Miss Gurjinder Bhogal

Profession: Occupational therapist

Registration Number: OT61840

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 20/05/2022 End: 17:00 20/05/2022

Location: Virtually via videoconference

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

As a registered Occupational Therapist (OT61840) your fitness to practise is impaired by reason of conviction and/or misconduct in that:

 1. On 9 April 2021, you were convicted at Reading Crown Court of four counts of ‘Fraud by abuse of position’, contrary to section 4 of the Fraud Act 2006.

 2. You did not inform the HCPC of your conviction at 1 above.

 3. Your conduct at 2 above was dishonest.

 4. The matters set out at 2 and 3 above constitute misconduct.

 5. By reason of your conviction and/or misconduct your fitness to practise is impaired.

Finding

Preliminary Matters

Remote hearing conducted via video-link

1. In light of the Government’s advice on containing the current Covid-19 pandemic, the HCPC has suspended all public hearings to protect the health and safety of its registrants and stakeholders. This hearing was convened remotely, with the HCPC’s Presenting Officer, the members of the Panel, the Legal Assessor and the Hearings Officer all participating via video-link.

Service

2. The Registrant was sent a Notice of hearing by email on 25 February 2022 to her email address as held on the Register.

3. The Panel accepted the advice of the Legal Assessor. It was satisfied that the date of the Notice of hearing fell within the statutory time limit of 28 days under Rule 6(2) of the HCPC Conduct and Competence Committee (Procedure) Rules 2003 (the Rules), and also provided the date and time of the hearing and the fact that, due to the COVID-19 pandemic, the hearing would be held remotely via video conference. For these reasons the Panel found that there was good service of the Notice of hearing in accordance with Rules 3 and 6.

Proceeding in absence

4. The Registrant did not attend the hearing. On 28 March 2022 the Registrant had contacted the HCPC by email, stating that she would not be attending today’s hearing but that she had asked for an additional document, in her support, to be sent to the HCPC. Following further email and telephone communication with the HCPC on 5 April 2022, the information provided to the Panel was that the Registrant’s position regarding her attendance was more equivocal and that she was considering attending the hearing in order to answer any questions from the Panel. On 8 April 2022, however, the Registrant emailed the HCPC to confirm that she had decided not to attend this hearing.

5. Mr Bellis, on behalf of the HCPC, submitted that the email correspondence between the Registrant and the HCPC indicated clearly that the Registrant had considered whether she wished to attend the hearing and had decided not to. He submitted that the Registrant had not requested an adjournment of this hearing; that she had waived her right to attend and that it was in the public interest to proceed in her absence.

6. The Panel accepted the advice of the Legal Assessor. The Panel referred to the HCPTS Practice Note on proceeding in absence and to the guidance that a hearing panel should consider as provided by the cases of R v Jones (Anthony) [2004] 1 AC 1HL and GMC v Adeogba [2016] EWCA Civ 162. Applying that guidance, the Panel was careful to remember that its discretion to proceed in absence is not unfettered and must be exercised with the utmost caution and with the fairness of the hearing at the forefront of its mind.

7. The Notice of Hearing dated 25 February 2022 informed the Registrant of the date and details of the hearing, and of her right to attend and be represented. She was also advised of the Panel’s power to proceed with the hearing in her absence if she did not attend and of how she could apply for a postponement of the hearing. The Registrant was informed of the sanction powers available to the Panel, should it find her fitness to practise to be currently impaired.

8. Taking all the above circumstances into account, the Panel concluded that the Registrant had decided not to attend this hearing, had thereby waived her right to be present, and that it was unlikely, in all the circumstances, that an adjournment would secure her attendance on a future date. The Panel was mindful that it must also consider fairness to the HCPC, whose case was ready to proceed today, and the public interest in cases being heard without unnecessary delay. Following the guidance in the case of Adeogba, given that there was no good reason to adjourn the hearing, the Panel decided it was in the public interest to proceed in the Registrant’s absence.

9. The Panel considered that there was some disadvantage to the Registrant in proceeding in her absence. Although she had submitted written representations for the Panel’s consideration, the Registrant would not be able to challenge the evidence put forward by the HCPC or give her own evidence. The Panel was mindful, though, that it could explore any inconsistencies in the evidence that it identified and should ask questions and consider points which might be in the Registrant’s interests and were reasonably apparent from the evidence. Furthermore, the limited disadvantage was the consequence of the Registrant’s decision to absent herself from the hearing, waive her rights to attend and be represented and to not provide evidence.

10. In these circumstances, the Panel decided that it was fair to proceed in the absence of the Registrant.

Application to amend the Allegation

11. Mr Bellis invited the Panel to make two amendments to Particular 1 of the Allegation.

12. In relation to the first proposed amendment, the allegation referred by the Investigating Committee Panel of the HCPC included the date of 1 September 2018, being the date that the offending first took place. Mr Bellis highlighted to the Panel that the conviction relates to conduct between September 2018 and March 2020 but that the key issue for the Panel to consider at the fact-finding stage is the fact and date of conviction, not the date of the offending. He therefore invited the Panel to amend the Allegation to remove reference to the single date in September 2018, to ensure that there is no confusion about what the Panel needs to decide.

13. In relation to the second proposed amendment, Mr Bellis invited the Panel to remove the reference to section 1(2)(c) of the Fraud Act 2006 to ensure that the Charge accurately reflects the Certificate of Conviction. He explained that the reference to section 1(2)(c) is not included on the Certificate of Conviction.

14. The Registrant was put on notice of the application to amend on 29 March 2022, by way of letter from Capsticks LLP, on behalf of the HCPC. The Registrant replied to that letter on the same date, 29 March 2022, with a brief email stating “thank you”. On the information presented to the Panel, the Registrant did not oppose the application.

15. The Panel accepted the advice of the Legal Assessor and agreed to amend the Allegation by removing both reference to the date that the offending first took place and to section 1(2)(c) of the Fraud Act 2006. The Panel was of the view that both amendments were administrative and minor in nature, would more accurately reflect the evidence and would not cause any unfairness to the Registrant.

Application to proceed in private

16. The Panel heard an application from Mr Bellis for the hearing to be held partly in private, should particularly sensitive and intensely personal matters arise during the course of submissions, or in the drafting if the determination, to preserve the private and family life of the Registrant.

17. The Panel accepted the advice of the Legal Assessor in relation to Rule 10(1)(a) of the Rules. It noted the presumption that hearings are held in public for transparency and openness in regulatory proceedings. The Panel determined to hold the hearing in public, but to go into private when hearing about intensely personal matters regarding the Registrant’s private and family life, so as to preserve her right to confidentiality.

Documents

18. The Panel received a bundle of documents from the HCPC comprising the Notice of Hearing, a Skeleton Argument, a Case Summary and Exhibits. The Exhibits included the referral from a member of the public (Person A); the Certificate of Conviction; the Judge’s Sentencing Remarks from the Transcript of Proceedings in the Crown Court at Reading; and a witness statement from MR, a Registration Manager at the HCPC.

19. The Registrant submitted a bundle of documents for the purposes of this hearing, including the completed Case Management Form; a written reflective piece; letters from her Probation Officer; a letter of support dated 1 April 2022 from a Women’s Advocate (Surrey) at Women in Prison; and a number of character references.

Background

20. The Registrant is registered with the HCPC as an Occupational Therapist.

21. On 9 April 2021 the Registrant was convicted in the Crown Court at Reading, following a guilty plea, of four counts of fraud by abuse of position contrary to section 4 of the Fraud Act 2006.

22. The conviction related to conduct between September 2018 and March 2020, when the Registrant undertook paid, private work for a number of employers, when she should have been working for her primary employer, Slough Borough Council.

23. On 19 April 2021 the HCPC received a referral from a member of the public, Person A, which included a clipping from a newspaper which stated that the Registrant had been convicted of fraud.

24. Under the HCPC’s Standards of Conduct Performance and Ethics, registrants are required to notify the HCPC “as soon as possible” if they have been charged or convicted of a criminal offence.

25. It is the HCPC’s case that the Registrant did not notify the HCPC of her conviction and that she behaved dishonestly in not doing so.

Decision on Facts

26. In considering this case the Panel bore in mind that the burden of proving the facts rests upon the HCPC and that the standard of proof is the civil standard of the balance of probabilities. It has taken account of all the documentary evidence presented to it by the HCPC. It has accepted the advice of the Legal Assessor.

27. In her written representations, the Registrant accepted the factual elements of the charges as set out in Particulars 1 and 2. She indicated that she does not accept that her actions were dishonest, as alleged at Particular 3.

Particular 1 - found proved

28. The Panel has received in evidence a Certificate of Conviction which shows that on 9 April 2021 at Reading Crown Court, the Registrant was convicted of four counts of ‘Fraud by abuse of position’, contrary to section 4 of the Fraud Act 2006. The same document shows that the Registrant pleaded guilty. The Certificate of Conviction sets out the sentence passed: the Registrant received an eight-month prison sentence, suspended for 18 months, and was ordered to pay £2000 compensation to Slough Borough Council. In addition, the Panel was provided with the Transcript of the Judge’s Sentencing Remarks.

29. The Panel also considered the Registrant’s written reflection which confirmed this conviction.

30. The above documents set out clearly the offences for which the Registrant was convicted, and the sentence imposed upon her. On the basis of these documents, which the Panel determined to be reliable evidence of the convictions, and in accordance with Rule 10(1)(d) of the Rules, the Panel finds that the HCPC has discharged the burden of proving that the convictions were recorded against the Registrant. The Panel also accepts the Registrant’s admission in relation to this matter which was confirmed in her written representations. Accordingly, the Panel finds the fact of the conviction, as set out at Particular 1, proved.

Particular 2 - found proved

31. The Panel has received in evidence a signed witness statement from MR who is employed as a Registration Manager by the HCPC. In that capacity, MR has reviewed the HCPC’s electronic record which shows contact made by the Registrant with the HCPC. MR states, “I have reviewed the HCPC’s registrations system, and can confirm that there is no record of [the Registrant] making a self-referral to the Registration’s team.” MR has produced a copy of that record which shows that no notes were made between 24 October 2020 and 12 January 2022. MR states, “I can therefore confirm that [the Registrant] has not made a professional declaration to the Registrations department since receiving her conviction on 9 April 2021.” The Panel accepts MR’s evidence that he reviewed the electronic record of contact with the Registrant and found no entry indicating that the Registrant notified the HCPC of her conviction on 9 April 2021.

32. In his witness statement, MR referred the Panel to the HCPC’s Standards of performance, conduct and ethics (January 2016) and in particular to Standard 9.5 which states: “You must tell us as soon as possible if: - You accept a caution from the police, or you have been charged with, or found guilty of, a criminal offence.”

33. The Panel has also received in evidence the Registrant’s written reflections in which she accepts that she did not inform the HCPC about her criminal conviction and gives her reasons for not doing so. The Registrant explains that at her court case in April 2021, “towards the end of the hearing the judge had asked the solicitor who will be informing HCPC to which the solicitor had replied that he will be doing this. Therefore, I did not contact HCPC.”

34. The Panel has already decided that Particular 1 of the Allegation is proved and so it is satisfied that the Registrant was charged with and convicted of the criminal offence of fraud. The Panel accepts MR’s evidence that the HCPC expects registrants to inform the HCPC “as soon as possible after [Slough Borough Council] recommended a criminal prosecution”. Standard 9.5 states that registrants must tell the HCPC “as soon as possible”. The Registrant has accepted that she did not inform the HCPC and provided her reasons for not doing so.

35. On the basis of all of the evidence before it, the Panel is satisfied that the Registrant did not inform the HCPC of her conviction. Accordingly, the Panel finds Particular 2 of the Allegation proved.

Particular 3 - found not proved

36. The Panel has considered the HCPTS Practice Note “Making decisions on a registrant’s state of mind” and it has received and accepted legal advice as to how it should approach the issue of dishonesty. In considering Particular 3, the Panel has applied the test for dishonesty as set out in the case of Ivey v. Genting Casinos [2017] UKSC 67 (at para 74) [the Ivey test]. In applying the Ivey test, the Panel has first decided the Registrant's knowledge or belief as to the factual circumstances of her conduct in Particular 2. The Panel understands that the Registrant’s belief does not have to be reasonable, so long as it is genuinely held. The Panel has then considered whether, based on the factual circumstances as it has found the Registrant believed them to be, her conduct was dishonest by the (objective) standards of ordinary decent people. The Panel understands there is no requirement that the Registrant must appreciate that what she has done is, by those standards, dishonest.

37. The Registrant accepts that she did not inform the HCPC of her conviction but does not accept that her actions were dishonest. The Registrant’s position is that she understood that her solicitors would inform the HCPC of the conviction because that is what the solicitor had said to the Judge towards the end of the criminal hearing - “Due to the solicitor reporting he will be contacting yourselves, I thought I did not have to do this…I was not trying to hide anything or deny anything…I have never been in this situation… I admit to the case in court but I do not admit that I was being dishonest with HCPC by not informing them. I was overwhelmed by everything.”

38. In relation to Particular 3, the Panel has first considered what the Registrant knew or believed as to the facts and circumstances of her not informing the HCPC of her conviction.

39. The Panel was in no doubt that the Registrant was aware that the HCPC should be informed of her conviction. The Panel accepts the Registrant’s case, however, that, having heard the judge ask her solicitor who would be informing the HCPC, and hearing her solicitor’s response that the solicitor would do so, she genuinely believed that her solicitor would inform the HCPC. The Panel therefore finds that the Registrant did not know or believe that she had to disclose her conviction to the HCPC. The Panel does not consider that the Registrant was deliberately hiding her conviction from the HCPC.

40. In these circumstances, and applying the Ivey test, the Panel finds that when the Registrant did not inform the HCPC of her conviction for fraud because she did not know or believe that she had to do, she was not acting dishonestly by the standards of an ordinary decent person.

41. Accordingly, the Panel finds Particular 3 of the Allegation not proved.

Decision on Statutory Grounds

42. In reaching its decision on the statutory grounds of conviction and/or misconduct, the Panel has taken into account the submissions of Mr Bellis and it has received and accepted legal advice.

43. Mr Bellis submitted that the Registrant’s behaviour in relation to Particular 2 - not informing the HCPC of her conviction - would amount to misconduct and that the Registrant’s conduct fell far below the standards expected of a Registrant in the circumstances. He submitted that there is a specific obligation on any registrant to tell the HCPC “as soon as possible” if charged with, or found guilty of, a criminal offence. He emphasised that the obligation runs from the point of a registrant being charged with a criminal offence, not from the point of conviction. Mr Bellis submitted that the Registrant would have been aware of this requirement of her.

44. The Registrant did not make any submissions in relation to misconduct.

Conviction

45. The Panel is satisfied, based on the Certificate of Conviction relating to offences of fraud, that the statutory ground of conviction is engaged.

Misconduct

46. The Panel was mindful that the question of misconduct is a matter for the Panel’s professional judgement, there being no standard or burden of proof. The Panel has had in mind the HCPC Standards of Conduct, Performance and Ethics (2016) and has concluded that the following standards are engaged and have been breached:

Standard 9 - Be honest and trustworthy

Important information about your conduct and competence

9.5 You must tell us as soon as possible if:

- You accept a caution from the police, or you have been charged with, or found guilty of, a criminal offence.

47. The Panel is satisfied that the Registrant’s conduct in relation Particular 2 fell far below the high standards of behaviour to be expected of an occupational therapist. The Panel accepts that the Registrant thought that her solicitor would notify the HCPC of her criminal conviction; however, the Panel considers that not informing the HCPC of, firstly, being charged with a criminal offence and, then, of her criminal convictions is a serious matter. The purpose of this requirement is so that the regulator is made aware of the circumstances of the conviction, has the opportunity to investigate these and then take any steps necessary to protect the public. A regulator needs to ensure that registrants are not only safe to practise but also that public confidence in their profession is maintained and standards of conduct and behaviour are upheld. Registrants need to behave in their personal and professional lives in a way which justifies the public’s trust and confidence in them and in their profession. The Panel bore in mind that there was a significant period of time between the Registrant being charged with fraud and being convicted; not once throughout that period did the Registrant notify the HCPC or follow-up on what she thought was her solicitor’s notification. The HCPC has concluded that by not informing her regulator of her serious conviction, or indeed by not following up with the HCPC to confirm that it was aware of the conviction, the Registrant’s conduct fell far below what would be expected of an occupational therapist and that, by her omission, the Registrant did not make sure that her conduct justifies the public’s trust and confidence in her and in her profession.

48. Accordingly, the Panel finds that the facts found proved in Particular 2 amount to misconduct.

Decision on Impairment

49. In reaching its decision on impairment, the Panel has had regard to the HCPTS Practice Notes “Finding that Fitness to Practise is Impaired” and “Conviction and Caution Allegations”. The Panel has taken account of the submissions of Mr Bellis and the written representations provided by the Registrant. It has received and accepted legal advice. The Panel has borne in mind that the purpose of this hearing is not to punish the Registrant for past misdoings, but to protect the public against the acts and omissions of those who are not fit to practise without some sort of restriction.

Submissions

50. Mr Bellis submitted that, in engaging in fraudulent behaviour against Slough Borough Council - dishonestly taking public money that she was not owed - that resulted in a criminal conviction, the Registrant brought the profession into disrepute and behaved dishonestly over an extended period of time.

51. In relation to the personal component, Mr Bellis acknowledged the Registrant’s guilty plea, her written reflections and her steps taken towards rehabilitation. He invited the Panel to assess the Registrant’s level of insight and to consider whether she had addressed the underlying dishonesty and understands fully the impact of her actions on Slough Borough Council. Mr Bellis submitted that the Registrant has not provided sufficient evidence of insight into her conviction for offences of fraud, leading to some risk of repetition in this case.

52. Mr Bellis also submitted that he was in no doubt that, in light of the serious criminal offending in this case, resulting in a suspended custodial sentence, a finding that the Registrant’s fitness to practise is impaired was required to maintain confidence in the Occupational Therapy profession and its regulator.

53. In her completed Case Management Form, the Registrant appears to accept that her fitness to practise is impaired, both by way of her conviction and her misconduct. Nevertheless, whether the Registrant’s fitness to practise is impaired is a matter for the Panel to determine in exercising its independent judgement.

Decision

54. In coming to its decision on current impairment, the Panel adopted the approach formulated by Dame Janet Smith in her Fifth Report of the Shipman Inquiry by asking itself the following questions:

“Do our findings of fact in respect of the [Registrant’s] misconduct and/or conviction show that her fitness to practise is impaired in the sense that she:

a) has in the past acted and/or is liable in the future to act so as to put 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 Occupational Therapy 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 Occupational Therapy profession; and or

d) has in the past and/or is liable in the future to act dishonestly?”

55. The Panel concluded that limbs (b), (c) and (d) above were engaged in this case. It considered the Registrant’s fraudulent activity that led to the convictions to be serious, noting that it was conducted over a prolonged period of time and was directly connected to her employment. The Panel determined that by her actions, the Registrant had breached a fundamental tenet of the profession, namely that it is incumbent on her to ensure that her conduct justifies the public’s trust and confidence in her and her profession and not to transgress the laws of the land. The Panel determined that the Registrant’s conviction, relating to offences involving fraud, and her misconduct in not informing the HCPC, had clear implications in terms of the wider public interest in maintaining public confidence in the profession and brought her profession into disrepute.

56. The Panel took into account the guidance provided in Cohen v General Medical Council [2008] EWHC 581 (paragraph 65) and considered whether the Registrant’s actions giving rise to the fraud conviction and to the misconduct established in this case are easily remediable; whether the conduct has been remedied; and whether it was highly unlikely to be repeated.

57. Although mindful that dishonesty is often said to be difficult to remediate, the Panel is of the view that both the fraudulent conduct and the misconduct in this case are, on the face of it, remediable. It considered that a registrant convicted of offences relating to fraud could, with appropriate reflection, come to an understanding of why she had committed such offences and thereafter develop insight into her personality, together with appropriate strategies to prevent repetition. The Panel bore in mind the judge’s sentencing remarks which included that there is a realistic prospect of rehabilitation and that the Registrant had shown a degree of determination to address her reoffending behaviour and genuine remorse.

58. In considering next whether the Registrant’s actions have been remedied, the information before the Panel from a Probation Services Officer who manages the Registrant’s case is that the Registrant “has actively engaged with probation and has committed herself to exploring very difficult, personal issues that have contributed towards her offending behaviour. [The Registrant] has deeply reflected on these issues and in my opinion, has taken responsibility for the offending situation. [The Registrant] has demonstrated greater insight into her behaviour and has demonstrated a commitment to change those behaviours and/or predispositions that led to the offending behaviour in the first instance.” In relation to the conviction matter, the Panel is satisfied that in engaging actively with probation, the Registrant has taken some steps to remedy the conduct which led to her conviction. However, the Panel takes the view that, on the basis of the written representations provided to the Panel and the Panel not being able to explore these representations further with her, the Registrant has yet to express meaningful strategy or measures that she could take to avoid such conduct in the future. In the Panel’s view the Registrant had also not yet achieved a fully developed level of insight into the impact of her offending behaviour on her employer. In relation to the misconduct matter, the Panel does not consider that the Registrant has achieved sufficient insight into why it is important for registrants to inform the HCPC of criminal charges or convictions. In the Panel’s view, the Registrant has demonstrated partial, but not yet fully developed, insight.

59. After careful consideration, the Panel concluded that the Registrant had not demonstrated full remediation, that there was some risk of repetition and that a finding of current impairment was required on the personal component.

60. In relation to the public component the Panel was in no doubt that, given the nature and circumstances of the conviction and the misconduct in this case, public confidence in the Occupational Therapy profession and its regulatory body would be undermined if there was no finding of impairment in this case. The Panel also considered that it would be failing in its duty to declare and uphold proper standards of conduct and behaviour in that profession if it did not make a finding of impairment. Accordingly, the Panel therefore finds, on the public component also, that the Registrant’s fitness to practise is impaired.

61. Therefore, the Panel has determined that the Registrant’s fitness to practise as an Occupational Therapist is currently impaired, on both the personal and public components, by reason of both her conviction and her misconduct.

Decision on Sanction

Submissions on Sanction

62. Mr Bellis referred the Panel to the HCPC’s Sanctions Policy (SP) document and submitted that any sanction must be proportionate and that that the purpose of a sanction is not to punish the Registrant for a second time. He referred the Panel to the mitigating factors of the Registrant’s early guilty plea and her early acceptance of current impairment in her completed Case Management Form. Mr Bellis said that specific aggravating factors were the convictions for an offence relating to dishonesty and the prolonged period of the offending, from September 2018 to March 2020. He addressed the Panel in relation to the established general principle following The Council for the Regulation of Healthcare Professionals v General Dental Council and Fleischmann [2005] EWHC 87 (Admin) that a registrant should not resume professional practice until satisfactory completion of a criminal sentence (with only limited exceptions) and reminded the Panel that the Registrant is still subject to a suspended custodial sentence until 9 October 2022.

63. The Registrant began her oral submissions by apologising to the Panel and to the HCPC for her conduct. She said that she feels shame and embarrassment and understands the seriousness of what she has done. She said that she recognises fully how her behaviour and actions impacted upon her regulator and her employer at the time, Slough Borough Council, and on her profession more widely.

64. The Registrant addressed the Panel in relation to the context of her criminal offending and her personal circumstances at that time.

65. The Registrant told the Panel that she now has a supportive network around her, including her family and her current employer. She described herself as being much stronger and more confident and is looking to the future.

66. She explained that she had been unable to attend the first day of this hearing in April 2022 because she had been at hospital.

67. She told the Panel about the impact of the interim suspension order that she has been subject to. The Registrant said that she is currently working as an occupational therapy assistant.

68. The Registrant spoke about the importance to her of her career as a registered occupational therapist and said that she would like to return to work full-time in the future. She said that it was important to her to “rebuild the faith” that people had lost in her.

69. She expressed deep regret and remorse, apologising unreservedly on a number of occasions for her failings and for the convictions and told the Panel, “I know this will not happen again at all.” The Registrant asked the Panel to be given an opportunity to prove herself going forward, contending, “I’m not this person that you see on paper, I’m a good OT.”

70. In answer to a question from the Panel, the Registrant explained that she had not yet been able to repay the £2000 criminal compensation requirement, but that she remains fully committed to re-paying it. In terms of rehabilitation activity, she explained that the rehabilitation days are organised monthly and that she has attended all of them. The five remaining sessions that she has are to involve support to the Registrant. In terms of probation meetings, the Registrant said that these used to be twice a month and are now reduced to once a month. She described the probation service as being an excellent support to her.

71. The Panel accepted the advice of the Legal Assessor. She advised the Panel that the full range of sanctions was available to the Panel as this was a case involving a criminal conviction, and she reminded the Panel that it was not to go behind the conviction. She also reminded the Panel of its over-arching objective to protect the public in its broadest sense.

72. The Legal Assessor advised that, whilst the Panel was entitled to take into consideration the sentence that the criminal court imposed upon the Registrant, the sentence imposed was not necessarily a good indicator of the type of sanction that should be applied in this case. Further, she reminded the Panel that it should determine the appropriate sanction before it turns to consider what effect the case of Fleischmann has.

73. The Legal Assessor advised the Panel that any sanction it imposed must be the least restrictive sanction that was sufficient to protect the public and the public interest. It should take into consideration the aggravating and mitigating factors in the case. She reminded the Panel that the purpose of a sanction is not punitive, although it may have that effect. The purpose of a sanction is to protect members of the public and the wider public interest, weighing the Registrant’s interests against the public interest.

Decision on Sanction

74. The Panel found the Registrant to be open and candid in her submissions and considered that her stated remorse was significant and genuine. The Panel considered that the Registrant had demonstrated significant insight at this stage of the hearing and now was of the view that the risk of repetition of her previous conduct is low.

75. The Panel had close regard to the HCPC’s Sanctions Policy document in reaching its decision on sanction, including paragraphs 56-58 of the SP dealing with “Serious cases” involving dishonesty. It was mindful that dishonesty inside the workplace is likely to have a significant impact on the trust placed in a registrant who has been dishonest, but noted that there were no public safety concerns in this case.

76. The Panel reminded itself that the purpose of a sanction is not to punish. Rather, a sanction should only be imposed to the extent that it is required to protect the public, to maintain a proper degree of confidence in the profession and the regulatory process, and to declare and maintain proper standards among fellow professionals. To ensure this approach the Panel reminded itself to first consider whether its findings require the imposition of any sanction at all. If they do, then the available sanctions must be considered in ascending order of seriousness until one that satisfies the factors already identified is reached. The Panel confirms that it has followed this approach in the present case.

77. The Panel identified the following mitigating factors:

• the Registrant’s significant personal mitigating circumstances at the time of the conduct that led to the criminal convictions. The Panel also noted the judge’s sentencing remarks about the Registrant’s strong personal mitigation and realistic prospect of rehabilitation;

• the Registrant’s early guilty plea;

• the Registrant’s full and frank apology;

• the Registrant has engaged fully with probation and rehabilitation services.

78. The Panel also identified the following aggravating factors:

• the serious nature of the criminal conviction which related to the Registrant’s work as an Occupational Therapist and a financial gain of £9500;

• the misconduct found proved in this case was deliberate and involved a breach of trust;

• the conduct giving rise to the criminal convictions spanned a significant period.

79. The Panel considered what sanction, if any, should be applied, and considered its powers in ascending order of seriousness. The Panel had in mind the HCPC Sanctions Policy and the principle of proportionality when considering sanctions. The starting point for the Panel was that the Registrant’s dishonest conduct was very serious; on the new information before the Panel today, however, it is clear that the Registrant has taken and continues to take steps to address the matters and the Panel commends the Registrant for this.

80. The Panel first considered taking no action but concluded that, given the seriousness of the criminal offences and the misconduct in not notifying the HCPC of her convictions, this would be inappropriate and insufficient to declare and affirm proper standards of conduct and behaviour, or to maintain public confidence in the profession.

81. The Panel then considered whether to make a Caution Order and considered paragraph 101 of the SP which states as follows:

“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.”

82. The Panel was of the view that, having heard from the Registrant in detail today, bullet points 2, 3 and 4 above had been satisfied. However, and crucially in this case, this was not an isolated lapse, nor minor in nature, as the proved Allegation involved dishonesty in the context of her professional career over an 18-month period. It resulted in a criminal conviction and a suspended custodial sentence, which is still operational. The Panel considered the conduct to be very serious and that a Caution Order would not be appropriate or sufficient to address the public interest.

83. The Panel next considered a Conditions of Practice Order. The Sanctions Policy provides that Conditions are “less likely to be appropriate in more serious cases, for example those involving dishonesty.” In the Panel’s view, this is not a case that is suitable for the imposition of a Conditions of Practice Order, there being no concerns with the Registrant’s clinical practice or competency as an Occupational Therapist. It was clear to the Panel that Conditions of Practice were therefore not an appropriate sanction in this case.

84. The Panel then considered whether a period of suspension would be an appropriate and proportionate response. It had regard to paragraph 121 of the SP which states as follows:
“A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:

• the concerns represent a serious breach of the Standards of conduct, performance and ethics;

• the registrant has insight;

• the issues are unlikely to be repeated; and

• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”

85. The Panel has found that the Registrant’s actions were serious and deliberate. In addition, the dishonesty found proved requires a more serious sanction as a matter of principle. The Panel has found that the Registrant has now shown developed insight and taken steps towards remediation. The Panel, having heard from the Registrant today, considered that the issues are unlikely to be repeated and that the Registrant is doing all that she can, in particularly challenging personal circumstances, to resolve or remedy her failings. The Panel therefore was satisfied that a Suspension Order was both appropriate and proportionate and would adequately address the public interest whilst sending an appropriate deterrent message to the profession.

86. The Panel determined that a Suspension Order for six months would be appropriate and proportionate in this case and would adequately mark the severity of the conduct. The Panel was mindful of the significant impact that such an order may have on the Registrant but determined that the wider public interest outweighs the Registrant’s interests in this regard.

87. The Panel considered paragraph 130 of the Sanctions Policy in relation to a Striking off Order and noted that “this is a sanction of last resort for serious, persistent, deliberate or reckless acts involving (this list is not exhaustive): dishonesty…abuse of professional position, including vulnerability…” The Panel determined that this sanction of last resort would be disproportionate in the particular circumstances of the case, in which the Registrant has explained her challenging personal circumstances at the time. She has demonstrated a clear understanding of the severity of the conduct that led to the convictions and assured the Panel that there will be no repetition of similar conduct.

88. The Panel considered that a future reviewing panel would be assisted by the following:

• The Registrant’s attendance at the review hearing;

• A report from (or attendance at the hearing by) the Registrant’s current employer, attesting to the Registrant’s honesty and integrity in the workplace;

• A letter from the Registrant’s probation officer, confirming that the Registrant’s suspended custodial sentence has been satisfactorily completed and detailing the probation/rehabilitation sessions that the Registrant has engaged in;

• Evidence that the £2000 compensation payment has been re-paid in full by the Registrant or, alternatively, the Registrant’s plans for repayment;

• Evidence that the Registrant has kept her Continuing Professional Development up to date.

 

Order

ORDER: That the Registrar is directed to annotate the register entry of Miss Gurjinder Bhogal with a Suspension Order which is to remain on the register for a period of 6 months from the date this order comes into effect.

Notes

The Order imposed today will apply from 17 June 2022.

Determination on Interim Order

The Panel heard an application from Mr Bellis to cover the appeal period by imposing an 18-month interim suspension order on the Registrant’s registration. He submitted that such an order is necessary to protect the public and is otherwise in the public interest, which would mirror the Panel’s findings at the impairment stage. Mr Bellis noted that the Registrant remains subject to a suspended custodial sentence and reminded the Panel of the “Fleischmann principle”.
The Panel heard and accepted the advice of the Legal Assessor. It had careful regard to Paragraphs 133-135 of the Sanctions Policy and to Paragraph 7 of the HCPTS Practice Note on Interim Orders, which offers guidance on interim orders imposed at final hearings after a sanction has been imposed.
The Panel recognised that its power to impose an interim order is discretionary and that the imposition of such an order is not an automatic outcome of fitness to practise proceedings in which a Suspension Order has been imposed, and that the Panel must take into consideration the impact of such an order on the Registrant. The Panel was, however, mindful of its findings in relation to the criminal conviction and misconduct in this case.
The Panel decided to impose an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001. The Panel was not satisfied, having heard from the Registrant in detail at the sanction stage of the hearing, that an interim suspension order is necessary for the protection of the public. The Panel was mindful that it will be a relatively rare case where an interim suspension order is made solely on the basis of the public interest but has had regard to the nature and gravity of the conduct it has found proved, namely a criminal conviction for fraud, and the resulting public interest concerns, and the full reasons set out in its decision for the substantive order in reaching the decision to impose an interim order. In the circumstances, it considered that public confidence in the profession and the regulatory process would be seriously undermined were the Registrant allowed to remain in practice as an Occupational Therapist during the appeal period.
The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined.
If no appeal is made, then the interim order will be replaced by the Suspension Order 28 days after the Registrant is sent the decision of this hearing in writing.
That concludes this determination.

Hearing History

History of Hearings for Miss Gurjinder Bhogal

Date Panel Hearing type Outcomes / Status
20/05/2022 Conduct and Competence Committee Final Hearing Suspended
11/04/2022 Conduct and Competence Committee Final Hearing Adjourned part heard
24/02/2022 Conduct and Competence Committee Interim Order Review Interim Suspension
23/08/2021 Investigating Committee Interim Order Application Interim Suspension