an assessment of Patient A on 22 September 2015, you:

(i) did not document the assessment in the SOAP format;

(ii) did not make an accurate recording of what had been discussed and/or assessed.

(b) following an assessment of Patient B and/or of Patient C on 23 September 2015, did not record what had been discussed and/or assessed sufficiently and/or in a timely manner.

(c) On 6 October 2015, during an objective assessment of Patient E, you documented the Patient’s hamstring and/or ankle strength as 3+ in the notes, even though this was not assessed adequately or at all.

3. Did not prescribe appropriate exercise programmes for your patients, in that:

(a) On 2 October 2015, in respect of Patient D who had Chronic Obstructive Pulmonary Disease (COPD), you provided the patient with a treatment plan of sitting strength exercises, despite the patient being independently mobile.

(b) On 2 October 2015, in respect of Patient F, did not provide a program appropriate for a Total Knee Replacement Patient.

(c) On 12 October 2015, developed an exercise plan for Patient G in a lying position, despite the Patient being independently mobile.

4. The matters described paragraphs 1 – 3 constitute misconduct and/or lack of competence.

5. By reason of your misconduct and/or lack of competence, your fitness to practise is impaired.

Finding

Preliminary Matters
Service
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 appears in the Register. The notice contained the date, time and venue of today’s hearing. The Panel 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.

Proceeding in the absence of the Registrant
2. On behalf of the HCPC, Ms Ktisti asked the Panel to proceed in the absence of the Registrant. The Registrant has not attended previous hearings. Since the last review hearing, the Registrant has had no contact with the HCPC. He has not requested an adjournment. Ms Ktisti 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 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 has not attended previous hearings. He has not requested an adjournment of the hearing. The Panel concluded that the Registrant has voluntarily decided not to attend. 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 interest meant that the hearing should continue in the absence of the Registrant.

Background
5. The Registrant is a Physiotherapist. 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.

6. Following a hearing on 8 May 2017 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. On 27 April 2018, a further Suspension Order was imposed for a period of 12 months. On 9 May 2019, a further Suspension Order was imposed for a period of 6 months. The Panel stated, at paragraph 21, that:

“…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.

Decision
7. Ms Ktisti stated the HCPC’s position was that the Registrant’s fitness to practice 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. The Registrant has now been suspended for a continuous period of over two years. He has provided no evidence that he has addressed, or will in the future seek to address, the concerns in relation to his practice. The HCPC invited the Panel to consider making a Striking Off Order.

8. The Legal Assessor reminded the Panel that it is required to conduct a comprehensive assessment of the Registrant’s fitness to return to unrestricted practise. 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 paragraph 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.”

9. 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 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.

10. The Panel accepted the advice of the Legal Assessor.

11. The Panel first considered whether the Registrant’s fitness to practise is currently impaired.

12. The panel that considered the Registrant’s case in 2017 was satisfied that the shortcomings identified in its findings were of a nature that were potentially capable of being remedied as they demonstrated that the Registrant lacked basic knowledge and was unable to complete routine tasks that would be expected of a Physiotherapist.

13. The Registrant has not engaged with the HCPC. He has provided no evidence since the last hearing that demonstrates that the concerns in relation to his practice have been addressed. This Panel is in the same position as the previous panels. It has no 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.

14. The Panel considers that the public component is also made out.  The Panel reaches that conclusion for the same reasons as the panel that considered matters on 9 May 2019. The Panel considers that there would 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.

15. 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.

16. In this case it is not appropriate to make no order because of the serious nature of the failings identified by the original panel.

17. 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.

18. The Panel considered a Conditions of Practice Order. The major obstacle for the Panel, as was the case when previous panels considered the Registrant’s case, is the lack of any meaningful engagement by the Registrant with the proceedings. He did not appear at the hearing and has provided no documentary evidence 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 has no evidence that the Registrant is committed to resolving the issues identified by the original panel and that he would comply with conditions. The Panel could not 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 or proportionate.

19. 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. The Registrant has now been suspended for more than two years. He has not engaged with the HCPC. He has not utlised the time to seek to address the concerns raised by the original panel. In these circumstances, the Panel does not consider that a further period of suspension is appropriate or proportionate.

20. The Panel went on to consider whether a Striking Off Order is appropriate. A Striking Off Order is a sanction of last resort. It can be appropriate in cases where a registrant has been suspended for at least two years continuously and has failed to address a lack of competence or has demonstrated that they are otherwise unwilling to resolve the concerns in relation to their practice. In the present case, the Registrant has been given every opportunity to address the concerns that were identified by the original Panel. This is notwithstanding the warning provided by the previous Panel that a failure to engage with the process could result in the Registrant being struck off the Register. The Registrant has not provided any material to suggest that he has taken any steps to address his lack of competence. The Panel concludes that the Registrant has repeatedly failed to address his lack of competence. There is no evidence to suggest that the Registrant is prepared to take any steps aimed at remediation. In these circumstances, the Panel has concluded that it is not appropriate for the Registrant to remain as a registered Physiotherapist. A Striking Off Order is appropriate and proportionate.

Order

The Registrar is directed to strike the name of Boben Zacharia from the Register on the date this order comes into effect.

Notes

The Order imposed today will apply upon expiry of the current Suspension Order.

Hearing History

History of Hearings for Mr Boben Zacharia

Date Panel Hearing type Outcomes / Status
06/11/2019 Conduct and Competence Committee Review Hearing Struck off
09/05/2019 Conduct and Competence Committee Review Hearing Suspended
27/04/2018 Conduct and Competence Committee Review Hearing Suspended
08/05/2017 Conduct and Competence Committee Final Hearing Suspended