Mr Mustafa Naamani

Profession: Physiotherapist

Registration Number: PH107434

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 24/05/2021 End: 17:00 27/05/2021

Location: Virtual via Video Conference

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

Allegation (as amended):

As a registered Physiotherapist (PH107434) your fitness to practise is impaired by reason of misconduct. In that:
In or around October and November 2018,

1. You risked patient safety by using an electric massage machine which was not the property of your employer without taking adequate steps to check that it was safe to use, when the machine:
(a) had not been subject to Portable Appliance Testing.

2. You did not keep accurate treatment notes in that you did not record your use of the electrotherapy electric massage machine in patient notes.

3. You did not follow management instructions by continuing to use the electric massage machine when instructed to stop.

4. You falsely informed one or more colleagues and/or managers that you had not used the electric massage machine after 25 October 2018, when you had continued to use the machine after that date.

5. Your conduct set out in allegations 2 and/or 4 above was dishonest.

6. The matters set out in the allegation 1, 2, 3, 4 and 5 above constitute misconduct.

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

Finding

Preliminary matters:

Virtual Hearing

1. In line with the current guidance from HM Government in relation to the COVID-19 (Coronavirus) pandemic, this hearing was conducted by videoconference in accordance with Rule 2A of the Health and Care Professions Council (Conduct and Competence Committee) Rules 2003 (as amended) (“the Rules”).

Application to amend the Allegation

2. Mr Tarbert applied to amend particulars of the Allegation in the following terms:

1. You risked patient safety by using an electric massage machine which was not the property of your employer and without taking adequate steps to check that it was safe to use, when the machine:

(a) had not been subject to Portable Appliance Testing.

2. You did not keep accurate treatment notes in that you did not record your use of the electrotherapy electric massage machine in patient notes.

3. You did not follow management instructions by continuing to use the electric massage machine when instructed to stop.

4. You falsely informed one or more colleagues and/or managers the governance team that you had not used the electric massage machine after 25 October 2018, when you had continued to use the machine after that date.

5. Your conduct set out in allegations 2 and/or 3 and/or 4 above was dishonest.

6. The matters set out in the allegation 1, 2, 3, 4 and 5 above constitute misconduct.

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

3. Mr Tarbert submitted that the Registrant was notified of the proposed amendments by a letter dated 17 July 2020. He submitted that the proposed amendments provided clarification and did not alter the substance of the Allegation. He further submitted that they did not cause any prejudice to the Registrant.

4. Mr Stevens did not object to the proposed amendments.

5. The Panel accepted the advice of the Legal Assessor.

6. The Panel was satisfied that the proposed amendments were minor in nature and did not change the nature or substance of the Allegation. Furthermore, the Panel was satisfied that the proposed amendments better reflected the evidence contained in the Hearing Bundle. The Panel noted that the Registrant had been notified of the proposed amendments on 17 July 2020 and that Mr Stevens did not object to them. In the circumstances, the Panel was satisfied that the proposed amendments did not cause any prejudice to the Registrant.

7. Accordingly, the Panel decided to allow the amendment in the terms sought.

Admissions

8. The Allegation was put to the Registrant.

9. Mr Stevens informed the Panel that the Registrant admitted particulars 1(a), 2, 3 and 4 of the Allegation. He stated that the Registrant also admitted particular 5 of the Allegation in-part. Mr Stevens explained that the Registrant admitted that his conduct in relation to particular 4 was dishonest but not in relation to particular 2.

10. Mr Stevens informed the Panel that the Registrant also admitted that his conduct in particulars 1 to 5 of the Allegation amounted to misconduct.

Background

11. The Registrant is a registered Physiotherapist. He graduated from Huddersfield University in June 2015.

12. The Registrant commenced employment as a Physiotherapist with a company called TICCS in February 2016. The company subsequently changed its name to Ascenti. It operated a number of clinics across the North-West region.

13. In 2018, the Registrant was working for Ascenti at the Natural Health Clinic in Gatley. He noticed that there was a G5 Electric Massage Machine (“the machine”) at the clinic.

14. In July 2018, the Registrant moved the machine to Ascenti’s Wigan clinic.

15. On 25 October 2018, CS, the North West Deputy Network Manager at Ascenti, sent an email to all members of staff at the Wigan clinic including the Registrant. It stated:
“Just a quick one - does anybody know where that electrotherapy machine in the Wigan clinic has come from? If so we need to look at getting rid of it as it is cluttering the room.
Also, as it is not our equipment, I am sure nobody has used it anyway and it goes without saying, but under no circumstances should we be using it on our patients.
Any information would be greatly appreciated!”

16. The Registrant replied to CS’s email on the same date in the following terms:
“I will get this moved from the clinic today.”

17. On 9 November 2018, Ascenti received a complaint from Person A. Person A complained over worsening symptoms following physiotherapy treatment. She also expressed concern that she had seen six different physiotherapists with no continuity or consistency of treatment.

18. On 14 November 2018, Person A’s complaint was allocated to CM to investigate. At the time CM was employed by Ascenti in a split role as a Band C Physiotherapist and as the company’s Clinical Compliance Officer.

19. On 14 November 2018, CM reviewed Person A’s treatment notes and saw that MP, the physiotherapist who treated Person A on 27 October 2018, had recorded that Person A had reported that an electric massage machine had been used during her previous visit to the clinic on 12 October 2018 when she had been treated by the Registrant.

20. CM therefore telephoned the Registrant. The Registrant stated that he had used the machine on Person A. He told CM that the machine was previously located in a different clinic and that he had moved it to the Wigan “Xercise for Less Clinic” used by Ascenti. He stated that it was not his property. He explained that Person A had presented with significant increase in neurological tone which led to being incredibly sensitive to touch. He stated that he had used the machine to warm-up the area until she could tolerate further manual therapy.

21. CM then called MP and CS in relation to the concerns. CS informed CM of the email he had sent to all staff at the Wigan clinic on 25 October 2018 regarding the machine.

22. CM made a further phone call to the Registrant on 14 November 2018 and informed him that he intended to undertake an investigation that afternoon in relation to a sample of his patients. CM asked the Registrant if any of those patients would report that the Registrant had used the machine. The Registrant stated that he did not think so and when asked to confirm the position, the Registrant stated that he had not used the machine on any of those patients.

23. CM chose a sample of eight patients who had been treated by the Registrant after CS had sent the email on 25 October 2018 instructing physiotherapists not to use the machine. CM contacted the patients by telephone. Person C reported that the Registrant had used the machine during a treatment session on 1 November 2018, and Person D reported that the Registrant had used the machine during a treatment session on 8 November 2018.

24. The Registrant did not, at any time, record his use of the machine during therapy sessions on Greencliffe, the electronic patient record system used by Ascenti.

25. Following the investigation undertaken by CM on 14 November 2018, a formal disciplinary investigation took place. As part of the disciplinary process, the Registrant was interviewed on 27 November 2018.

26. During the investigation, CM ascertained that the machine was not the property of Ascenti. Furthermore, it had not been subjected to Portable Appliance Testing (“PAT”) in accordance with Ascenti’s Health and Safety Policy.

27. On 18 January 2019, following a disciplinary hearing held on 15 January 2019, the Registrant was given a final written warning by Ascenti.

28. On 30 January 2019, Ascenti made a referral to the HCPC.

29. On 31 January 2019, the Registrant began working as a self-employed musculoskeletal physiotherapist and continues to do so.


Decision on Facts

The Panel’s Approach

30. The Panel reminded itself that the burden of proving the facts is on the HCPC and that the Registrant does not have to prove anything. Further, a fact is only to be found proved if the Panel is satisfied of it on the balance of probabilities.

31. In reaching its decision, the Panel took into account the admissions made by the Registrant, however, it noted that these were not binding on the Panel and that it must have regard to the totality of the evidence presented to it.

32. The Panel considered the documentary evidence, including witness statements and exhibits contained in the 147 page HCPC Hearing Bundle. It also considered the 21 page Registrant’s bundle, including a statement from the Registrant, evidence of training and continuing professional development (“CPD”) and testimonials.

33. The Panel heard evidence from two witnesses, CM and RH, called on behalf of the HCPC and from the Registrant.

34. The Panel took into account the submissions made by Mr Tarbert and by Mr Stevens.

35. The Panel accepted the advice of the Legal Assessor.

Evidence of CM

36. CM adopted the content of his witness statement dated 17 August 2020.

37. CM told the Panel that in November 2018, he was employed by Ascenti in a split role as a Band C Physiotherapist and as the company’s Clinical Compliance Officer. He stated that on 14 November 2018, he was asked to investigate a complaint Ascenti had received from Person A. He confirmed that the initial complaint did not refer to the Registrant or to the use of the machine. CM also confirmed that he has never met the Registrant and has only spoken to him on the telephone during his investigation.

38. CM was asked a number of supplementary questions by Mr Tarbert. CM was referred to the exhibit bundle and confirmed that he had used the Clinical Complaints Review Form as a template for his investigation. He stated that he had spoken to the Registrant on the telephone on 14 November 2018 and that the Registrant had confirmed that he had used the machine. CM stated that he had reviewed Person A’s patient notes on Greencliff but there was no mention of electrotherapy.

39. CM stated that following conversations with CS and MP he had spoken to the Registrant again. During this second conversation, CM stated that he told the Registrant that he intended to speak to a sample of his patients and would ask them if the Registrant had used the electrotherapy machine. CM stated that the Registrant said “he hadn’t”. CM told the Panel that he double checked because the Registrant’s tone of voice “didn’t sound like a concrete answer.”

40. CM stated that he randomly chose a sample of eight patients that the Registrant had treated after the management instruction from CS on 25 October 2018 not to use the machine. He stated that some of the patients reported that the Registrant had used the machine.

41. CM told the Panel that he escalated the complaint to the governance team at Ascenti. CM was asked about PAT testing. He stated that Ascenti’s health and safety policies were available on the company’s intranet. He stated that it was an employee’s personal responsibility to make themselves familiar with the content. CM stated that by using the machine the Registrant had put himself at risk.

42. In answer to questions from Mr Stevens, CM agreed that in practical terms, the health and safety policies were available, but he acknowledged that employees were not taken through the policies as part of an induction process.

43. CM confirmed that his two phone calls to the Registrant on 14 November 2018 were “out of the blue”. He stated that he could not recall the time of the phone calls but that they would have been during clinic hours or during the lunchbreak. CM stated that the phone calls were made during the very early stage of the investigation and before he had escalated the matter.

44. CM was asked about his witness statement and his reference to the risks of using the machine without training. CM stated that he meant training by Ascenti. CM accepted that he was not able to comment on any prior training the Registrant had undertaken.

Evidence of RH

45. The Panel next heard from RH. He adopted the content of his witness statement dated 25 August 2020. He confirmed that he was a Network Manager at Ascenti and had been in this role since January 2016. His responsibilities included overseeing operational, clinical and financial management of a Physiotherapy Network. This included the day-to-day management of 43 physiotherapists and reporting to central support functions of the business such as HR, Governance and Facilities.

46. Mr Tarbert asked RH about patient record keeping. RH stated that Ascenti used a digital record keeping system called Greencliff. He was referred to exhibit 17 in the Hearing Bundle. He stated that although he was not familiar with the format of the document, it reflected the patient records on the Greencliff system. He stated that it consisted of a series of sections. Some sections contained closed questions that could only be answered by selecting an answer from a dropdown box, whereas others contained free text boxes. RH was asked where he would expect to see reference to the use of an electric massage machine. RH stated that the Greencliff system allowed the user to choose the treatment technique and, if it was not listed in the dropdown box, the user should select “other” and then enter a description in the free text box.

47. RH stated that he would have expected any warmup procedure to be included in the patient notes on Greencliff. He stated that there was no specific record keeping policy at Ascenti and that physiotherapists were expected to follow HCPC guidance.

48. RH stated that it was important to record the use of electrotherapy for numerous reasons including, ensuring the unit was safe to use and recording what unit had been used so that other therapists could decide whether to continue or to modify follow up treatment.

The Registrant’s Evidence

49. The Panel heard evidence from the Registrant. He adopted the content of his witness statement dated 13 May 2021.

50. The Registrant stated that he accepted that by making use of the machine he had risked patient safety. He explained that at the time he was only vaguely aware of PAT testing but that he has since read the relevant regulations and updated his knowledge. He stated that he now ensures that everything is tested and that he would never act in a way that would put patients at risk again. He stated that he deeply regrets what happened and that his actions have let down the profession and the public. He stated that he has always wanted to do the best for his patients and will continue to do so.

51. The Registrant was asked if he had seen Ascenti’s health and safety policies. He stated that he had not and that he did not in fact have access to “Pulse”, the company’s intranet system. He stated that he became aware of the policies as a result of this matter. He stated that he had reflected on his actions and would now he would always check with a manager if he was unsure of anything. He stated that he never wants to put patients at risk again.

52. The Registrant stated that he had continued to use the machine after he received the email from CS as he hadn’t realised the importance of the email and had not taken it as seriously as he should have done at the time. He stated that looking back, he should have called CS and the matter would have been resolved there and then. The Registrant apologised for his actions and said that he felt sad that he had not followed the instructions given by CS.

53. The Registrant stated that when he was called by CM on 14 November 2018, the calls were unscheduled, and he was busy working at the clinic. He stated that he was flustered and thought “am I in trouble?”. He said that on the spur of the moment he said that he had not used the machine on any other patients. The Registrant accepted he acted dishonestly. He stated that CM knew he was being dishonest from his voice. He stated that he now wished that he had said yes, and been more open. He stated that he did not know CM or what department he was from but that he should have just been honest. The Registrant stated that it is something he will never do again. He told the Panel that he understood that his actions could have an impact on the public perception of the profession and that he understood it was important to maintain the trust of managers, other staff and patients.

54. The Registrant accepted that on 6 November 2018 he had told MQ, a colleague at the Wigan clinic that he had not used the machine. He stated that at that time he was having a difficult time at work.

55. The Registrant stated that during his employment at Ascenti he had only seen a manager on 3 occasions. He stated that now he is always open with his current manager and has regular discussions with her. He stated that his current manager is very supportive. He stated that he works to the best of his ability and now always keeps his notes to a good level. If he is unsure, he always asks for help.

56. The Registrant told the Panel that during the formal interview on 27 November 2018, he accepted that his patient notes did not make reference to his use of the electric massage machine. He stated that this was the first time that the inadequacy of his records had been raised. He stated that a strategy was devised following the disciplinary interview. The Registrant stated that he had not tried to conceal his use of the machine and had not acted dishonestly. He stated that the machine was in the clinic and other therapists knew that he had used it. He stated that he never recorded if he had used tools or electrotherapy in his notes.

57. In answer to questions from Mr Tarbert, the Registrant accepted that the machine did not belong to him and that he had moved it from the Natural Health Clinic in Gatley to the Wigan Clinic. He stated that he had been involved in a road traffic accident and had suffered whiplash and was struggling to work due to the pain in his shoulder. He stated that he could only afford to take two weeks off work on statutory sick pay. He told the Panel that in July 2018 he had therefore invested in some trigger point tools and that is also when he started using the machine.

58. The Registrant accepted that the machine was not PAT tested and that he had only conducted a superficial visual examination of its condition. He now fully accepted that he had placed patients at risk. He stated that when management made it clear to him about the risk of using a machine that had not been PAT tested, he was shocked at what he had done. He stated that at the time he had not appreciated the risk.

59. The Registrant was asked about his record keeping. He explained that he only received half a day’s induction and training in relation to the Greencliff system as he had originally commenced work as a locum physiotherapist. He stated that he understood the usual induction period to be two days. The Registrant stated that he accepted the importance of record keeping and that his records on the Greencliff system were incomplete. However, he denied that he had tried to conceal anything.

60. The Registrant stated that if he was in a similar situation again and saw equipment and was unsure about where it came from, he would immediately speak to management. He stated that he would check the safety of the unit, check the PAT test was in date and would document it in his notes. The Registrant also confirmed that if he was instructed by management not to do something, he would follow the instructions.

61. In answer to Panel questions, the Registrant stated that he understood that the public place their trust in health care professionals and that he now does his best to uphold that trust. He stated that he does not want the public to have a negative impression of him or the profession. The Registrant also accepted that other physiotherapists and other health professionals would not view his actions in a good light.

The Panel’s Assessment of the Witnesses

62. The Panel assessed the reliability and credibility of each of the witnesses. The Panel found all of the witnesses, including the Registrant to be straightforward and credible. In the Panel’s view, they all gave reliable, fair and balanced evidence.

The Panel’s Decision

Particular 1(a) Proved

63. The Panel noted that Registrant accepted that he had moved the machine to the Wigan clinic and that he had used it on several patients including Person A, Person B, Person C and Person D.

64. The Panel also noted the witness statement of MP in which he stated that Person A had told him that the Registrant had used a machine during the therapy session on 12 October 2020.

65. The Panel accepted the oral evidence of CM who stated that he had contacted eight of the Registrant’s patients and that Person B, Person C and Person D had reported that the Registrant had used a machine during therapy sessions.

66. The Panel also accepted the evidence of CM in relation to PAT testing. The Panel noted the exhibits he referred to in the Hearing Bundle, including a copy of Ascenti’s health and safety policy that required all portable electronic devices to be submitted for PAT testing. The Panel further noted that there was no evidence the machine was ever tested.

67. The Panel noted the Registrant’s evidence that he conducted a visual examination of the machine, but it was satisfied that he did not take adequate steps to ensure that it was safe to use.

68. The Panel further noted the Registrant’s admission to this particular of the Allegation.

69. Accordingly, the Panel found particular 1(a) of the Allegation proved.

Particular 2 Proved

70. The Panel accepted the evidence of RH in relation to the operation of the Greencliff digital record system.

71. The Panel accepted the oral evidence of CM who stated that he had contacted eight of the Registrant’s patients and that Person B, Person C and Person D had reported that the Registrant had used a machine during therapy sessions. The Panel was also satisfied, having regard to the witness statement of MP, that the Registrant had used the machine on Person A.

72. The Panel was provided with copies of the Greencliff patient notes in the Hearing Bundle. The Panel noted that there is no record of the machine being used.

73. The Panel further noted that the Registrant accepted that he had not recorded the use of the machine in the patient notes and admitted particular 2 of the Allegation.

74. The Panel therefore found particular 2 of the Allegation proved.

Particular 3 Proved

75. The Panel noted the content of the email dated 25 October 2018 sent by CS to all members of staff at the Wigan Clinic. The Panel was satisfied that this was an unequivocal instruction from management not to use the machine.

76. The Panel accepted the evidence of CM that the Registrant had used the machine on Person C on 1 November 2018 and on Person D on 8 November 2018.

77. The Panel also noted that the Registrant admitted this particular of the Allegation.

78. The Panel was therefore satisfied that the Registrant did not follow management instructions by continuing to use the machine when instructed to stop. Accordingly, it found particular 3 of the Allegation proved.

Particular 4 Proved

79. The Panel accepted the evidence of CM that the Registrant had used the machine on Person C on 1 November 2018 and on Person D on 8 November 2018.

80. The Panel also accepted the evidence of CM that during a phone call on 14 November 2018, the Registrant had told CM that he had not used the machine on any patients after 25 October 2018.

81. The Panel also noted the evidence of the investigatory interview conducted with MQ. MQ stated that on 6 November 2018, the Registrant had told him that he had not used the machine.

82. The Panel further noted the Registrant’s evidence and his admission that he had not told the truth to MQ and CM.

83. In the circumstances, the Panel found particular 4 of the Allegation proved.

Particular 5 Proved (in part)

84. The Panel applied the test in respect of dishonesty set out in the case of Ivey v. Genting Casinos [2017] UKSC 67: “Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective. If, by ordinary standards, a defendant’s mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards.”

85. The Panel first considered whether the Registrant had acted dishonestly in respect of particular 2 of the Allegation. The Panel noted that the Registrant had not recorded his use of the machine in patient records either before, or after, he received the email from CS on 25 October 2018. The Panel also noted the Registrant’s explanation as to why he had not recorded the use of the machine or any other therapeutic tool on the Greencliff system. In the Panel’s view, the Registrant was a credible and open witness. The Panel noted that the Registrant had made a number of significant admissions in this case and that this was the only particular of the allegation he denied. The Panel accepted the Registrant’s explanation that he had not attempted to conceal his use of the machine by failing to record it in the patient records.

86. Accordingly, the Panel was not satisfied on the balance of probabilities that the Registrant had acted dishonestly. The Panel therefore found particular 5 not proved in respect of particular 2 of the Allegation.

87. The Panel next considered whether the Registrant acted dishonestly in respect of particular 4 of the Allegation.

88. The Panel noted that the Registrant admitted that he had not told the truth to MQ and to CM.

89. The Panel further noted that the Registrant admitted that he had acted dishonestly in this regard.

90. Applying the test as set out in the case of Ivey, the Panel was satisfied that the Registrant’s actions would be viewed as dishonest within the objective standards of ordinary decent people.

91. The Panel therefore found particular 5 of the Allegation proved in respect of particular 4 of the Allegation.

Decision on Grounds

92. The Panel heard submissions from Mr Tarbert in relation to misconduct. He submitted that Standards 2.6, 6.1, 6.2, 9.1, 9.6 and 10.1 of the HCPC Standards of Conduct, Performance and Ethics (January 2016) are engaged. He further submitted that the Registrant’s conduct fell short of what would be proper in the circumstances. He therefore invited the Panel to find that the facts found proved both individually and collectively amounted to serious professional misconduct.

93. Mr Stevens made no submissions on behalf of the Registrant in relation to misconduct given the Registrant’s admission at the beginning of the hearing that his conduct in particulars 1 to 5 of the Allegation amounted to misconduct.

94. The Panel accepted the advice of the Legal Assessor as to the approach it should adopt when considering the question of misconduct.

95. In reaching its decision, the Panel took into account the Registrant’s admission but was mindful that this was not determinative of the issue. The Panel recognised that the decision on the statutory grounds is a matter of independent judgement for the Panel.

96. The Legal Assessor referred the Panel to the definition of misconduct provided by Lord Clyde in Roylance v GMC (No.2) [2001] 1 AC 311:
“Misconduct is a word of general effect involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a practitioner in the particular circumstances.”
97. The Legal Assessor also referred the Panel to the HCPTS Practice Note and to the case of Meadow v GMC [2006] EWCA Civ 1319, which made clear that a finding of misconduct by the Panel requires serious professional misconduct on the part of the Registrant.

98. The Panel first considered whether the Registrant breached the “rules and standards ordinarily required to be followed” by him. The applicable rules and standards being the HCPC Standards of Conduct, Performance and Ethics (January 2016) (“the HCPC Standards”).

99. The Panel was satisfied that the Registrant had breached the following parts of The HCPC Standards:

(i) 2.6 You must share relevant information, where appropriate, with colleagues involved in the care, treatment or other services provided to a service user.
The Panel determined that Standard 2.6 was engaged having regard to the facts found proved in relation to particulars 2 and 4 of the Allegation.

(ii) 6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.
The Panel determined that Standard 6.1 was engaged having regard to the facts found proved in relation to particulars 1(a), 2 and 3 of the Allegation.

(iii) 6.2 You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.
The Panel determined that Standard 6.2 was engaged having regard to the facts found proved in relation to particulars 1(a), 2 and 3 of the Allegation.

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

The Panel determined that Standard 9.1 was engaged having regard to the facts found proved in relation to particulars 4 and 5 of the Allegation.

(v) 10.1 You must keep full, clear, and accurate records for everyone you care for, treat, or provide other services to.

The Panel determined that Standard 10.1 was engaged having regard to the facts found proved in relation to particular 2 of the Allegation.

100. The Panel recognised that not every failure to comply with the provisions of the HCPC Standards will necessarily result in a finding of misconduct. However, the Panel took the view that the Registrant’s multiple breaches of different aspects of the HCPC Standards were serious.

101. Insofar as particulars 1 and 3 of the Allegation are concerned, the Panel has found that the Registrant took it upon himself to move a machine from the Natural Health Clinic in Gatley to the Wigan Clinic, and then to use it on patients without management approval. Furthermore, the Registrant failed to take adequate steps to ensure that the machine was safe to use, and it subsequently transpired that it had not been subjected to PAT testing in accordance with Ascenti’s health and safety policy. Then, when specifically instructed by CS on 25 October 2018 not to use the machine, the Registrant nevertheless continued to do so. In these circumstances, the Panel was satisfied that although no actual harm was caused to patients, they were exposed to unwarranted risk of harm as a result of the Registrant’s actions.

102. Turning to particular 2 of the Allegation, the Panel was satisfied that accurate patient record keeping is essential for physiotherapists. In relation to the Registrant’s failure to record his use of the machine, the Panel noted the evidence of RH who stated that it was important to record the use of electrotherapy for numerous reasons including, ensuring the unit was safe to use and recording what unit had been used so that other therapists could decide whether to continue or to modify follow up treatment. The Panel was therefore satisfied that the Registrant’s repeated failure to maintain full and accurate patient records was serious.

103. In relation to particulars 4 and 5 of the Allegation, the Panel has found that the Registrant acted dishonestly when he falsely informed one or more colleagues and/or managers that he had not used the machine after 25 October 2018, when he had continued to use the machine after that date. In the Panel’s view, dishonesty, both in and outside the workplace is serious as it undermines public confidence in the profession and can impact the public’s safety.

104. Having regard to the above, the Panel was satisfied that the Registrant’s conduct fell significantly below the standards expected of a registered Physiotherapist. It was further satisfied that individually and collectively, the particulars of the Allegation found proved amounted to serious professional misconduct.

105. The Panel therefore, found the statutory ground of misconduct to have been made out.

Decision on Impairment

106. The Panel next considered whether the Registrant’s fitness to practise is impaired by reason of his misconduct.

107. The Panel heard submissions from both counsel.

108. Mr Tarbert referred the Panel to the HCPTS Practise note and to relevant case law. He invited the Panel to adopt the approach set out in the Practice Note and to consider the Personal and Public Components of impairment.

109. He submitted that it was a matter for the Panel to assess whether the Registrant’s fitness to practise was impaired in relation to the Personal Component. He submitted that the Panel had the benefit of the written and oral evidence of the Registrant and it could therefore consider whether the Registrant had demonstrated sufficient insight and remediation.

110. In relation to the Public Component, Mr Tarbert submitted that the public were entitled to expect that if a machine was used, the physiotherapist would have taken all reasonable steps to satisfy himself that it was safe. He submitted that by failing to do so, the Registrant had placed patients at risk, thereby undermining public confidence in the profession. He further submitted that the public would expect a physiotherapist to follow management instructions and to be open and honest, particularly in relation to something that may impact on public safety. He also submitted that by acting dishonestly, the Registrant had breached a fundamental tenet of the profession.

111. Mr Stevens informed the Panel that he did not intend to put forward any submissions for the Panel not to find impairment in relation to the Public Component. He submitted that this reflected the seriousness with which the Registrant regards his conduct.

112. Mr Stevens stated that he would therefore focus his submissions on the Personal Component of impairment. He submitted that this amounted to an assessment by the Panel of the risk of recurrence of the misconduct. He submitted that the Registrant’s conduct was capable of remediation, had been remedied and that there was no risk of recurrence.

113. Mr Stevens submitted that the Panel should view the misconduct in context. He reminded the Panel that the Registrant has no previous regulatory findings against him. In addition, he reminded the Panel that the Registrant has continued to practise as a physiotherapist without restriction in the two and a half years since these matters occurred.

114. Mr Stevens referred the Panel to the positive testimonials contained in the Registrant’s bundle, and in particular, the reference from his current employer.

115. Mr Stevens submitted that these proceedings have had a salutary effect on the Registrant. Furthermore, the Registrant has significant, embedded insight as evidenced by the admissions made during the disciplinary proceedings, his written statement and the evidence he gave during this hearing. He submitted that the Registrant has been through a meaningful period of self-reflection and has expressed genuine remorse for his actions.

116. Mr Stevens submitted that the Panel should adopt a nuanced approach when considering dishonesty and that it would be wrong to characterise the Registrant as inherently dishonest.

117. The Panel accepted the advice of the Legal Assessor.

118. In reaching its decision, the Panel was mindful that the question of impairment is a matter for the Panel’s professional judgement. The Panel noted that it was required to determine whether the Registrant’s fitness to practise is currently impaired. The Panel had regard to the decision in the case of Meadow v General Medical Council [2007] 1 All ER:
“in short, the purpose of FTP proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FTPP thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past”

119. The Panel also had regard to the HCPTS Practice Note “Fitness to Practise Impairment” (December 2019) and noted the two components that the Panel must consider when determining whether or not the Registrant’s fitness to practise is currently impaired.

120. The Panel first considered the personal component. In accordance with the decision in the case of Cohen v GMC (2008) EWHC 581, the three key questions for it to determine were:

• Is the Registrant’s misconduct remediable;

• Has the Registrant already taken remedial action; and

• Is the misconduct likely to be repeated?

121. The Panel noted that cases involving allegations of dishonesty encompass a wide spectrum of conduct and that therefore it had to carefully consider the particular circumstances of this case and the nature of the dishonesty involved. The Panel has previously determined that it found the Registrant to be credible and straightforward when giving evidence to the Panel. The Panel was satisfied that the Registrant’s dishonesty, on the two occasions when he gave untrue answers to MQ and CM on 6 and 14 November 2018, was as a result of the Registrant feeling flustered and under pressure. The Panel noted that there was no suggestion that the Registrant was motivated by financial gain and that he made full admissions during the formal disciplinary process conducted by Ascenti between November 2018 and January 2019. In the particular circumstances of this case, the Panel was satisfied that the Registrant’s dishonesty was at the lower end of the scale and was not indicative of him being fundamentally dishonest.

122. The Panel was therefore of the view that the answer to the first of these questions was that the Registrant’s misconduct, including the dishonesty aspect of it, was capable of remediation.

123. The Panel next considered whether the Registrant has taken remedial action. The Panel noted that the Registrant has been working as a physiotherapist at Proactive Physiotherapy (“PPC”) since 31 January 2019. The Panel had the benefit of a testimonial dated 23 April 2021 from ZA, the director of PPC. The Panel noted that ZA is a physiotherapist registered with the HCPC. The Panel further noted that during the last two and a half years, the Registrant has practised as a physiotherapist without any restrictions on his HCPC registration. In the testimonial, ZA stated:
“The Registrant has been working at the clinic since January 2019, I can confirm I have no concerns with him as he has continued to remain professional throughout his time at the clinic.
He continues to keep accurate treatment records and completes his SOAP notes within the appropriate time frame. To date I have no concerns with his record keeping.
Since working at my clinic he has treated all service users and careers with respect and respected their privacy and dignity and where appropriate in decisions about the care, treatment or other services to be provided. He has always gained consent prior to assessment or treatment conducted. He has communicated effectively and appropriately with all service users and carers, he always takes account of all service users and carers needs and wishes.
The Registrant works in a multidisciplinary team, he has gained knowledge and experience working as a team for the benefit of service users. He shares relevant information where appropriate with colleagues involved within the care treatment provided by the service user. He has delegated appropriately and always asked if in doubt of any knowledge, skills and experience when carrying out an effective treatment programme safely and effectively.
The Registrant has always been open and honest and always asked for help, advice or supervision to make sure treatment and care is provided effectively. He communicates well with the team and understands the need to engage with all team members in planning and evaluating diagnostics and therapeutic interventions to meet service users’ needs and goals. He continues to carry out reflective practice and other methods of review.
The Registrant has remained honest throughout his employment at The Proactive Physiotherapy Clinic and I have no concerns to date. He has had no complaints from staff or patients and I have only ever received positive feedback from patients regarding his treatment.”

124. In the Panel’s view, this testimonial provided compelling evidence that the Registrant has taken remedial steps in relation to his misconduct and demonstrated that he has been able to practise safely. In reaching this conclusion, the Panel also had regard to the evidence of reflection contained in the Registrant’s written statement dated 13 May 2021, his CPD and training record, and the further two testimonials contained in the Registrant’s bundle.

125. Turning to the third question posed in the case of Cohen, the Panel took into account that the Registrant has no previous regulatory findings recorded against him and that he has practised as a physiotherapist for the last two and a half years without any further regulatory concerns. The Panel was also satisfied that the Registrant, in his written and oral evidence, showed insight into his conduct and has demonstrated genuine remorse for his actions. The Panel was therefore satisfied that the Registrant was unlikely to repeat his misconduct.

126. For the above reasons, the Panel decided that a finding of current impairment was not required in relation to the Personal Component.

127. The Panel next considered the Public Component of impairment. The Panel noted that this has three aspects to it, namely protection of the public, maintaining professional standards and maintaining public confidence in the profession.

128. The Panel adopted the approach as set out by Cox J in the case of CHRE v Grant [2011] EWHC 927 (Admin) in which she stated:

“In determining whether a practitioner’s fitness to practice is impaired by reason of misconduct, the panel should generally consider not only whether the practitioner constitutes a present risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.”

129. In Grant, Cox J also cited with approval the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her 5th Shipman report:

“Do our findings of fact in respect of the doctor’s misconduct, deficient professional practice, adverse health, conviction or caution show that his/her fitness to practice is impaired in the sense that he or she

(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 medical 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 be liable to acts of dishonestly in the future.

130. The Panel was satisfied that although there is no evidence that any patient was harmed, patients were nevertheless put at risk of unwarranted harm. The Registrant treated patients using an electric massage machine that was not the property of, or approved by, his employer. Furthermore, the Registrant had failed to take adequate steps to check that it was safe to use, when the machine had not been the subject to Portable Appliance Testing.

131. The Panel also determined that by acting dishonestly, the Registrant had breached a fundamental tenet of the profession. In the Panel’s view, members of the public are entitled to expect that physiotherapists will act with honesty and integrity. By failing to do so, the Registrant had also brought the profession into disrepute.

132. For these reasons, the Panel concluded that the Registrant acted in such a way that all four limbs of Dame Janet’s formulation for determining impairment were engaged.

133. The Panel was therefore satisfied that a finding of current impairment is required to uphold proper professional standards and maintain confidence in the profession.

134. In conclusion, the Panel decided that the Registrant’s fitness to practise is currently impaired on the Public Component.

Decision on Sanction

135. The Panel next considered what if any sanction to impose.

136. The Panel received heard submissions from Mr Tarbert. He referred the Panel to the HCPC Sanctions Policy (2019) (“the Sanctions Policy”) and to the approach Panels should adopt when considering sanction as set out within that policy. He submitted that ultimately, what if any sanction to impose was a matter for the Panel to determine. However, as this was a serious case involving dishonest conduct on the part of the Registrant and a breach of trust, insofar as the Registrant deliberately failed to follow management instructions in relation to the use of the machine, it was too serious for the Panel to take no further action. Mr Tarbert, then took the Panel through the sanctions available to the Panel referring to the relevant paragraphs of the Sanctions Policy.

137. Mr Stevens submitted that having regard to the particular facts of this case, and the Panel’s previous findings, the appropriate and proportionate sanction was a Caution Order. He submitted that a Conditions of Practice Order was not appropriate having regard to the fact that the Panel had found the Registrant’s fitness to practise to be impaired only on the Public Component.

138. Mr Stevens submitted that although the case involves dishonesty, a Suspension Order, even for a short period of time would be disproportionate. He submitted that given the Panel’s finding that the dishonesty in this case was at the lower end of the scale, and that the Registrant has practised safely without restriction for two and a half years since these matters occurred, the public interest could be met by a Caution Order and did not require his removal from practice even for a short period of time.

139. The Panel accepted and applied the advice of the Legal Assessor who referred the Panel to the HCPC Sanctions Policy (March 2019) and to the cases of Bolton v The Law Society [1993] EWCA Civ 32, GMC v Patel [2018] EWHC (Admin) 171 and PSA v GDC and Hussain [2019] EWHC 2640.

140. In reaching its decision on sanction, the Panel has again given careful consideration to all of the evidence, to the submissions of both counsel, and to its findings at the fact-finding, grounds and impairment stages of this hearing.

141. The Panel reminded itself that the primary purpose of sanction is to address public safety, to uphold proper professional standards and to maintain public confidence in the profession and in the regulatory process.

142. The Panel had regard to the Sanctions Policy and was mindful of the need to ensure that any sanction imposed is both reasonable and proportionate, properly balancing the interests of the Registrant against the need to protect the public, maintain professional standards and maintain public confidence in the profession.

143. The Panel noted that it should impose no greater restriction on the Registrant’s ability to practise as a physiotherapist than is absolutely necessary to protect the public and to address the wider public interest aspects of the case. In doing so, the Panel was mindful that it found the Registrant’s fitness to practise to be currently impaired on the Public Component because of his dishonesty. The Panel therefore considered each of the available sanctions in ascending order before determining the appropriate and proportionate sanction in this case.

144. The Panel has already found that the Registrant’s conduct amounted to serious professional misconduct involving numerous breaches of the applicable HCPC Standards. In accordance with the HCPC Sanctions Policy, the Panel went on to consider what, if any aggravating and mitigating factors are present in this case.

145. In relation to aggravating factors the Panel identified the following:

• The Registrant put patients at risk of harm. The Panel acknowledged that there is no evidence of actual harm to patients and that the Registrant did not intend to cause harm. The Panel also noted that the Registrant stated that he had used an electric massage machine in the past. However, the Registrant failed to take adequate steps to ensure that the machine was safe to use and that it had been PAT tested in accordance with Ascenti’s health and safety policy;
• The Registrant breached the trust of his employer by deliberately failing to follow management instructions. The Registrant received an email from CS on 25 October 2018 that unequivocally instructed him not to use the machine. Notwithstanding this instruction, the Registrant continued to use the machine; and
• The Panel has found that the Registrant’s conduct in particular 4 of the Allegation was dishonest. The Panel found that the Registrant did not tell the truth to MQ on 6 November 2018 and to CM on 14 October 2018.

146. In respect of mitigating factors, the Panel identified the following:

• The Registrant has shown genuine remorse and has apologised for his actions;
• The Registrant made early and full admissions during the formal disciplinary process conducted by Ascenti;
• The Registrant admitted all of the facts found proved by the Panel in this hearing. He also admitted that his actions amounted to misconduct;
• Although the misconduct occurred on more than one occasion, it can be characterised as a single episode, which occurred over a short period of time;
• The Registrant has demonstrated in his witness statement and in his evidence to the Panel that he has good insight into his misconduct;
• The Registrant has taken appropriate steps to remediate his misconduct;
• The Registrant has demonstrated over the last two and a half years that he is safe to practise as a physiotherapist without any restriction on his registration;
• The Registrant has provided evidence of his good practice and character from his current employer ZA. In addition, the Registrant has provided two further positive testimonials;
• The Registrant is of previous good character and has no previous regulatory findings recorded against him;
• The Panel has determined that the risk of repetition of the misconduct is low and that there is therefore no on-going risk to patient safety; and
• The Panel had regard to the Registrant’s motivation to use the machine. The Panel noted that the Registrant was involved in a road traffic accident and suffered whiplash. As a result, he was absent from work on sick-leave for two weeks. When he returned to work, he continued to experience pain and his line manager told him that he could use anything to help him. On 24 July 2018, the Registrant therefore purchased some special tools from Amazon including trigger point tools. The Panel accepted that this is also what led the Registrant to use the machine that was already located in one of the clinics used by Ascenti.

147. Given that the Panel has found that the Registrant acted dishonestly, the Panel had particular regard to paragraphs 55-58 of the Sanctions Policy. It also had careful regard to the advice provided by the Legal Assessor and to the relevant parts of the judgements of the three cases he referred it to.

148. The Panel was mindful that dishonesty incorporates a wide range of behaviour and wrong-doing. The Panel has already determined that in its view, the Registrant’s dishonesty was at the lower end of the scale. (See paragraph 121 supra). The Panel reached this decision on the basis that the Registrant’s actions, when he did not tell the truth to MQ and CM, were not premeditated. Furthermore, they were not motivated by financial gain. The Panel was satisfied that on the two occasions that he was asked about the machine, namely on 6 and 14 November 2018, the Registrant was flustered and under pressure. The Panel noted, in particular, the evidence of CM. He told the Panel that when he telephoned the Registrant and asked him if he had used the machine on any of the sample of patients, he had to double check his response because the Registrant’s tone of voice “didn’t sound like a concrete answer.” The Panel was therefore satisfied that it could properly draw the inference that at the time the Registrant felt uncomfortable being untruthful to CM. The Panel also noted that as soon as the matter escalated into a formal disciplinary investigation, the Registrant made full admissions during the interview held thirteen days later on 27 November 2018. Thereafter, the Registrant has continued to acknowledge and admit his dishonesty. The Panel were therefore satisfied that there were no deep-seated attitudinal issues and that it would be wrong to characterise the Registrant as being inherently dishonest.

149. The Panel next considered what, if any sanction it should impose.

150. The Panel first considered taking no further action, but decided that the misconduct found proved in this case, involving dishonesty, was too serious for this to be an appropriate or proportionate course of action. In the Panel’s view, it would not mark the wider public interest concerns identified.

151. The Panel next considered Mediation. Mediation is intended to resolve issues between the Registrant and another party. The Panel determined that this would not be an appropriate sanction given the circumstances of this case.

152. The Panel then considered whether a Caution Order would be the appropriate and proportionate sanction. The Panel had regard to the guidance provided at paragraphs 101 and 102 of the Sanctions Policy, which provide:

“101. A caution order is likely to be an appropriate sanction for cases in which:
• the issue is isolated, limited, or relatively minor in nature;
• there is a low risk of repetition;
• the registrant has shown good insight; and
• the registrant has undertaken appropriate remediation.
102.A caution order should be considered in cases where the nature of the allegations mean that meaningful practice restrictions cannot be imposed, but a suspension of practice order would be disproportionate. In these cases, panels should provide a clear explanation of why it has chosen a non-restrictive sanction, even though the panel may have found there to be a risk of repetition (albeit low).”

153. Given the Panel’s findings in relation to the nature of the Registrant’s dishonesty, and the short period of time in October and November 2018 during which these matters occurred, the Panel was satisfied that it can properly be viewed as isolated and at the lower end of the scale. In addition, the Panel has previously determined that there is a low risk of repetition, that the Registrant has shown good insight, and that he has undertaken appropriate remediation. In these circumstances, applying the guidance in paragraph 101 of the Sanctions Policy, the Panel was satisfied that all of the factors identified in the bullet points apply to the Registrant’s case.

154. Insofar as paragraph 102 is concerned, the Panel concluded that this was not a case where appropriate conditions of practice could be formulated. There are no competency or capacity issues raised in this case. Indeed, the Panel has accepted the evidence of the Registrant’s current employer, ZA, who has provided a written testimonial to the Panel confirming that the Registrant has practised safely, without any restriction on his registration, since he joined PPC on 31 January 2019.

155. The Panel therefore went on to consider whether it would be appropriate or proportionate to impose a Suspension Order. In doing so, it had regard to paragraph 121 of the Sanctions Policy. The Panel noted that one of the factors listed as being indicative of when a Suspension Order would be appropriate is:
“ there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”
However, in this case, the Panel has determined that the Registrant has already demonstrated that he has remedied his failings/ misconduct.

156. In the Panel’s view, taking all of the above matters into consideration, it would be disproportionate to impose a suspension order, even for a short period of time.

157. The Panel was therefore satisfied that the wider public interest considerations arising from the Panel’s finding of impairment on the Public Component, could be met by the imposition of a Caution Order. The Panel was satisfied that its findings of misconduct, impairment and the imposition of a Caution Order would be an indelible mark on the Registrant’s previously unblemished regulatory record, and would be sufficient to maintain public confidence in the profession, uphold professional standards and maintain public confidence in the regulatory process.

158. The Panel next considered the appropriate length of the Caution Order. The Panel had regard to paragraph 103 of the Sanctions Policy, which provides:
“103. The panel can impose a caution order for any period between one and five years. As discussed earlier, the panel should take the minimum action required to protect the public and public confidence in the profession, so should begin by considering whether or not a caution order of one year would be sufficient to achieve this. It should only consider imposing the caution order for a longer period where one year is insufficient.”

159. The Panel concluded that a Caution Order for a period of one year would be sufficient to mark the public interest in this case.

Order

ORDER: That the Registrar is directed to annotate the Register entry of Mr Mustafa Naamani for a period of one year from the date this order comes into effect.

Notes

The Order imposed will apply from 23 June 2021 if no appeal is made.

Hearing History

History of Hearings for Mr Mustafa Naamani

Date Panel Hearing type Outcomes / Status
24/05/2021 Conduct and Competence Committee Final Hearing Caution