1. Due to the current Covid-19 pandemic and the Government’s advice in response to it, the Panel met to consider this matter via remote conferencing facilities.
2. Notice of this Hearing was sent by email on 24 April 2020 to the Registrant’s registered email address, more than 28 days before the date of Hearing. The Panel was satisfied that Notice of Hearing had been served in compliance with the HCPC Conduct and Competence Committee (Procedure) Rules 2003, (“the Rules”).
Proceeding in the absence of the Registrant
3. Ms Ktisti, on behalf of the HCPC, invited the Panel to proceed in the absence of the Registrant. She referred the Panel to an email exchange between the HCPTS and the Registrant on 15 June 2020 as follows:
• On 15 June, the HCPTS wrote to the Registrant to enquire as to whether he wished to attend today’s hearing. The email stated: “If you do wish to attend the hearing, I will send you the Microsoft Teams invite and joining instructions. If you would like the hearing to proceed in your absence, a written decision will be sent to you after the hearing.”
• On the same date, the Registrant responded by email: “at this moment especially with critical times we are facing I am not happy and confident to present myself for any meetings. Please take this into consideration and send me the decision of the hearing in writing as offered.”
4. Ms Ktisti referred the Panel to the guidance contained in the HCPTS Practice Note on ‘Proceeding in the Absence of the Registrant’. She noted that the Registrant had not taken the opportunity to request an adjournment. She submitted that in light of the email correspondence set out above, it was clear that the Registrant had chosen not to attend the hearing and had waived his right to appear. Ms Ktisti submitted that the public interest in the expeditious disposal of the Allegation outweighed any disadvantage to the Registrant in proceeding in his absence.
5. The Panel heard and accepted the advice of the Legal Assessor who reminded it of the guidance provided in the cases of R v Jones  UKHL5, Adeogba v the General Medical Council  EWCA Civ 162 and Davies v HCPC  EWHC 1593 (Admin).
6. The Panel recognised that the discretion to proceed in the absence of a Registrant is one which must be exercised with the utmost care and caution and that its decision should be guided by the overarching objective to protect the public.
7. In reaching its decision, the Panel had regard to the fact that the purpose of today’s remote hearing is to consider an agreement made between the Parties and signed by the Registrant on 17 June 2020. The Panel had careful regard to the nature and circumstances of the Registrant’s behaviour in absenting himself. It was clear to the Panel that the Registrant is aware of today’s remote hearing, had chosen not to attend, had not requested an adjournment and by virtue of his request for written confirmation of the decision, had indicated that he was content for the hearing to proceed in his absence. In these circumstances, the Panel concluded that the Registrant had voluntarily absented himself and waived his right to be present. The Panel balanced the public interest in the timely disposal of the Allegation with any disadvantage to the Registrant should the hearing proceed in his absence.
8. The Panel had no reason to believe that, if it were to adjourn the hearing, the Registrant would attend on the next occasion.
9. For the reasons set out above, the Panel concluded that it would be fair and in the interests of justice to proceed in the absence of the Registrant.
Background, as set out in the Voluntary Removal Agreement (VRA)
10. The Registrant is a registered Physiotherapist.
11. On 8 June 2018, the HCPC received a referral from North East London Foundation Trust (“the Employer”) following an internal disciplinary investigation into concerns raised about the Registrant in March 2016 in a formal complaint from the family of a Patient.
12. These concerns related to the unsafe discharge of Patient 1. The concerns were investigated locally, and the Registrant received increased supervision and was put on a Practice Improvement Plan in August 2016.
13. Subsequently, in February / March 2017, concerns were raised about the Registrant’s clinical practice in relation to Patient 2 and Patient 3. These concerns were also investigated by the Employer. Following a disciplinary hearing the Registrant was dismissed for gross misconduct with immediate effect on 7 March 2018.
14. In respect of the HCPC’s investigation, the Employer also raised concerns about the Registrant’s conduct in respect of Patients 4 and 5.
15. The Registrant was unable to attend the investigation meeting due to his health.
16. Following two adjournments of the Investigating Committee (as further clarification and investigation was required), the Investigating Committee Panel (“ICP”) on 1 November 2019 found there was a case to answer in relation to the misconduct and/or lack of competence allegation against the Registrant.
17. During the investigation stage, the Registrant informed the HCPC that he was not currently practicing as a Physiotherapist and had no intention to practice physiotherapy in the future.
18. Following the Investigating Committee decision, the HCPC reviewed the documentary evidence in this matter and considered the circumstances suitable for disposal by way of a VRA.
19. On 14 January 2020, the HCPC explored disposing of the case by way of VRA with the Registrant. The letter also enclosed a practice note on Disposal of Cases by way of Consent, in order for the Registrant to be fully informed of the requirements and process. On 5 February 2020, the HCPC sent a further email to the Registrant seeking his position on disposing of the matter in this way.
20. On 13 February 2020, the Registrant confirmed that he wished to enter into a VRA, stating that he accepted all the allegations against him, was not currently practicing as a Physiotherapist, and giving the assurance that he was not seeking to practise in the future.
21. A VRA signed by the Registrant on 17 June 2020 was received via email on the same day.
22. Ms Ktisti adopted the contents of the HCPC’s written skeleton argument in support of the VRA. She submitted that, in all the circumstances, voluntary removal from the Register would be an appropriate means of resolving the current matter.
23. Ms Ktisti reminded the Panel that is clear from the correspondence that the Registrant has no desire to practise as a Physiotherapist in the future. Further, he has accepted the allegations, including that his fitness to practise is impaired.
24. Ms Ktisti said the Registrant has been provided with detailed information about the consent process and the effect of voluntary removal from the Register, should the application be granted. She submitted that the Registrant has had time to review this information and query its implications. As a consequence, the HCPC is satisfied that the Registrant’s consent to voluntary removal is informed.
25. Ms Ktisti submitted that, should voluntary removal be permitted in this case, public protection would be ensured as the agreement is equivalent, in effect, to a Striking off Order. The Registrant would no longer be registered as a Physiotherapist. He has confirmed that he does not intend to practise as a Physiotherapist in the future. As a consequence, the public would be adequately protected from any potential risk posed by the Registrant’s practise.
26. In addition, Ms Ktisti submitted that the wider public interest would not be put at risk should this matter be disposed of by way of consent. She said the public would not be concerned, nor would public confidence in the profession be put at risk, should the Panel grant Voluntary Removal in circumstances where the Registrant has accepted the allegations made and accepts that his fitness to practise is impaired.
27. In conclusion, Ms Ktisti submitted that, in all the circumstances, it is appropriate to dispose of this matter in accordance with the terms of the VRA. She said it is the HCPC’s view that disposal by consent on these terms is a suitable, pragmatic and expeditious way of dealing with this matter.
28. The Panel gave careful consideration to all the material before it, including the main evidence bundle, the HCPC Skeleton Argument in support of the VRA, the email exchange between the Registrant and the HCPC on the subject of VRA and the signed VRA itself. It also had regard to Ms Ktisti’s oral submissions to the Panel today, as set out above.
29. The Panel accepted the advice of the Legal Assessor and had careful regard to the content of the HCPTS Practice Note on Disposal of Cases by Consent. The Panel had particular regard to the following guidance contained in the Practice Note:
• “In cases where the HCPC is satisfied that it would be adequately protecting the public if the Registrant was permitted to resign from the Register it may enter into a Voluntary Removal Agreement allowing the registrant to do so, but on similar terms to those which would apply if the registrant had been struck off.”
30. The Panel noted from the documents that the Investigating Committee had concluded that there was a case to answer, and that the Registrant has admitted the Allegation as part of the VRA. The Registrant has also signed a Declaration that there was no other matter of which the Registrant was aware which might give rise to any other allegation.
31. In light of the Registrant’s correspondence with the HCPC, the Panel was satisfied that the Registrant fully understood the effect of the VRA and that the agreement represented a considered and informed decision on the part of the Registrant.
32. The Panel was mindful of the overarching objective of protection of the public and the public interest. It considered whether there were any factors that would make it undesirable to allow the allegation to be concluded on the consensual basis set out in the VRA.
33. The Panel was satisfied that the public would be adequately protected if the Allegation was withdrawn and the Registrant was permitted to have his name removed from the Register and leave the Physiotherapy profession in accordance with the terms of the VRA. The Panel was also satisfied that there are no overriding public interest factors that would require this matter to go to a full substantive hearing. It was aware that if the Registrant sought to return to the HCPC Register at any time in the future, his application would be treated as if he had been struck off as a result of the Allegation.
34. For the reasons set out above, the Panel is satisfied that Voluntary Removal is appropriate and proportionate in this case, and is jointly in the interests of the public, the HCPC and the Registrant.
35. Accordingly, the Panel approves the Voluntary Removal Agreement including the withdrawal of the allegation and the discontinuance of the proceedings.