Mr Joseph L S Muththiya

Preliminary matters:

1. The Registrant did not attend the final hearing. The Panel first considered whether it ought to exercise its discretion to continue with the hearing in the absence of the Registrant. The Panel concluded it was in the public interest to do so, having considered the HCPC Practice Note on “Proceeding in the Registrant’s Absence,” having taken the Legal Assessor’s advice, and considered the guidance in R v Jones [2003] 1 AC 1 HL and GMC v Adeogba and Visvardis [2016] EWCA Civ 162, for the following reasons:

• The Panel is satisfied that the Registrant had notice of the hearing and that the rules on service had been complied with;
• The Registrant has not sought an adjournment and the Panel did not consider that adjourning the hearing would secure the Registrant’s attendance in future;
• The Panel determined that the Registrant had chosen not to attend the hearing and voluntarily waived his right to appear
• There is a general public interest in the expeditious disposal of this matter as the events date back to 2016.

Background:

2. The Registrant first registered with the HCPC as a Physiotherapist on the 27 May 2005.

3. Within an application form for a Band 5 Physiotherapist position at the Leicestershire Partnership NHS Trust (“the Trust”), the Registrant set out that he had worked as a Healthcare Assistant between August 2008 and February 2014 at the Trust and then as a Physiotherapy Technical Instructor at the Trust from March 2014 until January 2018.

4. Following a successful interview, undertaken on 7 December 2017, the Registrant secured a Band 5 position as a Physiotherapist and commenced his duties under that role on 29 January 2018. He undertook that role for two months and informal concerns were raised by colleagues that the Registrant was not able to practice autonomously. The Registrant then rotated to the Community Therapy Service on 2 April 2018 and within a short time concerns were raised that the Registrant was not performing adequately. Informal performance management of the Registrant began on 20 April 2018 with a review of the arrangements scheduled for 9 May 2018. The Registrant resigned his position on 8 May 2018.

5. Concerns about the Registrant’s performance were raised with the HCPC. During the HCPC’s investigation, it emerged that the Registrant had not continued to practice his profession as a Physiotherapist between 2008 and 2016 he had misled the HCPC when renewing his registration in 2008, 2010, 2012, 2014 and 2016 and those entries were fraudulent.

Decision on Facts:

6. In the absence of the Registrant, the Panel appreciated that it would have to decide each sub particular. The Panel bore in mind the burden and standard of proof and considered each sub particular separately.

7. The Panel examined all of the evidence carefully taking account of the responses given by the Registrant during the informal investigation by his employer. The Panel also considered the witness statement given by Mr Yemane, a Registration Manager within the HCPC, which set out the process of registration. The Panel considered that this statement was consistent with the documentary evidence before it.

8. The Panel had regard to the nature of the allegation that the Registrant had fraudulently procured the entries in the Register. The Panel took account of the legal assessor’s advice, that the allegation contained an allegation of dishonesty, and accepted the advice in relation to the test for dishonesty as outlined in the case of Ivey v Genting Casinos (UK) Ltd [2017] UKSC67.

9. The Panel then considered the individual particulars.

Particular 1(a) - Proved

10. The Panel noted that in the Registrant’s application form for the Band 5 Physiotherapy post he stated that he was a production operative for a food company between October 2006 and August 2008. The Panel concluded that at the time of signing the declaration (that he had continued to practise his profession for the last two years in April 2008) the Registrant had been fraudulent. The Panel considered that the Registrant would have been clearly aware that he had not been practising his profession as a Physiotherapist and, in making the declaration that he had been, he was dishonest and reasonable and honest people would consider that he had been dishonest.

Particulars 1(b) and (c) - Proved

11. The Panel noted that in the Registrant’s application form for the Band 5 Physiotherapy post he stated that he had been working as a Health Care Assistant (HCA) between August 2008 and February 2014. He described his duties as carrying out specific clinical tasks as delegated by the appropriate registered health care professional. The Panel noted that this did not include physiotherapy and it concluded that the Registrant had not been practising his profession as a physiotherapist whilst in this role. The Panel considered that the Registrant would have been clearly aware that he had not been practising his profession as a Physiotherapist and, in making the declaration that he had been, he was dishonest and reasonable and honest people would consider that he had been dishonest.

Particular 1(d) - Proved

12. The Panel noted that in addition to his work as a HCA, at the time of signing the declaration in February 2014 the Registrant had been undertaking a Master’s course in Physiotherapy at Coventry University. The Panel had no information as to whether this course contained any practical elements and/or involved patient contact. The Panel concluded that the Registrant had not been practising his profession during the two years preceding the declaration in February 2014. The Panel considered that the Registrant would have been clearly aware that he had not been practising his profession as a Physiotherapist and, in making the declaration that he had been, he was dishonest and reasonable and honest people would consider that he had been dishonest.

Particular 1(e) - Not Proved

13. The Panel noted that in the Registrant’s application form for the Band 5 Physiotherapy post he stated that he had been working as a Physiotherapy Technical Instructor since March 2014. The Panel considered the job specification for this role and considered that these duties were sufficient to suggest that the Registrant could be deemed as practising. In the Informal Performance Meeting notes dated 20 April 2018, the Registrant said that he felt that working as a Band 3 physiotherapy technical instructor was “enough to maintain HCPC”. The Panel noted the statement of Mr Yemane who confirmed, “It is not expected of every Registrant to practise under the exact protected title in order to be deemed as continuing to practice.” The Panel also noted that at the Registrant’s interview in December 2017 his skills and abilities were assessed. Overall, he was considered competent for the Band 5 Physiotherapist role. The Panel therefore considered that the Registrant had not been dishonest in his declaration dated 10 March 2016.

Particular 2 – Proved in relation to Particulars 1(a) – (d)

14. The Panel therefore determined that the renewal of registration following the declarations made on or around 5 April 2008, 8 March 2010, 28 March 2012 and 19 February 2014 were fraudulent.

15. Having found the renewals above were made as a result of fraud the Panel determined to direct the Registrar to remove the entries in relation to the Registrant’s registration made on or around 5 April 2008, 8 March 2010, 28 March 2012 and 19 February 2014.

That the Registrar is directed to remove any entries in relation to the Registrant’s registration made on or around 5 April 2008, 8 March 2010, 28 March 2012 and 19 February 2014.

This Fraudulent entry hearing took place at The Health and Care Professions Tribunal Service, 405 Kennington Road, London, SE11 4PT on Monday 14 October 2019 

History of Hearings for Mr Joseph L S Muththiya