Mrs Atika Sharma

Profession: Physiotherapist

Registration Number: PH98404

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 10/11/2020 End: 17:00 17/11/2020

Location: Virtually via video conference

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

Whilst registered with the Health and Care Professions Council as a Physiotherapist and during the course of your employment with Sussex Community NHS Foundation trust, you:

1. Did not demonstrate safe and/or effective practice in that your assessments were unsafe when:

a) on 29 August 2017, in relation to Service User 7, you:

i. did not take a full medical history;

ii. had Service User 7 undertake exercises that caused pain;

iii. did not notice they were in pain.

b) on 18 July 2017, in relation to Service User 16, asked them to hop and jump in the assessment, which was inappropriate because they presented with shin pain;

c) on 25 October 2016, provided Service User 9 with a range of exercises without assessing the spine or core strength;

d) on 12 January 2017, did not complete a neurological assessment for Service User 6;

e) on 22 March 2017, did not:

i. record if Service User 6 went to A&E after a road traffic accident;

ii. did not suggest any medical and/or physiotherapy review.

f) on 22 November 2016, in relation to Service User 10, documented possible meniscus tear but did not conduct and/or document an assessment of this area.

2. Were unable to apply objective findings to formulate an appropriate treatment plan when:

a) on 4 January 2017, in relation to Service User 5, gave no exercises to address the muscle weakness you had identified;

b) on 2 November 2016, in relation to Service User 10, gave hip strengthening

exercises which was inappropriate because you had identified weakness in the quadriceps and hamstring;

c) on 19 May 2017 and/or 21 July 2017, in relation to Service User 4, gave no strengthening exercises to address the muscle weakness you identified;

d) on 31 October 2016, in relation to Service User 3, identified weak quadriceps but:

i. did not conduct and/or record any assessment of quadriceps;

ii. advised Service User 3 to walk the dogs if they didn't like the home exercises.

e) on 1 March 2017, in relation to Service User 8, documented knee and ankle tightness but did not document any assessment of these areas;

f) on 6 March 2017, in relation to Service User 8, gave heel walking exercise without any clinical reasoning;

g) on 20 April 2017, in relation to Service User 17, gave no strengthening exercises to address the muscle weakness you identified;

h) on 5 July 2017 assessed Service User 16 as having tendonitis but in supervision on 13 July 2017 were unable to explain what tendonitis is;

i) whilst discussing Service User 1 in supervision on 3 April 2017 and/or 3 July 2017 did not make goals SMART;

j) on 23 June 2017, in relation to Service User 14, did not assess and/or record:

i. recommended exercises;

k) whilst discussing Service User 15, who had been referred following trips and falls, in supervision on 21 August 2017, it was unclear why you discussed uneven shoulder blades.

3. Did not demonstrate a reasonable level of knowledge of anatomy when:

a) In relation to Service User 14, you:

i. during supervision on 3 July 2017, incorrectly identified the quadriceps as the main muscle group flexing the hips;

b) during supervision on 13 July 2017, in relation to Service User 9, were unable to name the muscles that make up the core;

c) during supervision on 3 July 2017, in relation to Service User 8, were unable to

identify any muscles that attach to the front of the pelvis;

d) in supervision on 3 July 2017, in relation to Service User 1, were unable to identify which side of the pelvis you would need to strengthen when trying to improve a Trendelenburg.

4. Did not demonstrate safe and/or effective practise in that your understanding of early childhood development was insufficient, when:

a) you gave a training presentation which was muddled and/or inaccurate;

b) you were unable to explain a developmental stage (sitting) to child's mother.

5. Did not communicate effectively with service users, when you:

a) on 29 August 2017, spoke to Service User 7, an eight year old patient, as if they were a baby and made no eye contact;

b) did not notice /interpret that Service User 7, a child, was in pain.

6. The matters set out in paragraphs 1, 2, 3(a)(i), 3(b) - (d) and 4 to 5 constitute lack of competence.

7. By reason of your lack of competence your fitness to practise is impaired.

Finding

Preliminary Matters

Proceeding in private

1. Ms McPhee applied under Rule 8(1) for those parts of the hearing which involved reference to the Registrant’s health and to other personal matters to be held in private. Mr Foxsmith did not oppose the application.

2. The Panel, having accepted the advice of the Legal Assessor, determined that in order to protect the private life of the Registrant, such parts of the hearing should be held in private.

Background

3. The Registrant qualified as a Physiotherapist in India. She registered with the HCPC and commenced working in the UK in 2012.

4. In August 2015 she was employed by Sussex Community NHS Foundation Trust (the Trust) as a Band 6 Paediatric Physiotherapist. She remained in that employment until her resignation in September 2017.

5. Initially the Registrant’s caseload was with neurological service users. There were some early low-level concerns about the Registrant’s communication skills, but the Registrant was engaging with supervision and addressing these issues. When she later managed a musculoskeletal (MSK) caseload, new concerns arose.

6. The main concerns reported to the HCPC related to the Registrant’s knowledge and understanding of early childhood development, MSK assessments, record-keeping, and appropriate communication.

7. Despite supervision the concerns continued, and she was placed on informal capability management and, subsequently, on a formal capability management plan. Before completing the formal plan the Registrant resigned and the Trust reported her to the HCPC.

Decision on Facts

Admissions

8. At the outset of the hearing admissions were made to factual particulars 1 (in its entirety), 2(a), 2(b), 2(c), 2(d), 2(e), 2(f), 2(g), 2(h) 2(i), 2(j), 3(a), 3(b), and 3(c). The Registrant also accepted lack of competence in relation to the admitted particulars, and current impairment. She denied the remaining particulars.

Documents

9. There was before the Panel a bundle of documents prepared on behalf of the HCPC, which included witness statements and exhibits. There were also bundles prepared on behalf of the Registrant, which included a statement made by her for the purpose of this hearing.

HCPC witnesses

10. The following witnesses were called by the HCPC.

SS

11. SS is registered Physiotherapist employed by the Trust as Professional Head of Therapies and Lead Allied Health Professional. From 2012 until February 2018, she was Professional Lead for Children’s Physiotherapy.

12. In her evidence she described the support given to the Registrant when she began her role as a Band 6 Paediatric Physiotherapist. Initially, the Registrant was managing neurological cases and SS was involved in the Registrant’s development. She said that the Registrant made good progress but that there were some low-level concerns that SS regarded as remediable.

13. The Panel found SS to be a balanced, helpful, genuine, and credible witness.

AR

14. AR is a registered Physiotherapist. She is employed at the Trust as a Senior Specialist Paediatric Physiotherapist and Clinical Lead for children with MSK conditions.

15. In September 2016, the Registrant began to treat MSK service users, in which field she had previously had little clinical experience. The Registrant had undergone AR’s MSK training course.

16. AR then took over supervision of the Registrant. During the period of AR’s supervision, the Registrant’s skills in relation to MSK did not significantly improve and a number of concerns arose. The Registrant was therefore made subject to the informal capability management plan, where clear objectives as to what was expected of her were set.

17. The Registrant then took an extended period of sick leave, during which her caseload was managed by colleagues and her clinical notes revealed a number of matters of concern. These were in particular regard to her assessments and record-keeping. There were also a few informal complaints from the parents of service users.

18. AR escalated these concerns to management. On the Registrant’s return from sickness absence, it was decided by management that the Registrant should be placed on a formal capability management plan.

19. The Panel considered that AR answered questions openly and honestly and her evidence made an important contribution to the hearing.

The Registrant

20. The Registrant admitted a considerable number of the factual particulars (as set out above).

21. The Registrant said that her entire professional ambition was to be a Physiotherapist, describing the position at the Trust as her ‘dream job’. She said that before she worked at the Trust, she had had no clinical experience in paediatric MSK physiotherapy, but she did have experience with neurological service users. She regarded herself as competent in this field but in need of training for a paediatric MSK caseload. She said that following her initial period managing neurological cases she then took on an MSK caseload. She described how shortly after taking on MSK cases she was undergoing personal difficulties both in regard to significant health matters and tiredness as a result of a lengthy commute, which she said affected her concentration. She said that when placed on the informal capability plan, this together with her personal difficulties affected her confidence and, consequently, her clinical abilities. She described how she felt that she was subjected not so much to supervision but to a degree of clinical fault-finding.

22. The Registrant conceded that in regard to the factual matters which she had admitted, this amounted to a lack of competence and that her fitness to practise is impaired. She said she understood that parents of paediatric service users and indeed, fellow professionals, would be concerned about the deficiencies in her practice. The Registrant emphasised, however, her wish to continue practising her chosen career of Physiotherapy and her commitment to maintaining and improving her skills and knowledge to this end.

23. The Panel found the Registrant gave substantial, detailed, and very moving evidence in regard to her personal circumstances and the importance of her profession to her personally. The Registrant outlined clearly the steps she has taken to address her own concerns about her practice.

Decision

24. In reaching its decision on the facts, the Panel considered all the evidence before it, both oral and documentary, together with the submissions made by Mr Foxsmith and Ms McPhee. The Panel accepted the advice of the Legal Assessor. It had well in mind that although the Registrant had admitted a number of the factual particulars, the burden of proof for these facts rested on the HCPC. Further, that the facts must be proved on the balance of probabilities.

Particular 1(a)(i), 1(a)(ii), 1(a)(iii) – Proved

25. The Panel found these particulars proved on the basis of the Registrant’s admissions, the evidence of AR, and the relevant documents in the exhibit bundle, including the clinical notes.

Particular 1(b) – Not Proved

26. The clinical records before the Panel indicated that the Registrant did ask Service User 16 to ‘hop and jump’. However, the notes also made it clear that Service User 16 was not presenting with shin pain on the date specified in the particular but with a collar bone injury. Although it was inappropriate to ask Service User 16 to hop and jump, this would have been because of the collar bone injury. As such, the Panel was therefore not satisfied that the HCPC had discharged the burden of proof as this particular referred specifically to “shin pain”.

Particular 1(c) – Proved

27. The Panel found this particular proved on the basis of the Registrant’s admissions, the evidence of AR, and the relevant documents in the exhibit bundle, including the clinical notes.

Particular 1(d) – Proved

28. The Panel found this particular proved on the basis of the Registrant’s admissions, the evidence of AR, and the relevant documents in the exhibit bundle, including the clinical notes.

Particular 1(e)(i) – Not Proved

29. The Panel concluded that, whilst it would have been best practice to record whether Service User 6 went to A&E following a road traffic accident, failing to do so would not amount to unsafe or ineffective practice.

Particular 1(e)(ii) – Not Proved

30. The Registrant’s evidence was that she made further contact with Service User 6 at a later date. The Panel therefore found that she had suggested and undertaken a further physiotherapy review. The Registrant did not request a medical review, but in these circumstances the Panel did not believe that failing to do so would amount to unsafe or ineffective practice.

Particular 1(f) – Proved

31. The Panel found this particular proved on the basis of the Registrant’s admissions, the evidence of AR, and the relevant documents in the exhibit bundle, including the clinical notes.

Particular 2(a), 2(b), 2(c), 2(d)(i), 2(d)(ii), 2(e), 2(f), 2(g), 2(h), 2(i), 2(j) – Proved

32. The Panel found these particulars proved on the basis of the Registrant’s admissions, the evidence of AR, and the relevant documents in the exhibit bundle, including the clinical notes.

Particular 2(k) – Not Proved

33. The Registrant’s evidence, which was accepted by the Panel, was that the discussion about uneven shoulder blades had taken place because of a query from Service User 15’s mother. The Panel found that discussing an issue which had been raised by a parent, although irrelevant to Service User 15’s treatment, would not have rendered the Registrant’s formulation of the treatment plan inappropriate.

Particular 3(a)(i), 3(b), 3(c) – Proved

34. The Panel found these particulars proved on the basis of the Registrant’s admissions, the evidence of AR, and the relevant documents in the exhibit bundle.

Particular 3(d) – Not Proved

35. The Panel took account of the clinical notes for Service User 1, in which the Registrant had clearly identified the correct side of the pelvis to treat. In the supervision notes and AR’s evidence, it was suggested that the Registrant was unable to identify the correct side of the pelvis, which the Panel concluded was more likely to be the result of a miscommunication between them. Accordingly, the HCPC had not discharged the burden of proof to show that there was a failure on the part of the Registrant.

Particular 4(a) – Not Proved

36. The only evidence for the presentation being “muddled” was hearsay evidence from the Band 5 Physiotherapist who received the presentation. This individual was not called as a witness. The Panel therefore afforded this evidence less weight than the direct evidence of SS, who described the presentation as a whole as “very good”. Only one criticism was observed, the nature of which would not have rendered the presentation inaccurate. Furthermore, the Panel found it significant and persuasive that the Trust continued to allow the Registrant to run the baby clinic as Lead Physiotherapist, doing so until she resigned in September 2017.

Particular 4(b) – Not Proved

37. There was insufficient evidence before the Panel to indicate any inability by the Registrant to explain the developmental stage of sitting. Again, the Panel found it significant and persuasive that the Registrant continued to be allowed to run the baby clinic.

Particular 5(a) – Not Proved

38. The Panel found that the criticism of the manner in which the Registrant addressed Service User 7, namely “as if they were a baby”, was too vague and lacking in sufficient detail to satisfy it to the requisite standard of proof that she did not communicate effectively. Although the Registrant admitted that she made no eye contact with Service User 7, the Panel found that this alone would be insufficient to prove that she did not communicate effectively with Service User 7.

Particular 5(b) – Proved

39. The Panel found this particular proved on the basis of the evidence of AR and the relevant documents in the exhibit bundle, including the clinical notes.

Decision on Grounds

40. In reaching its decision, the Panel considered all the evidence and information before it, together with the submissions of Mr Foxsmith and Ms McPhee. It had well in mind the HCPC “Standards of Proficiency for Physiotherapists”. It accepted the advice of the Legal Assessor.

41. The Registrant has a number of years’ experience as a Physiotherapist, both in India and in the UK. Her lack of competence was manifested whilst she was under supervision at the Trust.

42. The Panel found that in a number of the matters found proved, the Registrant fell well below the standard to be expected of a registered Physiotherapist. Furthermore, these were wide-ranging failings and represented a fair sample of her practice.

43. Moreover, the Panel found the Registrant to be in breach of the following HCPC “Standards of Proficiency for Physiotherapists”:

be able to practise safely and effectively within their scope of practice

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

be able to practise as an autonomous professional, exercising their own professional judgement

be able to communicate effectively

13 understand the key concepts of the knowledge base relevant to their profession

14 be able to draw on appropriate knowledge and skills to inform practice

44. The Panel therefore concluded that the matters found proved amounted to a lack of competence.

Decision on Impairment 

45. Although the Registrant admitted that her fitness to practise is currently impaired, it is the responsibility of the Panel to form their own judgement. The Panel accepted the advice of the Legal Assessor and bore in mind the HCPTS Practise Note on “Finding that Fitness to Practise is ‘Impaired”.

46. The Registrant made admissions to many of the matters alleged and accepted that these would give rise to concern on the part of service users’ parents and to the wider public and the profession. She demonstrated real insight into her failings and their potential effects. Furthermore, the Registrant has taken steps to improve her skills and appeared to be willing to continue doing so.

47. There was nothing to indicate that any harm to service users occurred, albeit there was potential for this and, although unintentional, it was foreseeable.

48. The Panel concluded that there is a low risk of repetition of such failings and consequently that, in regard to the personal component of impairment, the Registrant’s fitness to practise is not currently impaired.

49. However, in regard to the public component of impairment, right-thinking members of the public would be concerned by such a lack of competence in a Physiotherapist. A finding of current impairment was therefore necessary in the public interest in order to declare and uphold proper standards and to maintain confidence in the profession and in the regulatory process.

Decision on Sanction

50. In reaching its decision the Panel considered all the evidence and information before it, together with the submissions made by Mr Foxsmith and Ms McPhee. It had regard to the HCPC “Sanctions Policy” (the Policy). It accepted the advice of the Legal Assessor. It exercised the principle of proportionality at all times.

51. Mr Foxsmith made no submissions in regard to particular sanctions. He referred the Panel to the Policy and emphasised the need for a sanction which was appropriate, proportionate, and sufficient to protect the public.

52. Ms McPhee submitted that the appropriate and proportionate sanction would be that of a Conditions of Practice Order.

53. The Panel found the following to be aggravating features:

• The Registrant’s lack of competence was demonstrated by a wide range of failings over a period of many months.

• The Registrant’s standard of competence did not significantly improve despite a high level of supervision and support.

54. The Panel found the following to be mitigating features, as the Registrant:

• has no previous findings against her and has not previously been before the HCPC;

• has fully engaged with the fitness to practise process, participated in the hearing, and given evidence;

• made admissions to the great majority of the matters alleged and in regard to lack of competence and current impairment;

• demonstrated real insight into her lack of competence;

• has already taken some remedial steps;

• has demonstrated a real commitment to returning to practise as a Physiotherapist;

• was experiencing difficult personal circumstances and the ill health documented at the time of her failings.

55. The Panel first considered whether to take no action, but determined that the nature and extent of the Registrant’s lack of competence is such that this would be wholly inappropriate. Such lack of competence requires a sanction in order to address public interest concerns. Similarly, mediation would be inappropriate.

56. The Panel next considered a Caution Order, but again, for the reasons set out above, determined that this would not be sufficient to adequately address public interest concerns as it would not measure or restrict the Registrant’s practice in any way.

57. The Panel therefore went on to consider a Conditions of Practise Order.

58. The Registrant, in her evidence, demonstrated enthusiasm for her Physiotherapy profession, stating that it was her “dream job”.  She indicated that she would be willing to comply with any conditions imposed. SS and AR, who supervised her at the Trust, both said in evidence that the Registrant’s lack of competence was remediable. The Registrant has already taken some steps towards maintaining and developing her knowledge and skills. 

59. The Panel therefore determined that it would be possible to formulate conditions which are practicable, workable, and verifiable and which would be sufficient to address the public interest concerns. Conditions of Practice will give the Registrant the opportunity to demonstrate the necessary improvements to her practice and to reassure a reviewing panel that failings of this nature will not occur again.

60. The Panel therefore decided to impose a Conditions of Practice Order for a period of 24 months. This reflects the minimum period of time which the Panel considered is required to enable the Registrant to adequately address the identified failings.

61. The Panel did consider imposing a Suspension Order, but concluded that this would be unnecessary and disproportionate. Any public interest concerns could, in the Panel’s view, be adequately addressed by a Conditions of Practice Order.

Interim Order

Application

1. Mr Foxsmith applied for an Interim Order on public interest grounds, for the maximum period of 18 months, to cover the 28-day appeal period and the time that might be required to conclude any appeal in the Court of Session. Ms McPhee did not oppose the application.

Decision

2. In reaching its decision, the Panel considered all the information before it, together with its findings on impairment and the submissions of Mr Foxsmith and Ms McPhee. It also took into account the HCPTS Practice Note on “Interim Orders” and the relevant paragraphs of the Policy. It accepted the advice of the Legal Assessor.

3. The Panel was satisfied that as it had found the Registrant’s fitness to practise to be impaired, an Interim Order is in the public interest. Right-thinking members of the public would be concerned if the Registrant were allowed to practise unrestricted until the substantive Conditions of Practice Order comes into effect or, if any appeal is lodged, until any such appeal is determined. An Interim Conditions of Practice Order in the same terms as those set out above is in the public interest in order to maintain public confidence in the profession and in the regulatory process. Although the Registrant will be unable to practise unrestricted during the currency of this Interim Order, her interests are outweighed by those of the public. The Interim Conditions of Practice Order will be for a period of 18 months to cover any possible delay in an appeal being heard by the Court of Session, especially in light of the current Covid-19 pandemic.

4. The Panel makes an Interim Conditions of Practice Order under Article 31(2) of the Health Professions Order 2001, the same being 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.

Order

The Registrar is directed to annotate the Register to show that, for a period of 24 months from the date that this Order comes into effect (“the Operative Date”), you, Mrs Atika Sharma, must comply with the following conditions of practice:

1. You must confine your professional Physiotherapy practice to employment as a Band 5 (or equivalent) Physiotherapist.

2. On commencing any employment as a Physiotherapist, you must place yourself and remain under the supervision of one designated clinical supervisor (“your supervisor”), who is registered as a Physiotherapist with the HCPC, and supply details of your supervisor to the HCPC. You must attend upon that supervisor as required by these conditions and follow their advice and recommendations.

3. You must work with your supervisor to formulate a Personal Development Plan designed to address the deficiencies identified in your practice, including:

• demonstrating safe and effective practice;
• applying objective findings to formulate appropriate treatment plans;
• demonstrating a reasonable level of knowledge of anatomy;
• communicating effectively with service users.

4. Within 28 days of commencing employment as a Physiotherapist, you must forward a copy of your Personal Development Plan to the HCPC.

5. You must meet with your supervisor on a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.

6. You must allow your supervisor to provide information (including but not limited to supervision notes) to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.

7. You must promptly inform the HCPC if you take up any employment as a Physiotherapist.

8. You must promptly inform the HCPC of any capability process initiated against you by any employer for whom you are working as a Physiotherapist.

9. You must inform the following parties that your registration is subject to these conditions:

A. any organisation or person employing or contracting with you to undertake professional work as a Physiotherapist;

B. any agency you are registered with or apply to be registered with (at the time of application) as a Physiotherapist; and

C. any prospective Physiotherapy employer (at the time of your application).

Notes

This Order will be reviewed again before its expiry.

 

Hearing History

History of Hearings for Mrs Atika Sharma

Date Panel Hearing type Outcomes / Status
10/11/2020 Conduct and Competence Committee Final Hearing Conditions of Practice