Mrs Monika Koul Bawa

Preliminary Matters

Application to amend the Allegation

1. Mr Foxsmith applied to amend the date in Particular 1(a) from “18 September 2019” to “20 September 2019”.
 
2. Ms Shah did not oppose the application.
 
3. The Panel accepted the advice of the Legal Assessor. The Panel concluded that the proposed amendment reflected the information presented in the bundle and did not alter the substance of the allegation. The Panel concluded that it would be just to allow the amendment.
 
4. Accordingly, the Panel allowed the amendment.
 
Background

5. At the time of the Allegation the Registrant worked as a registered Physiotherapist for Riverview Therapies (“the Practice”), a family practice. The Registrant’s husband, Person A, was also a trained Physiotherapist.
 
6. On 13 September 2017, Person A became subject to an Interim Conditions of Practice Order, imposed by the HCPC. This was varied on 30 January 2019 to an Interim Suspension Order. That Order was current at the time of the Allegation. It was accepted by the Registrant that she was aware of existence of the Order at all relevant times.
 
7. Service User 1 (“SU1”) was referred to the Practice, by a company known as “Rehab Direct”, in connection with an insurance claim resulting from injuries incurred by her in a road traffic accident.
 
8. SU1 attended several physiotherapy sessions at the Practice, between May 2019 and October 2019.
 

9. Particular 1 alleges that three of those sessions were conducted by Person A, with the Registrant’s contrivance, at a time when Person A was subject to the Interim Suspension Order preventing him from working as a physiotherapist. The relevant sessions occurred on 2 August 2019, 20 September 2019 and 4 October 2019.
 
10. Particular 4 alleges that the Registrant’s conduct, in permitting Person A to provide physiotherapy at a time when she knew that Person A was suspended from practice, was dishonest.
 
11. In relation to Particular 2, it was alleged by SU1 that during a physiotherapy session at the Practice on 4 October 2019, Person A touched her in a way that was inappropriate. She reported this to Rehab Direct who instructed the Practice not to make further contact with SU1. Particular 2 alleges that the Registrant ignored this instruction and contacted SU1 on 22 October 2019.
 
12. Particular 3 alleges that the Registrant informed Rehab Direct on 22 October 2019 that SU1’s physiotherapy session on 4 October 2019 had been provided by a student named “M”, when in fact, to the Registrant’s knowledge, it had been provided by Person A.
 
13. Particular 4 alleges that the Registrant acted dishonestly when providing the information relating to Particular 3.
 
 
Witnesses

14. The HCPC called two witnesses:

• SU1
• DC, director of Rehab Direct.

 
15. The HCPC provided a witness statement from SL, a representative of Kingsley Napley Solicitors, who produced documentation relevant to the investigation, including screenshots of the Registrant’s diary at the Practice between August and September 2019.
 
16. The Registrant gave evidence and provided a bundle of evidence, which included screenshots of her diary relating to the NHS work that she conducted at a different location, Medway Community Care,  in tandem with her work at the Practice.
 
17. The Registrant called two witnesses, EC and SS, who attested to her good character. She also relied on a written testimonial from BC.
 
Decision on Facts

18. The Panel accepted the advice of the Legal Assessor, who advised on the burden and standard of proof, the Registrant’s good character, the approach to be taken to the issue of credibility in accordance with the case of Dutta v GMC [2020] EWHC 1974 and the definition of dishonesty as established in the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67.
 
19. When reaching its decisions of fact, the Panel gave weight to the Registrant’s good character, supported by the character evidence put forward on her behalf, namely:
 

• EC, the Registrant’s line manager at Medway Community Healthcare, who described the Registrant as an “excellent clinician” who was “consistently open and honest’ and “extremely trustworthy”
• SS, Adult Therapy Operational Lead for musculoskeletal services at Medway Community Healthcare, who described the Registrant as “very conscientious” and “well-respected”
• BC, friend and colleague working for the Musculoskeletal physiotherapy team at Medway Community Healthcare, who described the Registrant as “proficient” “very friendly and approachable” and “the most honest person I know”.

 
20. The Panel bore in mind throughout its deliberations that documentary evidence, where available, was likely to be more reliable than the independent recollection of witnesses. In accordance with the case of Dutta referred to by the Legal Assessor, the Panel took account of the fact that it is: “important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth”.
 
Particular 1 – found proved

The evidence

21. The Panel was provided with unchallenged confirmation that Person A had been subject to an HCPC Interim Suspension Order at the time when Person A provided SU1 with physiotherapy. It was accepted by the Registrant that she had known that Person A was subject to the Interim Suspension Order on the relevant dates. Her defence to Particular 1 was that she had not realised that Person A was treating SU1.
 
22. SU1 said in evidence that she had been treated by Person A on three occasions: 2 August 2019, 20 September 2019 and 4 October 2019. She said she received treatment from the Registrant on numerous occasions prior to 2 August 2019, and received further treatment from the Registrant after that appointment and before her appointments with Person A on 20 September 2019 and 4 October 2019.
 
23. SU1 said that the Registrant told her that she had set up the Practice with her husband. SU1 said Person A was present at the clinic whenever she attended an appointment with the Registrant, and that she either saw Person A arriving at the clinic with the Registrant, or saw him coming out of a room adjacent to the Registrant’s room and entering the reception area to call other patients in. She said that he called them in in just the same way as he called her into the room when she had appointments with him for treatment.
 

24. In cross-examination SU1 accepted that it was her presumption that the people she saw being called into Person A’s room in this way were patients attending for treatment, as opposed to individuals attending for some other reason, such as to deal with the administration of future appointments.
 

25. SU1 said that the Registrant told her, in the course of her physiotherapy sessions with her, that Person A “sees patients next door”.
 

26. SU1 said that the only practitioners she saw at the Practice were the Registrant and Person A.
 

27. SU1 said that in her last appointment with the Registrant, in September 2019, she discussed with the Registrant the fact that she had been seen by Person A and how the appointment had gone.
 

28. SU1 said that during her physiotherapy session with Person A on 2 August 2019, Person A told her that the Registrant had hurt her neck. SU1 said that in consequence of this she later enquired of the Registrant about her neck.
 

29. SU1 informed the Panel that Person A did not confine his appointments to SU1 in that he had also treated SU1’s partner.
 
30. In evidence the Registrant said that she had been registered with the HCPC as a Physiotherapist since 2006. She had no adverse findings against her name and she was a person of good character.
 
31. The Registrant said that she regarded the Practice as a family business. When it was first set up she provided financial assistance to the company. However, she only began working for the Practice when Person A, her husband, was made the subject of the HCPC Interim Conditions of Practice Order, which prevented him from treating female patients. She provided clinical assistance between 2017 and December 2018, by seeing female patients whilst Person A saw male patients.  When Person A was made the subject of an Interim Suspension Order on 30 January 2019, she treated all the patients who were referred to the Practice.
 

32. The Registrant claimed that whilst she was dealing with the clinical side of the Practice, Person A was in charge of the administration, including making appointments for patients. She said that he would sometimes do this from home, and sometimes from the room next to hers at the Practice. She said that the telephone number used to contact SU1 was Person A’s mobile number, and the email address used by SU1 to contact the Practice was an “info@” address which was managed by Person A on the office laptop.
 
33. The Registrant said that no one else provided physiotherapy at the Practice, although a person known as “MP” shadowed her, between December 2017 and July 2018, at a time when he was doing a Masters degree in physiotherapy.
 
34. The Registrant said that the Companies House details for the Practice showed her as director from 1 January 2020 to 1 March 2020, because at that time she was pursuing a separation from Person A and this was part of the financial agreement.
 
35. The Registrant produced copies of her NHS diary to demonstrate that she had been working at a different location at the time of the emails that had been sent to SU1 in her name. She claimed that she would have been too busy at the time to write the emails on behalf of the Practice, and that they were sent by Person A.
 
36. The Registrant claimed that she did not have access to the Practice laptop from which the emails to SU1 had been sent, although in cross-examination she accepted that it was possible to have accessed those emails through a different device. She claimed that the emails to SU1 had been written by Person A without her knowledge, just as he had organised physiotherapy sessions with SU1 without her knowledge.
 

37. The Registrant said that she undertook seven physiotherapy sessions with SU1, on 29 May 2019, 7 June 2019, 13 June 2019, 27 June 2019, 4 July 2019, 6 July 2019 and 28 July 2019. She said that she was unaware that Person A then conducted a physiotherapy session on 2 August 2019. She accepted that she had then conducted a session with SU1 after the 2 August 2019 session; she said that she did this on either 6 or 11 September 2019, when she discharged SU1.
 
38. The Registrant said that it was following this that Person A conducted the further sessions with SU1, on 20 September 2019 and 4 October 2019, although she had been unaware at the time that he was doing so.
 
39. The Registrant said that she was not able to access the Practice diary when she was away from the building, and that she would only discover what appointments had been booked for her by Person A when she attended on the day.
 
40. The Registrant disputed telling SU1 that Person A saw patients in the next door room. The Registrant claimed that Person A used the next door room to carry out administrative functions for the Practice, such as making bookings and receiving payments. She said that contrary to SU1’s evidence, Service User I would not have gone out of the room to call in patients as this would not have been in-keeping with his administrative role. She said that there was a desk in the reception area that he could have used for his administrative functions but this did not occur because there was no chair available.
 
41. The Registrant said that SU1 made no mention of sessions with Person A in the course of any physiotherapy session with her. The Registrant disputed SU1’s evidence that previous sessions with Person A were discussed with the Registrant when she attended for treatment with the Registrant. The Registrant also denied telling SU1 that Person A saw patients in the next door room.
 
42. The Registrant said that the texts received by SU1 had been sent from the telephone number for the Practice, to which Person A had access. She said that she did not send any of the texts received by SU1 relating to appointments with the Practice.
 

Decision

Particular 1

43. The Panel preferred the evidence of SU1 to that of the Registrant. The Panel found SU1’s evidence to be consistent and plausible, whereas the Registrant was inconsistent and varied her position when giving evidence.
 
44. The Panel concluded that SU1 had no motive for fabricating evidence against the Registrant. SU1 had spoken in positive terms about the treatment that the Registrant had provided her. The Panel agreed that there were some minor inconsistencies in SU1’s evidence; however, when considering the importance of this the Panel took account of the fact that the focus of the referral was Person A’s behaviour towards SU1 rather than the Registrant’s role.
 

45. The Panel took account of the fact that SU1 is an Occupational Therapist herself and understood a clinical setting. She was seen by the Registrant for treatment on a date that post-dated her appointment with Person A on 2 August 2019. Her evidence was that she discussed with the Registrant the treatment that she had previously received from Person A at her most recent appointment and the Panel found this to be plausible. The Panel concluded that when SU1 told the Registrant that she had received treatment from another clinician at the Practice, the Registrant must have realised that this was Person A as there was no one else it could have been.
 

46. The Panel accepted the evidence of SU1, denied by the Registrant, that the Registrant had told her that Person A saw patients in the next door room.
 
47. The Registrant said that she could not remember having a neck injury at the relevant time. However, she did not dispute SU1’s evidence that Person A had told SU1 that the Registrant had suffered a neck injury for which he was providing treatment. The Panel concluded that the Registrant was hesitant to admit to the Panel that she had suffered a neck injury because this would support the suggestion made by SU1 that Person A had informed her about the Registrant’s neck injury, which supported SU1’s claim that she discussed her treatment sessions with Person A when she later saw the Registrant for treatment.
 

48. The Panel regarded the Registrant’s explanation of Person A’s role, namely that he was in charge of the administration of the Practice, to be implausible. It was unclear why there was a need for  Person A to attend the Practice, which was a small practice, merely to carry out administrative duties.
 

49. When asked why Person A did not sit at the desk in the reception area to deal with administration, rather than remaining in the treatment room opposite the Registrant’s treatment room, the Registrant stated that there was no chair available for the desk; the Panel regarded this explanation as implausible.
 

50. The Panel did not accept the Registrant’s explanation that administration had to be conducted on Person A’s laptop, when in reality emails could be accessed from any device. The emails were in the Registrant’s name, and whilst the Panel accepted that it may well have been Person A who sent them, even the Registrant accepted eventually that she could have accessed them from a different device if she had chosen to do so. The Panel considered it implausible that she would not have wanted to do so at the time.
 
51. In all the circumstances, the Panel found Particular 1 proved.
 
Particular 4 in relation to Particular 1 – found proved

52. The Panel considered the issue of dishonesty in relation to Particular 1 in the light of the decision of the Supreme Court in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67. It noted the part of the judgment of Lord Hughes:
 
“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.” 
 
53. The Panel weighed in the Registrant’s favour the fact that she was of previous good character, and that she had worked for many years with no other complaint.
 
54. The Panel had found Particular 1 proved. The Panel had concluded on the balance of probabilities that the Registrant had known that Person A was treating SU1 when he should not have been doing so. The Panel concluded that the Registrant knew that it was wrong to permit Person A to practise when he was subject to an Interim Suspension Order. The Panel concluded that the reason why she had done this was to benefit the Practice, which provided her with financial support and family loyalty. The Panel concluded that ordinary decent people would regard this behaviour as dishonest.
 
55. Accordingly, the Panel found Particular 4 in relation to Particular 1 proved.
 
Particular 2 – found not proved

Evidence

56. SU1 said that in the course of a physiotherapy session with Person A on 4 October 2019, Person A treated her inappropriately. She said that her next appointment was due to take place on 18 October 2019, and that she sent a text message to the Practice asking whether the session was due to take place with the Registrant. She received a response from Person A informing her that the appointment would be with him.
 
57. SU1 then contacted Rehab Direct and spoke to DC to inform him about the incident on 4 October 2019. She said that DC told her that he would contact the Practice and ask them not to make any further contact with SU1.
 

58. SU1 said that a few days later the Registrant telephoned her and left a voicemail asking her to call. Following this, SU1 spoke with the Registrant. In cross-examination SU1 accepted that this may have been because she called the Registrant back in response to the voicemail. SU1 said that the Registrant told SU1 that if SU1 had been made to feel uncomfortable she apologised. The Registrant asked whether SU1 had given Person A consent for what had taken place. SU1 said that the Registrant told her that she was a mother and that the Practice was her business, which meant everything to her, and that she just wanted to make a living for her children.

59. In evidence DC confirmed that SU1 contacted him in October 2019 raising concerns about Person A, following which DC contacted SU1 on or around 21 October 2019.
 
60. DC said that SU1 told him that she no longer wanted to be contacted by the Practice. As a result of this he contacted the Practice by email on 22 October 2019 and asked the Practice not to make contact with SU1. He said that he was informed by SU1 that the Registrant had made contact with her.
 
61. The Registrant informed the Panel that she phoned SU1 because Person A informed her that SU1 had made a complaint. She said that she had not at that stage seen the email from Rehab Direct telling her not to make contact with SU1. She said that SU1 did not pick up the phone and therefore she left a voice message.
 

Decision

62. The Panel noted that Particular 2 alleged that the Registrant contacted SU1 by phone on 22 October 2019 by which time, it was alleged, she had been instructed by Rehab Direct, by means of the email dated 21 October 2019, not to contact SU1.
 
63. The Registrant’s evidence was that she phoned SU1 and left a voicemail for her, in response to which SU1 called her back. In evidence SU1 agreed with that version of events. The Panel concluded that by this time the email had been sent by Rehab Direct; however there was insufficient evidence to prove that the Registrant had seen the email, or that Person A had informed her of its existence.
 

64. On that basis the Panel found Particular 2 not proved.
 
 
Particular 3 – found proved

Evidence

65. DC informed the Panel that on 22 October 2019 he telephoned the Practice and spoke to the Registrant. He said that the Registrant informed him that SU1 had been treated in the room adjacent to hers by a student physiotherapist, named MP, who she was supervising.
 
66. DC said that following the telephone call he spoke to SU1, who told him that she had been treated by Person A and not by a student physiotherapist named MP.
 
67. The Registrant informed the Panel that DC phoned when she had just arrived at work. She accepted that when DC asked her to name the male practitioner who had treated SU1, she had named MP. She said that he came to mind at the time as he was the only possible male practitioner at the Practice who was able to work as a physiotherapist. She accepted, in retrospect, that it must have been Person A who treated SU1.
 

68. The Registrant provided the Panel with a copy of a contract between the Practice and MP, dated 3 January 2018, granting him a student internship. The Registrant accepted in cross-examination that the arrangement with MP commenced in December 2017 and had ceased by July 2018. However, she claimed that she had permitted MP to shadow her in practice after this. She said that when DC phoned her to inform her of the allegation made by SU1, she was in a state of shock. When DC asked which male practitioner had treated SU1 she said that Person A did not come to mind because he was subject to the Interim Suspension Order at the time.
 
69. The Registrant claimed in evidence that she sent an email to DC, dated 28 October 2019, setting out her position. She provided the Panel with a copy of this email. DC stated in evidence that he never received such an email.

70. In cross- examination, the Registrant accepted that she had access to the company bank account. However she said that she did not check payments that were coming in and therefore did not notice the payments made for treatment provided by Person A to SU1.
 
71. The Registrant also relied on the fact that she referred Person A to the HCPC on 30 October 2019.
 

Decision

72. The Panel concluded that the Registrant’s explanation lacked credibility. It was not plausible that on 22 October 2019 she had believed that the services being provided to SU1 on 4 October 2019 related to MP, a qualified Physiotherapist, who had attended the Practice as part of an internship which ceased in July 2018. The Panel concluded that the Registrant must have realised at the time of the conversation with DC that MP had left the Practice over a year ago.
 
73. The Panel noted that the Registrant had acknowledged that at this time she was aware that Person A had in the past breached an Interim Conditions of Practice Order that he had been made subject to by the HCPC. The explanation for the breach that Person A provided to the Registrant at the time was that he had treated a female patient in an emergency situation. The Registrant claimed that despite this previous breach of an order by Person A it had not occurred to her that the male who had treated SU1 could have been Person A.
 

74. The Panel took account of the letter dated 22 October 2019, written by DC to the Registrant after their conversation that day, in which he stated: “You told me that Service User 1 had been seen by a student physiotherapist called MP, and this happened on 04.10.19. You told me that you were in an adjacent room providing supervision and that you had checked with Service User 1 that she was happy to be seen by MP. MP was going to give Service User 1 massage to her shoulders, neck and back.” In this letter DC also accused the Registrant of being untruthful in suggesting that SU1 had been treated by a student under her supervision.
 

75. In her evidence the Registrant did not dispute the contents of DC’s letter, dated 22 October 2019.
 

76. In the email relied on by the Registrant, purportedly sent to DC, dated 28 October 2019, the Registrant stated “I would like to correct my statement about treatment of [SU1]. [SU1] was not treated by student under my supervision”. DC stated that he never received this email. In evidence the Registrant changed her position, stating that she had meant to say in her email that SU1 had been treated by M, but not under her supervision. The Panel concluded that the Registrant’s position was contradictory in this regard.
 

77. The Registrant claimed that she had a conversation with DC on 23 October 2019. However, she was unable to relate with clarity what was said, and DC had no recollection of it whatsoever. The Panel concluded that DC would have remembered this conversation if it had taken place, and that the Registrant had lied about the existence of this phone call, which she had invented to mitigate the lies she had told on 22 October 2019. Her letter of 28 October 2019 was composed by her for the same self-serving reason.
 

78. The Panel concluded that the Registrant knew at the time of the phone call that there could have been no other male practitioner at the Practice than Person A and that it must have been Person A who treated SU1. The Panel concluded that the Registrant knew at that time that Person A was suspended from practice, and was trying to cover her tracks by resorting to mention of MP.
 

79. The Panel concluded that there was no evidence that the email of 28 October 2019 was sent or received. If it was sent, the Panel concluded that it was an sent as a protective measure, in an attempt to exculpate herself.
 

80. In all the circumstances, the Panel found Particular 3 proved.
 
Particular 4 in relation to Particular 3 – found proved

81. The Panel considered the issue of dishonesty in relation to Particular 1 in the light of the decision of the Supreme Court in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67.
 
82. The Panel had concluded that the Registrant lied to DC by suggesting that M, rather than Person A, had treated SU1 when she knew, or at the very least must have believed, that Person A had treated SU1. The Panel concluded that she knew at the time that Person A was subject to an Interim Suspension Order and she lied in order to protect Person A and/or to protect the Practice, which she regarded as a family practice, providing income for herself and for her children.
 

83. The Panel concluded that this would be regarded as dishonest by ordinary decent people.
 

84. Accordingly, the Panel found Particular 4 in relation to Particular 3 proved.
 

Evidence, Submissions and Advice on Grounds and Impairment
 

85. Following submissions on the facts, the hearing adjourned part-heard on 10 September 2021 for the Panel to reach its decision. The hearing resumed on 29 March 2022 and the Panel’s decision on the facts was handed down. The hearing then continued.
 
86. The Registrant gave further evidence.
 

87. The Registrant said that she was currently employed by Medway Community Healthcare in a Clinical Advanced Practitioner role and as a Pelvic Specialist Health Professional. She said that she was no longer associated with any private practice. She said that other than childcare arrangements she had no ongoing involvement with Person A, with whom she had now separated. She said that she now documents risk assessments, and is transparent in her communication, and ensures that she does not act naïvely.
 

88. The Registrant said that the current hearing was not a true reflection of herself. She said that her judgement had been clouded, in that she did not check the Practice’s emails, and allowed Person A to come into the practice to carry out his administrative role.  She said that she had not acted intentionally. She said that she had now taken steps to ensure that she did not repeat her actions, by disassociating herself from Person A and by confining her work to the NHS.
 

89. The Registrant said that she understood that honesty is important. She said that she was remorseful for what had happened to Service User 1 in the sense that what happened would have affected her emotionally and would have undermined the trust that Service User 1 held in the physiotherapy profession.
 

90. The Registrant explained that honesty in the profession is important in that patients are vulnerable and need to feel safe in the hands of professionals, from whom they have the right to expect an honest decision to be made on their behalf.
 

91. In cross-examination she continued to deny her dishonesty. She continued to claim that Person A had acted without her knowledge. She said that she had failed by allowing Person A to act in the way that he had, but this had occurred unknowingly on her part.
 

92. Ms Shah provided the Panel with a further bundle of documentation, which comprised a list of the CPD completed by the Registrant since April 2018 together with 6 character references from employees of Medway Community Healthcare. These had been updated by the referees, having read the Panel ‘s decision on the facts. Comments made by the referees included:

• SS, Adult Therapy Operational Lead for Musculoskeletal Services, who confirmed that she had worked with the Registrant for the last 9 years and described her as: “Very conscientious and hard-working….she has very successfully worked as a team lead within a large department… She is a well-respected member of the team and serves as a role model for the junior members of staff…a real asset to the team”
• EC, Head of Service, who described the Registrant as: “ an excellent clinician and holds a senior role within the MSK department….I believe that Monika is consistently open and honest and would never deliberately mislead anyone. She is extremely trustworthy and I have no concerns about her ability to fulfil her role within MCH….she achieves consistently high ratings in her annual appraisals and her commitment to personal development is commendable…In summary, Monika is a well-liked, highly experienced and trustworthy member of staff. We have no concerns about her ability to work with patients and hope this matter can be resolved quickly”
• AS, employee of Medway Community Healthcare, who has worked with the Registrant and describes her as “very professional… trustworthy and honest”
• AJ, Clinical Lead Physiotherapist & Advanced Physiotherapy Practitioner, who said that the Registrant was a “knowledgeable and trustworthy clinician” who had “contributed greatly to the professional development of the team”
• MB, First-contact Practitioner Physiotherapist for Medway Community Healthcare, who described the Registrant as “excellent. She provided me with regular clinical guidance and always, without fail, went the extra mile to foster my ongoing development
• BC, Advanced Physiotherapy Practitioner, who described the Registrant as calm, composed, friendly and “proficient in highly skilled Musculoskeletal assessments and treatments and management of pelvic health patients”

93. Mr Foxsmith submitted that the Registrant had breached Standard 9 of the HCPC Standards of Conduct, Performance and Ethics (January 2016). He submitted that the Registrant’s past dishonest behaviour amounted to serious misconduct.
 
94. Mr Foxsmith submitted that dishonesty is difficult to remediate. He submitted that the Registrant had provided no apology or remorse. Her dishonesty was entrenched in that she continued to deny the allegation. Mr Foxsmith submitted that the Registrant’s behaviour had placed  Service User 1 at risk of harm, had breached a fundamental tenet of the profession and had brought the profession into disrepute. He submitted that the Registrant’s fitness to practise is currently impaired on both the personal and public components.

95. Ms Shah said that she did not propose to address the Panel on misconduct, in light of the Panel’s findings.

96. However Ms Shah submitted that the Registrant’s fitness to practice is not currently impaired. She relied on three factors.

97. The first was the context of the failures. The Registrant had trusted her husband, to whom she had been married for a lengthy period of time. Further, this was an isolated set of events that had occurred in the context of an unblemished career, as could be seen from the Registrant’s good references.

98. The second was that although the Registrant continued to deny her dishonesty, she had been able to demonstrate insight in that she had talked about the importance of being honest and had demonstrated empathy for Service User 1.

99. The third was that the Registrant is a good clinician. Ms Shah submitted that an informed member of the public, aware of the Registrant’s diligence as a physiotherapist, would not demand a finding of impairment, particularly in light of Person A’s relationship with her.

100. The Legal Assessor advised the Panel on the meaning of misconduct. She referred to the cases of Roylance –v- General Medical Council No 2 [2001] 1 AC p1 and Nandi v GMC [2004] EWHC 2317 (Admin). She advised the Panel to ask whether the Registrant’s behaviour had fallen seriously below the standards to be expected of a registered Physiotherapist in the circumstances, and whether her behaviour would be regarded as deplorable by fellow practitioners.

101. The Legal Assessor advised the Panel that if, in its judgment, the facts found proved amounted to misconduct, the Panel should consider whether the Registrant’s fitness to practise is currently impaired by reason of that misconduct. The Legal Assessor advised on the meaning of impairment. She referred to the cases of Cohen v GMC [2008] EWHC 581 and Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Paula Grant [2011] EWHC 927, in which Mrs Justice Cox encouraged decision makers tasked with the issue of impairment to consider the following:

• whether the Registrant had presented and/or continues to present a risk to patients/service users;
• whether the Registrant had brought and/or is liable to bring the profession into disrepute;
• whether the Registrant had breached and/or is liable to breach one of the fundamental tenets of the profession;
• whether the Registrant had acted dishonestly and/or is liable to act dishonestly in the future.

102. The Legal Assessor encouraged the Panel to consult the Practice Note entitled, “Finding that Fitness to Practise is ‘Impaired’” issued by the HCPTS.

Decision on Grounds:

103. The Panel considered the evidence in the case and the submissions of Mr Foxsmith and Ms Shah. It accepted the advice of the Legal Assessor.

104. The Panel found that the Registrant had breached the following HCPC Standards of Conduct, Performance and Ethics (January 2016):

• 6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.
• 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.
• 7.4 You must make sure that the safety and well-being of service users always comes before any professional or other loyalties.
• 9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

105. The Panel concluded that the Registrant’s dishonest behaviour, as found proved, amounted to a serious departure from the standards of conduct that could properly be expected of a Physiotherapist performing the role that the Registrant was employed to perform at the time. The Panel also concluded that her behaviour would be regarded as deplorable by fellow practitioners. In reaching its decision on the facts, the Panel had concluded that the Registrant had permitted Person A to continue working for the Practice, despite knowing of the existence of an Interim Suspension Order imposed by her own regulator forbidding him from doing this very thing. She had done this to benefit the Practice, which provided her with financial support and out of a sense of family loyalty. She had then compounded her dishonest actions in Particular 1 by the further dishonesty found proved in Particular 3.

106. Accordingly, the Panel determined that the facts found proved amounted to misconduct.

Decision on Impairment:

107. The Panel considered the evidence in the case and the submissions of Mr Foxsmith and Ms Shah. It accepted the advice of the Legal Assessor.

108. The Panel accepted that the Registrant had had a lengthy and unblemished career. Her references attested to the fact that she was an excellent clinician. This was not in doubt.

109. However the Panel concluded that the Registrant’s dishonesty, as found proved, could not be regarded as an isolated event. The dishonesty in Particular 1 had taken place on 2 August 2019, 20 September 2019 and 4 October 2019, and had been followed by further dishonesty on 22 October 2019 as particularised in Particular 3.

110. The Panel considered the criteria set out in the case of Grant, and concluded that, through her dishonest misconduct, the Registrant had placed service users at risk of harm, had brought the profession into disrepute and had breached a fundamental tenet of her profession.

111. The Panel accepted that the Registrant had demonstrated a degree of insight in that she appeared to understand the effect of her actions on the confidence that the public would now hold in her. However, the Panel concluded that the Registrant’s insight was limited to that. She continued to deny the allegation, which was her right. However this meant that she had shown no evidence of genuine insight into her wrongdoing. She had not accepted her dishonesty and had not apologised for it. Neither had she taken any steps to remediate her dishonesty, by writing a reflective statement, or undertaking relevant courses connected with honesty and ethics. The Panel accepted that dishonesty is difficult to remediate. However the Registrant had provided no evidence of remediation whatsoever, outside of the fact of having worked without further concern for nearly two and a half years.

112. In those circumstances, in asking whether there was a risk that the Registrant would repeat her dishonesty, the panel concluded that there was a real risk that she would. The Registrant had provided no evidence of insight into what she herself had done. She had denied her dishonesty at the fact finding stage, and had continued to do so when giving further evidence at the impairment stage where she had repeated some of the points that the Panel had found implausible at the fact finding stage.

113. In those circumstances the panel concluded that the Registrant’s fitness to practice is impaired on the personal component.

114.  The Panel also concluded that the Registrant’s fitness to practice is impaired on the public component. The Panel regarded the Registrant’s dishonesty to be particularly serious. She had knowingly permitted Person A to defy an Interim Suspension Order that had been imposed by her regulator. In so doing she had placed service users at risk of harm. That risk was heightened by the fact that, to the Registrant’s knowledge, Person A had been placed on an Interim Conditions of Practice Order by reason of his alleged behaviour towards a female patient in the course of his profession as a physiotherapist, and this was escalated to an Interim Suspension Order by reason of a further allegation of a similar nature. The Panel concluded that a fully informed member of the public, on learning that the Registrant had permitted Person A to continue to work as a physiotherapist within the Practice in those circumstances, thereby enabling him continued access to female members of the public such as Service User 1, would be concerned and shocked. The Panel concluded that the public would also be shocked and concerned that the Registrant had then lied to a fellow professional about her actions, as reflected in Particular 3. The Panel concluded that a finding of impairment was required to maintain standards in the profession and to uphold confidence in the Registrant, her profession and her regulator.

115. Accordingly, the Panel concluded that the Registrant’s fitness to practise is currently impaired on both the personal and public components.

Evidence, Submissions and Advice on Sanction

116. EC and SS, whose references had been received by the panel at the impairment stage, were called to give evidence. Both witnesses confirmed the views that they had expressed in writing.

117. EC described the Registrant as an excellent clinician who identifies and escalates risks appropriately, displays good judgement at work. EC said that there were no concerns about the Registrant’s ability to safeguard. EC said that the Registrant participated in weekly group supervisions with her colleagues, and that it would be possible, although not desirable, to arrange one to one supervision, depending on who was available. EC said that the Registrant was open and honest, adding that she had never observed anything to suggest otherwise. When probed in cross-examination about this, and whether the Panel’s findings of fact altered her view, she said that she would have to reflect on this. She agreed that she would expect a registrant to show reflection and insight in the circumstances, and that a lack of insight into misconduct can be as troubling as the misconduct itself.

118. SS said that she did not directly line manage the Registrant. She said that she was tasked with receiving complaints and there had been none in relation to the Registrant. She said that she was not involved in group supervisions with the Registrant. She described the Registrant as an asset and said that she was supportive of patients.

119. Mr Foxsmith reminded the Panel of its findings of lack of remediation and meaningful insight. He submitted that the character references provided on behalf of the Registrant spoke to the Registrant’s clinical competence, which was not in issue. Mr Foxsmith accepted that the Registrant is a highly trained and highly regarded skilled physiotherapist, who performs well, is regarded with affection by colleagues and has had no complaints raised against her. However he submitted that her dishonest behaviour had put a service user at risk, and she had failed in her duty of candour in acknowledging that failing. He submitted that whilst sanction is a matter for the Panel, the options of taking no action or imposing a caution order were not appropriate in the circumstances. He submitted that conditions were not appropriate due to the Registrant’s lack of insight.

120. Ms Shah submitted that Conditions of Practice would be the most appropriate and proportionate sanction in the light of the Registrant’s unblemished career hitherto and the excellent testimonials provided on her behalf. She submitted that if the Panel was against her, the appropriate and proportionate sanction would be suspension.

121. Ms Shah submitted that the Registrant had demonstrated some insight in that she had expressed an understanding of the effect that the Panel’s finding would have on public perception of the profession, and she had identified the impact on Service User 1.

122. Ms Shah accepted that the misconduct amounted to very serious professional misconduct. 

123. In seeking to advance conditions of practice, Ms Shah relied on the Registrant’s unblemished career, the fact that she had worked for the past 2 and a half years without further incident, and the possibility that the current weekly supervisions provided by the Registrant’s employer could incorporate one-to-one sessions together with a personal development plan requiring the Registrant to reflect on dishonesty and the duty of candour. Ms Shah suggested that if the Registrant were also restricted to confining her employment to MCH that would provide adequate public protection.

124. In putting forward suspension as her second option, Ms Shah suggested that the Registrant had apologised and had expressed remorse for what had happened to Service User 1. Ms Shah asked the Panel to consider the adverse effect that suspension would have on the Registrant’s financial position.

125. Ms Shah submitted that a Striking Off Order would not be appropriate in that the Registrant had shown some insight, albeit limited; she had participated in the proceedings and was willing to work with her regulator. Furthermore, Ms Shah stated that the Registrant had made a valuable contribution to her profession and had demonstrated a commitment to it, and whilst the conduct found proved could not be regarded as isolated, and whilst the Registrant had tried to cover up her actions in Particular 1 by means of her actions in Particular 3, the events had been intrinsically linked with her husband, with whom she was no longer involved.

126. The Legal Assessor advised the Panel to consider any aggravating and mitigating features of the case. She advised that the purpose of sanction is not to be punitive but is to protect the public and the wider public interest, which includes the maintenance of public confidence in the profession and declaring and upholding proper standards of conduct and behaviour.

127. The Legal Assessor encouraged the Panel to consult the current Sanctions Policy published by the HCPC. She advised the Panel to apply the principle of proportionality, weighing the Registrant’s interests against the need to protect the public and the wider public interest. She advised the Panel to consider the least restrictive sanction first.
 

Decision on Sanction:

128. The Panel considered the submissions of Mr Foxsmith and Ms Shah and accepted the advice of the Legal Assessor.

129. The Panel concluded that the following were aggravating factors:

• The Registrant’s dishonesty in Particular 1 had been conducted in deliberate defiance of an order which to her knowledge had been imposed on Person A by her regulator;
• The Registrant’s dishonesty in Particular 3 had been conducted in an attempt to cover up her dishonesty in Particular 1, by lying to a fellow professional;
• The Registrant’s dishonesty had involved an active role, not a passive one, in that she had actively lied to DC;
• The Registrant’s dishonesty had stretched over a considerable period of time, from 2 August 2019 to 22 October 2019, and had occurred on 4 separate occasions;
• The Registrant’s dishonesty had been conducted for her own personal benefit, to protect her husband, Person A, and/or to protect the Practice, which she regarded as a family practice, providing income for herself and for her children.

130. The Panel concluded that the Registrant’s misconduct was mitigated by the Registrant’s previous good character and unblemished career, and the fact that she had continued to work for the past two and a half years with no further complaint raised. The Panel also had regard to the fact that the Registrant had demonstrated a degree of insight, albeit that this had been limited to an understanding of the effect of the Panel’s findings on public confidence in the profession, together with empathy for Service User 1.

131. In view of the seriousness of the misconduct, namely dishonesty, the Panel concluded that to take no further action or to impose a Caution Order would be insufficient to protect the public or to maintain standards and uphold confidence in the profession and the regulatory process. In considering the criteria set out in the HCPC Sanctions Policy the Panel concluded that it could not be said that the misconduct was minor in nature, isolated or limited, nor that the risk of repetition was low, nor that the Registrant had shown good insight, nor that the Registrant had undertaken appropriate remediation.

132. The Panel considered a Conditions of Practice Order but concluded that this would not be appropriate or workable due to the nature of the misconduct, which was attitudinal in nature, for which conditions could not be devised. Further, such an order would be insufficient in light of the seriousness of the conduct and the harm which resulted from it.

133. The Panel considered a Suspension Order. The Panel took account of the mitigating factors. However, the Panel had been presented with no evidence of remediation or remorse, and a lack of insight into her own actions. In those circumstances the Panel concluded that none of the positive factors set out at Paragraph 121 of the Sanctions Policy indicating the suitability of a Suspension Order were present. There was no evidence of genuine insight into the Registrant’s wrongdoing; it could not be said that the dishonesty was unlikely to be repeated; and there was no evidence to suggest that the Registrant is likely to be able to remedy her failings, in that she continues to deny them. In those circumstances the Panel concluded that a Suspension Order would not be sufficient to protect the public or the wider public interest, and the Panel was compelled to move on to consider a Striking Off Order.

134. The Panel understood that a Striking Off Order is the most punitive of all orders. The Panel realised that such an order was likely to have significant adverse financial and reputational consequences for the Registrant.

135. However the Registrant’s misconduct was serious. She had dishonestly permitted Person A to provide physiotherapy services to Service User 1 in circumstances when she knew that Person A was subject to an Interim Suspension Order, imposed by her very own regulator, prohibiting him from practising as a Physiotherapist. She did so on three occasions, on 2 August 2019,  20 September 2019 and 4 October 2019. Furthermore she did so in circumstances when, to her knowledge, Person A was alleged to have breached an Interim Conditions of Practice order that had been imposed for alleged sexual misconduct with a female service user, by allegedly repeating his behaviour. In those circumstances the Registrant must have, or should have, appreciated that the risk that he would repeat his actions was high, and yet she permitted Person A to continue his contact with female service users by permitting him to continue to work as a physiotherapist in the Practice. This was compounded by the fact that when challenged on the point by DC, who had received Service User 1’s complaint, she pretended that Service User 1 had received physiotherapy services from a student physiotherapist under her supervision, when she knew that this was not true. In short, she had knowingly permitted Person A to defy an Interim Suspension Order that had been imposed by her regulator, and in so doing she had placed female service users at high risk of harm, and she had lied in an attempt to cover up her actions.

136. The Panel took account of the mitigating factors and in particular Registrant’s good character hitherto and the fact that she had not repeated her dishonesty in the 2 ½ years that had now passed since the incident. The Panel took account of the fact that the dishonesty in this instance had been linked to the relationship between the Registrant and Person A,  her husband at the time, from whom she was now separated. The Panel took account of the hardship that the Registrant was likely to incur if prevented from practising her profession. The Panel also took into account material in the bundle which suggested that the Registrant was regarded as an excellent clinician.

137. However, the Registrant’s dishonesty, as described, was  serious. She continued to deny the allegations, and in so doing had not apologised for her actions or provided genuine evidence of remorse and remediation. In the period since the allegation the Registrant has failed to undertake any CPD that is relevant to the nature of the concerns. Her actions had had the potential to lead to harm to service users, and had in fact led to harm to Service User 1. The Panel was not reassured that she would not repeat her dishonest conduct in different circumstances. In those circumstances the Panel concluded that a Striking Off order was required to protect the public.

138. The Panel also concluded that a Striking Off Order was required to maintain standards in the profession and to uphold confidence in the Registrant, her profession and her regulator. The public would rightly expect protection from a registrant who had acted in defiance of a regulatory order, with the potential that this would cause harm to service users, which had in fact led to harm to a service user, and who had lied in an attempt to cover up her actions. Standards and confidence in the profession would be adversely affected if the Registrant’s name were to remain on the register.

139. Accordingly, it was the judgment of the Panel that the appropriate order in this case is a Striking Off Order.

Order: That the Registrar is directed to strike the name of Ms Monika Bawa from the register on the date this order comes into effect.

Interim Order Application:

1. Mr Foxsmith applied for an Interim Suspension Order for a period of 18 months to cover the appeal period. Mr Foxsmith submitted that given the findings of the Panel in relation to the substantive hearing the failure to impose an interim suspension order would be inconsistent with those findings and the sanction imposed.

2. Ms Shah submitted, in relation to ongoing risk, that the Registrant had remained working for two and a half years without complaint and did not present an immediate risk of harm to the public. She submitted that when considering the imposition of an interim order on the basis of the public interest alone the bar is set very high. Ms Shah highlighted the principle of proportionality and the severe financial hardship that the Registrant would experience if an Interim Suspension order was imposed.

3. The Panel was satisfied that an Interim Order is needed to protect the public and the wider public interest, on the basis of the same reasoning as applied when reaching the substantive decision on impairment and sanction.  The Panel concluded that an order is necessary to protect the public in that the Registrant would present a real risk of harm to the public if permitted to practise unrestricted. The Panel concluded that an order is also otherwise in the public interest in that the Registrant would present a risk of serious harm to the public interest if permitted to practise, in particular following the imposition of a Striking Off order.

4. The Panel concluded that an Interim Conditions of Practice Order would not be sufficient or workable for the same reasons as those set out in the substantive decision.

5. In those circumstances the Panel concluded that the appropriate form of interim order is an Interim Suspension Order for 18 months duration.

6. In reaching its decision the Panel took into account the hardship that would be incurred by the imposition of an Interim Order but concluded that this was outweighed by the public interest considerations.

Interim Suspension Order:
 

7. The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect the public and the wider public interest. 

8. This order will expire: (i) upon the expiry of the appeal period, if no appeal is made against the Panel’s decision and Order or (ii) upon the final determination of an appeal, if an appeal is brought. The maximum length of this order is 18 months.

History of Hearings for Mrs Monika Koul Bawa