HCPTS |

Profession: Occupational therapist

Registration Number: OT13435

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 17/02/2020 End: 17:00 24/02/2020

Location: Jurys Inn Cardiff 1 Park Place, Wales, Cardiff, CF10 3UD

Panel: Conduct and Competence Committee

Outcome: Struck off

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Allegation

(As amended)

Whilst registered as an Occupational Therapist and employed by Hywel Oda University Health Board:

1. On 3 November 2015, in relation to Patient X, you:

a) Carried out a home visit without:

i. Patient X’s consent
ii. Carrying out a Risk Assessment
iii. Seeking advice from and/or consulting the Multi-Disciplinary Team

b) Ignored Patient X's request not to go on a home visit

c) Asked Colleague A to sit in the front passenger seat of the car as she "would be better company than Patient X" or words to that effect, within earshot of Patient X

d) When it appeared that Patient X, did not want to enter his home address, you:

i. raised your voice at Patent X; and
ii. stated that he was "acting like a small child and embarrassing himself in front of his neighbours" or words to that effect.

e) Took photographs, on your personal mobile phone of Patient X, without his consent to do so;

f) Made a video recording on your personal mobile phone of Patient X, without his consent to do so;

g) Asked Colleague A to open the front door of Patient X's house without his consent to do so;

h) Stated to members of the public who were passing by and the Community Psychiatric Nurse that Patient X was giving "an Oscar winning performance" or words to that effect;

i) Entered Patient X's house without his consent;

j) Took a telephone call from Patient X's Community Psychiatric Nurse:

i. Whilst holding the phone and driving
ii. In which you stated you had witnesses ‘an Oscar winning performance’ or words to that effect, whilst the phone was on the loud speaker and/or within earshot of Patient X;

k) Drove in excess of the speed limit on a single carriageway whilst driving Colleague A and Patient X.

2. On or around 3 November 2015, attempted to and/or showed a video recording and/or photographs of Patient X on your personal mobile phone to:

a) Colleague B;
b) Colleague C;
c) Colleague D;
d) Colleague E;
e) Colleague F;
f) Colleague G;
g) Colleague H.

3. The matters described at particulars 1 - 2 constitute misconduct.

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

Finding

Preliminary Matters:

Service

1. The Hearings Officer provided an unredacted copy of the service bundle to the Panel, and went through the documentation. On 23 October 2019, the HCPC sent the notice of this hearing by first class post to the registered address recorded for the Registrant. A copy of the notice was also sent by email. The notice contained the required particulars.

2. The Panel was satisfied on the documentary evidence provided that the Registrant had been given proper notice of this hearing in accordance with the Rules.
Proceeding in absence of the Registrant.

3. Mr Lloyd, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. He informed the Panel that no communications had been received from the Registrant during the HCPC investigation, nor during these proceedings. He submitted that there had been an entire lack of engagement; an adjournment would serve no useful purpose; and there had been no indication from the Registrant that he intended to attend. Mr Lloyd submitted that the Registrant had voluntarily absented himself, there were a number of witnesses present and due to attend and that it was in the public interest to proceed.

4. The Panel heard and accepted the advice of the Legal Assessor, who advised that the discretion to proceed in a Registrant's absence must be exercised with the utmost care and caution. It also had regard to the HCPTS Practice Note on proceeding in the absence of a Registrant.

5. The Panel was satisfied that the HCPC had fulfilled its obligations and taken all reasonable steps to serve the notice on the Registrant in accordance with the Rules. He had not engaged at all in either the HCPC investigation of this matter or the resulting proceedings. The Panel therefore inferred that the Registrant’s absence was voluntary, thereby waiving his right to attend.

6. The Panel was mindful that proceeding in the Registrant’s absence would disadvantage him, but this was a consequence he had brought upon himself through his non-engagement and non-attendance. The Panel did not consider that an adjournment would secure his attendance. The Panel noted that witnesses had been arranged to attend, and there had been some considerable delay already, as the allegations related to 2015. In all the circumstances, the Panel considered that it was in the public interest for the hearing to take place.

Application to amend the Allegation

7. Mr Lloyd applied to amend particular 1 of the allegation. The application was to remove the words ‘whilst accompanying Patient X, who appeared to be in a distressed and anxious state, on a home visit, by car with Colleague A’ and replace them with the words ‘in relation to Patient X’. He submitted that the proposed amendment removed the alleged description of Patient X from the stem of particular 1, which would avoid the Panel having to consider factors which were also specifically alleged in other particulars. He informed the Panel that notice of the HCPC intention to apply for amendment had been notified to the Registrant by letter, dated 17 September 2019, and no response, therefore no objection, had been received.
8. Mr Lloyd submitted that there would be no prejudice to the Registrant as the proposed amendment did not alter the nature of the allegation, nor change how the HCPC would put its case.
9. The Panel, having heard and accepted the advice of the Legal Assessor, decided to allow the application to amend. It was not the case that the proposed amendment was significant. They were not substantive, nor would they alter the nature of the case alleged against the Registrant. Consequently, the Panel was satisfied there would be no unfairness to the Registrant in allowing the application.

Background:

10. The Registrant is an HCPC registered Occupational Therapist. He started his employment at Hywel Dda Health Board (the Board) in 1986. During his employment he had had various roles and at the time of the incident he was an Occupational Therapist based on Bryngolau Ward (the Ward), in Prince Phillip Hospital, Llanelli.

11. The Registrant had been tasked by the Multi-Disciplinary Team (MDT) with taking Patient X on a home visit which was due to take place on 3 November 2015. This was to involve taking Patient X from the Ward, back to his home address and then returning to the Ward afterwards.

12. On 3 November 2015, the Registrant conducted the home visit with Patient X and Colleague A. It is alleged that the Registrant did not obtain consent for the home visit in principle, or for the Registrant and Colleague A to enter Patient X’s home. It is alleged that the Registrant did not conduct a risk assessment, nor seek advice from or consult the MDT, when Patient X became distressed and anxious about the home visit. It is alleged that the Registrant ignored Patient X’s request not to go on the home visit.

13. The Registrant drove to Patient X’s home address with Patient X and Colleague A. It is alleged that the Registrant asked Colleague A to sit in the front passenger seat as ‘she would be better company than Patient X’, and that this was said within earshot of Patient X.

14. On arrival at Patient X’s home address, it is alleged that the Registrant raised his voice to Patient X when he appeared not to want to go inside, and made comments to passers-by about Patient X’s presentation and demeanour. Once at the home address, it is also alleged that the Registrant took photographs and made a video of Patient X without Patient X’s consent.

15. After the home visit, the Registrant drove Patient X and Colleague A back to the Ward. It is alleged that during that return journey, the Registrant answered a phone call, holding his mobile phone whilst driving and making an audible comment about Patient X’s presentation. It is further alleged that the Registrant exceeded the speed limit.

16. Once back on the Ward, it is alleged that the Registrant showed/attempted to show the photographs/video of Patient X to a number of colleagues, knowing that he had no consent.

17. On 4 November 2015, Colleague A spoke to Colleague G, the Ward Sister, about the Registrant’s actions on the home visit.

18. Initial fact finding statements were taken from a number of members of staff in November 2015, by the Disciplinary Officer and Interim Head of the Older Adult Mental Health Services. On 9 December 2015, NV, the then Assistant Director of Therapies at the Board, was appointed as the Investigating Officer. She conducted a number of investigation interviews with members of staff, including with Colleague A on 22 December 2015, and the Registrant on 15 June 2016. On 17 January 2017, the Registrant’s employment with the Board was terminated on the grounds of ill-health.

Decision on Facts:

19. On behalf of the HCPC, the Panel heard evidence from Colleague A, NV, Colleague D, Colleague E, and Colleague G.

20. Colleague A was, at the time of the allegations, a Student Nurse on a placement at the Ward. She had started her placement on 26 October 2015, which was due to last for seven weeks. She was present on the home visit with Patient X on 3 November 2015.

21. NV was the Assistant Director of Therapies and Health Science with the Board. She was a qualified Speech and Language Therapist registered with the HCPC. She was responsible for professional practice, clinical governance and safety in relation to HCPC registered professionals at the Board, but had a wider role of acting as an Investigating Officer in relation to Board disciplinary matters. She was appointed as the Investigating Officer to investigate the allegation against the Registrant regarding 3 November 2015.

22. Colleague D was, at the time, working as a Healthcare Support Worker at the Board. This role involved assisting nursing staff with the daily care of patients.

23. Colleague E was, at the time, an Occupational Therapist at the Board. She was also the Registrant’s supervisor.

24. Colleague G was, at the time, the Ward Sister on the Ward on which Patient X was based, as well as being the Acting Ward Manager during the month of November 2015.

25. The Panel also received documentary evidence, including the Investigation Report prepared by NV, dated March 2017; fact finding statements from Colleagues A, B, C, D, E, F, and G; transcripts of investigation interviews from the Registrant, Colleagues A, E, F, G, H and KR; the Board’s Guidance on Home Visits for Bryngolau Ward; and relevant Board Policies and draft policies.

26. The Panel heard and accepted the advice of the Legal Assessor. The Panel understood that the burden of proving each individual fact rests on the HCPC and that the HCPC will only be able to prove a fact if it satisfies the required standard of proof, namely the civil standard, whereby it is more likely than not that the alleged incident occurred.

27. The Registrant did not attend the hearing, but the Panel did not draw any adverse inferences against him at the fact finding stage from his absence. The Panel had regard to the Registrant’s account in his investigation interview at the Board, but noted that it had not been tested by cross examination.

28. The Panel made an assessment of the credibility of the witnesses who gave evidence before it.

29. In relation to NV, the Panel noted that she was an experienced investigator who gave a clear account of the investigation process which included interviewing members of staff, including the Registrant. The Panel found her to be broadly credible, although her evidence was of limited assistance as she did not have first hand knowledge of the events alleged.

30. In relation to Colleague A, the Panel found that she was a credible witness. It considered that she had a good recall of events, despite the passage of time. She conceded when she could not recall precise details. The Panel noted that she had had no previous dealings with the Registrant, and therefore no ‘axe to grind’. The Panel found that she was clear about her professional responsibilities. Her oral evidence was consistent with the initial fact finding statement that she had provided, dated 18 November 2015, which was very shortly after the events.

31. In relation to Colleague D, the Panel found that she had very little relevant information to give. She had volunteered that her memory ‘had been triggered’ on reading the allegation about ‘an Oscar winning performance’. On further questioning, she disclosed a conversation about the case with Colleague E while they were waiting to give evidence. The Panel was of the view that such conversation should clearly not have occurred. However, in the particular circumstances of this case, the Panel did not consider that this undermined the other areas of her evidence, especially as her fact finding statement, investigation interview and HCPC witness statement were largely consistent with each other, and pre-dated the conversation with Colleague E.

32. The Panel found Colleague E to be an honest witness who was careful in her evidence and objective and fair to the Registrant. Colleague E also confirmed that there had been a conversation with Colleague D before they each gave their evidence, and accepted that she had been informed that she should not discuss the case. As with for Colleague D, the Panel was of the view that such conversation should clearly not have occurred. However, in the particular circumstances of this case, the Panel did not consider that this affected the other areas of her evidence.

33. In relation to Colleague G, the Panel found her to be a credible and reliable witness who was also fair and objective to the Registrant.

Particular 1

On 3 November 2015, in relation to Patient X, you:
(a) Carried out a home visit without:
(i) Patient X’s consent

34. The Panel finds particular 1(a)(i) proved.

35. The Panel was satisfied on the evidence before it, that on 3 November 2015, there had been a home visit conducted by the Registrant in respect of Patient X.

36. Patient X was described as a vulnerable patient who suffered from acute anxiety and depression and had been admitted to the ward some three weeks earlier. The MDT had decided that a home visit should take place, and it was scheduled for 3 November 2015.

37. In her initial fact finding statement, dated 18 November 2015, Colleague A said that she, Patient X, and the Registrant were walking to the Registrant’s car and Patient X was distressed and kept telling them: ‘I can’t do this, I just can’t do it’, and telling them that he did not want to go on the home visit. When the Registrant asked Patient X why, Patient X did not reply.

38. In relation to the car journey, in her fact finding statement, Colleague A said that during the journey Patient A kept asking the Registrant to stop the car and to go back to the Ward. The Registrant’s response was that if Patient X told him what was wrong he (the Registrant) would stop the car, however, Patient X did not reply.

39. Colleague A told the Panel that on the car journey to the house, Patient X made it clear that he did not want to go on the home visit. In her witness statement she said that during the car journey to the patient’s home, the Registrant was questioning the patient on why he did not want to go on a home visit but the patient was not responding to this. The Registrant continued to question the patient about this for the first half of the journey. The patient appeared to settle and become less anxious until they got to his home when this anxiety heightened.

40. Whilst a home visit was decided upon by the MDT, and scheduled for 3 November 2015, Colleagues E and G had told the Panel that the ultimate responsibility of whether the home visit should take place on any given day rested with the professional due to carry it out, based on the particular circumstances and presentation of a patient on the day. The Panel was satisfied from the evidence of Colleague A, that on 3 November 2015, Patient X was reluctant to go on the home visit. Given Patient X’s vocalisation that he could not do the home visit and wanted to return to the Ward, together with his physical demeanour, the Panel was satisfied to the required standard that Patient X did not consent to the home visit.

(ii) Carrying out a risk assessment

41. The Panel finds particular 1(a)(ii) not proved.

42. The Panel was mindful that it had not been provided with a copy of any of Patient X’s records, save for the entry which had been completed for 3 November 2015, following the home visit. Consequently, there was no evidence as to whether or not a risk assessment for the home visit had been recorded as having been undertaken.

43. The Panel noted that the Registrant had not been specifically asked during his investigation interview whether he had carried out a risk assessment in respect of the home visit. In respect of being asked about his clinical judgement, in that interview, the Registrant had explained that his clinical judgement had been based on the fact that Patient X had settled down before, and he was hoping that Patient X would settle down once they left the ward environment. This response indicated to the Panel that the Registrant may have carried out some kind of assessment.

44. In all the circumstances, the Panel was not satisfied that the HCPC had discharged the burden of proving that the Registrant had not carried out a risk assessment.

(iii) Seeking advice from and/or consulting the Multi-Disciplinary Team

45. The Panel finds particular 1(a)(iii) proved.

46. The Panel had regard to the evidence of Colleague A as to the presentation of Patient X on the morning the home visit was due to take place. Patient X was anxious, distressed, his limbs were shaking, and he was saying that he did not want to go on the home visit. The Panel noted the Board Guidance for Home Visits for Bryngolau Ward which advised that the Occupational Therapist was to confirm with qualified ward staff that the patient was physically and mentally well enough to proceed with the home visit. The Panel was satisfied that given the circumstances that morning, the responsibility was on the Registrant to seek advice from and consult with the MDT as to the appropriateness of proceeding with the home visit at that time.

47. Colleague F, Patient X’s named nurse, in her investigation interview said that she had not seen the Registrant when he had taken Patient X off the ward for the home visit. The Registrant, in his investigation interview, said that nobody, not the ward nurse, charge nurse, or anybody else came up to him to tell him that he should not carry out the home visit because of Patient X’s state. In all the circumstances, the Panel was satisfied to the required standard, that the Registrant had not sought advice from or consulted with any member of the MDT as to whether to proceed with the home visit for Patient X.

(b) Ignored Patient X’s request not to go on a home visit

48. The Panel finds particular 1(b) not proved.

49. The Panel had regard to the evidence of Colleague A, to the effect that on the car journey to the home visit, when Patient X was saying that he could not do it and did not want to go on the home visit, the Registrant was responding by asking Patient X why he did not want to go. The Registrant was engaging with Patient X’s request not to go on the home visit. In light of this, the Panel was not satisfied that the HCPC had discharged the burden of proving that the Registrant had ignored Patient X’s request not to go on a home visit.

(c) Asked Colleague A to sit in the front passenger seat of the car as she ‘would be better company than Patient X’ or words to that effect

50. The Panel finds particular 1(c) proved.

51. In finding this particular proved, the Panel accepted the evidence of Colleague A. She said that she asked the Registrant if he wanted her to get in the back of the car with Patient X, but the Registrant instructed her to get in the front passenger seat of the car and for Patient X to sit behind her. When the Registrant got in the car, he told Colleague A that the reason he wanted her to sit in the front was that he would be better company than Patient X. This was said in front of Patient X.

(d) When it appeared that Patient X did not want to enter his home address, you
(i) Raised your voice at Patient X;

52. The Panel finds particular 1(d)(i) proved.

53. In finding this particular proved, the Panel accepted the evidence of Colleague A. She said that on arrival at Patient X’s home address, after they had all got out of the car and were walking into Patient X’s front garden, Patient X placed himself on the floor where he sat against the wall. The Registrant raised his voice and was repeatedly asking Patient X what was wrong, to which Patient X repeatedly said that he could not do it and his head hurt.

(ii) Stated that he was ‘acting like a small child and embarrassing himself in front of his neighbours’ or words to that effect

54. The Panel finds particular 1(d)(ii) proved.

55. In finding this particular proved, the Panel accepted the evidence of Colleague A. She said that whilst Patient X was still on the floor against the wall, the Registrant told Patient X that he was acting like a small child and was embarrassing himself in front of his neighbours. This exchange lasted for approximately 10 – 15 minutes.

(e) Took photographs on your personal mobile phone of Patient X, without his consent to do so;

56. The Panel finds particular 1(e) proved.

57. In finding this particular proved, the Panel accepted the evidence of Colleague A. Colleague A told the Panel that during the exchange between the Registrant and Patient X, the Registrant took out his mobile phone and told her that he was going to take pictures of Patient X. The Registrant did say to Patient X that he was going to take pictures, but Patient X did not respond. The Registrant proceeded to take several photographs, including one of Patient X lying on the ground, but did not at any point ask for consent from Patient X. At one point the Registrant asked Patient X to look up.

58. The Panel also had regard to the Registrant’s investigation interview. In it he said that he had taken photographs on his mobile phone. NV asked the Registrant: ‘How did you obtain consent from the patient with regards to the video recording of him’? The Registrant replied: ‘I didn’t…because of his behaviour, the reason I took a photograph of his behaviour was like I said it’s something like I have never seen before on a home visit and I wanted to show the team here, “look at his behaviour, where is this coming from, can somebody please help me out here”.

59. In all the circumstances, the Panel was satisfied to the required standard that the Registrant had used his personal mobile phone to take photographs of Patient X, and that he did not have the consent of Patient X to take them.

(f) Made a video recording on your personal mobile phone of Patient X, without his consent to do so;

60. The Panel finds particular 1(f) proved.

61. In finding this particular proved, the Panel accepted the evidence of Colleague A. She told the Panel that having taken pictures of Patient X, the Registrant turned to her and told her he was going to take a video of Patient X, which he did. She also told the Panel that the Registrant videoed Patient X a second time on his (the Registrant’s) mobile phone when they were inside the house, again not having asked for consent. This was when Patient X was on the floor, having crawled into the house. The Panel also had regard to the Registrant’s response in his investigation interview, that when asked how he obtained consent from Patient X regarding the video recording, the Registrant replied that he did not.

62. In all the circumstances, the Panel was satisfied to the required standard that the Registrant had used his personal mobile phone to take two video recordings of Patient X, and that he did not have the consent of Patient X to take them.

(g) Asked Colleague A to open the front door of Patient X’s house without his consent to do so;

63. The Panel finds particular 1(g) proved.

64. In finding this particular proved, the Panel accepted the evidence of Colleague A. She said that the Registrant instructed her to open the front door of Patient X’s home, which she did. However, he did not ask Patient X for permission to do this.

65. In light of the continuing presentation of Patient X, sat outside of his house, repeatedly saying that he could not do the home visit, the Panel was satisfied to the required standard, that the Registrant asked Colleague A to open the front door of Patient X’s house without Patient X’s consent to do so.

(h) Stated to members of the public who were passing by and the Community Psychiatric Nurse that Patient X was giving ‘an Oscar winning performance’ or words to that effect.

66. The Panel finds particular 1(h) proved, in respect of both members of the public and the Community Psychiatric Nurse (CPN).

67. In finding this particular proved, the Panel accepted the evidence of Colleague A. In relation to members of the public, Colleague A said that she and the Registrant went to sit in the Registrant’s car at one point when Patient X was on the floor sat against the wall. Two members of the pubic walked past Patient X’s home and saw him on the floor. Both stopped and asked Patient X if he was okay, at which Colleague A got out of the car to explain to them that Patient X had been brought on a home visit and she and the Registrant were there with Patient X. Colleague A said that the Registrant then got out of the car and said to the couple that ‘this was an Oscar winning performance’ and to ignore Patient X.

68. In relation to the CPN, Colleague A said that this occurred on the return car journey back to the ward. At Patient X’s home address, the Registrant had telephoned the CPN about Patient X, but had not got through and had left a message. The CPN rang back during the car journey. The Registrant answered the phone and put it on loud speaker. He told the CPN that he and Colleague A had witnessed an ‘Oscar winning performance’, and asked whether the CPN would be present in the ward round.

69. The Panel also had regard to the Registrant’s investigation interview. He was asked by NV whether he had used the term ‘Oscar winning performance’ to two members of the public passing by, and he agreed that he may have said it to them, due to how Patient X was behaving. The Registrant was also asked in that interview whether he recalled telling the CPN that it was an ‘Oscar winning performance’. He replied: ‘Yes I did, yes. It was yes, ‘what a performance’ you know and that was to emphasise, not in a derogative way or anything like that, just to emphasise that was his behaviour that you know he just wouldn’t come in, he was performing on the pavement in pubic. I don’t know was it a crime to say that?’

70. In all the circumstances, the Panel was satisfied to the required standard that the Registrant had used the phrase ‘Oscar winning performance’ to two members of the public as well as to the CPN.

(i) Entered Patient X’s house without his consent;

71. The Panel finds particular 1(i) proved.

72. In finding this particular proved, the Panel accepted the evidence of Colleague A. Colleague A said that the Registrant went into Patient X’s house and instructed her to follow him in. She said that she and the Registrant spent approximately five to ten minutes in the house where the Registrant showed her around the rooms on the ground floor.

73. In light of the continuing presentation of Patient X, sitting outside his house, repeatedly saying that he could not do the home visit, the Panel was satisfied to the required standard that the Registrant entered Patient X’s house without Patient X’s consent.

(j) Took a telephone call from Patient X’s Community Psychiatric Nurse:
(i) Whilst holding the phone and driving

74. The Panel finds particular 1(j)(i) proved.

75. In finding this particular proved, the Panel accepted the evidence of Colleague A. In her witness statement, Colleague A said that that the Registrant did not have any Bluetooth or hands-free device in his car. During the return journey, with the Registrant driving, when his mobile phone rang with the CPN returning his call, the Registrant picked up his phone from a non-slip mat on the dashboard and answered it. Colleague A said that the phone call lasted about a minute and when the call ended, the Registrant placed the phone back onto the non-slip mat.

76. In all the circumstances, the Panel was satisfied to the required standard that the Registrant had answered the phone to the CPN returning his call. He was, at the time of answering, driving the car, and he answered the phone by picking it up from the dashboard and holding it for the duration of the call.

(ii) In which you stated you had witnessed ‘an Oscar winning performance’ or words to that effect, whilst the phone was on loud speaker and/or within earshot of Patient X

77. The Panel finds particular 1(j)(ii) proved based on the same evidence in respect of the CPN and for the same reasons as particular 1(h) above.

(k) Drove in excess of the speed limit on a single carriageway whilst driving Colleague A and Patient X.

78. The Panel finds particular 1(k) proved.

79. Mr Lloyd, in answering a Panel query, confirmed that the HCPC was not in a position to adduce evidence of which particular speed limit applied to the carriageway on which speeding was alleged, but the HCPC case was that the Registrant had driven in excess of any permissible speed limit.

80. In finding this particular proved, the Panel accepted the evidence of Colleague A. The Panel was satisfied that on the return journey, with Patient X and Colleague A in the car, the Registrant had driven on a single carriageway road. The Panel, having regard to national speed limits, was satisfied that the maximum speed limit on a single carriageway road was 60mph. Colleague A told the Panel that from her position in the car, the speedometer appeared to be on 90mph. She accepted that from her angle, the needle may have looked different, but thought that would have accounted for a maximum difference of 10mph.

81. In all the circumstances, the Panel was satisfied that the Registrant had driven at speeds of greater that 60mph on a single carriageway road, and accordingly he had driven in excess of the speed limit.

Particular 2

On or around 3 November 2015, attempted to and/or showed a video recording and/or photographs of Patient X on your personal mobile phone to:

82. In considering the stem of this particular, and the Registrant showing the photographs/video recordings to members of staff, the Panel had regard to the Registrant’s investigation interview, whereby he accepted showing footage to Colleagues E and G, and that he had deleted the footage when with Colleague E. In relation to other colleagues, he accepted that there were three or four people at handover for the afternoon shift and that he must have shown them the videos.

(a) Colleague B;

83. The Panel finds particular 2(a) proved in respect of both photographs and a video recording.

84. In finding this particular proved, the Panel accepted the fact finding statement of Colleague B, stating that she had walked into the office where the Registrant produced his mobile phone and said to everyone in the room to take a look at the picture of the patient. He vocalised that he had a video which he started to play.

(b) Colleague C;

85. The Panel finds particular 2(b) proved in respect of both photographs and a video recording.

86. In finding this particular proved, the Panel accepted the fact finding statement of Colleague C, stating that during the handover of the assessment (of the home visit), which took place in the office, the Registrant had shown approximately three photographs and two videos of the patient.

(c) Colleague D;

87. The Panel finds particular 2(c) proved in respect of attempting to show a video recording only.

88. In finding this particular proved, the Panel accepted the evidence of Colleague D, who stated that the Registrant had taken out his phone to show those present in the office the video but that she then left the room at that point.

(d) Colleague E;

89. The Panel finds particular 2(d) proved in respect of both photographs and a video recording.

90. In finding this particular proved, the Panel accepted the evidence of Colleague E. She said that she had seen the Registrant after the home visit and had inquired how it had gone. She was informed by the Registrant that he had photographs and videos of the patient on his phone and proceeded to show each one to her. She said that she was shocked and upset at the distressed state of Patient X and that the Registrant was not calming the patient. In her investigation interview, she had described the footage as like something from ‘Panorama’.

(e) Colleague F;

91. The Panel finds particular 2(e) proved in respect of a video recording only.

92. In finding this particular proved, the Panel accepted the fact finding statement of Colleague F, stating that at the afternoon handover in the nurses’ office, the Registrant had shown staff, including herself, a short video recording on his mobile phone, of Patient X lying outside the house in an anxious state, and another of Patient X inside the house lying on the floor in an anxious state.

(f) Colleague G;

93. The Panel finds particular 2(f) proved in respect a video recording only.

94. In finding this particular proved, the Panel accepted the evidence of Colleague G, stating that after the home visit, the Registrant had gone to her office and asked her to look at his mobile phone. He showed her a video of Patient X outside his house, on the floor in between his fence and garden gate in a distressed state. He then showed her another video of the patient in his living room on the floor, continuing to be in a distressed state.

(g) Colleague H;

95. The Panel finds particular 2(g) proved in respect a video recording only.

96. The Panel had regard to the unsigned investigation interview notes of Colleague H. There was no fact finding statement from her. In light of the Registrant not challenging in his interview that there had been a number of members of staff at the handover at which the footage had been shown, the Panel was satisfied that it was safe to rely on the interview notes of Colleague H. Colleague H’s interview notes recorded that she had been in the office when the Registrant had entered and was discussing how the home visit had gone. He had said that he took a video to show how bad the patient was, and proceeded to show a video of Patient X crouched on the floor behind the gate, against the wall.

Misconduct and Impairment:

97. The Panel next considered whether the facts found proved as set out above, amounted to misconduct, and if so, whether by reason thereof, the Registrant’s fitness to practise is currently impaired.

98. The Panel considered the submissions made by Mr Lloyd on behalf of the HCPC. The Panel heard and accepted the advice of the Legal Assessor. The Panel had regard to the HCPTS Practice Note on Impairment. The Panel was aware that any findings of misconduct and impairment were matters for the independent judgement of the Panel. It understood that consideration of impairment only arises in the event that the Panel judges that the facts found proved do amount to misconduct, and that in respect of impairment, that is an assessment of whether a Registrant’s fitness to practise is currently impaired, as at today and looking forward from today.

99. The Panel considered whether the facts found proved amounted to misconduct and concluded that they did.

100. In relation to particular 1, the Panel considered that this related to a series of incidents in respect of the home visit for Patient X. The Registrant’s shortcomings stemmed from him not recognising the extremely anxious presentation of Patient X, and not seeking advice from the MDT about whether it was appropriate to proceed with the visit. He did not seek the patient’s consent for the home visit itself. The Registrant allowed the situation to progressively escalate as Patient X became increasingly anxious and distressed, and the Registrant was oblivious to Patient X’s needs.

101. The Panel did not think that the Registrant had set out to denigrate Patient X, but wrongly allowed himself to be influenced by his view that Patient X’s presentation was not genuine. However, as the home visit progressed, the Registrant disregarded the interests of Patient X. In particular, he took photographs and video footage of Patient X in his distressed state, rather than assisting him. He gave a running commentary during the video footage, again rather than assisting the patient. He described Patient X to passing members of the public as giving ‘an Oscar winning performance’. None of this, in the Panel’s judgement, treated Patient X with dignity, respect or kindness. The Panel concluded that this fell far below the standards to be expected of an Occupational Therapist and amounted to misconduct.

102. In relation to particular 2, following the home visit, the Registrant showed colleagues the photographs and video footage, which he had obtained of Patient X without his consent, and was still describing Patient X as giving an ‘Oscar winning performance’ and was oblivious to the impact these distressing scenes had on his colleagues. The Panel concluded that this fell far below the standards to be expected of an Occupational Therapist and amounted to misconduct.

103. The Panel was of the view that the Registrant’s failures had breached the following HCPC Standards of Conduct, Performance and Ethics (2012):

• 1 – You must act in the best interests of service users
• 3 – You must keep high standards of personal conduct
• 7 – You must communicate properly and effectively with service users and other practitioners
• 9 - You must get informed consent to provide care or services (so far as possible)

104. The Panel was of the view that the Registrant’s failures had breached the following HCPC Standards of Proficiency for Occupational Therapists (2013):

• 1 – be able to practise safely and effectively within their scope of practice
• 2.1 – understand the need to act in the best interests of service users at all times
• 2.3 – understand the need to respect and uphold, the rights, dignity, values, and autonomy of service users including their role in the diagnostic and therapeutic process and in maintaining health and wellbeing
• 2.4 – recognise that relationships with service users should be based on mutual respect and trust, and be able to maintain high standards of care even in situations of personal incompatibility
• 2.7 – understand the importance of and be able to obtain informed consent
• 2.8 – be able to exercise a professional duty of care
• 4.1 – be able to assess a professional situation, determine the nature and severity of the problem and call upon the required knowledge and experience to deal with the problem
• 4.2 – be able to make reasoned decisions to initiate, continue, modify or cease treatment or the use of techniques or procedures, and record the decisions and reasoning appropriately
• 8.1 – be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, carers, colleagues and others
• 8.3 – understand how communication skills affect assessment and engagement of service users and how the means of communication should be modified to address and take account of factors such as age, capacity, learning ability and physical ability
• 8.4 – be able to select, move between and use appropriate forms of verbal and non-verbal communication with service users, carers and others
• 9.3 – understand the need to engage service users and carers in planning and evaluating diagnostics, treatments and interventions to meet their needs and goals

Decision on Impairment:

105. The Panel had regard to the HCPTS Practice Note on Impairment and in particular to the two elements of impairment, namely the ‘personal component ‘and the ‘public component’.

106. In relation to the ‘personal component’, the Panel was mindful that the Registrant had not engaged with the HCPC investigation or these proceedings. The consequences of this were that there was no information before the Panel of any reflection or steps at remediation from the Registrant.

107. In the interview, that took place some seven months after the event, the Registrant made some limited concessions about his behaviour but the Panel found that these did not amount to genuine expressions of remorse because they arose as a result of prompting. For example, when he apologised if it was the case that he had shown colleagues in handover the video but then went on to say that he wanted to show them “this is what we had to put up with today”. Another example was when he described agreeing with the disciplinary officer that the incident had been an error of judgement and he said “yes it could be, hindsight is a wonderful thing… so it could be that”. As already stated, that interview was held some seven months after the home visit, and there was no indication within it that the Registrant had understood the extent of the distress and anxiety Patient X was experiencing that day, or the impact of his actions on Patient X, colleagues, or members of the public. Further, there was no evidence that he had reflected upon his considerable poor judgement and insensitivity in video recording Patient X’s distress, rather than trying to assist him.

108. In respect of showing the video footage to colleagues, the Panel had no information to demonstrate that the Registrant understood how shocked and upset his colleagues would be on showing it, or of the effect that it would have on Patient X or colleagues.

109. As to his comment that Patient X had given an “Oscar winning performance”, the Registrant showed no understanding of how insensitive and disrespectful this was.

110. Consequently, the Panel did not consider that it had any material before it to demonstrate that the Registrant had developed any meaningful insight into his actions, or remediation of his practice. In all the circumstances, in the absence of insight and remediation, the Panel concluded that the risk of repetition was high.

111. Accordingly, the Panel concluded that in respect of the ‘personal component’ the Registrant’s fitness to practise is currently impaired.

112. In relation to the ‘public component’, the Panel considered that the Registrant’s lack of kindness and compassion for Patient X, would cause members of the public to be concerned. The public expects, and needs to have confidence that professionals responsible for the care of vulnerable service users will treat them with decency, dignity and respect, and that appropriate action will be taken to address a service user’s anxiety and distress. In this case, the Panel was satisfied that serious harm had been caused to Patient X, in that his anxiety and distress had been exacerbated and prolonged by the Registrant, and harm had been caused to his colleagues in witnessing the anxiety and distress of Patient X in those circumstances. In reaching the conclusion that serious harm had been caused, the Panel noted that Colleagues A and E had been shocked and upset at the time of these events. Colleague E, in her interview, stated that “Because I was so upset I had to leave the room… I was very upset, it was like watching panorama with old people in care homes… very distressing videos. I just couldn’t believe it, I was in shock”. When giving their evidence, some four years later, Colleagues A and E continued to be deeply affected and concerned by the Registrant’s conduct.

113. In light of this, and the conclusion that the risk of repetition remained high, the Panel was of the view that public confidence in the profession would be undermined if a finding of current impairment were not made in this case. It was also of the view that a finding of impairment was necessary to declare and uphold proper standards of behaviour.

114. Accordingly, the Panel concluded that in respect of the ‘public component’ the Registrant’s fitness to practise is currently impaired.

Decision on Sanction:

115. Having determined that the Registrant’s fitness to practise is currently impaired by reason of his misconduct, the Panel next went on to consider whether it was impaired to a degree which required action to be taken on his registration. The Panel took account of the submissions of Mr Lloyd on behalf of the HCPC. It also had regard to all the evidence it had heard, and all of the material previously before it.

116. The Panel heard and accepted the advice of the Legal Assessor and it exercised its independent judgement. It bore in mind the Sanctions Policy (the Policy) and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to punish but to protect members of the public and to safeguard the public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process. It therefore understood that it must impose the least restrictive sanction to address those risks which it had identified.

117. Before considering the individual options open to the Panel, it considered the significant aggravating and mitigating features, which have previously been identified at the misconduct and impairment stage of this case.

118. The Panel considered the following to be the significant mitigating factors:

• the Registrant was of good character – he had been practising as an Occupational Therapist since 1986 without any previous regulatory findings against him;
• the Registrant had attended the Board’s investigation interview and had admitted certain aspects about his behaviour, including that he had said ‘Oscar winning performance’ and shown the videos of Patient X; and
• the Panel did not consider that the Registrant had intended to be malicious.

119. The Panel considered the following to be the significant aggravating factors:

• the Registrant had abused his professional position as there had been an imbalance of power: the Registrant as the health care professional and Patient X as an elderly and vulnerable in-patient with mental health issues and no family to advocate on his behalf;
• the Registrant had not developed insight over the months following the home visit up to the investigation interview in respect of why what he did was unacceptable;
• Patient X had exhibited extreme distress, at one point Colleague A described him as curled up in a ball, but the Registrant did not help him, instead he videoed Patient X and gave a running commentary;
• the Registrant treated Patient X without dignity, respect or kindness and demonstrated a lack of care and compassion for Patient X at every stage of the home visit;
• the Registrant drove above the speed limit, putting Patient X, Colleague A and members of the public at risk; and
• the Registrant’s behaviour had a significant impact on Patient X’s dignity – it was in public and involved two passers-by who came into contact with Patient X while he was in distress and on his own;
• this was a protracted incident during which Patient X’s distress was disregarded a number of times;
• the Registrant spoke about Patient X disrespectfully to others;
• the Registrant showed the photos/video recordings to a number of colleagues and on a number of occasions without realising the impact on those colleagues;
• there was no evidence of remediation; and
• there was a lack of engagement with the HCPC.

120. The Panel first considered whether a sanction was necessary. It was mindful that the Policy specifically identified as serious cases, those in which there had been an abuse of professional position. The Panel was of the view that the case was too serious to take no action, and that such a course would send the wrong message to the public. It concluded that some form of sanction was necessary to protect the public, maintain public confidence in the profession and to declare and uphold proper standards of conduct and behaviour.

121. The Panel next considered whether to impose a Caution Order. Whilst the incident was isolated in the sense that it was confined to a single day and a single patient, the Panel did not consider that what had occurred on that day could properly be described as limited or relatively minor in nature. Further, the Panel did not consider that the other factors relevant for a Caution Order were present in this case. The Panel’s conclusions at the impairment stage were that there was no meaningful insight or remediation in this case and consequently there was a high risk of repetition. In all the circumstances, the Panel did not consider a Caution Order to be the appropriate or proportionate response in this case, as it would neither protect the public nor address the public interest.

122. The Panel next considered whether the imposition of a Conditions of Practice Order was the appropriate and proportionate response in this case. The Panel considered that the Registrant’s failings were, in principle, capable of remediation, but there was no evidence before it that this Registrant was capable of remedying his misconduct. The Panel had no evidence of insight and there had been no engagement from the Registrant. In light of this, the Panel could not be confident that the Registrant would be either willing or able to comply with conditions, and so conditions were not appropriate in this case.

123. The Panel next considered whether a Suspension Order was the appropriate and proportionate response. It was satisfied that the nature of the misconduct constituted a serious abuse of professional position, one of the factors relevant for a Suspension Order. However, the other relevant factors identified by the Policy as typically present, namely insight, unlikelihood of repetition, and evidence to suggest the Registrant is likely to be able to resolve or remedy their failings, are not present in this case. The Registrant had not engaged with the HCPC for four years, so the Panel had no reason to believe that a Suspension Order would lead him to set about engaging with the HCPC or remedying his behaviour. Accordingly, it did not consider that a Suspension Order was the appropriate or proportionate response.

124. The Panel understood that a Striking-Off Order was a sanction of last resort. In the Panel’s view, this was a serious case in which the Registrant had shown a reckless disregard for Patient X and the public. His conduct was an abuse of his professional position, by virtue of the patient’s vulnerability. The Panel considered that any lesser sanction would be insufficient to protect the public and maintain public confidence in the profession and regulatory process, due to the Registrant’s lack of insight and apparent unwillingness to take steps to resolve matters over the last four years.

Order

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

Notes

Interim Order following Imposition of Sanction:

Proceeding with the application in the Registrant’s absence

1. Mr Lloyd applied for the Interim Order application to proceed in the Registrant’s absence.

2. The Panel accepted the advice of the Legal Assessor and decided that it was appropriate to proceed in the Registrant’s absence. It was satisfied that the Registrant had been given notice in the notice of hearing dated 23 October 2019, that the HCPC may make such an application in the event that a sanction which removed, suspended or restricted his right to practise was imposed.

3. The Panel considered that the same factors applied as for its decision to proceed with the hearing, namely that the Registrant had voluntarily waived his right to attend and it was unlikely that an adjournment would secure his attendance.
Interim Order Application

4. Mr Lloyd applied for an Interim Order of Suspension for 18 months to cover the appeal period before the Striking Off Order comes into effect.

5. Having heard and accepted the advice of the Legal Assessor and having had regard to the Practice Note on Interim Orders, the Panel decided to impose an Interim Order of Suspension for 18 months.

6. The Panel was satisfied that an Interim Order was necessary to protect the public. The Panel has found misconduct and current impaired fitness to practise on both the personal and public components, as the Registrant lacked insight, had not remedied his failings and consequently there is a high risk of repetition, placing patients and members of the public at risk of harm.

7. The Panel was also satisfied that an Interim Order was required in the wider public interest in order to maintain public confidence in the profession and to uphold proper standards of conduct and behaviour. Having found that the Registrant’s fitness to practise is currently impaired, and that the only appropriate sanction is one of a Striking Off Order, the Panel was of the view that the public would be concerned if the Registrant were permitted to practise during the appeal period.

8. The Panel considered an Interim Conditions of Practice Order, but given the Registrant’s lack of engagement, conditions were not appropriate for the same reasons as set out in the substantive hearing.

9. In all the circumstances the Panel determined to make an Interim Suspension Order for a period of 18 months. In deciding to impose this length, it took account of the fact that if the Registrant were to appeal, that process may take a considerable period of time.

Interim Suspension Order:

The Panel makes an Interim Suspension Order under Article 31(2) of the Health 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.

Hearing History

History of Hearings for Mr Sarmukh Singh

Date	Panel	Hearing type	Outcomes / Status
17/02/2020	Conduct and Competence Committee	Final Hearing	Struck off