Mr Balaji Ramaswamy Thangaraj

Profession: Physiotherapist

Registration Number: PH96040

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 20/09/2021 End: 17:00 24/09/2021

Location: This hearing will take place virtually

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

Allegation: (as amended)


As a registered Physiotherapist (PH96040) your fitness to practise is impaired by reason of misconduct and/or lack of competence, in that:

1. On 19 June 2019, you provided treatment following a subacromial decompression and rotator cuff repair operation and you:


a) said to Patient A ‘you will be experiencing pain today’, or words to that effect.

b) did not explain the treatment to Patient A and/or proceeded without their consent.

c) applied unreasonable force to Patient A’s right arm, causing severe pain.

d) did not adequately monitor Patient A’s symptoms during treatment.

 

2. Between 22 May 2019 and 14 June 2019, you provided treatment following a rotator cuff operation and you:

 

a) did not appropriately assess Patient B’s symptoms before commencing treatment.

b) applied unreasonable force to Patient B’s left arm, causing severe pain.

c) laughed at Patient B when they indicated they were in pain

d) did not adequately monitor Patient B’s symptoms during treatment.

e) inappropriately asked Patient B’s 5-year old grandchild ‘would you like to come and see your grandad crying’ or words to that affect.

f) used methods which prevented Patient B from completing their home exercises due to severe pain.

 

3. The matters set out in particulars 1 - 2 above constitute misconduct and/or lack of competence.

 

4. By reason of your misconduct and/or lack of competence, your fitness to practise is impaired.

 

Finding

Preliminary Matters:


Amendment of the Allegation

1. At the commencement of the hearing the Presenting Officer applied to amend the particulars of the Allegation made by the HCPC against the Registrant. Notice of the proposed amendments had been given to the Registrant by a letter dated 4 November 2020. In relation to both patients the Allegation as referred by the Investigating Committee included contentions that the Registrant’s actions hindered their recovery. Furthermore, in relation to Patient A it was alleged that the Registrant did not record in the patient records the pain she was suffering. The HCPC sought the deletion of these elements.


2. The HCPC sought the amendment on the basis that the investigations that had been conducted into the case did not result in evidence being obtained that would enable these factual elements of the case to be supported. The HCPC’s application to amend was not opposed by the Registrant.


3. The Panel approached the decision it was required to make by acknowledging that it had an obligation to ensure that the deletion of these elements would not represent an “under prosecution” of the case against the Registrant. Having carefully considered the matter the Panel concluded that basis for the HCPC’s application was correct; there was no evidence in the hearing bundle to support the elements of the case it was proposed should no longer be advanced. In particular, the evidence before the Panel did not enable it to reach any findings as to the causative link between the actions of the Registrant and any enduring or future difficulties experienced by the patients concerned. The Registrant would not be prejudiced by the deletion. Accordingly, the Panel acceded to the application to amend. The Allegation as it is set out above is as amended.


The Registrant’s response to the Allegation


4. When invited to respond to the Allegation, Mr Buxton on behalf of the Registrant stated that the entirety of the factual elements of the Allegation, namely particulars 1(a) to (d) inclusive and 2(a) to (f) inclusive, were not admitted.


Background:


5. The Registrant is registered in the Physiotherapy part of the HCPC Register. Between 21 May 2019 and 21 June 2019, he was engaged on a locum basis to work as a Senior Physiotherapist at the Nuffield Hospital at Cambridge (hereafter “the Hospital”).


6. In about March 2018 Patient A experienced right bicep pain. She then attempted a number of different therapies to address the problem she had, but eventually underwent surgery at the Hospital on 12 May 2019. The surgery was an arthroscopic decompression and rotator cuff repair to the right shoulder. Post-operative physiotherapy was arranged, and in that connection she had an appointment with the Registrant on 19 May 2019, a week after the surgery. Particulars 1(a) to (d) of the Allegation include the complaints made by Patient A shortly after the date of her appointment with the Registrant. Patient A did not have any further sessions with the Registrant after 19 May 2019.


7. Patient B underwent surgery at the Hospital on 1 May 2019. The surgery was an arthroscopic decompression and rotator cuff repair to the left shoulder. Patient B had suffered an accident at home approximately a year earlier and alternative treatments in the meantime had not resolved the problems he was experiencing with his left shoulder. Post-operative surgery was arranged for Patient B. The first such appointment was on 17 May 2019 when he saw a Physiotherapist other than the Registrant. However, his second Physiotherapy session was with the Registrant on 22 May 2019, and he subsequently attended upon him on a further three occasions, namely on 29 May 2019, 6 June 2019 and 14 June 2019. Patient B’s wife was in the habit of driving Patient B to his physiotherapy appointments. On one such occasion Patient B was looking after her infant grandson who accompanied her and was sitting in the waiting area while his grandfather was being treated by the Registrant. It is alleged that at some stage during the physiotherapy session the Registrant left the treatment room to go to a drinks machine to get some water for Patient B, and when he passed Patient B’s wife and the child he spoke the words alleged in particular 2(e) to the child.


Decision on Facts:


8. The HCPC called five witnesses to give evidence before the Panel. They were:


• Patient A.

• Patient B.

• Patient B’s wife.

• JO, a Senior Physiotherapist working at the Hospital in whose name the referral to the HCPC was made, albeit that she had not direct personal involvement in any of the matters alleged.

• JH, an employee of Nuffield Health who worked in another hospital where he was Outpatient Lead Physiotherapist. He was also the Regional Clinical Lead and was asked to undertake a root cause analysis in relation to Patient A’s complaint.


9. The Registrant gave evidence before the Panel. In addition to a full witness statement prepared by him, the Panel was provided with a bundle of documents prepared on behalf of the Registrant that contained positive testimonials and evidence of Continuing Professional Development undertaken by him.


10. In reaching its decision, the Panel has had regard to the totality of the evidence presented to it. That evidence included the oral testimony of the witnesses who gave evidence during the hearing, but also the witness statements made by each of them. Additionally, the Panel was provided with a bundle of documentary exhibits extending to some 237 pages. Included in these documentary exhibits were the clinical records relating to the two patients concerned in this case.


11. The Panel heeded all aspects of the advice it received from the Legal Assessor as to the proper approach to the decisions it was required to make. There is one particular issue to be mentioned before the detail of the findings are described, and that relates to the issue of whether the evidence of Patient A had any bearing on the findings relating to Patient B, and vice versa. The Panel kept in mind that Patient B’s complaint was not only made some months after the treatment he received from the Registrant, but also that it followed a suggestion that he should do so from another Physiotherapist whom he saw after his sessions with the Registrant came to an end. However, there was no reason to suppose (and it was not suggested to the patients by Mr Buxton in cross-examination) that either patient had knowledge of the other or of the detail of criticisms advanced by the other. However, so as not to run the risk of unfairness to the Registrant in attributing undue weight to the fact that there had been two complaints by unrelated patients, the Panel decided that fairness dictated that initially it should assess the specific particulars by reference to the evidence of the particular patient relevant to those contentions. Having taken that approach, for the reasons that will be given below, it was not necessary for the Panel to assess whether mutual support was provided, by the evidence of one patient to the other.


Particulars 1(a) to (d) - overview.


12. On the fundamental issue underpinning these particulars, namely whether the Registrant used unreasonable force when examining Patient A on 19 June 2019, there was a conflict between the evidence given by Patient A and the Registrant. The Panel recognised that there were respects in which Patient A appeared to be somewhat intransigent in maintaining her account, whilst in other respects stating that she had no recollection. However, after careful consideration of the contending accounts, the Panel concluded that on the fundamental point of unreasonable force being used, Patient A’s account was to be preferred to that of the Registrant.


13. Particular 1(a). Whilst standing by her account that words to the effect alleged in this particular spoken by the Registrant, she nevertheless conceded that a different view as what was intended by them could be taken to the view she had taken. The Panel does not find that the Registrant spoke the words as some sort of threat as to what he intended to do, and that they might well simply have been spoken as an acknowledgement by him that as it was only a week since Patient A underwent surgery, she would be suffering pain as she entered the treatment room. Particular 1(a) is not proven.


14. Particular 1(b). In relation to this particular the Panel considered that it was significant that Patient A is a nurse and therefore a person who would be familiar with the concept of consent given by patients in the context of clinical interventions. The Panel accepted the evidence of Patient A that the Registrant did not explain to her what he proposed to do. Although the appointment may have been intended to be an assessment rather than a treatment session, nevertheless the request that Patient A should perform certain movements with her right arm, and the movements he made with her arm were matters that should have been, but were not explained, to her. It follows that what occurred did so without the informed consent of Patient A. Particular 1(b) is proven.


15. Particular 1(c). As stated in paragraph 12 above, the Panel accepted the evidence of Patient A that unreasonable force was applied to Patient A’s arm. The Panel accepted her evidence that she was angry with herself for allowing the Registrant to move her arm as he did and for not calling a halt to the session because of the pain she experienced. Particular 1(c) is proven.


16. Particular 1(d). The Panel was satisfied that Patient A made it clear to the Registrant how painful she was finding what took place. Against that background the Panel also found that the use of unreasonable force occurred in circumstances where there was inadequate monitoring of Patient A’s symptoms during the session. Particular 1(d) is proven.


Particulars 2(a) to (f) – overview.


17. A conflict between the Registrant and Patient B also arose in relation to the degree of force used during treatment in the case of Patient B. The Panel found Patient B to be a fair-minded man who spoke positively of the Registrant’s personality. It found him to be a robust individual and one who would not be prone to complain unnecessarily or exaggerate his problems. In short, on the fundamental issue of unnecessary force used during treatment sessions, the Panel preferred the evidence of Patient B to that of the Registrant.


18. Particular 2(a). The Panel noted that there were some respects on which the notes made by the Registrant following treatment sessions with Patient B were not as complete as they might have been. For example, there was no record of the visual analogue pain scale or of the range of passive movement. However, this is not an allegation of poor record keeping, but of not appropriately assessing, and having considered all the available evidence the Panel finds that the HCPC has not discharged the burden of proving that Patient B’s symptoms were not appropriately assessed before treatment commenced. Particular 2(a) is not proven.


19. Particular 2(b). The Panel finds that treatments provided by the Registrant did indeed result in Patient B suffering severe pain. The Panel accepted Patient B’s evidence that such was the pain that he swore and tears formed in his eyes. The Panel also accepted the pain Patient B experienced was caused by the application of unreasonable force by the Registrant. Particular 2(b) is proven.


20. Particular 2(c). In his evidence before the Panel, Patient B accepted that the Registrant did not laugh out loud, and that the laugh he noted might well have been a nervous reaction on the part of the Registrant. The Panel is satisfied that the Registrant was not laughing at the expense of Patient B. Particular 2(c) is not proven.


21. Particular 2(d). As with the relationship between particulars 1(c) and 1(d), so too in the judgment of the Panel, does particular 2(d) follow 2(b). The use of unreasonable force occurred because Patient B’s symptoms were not adequately monitored during treatment, and the Panel is satisfied that Patient B communicated to the Registrant at the time the discomfort and difficulties he was experiencing. Particular 2(d) is proven.


22. Particular 2(e). It is not in issue that during the final treatment session on 14 June 2019, the Registrant left the treatment room to go to the waiting area to get a drink of water for Patient B, and that when he passed through the waiting area he spoke to Patient B’s wife or her infant grandson who was with her. It is also not disputed by the Registrant that he said something about the boy’s grandfather. However, although she said that she was somewhat confused by what the Registrant said, Patient B’s wife nevertheless accepted that she could have misunderstood what she had believed the words to be. In the judgment of the Panel the Presenting Officer was correct not to advance any positive case in relation to this particular in his closing submissions. Particular 2(e) is not proven.


23. Particular 2(f). The Panel accepted Patient B’s evidence that following treatment provided by the Registrant such was the discomfort he suffered he was unable to undertake the recommended exercises for some days after treatment with the Registrant and was only able to undertake them shortly before the following session. The Panel accepts that a patient might well experience some restriction in their ability to undertake exercises immediately following physiotherapy treatment, but the extent of Patient B’s inability to undertake exercises for some days was the consequence of the unreasonable force used during treatment. Particular 2(f) is proven.


Decision on Grounds:


24. The Panel’s decisions on the facts has the consequence that it is required to consider whether particulars 1(b), 1(c), 1(d), 2(b), 2(d) and 2(f) should lead to a finding of misconduct and/or lack of competence.


25. The evidence received by the Panel was that the Registrant is a well-qualified and experienced Physiotherapist. Furthermore, the findings could not be said to cover a fair sample of his professional work. For these reasons the Panel concluded that no question of lack of competence arose.


26. With regard to misconduct, the Panel first considered whether it was appropriate to aggregate all of the proven particulars for the decision to be made. It did for two reasons. First, they essentially related to the same issue, the use of excessive force and the circumstances surrounding that happening, albeit manifested with regard to two patients. Secondly, the Panel concluded that none of the proven particulars was too insignificant fairly to be included in an overall finding.


27. The Panel then considered whether it was appropriate to find that the Registrant knew of the standard to which he should have been working. It concluded that he did, because of his initial Physiotherapy qualification and eight years’ experience in the UK at the time of the incidents. The Panel noted that he had also studied for an MSc qualification in Applying Physiotherapy (Musculoskeletal Speciality) between 2008 and 2010.


28. The Panel next considered whether there had been breaches of the standards to which the Registrant was required to practise by reason of his HCPC registration. The Panel found that there were breaches of two sets of standards, namely:


The Standards of conduct, performance and ethics, and in particular:


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


• 2.2 - “You must listen to service users …. and take accounts of their needs and wishes.”


• 6.1 - “You must take all reasonable steps to reduce the risk or harm to service users, carers and colleagues as far as possible.”


The Standards of proficiency for Physiotherapists:


• 2.1 - “understand the need to act in the best interests of service users at all times;


• 2.3 - “understand the need to respect and uphold the rights, dignity, values, and autonomy of service users including their role in the diagnostic and therapeutic process and in maintaining health and wellbeing”;


• 2.4 - “recognise that relationships with service users should be based on mutual respect and trust, and be able to maintain high standards of care even in situations of personal incompatibility;


• 2.6 - “understand the importance of and be able to obtain informed consent”;


• 2.7 - “be able to exercise a professional duty of care”;


• 12.8 - “be able to evaluate intervention plans to ensure that they meet the physiotherapy needs of service users, informed by changes in circumstances and health status”.


29. The fact that there were breaches of the identified standards was a relevant, but not determinative, factor in deciding whether misconduct had been established. However, when the Panel considered whether the findings represented conduct that fell well below the standard to which the Registrant was able to practise and should have been practising, it concluded that they did. For that reason, the Panel found misconduct to be established.


Decision on Impairment:


30. The Panel accepted the importance of addressing both the personal and public components of the concept of current impairment of fitness to practise.


31. In relation to the personal component, the Panel paid full regard to the Registrant’s written reflections, to his oral evidence and to the positive testimonial evidence relating to work he has undertaken since the incidents being considered by the Panel occurred, albeit that the work was with inpatients as opposed to outpatients, such as Patient A and Patient B. The Panel also noted that he proffered an apology and acknowledged that his inter-personal skills required attention. The Panel also accepted that the Registrant is an intelligent and well-qualified practitioner, and that he is a person who would wish to offer the best possible care to the patients whom he treats. That said, the fact remains that in the hearing there was an incomplete acceptance by the Registrant that he applied unreasonable force when treating two patients within a few weeks of one another. The Panel has described his acceptance as “incomplete”, but it was not wholly absent; the Registrant showed developing insight in relation to his answers to questions from Mr Buxton about the impact his actions would have on patients, the profession and the public. Furthermore, his insight was also evidenced in reply to questions from the Panel.


32. The Panel believes that it had a good opportunity to assess the Registrant over the course of a number of days, including the opportunity to assess him when he gave his evidence. Applying that assessment, the Panel does not find that there is an appreciable risk that he will repeat actions of the type the Panel has found. However, in circumstances where there is a residual failure to acknowledge all that occurred and where the insight has developed at a relatively late stage, the Panel has come to the conclusion that it is necessary to make a finding of impairment of fitness to practise to underline the importance of not using excessive force and heeding the reaction of patients during treatment sessions and modifying interventions accordingly.


33. The Panel decided that there are no factors beyond those identified in relation to the personal component that would require a finding of impairment of fitness to practise to satisfy the public component. In the judgement of the Panel the finding of misconduct is sufficient to declare proper professional standards and to reassure the public that departure from those standards will not be overlooked. The public interest considerations require no further restriction on the ability to practise than demanded as a consequence of the finding of personal component impairment.


34. The consequence of the finding that the Registrant’s fitness to practise is currently impaired is that the Panel must proceed to consider the issue of sanction.


Decision on Sanction:


35. After the Panel handed down its written determination on the facts, statutory grounds and current impairment of fitness to practise, the parties were allowed time to consider the document before making submissions on sanction.


36. On behalf of the HCPC, the Presenting Officer made submissions concerning the proper approach to the sanction consideration and invited the Panel to have regard to the HCPC’s Sanctions Policy. He stated that the HCPC did not submit that there were any aggravating factors that the Panel should consider. He submitted that it would be unlikely that the Panel would consider it appropriate to conclude the case without imposing a sanction but did not submit that any more restrictive sanction than a caution order should be imposed.


37. On behalf of the Registrant, Mr Buxton submitted that a caution order would be an appropriate sanction in the circumstances and invited the Panel to make such an order for a period of 12 months.


38. The Panel accepted the advice it received from the Legal Assessor on the proper approach to the imposition of a sanction. Accordingly, the Panel accepted a sanction is not to be imposed to punish, but rather should be the least restrictive outcome consistent with the need to protect the public, to declare and uphold proper professional standards and to maintain public confidence in the Physiotherapy profession and the regulation of it. The Panel was required first to consider whether the finding that the misconduct allegation is well founded requires the imposition of any sanction. If the answer to that question is that a sanction is required, then the available sanctions should be considered in an ascending order of seriousness. The Panel confirms that it has approached the decision in that manner and has fully considered the terms of the HCPC’s Sanctions Policy in doing so.


39. The Panel began its deliberations by considering whether there are any aggravating factors. The conclusion of the Panel was that there were no aggravating factors, a finding that does not detract from the seriousness of the findings or the experiences of the two patients concerned. When the Panel considered whether there were matters that should be considered in favour of the Registrant, the fact that there have been no previous regulatory findings against him, the remorse and apology he has expressed, his developing insight and the positive testimonial evidence from his present workplace are all relevant.


40. When the Panel considered whether it was necessary to impose a sanction, the answer was that it is; what occurred was too serious to result in no further action being taken. However, when considering the available sanctions, the Panel took account all that was said in relation to impairment of fitness to practise and in the preceding paragraph. It followed that the sanction would need to reflect the fact that the Registrant is a well-qualified and experienced Physiotherapist who presents a low risk of repeating behaviour of the sort that has been found against him.


41. Consistent with the approach already identified the Panel first considered whether a caution order would be appropriate. The Panel heeded the terms of the Sanctions Policy, and in particular paragraph 101 of it. The Panel considered the circumstances of the present case by reference to the factors that are suggested in that paragraph as being those that would make a caution order appropriate. The Panel concluded that it could be said that while not minor in nature, the findings could fairly be said to represent isolated and limited misconduct as it concerned the same behaviour with two patients over a short period of time. For the reasons already described, the risk of repetition is low, and the Registrant has shown insight, which has been developing. So far as the final factor mentioned in paragraph 101 is concerned, namely appropriate remediation, in the view of the Panel this is not a case where the Registrant’s skills were deficient; rather, it is a case where, with regard to the two patients concerned, the Registrant did not apply the knowledge he already had, and, for the reasons explained, the Panel does not consider that he will repeat that failing.


42. It followed from these findings that the Panel considered that this is a case in which a caution order could properly be imposed. However, in order to test that tentative view the Panel considered whether a conditions of practice order would be appropriate. The Panel concluded that the imposition of conditions of practice would not be necessary. Quite apart from the difficulty of framing appropriate conditions that would be consistent with autonomous practice, the more important consideration was that conditions would not be required to ensure that the Registrant does not depart from proper professional practice in the future.


43. Having confirmed that a caution order is indeed the appropriate sanction in his case, the Panel then considered what the length of the order should be. The Panel considered that it should be for a longer period than the minimum length of 12 months. The Panel’s view was that it should be for 2 years, but a longer period is not required.

Order

That the Registrar is directed to annotate the register entry of Balaji Ramaswamy Thangaraj with a caution which is to remain on the register for a period of 2 years from the date this order comes into effect.

Notes


Right of Appeal

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

Hearing History

History of Hearings for Mr Balaji Ramaswamy Thangaraj

Date Panel Hearing type Outcomes / Status
20/09/2021 Conduct and Competence Committee Final Hearing Caution