Mr Deepak K Deshmukh

Preliminary Matters

Service of notice and proceeding in the absence of the Registrant
1. This hearing was held as a “remote hearing” by means of video conferencing software known as “Teams”. This measure has been adopted by the HCPC in response to the Covid-19 emergency. At the outset of the proceedings the Registrant was neither present by video link or telephone, nor was he represented.
2. The Chair invited the Hearings Officer to set out the steps that had been taken to serve notice of the hearing on the Registrant.
3. The Hearings Officer put before the Panel an email dated 31 July 2020 and headed “Notice of Conduct and Competence Committee Final Hearing”. She also put before the Panel a certificate dated 31 July 2020 and a document headed “proof of service” which, taken with the heading of the email demonstrated that the document had been sent to the email address of the Registrant held by the HCPC on the occupational therapist part of the HCPC Register under number OT06696, on 31 July 2020.
4. The notice set out the date and time of the hearing and indicated that it would be held “via videoconference”. It set out the powers of the Panel and said that “if you do not attend, the committee may proceed with the hearing in your absence…” It contained contact details so that the Registrant could make arrangements to attend the hearing.
5. The Panel saw an email from the Registrant dated 10 August 2020 in which he said,
“Whilst I acknowledge the above notice, I would also like to confirm that I will not be attending the hearing via a video link. However, I would like all my previous written submissions by emails, considered in evidence. Kind regards. Deepak Deshmuk BSc OT; Cert.HSM; Dip.HSM”
6. Mr Millin, on behalf of the HCPC invited the Panel to proceed in the absence of the Registrant.
7. He submitted first that the Panel was entitled to proceed in the absence of the Registrant because, although the HCPC had not served notice strictly in accordance with the rules, it had taken all reasonable steps to serve notice on the Registrant in the circumstances brought about by the Covid-19 emergency, by sending a copy of a notice in the correct form to the email address held by the HCPC on the Register and used by the Registrant to communicate with the HCPC.
8. He submitted secondly, that the Panel should exercise its discretion to proceed in the absence of the Registrant because all the evidence indicated that he knew of the hearing and had voluntarily absented himself.
9. The Panel received the advice of the Legal Assessor, which it followed and is incorporated in its determination set out below.
10. Accordingly, the Panel approached the question in two stages. First, it considered whether it was entitled to proceed in the absence of the Registrant. Secondly, it considered whether, in all the circumstances, it should exercise its discretion to do so.
11. The Panel had regard to Rule 3 of the Rules, which provides that the sending of a notice under the Rules can be effected by sending it to the Registrant's address as it appears in the Register. It also had regard to Rule 6, which provides that a registrant is entitled to 28 days notice of the hearing. Finally, it had regard to Rule 11 which provides that “where the registrant is neither present nor represented at a hearing, the Committee may nevertheless proceed with the hearing if it is satisfied that all reasonable steps have been taken to serve the notice of the hearing under rule 6 (1) on the registrant”.
12. Having regard to the Covid-19 emergency, the restrictions that had been placed on regulators and the HCPC Remote Hearing Guidance, which provides for service by email during the emergency period, the Panel was satisfied that the HCPC had taken all reasonable steps to serve notice of the proceedings on the Registrant by sending a notice to the email address held by the HCPC on the appropriate Register, particularly in circumstances where the address was used by the Registrant to communicate with the HCPC.
13. The Panel then considered whether it should exercise its discretion to proceed in the Registrant's absence. The Panel had regard to the email from the Registrant dated 10 August 2020, referred to above, and 2 emails from the Registrant dated 1 March and 3 June 2020 containing written representations for the Panel.
14. The Panel had regard to the guidance given in the Practice Note, “Proceeding in the absence of the Registrant" dated September 2016 and by the House of Lords in R v Jones [2002] UKHL 5. It bore in mind that the discretion to proceed in the absence of a registrant should be exercised with great care. It should look at the nature and circumstances of the registrant's absence and in particular whether his absence was deliberate and voluntary, so that it amounted to a waiver of his right to appear. On this question the Panel noted the email from the Registrant indicating he would not attend the hearing and stating. “I would also like to confirm that I will not be attending the hearing via a video link.”
15. It also considered whether an adjournment was likely to result in the Registrant attending at a later date, the likely length of any such adjournment and whether there was any indication that the Registrant wished to be represented. The Panel was satisfied that there is no evidence that an adjournment would secure the Registrant’s attendance or that he would wish to be represented at any hearing.
16. The Panel accepted that a registrant will inevitably suffer prejudice by not being able to present his case albeit that the Registrant has sent 2 emails that are before the Panel. Nevertheless, the Panel balanced that against the public interest in allowing the HCPC to fulfil its duty to protect the public. The Panel bore in mind the guidance given by the Court of Appeal in Adeogba: “It would run entirely counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process.”
17. In this case, the HCPC had secured the attendance of 2 witness, one of whom has been classified as a vulnerable witness, who are already required to recall events that occurred over 3 years ago. Although the evidence of one witness is based upon contemporaneous documents, that of the other, known as Colleague 1, is not, and further delay risks having a detrimental effect upon the quality of her evidence and causing distress to her.
18. In all the circumstances, the Panel was satisfied that it should exercise its discretion to proceed in the absence of the Registrant because all the evidence pointed to the Registrant having voluntarily absented himself while there was a strong public interest in proceeding with the case so that it will be concluded without any further delay.

Hearing parts of the evidence in private
19. At the outset of the hearing it was apparent to the Panel that the evidence contained references to the health of the Registrant and a relative of the witness in the case, known as Colleague 1. Having heard submissions from Mr Millin and received the advice of the Legal Assessor, the Panel decided that those parts of the evidence relating to the health of the Registrant and the relative of the witness, would be heard in private and the transcript would be marked accordingly.

Background

20. The Registrant is a registered occupational therapist who joined the Community Mental Health Team for Older Adults at the Kent & Medway Trust (KMPT) on 20 October 2016 as a Band 6 occupational therapist.
21. As part of his role, the Registrant was required to conduct initial assessments, occupational therapy assessments, and individual and group therapy sessions. As a qualified Band 6 occupational therapist, he was also required to take on the role as practice placement educator. As a placement educator, the Registrant was responsible for supervising and coordinating the occupational therapy student placements, including setting goals for the students and providing general assistance and support throughout their placement.
22. Between 23 January 2017 and 10 March 2017, the Registrant supervised a university student, who was on placement at the KMPT and known as Colleague 1 throughout these proceedings, in order to protect her privacy.
23. At the end of her placement, Colleague 1 raised concerns about the Registrant with her university placement facilitator. The concerns related to the Registrant’s inappropriate behaviour towards her and towards service users, his poor time management and lack of professionalism.
24. In April 2017, ML, the AHP Lead for the Older Adult Care Group at the KMPT, was asked by the Assistant Care Group Director to investigate the concerns raised by Colleague 1. During the course of her investigation, she discovered further concerns relating to the Registrant’s record keeping.

The evidence at the hearing
25. The HCPC relied upon the evidence of 2 witnesses, as indicated above. The first was Colleague 1 and the second was ML.
26. Colleague 1 is now a qualified occupational therapist with responsibility for students of her own.
27. She raised her concerns with her university Practice Placement Facilitator within a week of completing her placement and, at the facilitator’s suggestion, recorded her concerns in a typed document on 16 March 2017. That document was before the Panel. She was also interviewed by ML on 2 May 2020, as part of ML’s investigation, and the record of that interview was before the Panel. She made a statement to the HCPC which she signed on 20 September 2019 and that was also before the Panel. The Panel also saw two pages of a reflective log which Colleague 1 completed on 7 February 2017 and the records of the meetings with service users that she attended with the Registrant.
28. The Panel heard and saw Colleague 1 give evidence over the video link through much of the morning and afternoon of 2 November 2020. The Panel observed her carefully, although it was mindful not to base its assessment of her purely on her demeanour. It compared her evidence to the documents set out above. It also noted that she gave her evidence in a fair and careful manner. She admitted what she could not remember, was mindful that she was a student at the time covered by the Allegation and was aware of what she described as the danger of being over-sensitive. The Panel noted that her evidence was consistent with the account set out in her written account in March 2017 and subsequent interview with ML.
29. The Panel concluded that she was an honest witness who could be relied upon not to exaggerate her evidence or guess at anything she could not remember.
30. ML is a senior occupational therapist, who qualified in 1992. She had collected the documentation, including service user records, which supports paragraphs 3b, 5 and 6 of the Allegation. During the investigation she carried out, she recorded in writing the interview with Colleague 1, referred to above, and also made a similar record of an interview with the Registrant. All these documents were before the Panel.
31. She also told the Panel of the importance of good record keeping and explained how a failure to keep accurate records or even to prepare them within a reasonable time could put service users at serious risk of harm.
32. Because of her role, ML was not in a position to assist the Panel further, but the Panel appreciates the work she had done to collect the necessary material and explain the records to the Panel. There were entries she could not explain but that is not her fault.
33. The Panel also noted the contents of the emails from the Registrant and the record of his interview with ML on 1 June 2017. The Panel was careful not to draw any adverse inference from the fact that the Registrant did not give evidence or attend the hearing. Nevertheless, it could not give his emails the same weight as evidence given on oath before it.
34. The Panel sets out the details of the evidence under each paragraph of the Allegation, below.

Submissions and advice
35. The Panel heard the submissions of Mr Millin, who reminded the Panel of the salient points of the evidence and the legal tests to be applied to allegations of dishonesty and sexual motivation.
36. The Panel also heard the advice of the Legal Assessor, which it accepted and has followed in the decision set out below.

The Panel’s approach
37. The Panel bore in mind that, at this stage, the burden of proving each paragraph of the Allegation rests upon the HCPC. The Registrant does not have to prove anything. It reminded itself that the standard of proof is the civil standard, that is to say the balance of probabilities.
38. With regard to the allegation of dishonesty, the Panel had regard to the test laid down by the Supreme Court in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67
a. “When dishonesty is in question the fact-finding tribunal must first ascertain-(subjectively) the actual state of the individual’s knowledge or belief as to the facts.
b. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held.
c. Once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”
39. The Panel also bore in mind the direction given to panels by the High Court that a finding of dishonesty must be based on “solid ground” or “cogent evidence.”
40. With regard to the allegation that certain acts of the registrant were “sexually motivated”, the Panel bore in mind the definition laid down by Mostyn J in Basson v GMC [2018] EWHC 505 (Admin): “a sexual motive means that the conduct was done either in pursuit of sexual gratification or in pursuit of a future sexual relationship.”

The Panel’s Decision on Facts

1. In relation to Colleague 1, you:
a. On or around 25 January 2017:
i. Said ‘Women are well bred in Suffolk’ or words to that effect; Proved.
ii. Said her body was ‘well preserved’ given that she had had two children, or words to that effect. Proved.
41. Colleague 1 told the Panel that 25 January 2017 was the first day of her work placement that she spent in the office with her supervisor, the Registrant. She described the conversation she had with him about her previous experience at work and the fact that she had taken a career break to have two children. It was clear that he concluded from the level of her experience that Colleague 1 was a mature student.
42. Colleague 1 described how the Registrant commented on her age and the fact that she had two children, by making the two remarks set out above. Colleague 1 described these remarks in a calm manner without seeking to exaggerate their effect. In her original notes, written on 16 March 2017 she observed that she could not recall the exact words and “didn’t think too much of it at the time”. The Panel accepted her account.
iii. Breached Colleague 1’s confidentiality in regard to her previous work history. Not Proved.
43. Colleague 1 told the Panel that she described her previous work experience to the Registrant and also told him that she had been part of a senior management team that had been subject to a bullying enquiry which had resulted in the director being dismissed. As a result of the bullying, she had been made to feel very belittled and vulnerable and she was unsure of her role within a team.
44. Colleague 1 also told the Panel that, a short while later, when she was unable to find the door through which to leave the building, she walked into an office to find the Registrant “telling four or five members of staff about my previous work history”.
45. The Panel entirely accepts her account and it is no criticism of Colleague 1 that she did not describe in any detail what the Registrant was telling his colleagues.
46. Nevertheless, the Panel found that the Registrant was only under a duty of confidentiality in respect of the sensitive matters relating to bullying. There was no reason to believe that a duty of confidence attached to the general information about Colleague 1’s level of experience.
47. The Panel does not have sufficient evidence to find that it was the confidential aspect of what was told to him that the Registrant was repeating and that he was not simply repeating information about Colleague 1’s level of experience, to which no obligation of confidence can attach.
48. For this reason, the Panel finds this paragraph not proved.
b. On or around 31 January 2017, touched and/or held Colleague 1’s hand(s). Proved
49. Colleague 1 described how, on 31 January 2017, she had accompanied the Registrant to visit Service User 4, who she described as an elderly lady in her 90s at an isolated residential home. This was one of the first visits she had made with the Registrant.
50. By the time Colleague 1 and the Registrant left the visit in the Registrants car, it was dark. She recalled commenting to the Registrant during the journey that she wanted to be as fit and healthy as Service User 1 when she reached her age. Colleague 1 described how the Registrant had, in response to this, reached across and held her hand which was clasped in her lap. This lasted for several seconds, before the Registrant let go of her hand.
51. The Panel heard and accepted that this was a distressing episode for Colleague 1 who felt, “very uncomfortable”. She recalled that one of the aspects that had made it disturbing was that the Registrant had said nothing to her, but sat in silence.
c. On or around 16 February 2017, grabbed Colleague 1 by the hips and/or waist. Proved
52. This paragraph of the Allegation arises from an incident when Colleague 1 was working with the Registrant in a shared office. She gave evidence that she saw that the Registrant was having difficulty with a computer form and she went to help him. He was sitting on a swivel chair, facing his computer. She stood to his right also facing the computer. When she helped him solve the problem, he made a “gleeful” noise and grabbed both her hips and pulled her towards him so that she fell onto him.
53. She described how she got up immediately and walked to her desk. She described feeling humiliated by this experience, which was followed by an “awkward silence”. The Panel accepted her account entirely.
d. On or shortly after 26 January 2017, asked Colleague 1 to change her Personal Reflection. Proved.
54. This paragraph of the Allegation relates to an incident following a visit which Colleague 1 and the Registrant made to conduct an initial assessment of a service user known in these proceedings as Service User 1 at a care home.
55. During her placement, Colleague 1 had to write personal reflections about what she had seen. On this occasion she questioned the way the visit had been conducted as part of her reflection on the practice she had seen. When she attended supervision with the Registrant, he asked her to remove the section referring to his practice. She agreed to do this.
56. On a number of occasions she described feeling under considerable pressure to do as the Registrant wanted because he had the power to decide whether she passed or failed her student placement.
57. The Panel accepted Colleague 1’s account and found this paragraph of the Allegation proved.
e. On various dates amended Colleague 1’s Personal Reflections.
Not Proved.
58. Colleague 1 told the Panel that after she had been asked to alter her reflection on the one occasion, she wrote her reflections differently and was not asked to make any more changes. However, she used to email her reflections to the Registrant before supervision because he found electronic copies easier to deal with than paper copies. She described that, on occasions, he would alter her grammar or punctuation but made no more substantial changes.
59. Taking that evidence as a whole, the Panel does not find that it is right to characterise such minor corrections as “amendments.” For that reason, it finds this paragraph of the Allegation not proved.

2. In relation to an appointment with Service User 1 on or around 26 January 2017, you:
a. When discussing the family’s history of depression said ‘oh, you are feeling a bit sorry for yourself’ or words to that effect. Proved.
b. When speaking to Service User 1’s son, said ‘people don’t die of dementia’ or words to that effect. Proved.
c. Said to Colleague 1 that you felt that Service User 1’s son was ‘after her money’ or words to the effect. Proved.
60. This paragraph arises out of the first appointment with a service user which Colleague 1 attended with the Registrant. She recalled that the appointment was with a service user who was a lady in her 80s, with a diagnosis of Alzheimer’s.
61. Colleague 1 gave a clear account of this meeting in which she described the Registrant making light of the family’s history of depression, reacting insensitively to a question from Service User 1’s son about how long his mother might live with Alzheimer’s and sharing his view of the sons motives with Colleague 1, after the meeting.
62. During her description, Colleague 1 described each of the comments alleged at paragraphs a, b and c above. Colleague 1 recorded this meeting in the note she made on 16 March 2017 and referred to it in her personal reflection. The Panel listened carefully to her account of the meeting and accept it entirely. For that reason, it finds that whole paragraph 2 proved.

3. In relation to Service User 2, you:
a. Attended an appointment on or around 9 February 2017 and:
i. Did not end the appointment when requested to do so by Service User 2. Proved.
ii. Mimicked Service User 2 and/or tapped her on the nose. Proved.
iii. Did not adequately manage and/or de-escalate Service User 2’s agitation. Proved.
63. Colleague 1 gave evidence that on 9 February 2017 she attended an appointment with the Registrant and Service User 2, who was a lady around 80 years old who had recently lost her sight. In her evidence, Colleague 1 raised a number of concerns about the way the meeting was conducted, including the arrangement of the seats and what she described as the Registrant’s disrespectful approach.
64. She noted in particular that Service User 2 had said at the outset that she was tired and wanted to go home. She then became more and more uncomfortable and agitated and tried to get out of the chair. She waved her arms around and became agitated. Colleague 1 recalled that, instead of trying to calm Service User 2, the Registrant imitated her movements and tapped her on the nose. She was asked about this act by Mr Millin and the Panel formed the view that she remembered the incident well because she vehemently rejected the suggestion that this act might be a form of medical examination.
65. Colleague 1 told the Panel how she had intervened herself to calm the situation by making a cup of tea for everyone. She observed that after that, Service User 2 calmed slightly and the Registrant eventually changed his behaviour so that he conducted the rest of the meeting in a professional manner.
66. The Panel saw the service user notes for Service User 2, which showed that a member of the team had telephoned Service User 2 and her husband and asked if they had any complaints about the meeting and they said they did not. The Panel noted that they had not been asked about the specific matters raised above at the meeting and the meeting had ended satisfactorily after Colleague 1 had intervened. In those circumstances, taking the evidence as a whole, the Panel was satisfied that the meeting was conducted by the Registrant in the way described by Colleague 1. Accordingly, the Panel finds this paragraph of the allegation proved.
b. Following the appointment on 7 February 2017, you did not complete the recording initial assessment in a timely manner as required, until, on or around 21 February 2017. Not Proved.
67. The Panel examined the records produced by ML with care. The Panel was not able to find an appointment on 7 February 2017 for which an assessment needed to be completed. Having asked ML questions about the records, the Panel concluded that it was not safe or fair in the circumstances to simply assume that this paragraph referred to the 9 February meeting and accordingly, found that paragraph, not proved.

4. You did not demonstrate the ability to manage you time effectively, in that you:
a. On or around 31 January 2017, arrived around one hour late for Service User 4’s appointment. Proved.
68. During her evidence, Colleague 1 described that the Registrant arrived late for a number of appointments. The first of these was the appointment with Service User 4 on 31 January 2017. She described that he was an hour late for that appointment.
69. She described this incident with compelling detail. She recalled that staff and family were waiting and there was some urgency about the meeting because Service User 4 may have been hallucinating or suffering delirium. She also noted that there had been no particular reason to be late and observed that the Registrant had been “fiddling” in the office and had not left until the time the meeting was due to start. The Panel accepted her evidence. Accordingly, the Panel finds this paragraph proved.
b. On or around 2 March 2017, did not attend a Cognitive Stimulation Therapy group. Proved.
70. Colleague 1 described that a Cognitive Stimulation Therapy ("CST") Group session had been scheduled for 10am on 2 March 2017. This was, she explained, an important meeting for patients with a recent diagnosis of dementia. The Registrant was required to attend as one of the facilitators of the group. There were a number of colleagues present. However, the Registrant did not attend. LB’s signed notes of interview at Exhibit 19 also state that the Registrant failed to arrive.
71. Again, the Panel was impressed by the detail with which Colleague 1 recalled this meeting and accepted her account. Accordingly, the Panel found this paragraph proved.
c. On or around 10 March 2017:
i. Arrived late for a Placement Supervision with Colleague 1. Proved.
72. Colleague 1 told the Panel that 10 March 2017 was the last day of her placement. She arrived early, around 8am, because she and the Registrant had arranged to have a supervision before work began at 9am. However, she described that the Registrant did not arrive on time and she had to wait in the student room for between 1 ½ and 2 hours. She received no apology or explanation for this.
73. The Panel accepted her account and found this paragraph proved.
ii. Arrived one hour late for a 1:1 Cognitive Stimulation Therapy session. Proved.
74. Colleague 1 described that after her final supervision, she and the Registrant were due to go on a visit for a 1:1 CST session. She recalled that when they went to the appointment by car the Registrant did not have the correct address so that she had to call the office to collect the details and as a result they arrived an hour late for the appointment.
75. Again, the Panel was impressed by the detail in Colleague 1’s account. It accepted her account and found the paragraph proved.
iii. Arrived one hour and a half late for a Care Programme Approach Review meeting. Proved.
76. The Panel found the account of this last meeting of the day to be particularly striking. Colleague 1 told the Panel that there was a Care Programme Approach Review meeting arranged for 2pm and the journey time from the office was approximately one hour. Nevertheless, the Registrant did not leave the office until 2pm so that they did not arrive at the meeting until 3:30 pm.
77. Colleague 1 noted in her account on 16 March 2017 and confirmed to the Panel that the Registrant told her that he had said to the social worker the appointment should be at 3pm and that “they can wait”. She also recalled that the Registrant was abrupt and rude to the social worker who called him to find out when he would arrive.

5. In relation to Service User 3, you:
a. In regard to the initial assessment that you undertook on 7 February 2017:
i. Did not record the initial assessment in a timely manner as required until on or around 15 March 2017. Proved (in part) - up to and including “as required” but not “until on or around 15 March 2017”.
ii. Did not satisfactorily complete the recording of the risk assessment. Proved.
iii. Did not complete and/or record a risk assessment. Proved.
b. Did not attend and/or record attending the follow up visit scheduled for 15 March 2017. Proved.
78. Paragraph 5 of the Allegation is based upon the examination of the patient records carried out by ML. In her written statement, which she adopted, ML told the Panel that “Following the appointments with Service User 3 on 7 and 13 February 2017, Deepak Deshmukh was due to attend a follow up visit to Service User 3 on 15 March 2017, as confirmed in the ‘Patient Progress Notes’ in Service User 3’s records …However, there is no record to show that this follow up visit ever took place. The next visit to Service User 3 is not recorded until 16 May 2017.”
79. The Panel examined the records themselves and was satisfied that the records demonstrate that the initial assessment was not made with 48 hours, as ML said, and the Panel accepted, it was required. The Panel looked at the entry of 7 February 2017 and was satisfied that that did not amount to a record of the initial assessment. As to whether the Registrant made a record of the initial assessment on or around 15 March 2017, the Panel found that there was no evidence of that in the patient records.

6. In relation to Service User 4, following an initial assessment on 31 January 2017, you did not complete and/or record completing a follow up meeting in accordance with the service user’s progress notes. Proved.
80. Paragraph 6 of the allegation also arises from ML's examination of the service user records. Again, the Panel examined for themselves the service user records provided by ML and is satisfied that there was an initial assessment on 31 January 2017 and no record of a follow-up meeting. Accordingly, the Panel finds this paragraph proved.

7. Your actions at paragraph 1 (d) and/or 1 (e) were dishonest. Not Proved.
81. Having already found paragraph 1e not proved, the Panel then considered whether the Registrant’s action in asking Colleague 1 to alter her reflection was dishonest.
82. The Panel had regard to the nature of the alteration, namely to remove the criticism of his practice. It also looked at all the evidence that Colleague 1 gave about the way the Registrant treated her during her placement. She described how he had been overbearing and arrogant in his approach to her, as he had been to a social worker. She described how he had made her feel like a child and had not let her speak at meetings. The Panel also accepted her evidence that she was made to feel uncomfortable and unwelcome by not being given a place to sit.
83. The Panel bore in mind that the Registrant had not altered the reflection himself, thus giving the false impression that it was a document written by Colleague 1 when it was not. On the other hand, it bore mind that the Registrant was in a position of power and Colleague 1 felt obliged to make the alteration he requested.
84. The Panel came to the conclusion that ordinary decent people would only regard his actions as dishonest, in these circumstances, if they were satisfied that the amendment was requested for a dishonest purpose.
85. Mr Millin suggested that it was done to protect the Registrant in case a third party saw the criticism of him. The Panel considered that with care but came to the conclusion that that was just one possible reason among many, including the Registrant believing he was entitled to tell Colleague 1 what to do just as he was entitled to tell her not to speak, or believing that her account was inaccurate.
86. The Panel had regard to the advice it had been given that it should only make a finding of dishonesty if satisfied there was compelling evidence and that such a finding was based on “solid ground”.
87. The Panel concluded that there was not compelling evidence that the Registrant asked for the alteration for a dishonest purpose. That was simply one possibility. There were other possibilities which were, if anything, more closely consistent with the way he behaved towards Colleague 1.
88. Accordingly, the Panel find that paragraph of the allegation not proved.

8. Your actions at paragraphs 1 (a) (i), 1 (a) (ii), 1 (b) and/or 1 (c) were sexually motivated. Not Proved.
89. The Panel then considered whether some or all of the words or acts found proved and listed in Paragraph 8 of the Allegation was sexually motivated.
90. The Panel reminded itself that in order to establish words or acts were sexually motivated, the HCPC had to establish that it was more likely than not that the words were said or the acts were done for sexual gratification or to pursue a sexual relationship.
91. The Panel considered together the two remarks made to Colleague 1 during her initial meeting with the Registrant. The Panel has no doubt that these remarks were entirely inappropriate. Nevertheless, there is no reason to believe that they were said for sexual gratification.
92. The Panel then asked itself whether they were said in order to pursue a sexual relationship with Colleague 1. In order to assess that question the Panel looked at those remarks in the context of the matters proved under 1 (b) (touching Colleague 1’s hand) and 1 (c) (holding her waist or hips) and all the surrounding evidence.
93. The Panel noted that the Registrant was unwelcoming to Colleague 1 from the outset, when he remarked that he hoped that she would not use her children as a reason for being late. He had made her feel both unwelcome and “like a child.” He reminded her he was not paid to supervise her and she had no proper seat in the office.
94. It is also right that he did not make any attempt to contact her outside work hours or meet her after work.
95. Having regard to this evidence, the Panel was not persuaded that either the remarks made on 23 January 2017, or the subsequent touching was done in the hope of pursuing a sexual relationship in the future.
96. The Panel then considered whether the matters proved at 1(b) and 1(c) was done for sexual gratification. The Panel found that both examples of touching were wholly inappropriate but neither was the sort of touching which could only be described as sexual.
97. The Panel considered first the incident when the Registrant touched Colleague 1’s hand for several seconds. It noted the effect that this had upon Colleague 1. Nevertheless, having considered the evidence with care the Panel concluded that the touching of her hand was at least equally consistent with the Registrant being patronising or treating her as a child or even establishing his relationship of superiority over her. Looking at all those possibilities, it did not conclude that it was more likely than not that the touching was done for sexual gratification. Accordingly, it found that paragraph not proved.
98. The Panel then considered the incident when the Registrant took hold of Colleague 1’s waist or hips causing her to fall in the office. This was done in a shared office and the Panel accepts that it was a humiliating experience for Colleague 1. Nevertheless, having considered again the reasons why the Registrant may have done this, including all those possibilities examined above, the Panel did not conclude that it was more likely than not that he was motivated by sexual gratification. Accordingly, the Panel found this paragraph not proved.

The Panel’s Decision on Grounds

99. Having found proved the facts set out above, the Panel considered whether those facts amounted to misconduct and/or lack of competence.
100. The Panel had regard to the written submissions of the Registrant set out in his emails referred to above and two certificates he supplied which showed that he had attended a workshop on professional boundaries on 21 May 2020 and a 3-hour training course on Safeguarding Vulnerable Adults on 2 July 2019.
101. In his email of 3 June 2020, the Registrant told the Panel that he had been working part time as a volunteer driver for Swale Community Volunteer Services (SCVS) but was not currently engaged as a volunteer due to the Covid-19 lockdown. He requested the Panel to take both the certificates and his work into account “as evidence of my Remedial Action and Reflective practice through the Voluntary work with SCVS.”
102. He also invited the Panel to take into account his difficulties at work: “-having recently moved from Swale Team in November 2016, I was still covering my additional caseload I was asked to cover OT Staff absence for the Dartford Team. I was having to complete the unfinished work from Dartford while getting used to working in a new team.”
103. He drew the Panel’s attention to his health difficulties.
104. With regard to the student placement he observed, “in hindsight I should have postponed the Student placement”. He added, “I am aware that my overall performance fell short of that required by Professional Standards…. I would like to say that never in my 45+ years of Occupational Therapy practice have I been disrespectful to Clients or their families, however, in this instance I believe that my comments were taken out of context…. I am very saddened and deeply affected by these allegations, as I must have supervised in excess of 100 Students throughout my career, and also now feel embarrassed to admit that I planned and co conducted two COT accredited Fieldwork Educators courses for 30 Participants from South East and South West Thames Regional Health Authority in 1995 and 1996…As stated in my previous email, I would like to extend my unreserved apologies for my oversight and genuine errors in the context of these allegations.
105. The Panel also had regard to the submissions of Mr Millin, who submitted that the matters proved amounted to serious misconduct, notwithstanding the Panel’s findings with regard to dishonesty and sexual motivation. He acknowledged the matters raised by the Registrant but reminded the Panel that they had heard no evidence from him nor had they received any independent medical evidence. He also reminded the Panel that the Registrant’s observations about his workload were directly contradicted by ML, his clinical supervisor.
106. He drew the Panel’s attention to the relevant law and professional standards.
107. The Panel also heard and accepted the advice of the Legal Assessor, which it followed in the decision set out below.
108. The Panel first considered whether the matters proved at paragraph 2 to 6 of the Allegation amounted to lack of competence. The Panel concluded that there was no evidence that the Registrant lacked the competence to carry out his duties. The Panel took into account his length of service, seniority and experience, including teaching fieldwork educators and supervising students. It also took into account the evidence of Colleague 1, dealing with the meeting with Service User 2, that, when the Registrant was minded to, he was able to deal professionally with service users.
109. The Panel then considered whether the matters proved at paragraphs 1 to 6 amounted to misconduct. The Panel reminded itself that misconduct is an ordinary word reflecting behaviour that falls below the standard expected of a registrant in the circumstances in which he was carrying out his duties.
110. The Panel had regard to the “HCPC Standards of conduct, performance and ethics” and the “Standards of proficiency for Occupational therapists”. The Panel has set out the provisions to which it had regard in a schedule at the end of this part of the decision. Nevertheless, it can summarise the basic principles or tenets to which it had particular regard. These principles are that a registrant must promote and protect the interests of service users and carers; must communicate appropriately and effectively; must minimise risks to service users; must keep accurate records of their work. It also had at the forefront of its mind the duty of a registrant to ensure that their conduct “justifies the public trust and confidence in them and the profession”.
111. The Panel had regard to the Registrant’s observations about his workload. However, the Panel gave them little if any weight because the Registrant’s submissions did not explain how or to what extent he was affected and his generalised observations were contradicted by ML who spoke in her evidence of him having a reduced workload.
112. It also considered carefully the health issues which he raised. Again, the Panel gave these little, if any, weight because it had no independent evidence and no explanation from the Registrant as to how these matters impacted upon his practice.
113. The Panel found that all the facts proved amounted to misconduct. The facts proved under paragraph 1 amount to a serious breach of professional standards and boundaries with regard to Colleague 1. The Panel notes that the Registrant does not appear to have wanted to supervise a student at that time. That does not excuse treating that student in a way that undermines their confidence, restricts their ability to learn properly and makes the whole experience disturbing and worrying.
114. The matters proved under paragraphs 2 and 3 represent a breach of the Registrant’s duties to service users and their carers. The matters proved at paragraph 4 reflect a pattern of behaviour which both caused distress to service users and their carers and made it more difficult for other professionals to carry out their duties. The Panel noted in particular the evidence, which it accepted, that, on occasions, the Registrant was late for important appointments without any good reason. It appeared on at least one occasion, as if he were demonstrating the point that he could do as he wished, regardless of the needs of service users and colleagues. Finally, the matters set out at paragraphs 3b, 5 and 6 amount to a breach of the important duty to keep good records.

The Panel’s decision on Impairment

115. The Panel then went on to consider whether, in the light of those findings the Registrant’s fitness to practice is impaired. It followed the Legal Assessor’s advice to consider first whether the examples of misconduct, set out above, amounted to serious misconduct so as to be capable of giving rise to a finding of impairment. The Panel decided that all the matters set out above were capable of doing so except the matters proved in relation to the Registrant’s recordkeeping. This is not because the Panel underestimates the importance of good recordkeeping but because the examples were limited in time and the number of service users to an extent where it would not be right to characterise the Registrant’s misconduct in this area as serious.
116. The Panel had regard to the submissions of Mr Millin, who drew the Panel’s attention to the relevant authorities and tests including that set out in NMC v CHRE v NMC and P Grant [2011] EWHC 927 (Admin).
117. The Panel also had regard to the written representations of the Registrant which are set out above.
118. The Panel heard and accepted the advice of the Legal Assessor which it followed on the decision set out below.
119. The Panel is aware that impairment is a matter for its own professional judgement. In reaching its decision, the Panel had regard to the conduct of the Registrant, the nature, circumstances and gravity of the misconduct found proved and the critically important public policy issues, in particular the need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour for the profession.
120. The Panel also bore in mind that it was concerned with whether the Registrant’s fitness to practise is currently impaired and focused on the need to protect the public and the wider public interest in the future.
121. The Panel bore in mind that a finding of impairment is separate from the finding of misconduct and that a finding of misconduct does not automatically mean that the practitioner’s fitness to practise is impaired.
122. The Panel had at the forefront of it mind that over three years have elapsed since the Registrant’s misconduct and there is no evidence that the Registrant has committed similar misconduct either before or since the matters proved.
123. On this issue, the Panel noted in particular the observations of Silber J in Cohen v GMC [2008] EWHC 581 (Admin):
“There must always be situations in which a Panel can properly conclude that the act of misconduct was an isolated error on the part of a medical practitioner and that the chance of it being repeated in the future is so remote that his or her fitness to practice has not been impaired. Indeed the Rules have been drafted on the basis that once the Panel has found misconduct, it has to consider as a separate and discreet exercise whether the practitioner’s fitness to practice has been impaired.”
124. The Panel also bore in mind that in deciding whether the Registrant’s fitness to practise is still impaired it should follow the approach of Dame Janet Smith endorsed by the High Court in CHRE v NMC and P Grant [2011] EWHC 927 (Admin): "Do our findings of fact in respect of the (registrant’s) misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:
a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
b. has in the past brought and/or is liable in the future to bring the …..profession into disrepute; and/or
c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or
d. has in the past acted dishonestly and/or is liable to act dishonestly in the future."
125. The Panel also had regard to the passage from the Cohen case above and cited by Cox J which reminds panels that there may need to be a finding of impairment in the public interest, even if the misconduct can be characterised as an isolated incident:
“Any approach to the issue of whether a doctor's fitness to practise should be regarded as 'impaired' must take account of 'the need to protect the individual patient, and the collective need to maintain confidence [in the] profession as well as declaring and upholding proper standards of conduct and behaviour of the public in their doctors and that public interest includes amongst other things the protection of patients, maintenance of public confidence in the (profession) [sic]”.
126. The Panel also had regard to the direction given to panels by the High Court that they must have regard to all three aspects of the overarching objective, to protect the public, when reaching a decision.
127. It also reminded itself that the overarching objective involves acting
a. to protect, promote and maintain the health, safety and wellbeing of the public
b. to maintain public confidence in the profession
c. to promote and maintain proper professional standards and conduct for members of that profession."
128. The Panel found that the Registrant’s misconduct was capable of remediation. Accordingly, the Panel considered whether there was evidence that the Registrant had developed insight into his misconduct and taken sufficient steps to remediate so that the Panel could have confidence that he would not repeat his misconduct.
129. The Panel took into account the general expressions of remorse contained in the Registrant’s email. The Panel found that this remorse, if genuine, may reflect the beginning of a process which would lead to him developing sufficient insight. However the Panel found that the material before it fell short of demonstrating an understanding of what he had done wrong, why it was wrong and how he should conduct himself in future in a way that could give the Panel confidence that the Registrant had developed insight.
130. The Panel also took into account the evidence that the Registrant had attended two courses in 2019. The Panel accepted that this may be the start of a process of remediation. However, there is no material before the Panel from which it can assess what, if anything, the Registrant has learned from the courses. Nor is there any material to reassure the Panel that the Registrant has addressed the underlying issues relating to his attitude to his work, his colleagues and service users, which appear to be at the root of his misconduct.
131. For those reasons, the Panel decided that the risk of the Registrant repeating his misconduct remains high.
132. Accordingly, the Panel found that the Registrant’s misconduct had put the public, service users and colleagues at unwarranted risk of harm and he was likely to do so in the future. It found that he had breached the fundamental tenets of the profession, set out above, and was likely to do so in the future. He also found that he had brought the profession into disrepute and was likely to do so in the future.
133. The Panel also considered the public component of impairment and in particular the Panel’s duty to maintain public confidence in the profession and maintain proper standards of conduct, the Panel is satisfied that a finding of impairment is necessary in order to send a clear message that the profession takes seriously misconduct of the sort proved in this case.
134. Accordingly, the Panel finds that the Registrant’s fitness to practise is currently impaired.

The Panel’s Decision on Sanction

135. Having found the Registrant’s fitness to practise impaired, for the reasons set out above, the Panel considered, what, if any sanction it should impose on the Registrant.

136. The Panel heard submissions from Mr Millin on the issue of sanction. The Panel has also accepted the advice of the Legal Assessor and had regard to the HCPC’s Sanctions Policy (SP).

137. The Panel is aware that the purpose of a sanction is not to be punitive but to protect the public and the wider public interest, which includes the deterrent effect on other registrants, the reputation of the profession and public confidence in the profession and the regulatory process.
138. The Panel also bore in mind the principle of proportionality and balanced the Panel’s duty to protect the public against the rights of the Registrant.
139. The Panel took into account the following mitigating factors:
a. The Registrant made limited admissions;
b. He has expressed remorse;
c. He has started to undertake a limited number of appropriate courses;
d. He has indicated an ability to start developing insight and a willingness to develop further insight.
140. The Panel also considered the following aggravating factors:
a. The misconduct involved an abuse of his position of power towards a student, who he had the power to pass or fail, and a particularly vulnerable service users and their carers;
b. He caused distress to Colleague 1
c. He exposed service users to indignity;
d. He breached the trust his employer had placed in him as a senior practitioner and a practice educator;
e. His misconduct affected colleagues in their work;
f. His misconduct was repeated, albeit over a limited period;
g. A risk of repetition remains.
141. Having considered both the mitigating and aggravating factors in this case, the Panel found that the effect of the aggravating features taken together, outweighed that of the mitigating features because the mitigating features were not sufficient to demonstrate to the Panel that the Registrant had developed sufficient insight or undertaken sufficient remediation to reassure the Panel that repetition is unlikely. Accordingly, the Panel found that a sanction was necessary to protect the public and the wider public interest.

142. The Panel then considered the sanctions available to it in ascending order of severity.
143. The Panel considered that to take no action or to impose mediation or a caution would not be appropriate given the serious nature of the misconduct found. Such a course would not be sufficiently restrictive to protect the public, including the wider public interest.
144. The Panel considered whether a Conditions of Practice Order would be sufficient to protect the public. The Panel had already found that the Registrant’s misconduct is capable of being remediated. The Panel concluded that it was not possible to draft conditions that would be sufficient to protect the public and also had regard to paragraph 107 of SP, which provides:

107. Conditions will only be effective in cases where the registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so. Therefore, conditions of practice are unlikely to be suitable in cases in which the registrant has failed to engage with the fitness to practise process or where there are serious or persistent failings.

145. The Panel found that the Registrant’s engagement with the regulatory process had been very limited. The Panel had no material before it that could reassure it that the Registrant would comply with a Conditions of Practice Order. Accordingly, the Panel does not impose a Conditions of Practice Order.
146. The Panel considered whether a Suspension Order would be sufficient to protect the public in this case. The Panel took into account paragraph 121 of SP which provides

121. A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:

• the concerns represent a serious breach of the Standards of conduct, performance and ethics;
• the registrant has insight;
• the issues are unlikely to be repeated; and
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.

147. The Panel found that not all these factors are well demonstrated in this case. Nevertheless, the Panel found that, because the Registrant had started to attend courses and expressed remorse, there was sufficient material to satisfy it that a substantial period of suspension would be sufficient to protect the public, including the wider public interest, and that there was a realistic prospect that the Registrant would use the time to develop sufficient insight and remediate his misconduct.
148. The Panel decided to impose the Suspension Order for a period of 12 months. It decided that 12 months was necessary both to mark the seriousness of the misconduct and also to give the Registrant sufficient time to undertake the work he must do to remediate.
149. The Panel did consider whether it was necessary to impose a Striking Off Order in this case. It took into account paragraph 131 of SP which provides:

131. A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:
• lacks insight;
• continues to repeat the misconduct or, ….
• is unwilling to resolve matters.

150. The Panel found that, in light of the material referred to above, a Striking Off Order was not necessary at this stage because a Suspension Order would protect the public and there was a realistic prospect that the Registrant would use the time to remediate.

151. Accordingly, the Panel imposes a Suspension Order for a period of 12 months.

152. The Suspension Order will be reviewed before its expiry. At the review hearing the reviewing panel is likely to be assisted by

a. The Registrant’s attendance at the review hearing;
b. Evidence of relevant training related to observing boundaries, working with others, showing respect for colleagues and service users;
c. A reflective piece demonstrating what the Registrant has learnt from the courses and how he will behave differently in the future;
d. Any references or testimonials the Registrant can obtain demonstrating his ability to work with others in a respectful and appropriate manner;
e. Evidence that the Registrant has maintained his CPD and skills.

Appendix 1

Standards of conduct performance and ethics

1 Promote and protect the interests of service users and carers

Treat service users and carers with respect

1.1 You must treat service users and carers as individuals, respecting their privacy and dignity.

1.2 You must work in partnership with service users and carers, involving them, where appropriate, in decisions about the care, treatment or other services to be provided.

Make sure you have consent

1.4 You must make sure that you have consent from service users or other appropriate authority before you provide care, treatment or other services.

Challenge discrimination

1.5 You must not discriminate against service users, carers or colleagues by allowing your personal views to affect your professional relationships or the care, treatment or other services that you provide.

Maintain appropriate boundaries

1.7 You must keep your relationships with service users and carers professional.

2 Communicate appropriately and effectively

Communicate with service users and carers

2.1 You must be polite and considerate.

2.2 You must listen to service users and carers and take account of their needs and wishes.

2.4 You must make sure that, where possible, arrangements are made to meet service users’ and carers’ language and communication needs.

Work with colleagues

2.5 You must work in partnership with colleagues, sharing your skills, knowledge and experience where appropriate, for the benefit of service users and carers.

2.6 You must share relevant information, where appropriate, with colleagues involved in the care, treatment or other services provided to a service user.

3.2 You must refer a service user to another practitioner if the care, treatment or other services they need are beyond your scope of practice.

3.5 You must ask for feedback and use it to improve your practice.

6 Manage risk

Identify and minimise risk

6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.

9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

10 Keep records of your work

Keep accurate records

10.2 You must complete all records promptly and as soon as possible after providing care, treatment or other services.

Appendix 2

Standards of proficiency

2 be able to practise within the legal and ethical boundaries of their profession

2.1 understand the need to act in the best interests of service users at all times

2.2 understand what is required of them by the Health and Care Professions Council

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;

3.1 understand the need to maintain high standards of personal and professional conduct

5.1 understand the requirement to adapt practice to meet the needs of different groups and individuals

5.4 recognise the effect of inequality, poverty, exclusion, identity, social difference and diversity on occupational performance

6 be able to practise in a non-discriminatory manner

The Registrar is directed to suspend the registration of Mr Deepak Deshmukh for a period of 12 months from the date this order comes into effect.

Interim Order

1. Finally, the Panel considered whether it should impose an Interim Suspension order pursuant to Article 31 of the Order, which will apply during the time allowed for appealing against the final disposal order made by the Panel or, if such an appeal is made, whilst that appeal is in progress.

2. The Panel heard submissions from Mr Millin and the advice of the Legal Assessor, which it accepted and followed in this decision.

3. The Panel had regard to the obligation to hear both parties before imposing an interim order. However, in this case it was satisfied that it could not hear submissions from the Registrant, because he was not present. The Panel decided to proceed in his absence for the same reasons that are set out at the beginning of this decision: he received notice of the possibility of an application for an interim order being made in the email of 31 July 2020 which the Panel was also satisfied had been served upon him.

4. The Panel took into account Article 31 (2) which provides that the Panel can impose an interim order if it is satisfied it is necessary for the protection of members of the public or otherwise in the public interest or in the interests of the person concerned.

5. The Panel took into account paragraphs 134 and 135 of SP, which reminds panels that the power to impose an interim order is discretionary and is likely to be required where there is a serious risk to service users or the public.

6. Having decided that the Registrant would put service users at risk and undermine public confidence in the profession if he were allowed to practise at this time, the Panel is satisfied that an interim order is necessary to protect both members of the public and the public interest.

7. Accordingly, the Panel imposes an Interim Suspension Order for 18 months. 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.

History of Hearings for Mr Deepak K Deshmukh