Miss Yashaswini Kumari

Preliminary Matters

Service

1. There was before the Panel a document certifying that a Notice of Hearing dated 26 January 2021 (and a further Amended Notice dated 27 January 2021 indicating that the length of the hearing would be two days rather than the three days set out in the earlier Notice) had been sent to the Registrant at the email address shown for her on the HCPC Register. The Notice of 27 January 2021 confirmed the date and time of the hearing and that it would be conducted virtually via videoconference.

2. The Panel accepted the advice of the Legal Assessor and was satisfied from the documentation that the Notice had been properly served on the Registrant in accordance with the Health and Care Professions Council (Conduct and. Competence Committee) (Procedure) Rules 2003 (the Rules).

Proceeding in absence

3. Mr Foxsmith, on behalf of the HCPC, applied under Rule 11 of the Rules for the hearing to proceed in the Registrant’s absence. He said that there had been no response from the Registrant to the Notices of Hearing, nor had she responded to any other correspondence or telephone calls.

4. In reaching its decision the Panel had regard to the submissions of Mr Foxsmith. It had in mind the HCPTS Practice Note “Proceeding in the absence of the Registrant”. The Panel accepted the advice of the Legal Assessor.

5. The Panel determined that it was reasonable and in the public interest to proceed with the hearing, despite the absence of the Registrant, for the following reasons:

• The Registrant had not engaged with the regulatory process.

• There had been no response from her to any correspondence or telephone calls. In particular, she had not responded to the Notices of Hearing.

• It was unlikely that the Registrant would attend in the future were the hearing to be adjourned and reconvened on another date.

• The Registrant’s absence appeared voluntary and she appeared to have waived her right to attend.

Application to amend

6. Mr Foxsmith applied for the Allegation to be amended. He submitted that the proposed amendments were by way of clarification and did not alter the essence of the matters alleged. He said that notice of the proposed amendment application had been sent to the Registrant on 4 June 2020. There had been no response from the Registrant.

7. The Panel was satisfied that the proposed amendments did not affect the substance of the Allegation but were principally by way of clarification. Although the proposed amendment of particular 2(b) did amount to an alternative were particular 2(a) not to be proved, the Registrant had had ample time to consider this and to make submissions either orally, if she attended this virtual hearing, or in writing. The Panel was satisfied that no injustice would arise if the proposed amendments were allowed. It therefore allowed the application and amended the Allegation accordingly.

Background

8. The Registrant is an Occupational Therapist. It appears from information on the Register that she is currently residing in India.

9. On 26 June 2019, the Registrant, who was apparently seeking employment in the United Arab Emirates as an Occupational Therapist, applied to Dataflow Group for Source Verification of her employment details. Her application was supported by a Letter of Good Standing (the letter), purporting to confirm that the Registrant had been an employee of Barts Health NHS Trust (the Trust). The letter heading purported to be that of the Trust and the letter was signed by a person described as the Registrant’s line manager at the Trust.

10. Dataflow Group submitted this document to the Trust for verification. On receipt of this document, the Trust checked its records and identified that the Registrant had never been employed by them and, further, that the purported signatory, described as her line manager at the Trust, had also never been employed there. Moreover, there were various other reasons (set out below) as to why the Trust regarded the letter not to be genuine.

Evidence

11. There was before the Panel a bundle of documents containing witness statements and exhibits prepared on behalf of the HCPC.

12. CH was called on behalf of the HCPC. There was a further witness, SM, whose statement was in the bundle. She merely produced the documents which were before the Panel and was therefore not called to give evidence.

13. CH is employed at the Trust as Workforce Governance Officer. In this capacity, among other matters, he manages a team of Human Resource (HR) Administrators. This team deals with requests for confirmation of employment, references, and the maintenance of staff files.

14. CH described the Electronic Staff Record (ESR) system used by the Trust, into which employee details would be entered. Employee details are referenced by name, National Insurance number, and payroll number.

15. CH said that records had been searched by one of the team of HR administrators, who could find no trace of the Registrant in the ESR system. CH then described how, on receiving this information, he ran a ESR search for the name of the Registrant and also that of her purported line manager who had signed the letter. He said that he found there to be no record of either name on the ESR system.

16. CH concluded that the letter was not genuine, the reasons for which he set out in his witness statement:

“a. There was no trace of [the Registrant] on the ESR;
b. There was no trace of the supposed line manager author of the letter on the ESR;
c. The letterhead is not correct; the official Trust letterhead is easy to find and use and everyone uses this;
d. The use of the personal email "outlook" address on the letter and the fact that this personal email address has "NHS" within it;
e. The lack of a postal address on the letter; all official Trust letters would include an address. It only says London on this letter whereas the Trust is made up of five different hospitals so you would usually see the individual hospital address;
f. The supposed author not including their job title, including a job title is normal practice for staff when signing off a letter; and
g. Trust employees generally do not work a 38 hour week. The vast majority staff, other than doctors, work 37.5 hours per week as a full-time employee. This is the standard under Agenda for Change. As at 1 June 2020, the Trust currently has 3 members of staff contracted to work 38 hours per week out of a total of around 17,000 members of staff.”

Closing submissions

17. Mr Foxsmith submitted that the factual allegations could be established from the evidence of CH and from the documents within the HCPC bundle. He further submitted that CH was a reliable and fair witness who had had no direct contact with the Registrant.

Decision on Facts

18. In reaching its decision on the facts the Panel considered all the evidence before it, both oral and documentary, together with the submissions of Mr Foxsmith. It accepted the advice of the Legal Assessor.

19. CH was the sole witness. His evidence related to the ESR system and the examination of the details held therein. He also indicated why he regarded the letter as not being genuine. The Panel found CH to be a balanced, open, and credible witness whose evidence was considered and consistent. He was clearly experienced in dealing with the ESR system. The Panel was satisfied that his evidence was wholly credible.

Particular 1 – Proved

1. On an unknown date in around May or June 2019, you created a document which purported to be a letter of good standing from Barts Health NHS Trust.

20. The Panel was satisfied that the purported Letter of Good Standing sent to Dataflow Group, which was dated 15 June 2019, would have been created by the Registrant at about that date, and therefore that it was not genuine. It reached this conclusion in the light of the evidence of CH and the documentation. The Panel did consider whether there were any other possible persons who might have created the letter but concluded that this would have been most unlikely.

Particular 2(a) – Proved

2. On or on a date prior to 29 June 2019:

a) you submitted or arranged to be submitted the purported letter of good standing referred to in allegation 1 to Dataflow Group and/or Dataflow Group’s client; or

21. The letter, which was sent to Dataflow Group on 29 June 2019, had been created to support an application to enable the Registrant to seek employment in the United Arab Emirates. In this regard, the Panel took into account the documentation from Dataflow Group, indicating that this was in support of the Registrant’s application for verification of her employment history. The letter could only have been submitted by the Registrant or on her behalf. The Panel did consider whether there were any other possible persons who might have submitted the letter but concluded that this would have been most unlikely.

Particular 2(b) – Not Proved

2. On or on a date prior to 29 June 2019:

b) did not adequately check the material to be submitted on your behalf to Dataflow Group and/or Dataflow Group’s client(s) for accuracy, before submission.

22. This particular was an alternative to that at particular 2(a). Having found particular 2(a) proved, it was not necessary for the Panel to consider this particular.

Particular 3 – Proved

3. Your conduct in relation to allegations 1 and 2(a) above was dishonest.

23. The Panel was satisfied that the creation and submission of the letter was a deliberate act, from which it could be inferred that the Registrant was seeking monetary advantage by obtaining employment for which she may not have been suitable. The Panel therefore concluded that the Registrant had acted dishonestly in so doing.

Decision on Grounds

24. In reaching its decision on grounds, the Panel considered all the evidence before it together with the submissions of Mr Foxsmith. It had in mind the HCPTS Practice Note “Finding that Fitness to Practise is ‘Impaired’”. It accepted the advice of the Legal Assessor.

25. In acting in the manner found proved, the Panel determined that the Registrant was in breach of Standard 9 of the HCPC Standards of Conduct, Performance, and Ethics:

9. Be honest and trustworthy

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

9.2 You must be honest about your experience, qualifications and skills.

26. The Panel therefore concluded that the conduct found proved was clearly unworthy of an Occupational Therapist. It amounted to misconduct which was particularly serious.

Decision on Impairment

27. In reaching this decision, the Panel again considered all the evidence and information before it, together with the submissions of Mr Foxsmith. It had in mind again the relevant HCPTS Practice Note. It accepted the advice of the Legal Assessor.

28. The Panel found the test endorsed by Mrs Justice Cox in the case of Grant v NMC to be of assistance, and that all four limbs of that test were engaged, namely that the Registrant had in the past and/or is liable in the future:

• to act so as to put a service user(s) at unwarranted risk of harm;

• to bring the profession into disrepute;

• to breach one of the fundamental tenets of the profession;

• to act dishonestly.

29. These were serious acts of misconduct by a professional in a position of trust.

30. The Registrant had not engaged at any stage with the HCPC and therefore the Panel had no evidence that she has demonstrated any insight, nor that she has expressed remorse.

31. The Panel concluded that as a result of the nature of the misconduct found proved, and the lack of any insight, it could not be satisfied that misconduct of this nature would not be repeated, putting service users at risk of harm.

32. The Panel further considered that the nature of the misconduct found proved was such that it was liable to bring the profession of Occupational Therapy into disrepute.

33. In acting as she did the Registrant breached fundamental tenets of the profession, which include maintaining honesty and integrity.

34. In these circumstances, with regard to the personal component, the Panel determined that the Registrant’s fitness to practise is currently impaired.

35. Furthermore, a finding of current impairment is also required in the wider public interest. This is necessary to declare and uphold proper professional standards. The public would expect an Occupational Therapist to act in accordance with these standards. Public confidence in the profession, and in the HCPC as Regulator, would be undermined if a finding of impairment were not made.

Decision on Sanction

36. In reaching its decision the Panel considered all the information before it, together with the submissions of Mr Foxsmith and its own findings on impairment. It had regard to the HCPC Sanctions Policy. It accepted the advice of the Legal Assessor. It exercised the principle of proportionality at all times.

37. Mr Foxsmith made no submissions in regard to the appropriate sanction. However, he referred to the Sanctions Policy and emphasised that the purpose of a sanction is not to punish a registrant but to protect the public.

38. The Panel found these to be aggravating features:

• Although the misconduct occurred on a single occasion, it was not spontaneous and it involved planning and preparation.

• It could have resulted in potential harm to service users.

• There has been nothing to indicate any insight by the Registrant into this misconduct, nor any remorse.

39. Whilst there have been no previous findings against the Registrant before this or any other HCPC Panel, there were no mitigating features relevant to the misconduct found proved.

40. The Panel first considered whether to take no action, but the serious nature of the misconduct demands a sanction.

41. The Panel then considered mediation or a caution order. However, the serious nature of the misconduct is such that neither would be sufficient to protect the public or to address public interest concerns.

42. The Panel next considered a Conditions of Practice Order, but there are no conditions which would be appropriate, workable, or sufficient to protect the public in the light of the serious nature of the misconduct. Furthermore, as the Registrant has not engaged with the HCPC process there is nothing to suggest that she would engage or comply with any conditions.     

43. The Panel then considered a Suspension Order, but again such an order would be insufficient to address the serious nature of the misconduct. Furthermore, such a sanction would not be a sufficient deterrent to other Occupational Therapists.

44. The Panel therefore considered a Striking Off Order. It was aware that this is a sanction of last resort for serious matters. Dishonesty of the nature found proved is a serious matter. The Panel referred to the Sanctions Policy, where it states that such an 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 or to maintain public confidence in the profession and in the regulatory process.

45. This applies to the current circumstances and the Panel therefore determined that the only proportionate and sufficient sanction is that of a Striking Off Order.

46. The Panel did consider the financial impact such an Order would have on the Registrant were she to return to the UK, but was satisfied that this was outweighed by the public interest.

That the Registrar is directed to strike the name of Miss Yashaswini Kumari from the Register on the date this order comes into effect.

Interim Order

1. Mr Foxsmith applied for an Interim Order on the grounds that this was necessary for the protection of the public and was otherwise in the public interest. He submitted that the order should be for the maximum period of 18 months to cover the appeal period and the time that might be required to conclude any appeal.

Proceeding in absence

2. Mr Foxsmith submitted that the Panel should hear this application despite the continued absence of the Registrant.

3. The Panel was satisfied that the Registrant had been made aware that in the event of a sanction being imposed it would be likely that an application for an Interim Order would be made. It therefore concluded that the Registrant’s continued absence is voluntary. It decided that no injustice to the Registrant would arise and that this application should proceed in her absence.

The application

4. The Panel decided to make an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. The Panel considered, particularly in the light of the current circumstances surrounding the Covid-19 pandemic, that any appeal would take at least 18 months to resolve. It therefore decided to impose an Interim Suspension Order for a period of 18 months.

5. 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 the maximum period of 18 months.

History of Hearings for Miss Yashaswini Kumari