Vimal Vinod

Preliminary Matters

Service

1. The Panel was provided with a service bundle and informed by the Hearings Officer that notice of this hearing, dated 13 June 2023, had been sent to the Registrant’s registered email address, setting out the time, date, and location (via videoconference). Having heard and accepted the advice of the Legal Assessor, the Panel was satisfied that notice of this hearing had been served in accordance with the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules).

Application to Proceed in Absence

2. Mr Anderson applied for the hearing to proceed in the Registrant’s absence. He submitted that as notice of the hearing had been duly served, four witnesses had been scheduled to attend, and no application for an adjournment had been made, it was in the public interest for the hearing to proceed in the Registrant’s absence.

3. The Panel accepted the advice of the Legal Assessor in relation to the factors it should take into account when considering this application. This included reference to the cases of R v Jones [2003] UKPC and General Medical Council v Adeogba [2016] EWCA Civ 162. The Panel also took into account the HCPTS Practice Note on “Proceeding in the Absence of the Registrant”.

4. The Panel noted that there had been no engagement from the Registrant since his email of 28 March 2022 to inform the HCPC that he was not currently employed as an Occupational Therapist in the UK and had returned back to his home country. The Panel considered that all reasonable steps had been taken to inform him of the hearing. In the absence of any engagement since March 2022 and no response to the Notice of Hearing, the Panel considered that the Registrant had voluntarily absented himself, thereby waiving his right to attend. It did not consider that an adjournment would secure his attendance and was mindful that the HCPC had scheduled four witnesses to give evidence at the hearing. On balance, having regard to fairness, the Panel considered that it was in the public interest to proceed in order to resolve the case expeditiously.

Application to admit hearsay

5. Mr Anderson, on behalf of the HCPC, applied to admit the hearsay evidence of AH and exhibits produced by her. Mr Anderson took the Panel through the Skeleton Argument and submitted that the hearsay evidence was admissible. He explained that AH had been cooperative throughout the HCPC’s investigation and had made a witness statement and produced exhibits. However, she had since retired from the Trust and no longer wished to be called as a witness. He submitted that AH predominantly provided evidence of the probationary meetings with the Registrant, which were informed by the evidence of the other witnesses. Mr Anderson submitted that it was fair to admit her hearsay evidence applying the Thorneycroft principles, in particular as her evidence was not sole and decisive in relation to any of the particulars alleged.

6. The Panel heard and accepted the advice of the Legal Assessor. She advised in accordance with El Kharout v NMC [2019] EWHC 28 (Admin), to the effect that admissibility of hearsay evidence was not automatic and that admissibility and weight (if ruled admissible) were separate considerations. She also advised of the factors set out in Thorneycroft v NMC [2014] EWHC 1565 (Admin) for a panel to consider when assessing admissibility.

7. The Panel understood that the admission of the statement of an absent witness should not be regarded as routine, and it carefully considered the basis of the HCPC application to admit the hearsay evidence. It also understood that the fact the absence of the witness could be reflected in the weight to be given to the statement was a factor to consider.

8. The Panel did not consider that the absence of the witness due to no longer wishing to participate as she had since retired was a good and cogent reason for her non-attendance. The Panel was mindful that this in and of itself did not necessarily require the evidence to be excluded. The Panel considered that it was relevant that the Registrant had previously been informed of the application to admit the hearsay evidence and that he had not exercised his right to attend and therefore challenge the witness through cross-examination.

9. The Panel was of the view that the hearsay evidence of AH was not the sole or decisive evidence in respect of any of the allegations against the Registrant. It noted that AH produced the Probation Policy and job description for a Band 5 Occupational Therapist, documents which the Panel was satisfied were demonstrably reliable. It also bore in mind that the HCPC would be relying on the evidence of two witnesses who directly supervised the Registrant during his probationary period, and two further witnesses, both of whom had occasions to supervise the Registrant during his probationary period. In light of this, the Panel was satisfied that it would be possible, through questioning those other witnesses, to test the reliability of the hearsay evidence. In all the circumstances, the Panel concluded that it was appropriate and fair to admit the hearsay evidence of AH.

Background

10. The Registrant is an Occupational Therapist registered with the HCPC.

11. The Registrant was employed as a Band 5 Occupational Therapist at Hull University Teaching Hospitals NHS Foundation Trust (the Trust) between 15 March 2021 and 5 October 2021. As a newly qualified Occupational Therapist, he started in post on a probationary period of six months.

12. When the Registrant first joined the Trust in March 2022, he was placed at Hull Royal Infirmary, a medical trauma-based unit with very complex discharge planning.

13. In early April 2021 until mid-August 2021, the Registrant was moved to the Orthopaedic Department at the University of Hull Teaching Hospital, where he worked under the supervision of AV, a Senior Occupational Therapist.

14. On 12 August 2021, at the end of the six-month probationary period, a final probation meeting was held in accordance with the Trust’s Probation Policy. At that meeting it was agreed to extend the Registrant’s probation period by three months to give him more time to meet the required objectives of probation.

15. Following the probationary meeting, the Registrant was moved to the Cardiology Department, where he worked under the supervision of EN, a Senior Occupational Therapist.

16. On 23 September 2021, as a result of an alleged lack of progress, the Registrant was written to and advised that his final review meeting had been brought forward to 5 October 2021.

17. For the final two or three weeks of his employment, the Registrant worked under the supervision of JH, predominantly in the Cardiology Department.

18. On 5 October 2021, at the final probation review meeting, it was concluded that the Registrant was still failing to meet the expectations and there were concerns about his performance and capability. The Registrant was informed by AH, the Therapy Manager at the Trust, that she would be making a referral to a panel hearing to make a decision in respect of the Registrant’s employment. The Registrant did not wish to go to panel and resigned from his post.

19. On 3 November 2021, the HCPC received a referral from the Trust in relation to the Registrant’s competence alleging that the Registrant did not perform to the standard expected of a Band 5 Occupational Therapist.

Decision on Facts

20. The HCPC called the following witnesses:

• EN, who at the relevant time was employed by the Trust as a Senior Occupational Therapist in the Cardiology and Cardiothoracic Department. The Registrant joined her team within the Department on 16 August 2021 and EN was responsible for his supervision.

• AV, who was employed as a Senior Occupational Therapist at the Trust within the Orthopaedic Department. The Registrant joined the Department in April 2021 and AV was his supervisor for around five months. He would have weekly formal supervisions with the Registrant and regular informal supervisions through the week. AV was responsible for the Registrant’s orthopaedic Occupational Therapy training with regards to time spent on the ward to develop his skills.

• JL, who was employed by the Trust as a Clinical Lead Physiotherapist. The Registrant worked in his team under AV. JL’s role was to support AV in helping guide the setting of goals and suitability of targets for the Registrant. The majority of the time, JL’s interactions with the Registrant were as an overview, but there were some sessions in which he worked directly with the Registrant.

• JH, who was employed by the Trust as a Clinical Lead Occupational Therapist at the Trust. JH assisted the Registrant’s supervisor, AV, meeting him weekly and supporting him with how to support the Registrant to meet his competencies. She was not directly involved in the Registrant’s supervision, save for a period of around two to three weeks at the end of his employment within the Trust.

21. The HCPC provided a bundle of statements and exhibits, including:

• The original referral made by the Trust, dated 3 November 2021;

• The undated initial witness statement made by EN to support the HCPC referral;

• Supervision notes made by EN;

• The initial witness statement made by AV, dated 19 October 2021, to support the HCPC referral;

• Weekly notes of supervision made by AV between 22 April 2021 to 10 August 2021;

• The undated initial witness statement made by JL to support the HCPC referral;

• A copy of the feedback form of feedback given by JL to the Registrant on 3 September 2021;

• The initial witness statement made by JH, dated 18 October 2021, to support the HCPC referral;

• A copy of the Trust’s Band 5 Occupational Therapist job description and person specification;

• A copy of the Registrant’s job application to the Trust, dated 18 March 2021;

• The witness statement of AH, the Therapy Manager at the Trust;

• A copy of the Trust’s Probation Policy;

• Copies of minutes of probation meetings with the Registrant for 26 March 2021, 14 May 2021, and 12 August 2021;

• Copies of correspondence with the Registrant dated 14 May 2021, 15 June 2021, 12 August 2021, 23 September 2021, and 5 October 2021.

22. The Panel heard and accepted the advice of the Legal Assessor. She advised that the burden of proof was on the HCPC and the standard of proof required for a fact to be found proved was the civil standard, namely whether it was more likely than not that the alleged fact occurred.

23. The Panel considered all the evidence and the submissions of Mr Anderson on behalf of the HCPC. The Registrant did not provide any evidence or written submissions for the Panel’s consideration. The Panel’s approach to Particular 1 was to consider each factual sub-particular first. As they were, in the Panel’s view, broadly drafted, the Panel’s approach included identifying whether there were specific examples within the evidence to support the more generalised allegation. Then, if satisfied that the sub-particular was established, the Panel referred it back to the stem to determine whether it amounted to not performing to the standard expected of a Band 5 Occupational Therapist.

24. The Panel had regard to the evidence given by the witnesses. In respect of AV, the Registrant’s line manager for the five months that he was on the elective orthopaedic ward, the Panel noted in particular that his evidence was supported by the contemporaneous weekly supervision notes that he had kept. In relation to the hearsay evidence of AH, the Panel noted that she produced contemporary documentation. Further, whilst the Panel did not hold the Registrant’s non-attendance against him, it understood that the Registrant had not provided evidence to challenge or undermine the accounts of the witnesses.

Particular 1(a) – Proved

1. During the course of your employment at Hull University Teaching Hospitals NHS Foundation Trust between 15 March 2021 and 5 October 2021, you did not perform to the standard expected of a Band 5 Occupational Therapist in that specifically, but not limited to:

a) You did not demonstrate you could accurately retrieve and/or identify relevant clinical information from medical notes

25. The Panel found Particular 1(a) proved.

26. The Panel had regard to the evidence of AV. His evidence was that on 23 June 2021, the Registrant was asked to fill out a form for social care. When he had completed the form, it was noted that he had not shown sufficient clinical reasoning. AV stated that there was incomplete or misinformation on the form regarding the patient and that the Registrant had missed that the patient was non-weight-bearing in both the upper and lower limbs. The information had been in the operational notes that were provided when the patient was handed to the Occupational Therapy team.

27. It was AV’s evidence that the Registrant had been trained to look through notes and read the information provided and from those notes he should have been able to identify what the patient was and was not allowed to do and, from that, fill out the form correctly.

28. The Panel also had regard to the evidence of EN. Her evidence was that on 23 September 2021, she and the Registrant went to visit a patient on the cardiology unit. After he had spent 40 minutes looking at the patient’s notes, she asked him to tell her his plan for the patient. EN said that the medical notes were clear that the patient required two people to assist him because of unsteady balance, but the Registrant felt he could assist the patient to mobilise on his own and could not understand why they could not just get the patient to stand up. EN said that she had checked whether the Registrant had difficulty reading the notes and he denied that he had. She concluded that he had not understood the reasoning behind having two people to support the patient, which could have led to a risk of falling.

29. The Panel was satisfied that these examples from AV and EN established that the Registrant did not consistently demonstrate that he could accurately either retrieve or identify relevant clinical information from medical notes. The Panel further noted that JH, who had supervised the final few weeks of the Registrant’s placement, had stated that the Registrant still required support to identify the correct information that was required.

30. On referring the sub-particular back to the stem, the Panel had regard to the Trust’s job description for a Band 5 Occupational Therapist. It noted that under the required knowledge and skills, it was expected that a Band 5 Occupational Therapist would be able to “interpret and evaluate written records and referrals received from other members of the multidisciplinary team and outside agencies”. In light of this, the Panel was satisfied to the required standard that by not demonstrating that he could accurately retrieve and identify relevant clinical information from medical notes, the Registrant did not perform to the standard expected of a Band 5 Occupational Therapist in that regard.

Particular 1(b) – Proved

1. During the course of your employment at Hull University Teaching Hospitals NHS Foundation Trust between 15 March 2021 and 5 October 2021, you did not perform to the standard expected of a Band 5 Occupational Therapist in that specifically, but not limited to:

b) Your clinical reasoning was not consistent with clinical presentation

31. The Panel found Particular 1(b) proved.

32. The Panel had regard to the evidence of EN. Her evidence was that she and the Registrant went to see a patient with visual impairment, and that she left him to interview the patient alone and they would discuss it afterwards. Following his interview with the patient, the Registrant said that the patient required 24-hour care. EN asked what his clinical reasoning was for this and he told her that the patient was registered blind, so could not see anything and would need 24-hour care to do everything for them at home. EN said that she explained sometimes people may be registered blind but have some sight, but the Registrant said he had written his dissertation on visual impairment and knew that this meant that, if someone was registered blind, they could not see anything at all and would need 24-hour care.

33. EN said that she asked the Registrant if he had carried out a functional assessment on the patient and was told that one was not needed because the patient was registered blind and therefore could not see anything. She said that she explained that some people can still function at home even with no sight and so they could not make a recommendation for 24-hour care without any clinical justification for doing so.

34. The Panel had regard to the evidence of JL, who said that clinical reasoning was a significant part of what the team working with the Registrant considered to be one of the biggest concerns with his practice. JL described that on 23 June 2021, a patient discharge from hospital to a care facility was being planned and the Registrant was completing the required referral form. The surgeon had instructed that the patient was to be non-weight-bearing in both upper and lower limbs but the Registrant had not documented this on the referral form. JL said that this presented a risk as the care home into which the patient was to be discharged would not have the information and so would be unaware of the potential risks to the patient if transferred inappropriately.

35. The Panel was satisfied that these examples from EN and JL established that the Registrant’s clinical reasoning was not always consistent with the clinical presentation.

36. On referring the sub-particular back to the stem, the Panel had regard to the Trust’s job description for a Band 5 Occupational Therapist. It noted the required knowledge and skills expected of a Band 5 Occupational Therapist included being able to use clinical reasoning skills. In light of this, the Panel was satisfied to the required standard that, as his clinical reasoning was not consistent with clinical presentation, the Registrant did not perform to the standard expected of a Band 5 Occupational Therapist in that regard.

Particular 1(c)(i) – Proved

1. During the course of your employment at Hull University Teaching Hospitals NHS Foundation Trust between 15 March 2021 and 5 October 2021, you did not perform to the standard expected of a Band 5 Occupational Therapist in that specifically, but not limited to:

c) You showed inconsistent and/or poor levels of performance in relation to:

i. moving and handling of service users,

37. The Panel found Particular 1(c)(i) proved.

38. The Panel had regard to the evidence of AV, whose evidence was that the Registrant struggled with moving and handling patients throughout his placement in the Orthopaedic Department, and they had set up a mock scenario to try to assist the Registrant with this aspect of his practice. The Panel noted that within the probation meeting minutes, dated 12 August 2021, when it was decided that he would be rotated to the Cardiology Department, it was recorded that the Registrant’s moving and handling skills had improved and he was at that time at the expected level of a new graduate.

39. The Panel had regard to the evidence of JL, who supervised the Registrant in early September 2021, when the Registrant returned to the Orthopaedic Department for a short time when the senior staff supervising the Registrant in Cardiology were away. JL’s evidence was that the Registrant had not retained the moving and handling skills he had previously learnt and had regressed, such that his moving and handling skills back in the Orthopaedic Department were inconsistent. JL gave an example whereby the Registrant, who was under “remote supervision”, was treating a patient. JL said that he had to intervene to make sure the patient stayed safe as the Registrant was positioned poorly in relation to the patient.

40. The Panel also had regard to the evidence of JH, whose evidence was that she did not allow the Registrant to do any moving and handling of patients by himself when she was working with him as it had been highlighted as an issue. The Panel noted that JH worked with the Registrant for the final few weeks of his employment, which was the part of the probation period which had been extended by three months. JH described an occasion, albeit she could not recall the date, when she was supervising the Registrant moving a patient. She noticed that he failed to adequately position himself to enable the patient to move freely as he was so close to the patient that they were unable to move safely. JH said that after the session she gave the Registrant verbal feedback about his positioning.

41. JH said that she subsequently witnessed the Registrant stand so far away from a different patient, who was listed as a high falls risk, that the patient could have fallen if she had not intervened. JH said that the Registrant did not understand the appropriate level of proximity to patients for safe moving and handling. In her oral evidence, JH said that she would only intervene during a procedure or task if there was an immediate risk of harm to the patient.

42. JH explained that she had been AV’s supervisor and was supporting him in supervising the Registrant and was aware, through those supervision sessions with him, of the issues with the Registrant’s positioning of himself during moving and handling. JH said that when the Registrant came to her in August, she shadowed him on all his moving and handling assessments, as despite all the feedback and training given to the Registrant he had not taken it on board and continued to impede a patient’s mobility, and so there would be a risk of falls if she was not available to help.

43. The Panel was satisfied that these examples from AV, JL, and JH established that the Registrant’s moving and handling of patients was inconsistent and his level of performance in this skill was poor.

44. On referring the sub-particular back to the stem, the Panel had regard to the skills and knowledge required under the Trust’s job description for a Band 5 Occupational Therapist. It considered that in order to safely achieve many of the skills set out, a Band 5 Occupational Therapist would need the fundamental moving and handling skills which had been part of his training, particularly on the ward. In light of this, the Panel was satisfied to the required standard that, as the Registrant showed an inconsistent and poor level of performance in moving and handling, he did not perform to the standard expected of a Band 5 Occupational Therapist in that regard.

Particular 1(c)(ii) – Proved

1. During the course of your employment at Hull University Teaching Hospitals NHS Foundation Trust between 15 March 2021 and 5 October 2021, you did not perform to the standard expected of a Band 5 Occupational Therapist in that specifically, but not limited to:

c) You showed inconsistent and/or poor levels of performance in relation to:

ii. subjective and objective assessments, and

45. The Panel found Particular 1(c)(ii) proved.

46. JL told the Panel that a subjective assessment of a patient was anything told to the Occupational Therapist by the patient themselves, a family member, a fellow practitioner, or any information gathered from the medical records. An objective assessment was what an Occupational Therapist observed the patient demonstrating, including assessments such as washing and dressing and using the kitchen, from an Occupational Therapy perspective.

47. The Panel had regard to the evidence of EN. She told the Panel that on 17 September 2021, she had supervised the Registrant carrying out an initial interview with a patient who had had a bilateral amputation. The Registrant asked the patient how he mobilised and transferred himself. The patient said that he was managing fine. The Registrant did not ask to see the patient mobilise himself in order for the Registrant to assess the patient’s mobility. Following completion of the initial interview, EN and the Registrant discussed what opinions he had formed based on the patient’s answers and what the Registrant’s thoughts on treatment may be, as well as the clinical reasoning behind any recommendations. EN explained that the Registrant had not initially identified that the patient had no feet and would not be able to mobilise himself without assistance. The Panel considered that the Registrant had not carried out the objective assessment of asking to see the patient mobilise himself, nor the subjective assessment of exploring with the patient his ability to mobilise beyond the patient saying that he was “fine”.

48. The Panel also had regard to the example of the patient with visual impairment (given at paragraph 18 above). The Panel noted that once the Registrant had discovered that the patient was registered blind, the Registrant had assumed that this meant the patient had no sight at all and so concluded that they needed 24-hour care without carrying out any further assessments. He had not conducted an objective assessment of seeing what the patient may be able to do for themselves, nor had he carried out a subjective assessment of asking the patient what tasks they could manage.

49. The Panel was satisfied that these examples from EN established that the Registrant’s subjective and objective assessments of patients were inconsistent and his level of performance in this skill was poor.

50. On referring the sub-particular back to the stem, the Panel had regard to the skills and knowledge required under the Trust’s job description for a Band 5 Occupational Therapist. It considered that in order to safely achieve many of the skills set out, a Band 5 Occupational Therapist would need the fundamental skills of carrying out effective assessments. In light of this, the Panel was satisfied to the required standard that, as the Registrant showed an inconsistent and poor level of performance in moving and handling, he did not perform to the standard expected of a Band 5 Occupational Therapist in that regard.

Particular 1(c)(iii) – Proved

1. During the course of your employment at Hull University Teaching Hospitals NHS Foundation Trust between 15 March 2021 and 5 October 2021, you did not perform to the standard expected of a Band 5 Occupational Therapist in that specifically, but not limited to:

c) You showed inconsistent and/or poor levels of performance in relation to:

iii. planning the progression of treatment or future interventions

51. The Panel found Particular 1(c)(iii) proved.

52. The Panel had regard to the evidence of AV. He told the Panel that on 7 June 2021, they had a patient visit them who had undergone a hip replacement. The surgeon had placed them under ‘hip precautions’, meaning that certain movements, such as twisting their body, crossing their legs, or reaching below their knee were excluded from what the patient could do as these would increase the risk of the patient dislocating their hip. In the case of this patient, they also had difficulty with their thumb so were not able to use certain pieces of equipment. EV said that the Registrant should have been aware that the patient was under hip precautions and should have noted that the patient had advised they were able to be assisted at home. AV said that the Registrant had not listened to the patient nor read the notes diligently, and consequently did not effectively treat the patient. AV said that the Registrant should have actively listened and reasoned out alternative techniques for the patient to be able to complete the required tasks based on how the patient had presented. AV said that although the treatment was not routine, he would have expected the Registrant to be able to adapt a normal protocol to the specific presentation of a patient.

53. The Panel was satisfied that this was an example which established that the Registrant’s planning of progression of treatment and future interventions for patients was inconsistent and his level of performance in this skill was poor.

54. On referring the sub-particular back to the stem, the Panel had regard to the skills and knowledge required under the Trust’s job description for a Band 5 Occupational Therapist. It considered that in order to safely achieve many of the skills set out, a Band 5 Occupational Therapist would need the fundamental skills of planning the progression of treatment and future interventions. In light of this, the Panel was satisfied to the required standard that, as the Registrant showed an inconsistent and poor level of performance in planning the progression of treatment or future interventions, he did not perform to the standard expected of a Band 5 Occupational Therapist in that regard.

Particular 1(d) – Proved

1. During the course of your employment at Hull University Teaching Hospitals NHS Foundation Trust between 15 March 2021 and 5 October 2021, you did not perform to the standard expected of a Band 5 Occupational Therapist in that specifically, but not limited to:

d) You did not demonstrate that you could work as an autonomous practitioner

55. The Panel found Particular 1(d) proved.

56. The Panel had regard to the evidence of AV to the effect that the working definition of a recently qualified ‘autonomous practitioner’ was of a registrant able to carry a caseload and work independently. The Panel noted that AV had said that, by the end of the Registrant’s supervision with him, the Registrant was only able to carry a caseload of two to three cases under ‘arm’s length’ supervision, when according to AV a caseload of at least double that figure would be reasonable.

57. The Panel also noted the oral evidence of JH to the effect that when the Registrant came to her in August, she would not allow him to work independently. She said that she effectively placed restrictions on his practice, even at the end of his placement with her, so that he was working within a focussed and supported area and carrying out routine activity on patients who had been screened as appropriate to be delegated to him. He was also working under the ‘long-arm’ supervision of more experienced practitioners. Throughout his employment at the Trust he worked as an additional member of staff and was not counted into the operational workforce in Occupational Therapy.

58. The Panel noted that AV had stated the Registrant’s academic ability was well regarded, giving the example of an excellent presentation by the Registrant beyond what AV would have expected of a Band 5. The difficulty was that all the HCPC witnesses were of the view that the Registrant was not able to consistently and safely translate that academic ability into practice. The Panel was satisfied that the evidence of AV and JH established that the Registrant did not demonstrate that he could work as an autonomous practitioner.

59. On referring the sub-particular back to the stem, the Panel had regard to the skills and knowledge required under the Trust’s job description for a Band 5 Occupational Therapist. It noted that the ability to ‘work as an autonomous practitioner’ was listed as one of the requirements. In light of this, the Panel was satisfied to the required standard that, as the Registrant did not demonstrate that he could work as an autonomous practitioner, he did not perform to the standard expected of a Band 5 Occupational Therapist in that regard.

Decision on Grounds

60. In light of its findings on the facts, the Panel went on to determine whether the statutory ground of lack of competence was established. The Panel understood that only if it concluded that there had been a lack of competence on the Registrant’s part would it go on to consider whether the Registrant’s fitness to practise was currently impaired by reason of that lack of competence.

61. Mr Anderson submitted that the facts found proved amounted to a lack of competence. He submitted that the Registrant had not consistently met a number of the HCPC “Standards of Proficiency for Occupational Therapists”.

62. The Panel heard and accepted the advice of the Legal Assessor. She advised that lack of competence is a lack of knowledge, skill, or judgement of such a nature that the Occupational Therapist is unfit to practise safely and effectively in the field in which they claim to be qualified or seek to practise. The Legal Assessor advised in accordance with the cases of Calhaem v GMC [2007] EWHC 2606 (Admin) and Holton v GMC [2006] EWHC 2960.

63. In respect of Particular 1, the Panel considered that the sub-particulars comprising the allegation covered the fundamental themes and all stages of the process of Occupational Therapy practice. The Panel considered that they involved: the initial gathering of information; undertaking subjective and objective assessments; using judgement to plan, implement, and evaluate treatments; and future planning.

64. The Panel had regard to the case of Calhaem and considered whether the examples it had found proved represented a fair sample of the Registrant’s work. In this regard, the Panel bore in mind that this was the Registrant’s first employment since qualification and so the seven months he had been working at the Trust represented the entire period of his post-qualification professional practice, and the examples had occurred in two different departments. The Panel noted that the Registrant had carried a low caseload of around two to three patients at any one time, which were cases which had been screened as appropriate patients to delegate to him, and he was working under ‘long-arm’ supervision of more experienced practitioners. Within this context, the Panel was satisfied that the examples found proved did demonstrate the standard of the Registrant’s professional performance by reference to a fair sample of his work.

65. The Panel went on to consider, therefore, whether that standard of professional performance was unacceptably low. In considering this, the Panel had regard to the case of Holton to the effect that the standard of performance was to be judged against the standard of professional work reasonably to be expected of the practitioner of the same grade, in this case that of a Band 5 Occupational Therapist. The Panel noted that this was the Registrant’s first professional employment post-qualification and considered that it would not be reasonable to expect a newly qualified practitioner to immediately start performing at the levels expected of a Band 5 Occupational Therapist, hence the imposition of a probationary period with the additional support and supervision from senior members of staff.

66. The Panel also bore in mind that the witnesses, in particular AV, confirmed that the Registrant was academically able and had a good knowledge of Occupational Therapy.

67. Nevertheless, the Panel was mindful that throughout both the initial and extended probationary period, the Registrant was unable to consistently meet the standards reasonably expected of a Band 5 Occupational Therapist. In the Panel’s judgment, it was evident from each of the witnesses that the Registrant had not been able to apply his academic knowledge in practice so as to achieve the skills required of an Occupational Therapist in order to practise safely and effectively.

68. The Panel considered that this was particularly evidenced by JL and JH. JL had said that he had occasion to supervise the Registrant when he returned to the Orthopaedic Department for a week in September 2021, and the Registrant had regressed and not retained the skills he had previously developed when supervised by AV in the Orthopaedic Department. JH had supervised the Registrant in the last few weeks of his extended probation period, a time when he would be expected to be able to work autonomously. JH said that she would not allow him to work independently and had effectively placed restrictions on his practice, so that he was working within a focussed and supported area.

69. Whilst the Panel noted that there was no suggestion the Registrant had caused actual harm, it considered that this was essentially as a result of him being closely supervised throughout his probationary period. The Panel noted the examples, in particular in respect of moving and handling, where a witness had to intervene to avoid an immediate risk of harm. It also noted that none of the witnesses had allowed the Registrant to work independently and he was always at least under ‘long-arm’ supervision in order to mitigate the risk of harm he posed. In light of this, in the Panel’s judgement, the level of the Registrant’s professional performance was unacceptably low.

70. The Panel considered that the Registrant had not consistently achieved the following HCPC “Standards of Proficiency for Occupational Therapists” expected of a reasonably competent Band 5 Occupational Therapist:

Registrant Occupational Therapists must:

1.2 – recognise the need to manage their own workload and resources effectively and be able to practise accordingly;

4.1 – be able to assess a professional situation, determine the nature and severity of the problem and call upon the required knowledge and experience to deal with the problem;

4.2 – be able to make reasoned decisions to initiate, continue, modify or cease treatment or the use of techniques or procedures, and record the decisions and reasoning appropriately;

4.3 – be able to initiate resolution of problems and be able to exercise personal initiative;

4.4 – recognise that they are personally responsible for and must be able to justify their decisions;

4.5 – be able to make receive appropriate referrals;

8.1 – be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, carers, colleagues and others;

8.4 – be able to select, move between and use appropriate forms of verbal and non-verbal communication with service users, carers and others;

8.9 – be able to listen to a service user’s occupational narrative and analyse the content in order to plan for the future;

14.2 – be able to change their practice as needed to take account of new developments or changing contexts;

14.3 – be able to undertake and record a thorough, sensitive and detailed assessment, using appropriate techniques and equipment;

14.4 – be able to gather and use appropriate information;

14.10 – be able to use observation to gather information about the functional abilities of service users;

14.12 – be able to demonstrate a logical and systematic approach to problem-solving;

15.6 – know and be able to apply appropriate moving and handling techniques.

71. In all the circumstances, the Panel was satisfied that the statutory ground of lack of competence was established.

Decision on Impairment

72. Having found the statutory ground of lack of competence established, the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of that lack of competence.

73. Mr Anderson submitted that the Registrant’s fitness to practise is currently impaired on both the personal and public components as set out in the HCPTS Practice Note on “Finding Impairment”. He submitted that the Registrant had not submitted any information to demonstrate insight and remediation and, as a consequence, there was an ongoing risk to the public. He further submitted that public confidence in the profession would be undermined if no finding of current impairment were made.

74. The Panel heard and accepted the advice of the Legal Assessor, who cited the cases of Cohen v GMC [2008] EWHC 581 (Admin), CHRE v NMC and Grant [2011] EWHC 927 (Admin), and Meadow v GMC [2006] EWCA Civ 1390. The Panel understood that in relation to the question of impairment, what had to be determined was current impairment, as in the position today and looking forward from today.

75. In respect of the personal component, the Panel was mindful that it had not been provided with any information from the Registrant to demonstrate that he had undertaken any remediation which might bring his practice up to the standards of proficiency expected of a reasonably competent Occupational Therapist or had developed any insight into the issues in his practice in order to assist him in achieving the required standards. The Panel noted that the last communication from him had been in March 2022, when he informed the HCPC that he was not working as an Occupational Therapist in this country.

76. In the absence of any engagement by or information from the Registrant, the Panel was unable to conclude anything other than that the Registrant’s practice remained below the required standards expected of a reasonably competent Occupational Therapist and that the consequent ongoing risk of harm to patients was, therefore, high.

77. For example, the Panel considered that the Registrant’s inability to accurately retrieve and identify relevant clinical information from medical notes in respect of the non-weight-bearing patient, if not picked up by another practitioner, could have had significant implications for the patient’s mobility. The Registrant’s inability in respect of clinical reasoning could have implications for the care and treatment provided to patients. The Registrant’s inconsistent and poor levels of performance in respect of moving and handling could increase the risk of falls for patients. The Registrant’s poor levels of performance in respect of assessments and planning of treatment could create a risk to patients of incorrect treatment or lack of appropriate care being provided. In all the circumstances, the Panel concluded that the Registrant’s fitness to practise is currently impaired on the personal component.

78. In respect of the public component, the Panel was mindful of its responsibility to protect patients from risk of harm and to uphold professional standards of proficiency in the Occupational Therapy profession. The Panel was of the view that public confidence in the reputation of the profession would be undermined if no finding of impairment were made in respect of an Occupational Therapist found not to be consistently performing at the required standards of competency. In all the circumstances, the Panel concluded that the Registrant’s fitness to practise is currently impaired on the public component.

79. Accordingly, in the Panel’s judgement, the Registrant’s fitness to practise is currently impaired.

Decision on Sanction

80. Having determined that the Registrant’s fitness to practise is currently impaired by reason of his lack of competence, the Panel went on the consider whether it was impaired to a degree which required action to be taken on his registration.

81. The Panel took account of the submissions of Mr Anderson, who explained that the HCPC was neutral on the question of sanction. He directed the Panel’s attention to the HCPC Sanctions Policy (the Policy) and identified what he submitted were the relevant factors when considering the appropriate and proportionate sanction.

82. The Panel accepted the advice of the Legal Assessor and it exercised its independent judgement. It had regard to the Policy and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive but to protect members of the public and to safeguard the public interest, which includes upholding standards within the profession together with maintaining public confidence in the profession and its regulatory process. The Panel understood that as this was a lack of competence case, the sanction of Strike Off was not available to it today.

83. Before considering the individual options open to it in respect of sanction, the Panel considered whether there were any relevant aggravating and mitigating features in this case.

84. Given the absence of engagement or any information from the Registrant, the Panel did not consider that it had any mitigation of substance beyond that the Registrant was a newly qualified Occupational Therapist with little previous experience.

85. The Panel considered that the Registrant’s lack of engagement was an aggravating factor, given that a registrant has a responsibility under the HCPC “Standards of Conduct, Performance and Ethics” to engage with their regulator and, where concerns are raised about their competence, they are duty bound to address those concerns.

86. The Panel first considered whether a sanction was necessary. It was of the view that the lack of competence, and the consequent risk of harm it posed to patients, was too serious to take no action or to be dealt with by way of mediation. The Panel considered that such a course would not be sufficient to safeguard the public or the public interest.

87. The Panel next considered whether to impose a Caution Order. It had regard to paragraph 101 of the Policy, which states:

“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.”

88. The Panel did not consider that the Registrant met any of the criteria which indicated when a Caution Order may be appropriate. It had regard to its conclusion that the Registrant’s lack of competence covered the fundamental themes and all stages of the process of Occupational Therapy practice and, as such, could not properly be described as isolated, limited, or relatively minor in nature. Further, given the Registrant’s lack of engagement, there was no evidence to demonstrate any insight or remediation on his part, and the Panel took account of its conclusion that the ongoing risk was high.

89. The Panel next considered whether a Conditions of Practice Order may be the appropriate and proportionate response. The Panel considered that, had the Registrant engaged in the fitness to practise process and demonstrated a commitment to the profession and to achieving competence, then conditions may have been able to be considered. The Panel reached this view given that: he was so new to professional practice at the time; had been considered academically able; and the position may have been that he simply required longer to embed his learning into his clinical practice, so as to consistently achieve the required professional standards of competence and performance.

90. However, the Panel considered that the Registrant’s lack of engagement and the absence of any information from him to demonstrate a commitment to resolving his competency issues ruled out a Conditions of Practice Order. In reaching this view, the Panel had regard to paragraph 107 of the Policy, which states:

“Conditions will only be effective in cases where the registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so. Therefore, conditions of practice are unlikely to be suitable in cases in which the registrant has failed to engage with the fitness to practice process or where there are serious or persistent failings.”

91. In all the circumstances, the only appropriate and proportionate sanction available to the Panel today was that of a Suspension Order.

92. Therefore, the Panel decided to impose a Suspension Order for 12 months. It was satisfied that this period would properly reflect the seriousness of the case, as well as protect the public and satisfy the public interest considerations. The Panel also considered that during this period, it would be open to the Registrant to take the opportunity to engage with the HCPC, reflect on his practice, and demonstrate a commitment to the profession.

93. The Panel acknowledged that a Suspension Order may cause the Registrant financial hardship, although it had no information in this regard. Nevertheless, the Panel was satisfied that his own interests were outweighed by those of the public interest.

94. The Panel bore in mind that this Suspension Order will be reviewed shortly before its expiry to determine what, if any, further action is required. Whilst not binding, the Panel was of the view that a future reviewing panel may be assisted by the following:

a) The Registrant’s engagement in the process;

b) A demonstration of the Registrant’s commitment to the Occupational Therapy profession and how he may seek to resolve his lack of competence;

c) Evidence that the Registrant has reflected on his period of practice in the United Kingdom;

d) Evidence of any practical, in-person courses or training in the areas of concern; for example, in moving and handling.

That the Registrar is directed to suspend the registration of Mr Vimal Vinod for a period of 12 months from the date this Order comes into effect.

This Order will be reviewed again before its expiry on 15 September 2024.

Interim Order

Application

1. Mr Anderson, on behalf of the HCPC, applied for an Interim Suspension Order to cover the appeal period before the substantive Suspension Order came into effect or, if the Registrant appealed, until such time as the appeal was withdrawn or otherwise finally disposed of. He applied on the grounds of public protection and otherwise in the public interest.

2. The Panel was satisfied that the Registrant had been given notice within the Notice of Hearing, dated 13 June 2023, of the HCPC’s intention to apply for an Interim Order to cover the appeal period if conditions or suspension were imposed as a sanction. It considered the same factors applied as for its decision to proceed in the substantive hearing, in particular that he had waived his right to attend and it was both fair and in the public interest to proceed.

Decision

3. Having heard and accepted the advice of the Legal Assessor, the Panel was satisfied that an Interim Order was necessary to protect the public and was otherwise in the public interest, for the same reasons as set out in the substantive decision, given that it had found there was a high risk of repetition and consequent risk of harm to patients. In particular, the Panel also considered that an Interim Order was required to promote and maintain public confidence in the profession.

4. Having concluded that an Interim Order was necessary to protect the public, the Panel considered what type of Interim Order to impose. For the same reasons as set out in the substantive decision, the Panel concluded that only an Interim Suspension Order was sufficient to protect the public and the wider public interest.

5. In all the circumstances, the Panel decided to make an Interim Suspension Order for a period of 18 months. In deciding this length, it took account of the fact that any appeal may take a considerable period of time to resolve.

The Panel makes an Interim Suspension 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 Vimal Vinod