Aparna Srivastava

Preliminary Matters

Hearing in private
1. Ms Malcolm stated that at some point in the proceedings it would be necessary to refer to the Registrant’s health. It was proposed that this could be dealt with in a discrete portion of the hearing and so her application was for the Panel to exercise its discretion by hearing in private that part of the proceedings where the Registrant’s health was referred to.

2. The HCPC did not oppose this application.

3. In her advice to the Panel, the Legal Advisor stated there is a presumption that all hearings would be in public but that there were exceptions to this rule and one of those was the protection of the private life of the Registrant or their immediate family. The Panel had the discretion to hear all or part of the hearing in private but if the Panel exercise its discretion the Panel should give reasons for doing so.

4. The Panel granted the application to hear those matters which relate to the Registrant’s health in private, in discrete parts of the hearing. In doing so, the Panel noted that whilst there was a public interest in this matter being heard entirely in public, the Registrant’s right to a private life outweighed that public interest in this instance.

Amendment of the Allegation

5. On the first day of the hearing, the HCPC made an application to amend the Allegation in two respects. First, the inclusion of two further particulars. Second, by two small amendments to the schedules. The changes, if approved, would necessitate renumbering of the Allegation and the re-numeration of the matters set out in the two schedules in question.

6. The HCPC submitted that the new particulars which are shown in the amended allegation above as particulars 6 and 7 reflected the evidence. The HCPC further submitted that the Registrant had been on notice of the proposed changes since 2 March 2021 and has not to date raised any objection to those amendments.

7. The two additional particulars arose after the matter had been sent to external solicitors for further investigation. These are therefore matters which have not been before any panel before. These two particulars arise from the matters which are touched on by the HCPC witness and relate to documentation included in the HCPC bundle. It was argued by the HCPC that there is a public interest in these further matters being pursued and that the inclusion did not prejudice the Registrant.

8. In relation to the minor changes to the schedule, the HCPC stated that both amendments were corrections. These were:
a. Within Schedule A there was an erroneous duplication, referenced as 73(a) and 73(b): in fact only one file note relating to this patient was before the Panel and therefore the reference to both (a) and (b) is inaccurate and Schedule A should be amended to remove any reference to patient 73(b) and the patient referred to as patient 73(a) should be referred to as patient 73. b. Within Schedule B, there is a reference to patient 78. There is no paperwork in relation to this patient in the bundle and therefore the HCPC would be offering no evidence on this item within that schedule.

9. Ms Malcolm accepted the proposed amendments to the alterations to Schedules A and B.

10. In relation to the proposed additional particulars, Ms Malcolm argued that they should not be included as there was no evidential basis for their inclusion; there was, for instance, no information about the context within which the WhatsApp message had been sent. The wording of the allegation was limited and did not indicate the extent to which there is a failing or shortcoming by the Registrant; it was the forwarding of a message containing recommendations of another person.

11. Ms Malcolm was concerned about possible implications that the WhatsApp message might be construed as being connected to the recipient’s wellbeing.

12. The HCPC confirmed that there was no suggestion that the member of the administrative team who had subsequently received this WhatsApp message was, or has ever been, diagnosed as having the condition indicated in the content of the WhatsApp. It was confirmed that the HCPC case was not that this WhatsApp message was advice which was being given by the Registrant to a patient; or to someone suffering from cancer; or to a colleague who might have taken this as professional advice.

13. The Legal Assessor advised that there was no statutory power on which the Panel could rely for amending the Allegation. However, two cases, (Ireland and Ma v HCPC [2015] EWHC 846 (Admin) and PSA v HCPC and Doree [2017] EWCA Civ 319), had established a common law discretion to amend the Allegation, up to the stage of a finding of fact. This discretion should only be exercised where such amendment did not cause a registrant any injustice or prejudice. She further advised that the Panel should consider whether there is sufficient information before it, to be able to support a conclusion that there was a triable issue which met the threshold of a case to answer, and she directed the Panel to the terms of the relevant HCPTS practice note.

14. The Panel considered the party’s representations and referred to the guidance for the Investigating Committee of the basis on which it should consider whether there was a triable issue, such that there was a “realistic prospect” that the HCPC would be able to establish at a hearing that a registrant’s fitness to practise is impaired.

15. The Panel was aware that there was a public interest in ensuring that matters are fully explored and that there is no under prosecution. The Panel noted there was limited context in relation to the two particulars that the HCPC applied to be added. The Panel was aware, however, of the provenance of the WhatsApp message referred to in those particulars and that it would be receiving testimony from the witness exhibiting this WhatsApp message. At this point the Panel and the Registrant would be able to establish and probe the context within which this WhatsApp message was generated and received.

16. In the Panel’s view the information before it met the threshold for a case to answer and there was a realistic prospect of making a finding of the Registrant’s fitness to practise is impaired. The Panel therefore granted the HCPC’s application for inclusion of these two further particulars.

17. In relation to the amendments of the schedules, the Panel accepted that amendments to those were to correct errors and better reflect the evidence. Those amendments were also approved.

Further amendment of the Allegation

18. The HCPC made an application on day one of the hearing that the administrative person referred to in the bundle by name be referred to in the hearing as Colleague A. This person was not giving evidence and there was no reason to refer to her by name. Ms Malcolm made no objection to this application. The Panel granted the application.

19. At the resumption of the hearing on Tuesday 17 January 2023, the HCPC made an application to amend Particular 6 which referred to a WhatsApp message being sent to Colleague A. Colleague A was the administrative member of staff to whom the WhatsApp message was sent at a later date, she was not the person who had received the WhatsApp on the 3 February 2018. By the time of this application the Panel had allocated the reference ‘Colleague B’ to another former member of staff. This being the case, the HCPC requested that the reference within Particular 6 be changed from ‘A’ to ‘C’. Ms Malcolm did not object to this application.

20. The Panel having reminded itself of the legal advice it had previously received, accepted that this further application was needed simply to correct the reference to the person involved. The additional amendment was therefore approved.

Background

21. The Registrant was employed as a Locum Dietitian within the East Riding Community Dietitian team at City Health Care Partnership (CHCP) from November 2017 until February 2018. She worked with adult core dietetic patients. Her line manager was Colleague B.

22. Several weeks after the Registrant began working at CHCP Colleague C, noted that several colleagues were identifying concerns in relation to the treatment the Registrant had been providing to patients. Colleague C sent an email to colleagues on 5 March 2018 asking them to relay to her their concerns. These concerns were collated by Colleague C and sent to the HCPC with a completed referral form on 3 April 2018.

Evidence and submissions

23. The Panel received testimony from the HCPC’s witness, Colleague C, who had made the referral to the HCPC and had provided the further information sought by the HCPC to bring this case to a hearing. Some of the records which she exhibited were patient records that she had personally reviewed and made clinical observations upon. The review of the remaining patient records had been undertaken by three fellow qualified dietitians. Given that Colleague C left her role in August 2018, she did not have access to any further information.

24. The Panel noted that there were gaps within the information provided by the HCPC. The Standard Operating Procedure for Record Keeping (the Policy) that the Panel had before it was that used by CHCP’s predecessor, Humber NHS Foundation Trust. There was no evidence from the HCPC witness, or documentary evidence in relation to, the induction the Registrant received. There was limited information about SystmOne, the IT based recording system.

25. The Registrant had made a limited admission in relation to particular 1(a), not including NHS numbers on the records completed for the patients listed in Schedule A. The Registrant denied all other elements of the Allegation. The Registrant had not provided the Panel with any supporting documentation, however during her oral testimony she referred the Panel to articles on the World Wide Web which she contended supported her views. The Panel has referred to these as invited to do.

Submissions

26. The Panel received a set of detailed written submissions from each of the Parties which the Panel has had the benefit of not only reading but referring to during its deliberations. Those submissions are reflected in the Panel’s decision-making.

Decision on facts

27. Before starting its deliberations, the Panel heard and accepted the Legal Assessor’s advice. At this fact-finding stage the burden of proof is upon the HCPC, and the Registrant does not have to prove or disprove anything.

Particular 1
Whilst working as a locum Dietitian for City Health Care Partnership (CHPC) between 20 November 2017 and 9 February 2018, you did not:

28. The Panel accepted that the Registrant had been working as a locum during the dates specified for CHCP. The HCPC witness testified to this and it was accepted by the Registrant as being the case.

Particular 1a. – Enter names and/or NHS number on records completed for patients listed in Schedule A
Not proven in relation to three records which contained both NHS number and patient name.
Proven in relation to the rest as not having NHS numbers and/or patient names.

29. The HCPC witness, Colleague C, confirmed that for a period of time the Registrant had been required to make handwritten notes due to her having problems gaining IT access to SystmOne. When cross examined, Colleague C said that she could not disagree with the suggestion that it took about 6 or 7 weeks for the Registrant to get access to SystmOne. The Registrant stated that she had not been able to access SystmOne for seven of the ten weeks she was working for CHCP, and when she had been given access to the SystmOne there were some clinic locations where access to the system was not possible. The Registrant stated that the administrative staff had produced a list of patients to be seen by her, and they had scanned into the system the Registrant’s notes once completed. These handwritten notes had been collated behind the list of patients seen in that clinic session.

30. The Panel accepted that a patient may have a name similar or identical to another patient, and that use of the unique NHS number allocated to that patient would avoid any confusion as to who the patient is. The Policy stated that every page of a patient’s record had to identify a patient by their name and also their unique NHS number.

31. The Panel accepted that handwritten notes, which were to be scanned onto the system, should show on all pages, be they the first, a continuation page or the front or the reverse of such a page, the name and NHS number thereby avoiding any errors in uploading or identifying who the patient record related to. The Panel also considered that identifying the sequence of handwritten notes by 1 of 2, or 2 of 2, for instance, would also avoid any potential issues of sequencing.

32. The Panel has carried out a full forensic analysis of the eighteen patient records referred to in Schedule A. The Panel’s observations and conclusions are set out in full on an annotated Schedule A attached to this decision. The Panel has made proven findings in all but three instances. The three not proven are:
a. Schedule A no. 9, Patient 44 [PDF127-131]. This patient record comprises five sheets and on four of those there is a name and NHS number. The fifth sheet, which is not lined paper, appears to be personal jottings of the session rather than part of the record: it has possibly been scanned in erroneously. This is supported by the fact that the content in the personal jottings have been repeated upon one of the other lined pages. The Panel has therefore concluded that this fifth page is not part of the patient record therefore the four pages in this instance do have a name and NHS number. b. Schedule A no 11, Patient 77 [PDFs 179 and 219]. This is listed as one item of the particular but relates to two separate records. The patient record on PDF179, which is a meeting on a different date, is not proven, as it has a name and NHS number redacted: these redactions imply that there had been a name and NHS number entered. The Panel has therefore made no finding on this portion of this allegation. The Panel has however found the patient record on PDF 219, proven.
c. Schedule A no 15, Patient 107 [PDF231]. The redactions on this page indicate the existence of patient name and NHS number.

Particular 1(b): Record clinical reasoning and/or evidence base for food and drink recommended to patients in Schedule B.
Proven in relation to 67 records.
Not proven in relation to 9 records.

33. The spelling adopted within the attached schedule in which the Panel has set out its findings, are those used by the Registrant within her recorded notes.

34. Ms Collins directed the Panel to the British Dietetic Association (BDA) guidance in relation to what is acceptable in terms of recommendations. Colleague C stated that the recommendations made by the Registrant were not consistent with normal practice and in some instances, they could possibly be harmful.

35. The Panel noted that in evidence the Registrant had stated that where a recommendation was part of known and understood practice there was no need to note the evidence base unless it was an unusual or novel reference at which point this would be helpful. In relation to clinical reasoning, her evidence was that a professional colleague would understand the basis of her recommendations. Further, she told the Panel her clinics were so time pressured that it was not possible to write all references as this further reduced the time she had for seeing patients.

36. The Panel accepted Ms Malcolm's argument that it needed to reach a decision on what should have been recorded. The Panel considered this allegation carefully and noted the interpretations of both clinical reasoning and evidence base raised in the oral evidence. In undertaking its task, the Panel considered the recommendations by taking a holistic approach, reviewing the Patients’ presenting condition, medical history, the justification for the recommendations in order to make a decision on the clinical reasoning and the evidence base. The Panel noted the range of recommendations which were cited by the HCPC as being outside the guidelines for dietitians.

37. The Panel accepted that in relation to recommendations that would amount to ‘standard advice’ the obligation to record clinical reasoning and evidence base would not arise given both would be commonly known to other practitioners. In any event, for standard advice there may be practical limitations e.g. time-pressures that would militate against such recording.

38. However, the Panel considered the position differed in relation to recommendations that were ‘non-standard’ i.e. recommendations that were outside the ambit of guidelines or not commonly known. In these cases, the Panel determined that clinical reasoning would be indicated with a note of the rationale or purpose behind the recommendation. It did not evaluate the quality of the clinical reasoning/evidence base but merely identified its existence. The Panel also determined that an evidence base would be indicated either by a note of the patient’s presentation (e.g. a clinical or personal objective such as weight loss) and/or existing patient preferences or actions that would enable another practitioner to readily understand why the recommendation was made. Alternatively, an evidence base could comprise of reference to peer reviewed research sources to support the clinical reasoning.

39. From the schedule it is apparent that there are trends in some of the recommendations. The Panel was of the view that some are not standard, such as drinking fizzy water or fizzy drink before a meal. One recommendation the Panel considered acceptable (although it may not have been standard at the time) was eating kefir, a fermented product beneficial for the gut. In relation to other recommendations, the Panel was of the view that they could not find within the clinical records any basis, for example, regularly suggesting almonds rather than any other nut, hand cooked crisps rather than ordinary crisps nor for recommending Himalayan salt rather than any other form of salt.

40. The Panel has concluded that those matters found lacking an evidence base or lacking clinical reasoning are proven. That is 67 number of cases within Schedule B.

Particular 1(c) - Proven in respect of both clinical reasoning and an evidence base in all records save for two records (which had clinical reasoning)
Did not record clinical reasoning and/or evidence base for recommending chewing food 32 times to patients listed in Schedule C.

41. As the allegation identifies, all 16 cases within Schedule C relate to a recommendation of chewing a mouthful of food for 32 times. The HCPC contend that the records for the patients in Schedule C provide either no clinical reasoning or evidence base for that recommendation. The Panel has therefore within Schedule C (which is attached as an Annex to this determination), framed its findings and observations on both clinical reasoning and evidence base.

42. The Panel noted that the Registrant had admitted that 32 was a random number chosen but she said her objective was to slow down chewing. She stated that 32 reflected the number of teeth that humans have but had no basis for recommending chewing 32 times other than that. The Registrant accepted that for an evidence base recommendation there had to be reliable research e.g. journal publications and supportable research-based reports. The Registrant was unable to refer the Panel to historic research in support of her recommendation to chew 32 times but at the close of her evidence offered to supply the Panel with some current evidence for this being acceptable practice.

43. The Panel accepted that an evidence base for a recommendation would need to be based upon consistent clinical data, and sound peer reviewed research before being accepted as common and acceptable practice. The Panel had reviewed those websites provided by the Registrant and did not accept the sources of information provided as reliable clinical evidence.

44. The Panel considered the evidence of the HCPC witness, and the guidelines issued for Dietitians which do not include reference to guidance of chewing 32 times. The Panel has not accepted therefore that there is a supporting evidence base for this recommendation of chewing 32 times and so finds all 16 instances to be proven in respect of this element of Particular 1(c).

45. The Panel noted that the Registrant had often coupled her chewing recommendation with reference to eating mindfully. Colleague C stated that eating mindfully covers a range of actions and behaviours, chewing being one of those. She also stated that a recommendation to eat mindfully, may, or may not, be part of an aim to lose weight. Eating slowly was accepted by Colleague C and the Registrant as being a clinically supportable recommendation and would fit with an objective of weight loss. Therefore, the Panel found that ‘eating mindfully’ was not sufficient to amount to clinical reasoning with respect to chewing 32 times. This position was underlined as the Registrant cited ‘eating mindfully’ as a separate and discrete action e.g. patients 27, 39, 63 and 65.

46. The HCPC witness, Colleague C, informed the Panel that the purpose of recording recommendations in a patient record was to ensure that a fellow practitioner could understand what was agreed, what was planned, and the reasons for that plan, as well as being able to see that those recommendations fitted with the overall aim and objective for that patient. In her view, the Registrant’s recommendations not only lacked evidence base, but also lacked any recorded clinical reasoning for those recommendations. Colleague C took the Panel to a number of instances where no clinical reason had been given for the recommendation of chewing 32 times, nor for that recommendation being linked to a stated overall aim.

47. In the attached Schedule C, the Panel has set out its observations and decisions in relation to whether there had been any clinical reasoning for the recommendation of chewing 32 times. The Panel has found that with the exception of entries made in relation to patients 17 [PDF 75] and 72 [PDF 172] no clinical reasoning has been recorded. The Panel has therefore found the remaining 14 cases proven in respect of lack of clinical reasoning for the Registrant’s recommendation.

Particular 2 – Not proven in relation to 3 records. Proven in relation to 8 records in relation to recommendation for a brand
Proven in relation to 7 records in relation to use of a specified shop Proven in relation to 1 record in relation to brand and shop.
You recommended using specific shops and/ or brands to the patients listed in Schedule D, without providing clinical reasoning for doing so.

48. The Panel scrutinised the clinical records and considered both parties submissions and the evidence it had heard. The Panel recognised that patient records are a contemporaneous record of the consultation and offers reliable evidential weight to what was, or was not provided, to those patients. Indeed, one of the purposes of maintaining such records is to accurately reflect any such reasoning that required explaining or sharing.

49. The Panel accepted that if recommendations about brands or shops were made without clinical reasoning, that would be non-standard practice. Recommendations should be clearly made in conjunction with the Patient and not those of the clinician alone. The Panel has also accepted that the clinician should be seen to be impartial when making any recommendations, and not be open to challenges of shop or brand loyalty.

50. The particular includes an option, and so the Panel was required within each numbered example to consider the recommendation made in relation to a brand or a shop. In order to do this the Panel has had to identify whether there was clinical reasoning within wider parameters, such as whether there was a consideration of affordability or ease of access to a local store which would be understood by other practitioners when reviewing those recommendations. This has also required the Panel to look at the whole of a patient’s records to assess whether the advice is consistent with the needs of that patient.

51. The Panel noted that the Registrant had maintained that she had little time for making notes in consultations, however the Panel was of the view that making specific recommendations for a brand or a shop would increase the burden of notetaking.

52. The Panel has found three of the examples listed in Schedule D contain clinical reasoning for those recommendations. These relate to patients 7,
109 and 111. The reasons for those decisions are listed within the Panel’s observations column on Schedule D.

53. In relation to the remaining examples on Schedule D the Panel has found that 8 are proven in relation to the recommendation for a particular brand and 7 in relation to the using of a specified shop. One entry has been found proven both in relation to the recommendations for a particular brand and use of a specified shop.

Particular 3 - proven
You recommended that Patient 69 listen to Classic FM “first thing in the morning and last thing at night” with no explanation or clinical reasoning for doing so.

54. The Panel has noted that this particular includes reference to ‘no explanation’ as well as ‘no clinical reasoning’. In this regard the Panel has accepted that it is not standard for a dietitian to make recommendations beyond those relating to nutrition without explanation or clinical reasoning.

55. The Registrant told the Panel that this patient was stressed and having difficulty sleeping however there is nothing within the patient notes to identify that this was the case. It appeared to be a stand-alone statement without any link to an objective or aim.

56. From a review of the patient’s notes before the Panel, there appears to be nothing to support the recommendation as being patient based and nothing that would assist a fellow practitioner establishing the reasons why this recommendation had been made at this clinical session. The Panel therefore find this particular proven.

Particular 4 – not proven
You recommended that Patient 48 listen to Pandit Hariprasad Chaurasia flute music with no explanation or clinical reasoning for doing so.

57. The Registrant had told the Panel that this music would be calming for someone who was stressed. The Panel noted in the patient record alongside the recommendation it states ‘listen to reduce stress’. The Panel considers this an explanation for the recommendation.

Particular 5 - proven
You recommended that Patient 128, who was 91 years old and suffering from Parkinson’s Disease, “try Sahaj Yoga” with no explanation or clinical reasoning for doing so.

58. The Panel acknowledged that undertaking some form of exercise including Yoga may be beneficial to some patients. The Panel noted that this specific form of Yoga is not widely known or easily accessible through classes.

59. The Registrant said that she had a vivid recall of this patient but there was nothing in the patient notes which identified the uniqueness of the home situation or the patient’s objectives as described by her. The Registrant considered that this patient was able, with the assistance of family and technology to undertake this form of Yoga without the need to travel a great distance for an instructor led class as asserted by Colleague C.

60. From the notes before the Panel there appeared nothing to support a recommendation that this patient undertake this specific form of Yoga, nor that it was intended to be a home-based activity. There was in fact no information in the notes that would allow a fellow clinician to understand what and why this recommendation had been made for this particular patient. This particular is proven.

Particular 6 - proven
You sent a WhatsApp message to Colleague C on 3 February 2018 stating words to the effect that:
a. cancer does not spread without sugar and will die on its own without sugar;
b. taking a full lime in warm water is 1000 times more effective than chemotherapy; and
c. taking three spoons of organic or virgin coconut oil in the early morning will keep cancer at bay.

61. There was evidence from Colleague C that this WhatsApp message had been sent to her. The Registrant accepted that she had sent the WhatsApp message to Colleague C.

62. The Panel paid specific attention to the wording of the particular which was limited to ‘stating’. On a purely factual basis the WhatsApp message does state those phrases listed in the three limbs of Particular 6 and so this particular is proven.

Particular 7 - proven.
The recommendations made at particular 6 (a), (b) and (c) were not clinically justified.
63. The content of the WhatsApp message was accepted by the Registrant as not being good advice. She told the Panel that she had a conversation with Colleague C in which she had informed her that she, the Registrant, had concerns about this advice relating to cancer that was being spread amongst patients. It was this concern that had led to her forwarding the WhatsApp message to Colleague C.

64. The Panel heard from Colleague C that this was not the basis on which she understood the WhatsApp had been sent and she did not recall any previous conversation with the Registrant on this topic. She believed that this WhatsApp message was the Registrant advocating that others follow this advice on nutritional ways of treating cancer. Colleague C confirmed to the Panel that there is nothing within the guidelines that would support this advice.

65. The Panel accepts that the content of the recommendations in the WhatsApp message is not clinically justified and so this particular is proven.
Preliminary matters at resumption of hearing on 12 July 2023.

66. The Panel noted that the HCPC representative had changed and that this was a relatively complex case in which a significant amount of evidence had been heard. The HCPC representative had submitted written representations but made some minor oral amendments in the hearing to better reflect the Panel’s previous findings.

67. Ms Malcolm reminded the Panel that there had been an application to hear some of the evidence in private, where this related to the Registrant’s health. The Panel had already received and accepted legal advice at the outset of the proceedings in respect of this. It confirmed that the determination to hear evidence that related to the Registrant’s health in private, in order to protect the private life of the Registrant, remained in place.

Grounds
68. The HCPC relied firstly on the statutory ground of misconduct. The HCPC submitted that taken together or individually, the behaviour outlined in the factual particulars amounted to misconduct in that it constituted a serious falling short of what would be proper in the circumstances. It was submitted that the failings of the Registrant affected a large number of patients and potentially put patients at risk of harm. The potential harm was caused when recommendations were made without applying tried and tested research, and in making recommendations without clinical justification. Those recommendations that were potentially harmful, included that a patient with coeliac disease should eat pearl barley, and that patients should consume fizzy drinks.

69. The HCPC also relied on the statutory ground of lack of competence. It made submissions that the standard of professional performance was unacceptably low and that this had been demonstrated by a fair sample of the Registrant’s work. The HCPC provided the Panel with case law and submitted that if the Panel found either misconduct or lack of competence, it must go on to consider whether the Registrant’s fitness to practise is currently impaired. The HCPC provided written submissions as to how the Panel should determine this and provided assistance in relation to determining both the public and personal component of impairment of fitness to practise.

70. The Registrant gave evidence under affirmation. She confirmed that she accepted the Panel’s findings of fact. The Registrant accepted a lack of competence and that her fitness to practise was currently impaired. She disputed misconduct.

71. The Registrant confirmed that she understands the importance of recording NHS names and numbers. She explained that in future she would write the full name and NHS number on every page of handwritten notes. She explained that one of the reasons why clinical reasoning was important was so that the ‘next person can continue the care of that patient.’

72. The Registrant put forward that Healthline should not be the sole evidential base and referred to the British Dietetic Association and the Dietitian’s network. She explained that in future she would not name a brand or a supermarket. She said that in future she would give an explanation as to why non-standard advice had been given to a patient.

73. The Registrant maintained that the purpose of sending the WhatsApp was to forward a message to the team that had been sent to her by a patient. The Registrant confirmed she did not agree with the content of the WhatsApp and should have clarified within the message that she was forwarding it. The Registrant acknowledged the dangers of forwarding inaccurate information and that it could send the ‘wrong message’. She confirmed that she was last employed 5 years ago and has not worked since. The Registrant gave some details of the significant health issues that she currently faces. She explained that she hopes to return to practice in the future but could not give a timescale for this as she is currently focusing on ‘getting her health back to a good place’.

74. The Registrant was taken through the Continuing Professional Development (CPD) that she had undertaken by Ms Malcolm and acknowledged that she would need further training before returning to practice. In response to Panel questions, the Registrant clarified that she had no idea as to when she would be well enough to return to practice and had not looked into what might be expected before she could return. The Registrant’s view was that the CPD she had completed was relevant to the Panel’s findings. She acknowledged the impact of the findings on the Dietitian profession as a whole in that it reduces confidence in the profession. When asked to reflect on the causes of her failings, the Registrant pointed again to the 6-week delay in accessing the electronic notes.

75. Ms Malcolm made submissions on behalf of the Registrant. She submitted that the crux of the errors was primarily poor record keeping. It was submitted that the Registrant had not been deliberately advising patients inaccurately. Ms Malcolm acknowledged in her submissions that, to the extent the errors went beyond poor record keeping, the Registrant now understands the need for better clinical reasoning and the need for further training. There was no deliberate or flagrant attempt to undermine the profession on the Registrant’s part.

76. Ms Malcolm submitted that it was important for the Panel to consider that the Registrant had not endorsed the content of the WhatsApp message when considering misconduct. It had only been sent to staff in a dietetic context, it was not forwarded to any-one else or to a service user. It was submitted that this did not meet the threshold for misconduct.

77. The HCPC was given the opportunity to clarify some issues in the written submissions with reference to the specific standards relied upon therein, and did so.

78. The Panel heard and accepted the advice of the Legal Assessor. In relation to the statutory ground of lack of competence, the Legal Assessor summarised cases of Holton v GMC (2006) EWHC (2960), R (on the application of Calheam) v GMC (2007) EWHC 2606(Admin), Dr Peter Spencer and General Osteopathic Council (2012) EWHC 3147 (Admin) and PSA v General Optical Council (Honey-Rose) (2021) EWHC 2888.

79. The Panel also heard and accepted the advice of the Legal Assessor in relation to misconduct, taking into account the cases of Roylance v GMC (no 2) 2001 1AC 311, Beckwith v SRA (2020) EWHC 3231 (Admin), R (Remedy UK Ltd) v GMC 2020 EWHC 1245 (admin), Shaw v General Osteopathic Council (2015) EWHC 2721 and Bolton v The Law Society (1994) WLR 512.

80. The Legal Assessor reminded the Panel of the two-stage test for impairment of fitness to practise set out in the case of Cheatle v GMC (2009) EWHC 645 (Admin) and referred the Panel to the case of CHRE v NMS (and Grant) (2011) EWHC 97 (Admin), which includes the questions formulated by Dame Janet Smith in the Fifth Shipman report. The Legal Assessor summarised the case of Cohen v GMC (2008) EWHC 158 (Admin). She reminded the Panel of the Registrant’s protected characteristic, in terms of the Equality Act 2010, and that her ability to work had been restricted for this.

Panel Decision on grounds.
81. The Panel noted that the Registrant accepted a lack of competence in relation to Particulars 1, 2, 3 and 5. However, the Panel was aware that it is a matter for its professional judgment as to whether the conduct found proven met the requisite threshold for misconduct or lack of competence. It acknowledged that a breach of the HCPC Standards of Conduct, Performance and Ethics (the HCPC Standards) does not, of itself, automatically equate to a finding of misconduct. The Panel concluded that the matters on which it has made a finding, namely allegations 1-3 and 5-7 above, would put the Registrant in breach of the following HCPC Standards:
• 2.7 You must use all forms of communication appropriately and responsibly, including social media and networking websites.
• 3.3 You must keep your knowledge and skills up to date and relevant to your scope of practice through continuing professional development.
• 6.1 You must take reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.
• 10.1 You must keep full, clear and accurate records for everyone you care for, treat or provide other services to.

82. The Panel also considered the Standards of Proficiency for Dietitians (the Dietitian Standards) and found that there had been a breach of the following Dietitian Standards:
• 3.1 understand the need to maintain high standards of personal and professional conduct.
• 3.3 understand both the need to keep skills and knowledge up to date and the importance of career-long learning.
• 4.2 be able to make reasoned decisions to initiate, continue, modify or cease interventions or the use of techniques or procedures, and record the decisions and reasoning appropriately.
• 4.4 recognise that they are personally responsible for and must be able to justify their decisions.
• 10.1 be able to keep accurate, comprehensive and comprehensible records in accordance with applicable legislation, protocols and guidelines.
• 10.2 recognise the need to manage records and all other information in accordance with applicable legislation, protocols and guidelines.
• 12.1 be able to engage in evidence-based practice. Evaluate practice systematically and participate in audit procedures.
• 13 understand the key concepts of the knowledge base relevant to their profession.
• 14 be able to draw on appropriate knowledge and skills to inform practice.

83. The Panel noted that the HCPC had indicated, in respect of Particulars 1-3 and 5, that the statutory ground relied upon was misconduct and /or lack of competence. The Panel took the approach of first considering misconduct in relation to each of these particulars. If the statutory ground of misconduct was not made out, the Panel moved on to consider the statutory ground of lack of competence for all of the particulars in which this was alleged as an alternative.

84. In relation to Particular 1a) the Panel found the statutory ground of misconduct was made out. The Registrant had failed to record the names and/or NHS numbers on each page of notes relating to 15 patients. The Panel concluded that the Registrant knew she should have done this and failed to do so. The Panel noted that the Registrant had been provided with a specific induction document setting out the importance of this (Exhibit 6, D252, dated 23 February 2013, induction policy, at point 8.) The Panel found that this breach of the standards was so serious and fell so far below the standards expected of a practising Dietitian that it amounted to misconduct. The Panel considered that failing to record basic patient details carried a risk of misidentification, data mismanagement, treatment confusion and a potential breach of confidentiality. It was not a one-off error or omission and was repeated on numerous occasions as outlined above.

85. The Panel took the view that if 1a) amounted to misconduct, it could not also amount to a lack of competence, as common sense in the particular circumstances of this case indicated that it was either one or the other.

86. The Panel found misconduct was not made out in relation to 1b). The Panel found that the failings were serious. The evidence provided by the Registrant led the Panel to the conclusion that the failings were caused by her lack of understanding and lack of competence, rather than deliberate misconduct. The Panel were of the view, based on the evidence of the Registrant, that at the time of the failings, she lacked the knowledge, skills and judgement to practise safely.

The number of patients in Schedule B (as set out in Particular 1b) was in excess of 65. The Panel considered this to be a fair and significant sample of work to judge that the standard of the Registrant’s work was below that reasonably expected of a professional dietitian. The Panel therefore determined that the statutory ground of lack of competence was made out.

87. With regard to Particular 1c), again the Panel firstly considered misconduct. It found the failings found proved in 1c) were serious, but misconduct was not made out for the same reasons as outlined for 1b). The Panel formed the view that the oral answers given by the Registrant during the course of her evidence throughout these proceedings indicated a lack of ability and understanding of the requirements of good practice. The Registrant failed to recognise this was not standardised advice and thus would require a reliable evidence base to justify her recommendations. The Panel noted that Schedule C (as set out in Particular 1c) related to 16 patients. The Panel considered this was a fair and representative sample of the Registrant’s work. It found the statutory ground of lack of competence made out.

88. The Panel considered misconduct was not made out in relation to Particular 2. This falling below the standards was not so serious as to constitute misconduct. The Registrant breached standards which had the potential to impact the reputation of the profession, however, the Panel considers the risk to patients minimal. It then considered lack of competence. The Panel noted that even on the date of the reconvened hearing, the Registrant could not give an adequate explanation as to what was meant by clinical reasoning. Her oral evidence showed a lack of understanding as to why there is guidance around not using specific shops and/or brands. The Registrant told the Panel that she would not recommend specific shops and/or brands in future, despite the fact that this is acceptable in dietetic practice as long as there is clinical justification for this, and the clinical reasoning is then adequately recorded. It found the statutory ground of lack of competence made out.

89. The Panel considered misconduct in Particular 3 and found this not made out. The Panel considered specifically recommending Classic FM (without explanation or clinical reasoning), did fall below the Standards but it was not so serious as to constitute misconduct because, not least, it carried no clear risk of patient harm. It found the statutory ground of lack of competence made out. This was another example of the Registrant providing nonstandard advice, with no explanation or clinical reasoning around it. 90. Particular 4 was not proven and so the Panel did not address this.

91. The Panel considered whether misconduct was made out in relation to Particular 5. It was of the view that specifically recommending Sahaj Yoga to a 91-year-old patient suffering from Parkinson’s disease (without explanation or clinical reasoning) did fall below the Standards. However, it was not so serious as to constitute misconduct, because the Panel accepted from her evidence, that the Registrant believed Sahaj Yoga would be genuinely beneficial to this patient. The HCPC had not put the Particular on the basis that patient harm had been caused and in all the circumstances, the Panel was satisfied that misconduct was not made out. The Registrant had, again, demonstrated a lack of comprehension around why a recommendation was inappropriate in the absence of clinical reasoning. The statutory ground of lack of competence was therefore made out.

92. The Panel had earlier found Particular 6 factually proven, as the Registrant had sent the WhatsApp message to Colleague C. The Panel found that the Registrant had given a plausible explanation for sending this message. The witness Colleague C had stated in evidence that she could not remember whether or not the Registrant had orally explained that she was forwarding misinformation. The Panel reminded itself that a breach of the standards (as set out at paragraph 82 above, with reference to paragraph 2.7 of the HCPC Standards), did not necessarily constitute misconduct.

93. The Panel considered the WhatsApp message closely and exercised its judgment. The Panel determined that in the absence of accompanying information clarifying why it was being sent, the message did amount to a breach of paragraph 2.7 of the HCPC Standards. The Panel concluded registrants should exercise caution when using WhatsApp, especially when conveying clinical/health matters, as messages are highly vulnerable to misinterpretation. However, given that the Registrant’s explanation of the oral conversation with the recipient of the message was plausible, and it had not been disproved, the Panel found that misconduct was not made out in relation to this particular.

94. All parties agreed that the recommendations set out in Particular 6 above were not clinically justified. In the light of the finding set out in paragraph 93 above, the misconduct alleged in Particular 7 was not made out.

Decision on current impairment
95. The Panel then moved on to consider whether the Registrant’s fitness to practise was currently impaired. It followed the approach of considering the Registrant’s current and future fitness to practise, rather than penalising the Registrant for things done incorrectly in the past. It noted the legal advice provided both by the HCPC and the Legal Assessor, as well as the HCPTS Guidance Note ‘Fitness to Practise Impairment’ dated February 2022.

96. The Panel noted an improvement in the Registrant’s insight since the findings were made on 20 January 2023. It acknowledged that the Registrant had accepted its findings of fact and admitted to a lack of competence in relation to those findings. However, the Panel found that the Registrant’s insight was limited and that she continued to minimise the seriousness of her conduct in the oral evidence she gave on 12 July 2023. The Panel considered the Registrant’s answers and reflections on patient safety to be cursory and lacking depth. When asked to reflect on the causes of her failings, in the view of the Panel, the Registrant failed to take personal responsibility. Instead, she attributed such failings to working conditions.

97. It was acknowledged by the Panel that the Registrant had not had access to SystmOne for 6 weeks, but it found that her patient record keeping fell far below the standard expected of a practising Dietitian. This applied to both the handwritten notes and the notes made on SystmOne. The Panel noted the Registrant’s specific health issues which had prevented her from working in any capacity for 5 years. It took into account the Equality Act 2010 when considering the remediation that the Registrant had been able to undertake. However, it considered that the CPD undertaken by the Registrant did not specifically address the failings found in the particulars.

98. The Registrant herself acknowledged that she would require further training in future in order to be able to return to practice, and the Panel agreed with the Registrant’s view. Without the Registrant undergoing further training and developing more insight, there was a risk of repetition of both the misconduct and the lack of competence in the future. In light of these factors, the Panel found that the personal component was engaged.

99. The Panel determined that the public component of fitness to practise was also engaged. The Registrant had not met the required professional standards. She had potentially placed patients at risk of harm both by her misconduct and her lack of competence. There had been clear breaches of fundamental tenets of the profession.

100. The Panel found that the Registrant had practised in a way that was likely to bring the profession into disrepute. An ordinary member of the public, learning of the circumstances of this case, would expect there to be a finding of impairment of the Registrant’s fitness to practise. This finding is required in order to declare and uphold appropriate standards and to maintain public confidence in both the dietitian profession and the regulator.

Sanction
101. The HCPC drew the Panel’s attention to the overarching principles as set out in the HCPC Sanctions Policy. The HCPC submitted that there had been a limited insight into the nature of her failings, and this was referred to in the Panel’s decision on impairment. The HCPC Presenting Officer submitted that the appropriate sanction was a matter for the Panel.

102. Ms Malcolm conceded there was a need for an order, and submitted that a Conditions of Practice Order was appropriate as the failings could be remedied by education and training. She reminded the Panel that it found a lack of competence and only found misconduct in respect of one particular.

103. Ms Malcolm provided the Panel with a list of courses which the Registrant had identified would be suitable in addressing her identified learning needs, and which would be appropriate to attend to prepare herself for a staged return to work. The Panel was invited to note that some of those courses were not due to start until 2024. The Registrant Representative also highlighted some mitigating factors including the absence of any evidence of patient harm.

104. The Panel was reminded that the Registrant had not been able, due to health issues, in the period since 2020, to take steps to remediate her practice. Her health had, however, stabilized sufficiently for her to seek part-time work on a limited number of days per week.

Panel’s decision on sanction

105. The Panel considered whether, and to what degree, the risks that the Panel has identified could be addressed through some form of restriction on the Registrant’s practice. The Panel’s finding of lack of fitness to practise, was based upon its finding of misconduct in relation to 1(a), and lack of competence in relation to 1(b), 1(c), 2, 3 and 5.

106. The Panel received the advice of the Legal Assessor in which she emphasised that the Panel’s decision should be reached having identified a restriction which will adequately protect the public and which was proportionate in relation to the nature of the matters found. The Panel should take into account the guidance set out in the HCPC’s Sanctions Policy. The Legal Assessor reminded the Panel that this Policy is guidance only, and it is a matter for the Panel’s judgment based upon all known factors and risks.

107. The Panel appreciated that whilst any restriction imposed on her practice may have a punitive impact on the Registrant the level of restriction should not be in the nature of a punishment for past conduct and should be appropriate and proportionate in all the given circumstances.

108. The Panel noted that the list of potential courses provided by the Registrant focused upon the issues of diabetes and obesity and did not cover the wider issues of her practice failings.

109. As advised by the Legal Assessor, the Panel identified the aggravating and mitigating factors that would guide its decision.
In relation to aggravating the Panel noted the following:
• There had been a consistent and regular repetition of her practice failings.
• The misconduct found in relation to 1(a), the failing to protect patients’ notes, was serious in that there was a real possibility of patient records being mixed up and wrongly recorded. This could have resulted in patient harm.
• The Registrant has gained limited insight into her failings. In this regard the Panel noted that the Registrant’s acknowledgment of her failings had been developing during this hearing but had yet to be fully developed.
• The Registrant has not completed any online webinars run by the BDA or the HCPC. The Panel appreciates the Registrant’s health limitations, however during the months since this hearing started there have been opportunities to undertake some limited training.
In relation to mitigating factors the Panel identified the following:
• Partial admission and acceptance of her failings.
• Lack of competence in relation to areas of her practice but not of such a magnitude as to put patients at real risk of harm.
• The Registrant has engaged fully with the HCPC process.
• The Registrant has acknowledged and accepted that her practice required remediation and has identified courses which the Registrant considers would be appropriate.
• There is no evidence that actual harm was caused to any patient.

110. The Panel considered that taking no action was not appropriate in this case where there had been so many findings of poor record keeping and lack of sound clinical judgment and reasoning. Mediation was neither practical nor appropriate in this instance.

111. The Panel and the Registrant have acknowledged that the Registrant’s practice requires some form of remediation before she can safely return to unrestricted practice. The Panel considered that a Caution Order would not provide the public with the requisite level of protection in those circumstances.

112. The Panel has given careful consideration to the imposition of a Conditions of Practice Order and has concluded that a set of conditions, focused upon further training and close supervision would facilitate the Registrant’s return to safe practice. In making this decision the Panel took into account the guidance set out in paragraph 106 of the Sanctions Policy which states that a Conditions of Practice are likely to be appropriate in cases where:
• The registrant has insight;
• The failure or deficiency is capable of being remedied;
• There are no persistent or general failures which would prevent the registrant from remediating;
• Appropriate, proportionate, realistic and verifiable conditions can be formulated;
• The panel is confident that the registrant will comply with the conditions;
• A reviewing panel will be able to determine whether or not those conditions have, or are, being met;
• The registrant does not pose a risk of harm by being in restricted practice.

113. In assessing whether a Conditions of Practice Order is the proportionate and appropriate sanction, the Panel considered whether a short period of suspension would provide any further benefits to the public or the Registrant. The Panel came to the conclusion that this was not the case. The Public would gain no benefit from the Registrant being out of practice for a further period of time. The Registrant is able and willing to remediate her failings and a Conditions of Practice Order would facilitate this therefore a period of suspension would, in the Panel’s view, be disproportionate.
The conditions of practice which the Panel has determined as appropriate and proportionate are set out below. The Panel considers that the period of two years will provide the Registrant with sufficient opportunity to fully remedy her practice and has concluded that should she do so in a lesser period of time she may seek a review. In other words the Panel is not exercising its power under Article 29(7)(c) to restrict an early review.

ORDER: The Registrar is directed to annotate the HCPC Register to show that, for a period of two years from the date that this Order takes effect (“the Operative Date”), you, Aparna Srivastava, must comply with the following conditions of practice:

1. You must undertake the following two courses before seeking any Dietetic employment or placement. Certificates and written reflections evidencing the same should be provided to the first reviewing panel of:
   A. satisfactory completion of Skills Platform (Documentation and Record keeping, level 2) CPD accredited online course; and
   B. engagement in HCPC standards webinar series (Standard 10 keep records of your work)
2. Before undertaking any supervised Dietetic employment, you must successfully complete the HCPC Return to Practice requirements for those out of the profession for two to five years.
3. You must confine your professional practice to employers who have teams of dietitians and have experienced clinical supervisors. You must not work as an independent practitioner.
4. You must not carry out clinical dietetic practice unless supervised by a HCPC registered dietitian with a minimum of three years regulated practice.
5. You must provide the HCPC with details of your supervisor within 28 days of commencing work under their supervision.
6. You must develop in collaboration with your supervisor a Personal Development Plan which is targeted towards addressing the failings identified by the final hearing panel.
7. You must allow your supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.
8. Your supervisor must supply a report to the HCPC 14 days prior to any review hearing, in which they confirm that there are no causes for concern arising from your practice. Your supervisor should provide any reviewing panel with evidence of compliance with these conditions.
9. You must promptly inform the HCPC if you cease to be employed by any employer or take up any other or further employment.
10. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.
11. You must inform the following parties that your registration is subject to these conditions:
    A. any organisation or person employing or contracting with you to undertake professional work;
    B. any agency you are registered with or apply to be registered with (at the time of application); and
    C. any prospective employer (at the time of your application).

Interim Order

The Panel makes an Interim Conditions of Practice Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Aparna Srivastava