HCPTS |

Profession: Physiotherapist

Registration Number: PH105985

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 28/06/2023 End: 17:00 02/08/2023

Location: Virtual via Videoconference

Panel: Conduct and Competence Committee

Outcome: Conditions of Practice

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Allegation

As a registered Physiotherapist (PH105985) your fitness to practise is impaired by reason of lack of competence, in that:

1) You did not display an adequate level of clinical theoretical knowledge, in that:

a) On or around 22 November 2016, when you were treating Service User A, you:

i) Did not display an adequate level of understanding of the role of a locked knee brace;
ii) Did not display the ability to develop an exercise progression.

b) On or around 26 January 2017, when assessing Service User B, who was experiencing co-incidental low back pain, you:

i) NCTA
ii) NCTA
iii) Were unable to clinically justify your recommendation of ‘bridging exercises’;
iv) Caused unnecessary pain and discomfort to the patient.

2) You did not display an adequate level of clinical understanding, in that:

a) On or around 27 October 2016, when assessing Service User C, who was mobilising independently on stairs, you advised that they should move their bed downstairs;

b) On or around 29 December 2016, when questioned by colleague 1 regarding a description of gait, you answered that you were only able to identify gait by independent walking and/or walking with a stick.

3) You were unable to develop appropriate treatment and/or management skills, in that you:

a) On or around 11 October 2016, when assessing Service User D, you were unable to apply clinical reasoning to create a rationale for treatment for the repair of long head biceps in the absence of protocol;

b) On or around 18 October 2016, when assessing Service User E, you were unable to apply clinical reasoning when;

i) You were unable to provide adequate safe transfer technique for nursing staff;
ii) You were unable to discuss an action plan and/or future treatment sessions.

4) You were unable to develop appropriate discharge goals and/or plans, in that you:

a) On or around 17 November 2016, when assessing Service User F, you were:

i) Unaware of the discharge plans;
ii) NCTA
iii) Unable to advise on:
(1) Mobility devices;
(2) the use of a Commode;
(3) Further intervention.
iv) Due to the concerns in 4(ai – aii), you did not assess that Service User F was a risk and/or priority.

b) On or around 21 October 2016, when assessing Service User G:

i) Were unable to show an understanding of arranging a discharge date;
ii) you stated that you did not need to see Service User G as they were already discharged, when they had a discharge date of 25 October 2016;

c) On or around 17 November 2016, when assessing Service User H, you assessed that they were ready for discharge,mwhen this was not the case.

5) You were unable to apply appropriate and/or safe treatment, and/or management, in that:

a) On or around 10 October 2016, when treating Service User I, who had had Total Hip Replacement, you:

i) Treated them as if they had had a Total Knee Replacement;
ii) Were unaware of relevant standing exercises;
iii) Requested Service User I to sit before commencing hip exercises.

b) On or around 16 October 2016, when assisting Service User
J in going to the toilet, you:

i) Left Service User J’s back uncovered;
ii) Left Service User J to stand on his own when you left to retrieve a wheelchair.

c) On or around 17 October 2016, when treating Service User K, you did not stop treatment when Service User K presented with pain and asked for treatment to stop;

d) NCTA

g) On or around 11 November 2016, when assessing Service User O, who was recovering from Total Knee Replacement, you:

i) Were unable to measure and/or position the knee which had been replaced;
ii) Were unable to teach the use of a walking aid;
iii) Required prompting to stop treatment when Service User O informed you that they were feeling unwell.

6) You were unable to adequately evaluate clinical intervention, in that you:

a) On or around 21 October 2016, when assessing Service User G, you stated that Service User G was independent with standing exercises, when this was not the case;

b) On or around 15 November 2016, when assessing Service User P, you did not adapt Service User P’s mobility goals to account for their previous mobility;

c) On or around 11 October 2016 you discharged Service Users Q and/or R following total knee replacement surgery without discussion with a senior colleague and/or consultant
despite their significantly reduced range of movement.

7) You did not display adequate levels of written and/or verbal communication, in that you:

a) Did not document consent in writing for the following patients, on the following dates:

i) NCTA
ii) NCTA

b) On or around 7 November 2016, prior to treating Service User T, who’s discharge plan had recently changed, you required prompting to liaise with nursing staff.

8) NCTA

9) You did not display an ability to reflect and/or act on feedback, in that:

a) On or around 11 October 2016, when assessing Service User W who had had a Hip Revision, you were unable to complete the following without prompts, despite being coached on them on 10 October 2016 with Service User T:

i) Stair assessment;
ii) Standing exercises.

b) On or around 26 October 2016, when assessing Service User L who had had a Total Knee Replacement, you were unable to advise on an exercise for a knee extension.

10) The matters set out in paragraphs 1 – 9 constitute lack of competence.

11) By reason of your lack of competence your fitness to practise is impaired.

Finding

Background

1. The Registrant is a Physiotherapist who was employed at the relevant time as a Band 5 Physiotherapist by Northern Lincolnshire and Goole NHS Trust (the Trust) between 21 September 2016 and 12 March 2017.

2. The role was a rotational post which required the Registrant to rotate between different specialities, usually on a four-monthly basis. During the first rotation on Orthopaedics he was line-managed by AR, the Team Lead for Orthopaedics. His Clinical Supervisor was HI, who at the time was a Band 6 Physiotherapist working within the Orthopaedics ward. He was also assisted by SW and AW, who were both Band 4 Physiotherapist Technical Instructors.

3. During the Registrant’s first rotation on the Orthopaedics ward, various issues were identified by his colleagues and senior members of the Physiotherapy Team in respect of the Registrant’s ability to undertake physiotherapy work with patients. As a result, the Registrant required regular supervision whilst attending to patients and began to work through the Trust’s Performance Management Process to manage his competency.

4. The Registrant did not complete a full four-month rotation owing to rotational timings within the Trust. On or around 2 December 2016, after approximately nine weeks in Orthopaedics, the Registrant rotated to the Acute Stroke Unit. He was supervised by KG, Operational Manager and Team Lead for the Acute Stroke Unit, and Colleague 1, who was a Band 6 Physiotherapist. Further issues were identified during the course of that second rotation.

5. The Registrant decided to resign from his role prior to Stage 2 of the Performance Management Process commencing. The Registrant was referred to the HCPC by the Trust due to the concerns regarding his competency throughout his employment at the Trust.

6. Following the HCPC’s investigation the alleged deficiencies, as reflected in the Allegation above, were identified.

7. The HCPC case relies on the following witnesses:

• KG - Operational Manager and Team Lead for the Acute Stroke Unit

• AR - Team Lead for Orthopaedics

• HI - Band 6 Team Lead Musculoskeletal Physiotherapist

• Colleague 1 - Band 6 Physiotherapist within the Acute Stroke Unit

• SW - Band 4 Physiotherapy Assistant Practitioner

• AW - Band 4 Physiotherapy Assistant Practitioner

8. The Registrant provided a detailed statement in which he admitted some of the underlying facts in the matters alleged, but disputed the majority and that his fitness to practise was impaired by reason of lack of competence.

Application to amend

9. During the evidence-in chief of HI, it became apparent that the reference in Particular 4(a)(ii) to the Mental Health Act was inaccurate. HI said that as far as she was concerned, the Section 5 she was referring to had nothing to do with the Mental Health Act. She said it related to the situation whereby a vulnerable patient was due to be discharged and the duty on the hospital to notify Social Services, so that they could make any necessary arrangements for the care of the patient when discharged from hospital.

10. Following that evidence Mr Tarbert made some enquiries, as a result of which he then made an application to amend Particular 4(a)(ii). He said that the HCPC could not be confident that it was a correct reference to the Mental Health Act and that it would therefore be appropriate to amend the Particular in terms that would reflect the evidence, as set out by HI in her statement. He submitted that there would be no unfairness to the Registrant because Ms Price had not finished her cross-examination and so HI could be questioned about the amended Particular. Mr Tarbert invited the Panel to amend the Particular to read, “Unaware of arrangements under Section 5 which meant that a notification was required to be sent to Social Services that the patient was leaving the hospital”. Mr Tarbert said that it was unfortunate that he was not in a position to be more specific about Section 5, but that the amendment sought would bring some clarity.

11. Ms Price, on behalf of the Registrant, objected to the application. She said that the Registrant had prepared a detailed statement based on the allegations as they stand. She said that if the application were to be allowed in the terms proposed the Allegation would lack specificity since no one would not know which Act was being referred to and what arrangements the Registrant was said to be unaware of. In such circumstances, she submitted, the Registrant could not know how to meet this Particular. She emphasised the importance of Particulars being clear and specific so that the Registrant knew precisely what was being alleged and could properly defend himself.

12. The Panel considered the application to amend with care, and in doing so took into account the submissions made by both parties and the advice of the Legal Assessor.

13. The Panel noted the stage of the proceedings, namely that the principal witness was giving her evidence and that the Registrant had already provided a detailed written statement responding to the matters as currently alleged. The Panel noted that it could amend the Particulars at any time up to its findings of fact, but that any amendment would have to be fair and must not cause any injustice.

14. The Panel could see that, as currently worded, Particular 4(a)(ii) was deficient in that it appeared to reference the wrong Act of Parliament. Indeed, from the evidence it was not even clear if this was a statutory provision or a hospital protocol. The Panel agreed with Ms Price that the proposed amendment lacked specificity and considered that it would be unfair on the Registrant to ask him at this stage to respond to something different, which was vague and lacked specificity. For these reasons the Panel decided to reject the application.

Application to adjourn

15. Having heard the evidence of KG and AR, the Panel next heard from HI. Before hearing HI’s evidence, the Panel had been informed that she was currently suffering from a health issue but that she was confident she was well enough to give evidence and she was keen to do so. Her evidence-in-chief commenced on day two of the hearing and cross-examination began on day three. HI is the principal witness for the HCPC and her evidence is relevant to the majority of matters alleged against the Registrant. It had been anticipated, therefore, that her evidence would take some time. However, for various reasons, including technological and bundle issues and the application to amend Particular 4(a)(ii), it took longer than expected and continued throughout day three and into day four. By day three, it was apparent to the Panel that she was becoming frustrated at the various delays and the length of time it was taking to hear her evidence. More significantly, by day four it was also apparent that her health condition was worsening. As a result, on day four, Thursday 12 August 2021, HI suddenly indicated that she did not feel well enough to continue and indeed she expressed a view that she no longer wanted to continue giving evidence in this case.

16. As a consequence, the Panel Chair released HI from her Affirmation and she was allowed to retire from the current listing for this hearing. Although she had expressed a view that she would not want to return on any other date, it was made clear to her that the case may be re-listed on a later date but that that was something which had yet to be decided.

17. The case then continued with the Panel hearing oral evidence from Colleague 1.

18. Mr Tarbert, on behalf of the HCPC, then made an application to adjourn the hearing so that “all avenues could be explored to ensure HI was able to complete her evidence.” He acknowledged that HI had indicated that she did not want to return on another date, but noted that this was a view expressed at a time when HI was obviously unwell and also understandably frustrated at the slow progress that had been made in trying to complete her evidence. He also said it was open to the HCPC to consider compelling HI to attend on another date in the event she maintained her position of not wanting to attend. These were, he said, all matters to be explored in due course in the event that the adjournment was granted. Reference was made to the Panel’s ability to make a witness Order in the event that it was clear a witness was unlikely to attend in the absence of such an Order, and Mr Tarbert said this was something the HCPC could consider in due course if felt necessary.

19. Mr Tarbert said that HI was a significant witness in this case and there was a clear public interest in making every effort to try and secure her attendance at a resumed hearing so that she could conclude her evidence. He said that there were a large number of allegations about clinical competence and concerns about the ability of the Registrant to practise safely and that these should be properly explored and considered before the Panel made its decisions, and that included hearing the full evidence of HI. Mr Tarbert acknowledged that there is also a public interest in ensuring the expeditious disposal of cases, but submitted that even had this matter not arisen there was a strong possibility that this case would not have concluded within the current time listing and that an adjournment would have been almost inevitable. Accordingly, he said, any prejudice caused to the Registrant would be no different than would have arisen in any event, given there was insufficient time to conclude the case.

20. Mr Tarbert added that a further delay as a result of an adjournment would not make matters any worse since they were already historical and witnesses were principally relying on their contemporaneous notes, rather than their memories. He said the need for the adjournment was not the fault of any party and that there had been no previous adjournments of the substantive hearing.

21. Ms Price, on behalf of the Registrant, opposed the application. She submitted that there would be considerable prejudice to the Registrant were the application to be allowed. She said the crucial factor was fairness and that if the matter were adjourned it would not be possible for the Registrant to have a fair hearing. Ms Price reminded the Panel of the historic nature of this case, with allegations from almost five years ago. She said that HI had given a clear statement that she did not want to continue. This meant that the HCPC may have to apply for a witness summons from the High Court, which would cause considerable delay and would not guarantee HI’s attendance.

22. Ms Price disagreed with Mr Tarbert’s submission that no party was at fault. She said that the HCPC has control of these proceedings and chose to conduct the hearing remotely. She said the HCPC had been unable to ensure the correct bundle was provided to the Panel prior to the start of the hearing and that had caused delay. She added that further delay had been occasioned by the application to amend one of the Particulars in the middle of HI’s evidence, which was the HCPC’s fault in not identifying the correct statutory provisions. She said the Registrant was certainly not at fault and yet it would be he who would have to bear the brunt of the prejudice that an adjournment would occasion.

23. Ms Price said it was by no means certain that this case would not have concluded within the current time listing. She also said that additional delay would impact further upon the memories of witnesses dealing with matters which were already historic. Ms Price informed the Panel that the Registrant was the subject of an Interim Conditions of Practice Order which was hampering his ability to work, this case had been hanging over him for years, and the added stress of a further delay should not be “brushed aside lightly”. Ms Price also reminded the Panel of the Registrant’s Convention rights, with particular reference to Articles 6 and 8.

24. The Panel considered the application with care, and in doing so took into account the submissions by both parties and the advice of the Legal Assessor.

25. The Panel was conscious of the fact that HI’s evidence was central to the HCPC’s case and underpinned the majority of the matters alleged. It was clear that without her evidence the HCPC’s case would be considerably weakened. Although she had provided her evidence in chief, her cross-examination was far from complete and it had been expected that her evidence would have continued for most of day four.

26. The Panel was cognisant of the HCPC’s over-arching objective to protect, promote, and maintain the health, safety, and well-being of the public, to promote and maintain public confidence in the professions regulated by the HCPC, and to promote and maintain proper professional standards for members of those professions. The Panel also has a statutory obligation to conduct fitness to practise proceedings expeditiously and it was in the interests of all parties and the wider public interest that allegations are heard and resolved as quickly as possible. The Panel was also duty-bound to ensure the proceedings were conducted fairly for all concerned, and that included fairness to the Registrant, fairness to the HCPC, and fairness to the witnesses.

27. There was, therefore, a careful balancing exercise to be performed between ensuring the over-arching objective was met whilst ensuring the Registrant was afforded a fair hearing within a reasonable time of the events to which it related. With reference to that last observation, the Panel noted that this case was already somewhat historic, relating to allegations dating back to 2016. It was thus already difficult to expect witnesses and the Registrant to be able to rely on memories of what happened nearly five years ago.

28. The Panel noted the stance taken by the HCPC and the opposition to the application by Ms Price on behalf of the Registrant. The Panel considered that it was clear the case would not have been able to conclude within the current time listing even if HI had been able to conclude her evidence. Ms Price had alluded to the possibility of a half time submission at the conclusion of the HCPC’s case. Any such submission would have to be responded to by Mr Tarbert and the Panel would then have to deliberate and write up its decision. That process alone would have meant it was highly improbable that the Registrant’s case would have begun within this time listing, assuming some matters had survived any half time submission.

29. The Panel thus took into account the likelihood of this matter having to be adjourned in any event and almost certainly before the Registrant was able to give his evidence. In addition, the Registrant was experiencing technical difficulties which meant it was not possible for the Panel to hear him adequately, and resuming after an adjournment would allow time to address this issue. Accordingly, the Panel considered there would be no greater prejudice accorded to the Registrant by granting this adjournment application now.

30. With reference to any uncertainty about whether or not HI would return to complete her evidence, the Panel noted that at the time she said to the Panel that she no longer wished to participate, her health had taken a downturn and she was clearly suffering from symptoms. This was exacerbated by the understandable frustration she must have been feeling due to the length of time it was taking to complete her evidence. The Panel did not consider this to be the particular fault of any party, but rather a combination of factors, not the least of which was the additional difficulties encountered with remote hearings, such as different page numbers for electronic bundles and internet connectivity issues. The Panel noted that HI, a senior professional Physiotherapist, registered with the HCPC, had been a willing party to these proceedings from the outset and considered it likely that, when fully recovered, she would reflect upon her responsibilities to her Regulator. There was, therefore, every chance she would consider returning to complete her evidence when recovered and it was not therefore clear that there would be a need for the HCPC to apply for a witness summons. The Panel noted its powers to summons a witness under Rule 10(3) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003, which state “… The [Panel] may require any person (other than the registrant) to attend a hearing and give evidence or produce documents.” Accordingly, if it became apparent in due course that HI was not willing to return, the Panel could be asked to make an Order under Rule 10(3).

31. The Panel noted Ms Price’s submissions about any further delay impacting yet further upon witness memories and this was indeed a concern. The Panel noted, however, that much of the evidence so far received was based on contemporaneous records rather than specific memories of events and thus any further delay would be unlikely to impact significantly upon the quality of the evidence likely to be given. The Panel also took into account the effect of further delay on the Registrant’s memory. Whilst this was an important factor, the Panel noted it had the benefit of a detailed statement from the Registrant. Furthermore, as mentioned above, it seemed highly unlikely that the Registrant’s evidence would have been reached within this time listing in any event.

32. The Panel was concerned about how long it had taken this case to reach a substantive hearing and the inevitable stress this must be causing the Registrant. It was also cognisant of Ms Price’s comments about the Registrant’s attempts to obtain work being hampered by an Interim Order. These were matters which formed part of the balancing exercise the Panel had to undertake. The Panel concluded, however, that the public interest in ensuring these allegations were properly dealt with outweighed any prejudice to the Registrant in this regard. This was particularly so given the almost inevitability that this case would not have concluded within the current time listing and thus the Registrant’s evidence would be delayed to a resumed date in any event. Overall, the Panel concluded that a fair hearing remained possible.

33. The Panel regretted any further inconvenience being caused to the Registrant, but concluded that the public interest in ensuring the matter was fairly heard and decisions made on the best evidence meant it was necessary to hear the conclusion of HI’s evidence, if at all possible. Accordingly, in all the circumstances, the Panel decided to grant the adjournment.

Resumption of the hearing

34. The hearing reconvened on 13 March 2023 with a new Panel Chair and a new Legal Assessor, due to unavailability. There was also a new Presenting Officer of behalf of the HCPC, Mr Olphert. All parties were provided with the transcripts of proceedings from the first six days of the hearing, in addition to the following documentation:

a. C1 – the bundle provided by the HCPC (322 pages);

b. C2 – documents D150 and D182, previously redacted from the HCPC bundle (2 pages);

c. R1 – the Registrant’s original bundle (49 pages);

d. R2 – Registrant’s supplemental witness statement (1 page);

e. R3 – Registrant’s supplemental bundle (8 pages).

35. HI concluded her evidence to the Panel. It then heard from SW and AW. Upon Mr Olphert closing the case on behalf of the HCPC, Ms Price made a ‘half time submission’.

Half time submission

36. The parties helpfully provided the Panel with written submissions on whether there was a case to answer in relation to some of the particulars, which they then expanded upon in brief oral submissions. Ms Price identified that Article 26(3) of the Health Professions Order 2001 provides that, where an allegation is referred to an Investigating Committee Panel, it must consider, in the light of the information which it has been able to obtain and any representations or other observations made to it, whether in its opinion there is a “case to answer”. If there is not, then those allegations must end at that stage. She then described the approach the Panel should take as set out by the courts in R v Galbraith, as follows:

‘(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty - the judge will stop the case.

(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence.

(a) Where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case…’ (per Lord Lane CJ at p 127).

37. Ms Price also referred the Panel to the HCPTS Practice Note, which provides guidance on the approach to half time submissions. She reminded the Panel that the HCPC should persuade it that factual allegations have been proven and that the burden cannot be reversed by suggesting that the Registrant must prove he has or has not done any particular thing. Ms Price submitted that this is not a case where the issues turn on witness credibility and so there is no ambiguity as to the state of the evidence. Her submission that there was no case to answer related to Particulars 1(a)(i), 1(a)(ii), 1(b)(i), 1(b)(ii), 1(b)(iii), 1(b)(iv), 2(a), 2(b), 3(a), 4(a)(ii), 4(c), 5(d), 6(a), 7(a)(i), 7(a)(ii) and 8. Her submissions in respect of each particular can be summarised as follows:

1(a)(i) The allegation must fall as there is no evidence to prove it:

No patient notes had been provided for this patient, HI relied upon her notes as she had no independent memory of the incident, and the Registrant understood why a locked knee brace was used and that only limited exercises would be appropriate.

1(a)(ii) There is no evidence the Registrant did not display the ability to develop exercise practise and therefore the allegation must fall away:

There were no patient notes. HI had no independent memory of the incident and was relying on her notes. HI accepted that the supervision notes did not reference exercise progression. The Registrant has set out what he did do, which HI accepted was adequate and appropriate.

1(b)(i) There is no evidence relating to lumbar movement and therefore the allegation must fall away:

Colleague 1, the only witness who speaks to this, told the Panel she could not recall if the Registrant was asked to explain or discuss lumber movements and there is nothing recorded in the notes before the Panel.

1(b)(ii) There is insufficient evidence from which the allegation could be proven:

Colleague 1 could not recall the incident and said bridging exercise may be recommended to a patient to help with lower back pain, but she could not remember if it would have been appropriate for this patient. There is no evidence that it was not an appropriate assessment. The supervision notes were written by someone else and are untested hearsay evidence.

1(b)(iii) There is insufficient evidence from which the allegation could be proven:

The witness who spoke to it could not recall the incident. The supervision notes were written by someone else and are untested hearsay evidence. The exercise is generally safe and she could not recall if it would have been inappropriate.

1(b)(iv) There is insufficient evidence from which the allegation could be proven:

The witness who spoke to it could not recall the incident and stated that she could not say if the exercise caused more pain to the patient. The supervision notes were written by someone else and are untested hearsay evidence.

2(a) There is no evidence that moving the bed downstairs was not required and therefore the allegation must fall away:

HI could not recall the patient but agreed that moving the bed could be appropriate if the patient was at risk of falling and was worried about this.

2(b) There is no evidence of this at all and therefore the particular must fall away:

There are no supervision notes for 29 December 2016 and Colleague 1 could not recall what she had asked. She accepted that the answer given by the Registrant was reasonable in part.

3(a) There is no evidence to support the allegation so it must fall:

The Panel has read the Registrant’s evidence on this and he did establish an action plan / treatment plan, which HI said would be reasonable for this patient. The full clinical notes have not been provided, therefore the Registrant is prejudiced as he can’t rely on them. The documentation relied upon does not support the allegation.

4(a)(ii) There is no evidence to support this allegation and it must fall away:

The HCPC recognised this in their application to amend the allegation, which was not allowed. There is no reference in this case to the Mental Health Act and HI’s evidence does not support the allegation.

4(c) There is insufficient evidence from which the allegation could be proven.

HI could not recall this handover meeting, and the exhibits state that the patient was still using a Zimmer frame for mobility and required a step assessment. It does not say that the Registrant recommended discharge when the patient was not ready.

5(d) There is no evidence to support the allegation and it must fall:

HI had no independent memory of this issue and agreed that the Registrant had done exercises with the patient, as recorded in the notes.

6(a) There is no evidence to support the allegation and it must fall:

The clinical notes support the Registrant’s denial of this allegation, as it is clearly documented that the patient needed support for exercises. HI did not address this issue in her statement and no other witness gave evidence that the Registrant said what is alleged.

7(a)(i) There is no evidence to support this allegation; on the contrary there is evidence to demonstrate that the alleged omission did not occur:

The notes show that consent has been documented, therefore there is clear evidence that the alleged omission did not occur. HI speculated that the entries were entered later. It is clear from the notes that the Registrant’s general practice was to document consent.

7(a)(ii) There is no evidence to support this allegation; on the contrary there is evidence to demonstrate that the alleged omission did not occur.

8 This is administration; the addition of the town may have significance in the department, but it is not a general skill of a physiotherapist. It is not therefore capable of properly being said to be demonstrative of a lack of competence. There is no evidence that this occurred on more than one occasion.

The facts are admitted and therefore this submission is limited to an argument regarding no case to answer in respect of the alleged lack of competence. The highest this is put in the evidence is that a patient label was used instead of writing the address out by hand.

It is crucial that the address was on the label and so the Registrant did document where the patient lived. The issue is that, although the address was on the label, this was limited to the first line of the address and the postcode. The patient’s address and location were fully identifiable. There was no opportunity for confusion or misidentification.

SW accepted this was not a major issue and that, at most, the impact would be that a colleague would have to look up the town in which the patient lived before booking an outpatient appointment in the correct location for them.

38. Ms Price concluded her submissions by reminding the Panel that it had to be satisfied that the wording of the Allegation has been made out, not that it is made out generally. She invited the Panel to look very carefully at the wording of each particular as to whether there was any or sufficient evidence. Ms Price also reminded the Panel that the burden of proof remains with the HCPC and the Registrant does not have to prove that he didn’t do something. She suggested that the supervision notes should be treated as hearsay evidence and given little weight as live witness evidence provides the context. Relying on hearsay evidence was evidentially very difficult and, in her submission, not sufficient to pass the half time test.

39. Mr Olphert reminded the Panel that, as with the Panel Chair and the Legal Assessor, he was not in attendance at the first part of the hearing and was therefore reliant upon the transcripts of that part. He was conscious that two panel members would have the benefit of the context of answers provided by the witnesses.

40. In respect of the application, Mr Olphert confirmed that the relevant case law is set out in the case of R v Galbraith and that the Panel would be assisted by the Practice Note issued by the HCPTS on “‘Half time’ Submissions”. He submitted that the test to be applied sets a low bar, in that the HCPC need only to present some evidence which is sufficiently cogent that the Panel could find a particular proven at the facts stage.

41. Mr Olphert submitted that the HCPC’s overall position is that each factual particular is capable of meeting the test set in respect of the statutory ground. His submissions in respect of each particular can be summarised as follows:

1(a)(i) There is clear witness evidence from HI to support the allegation, which is not so tenuous or inconsistent as to provide no basis for a finding of fact:

HI assisted the Panel with its questions on the subject despite the passage of time and was clear about the proper approach to the brace.

1(a)(ii) There is clear witness evidence from HI to support the allegation, which is not so tenuous or inconsistent as to provide no basis for a finding of fact:

HI assisted the Panel with its questions on the subject despite the passage of time and was clear about the proper approach to the exercises.

1(b)(i) Colleague 1 was examined in chief, cross-examined, and asked questions by the Panel. While there were issues with her recollection at the hearing in 2021, her statement and the contemporaneous notes are consistent and clear; therefore there is a case to answer:

Colleague 1 was in attendance when the notes were taken and would have discussed the entry made. The totality of her evidence supports the allegation.

1(b)(ii) Colleague 1 was examined in chief, cross-examined, and asked questions by the Panel. While there were issues with her recollection at the hearing in 2021, her statement and the contemporaneous notes are consistent and clear; therefore there is a case to answer:

Colleague 1 was in attendance when the notes were taken and would have discussed the entry made. The totality of her evidence supports the allegation.

1(b)(iii) Colleague 1 was examined in chief, cross-examined, and asked questions by the Panel. While there were issues with her recollection at the hearing in 2021, her statement and the contemporaneous notes are consistent and clear; therefore there is a case to answer:

Colleague 1 was in attendance when the notes were taken and would have discussed the entry made. The totality of her evidence supports the allegation.

1(b)(iv) Colleague 1 was examined in chief, cross-examined, and asked questions by the Panel. While there were issues with her recollection at the hearing in 2021, her statement and the contemporaneous notes are consistent and clear; therefore there is a case to answer:

Colleague 1 was in attendance when the notes were taken and would have discussed the entry made. The totality of her evidence supports the allegation.

2(a) There is some evidence, which is not so tenuous or inconsistent, that the Registrant advised the patient to move their bed downstairs when this was not required; therefore there is a case to answer:

HI confirmed that she recalled the patient being advised to move the bed, and that she would always try and encourage a patient to be functional. She could not recall the incident specifically but there is sufficient evidence in totality.

2(b) The evidence raises a clear case to answer:

Colleague 1 deals with the issue of gait in oral and witness statement evidence. The exhibits contain notes referencing gait being discussed with the Registrant and in cross-examination Colleague 1, while accepting they could not recall the exact patient, said they would expect more than “walking independently with a stick” if a patient was off balance or had a step to pattern.

3(a) There is sufficient evidence to pass the low bar required for a half time submission in respect of this allegation:

The particular is sufficient to meet the requirement for lack of competence, taking into account the definition encompassed in Calhaem v GMC. HI told the Panel that she would expect the Registrant to tell the patient not to over-lift. Her recollection had diminished over time; however, the contemporaneous evidence presented raises a clear case to answer, such that it demands a proper explanation from the Registrant.

4(a)(ii) The HCPC cannot make submissions on this particular given that its application to amend the particular was refused.

4(c) There is sufficient evidence for this allegation to pass half time:

HI’s witness statement evidence was clear on this allegation. When asked, she could not specifically recall this handover meeting but said that if she documented it, she did not think she could have mixed that up.

5(d) There is sufficient evidence to meet the Galbraith test in respect of this particular and the particular should be left to the formal fact-finding stage:

The contemporaneous notes identify that the Registrant was unable to discuss exercises, though HI accepted in oral evidence that she had no independent memory of the specific concern.

6(a) The HCPC submit that there is sufficient evidence from the oral and documentary evidence of SW for the allegation to reach the threshold required:

SW’s recollection of events had declined but she was able to assist the Panel as the Registrant had failed to distinguish between independence with exercises and supervision being required to get to and from the location where the exercises took place. She accepted that the nursing team would need to make their own judgement about a patient, but there was nothing above the bed to show mobility status; therefore, if handed over orally that they were independent, that would be treated as a change in mobility status.

7(a)(i) There is clear witness and documentary evidence to advance this particular past half time and to meet the test in Galbraith:

It appears consent is documented on the clinical notes, but HI is clear in her evidence that this has been squeezed in after she reminded the Registrant to include it. The evidence of witness SW was that documentary clinical notes were often completed after the fact and, indeed, after discussion. They do not, therefore, undermine the evidence from the exhibits recording that the Registrant failed organically and by himself to have documented consent. There is therefore a case to answer.

7)a)(ii) There is clear witness and documentary evidence to advance this particular past half time and to meet the test in Galbraith:

8 There is sufficient evidence for this allegation to pass half time.

SW gave clear evidence that the Registrant was required to complete the front sheet and failed to do so adequately. It was his responsibility. The evidence presented is sufficient to demonstrate a prima facie case under Calhaem v GMC, which is an authority for the proposition that a single instance or incident can constitute lack of competence. The appropriate standard is that applicable to the post to which the practitioner was appointed and the work they were carrying out. Deficiency is to be judged against the standard of professional work reasonably expected of the practitioner.

42. Mr Olphert concluded his submission by reminding the Panel that he could not make any submission in relation to Particular 4 as the HCPC’s application to amend it had been refused. He acknowledged that the Registrant is under no burden to say anything, but that the evidence before the Panel begged an explanation from the Registrant. Finally, Mr Olphert addressed the treatment of documents where witnesses had little recollection of events, saying it was for the Panel to grapple with the weight to attach to the documents. He reiterated that the witnesses explained why and how the documents were prepared, and recognised the Panel would need to treat them with caution but may still be able to place some weight on those documents. The HCPC had provided as a minimum the evidence to take consideration of the matters past half time.

43. The Panel listened carefully to the submissions on behalf of both parties and had the benefit of legal advice from the Legal Assessor, which it accepted and applied. It noted that it was expected to adopt a sequential approach when reaching a decision in relation to the submission on behalf of the Registrant that there was no case to answer in respect of the HCPC’s case. The relevant burden of proof was on the balance of probabilities and it was for the HCPC to discharge this burden when presenting its case. The Panel then proceeded to work carefully through the sequential steps identified in the HCPTS Practice Note in relation to “‘Half time’ Submissions”, having regard to the fact that it could only consider the evidence which has been presented by the HCPC and had to disregard the evidence which the Registrant had provided in advance but not yet presented to the Panel (including his witness statements).

44. The steps identified in the case law on determining whether there is a case for the Registrant to answer translate to the four questions identified in the HCPTS Practice Note:

a. Has the HCPC presented any evidence on which the Panel could find the allegation or element proved?

If not, there is no case to answer.

If there is some evidence, then the Panel must consider:

b. Is the evidence so unsatisfactory in nature that the Panel could not find an allegation or element proved?

And

c. If the strength of the evidence relies on the Panel’s assessment of witness reliability, is the witness so unreliable or discredited that the allegation or element is not capable of being proved?

If either question is answered in the affirmative for an allegation, there is no case to answer for that allegation.

If either question is answered in the negative, the Panel then needs to consider:

d. Is the evidence presented by the HCPC, when taken at its highest, such that no reasonable panel could properly conclude that:

i. the statutory ground of the allegation is met; or

ii. the registrant’s fitness to practise is impaired?

If either question is answered in the affirmative, the Panel is entitled to conclude there is no case to answer for that allegation.

45. The Panel therefore applied the above to each particular in respect of which the half time submission was made, having regard to the witness statements and documentary evidence provided, as well as oral evidence from six witnesses who worked with the Registrant while he was employed by the Trust as a Band 5 Physiotherapist between 21 September 2016 and 12 March 2017. The Panel was mindful that the witnesses documented some of their work with the Registrant in notes created on a contemporaneous basis, generally written on the day or the day after they worked with him. Most of these notes were contained in one notebook compiled for the purposes of recording observations by members of the Multi-Disciplinary Team about the Registrant’s performance, both positive and negative. The issues in the notes were then discussed with the Registrant either when the issues arose, or subsequently in supervisory meetings to aid his development.

46. Witnesses explained to the Panel that they did not expect a Band 5 Physiotherapist to know everything at the start of a rotation; the expectation was that by the time the Band 5 Physiotherapist had been in a department for about a month, the support and supervision they required should have reduced substantially. The notes ensured that the Multi-Disciplinary Team working with the Registrant were sighted on his capabilities and therefore able to manage risk to patients, and pre-dated any formal Performance Management Process. Most of those who contributed to the notes provided witness statements and oral evidence to the Panel. In giving their oral evidence, they relied heavily upon the notes they had written given the substantial period of time that had elapsed. It was apparent that the witnesses generally liked the Registrant and were trying to ensure that he could attain the standard of performance expected.

Particular 1(a)(i) – PRIMA FACIE CASE MADE OUT

1) You did not display an adequate level of clinical theoretical knowledge, in that:

a) On or around 22 November 2016, when you were treating Patient 78, you:

i) Did not display an adequate level of understanding of the role of a locked knee brace.

47. The stem of this allegation requires the Panel to firstly determine what an adequate level of clinical theoretical knowledge is, before moving on to the second and third limbs of the sub-particulars. The Registrant was employed as a Band 5 Physiotherapist. As such, he was expected to meet a number of objectives, which were confirmed in the Performance Management Meetings held with him as:

“1. Will be able to identify and prioritise own case load on Wards 10 & 11.

2. Will be able to assess and treat all routine elective procedures.

3. Will be able to discharge plan for individual patients whose care you are responsible for.

4. You will be an active member of the multidisciplinary team contributing to joint decision making.

5. You will have two outpatient clinics per week and you will be able to treat patients independently seeking advice where appropriate.

6. You will be able to independently assess and treat non-complex trauma patients.

7. You will be able to delegate appropriate tasks to assistant staff.

8. You will be able to input referrals, interventions and discharges on systm one [sic].

9. You will be able to refer on to outpatient/community physiotherapy where appropriate.

10. You will independently maintain accurate and concise records of all interventions as per trust protocol and standards of proficiency.

11. To have an awareness of CPD and demonstrate and ability to reflect.”

48. The Panel did not accept Ms Price’s submission that there were no clinical notes for Patient 78; the exhibits bundle contained a Physiotherapy Continuation Sheet for Patient 78 dated 22 November 2016 and timed at 11.31, completed by HI. Those clinical patient notes did not, however, contain (nor would the Panel expect them to) deficiencies of clinical reasoning and understanding of equipment. Such issues would be recorded in supervisory notes, such as those made on 22 November 2016, which were available to the Panel in addition to the oral evidence provided by witnesses.

49. HI’s statement was signed in August 2020 and confirmed that the Registrant asked her if the patient could do range of movement exercises if the brace was locked. The notes she prepared to discuss in supervision with the Registrant reflect the concerns she had at that point. In cross-examination, HI confirmed that the Registrant understood that the locked hinged knee brace “blocked” movement. She reported that she always made sure she was extremely close by when the Registrant was seeing a patient. When answering questions from the Panel, HI said there could be a risk of harm if exercises went past the recommended range of movement noted by the surgeon in the operation notes.

50. Given the comprehensive nature of the contemporaneous notes made by HI, her statement, and her oral evidence, the Panel was satisfied that there was some evidence presented by the HCPC which could result in the Panel finding the allegation proved. The evidence provided was not so unsatisfactory that the allegation could not be proved, and the witness was neither unreliable or discredited to the extent that the allegation could not be proved, though her recollection of events had been impacted by the passage of time. The Panel was also satisfied that the statutory ground of lack of competence could reasonably be made out given the fundamental nature of the use of equipment such as locking knee braces and the exercises that can be performed with a patient when that equipment is in place. If the facts and ground were made out, a finding of impairment could follow.

51. Given all of the above, the Panel was satisfied that a prima facie case had been made out in respect of this particular.

Particular 1(a)(ii) – PRIMA FACIE CASE MADE OUT

1) You did not display an adequate level of clinical theoretical knowledge, in that:

a) On or around 22 November 2016, when you were treating Patient 78, you:

ii) Did not display the ability to develop exercise progression.

52. The facts of this particular arise from the circumstances addressed by the Panel in respect of Particular 1(a)(i) and therefore are not repeated. The Panel noted, however, that in cross-examination HI accepted that she had not included in her notes anything about exercise progression.

53. The Panel was satisfied, however, that it follows that if the Registrant was not aware of the implications or role of a locked hinged knee brace, he may not be able to go on to develop exercises to progress the patient’s recovery. Further, it noted that Ms Price put to HI that the Registrant recalled recommending, “static quad, static quadriceps, strengthening exercises, passive knee exercises, co-contraction, hamstring curls and knee and ankle range of movement exercises” but she “did not remember having that conversation with Mr Rahman at all”.

54. The particular, read as a whole, focuses on whether the Registrant demonstrated clinical knowledge when treating this patient on 22 November 2016. Ms Price has indicated, through cross-examination, what the Registrant’s position on this particular will be, but the Panel was conscious that it must consider only the evidence put before it by the HCPC at this stage of proceedings. It cannot have regard to the Registrant’s submissions at this point.

55. Given the comprehensive nature of the contemporaneous notes made by HI, her statement, and her oral evidence, the Panel was satisfied that there was some evidence presented by the HCPC which could result in the Panel finding the allegation proved. The evidence provided was not so unsatisfactory that the allegation could not be proved, and the witness was neither unreliable or discredited to the extent that the allegation could not be proved, though her recollection of events had been impacted by the passage of time. The Panel was satisfied that the statutory ground of lack of competence could reasonably be made out, as a Band 5 Physiotherapist should be able to identify which exercises are suitable for a patient with a locked hinged knee brace and the progression expected in those exercises as the joint heals. If the facts and ground were made out, a finding of impairment could follow.

56. Given all of the above, the Panel was satisfied that a prima facie case had been made out in respect of this particular.

Particular 1(b)(i) – NO CASE TO ANSWER

1) You did not display an adequate level of clinical theoretical knowledge, in that:

b) On or around 26 January 2017, when assessing Patient 80, who was experiencing co-incidental low back pain, you:

i) Were unable to explain lumbar movements;

57. The stem of this particular, as with the two preceding particulars, requires of the Registrant clinical theoretical knowledge. However, in this instance, the witness for the HCPC was Colleague 1. The statement provided by Colleague 1 made no reference to “lumbar movements”, dealing instead with bridging exercises. There was no evidence that the Registrant was asked to explain lumbar movements at any stage, either while with the patient or later in supervision. The supervisory notes dated 26 January 2017 reference poor “clinical reasoning behind treatment options” and focus on bridging exercises, but make no reference to the Registrant being asked to explain lumbar movements.

58. Having regard to the specific wording of the allegation, the Panel did not consider that the HCPC had demonstrated a prima facie case. The evidence was not satisfactory and there was, therefore, no case for the Registrant to answer in respect of this particular.

Particular 1(b)(ii) – NO CASE TO ANSWER

1) You did not display an adequate level of clinical theoretical knowledge, in that:

b) On or around 26 January 2017, when assessing Patient 80, who was experiencing co-incidental low back pain, you:

ii) Recommended an inappropriate assessment, in that you suggested that Patient 80 attempt ‘bridging’ exercises;

59. The stem of this particular, as with the two preceding particulars, requires of the Registrant clinical theoretical knowledge. However, in this instance, the witness for the HCPC was Colleague 1. The statement provided by Colleague 1 referred to the Registrant requesting that the patient complete bridging exercises to assess their lower back pain. Colleague 1 said that bridging exercises are used to strengthen the back and hip area but are not used for assessment purposes. Colleague 1 could not recall Patient 80 or whether bridging exercises were appropriate for this patient to perform.

60. As with Particular 1(b)(i), the supervision notes focused on the fact that bridging exercises were suggested, but made no comment as to why it was an inappropriate assessment. Accordingly, the Panel did not consider that the HCPC had demonstrated a prima facie case of satisfactory evidence that would allow this particular to be found proved. There was therefore no case for the Registrant to answer in respect of this particular.

Particular 1(b)(iii) – PRIMA FACIE CASE MADE OUT

1) You did not display an adequate level of clinical theoretical knowledge, in that:

b) On or around 26 January 2017, when assessing Patient 80, who was experiencing co-incidental low back pain, you:

iii) Were unable to clinically justify your recommendation of ‘bridging exercises’;

61. The stem of this particular also arises out of the same facts as particulars 1(b)(i) and 1(b)(ii), with the evidence again coming from Colleague 1. However, this particular focuses on whether the Registrant was able to justify the recommendation of bridging exercises. This conversation took place in a supervision session which the Registrant attended with Colleague 1 and another member of staff on 26 January 2017, and was documented in the supervisory notes of the same date. Those notes reflect that Colleague 1 “discussed this situation further during this discussion [the Registrant] was not able to clinical [sic] justify his reasoning and showed poor clinical knowledge”.

62. Ms Price, in cross-examination, suggested that the Registrant was not the person who suggested bridging exercises for this patient, but did not question Colleague 1 on the issue of clinical justification of them or the comments in the supervisory notes.

63. The Panel was satisfied that there was some evidence presented by the HCPC which could result in the Panel finding the allegation proved; the statement and evidence of Colleague 1 and the supervisory notes. Although Colleague 1’s memory was impacted by the passage of time, the evidence provided was not so unsatisfactory that the allegation could not be proved, and the witness was neither unreliable or discredited to the extent that the allegation could not be proved. The Panel was satisfied that the statutory ground of lack of competence could reasonably be made out, as a Band 5 Physiotherapist should be able to clinically justify the exercises used to a more senior colleague. The Panel was also satisfied that if the facts and ground were made out, a finding of impairment could follow. Accordingly, a prima facie case had been made out by the HCPC.

Particular 1(b)(iv) – PRIMA FACIE CASE MADE OUT

1) You did not display an adequate level of clinical theoretical knowledge, in that:

b) On or around 26 January 2017, when assessing Patient 80, who was experiencing co-incidental low back pain, you:

iv) Caused unnecessary pain and discomfort to the patient.

64. The stem of this particular also arises out of the same facts as particulars 1(b)(i) - (iii) and therefore this is not repeated. The evidence in this regard also comes from Colleague 1. The statement provided said that asking the patient to do bridging exercises “may have caused the patient more pain”. In oral evidence, Colleague 1 could not say if the bridging exercise caused any unnecessary pain to the patient. However, the supervisory notes, completed contemporaneously in the presence of Colleague 1, state “[the Registrant] did not listen to Colleague 1 and carried on causing the patient unnecessary pain and discomfort”. At no stage was it suggested that the notes of the supervision meeting on 26 January 2017 at 11.45 am with Colleague 1, the Registrant, and the author of the notes (LC, a physiotherapist) are unreliable or otherwise discredited, save for being by their nature hearsay.

65. The Panel was satisfied that there was some evidence presented by the HCPC which could result in the Panel finding the allegation proved; the statement and evidence of Colleague 1 and the supervisory notes. The evidence provided was not so unsatisfactory that the allegation could not be proved, and the witness was neither unreliable or discredited to the extent that the allegation could not be proved. While the notes may be hearsay and the Panel would need to give careful consideration to them in due course, the Panel considered that there was sufficient evidence to cross the low threshold required in determining whether there was a case to answer.

66. The Panel was also satisfied that the statutory ground of lack of competence could reasonably be made out, as pain and discomfort should not be caused to patients unnecessarily. If the facts and ground were made out, the Panel considered a finding of impairment could follow. Accordingly, a prima facie case had been made out by the HCPC.

Particular 2(a) – PRIMA FACIE CASE MADE OUT

2) You did not display an adequate level of clinical understanding, in that:

a) On or around 27 October 2016, when assessing Patient 21, who was mobilising independently on stairs, you advised that they should move their bed downstairs, when this was not required;

67. It does not appear to be disputed that the issue of a bed being moved downstairs was discussed with Patient 21 in the presence of the Registrant and HI. Ms Price submits that HI could not recall this patient and that the action could be appropriate if the patient was at risk of falling and worried about this, and therefore there is no evidence that moving the bed downstairs was not required.

68. The particular requires determination as to whether the Registrant showed adequate clinical understanding in advising the patient to move the bed downstairs when it was not required. HI told the Panel in her examination in chief that “if she recalled correctly, it’s what was advised to the patient”. This was consistent with her statement. The Panel also considered the contemporaneous supervisory notes provided to it, which recorded “[the Registrant] wanting patient to bring bed downstairs despite been independent & safe on the stairs”.

69. Given the acceptance that there was a discussion about the bed being taken downstairs, the Panel was satisfied that there is some evidence to support the allegation, and that the evidence is not so unsatisfactory or discredited that it should not be considered further. The determination to be made is factual. If the facts are proved, it is possible that they could amount to lack of competence and that a finding of impairment could follow. Accordingly, the Panel finds that the HCPC has made out a prima facie case.

Particular 2(b) – PRIMA FACIE CASE MADE OUT

2) You did not display an adequate level of clinical understanding, in that:

b) On or around 29 December 2016, when questioned by Colleague 1 regarding a description of gait, you answered that you were only able to identify gait by independent walking and/or walking with a stick.

70. The Panel had the benefit of the witness statement and oral evidence of Colleague 1, as well as supervisory notes dated 30 December 2016 made by Colleague 1. In examination in chief, Colleague 1 confirmed what was written in those notes: “[the Registrant] was unable to identify anything other than independent or walked with a stick”. In cross-examination, Colleague 1 said that she could recall where the conversation with the Registrant took place and that “I just remember that that is the only description he could give, that they were either independent or independent with a stick”. In response to panel questions, Colleague 1 conceded possibly asking about mobility rather than gait, which would give rise to a different answer.

71. In view of the above, the Panel was satisfied that there was some evidence that the Registrant did not show adequate clinical understanding when asked about gait. The evidence was not so unsatisfactory or unreliable that it should not be subject to further scrutiny; cross-examination focused upon Colleague 1 not being able to identify what the answer should have been for the patient concerned, not the level of clinical understanding shown when discussing gait.

72. The Panel was also satisfied that the statutory ground of lack of competence could reasonably be made out, as a Band 5 Physiotherapist should have a sound knowledge of gait. If the facts and ground were made out, the Panel considered a finding of impairment could follow. Accordingly, a prima facie case had been made out by the HCPC.

Particular 3(a) – PRIMA FACIE CASE MADE OUT

3) You were unable to demonstrate adequate clinical reasoning in that:

a) On or around 11 October 2016, when assessing Patient 14 who had a Long Head of Biceps repair, you were unable to establish a treatment and/or action plan

73. Ms Price submits that the Registrant is prejudiced by the full clinical notes not being provided, and reminds the Panel that HI told it that the treatment plan for the patient identified by the Registrant in his statement was appropriate. She also submits that the supervisory notes do not support the allegation. In cross-examination, she suggested to HI that the Registrant did have a plan for treatment, but HI could not recall any such conversation with the Registrant.

74. It did not appear to be disputed that the notes of 11 October 2016 were contemporaneous and written by HI, or that the Registrant attended Patient 14 with HI on that date. The Panel was unable to consider the evidence supplied by the Registrant save for as put to witnesses in cross-examination. No date or specifics for the Registrant’s plan of treatment was indicated in cross-examination. In the light of this, the Panel considered that there was some evidence that the Registrant did not show adequate clinical reasoning of a treatment plan for this patient and the Registrant had evidence to give in this regard. The evidence before the Panel to date was not so unsatisfactory or unreliable that it should be discounted without further scrutiny.

75. The Panel was also satisfied that the statutory ground of lack of competence could reasonably be made out, as a Band 5 Physiotherapist should be able to provide both a treatment plan and clinical reasons for that plan. If the facts and ground were made out, the Panel considered a finding of impairment could follow. Accordingly, a prima facie case had been made out by the HCPC.

Particular 4(a)(ii) – NO CASE TO ANSWER

4) You were unable to develop appropriate discharge goals and/or plans, in that you:

a) On or around 17 November 2016, in relation to Patient 67, you were:

ii) Unaware of arrangements under Section 5 of the Mental Health Act.

76. The Panel was aware that it had previously rejected an application by the HCPC to amend this particular to reflect the evidence received. It agreed with Ms Price’s submission that there was no evidence in the case relevant to this particular as drafted, having already determined that the particular, as worded, was deficient in apparently referencing either the wrong Act of Parliament or a hospital protocol.

77. The Panel was satisfied that there was no case to answer in respect of this particular.

Particular 4(c) – PRIMA FACIE CASE MADE OUT

4) You were unable to develop appropriate discharge goals and/or plans, in that you:

c) On or around 17 November 2016, in relation to Patient 63, you stated during a handover meeting that they were ready for discharge, when this was not the case.

78. HI told the Panel that she could not recall the particular handover during which it was said that the Registrant reported Patient 63 to be ready for discharge. However, the contemporaneous supervisory notes made by HI and dated 17 November 2016 confirm that the Registrant was “participating in handover without prompts” but that “Handover information not accurate re…”. They go on to record in respect of Patient 63 “stated in handover ready for DC. Patient was still using a zimmer frame for mobility & required step assessment”. This was reflected in HI’s statement. In cross-examination, HI agreed with Ms Price that the patient was ready for discharge other than the step assessment. Ms Price put it to HI that the Registrant said that “treatment of this patient was complete but not the management as they had yet to do the step assessment”, but HI could not recall that.

79. The Panel was satisfied that there appeared to be an agreement between the parties that the issue of discharge of Patient 63 was discussed in handover on or around 17 November 2016. HI was clear in her statement that the patient was not ready for discharge as the patient needed to be stair assessed and discharge would usually be when the patient could use two walking sticks rather than a Zimmer frame. The Panel was satisfied that there was some evidence that the Registrant stated this patient was ready for discharge and some evidence that they were not ready for discharge (until the step/stair assessment had been completed). The Registrant’s case was put to the witness, but the Panel did not have the benefit of his direct evidence as yet. The Panel considered that the evidence available to it was not unsatisfactory or so tenuous it did not merit further investigation. Further, if the facts were made out, it was satisfied that this could amount to the statutory ground of lack of competence, as a Band 5 Physiotherapist should be aware of when a patient is ready for discharge and understand that colleagues on a ward rely on the information provided at handover. If the facts and grounds were made out, a finding of impairment could follow.

80. A prima facie case had been made out by the HCPC in respect of this particular.

Particular 5(d) – NO CASE TO ANSWER

5) You were unable to apply appropriate and/or safe treatment, and/or management, in that:

d) On or around 26 October 2016, when assessing Patient 3, you were unable to provide them with a knee extension exercise;

81. The Panel identified that it had the benefit of treatment notes dated 26 October 2016, timed at 12.00 and completed by the Registrant. Those notes recorded “passive extension” exercises. The supervisory notes suggested that the Registrant did not initially provide the exercises and required prompting, but the Panel noted that the wording of the allegation was not caveated by “without prompting” or by time. Accordingly, given that the Registrant recorded providing exercises when he saw Patient 3 at both 12.00 and 15.00, and these treatment notes were not disputed, the Panel was satisfied that there was no case to answer in respect of this particular.

Particular 6(a) – PRIMA FACIE CASE MADE OUT

6) You were unable to adequately evaluate clinical intervention, in that you:

a) On or around 21 October 2016, you informed colleagues that Patient 4 was independent with standing exercises but did not advise them that he needed supervision to walk.

82. This particular is focused on what the Registrant told colleagues. The HCPC relied on the evidence (oral and written) of SW, who told the Panel that regardless of what was written in the clinical notes, the ward staff relied on the information provided at handover. Ms Price made no submissions in respect of the evidence of SW, referencing the statement of HI as not addressing the allegation. Ms Price’s cross-examination in respect of Patient 4 elicited the response from SW that “[the Registrant] said at handover the patient was discharged”.

83. The supervisory notes reflected that the Registrant stated the patient was independent with standing exercises, but this was not correct as he needed supervision when mobilising and therefore could not do exercises independently. This was confirmed by SW in her statement and evidence to the Panel.

84. The Panel was satisfied that there was some evidence to support the particular – the statement of SW and the supervisory notes – and that the evidence was not so tenuous or unreliable that it did not bear further scrutiny. If the facts were made out, the Panel was satisfied that the statutory ground of lack of competence could also be made out, as a Band 5 physiotherapist should know that a patient who required assistance to get to a place to do exercises was not able to complete exercises independently, even if they could do them without support once in place. The Panel was also satisfied that if the fact and ground were made out, a finding of impairment could follow. Accordingly, the HCPC had made out a prima facie case in respect of this particular.

Particular 7(a)(i) – NO CASE TO ANSWER

7) You did not display adequate levels of written and/or verbal communication, in that you:

a) Did not document consent in writing for the following patients, on the following dates:

i) On or around 17 October 2016, when assessing Patient 4;

85. The Panel reviewed the documentation provided to it in support of this allegation and was entirely satisfied that there was evidence of the Registrant documenting consent in respect of Patient 4. This may have been a later addition following prompting from HI given its location in the notes but, given the wording, that is not the allegation before the Panel.

86. There was evidence that the Registrant did document consent from Patient 4 on 17 October 2016 and, therefore, there was no case for him to answer in relation to this particular.

Particular 7(a)(ii) – NO CASE TO ANSWER

7) You did not display adequate levels of written and/or verbal communication, in that you:

a) Did not document consent in writing for the following patients, on the following dates:

ii) On or around 26 October 2016, when assessing Patient 36.

87. The Panel reviewed the documentation provided to it in support of this allegation and was entirely satisfied that there was evidence of the Registrant obtaining and documenting consent in respect of Patient 36. It noted that in the supervision notes, HI stated that he “failed to document consent”; however, this is not supported by the Shoulder Joint Exercise and Education Document dated 26 October 2016 and timed at 9.30, completed by the Registrant. The Panel was conscious that the consent could have been added to the document following prompting by HI, but that is not the wording of the allegation.

88. There was evidence that the Registrant did document consent from Patient 36 on 26 October 2016 and, therefore, there was no case for him to answer in relation to this particular.

Particular 8 – NO CASE TO ANSWER

8) You did not display an ability to understand and/or apply processes within a service, in that on or around 9 November 2016, when completing a ‘yellow front sheet’ following your treatment of Patient 23, you did not document where they lived

89. The Panel noted that it is agreed between the parties that the Registrant completed the specified form with only the first line of the address and postcode (this being the information on the patient stickers). The issue is therefore whether that was sufficient to document where the patient lived. It noted the HCPC’s assertion that the recording of the first line of the address and postcode did not identify where they lived, but did not accept it. The first line of the address and postcode does identify the address of the patient and therefore where they live. It may not immediately identify the town, and may require further effort to establish which outpatient department to send the patient to, but that is neither the allegation nor the mischief.

90. The Panel considered that what the HCPC was trying to deal with was the fact that the Registrant was unable to identify whether patients lived within the Trust area or should be followed up in another trust area. It heard that those familiar with the area and Trust or Clinical Commissioning Group (CCG) boundaries would know where to refer patients to, but those from out of the area would need to consult the patient ‘cardex’ to establish this information. Without the correct referral, there was a risk that patients would not be followed up and would fall through the gaps. However, this is not the allegation put to this Registrant. The process for completing the yellow front sheet has not been evidenced to the Panel, nor what is done with it thereafter. The witnesses have not recorded him being asked about this process. The Panel can only consider the allegation as put to it. It is not for the Registrant to prove he did comply. It is for the HCPC to prove he did not, and there is no evidence to support this allegation. Accordingly, there is no case to answer.

91. Having determined that there is a case to answer on the facts of particulars 1(a)(i), 1(a)(ii), 1(b)(iii), 1(b)(iv), 2(a), 2(b), 3(a), 4(c) and 6(a), the Panel then considered whether, if the facts were proved, they could amount to the statutory ground of lack of competence. It had particular regard to particular 2(b), which was admitted by the Registrant on the facts but denied that it amounted to lack of competence.

92. Notwithstanding the lack of comprehensive patient notes and full recollection of events by the witnesses, the Panel was satisfied that the evidence before it in respect of the standard of work demonstrated by a Band 5 Physiotherapist, spanning a period of five months, a variety of situations in two hospital departments, and with professionals at a variety of grades expressing concerns, could result in the statutory ground of lack of competence being made out. The Panel would, however, only consider whether it had been made out once it heard from the Registrant.

93. If facts are found proved and if any are found to amount to the statutory ground of lack of competence, the Panel was satisfied that the Registrant could be found to be impaired.

94. Having determined that there is a case to answer in respect of the above matters only, the Panel dismissed particulars 1(b)(i), 1(b)(ii), 4(a)(ii), 5(d), 7(a)(i), 7(a)(ii) and 8.

Decision on Facts

95. Mr Olphert reminded the Panel that the HCPC has the burden of proving its case on the balance of probabilities and asserted that the particulars remaining were made out as drafted. He told the Panel that the admissions made by the Registrant can properly be taken into account but are not formally binding on the Panel. He also noted that there are particulars where the Registrant makes no submissions or raises no specific case at all, but that he is not required to and the Panel will need to determine the strength of the evidence.

96. In relation to recollection and credibility, Mr Olphert recognised the passage of time and the impact of it on the reliability and credibility of witnesses, which the Panel would need to assess. He submitted that the witnesses were in the main honest, credible and reliable witnesses. All of the HCPC witnesses were sympathetic to the Registrant, giving balanced evidence that they attempted to help the Registrant with his development. The Registrant himself in evidence admitted that he had been well supported whilst at the Trust. There is no evidence to suggest that the Registrant was targeted or unfairly persecuted in any way. Issues with recollection would, in Mr Olphert’s submission, require the Panel to scrutinise the totality of the evidence and, if necessary, determine the weight to attach to documents and testimony. The witness statements are detailed and supported by detailed contemporaneous notes. None of these witnesses are said to have fabricated their evidence, and all gave clear evidence about the process for writing these notes – including their purpose, their level of detail, and how they were then used in the process of preparing their witness statements. Mr Olphert invited the Panel to properly place weight on those documents, given that the witnesses were questioned about them. He submitted they were reliable records of what occurred in late 2016.

97. Mr Olphert then addressed the Registrant’s recollection of events. He submitted that the Registrant “stepped away from his account” in respect of Patient 31, and “stepped back from his admission” in respect of that patient. The Registrant’s recollection of events had faded. Time had plainly had an impact on all of those giving evidence in this case.

98. In respect of the Registrant’s credibility however, Mr Olphert submitted that there were inconsistencies in his account of events which “do not add up”. Mr Olphert reminded the Panel that the Registrant, when asked if he used the word ‘believe’ in his statement because he had poor recollection, stated that he now remembered. When questioned further, this was repeated. The Registrant also made generalised statements such as that he always read the operation notes thoroughly, but conceded that his own reflective documents highlighted an incident where he had not read them properly. In respect of Allegation 4(b) the Registrant said in his witness statement that the patient’s discharge dates had changed unexpectedly. However, when taken to the patient notes containing a clear endorsement from the Senior House Officer regarding discharge planning, the Registrant could not give a good account of events, save that he had been told by the nurse in charge that the date had changed. Mr Olphert commented that in the context of this admitted allegation, it was clear that there is an issue with the Registrant’s credibility and the reliability of his account as a whole.

99. Mr Olphert provided a table of submissions in respect of each particular and invited the Panel to find them all proved to the required standard.

100. The Panel then heard from Ms Price, who reminded it that the burden of proof is with the HCPC and this cannot be reversed by suggesting that a registrant must “prove he has or has not done any particular thing”.

101. Ms Price also addressed the issue of witness credibility, submitting that the recollection of events by HI and Colleague 1 was poor. While this may be understandable given the time that had elapsed, and they are to be credited for being honest and candid about it, their evidence must be approached with great caution. Ms Price told the Panel that the Registrant was a credible witness who recognised when he was mistaken or could not recollect a patient. Where he could recall events, he was clear and certain in the evidence he gave, trying his hardest to assist the Panel. She urged the Panel to find him an honest and credible witness and prefer his evidence where the facts are disputed. Ms Price submitted the witnesses would have seen many patients in the intervening periods which could have impacted their recollection of events.

102. As with Mr Olphert, Ms Price also provided submissions in respect of each particular in a tabular format. The submissions of both advocates in respect of each particular to be determined are incorporated with the Panel’s consideration of each particular.

103. Having formed a view on the general issues pertinent to this matter when determining the half time application, and dismissing 7 particulars, the Panel then considered each of the remaining 24 allegations in turn, taking account of the documentary and oral evidence available to it, the submissions of both parties and the legal advice provided by the Legal Assessor. No further consideration was given to those 7 allegations the Panel rejected as lacking a prima facie case. In determining whether an allegation is “well founded” or “proved”, the Panel was required to decide whether the HCPC, which has the burden of persuasion in relation to the facts alleged, had discharged that burden on the balance of probability.

104. The Panel was conscious during its deliberations that:

a.The Registrant worked on an Orthopaedics ward in a rotational Band 5 post when first employed by the Trust in September 2016, where HI was his clinical supervisor;

b.Issues of capability were identified during this rotation therefore the Registrant was subject to extra regular supervision whilst attending to patients as part of the Trust’s Performance Management Process (initial informal stage);

c.The Registrant agreed that HI was a capable educator and that she supported him staying in the Orthopaedics ward when the rotation ended to continue his development but this was not permitted by the Trust due to the nature of the rotational post;

d.The Registrant moved to the Acute Stroke Unit after some 9 weeks with Orthopaedics, on or around 2 December 2016, where he was supervised by KG and Colleague 1;

e.On 6 December 2016 a “Performance Stage 1” meeting took place in relation to the Registrant’s progress towards attainment of the objectives set for him for the Orthopaedics ward, and to establish similar objectives for the Acute Stroke Unit.

f.Issues of capability were identified during the Acute Stroke Unit rotation also.

g.The Registrant resigned from his post prior to the Stage 1 Action Plan being reviewed and before Stage 2 off the performance management process commenced;

h.The Registrant was able to work for the Trust as a consequence of a visa which depended upon his employment.

105. As a consequence of the performance management process, the Registrant’s clinical supervisors were asked to maintain regular supervision of him. They told the Panel that this was done by writing their observations (both positive and negative) in a notebook (supervision diary), including observations from other colleagues. The entries were contemporaneous and reflected what happened during treatment, planning, assessments and handovers. Where issues were raised during treatment or assessment, they were usually addressed at that point which meant that the concerns would not impact patient care or be reflected in the clinical notes. Where they were picked up retrospectively (e.g. when clinical notes were presented for sign off) the Registrant was able to ensure that the issue was dealt with appropriately, and reflected in the notes as necessary (e.g. documenting consent that had been obtained). The Panel was satisfied that the supervision notes therefore performed a different function to the clinical notes for the patient. The majority of the supervision notes were written by HI. Some notes were written by other witnesses who also gave evidence, and some notes were taken in the presence of a witness giving evidence, but the note taker did not either provide a statement or give evidence to the Panel. The Panel therefore determined that the weight to be attached to the supervision notes would vary depending on these factors, but that the supervision notes should generally be accepted as the most contemporaneous record of events in the absence of a direct recollection or clinical record.

106. The Registrant also supplied undated hand written reflections, some of which he said were written during his time with the Trust, in response to issues raised with him. These documents did not contain sufficient detail for the Panel to align them to any of the patients within the particulars of the allegation, but appeared to confirm some of the issues set out within the supervision notes.

107. The Panel also gave consideration to terms which frequently appeared in the stems of the particulars. The submissions of the advocates did not address the interpretation of these phrases outright, and the Panel therefore determined that it should apply the normal meaning of the words to these phrases within the particulars:

a.Clinical theoretical knowledge – the academic knowledge obtained through education, which may or may not evolve with practical experience and subsequent training;

b.Develop exercise progression – a plan for exercises to evolve with the progress made by the individual patient to achieve the desired outcome;

c.Clinically justify – the ability to explain why a particular course of clinical action is appropriate in the circumstances of the individual patient;

d.Clinical understanding – the confluence of theoretical knowledge, practical experience and situational awareness;

e.Clinical reasoning – the ability to apply theoretical knowledge and practical experience appropriately to the individual circumstances of the patient being treated;

f.Discharge planning – the steps to be completed in advance of a patient being discharged from the care of the ward, which can include how needs will be met once the patient leaves the hospital;

g.Discharged – the patient has been discharged from the clinical care of the ward;

h.Clinical intervention – an action carried out to improve, maintain or assess the health of a patient in a clinical situation.

Witnesses

108. The Panel had the benefit of live evidence of six witnesses on behalf of the HCPC, as well as hearing from the Registrant. All of the witnesses affirmed and answered questions to the best of their ability in examination in chief, and or cross-examination, or in response to questions from the Panel.

109. The recollections of the HCPC witnesses appeared to have deteriorated since their statements were made between July 2020 and September 2020 and the conclusion of their oral testimony.

110. The Registrant’s recollection of patients and events had improved in some respects and deteriorated in others since his undated statement was prepared once he received the HCPC’s bundle for the hearing listed for August 2021.

111. KG is a qualified Occupational Therapist who was at the material time an Occupational Therapist and Team Leader for the Acute Stroke Unit. She managed both Occupational Therapists and Physiotherapists in this role, including the Registrant. She attended a “Performance Stage 1” meeting with the Registrant and his representative, along with AR and a representative from Human Resources. As a result of this meeting, a Stage 1 Action plan was implemented for a period of 3 months, providing the Registrant with objectives to meet to demonstrate improved performance. KG provided supervision of the Registrant while he was with the Acute Stroke Unit alongside Colleague 1. She undertook a review of the Stage 1 Action Plan.

112. AR is a qualified Occupational Therapist who was at the material time employed by the Trust as a Team Lead for Orthopaedics, managing the Orthopaedic Therapy Team, including Physiotherapists. She managed the Registrant with HI and relied on HI’s clinical observations of his physiotherapy work. She worked with the Registrant on a frequent basis often daily from Monday to Friday, as part of the multidisciplinary team. She implemented the informal performance management process in respect of the Registrant by mid-October. She conducted a review of his performance once he was in post for 5 weeks (27 October 2016) which concluded that the formal performance management process would need to commence. To support the Registrant, she referred him to Occupational Health on 17 November 2016, recognising how stressful the process can be for employees. She reviewed the Registrant’s progress on 24 November 2016 and confirmed that as concerns continued to exist, the performance management process would continue with a meeting, which took place on 6 December 2016 and was attended by AR and KG in addition to the Registrant and his representative, and Human Resources. The outcome of the meeting was a formal action plan for the Registrant as he moved to the Acute Stroke Unit in accordance with his rotation program.

113. HI was, at the material time, a Band 6 Physiotherapist and a Clinical Specialist Orthopaedic Physiotherapist, employed as part of the Frail and Elderly Assessment Support Team. She reported to AR initially, but achieved Band 7 grade and was redesignated as Clinical Lead for Physiotherapy. She was responsible for the clinical supervision of the Registrant and worked with him on a daily basis while he was on the Orthopaedic rotation. She became concerned about his capability almost immediately and provided him with informal support initially, before instigating the performance management policy with AR. She recorded her concerns (along with those reported to her) in supervision notes. She told the Panel that “I always made sure when Mr Rahman was seeing a patient I was extremely close by, either that be in the same (inaudible) or stood outside writing notes on another patient”.

114. She also said she would prompt the Registrant verbally and non-verbally and try and develop his skills, knowledge and practice, recording what she had observed and discussed with him in the supervision notes. She confirmed that she used ‘+’ for emphasis in those supervision notes, with ‘+++’ demonstrating greater emphasis. HI said throughout her evidence that if she had written something down at the time, it would have been an accurate representation.

Colleague 1

115. Colleague 1 was employed as a static Band 6 Neuro Physiotherapist in the Acute Stroke Unit at the material time and supervised the Registrant during his rotation to the Acute Stroke Unit from 2 December 2016. She worked with him most days, but he would sometimes work with another Band 6 Physiotherapist, LC, whose post was rotational. She recognised the particular difficulties for this Registrant working with those who had neurological problems in this medical speciality.

116. SW was employed as a Band 4 Physiotherapy Technical Instructor by the Trust at the material time and worked with the Registrant in the Orthopaedics ward. She was responsible for helping patients progress their ability and exercise as well as discharge planning. Her work with the Registrant depended on the caseload. She told the Panel that she recorded supervision notes from working with in a diary kept on the Orthopaedics ward but most of the entries were written by HI. She had a good working relationship with the Registrant and wanted him to succeed in his role.

117. AW was a Band 4 Physiotherapy Assistant who worked on the Orthopaedic Ward on different days to SW during the week but with her at the weekend. She worked with the Registrant on Monday and Tuesday while he was on the Orthopaedic rotation, frequently taking the lead with patients due to her greater experience, teaching him where required. She believed that the Registrant struggled to treat each patient individually and did not see the entire situation.

Particular 1(a)(i) - PROVED

118. Patient 78 was an individual who had undergone a tibial osteotomy, as a result of which they were required to wear a hinged knee brace locked at 30 degrees of knee flexion according to clinical notes dated 22 November 2016. The treatment took place towards the end of the Registrant’s placement in the Orthopaedic rotation while he was subject to formal performance management. The Panel was not provided with all the clinical notes for patient 78 but was provided HI’s supervision notes. The Panel heard from both HI and the Registrant in relation to this particular.

119. Mr Olphert submitted that the supervision notes demonstrated that the Registrant didn’t fully know how a hinge knee brace worked and the Registrant could not account for HI’s supervision notes recording issues with his practice. He reminded the Panel that, in oral evidence, the Registrant told it that he remembered reading patient notes. Mr Olphert recognised that HI did not recall the specifics of Patient 78 but stood by her supervision notes and statement, which documented that the Registrant confirmed to her that active range of movement exercises of the knee were suitable for this patient in a locked knee brace when asked.

120. Ms Price reminded the Panel that no patient notes were available for Patient 78 and that HI had no independent memory of the incident. HI did however confirm that the Registrant’s recollection in his statement would be appropriate. Ms Price submitted that the Registrant understood the role of a locked knee brace (to block movement), had worked with patients with knee braces previously in identical scenarios and it would therefore be “very probably that he still was aware of this on 22 November 2016”. The Registrant was, in her submission, entirely credible and honest and did his best to remember events from seven years ago. There was no reason not to accept his evidence. She told the Panel that the evidence did not support the allegation, which should be found not proven.

121. The Panel carefully considered the transcript of HI’s evidence from August 2021, her statement, the supervision notes, the Registrant’s statement and his undated hand written reflections. It also carefully analysed the normal meaning of the entirety of the particular, which it considered required the Registrant to display to HI (his clinical supervisor), that, when he assessed Patient 78 on or around 22 November 2016, he had an adequate level of clinical theoretical knowledge and understanding of a locked knee brace.

122. HI’s statement said that the Registrant had been told to read operation notes before attending a patient as they would “provide clear instructions with regards to treating the patient”. In respect of Patient 78, HI did not believe the Registrant had read the operation notes and he therefore “did not know what to do with the brace” for Patient 78 (i.e. that it should be locked at 30 degrees). This caused HI to ask further questions on the role of the hinged knee brace, and she was not satisfied with his answers in that regard. She recorded her lack of satisfaction in her supervision notes the same day, 22 November 2016, in detail. She told the Panel she could not recall fully whether she was with the Registrant when he saw Patient 78 and that she was reliant upon her supervision notes and she accepted that she may have confused this occasion with another. In cross-examination however she confirmed that she had to check and alter the knee brace. The Panel also noted that, within the performance management paperwork, it was documented in respect of objective two, that “tibial osteotomy required intervention by Hollie” though there was no patient identifier to confirm which patient this comment related to.

123. The Panel noted that the reflection provided by the Registrant was entitled “ACL Reconstruction Rehab”. It did indeed reflect the use of a knee brace and the care required, but this was not the same as a tibial osteotomy – the only commonality was that the joint involved was the knee. Similarly, the Panel noted that Ms Price referred it to the clinical notes for Patient 64 which she said proved the Registrant knew about knee braces. The Panel noted that Patient 64 had an anterior cruciate ligament (ACL) reconstruction, with an open not locked knee brace thus different to the role a knee brace played in the treatment of a patient undergoing a tibial osteotomy. In the Registrant’s statement he referenced that he did demonstrate “the role of a locked knee brace to Patient 78 properly” but that “perhaps I did not explain this as well as I could have done to [HI].”

124. The Panel accepted that the Registrant was aware of hinged knee braces but was persuaded that it was more likely than not that he did not display to HI an adequate level of clinical theoretical knowledge when treating Patient 78 on 22 November 2016 (the date not being in dispute between the parties) of the role of a hinged knee brace in that treatment. Accordingly, this particular was proved on the balance of probability.

Particular 1(a)(ii) - PROVED

125. This particular arises from the same circumstances set out at particular 1(a)(i) therefore the context is adopted and not repeated. Mr Olphert submitted that it was not denied that the Registrant asked HI whether range of movement exercises were appropriate.

126. Ms Price reiterated her submissions that there were no patient notes for Patient 78 and HI had no independent memory of the incident. She added that there is no reference in the supervision notes to developing exercise progression and reminded the Panel that HI accepted that the exercise progression described by the Registrant in his witness statement as being given to the patient was adequate and appropriate. Ms Price submitted that there was no evidence to prove that the Registrant failed to “do this” and the supervision notes and HI’s evidence do not support this. She again stated that the patient notes were not before the Panel and the allegation should not be found proven.

127. The Panel was conscious that, as with particular 1(a)(i), neither advocate addressed it specifically in relation to the stem – that is, the display of adequate clinical theoretical knowledge when treating patient 78 on 22 November 2016. In his statement, the Registrant said “I clearly explained my exercise progression to Patient 78 i.e. static quadriceps strengthening, passive knee extension, co-contraction, hamstring curl, knee and ankle active range of motion exercises” and “I knew Patient 78’s knee brace was locked and that this meant Patient 78 could not do range of movement exercises but perhaps I did not explain this as well as I could have done to [HI]”. The Registrant also responded to questions from the Panel about the difference between a knee brace in recovery from an ACL reconstruction or a tibial osteotomy. He was unable to identify exercises contraindicated for one but acceptable for the other and appeared to suggest the two recovery processes would be similar. When pushed, he said that some treatment would need to be done differently but this would be dependent upon the instructions of the surgeon.

128. The Panel observed that the detail in the Registrant’s statement, while accepted by HI as potentially appropriate when read out to her by Ms Price, was merely a list of exercises, without specific range of motion angles or timeframes when these exercises might be safe to introduce. Furthermore, reasoning of these exercises was not reflected in the supervision notes. Given the extent of the concerns of HI in her supervision notes, the Panel considered it of note that no reference was made to any of these exercises other than the Registrant asking her “if AROM/AAROM suitable exercise after establishing brace is to be locked” and when asked to consider that question, answering it himself “It is not a suitable exercise due to NWB status”. It was unfortunate that the clinical patient notes had not been provided as they could have confirmed what Patient 78 was told.

129. The information provided by the Registrant in his statement did not in any event reflect the impact that a brace locked at 30 degrees would have on certain exercises (i.e. not able to do hamstring curls) or that knee active range of motion exercises would be risky for this recovery initially after tibial osteotomy surgery. The statement does not identify indicative timings for the introduction of the exercises, which would be required to demonstrate progression. When questioned by the Panel the Registrant indicated that hamstring curls could be introduced some 4 to 6 weeks post operation but that this would depend on the surgeon.

130. The Panel was conscious that it was not for the Registrant to prove he did provide exercise progression to Patient 78. However, having found at particular 1(a)(i) that the Registrant was unlikely to have displayed clinical theoretical knowledge in respect of a hinged knee brace to HI in relation to Patient 78, the Panel considered it more likely than not that while the Registrant may have provided a list of exercises to Patient 78, he did not display his clinical theoretical knowledge of exercise progression for Patient 78 to her either. Accordingly, this particular was proved on the balance of probability.

Particular 1(b)(iii) – NOT PROVED

131. Patient 80 was a patient in the Acute Stroke Unit. It was not disputed between the parties that Patient 80 was treated by the Registrant, with other colleagues present, on 26 January 2017. It also was not disputed that Patient 80 had “quite a significant long-standing chronic back pain” or that during the treatment session, a suggestion was made that bridging exercises could be appropriate. The Panel had determined that the HCPC had made out a prima facie case at the half time submission determination but this did not mean the case was proved on the balance of probability – the test is different.

132. Mr Olphert reminded the Panel that it received evidence from Colleague 1 in relation to this incident which, although impacted by the passage of time during the August 2021 hearing, was supported by her earlier witness statement and the contemporaneous supervision notes. He drew the Panel’s attention to the “real concerns about the Registrant’s capacity to practise on his own”. In respect of the Registrant’s evidence, Mr Olphert said that he gave a brief description of what the exercise was.

133. Ms Price submitted that Colleague 1 could not recall the details of this patient, accepted that bridging exercises are appropriate for lower back pain, and could not recall if the Registrant recommended the bridging exercise. Colleague 1 did not write the supervision notes she relied upon to make her statement, it is not clear who did write them and the writer did not give evidence to the Panel. Ms Price told the Panel the supervision notes were hearsay and little or no weight could be attributed to them as they are untested and therefore unreliable. She submitted that there was insufficient evidence to prove this allegation and the allegation should be found not proven.

134. The Panel noted that the Registrant’s evidence to it was consistent with the information in his statement – that he was part of a group treating Patient 80 and did not suggest bridging or fail to justify it, it not being his suggestion.

135. Colleagues 1’s evidence was that she thought she could recall discussing bridging exercises with the Registrant adding “I am quite confident in that if I have highlighted this in my statement, that I would have discussed it with him”. The statement confirmed Colleague 1 could not recall the patient or whether bridging would have been appropriate, or what their back pain was. The statement also said that Colleague 1 “cannot recall any further detail regarding” the Registrant being unable to clinically justify his reasoning for recommending the bridging exercise. Neither the statement nor the supervision notes referenced the patient having constipation, and Colleague 1 could not recall that when asked by Ms Price.

136. The evidence before the Panel, that it was the Registrant who suggested that the patient complete bridging exercises, is limited and appears to flow solely from the supervision notes. The Panel did not accept Ms Price’s submission that the author of the supervision notes was unknown, as Colleague 1 identified the author as her colleague LC, and this is the name signed at the bottom of the supervision notes. However, there was no explanation as to why LC had not been called to give evidence to the Panel to speak to her supervision notes. The supervision notes in respect of this incident were narrative in nature. The supervision notes say that the Registrant “was not able to clinical [sic] justify his reasoning and showed poor clinical knowledge” however no further detail was provided as to the extent and scope of that discussion. It was also unclear from the supervision notes whether the discussion took place while the patient was being treated or in supervision later.

137. While the Panel recognised the concerns that Colleague 1 had about the Registrant’s practice generally, it could only focus on the wording of this particular. It was not satisfied that the HCPC had made its case in respect of this allegation on the balance of probability for the reasons set out above. This particular was therefore not proved.

Particular 1(b)(iv) – NOT PROVED

138. This particular also arose from the Registrant’s attendance upon Patient 80 and the detail set out above in respect of particular 1(b)(iv) is therefore adopted and not repeated.

139. Mr Olphert told the Panel that “the Registrant’s continued intervention caused further pain” to patient 80 and that he could not account for the reference to pain caused to the patient in the supervision notes. Mr Olphert submitted that the Registrant’s account of giving an explanation of bridging because it was a learning point was “inconsistent with the clear evidence”.

140. Ms Price submitted that Colleague 1’s evidence was contradictory. In her statement Colleague 1 said that bridging may have caused more pain, but also said that it may not have caused other pain. In oral evidence, Colleague 1 could not remember the patient or say if the exercise caused unnecessary pain to patient 80. Ms Price submitted therefore that there was insufficient evidence to prove the allegation.

141. The Panel carefully considered the particular in its entirety, noting that the stem required it to find that the Registrant did not display an adequate level of clinical theoretical knowledge when treating Patient 80 on 26 January 2017, causing unnecessary pain and discomfort to the patient. It noted that neither advocate made submissions as to what an adequate level of clinical theoretical knowledge was. They did not take the Panel to the evidence as to how the Registrant was expected to display this knowledge when assessing Patient 80, or connect the clinical theoretical knowledge with causing pain to this patient. For these reasons, the HCPC failed to discharge the burden of proof in relation to this particular and the Panel found it not proven.

Particular 2(a) – PROVED

142. Patient 21 had a surgical repair of the right ACL and was treated by the Registrant in the Orthopaedic ward on or around 27 October 2016 midway through his rotation.

143. Mr Olphert submitted that HI gave evidence to confirm that she observed the Registrant’s treatment of Patient 21. She did not recall the patient communicating to the Registrant that he felt more comfortable downstairs but said that patients would be encouraged to be as functional as possible. The Registrant stated in evidence that he had had conversations with the patient and discussions with his colleagues about bringing the bed downstairs. Mr Olphert submitted that the Registrant was unclear on what was said to the patient at the time, but accepted that it would on balance have been better for the patient’s bed to remain upstairs. He could not clearly account for why the supervision notes recorded that he had advised for the bed to be taken downstairs.

144. Further, Mr Olphert said that there was “clear evidence that this course of action was advised by the Registrant, and that it was not required”. In his submission, this particular was made out.

145. Ms Price reminded the Panel that HI could not recall this patient when she gave evidence but conceded that the proposal could be appropriate if the patient was at risk of falling and worried about this. She submitted that there is insufficient evidence to show that moving the bed downstairs was not required or that the Registrant advised that this should happen. Ms Price also said it was clear from the Registrant’s evidence that “he plainly did have a good understanding of why this would be required. He raised this because of the history of falls, which would be appropriate clinical justification for the suggestion. As such, the HCPC has not proven this allegation”.

146. The Panel noted that HI made the supervision notes in respect of this incident, and started the same with two positive observations about the Registrant’s practice. Thereafter, she noted the Registrant “wanting patient to bring bed downstairs despite been [sic] independent & safe on the stairs”. She expanded upon the supervision notes in her witness statement, making it clear that she observed the Registrant’s interaction with Patient 21, completing the stair assessment, but that the interaction “finished with [the Registrant] giving inappropriate advice” which was not needed. Both HI’s statement and her supervision notes reflected she thought that the Registrant may have been applying recommendations he had seen with a previous patient and did not reference a history of falls.

147. The Registrant acknowledged in his statement that he discussed the option of the patient bringing the bed downstairs with colleagues but denied advising the patient to do this. In cross-examination the Registrant told the Panel that he discussed the option with the patient first and then with colleagues as they had more experience. He did not accept that in discussing it with the patient he gave any advice. He then said that he didn’t discuss it with the patient but suggested that the patient was more comfortable downstairs. The Registrant accepted that Physiotherapists wanted to keep people mobile and that if a patient could navigate stairs, the bed should stay upstairs. However, the Registrant then said this patient had had a fall so he was discussing whether this was appropriate as it can vary from patient to patient.

148. The Panel was satisfied that there had been a discussion between the Registrant and the Patient in relation to a bed being taken downstairs. It considered it more likely than not that the Registrant then spoke with colleagues about this due to their greater experience as he thought this could “potentially be more safe for him”. The Registrant also accepted that the patient was “independent on stairs”, which was consistent with HI’s contemporaneous note that the patient had successfully completed a stair assessment. HI’s statement told the Panel that she would not expect an ACL reconstruction patient to move their bed, and that the Registrant could not justify this on a clinical basis. She suggested the Registrant mentioned this course of action as he witnessed this advice being given to a patient who was unable to walk. She said that the Registrant incorrectly applied this to the patient. She concluded that the Registrant was unable to clinically reason between individual patients and identified the adverse consequences for the patient and his family in bringing the bed downstairs and the patient being debilitated by not being encouraged to use the stairs. The Panel considered it worthy of note that HI did not reference in either the supervision notes or her statement any suggestion that this patient had either had a fall (as suggested by the Registrant) or a history of falls (as put to her by Ms Price in cross-examination).

149. The Panel was persuaded it was more likely than not that the Registrant did not display adequate clinical understanding in advising a patient to move their bed downstairs. It was also satisfied that this was not required for Patient 21 given that they had successfully completed a stair assessment. As a result, the Panel found this particular proved on the balance of probability.

Particular 2(b) – NOT PROVED

150. This allegation arose during supervision when the Registrant had been on the Acute Stroke Unit for almost a month. The Registrant admitted this Allegation in his written submission stating “I knew this in December 2016 but it is possible that I did not set it out to Colleague 1 in these terms”.

151. Mr Olphert submitted that Colleague 1 dealt with the issue of gait in their oral evidence as well as the evidence from their witness statement in addition to their hand written supervision notes. He told the Panel that the evidence raises a clear case to answer in respect of this allegation despite Colleague 1 being unable to recall the specific patient being discussed. Mr Olphert said that the [supervision] notes record clear concerns with the Registrant’s explanation regarding gait, and submitted that the knowledge is something that could properly be expected of him as a new Band 5.

152. Mr Olphert identified that the Registrant suggested he had given some explanation so the notes were incorrect, though he could not explain why the notes did not record his explanation or that he was unable to identify step-to or reciprocal step patterns. Mr Olphert submitted that this was “a clear occasion where the Registrant has – now after the fact – sought to demonstrate his knowledge of gait, but at the time clearly was not aware of the position.”

153. Ms Price repeated her assertion that there were no supervision notes for 29 December 2016 and said the only witness to this allegation was Colleague 1, who accepted in her evidence that she could not recall the patient that prompted the discussion or the extent of the discussion. She submitted that the Registrant told the Panel that he did talk about gait, he understood it but he “may not have gone into as much detail as colleague 1 wanted”. Ms Price submitted that there is a total lack of evidence that the Registrant said ‘you were only ever able to identify gait by independent walking or walking stick’. Colleague 1’s evidence on this was uncertain – she could not recall the incident and made some assumptions about what had been said by the Registrant therefore his evidence should be preferred and the allegation found not proven.

154. The Panel noted the admission of the Registrant but paid careful regard to the wording of the particular. It noted that Colleague 1 told it “I am very particular how I ask people things and describe things and demonstrate things to people” and then proceeded concede that she may have asked the Registrant about mobility rather than gait, saying in response to questions from the Panel as to whether the Registrant had been asked about gait assessment or mobility assessment “it would be mobility assessment”.

155. If the question put to the Registrant by Colleague 1 in respect of this matter was accepted by Colleague 1 to have been in respect of mobility, rather than gait, the particular is not factually made out as the Registrant could not display clinical understanding of a question not put to him. Accordingly, notwithstanding the admission of this particular initially, the Panel found the particular not proved.

Particular 3(a) – PROVED

156. This particular relates to Patient 14, who had two procedures - a Long Head of Bicep repair and an arthroscopic subacromial decompression (ASAD) - while on the Orthopaedic ward, towards the start of the Registrant’s employment by the Trust.

157. Mr Olphert invited the Panel to find that this particular was proved on the balance of probability. He directed the Panel to the evidence of HI, who explained how she would expect the Registrant to clinically reason the exercises to utilise when there was no protocol to rehabilitate a long head of bicep repair.

158. HI referred to her handwritten contemporaneous supervision notes which stated the Registrant was “Unaware of term clinical reason, eg what exercises to avoid with Long Head of Biceps repair.”. She told the Panel “he was not able to tell me “We can’t overlift” or “We can’t lift with this operation, otherwise we will risk a re-tear.”. Mr Olphert also accepted that when a treatment plan for a patient in patient 14’s situation was put to HI, she accepted it would be appropriate. The HCPC accepted that her recollection of the specific incident had clearly diminished over time, but maintained it is sufficient to demonstrate a proper concern regarding the Registrant’s approach to this patient – that is that the Registrant “could not properly approach treatment for this programme because there was no set approach for him to follow and he could not reason the matter through independently”.

159. Mr Olphert submitted that it was clear from the evidence, and accepted by the Registrant, that HI was a very able educator, and witness AW stated that in effect, if anyone was unable to develop with HI’s teaching, that would be an issue. Despite this, the Registrant could not account for why HI had raised concerns about his approach in the [supervision] notes, stating that he had given a summary of the treatment program contained in his witness statement when asked in 2016. This, Mr Olphert submitted, simply does not bear scrutiny and the Panel was invited to find the allegation proved.

160. In reply. Ms Price submitted that the Registrant told it he did establish an action plan of treatment for Patient 14, which was accepted by HI as appropriate in the circumstances. She reminded the Panel that the full clinical notes have not been provided to the Registrant, and the supervision notes do not support the allegation given “It does not suggest that [the Registrant] could not develop an action plan for the patient.” She told the Panel that the supervision notes do not support the allegation, HI could not recall it and there is a complete paucity of evidence on the point and it could not be said that the allegation is more likely than not to have occurred, therefore the allegation should be found not proven.

161. The Panel carefully considered the wording of the allegation, which it considered turned on whether the Registrant demonstrated adequate clinical reasoning when establishing a treatment and or action plan for Patient 14. The Panel had not been addressed by the advocates in relation to the meaning of adequate clinical reasoning and again concluded that it related to whether the Registrant demonstrated he could establish a clinically justified treatment and or action plan. The Panel considered it irrelevant whether the Registrant had a plan he could clinically reason – he had to be able to demonstrate his clinical reasoning when asked.

162. The Panel was satisfied that the HCPC had discharged the burden of proof in relation to this particular – whilst the Registrant listed in his statement the steps he said he advised Patient 14 to take at the time, the allegation required him to demonstrate clinical reasoning for his action plan. The Panel could not identify that the Registrant demonstrated adequate clinical reasoning for a patient who had a Long Head of Bicep (LHB) repair. Accordingly, this particular is found proved.

Particular 3(b)(i) - PROVED

163. The Panel noted that the Registrant initially admitted this particular. Patient 31 had a dynamic hip screw (DHS) as well as a manipulation under anaesthetic of the radius.

164. Mr Olphert told the Panel that SW and HI gave evidence in respect of this patient, telling the Panel that it was part of a Physiotherapists role to help nursing staff understand how to safely mobilise patients and she tried to encourage the Registrant to engage with nursing staff. She said that the Registrant should have been able to update the nursing staff on transfers and mobilising having participated in such a session with her but did not do so. When put to him, the Registrant could not recall the incident any longer. Mr Olphert submitted that this particular was made out.

165. Ms Price told the Panel that the Registrant could not recall this patient and could therefore not admit or deny this allegation

166. The Panel was satisfied that these allegations were proved. HI was clear in her recollection of the events as set out in her statement, and this was supported by her contemporaneous supervision notes which reflected “on discussion with [the Registrant] : [unable] to summarise safe transfer technique for nursing staff to use”. SW also recalled this incident, stating that “the Registrant was unable to suggest a solution for the nursing staff despite our prompts”. The particular is found proved.

Particular 3(b)(ii) – PROVED

167. The circumstances of this allegation arise from the same facts as particular 3(b)(i) therefore the Panel adopts them as set out above and does not repeat them.

168. In respect of this particular, Mr Olphert invited HI to tell the Panel what she would expect from a Band 5 Physiotherapist in respect of future treatment plans, to which HI responded “What needed to be practiced on next and what goals we needed to be working towards. So, for example, sit to stand practice, mobilise to the end of a bed with assistance of two on the gutter frame, to complete a chair based exercise programme with minimal supervision, for example.” This was supported by the contemporaneous supervision notes taken by HI.

169. Ms Price reiterated that as the Registrant could not remember this patient, he could not either admit or deny the allegation.

170. The Panel was satisfied that this allegation was proved. HI was clear in her recollection of the events as set out in her statement, and this was supported by her contemporaneous supervision notes which reflected “unable to discuss action plan or future treatment sessions”. SW also recalled this incident, stating that “the Registrant was unable to suggest a solution for the nursing staff despite our prompts”. The particular is found proved on the balance of probability.

Particular 4(a)(i) – PROVED

171. Patient 67 had a DHS whilst in the Orthopaedic ward and was also engaged with social services, who needed to be made aware when the patient was fit to leave hospital and was therefore a priority patient. This patient was seen towards the end of the Registrant’s Orthopaedic rotation on or around 17 November 2016.

172. Mr Olphert submitted that the Panel had heard from HI that the Registrant was responsible for flagging the outstanding issues for the patient at handover and ensuring that they were completed as a priority, but he did neither. The Registrant’s evidence was that he had acted appropriately but acknowledged that he may have required some prompting to ensure that he acted properly. He denied that HI’s supervision note, which record ‘Prompts +++’ on four occasions, showed he required a significant amount of prompting. The Registrant’s witness statement identified that he had given a proper set of discharge goals and he denied they were raised retrospectively to validate his approach.

173. Ms Price pointed out that HI could not recall if she was present for this appointment and could not even recall if the Registrant was the lead clinician for this patient – her supervision notes must therefore be treated with great caution. It was not known if the supervision notes reflected HI’s opinion or that reported to her by someone else. She told the Panel the Registrant was candid that he could not recall this patient, and that this was unsurprising given the passage of time. He did however give evidence that demonstrates when and why a patient may be a priority for discharge, which evidences his wider understanding and makes it more likely than not that he was aware of the discharge plan and priority for this patient. She submitted that the allegation should be found not proven.

174. The Panel recalled that HI said “I believe this was a patient that [the Registrant] was taking a lead with, so therefore it would have been his responsibility to speak up in that handover and say “Okay, this is a priority patient that needs, for example, A, B, C completing in order to complete a safe discharge.” but he did not flag that the patient needed equipment and stick practice in the handover. Her supervision notes reflected the prompting required of the Registrant, which was elaborated upon in her statement and oral evidence. The Registrant could not recall this patient, but rather gave evidence of his current understanding of discharge planning, which did not assist the Panel in terms of determining the facts of this particular.

175. The Panel looked carefully at each part of the particular to determine whether the HCPC had proved on the balance of probability, that the Registrant was, on or around 17 November 2016 in relation to Patient 67, unaware of and unable to develop appropriate discharge goals or plans, and recognise that the service user was a priority. The Registrant could not recall the patient but HI elaborated in her statement on the information in her supervision notes, stating that social services had been notified that the patient was leaving hospital but was actually not ‘therapy fit’ because the Registrant had not completed treatment (stick practice) or arranged necessary equipment for the patient. She said “This was a basic, non-complex discharge and these were tasks which [the Registrant] should have been able to do as a Band 5 Physiotherapist.” She said that the Registrant required repeated prompting to issue equipment, discuss discharge with the patient and decide if a community physio referral was appropriate.

176. The Panel was satisfied that on 17 November 2016, in respect of Patient 67, the Registrant was unable to develop appropriate discharge plans for this priority patient. Accordingly, this particular was proved on the balance of probability.

Particular 4(b)(i) – PROVED

177. Patient 4 was treated by the Registrant a month into his Orthopaedic rotation when he was in informal performance management – the patient had undergone a cemented hemiarthroplasty. The treatment relevant to this particular was provided on or around 21 to 25 October 2016.

178. Mr Olphert reminded the Panel that the Registrant admitted this particular but then qualified the admission by saying the date of discharge changed, which explained “why he had not approached matters as he should have”. Mr Olphert said that SW told the Panel in cross-examination that the Registrant did not, at that point, understand the distinction between discharge planning and discharge. He submitted that “the reality was that the Registrant had misunderstood the recorded notes and information regarding discharge planning and concluded the patient was discharged”. He therefore invited the Panel to find the particular proved.

179. Ms Price reiterated the Registrants admission of the facts and made no other submission on this particular.

180. The Panel noted that although HI documented the concerns in relation to Patient 4 in her supervision notes, it was SW who engaged with the Registrant on this matter and told HI of the problems she perceived the Registrant was having with discharge planning for this patient. HI however stated in her statement that “…[the Registrant] had discharged [Patient 4] in advance of completing the intervention which he should not have done and had to be prompted to complete the standing exercises”.

181. The Panel did not identify any evidence which would undermine the Registrant’s admission of this particular, and was therefore satisfied this particular was proved on the balance of probability and as a result of the Registrant’s admission.

Particular 4(b)(ii) – PROVED

182. The context for this particular arises from the same circumstances as particular 4(b)(i) which are therefore adopted and not repeated. The advocates submissions similarly applied to both particulars and are therefore adopted and not repeated in respect of this particular.

183. The Panel recalled that SW told it that patients could deteriorate or progress on a daily basis which is why they should be seen even if they were to be discharged. The supervision notes reflected that the expected date of discharge of Patient 4 was 25 October 2016. The Registrant’s statement accepted that “I said that Patient 4 was independent and ready for discharge”.

184. The Panel was satisfied that this particular was made out on the balance of probability and by reason of the Registrant’s admission.

Particular 4(c) - PROVED

185. Patient 63 was seen by the Registrant towards the end of his Orthopaedic rotation having undergone a total hip replacement (THR).

186. Mr Olphert submitted that HI’s evidence on this allegation was clear in her statement and [supervision] notes, but that her oral evidence was “occluded by the passage of time”. He told the Panel the Registrant denied the allegation and was rather discussing discharge with HI, but could not account for this not being reflected in the [supervision] notes, other than due to a misunderstanding.

187. Ms Price reminded the Panel that HI could not recall the relevant handover meeting and pointed out that the supervision notes did not state that discharge was recommended by the Registrant when the patient was not ready. The Registrant had also told the Panel he did not mix up discharge planning and discharge. She concluded that the notes provided do not support the allegation and the evidence was insufficient to prove this allegation.

188. The Panel noted the Registrant’s statement said “It is possible that on this occasion I was discussing discharge / planning options with [HI] to gain from her experience, but she misunderstood that that [sic] I had assessed Patient 63 as ready for discharge. I did say to senior occupational therapist [AR] that our treatment was complete but not the management as we had yet to undertake a chair assessment”.

189. HI’s supervision notes reflected that the Registrant “stated in handover ready for d/c”. She conceded in her evidence that the Registrant could have been discussing discharge options with her but was confident she would have documented it if he had, saying “if I have documented that he stated this patient was ready for discharge I do not think I could have got that mixed up with a discussion regarding discharge.”

190. Given that the Registrant only suggested it was possible he was discussing discharge options with HI, but her contemporaneous supervision notes record he did state the patient was ready for discharge, the Panel is satisfied that it was more likely than not that the Registrant stated in handover on 17 November 2016 that the patient was ready for discharge when they were not, therefore not developing appropriate discharge plans. This particular is therefore proved on the balance of probability.

Particular 5(a)(i) and (ii) – PROVED

191. Patient 12 had a total hip replacement and was treated and or managed by the Registrant in the first few weeks of his Orthopaedic rotation, on or around 11 October 2016. By this point, concerns had been raised as to his competence which were over and above those expected of a new Band 5 physiotherapist.

192. Mr Olphert invited the Panel to find that the recorded notes in respect of this patient are very clear. The hand written supervision note set out that the Registrant had treated the patient as TKR [total knee replacement] not as a THR. This was confirmed by HI in her evidence. Mr Olphert reminded the Panel that the Registrant denied this allegation strenuously, stating that it would never happen. However, he could not give a clear explanation as to why the [supervision] notes so clearly recorded that he had not treated the patient properly. In his evidence, as in his statement, he provided the proper approach. Mr Olphert submitted that the Registrant’s explanation for this incident was “at odds with the clear evidence” and does not and cannot account for why HI, whose evidence both in the [supervision] notes and in her oral evidence was balanced and measured, would have stated this to be so. He reminded the Panel that, in response to broad panel questions, the Registrant suggested that those occasions where the [supervision] notes were inaccurate might accord with those times when SW had passed her observations to HI. Mr Olphert submitted that this was an attempt by the Registrant to retrospectively explain the concerns having moments earlier accepted that HI was a good teacher and that the positive [supervision] notes were accurate.

193. Ms Price said that in respect of (i), it is not clear what is meant in the supervision notes that the Registrant treated patient as a TKR not THR. She reminded the Panel there are no clinical notes for this patient and the allegation had not been corroborated by any other evidence – HI was unable to recall it. She submitted that the supervision notes are “entirely unexplained” and in the absence of any other evidence, the allegation had not been proved.

194. In respect of (ii), Ms Price submitted that the supervision notes provided by the Trust do not support the allegation and “There is simply a complete paucity of evidence on the point. The allegation should be found to be not proven”.

195. The Panel was conscious that, when new to a busy ward, it was possible to become confused as to which patient in each bed was receiving which treatment. It heard from HI how important it was to hear about the patient’s procedure at handover and then read the operation notes before seeing the patient. It did not doubt that the Registrant knew the difference between treatment for knee and hip replacement patients then or now, the issue to be determined was whether he treated this patient on this date for the wrong procedure for some reason and therefore did not also provide the relevant standing exercises. HI’s supervision notes did clearly record “Treated as TKR not THR” and “unaware of standing ex’s despite teaching & issuing to previous patient”. The supervision notes also reflected that the Registrant wanted the Patient to return to his seat before commencing exercises. HI was however unable to recall in her evidence why she thought that the Registrant had done this and was reliant on her supervision notes, which did not mention any other therapist. In cross examination HI told Ms Price that “there would be no reason why I would lie in these notes”.

196. The Registrant’s statement confirmed he “clearly explained the standing exercise i.e. hip flexion, extension, marching and heel raise to Patient 12” and that SW “incorrectly told [HI] that I had not given extension and heel raises to Patient 12” and explained the patient sat as he was tired but performed the standing exercises “after some time.” The Panel was conscious that the Registrant said he prepared his statement once he received the HCPC bundle of documents but did not give a timeframe for this. It could therefore have been some four to five years after the events took place. The Registrant’s statement referred to SW’s involvement and additional detail in respect of which exercises are done, but this did not exclude the possibility that prior to this, there had been confusion with this patient. The supervision notes made by HI were written on the day, detailed and contained not only the issues HI identified but also what she taught him (i.e. the S.O.A.P. (understood by the Panel as Subjective, Objective, Assessment, Plan) note format). The Panel also observed that the supervision notes did not reflect any involvement from SW with this patient, nor did the statement of HI or SW.

197. Assessing the evidence before it in its entirety, the Panel found that it was more likely than not that, even if the Registrant ultimately did provide the correct exercises for patient 12, he initially treated them for a knee replacement rather than a hip replacement and at that point did not provide the correct standing exercises. Accordingly, the Panel found 5(a)(i) and 5(a)(ii) proved.

Particular 5(b)(i) – NOT PROVED

198. Patient 1 had a cemented hemiarthroplasty (HEMI) and was seen by the Registrant on a number of occasions towards the end of his Orthopaedic rotation. The incident which is the subject of this particular took place on or around 16 November 2016.

199. Mr Olphert reminded the Panel that this allegation was the subject of significant oral evidence both during the HCPC and Registrant’s case. HI told the Panel that she witnessed about 70% of the incident from the top of the corridor. Mr Olphert said the Registrant’s case is that events did not unfold as suggested, though under panel questions he accepted that he could not recall specifics of what had happened. He was adamant in cross-examination that he had not been shouted to and had left the patient safely and that domestic staff had not been required to intervene.

200. Ms Price accepted that Patient 1’s back became uncovered but submitted this “is not entirely unusual due to the nature of hospital gowns.” The Registrant did not admit that the patient’s back was left uncovered. Ms Price reminded the Panel that HI said that she did not know how long it was uncovered, and could not say for definite that the Registrant had noticed this and left it that way. There was, in her submission, no evidence that the patient’s back was left uncovered, which would clearly suggest it was something the Registrant failed to do – he had given clear evidence that this is not the case. HI’s recollection of events was poor, which was understandable given the time elapsed, therefore her evidence must be approached with caution. In contrast, the Registrant was clear and certain on the point therefore his evidence should be preferred.

201. The Panel agreed with Ms Price that the particular, as drafted, required the Registrant to have noticed the gown was unfastened and, having done so, not acted appropriately. There was no evidence before the Panel that the Registrant was unable to apply appropriate or safe treatment or management, although the supervision notes of 16 November 2016 noted that the Registrant “lacked awareness of privacy & dignity”. The Panel did not find that the HCPC had made its case on this particular to the required standard, and the particular was therefore not proved.

Particular 5(b)(ii) – PROVED

202. This particular again concerned Patient 1 and the submissions as to the events as set out at particular 5(b)(ii) are therefore relevant and not repeated. Mr Olphert made no additional comment specific to particular 5(b)(ii) but Ms Price told the Panel that it was accepted that patient 1 was asked to wait whilst the Registrant got a wheelchair. The Registrant also said however that the patient was with an HCA and was sitting down. Ms Price repeated her submission that the Registrant was an entirely credible witness and there was no reason not to accept his evidence. HI confirmed that if the patient was sitting down, this was not something she would consider a problem.

203. The Panel was confused by the evidence of the Registrant in respect of this particular. His statement said that before mobilising Patient 1 “I clearly informed him that I was getting the wheelchair which was very close to us, but when Patient 1 saw me coming with the wheelchair he stood up “. The statement said Patient 1 was not left to stand on his own when the Registrant went for the wheelchair as there was “an OT assistant present.” When questioned by the Panel however, the Registrant remembered looking for a wheelchair and thought he was possibly mobilising from the washing area. He could not recall if there were any chairs there, or how far he got with the mobilising before needing the wheelchair. There was no reference to HI having to assist the patient back to bed or the use of a commode.

204. In contrast, HI’s statement provided a substantial amount of detail as to the chronology of events in relation to this particular, reflecting that she escorted the patient back to bed to use a commode. In her evidence in chief, HI could not recall the incident but was able to provide insight as to expectations of physiotherapists in such circumstances. In cross-examination however HI stated “From what I recall he [the Registrant] was completing walking practice and the patient requested the toilet during walking practice.” but she could not recall if the Registrant left the patient alone.

205. The Panel was conscious this particular required it to find that the Registrant was unable to apply appropriate and or safe treatment and or management of Patient 1 on 16 November 2016 when assisting the patient to the toilet as he left Patient 1 to stand on his own while he retrieved a wheelchair. The Panel preferred the account provided by HI. Her evidence that she collected the patient, took him back to his bed and got a commode was not challenged. She then documented the situation in her supervision notes, including that the Registrant “went to retrieve a WC [wheelchair] for patient to sit and wait for the toilet”. The Panel concluded that the supervision notes were likely to have been made when HI discussed the incident with the Registrant as she records discussing privacy and dignity with him as well as the risks of leaving a patient unattended. She records that the Registrant “did not see any potential problems with sitting a patient and waiting for the toilet”.

206. The Panel therefore found this particular proved on the balance of probability.

Particular 5(c) – NOT PROVED

207. Patient 25 underwent a total hip replacement and was treated by the Registrant after he had been on the Orthopaedic rotation for a month.

208. Mr Olphert told the Panel that this allegation is denied by the Registrant who asserts that there was no sign of pain and he treated the patient appropriately. He conceded however that HI could have seen signs of pain and could not account for the supervision notes stating that he continued the treatment. Mr Olphert reminded the Panel that HI could not recall Patient 25 when giving evidence, but noted in her supervision notes that the Registrant was prompted to acknowledge the patient’s concerns with regard to pain. She told the Panel she would not have intervened if it was appropriate for the treatment to be continued.

209. Mr Olphert submitted that the decision to intervene supports clearly that the patient was in pain, and that the Registrant did not give proper regard to this, instead continuing with treatment. It was put to him that this was another occasion where he had been too focussed on following the script and not caring for the patient. This was denied.

210. Ms Price told the Panel that HI had no recollection of this appointment and that to find this allegation proven, the Panel must be satisfied that the Registrant should have stopped the treatment. She reminded the Panel the only evidence to rely on was in the supervision notes, but they do not say that HI stopped the treatment – rather, they record that she prompted the Registrant to acknowledge the pain. In Ms Price’s submission “This strongly indicates that stopping the treatment was not required. If it had been, it is highly likely this would have been recorded.” She also reminded the Panel that HI confirmed the decision whether to stop treating a patient who complains of pain is about degree and is fact dependant.

211. The Panel noted that the Registrant’s statement reflected that Patient 25 did not present with pain and did not ask to stop treatment or he would have stopped treatment. The supervision notes completed by HI recorded “patient wanting to stop treatment due to pain” and that HI “intervened and prompted [the Registrant] to acknowledge patients feeling and concerns of pain”. The note goes on to record that “afternoon session with same patient much better communication with patient. Progressed patient’s distance. Less prompts required”.

212. The Panel was conscious that physiotherapy routinely requires therapists to push patients into discomfort where necessary to achieve rehabilitation goals. The Panel considered that the “wanting” to stop treatment is not the same as asking for treatment to stop. Further, the existence of pain did not automatically mean that the Registrant was unable to apply appropriate and or safe treatment and or management to the patient. The Panel also considered it noteworthy that HI did not record any ‘+’ in relation not this entry, suggesting she did not have a substantial degree of concern as to the Registrant’s treatment.

213. Accordingly, the Panel found that the HCPC had not discharged its burden to prove, on the balance of probability, that the Registrant was unable to apply appropriate and or safe treatment and or management when treating Patient 25 on 17 October 2016. The particular is not proved.

Particular 5(e)(i) and (ii) – PROVED

214. Patient 29 was assessed by the Registrant less than a month into his Orthopaedic rotation. The patient had undergone a ‘knee scope’.

215. Mr Olphert reminded the Panel that HI was asked a significant number of questions about Patient 29 and that it would recall her detailed evidence regarding non-verbal cues. During her evidence in chief, HI explained how and why a stair assessment would be carried out, confirming that the Registrant “would be the main communicator with the patient, informing the patient of instructions and how to carry out a stair assessment safely using whatever aid is needed”. She confirmed that the Registrant would take the lead in positioning so he would be close to the patient and she would be assisting, which would mean she would be behind on the way up the stairs, and possibly on the way down. Her recollection of this incident was clearer than with some others. When asked about the point at which she felt the need to intervene she stated: “I’m unable to recall specifically, but I do feel that I gave [the Registrant] enough time to problem solve independently, so maybe a minute or so before then him saying “Okay, we’re ready to go down the stairs” and I said “Oh, [to] [the Registrant], no, we’re not ready to go down the stairs.”

216. The Registrant’s evidence on this allegation in Mr Olphert’s submission was that HI had spoken to the patient, as had he. The Registrant could not account for why HI’s evidence did not note this. He suggested he could not intervene because he had been some distance away from the patient due to letting people pass on the stairwell. He acknowledged the risk to a patient in this circumstance. In answer to the panel’s questions the Registrant explained that he had thought HI was leading this assessment. Mr Olphert submitted this was inconsistent with the clear evidence of HI, and demonstrative of SW’s remarks in evidence about the Registrant being generally deferent even when he was agreed to be leading a session. Mr Olphert reminded the Panel that the Registrant’s own evidence bundle contains a reflective piece on an occasion where he was too far from a patient.

217. Ms Price told the Panel that the Registrant told it in evidence that he did notice that the crutch was the wrong way and that the arms had not been inserted through the cuff of the crutch. She submitted there was no evidence to contradict this and reminded the Panel that the Registrant was a credible and honest witness.

218. Ms Price suggested that the Registrant’s evidence was not in conflict with HI’s evidence that she used non-verbal prompts to remind him to change the crutch use. HI accepted in her evidence that the Registrant may have noticed as well as her and she got there first in terms of correcting the crutch. The Registrant accepted that he was not as close to the patient due to people walking past on the stairs, and that he had to move out of the way for them which is why he was not able to change the crutch before HI did it. Ms Price submitted that none of this evidences a failure to notice as alleged and that there was insufficient evidence that the Registrant failed to notice the crutch. She suggested that HI “may have assumed this was the case” as the Registrant was unable to respond to the prompts she gave immediately due to the passage of other people on the stairs. Ms Price said that assumption is the only evidence that the HCPC relies upon and is insufficient to discharge the burden of proof.

219. The Panel gave careful consideration to the evidence before it in relation to these allegations, which it considered were inextricably linked. The account of the incident provided by the Registrant in his statement was that while resting on the corner against the wall, Patient 29 was holding his crutches so they weren’t positioned properly. He admitted “I might not have noticed initially that one of Patient 29’s arms had not been inserted through the cuff of the crutch” but said that the crutches were facing the right way. He also said that he told the patient to correct the crutch even though he knew HI had already seen to this “so that it was clear to [HI] that I was aware of the need to correct the crutch”. The Registrant confirmed he had undertaken stair assessments with many different patients and this was the first time that a patient’s crutches were not positioned correctly. He did not reference HI asking him if there was anything to check before descending the stairs or her non-verbal cues. The Registrant provided the Panel with an undated reflective piece in relation to stair assessments, but this did not appear to reflect this incident. It did however identify that an issue of concern was the Registrant not standing close enough to the patient.

220. HI’s statement said that when she noticed the issue with the crutch, she asked the Registrant if there was anything to be checked, he looked in the direction of the crutch but did not correct it and she had to intervene before the stair descent started. In evidence, her recollection was more detailed, as set out above. The contemporaneous supervision notes written by HI in respect of this incident also recorded “On asking MR why he missed it, MR said that it was only the once and appeared to lack insight into how serious it could have been”.

221. The Panel noted that the Registrant’s statement encouraged it to look at occasions within the bundle demonstrating that the Registrant had successfully participated in stair assessments with Patient 27 and 29. These examples took place on 18 October 2016 (the same date as this particular), at 9:30am and 10:45am. However, the Panel also identified from the bundle that there were concerns about multiple stair assessments during the Registrant’s Orthopaedic rotation.

222. The Panel was conscious that working on stairs with patients was potentially dangerous and that those undertaking such exercises bore equal responsibility for the welfare of the patient and their colleague. The person leading the exercise would be expected to be the prime communicator with the patient, but this did not absolve the companion colleague of any responsibility – this was why two people should conduct stair assessments with patients.

223. Given all of the above, the Panel concluded that while the Registrant’s evidence may not be inconsistent with that of HI, her evidence was more persuasive, and it was more likely than not that the Registrant was unable to apply appropriate and or safe treatment and or management of Patient 29 on 18 October 2016 when undertaking stair exercises. Accordingly the Panel found both particular 5(e)(1) and 5(e)(ii) proved on the balance of probability.

Particular 6(a) – NOT PROVED

224. Mr Olphert reminded the Panel that SW’s oral evidence had the clear disadvantage of not being reached until this part-heard section of the hearing, and accepted it was clear that her recollection of events had declined. SW was able to assist the Panel in respect of this allegation, noting that as she recalled it, the Registrant failed to identify the distinction between independence with exercises and supervision being required to get to and from the location where the exercises took place, which were safe because of the staffing and equipment there. In cross-examination SW noted that it was significant when incorrect information was handed over because the nature of the MDT process meant that stock was put in what a physiotherapist had said, though she recognised that the nursing team would still have to judge for themselves if there was a change in patient condition. She confirmed that on the Orthopaedic ward at this stage there was nothing above a patient’s bed to demonstrate current mobility status. If it was handed over orally that they were independent, that would be treated as the mobility status.

225. Mr Olphert said that the Registrant’s account of this incident was that he had fed back appropriately. It was submitted that this incident is demonstrative of an occasion where again, the Registrant had taken a theme too broadly, assuming that as the patient was fit to exercise without support that they did not need supervision to walk.

226. Ms Price submitted that the statements of HI and SW did not deal with this allegation and that the clinical notes support the Registrant’s denial of this charge. The Registrant had clearly documented that the patient needed support for exercises. The subject of the allegation was not recorded in the supervision notes for this date.

227. The Panel noted that SW did address this allegation in her statement, but she could not recall to whom the Registrant said it. She thought it would have been either in handover or documented within the clinical notes. She then went on to explain that Patient 4 still needed supervision to walk and how not being clear with colleagues about the required level of assistance could increase risk to the patient. The Panel was mindful however that the allegation it had to consider was that the Registrant was unable to adequately evaluate clinical intervention in respect of the level of assistance required by Patient 4.

228. The Panel was not provided with any information from the HCPC as to the approach it should take to the interpretation of this stem and its relationship with sub-particular (a). Whilst the Panel could have found 6(a) proved without the stem, it did not consider that the HCPC had discharged its burden of proof in respect of this particular as drafted and put to the Registrant. The Panel therefore found this particular not proved on the balance of probability.

Particular 6(b) – PROVED

229. Patient 57 had undergone a THR while on the Orthopaedic ward. He was treated by the Registrant in the last two weeks of his rotation on or around 15 November 2016.

230. Mr Olphert accepted that the quality of HI’s oral evidence on this was unclear as a result of the passage time, the [supervision] notes were clear, and she was able to assist the panel in their questions to her about this incident. Further, the Registrant recognised in cross examination that there were plainly issues with attempting to progress to two sticks from a trolley, but could not recall this patient specifically.

231. Ms Price noted that Patient 57 is recorded has having progressed on to 2 walking sticks. HI accepted in her evidence that two walking sticks would be the aim if realistic as a mobility goal, which Ms Price submitted it was. HI agreed in cross-examination that this was an example where the Registrant ‘Was appropriately adapting treatment to account for previous mobility’ though she could not recall if he had taken into account the patient’s previous mobility. Ms Price invited the Panel to find that as the supervision notes record patient 57 progressing in his mobilisation using a technique that HI considered suitable and realistic in this case, this allegation had clearly not been proven by the HCPC.

232. Unlike the previous particular, the Panel could make the connection between the stem and the sub-particular. A careful examination of this particular confirmed however that it was not concerned whether the patient progressed to two walking sticks or not, it was concerned about the extent to which the Registrant was able to adapt clinical mobility goals or treatment to account for the previous mobility of the patient. In this instance, the patient mobilised at home with the assistance of a kitchen trolley. Attempting to rehabilitate this patient to two walking sticks instead of the trolley indicated pursuit of a higher degree of functionality than the patient had prior to admission.

233. HI’s supervision notes of 15 November 2016 record HI’s concerns that the Registrant was not looking at the patient’s previous mobility when determining the clinical intervention to apply. It was mindful that the Registrant did not recall this patient when making his statement, as a consequence of which he neither admits nor denies the allegation.

234. The Panel was satisfied that in this matter, the Registrant had not adequately evaluated the impact of the clinical intervention (i.e. walking with sticks instead of using a trolley) on the patient and adapted the mobility goals and treatment accordingly.

235. The Panel was therefore satisfied that this particular was proved on the balance of probability.

Particular 6(c) – PROVED

236. Patient 53 underwent a TKR and was attended to by the Registrant towards the end of his Orthopaedic rotation, on or around 11 November 2016.

237. Mr Olphert reminded the Panel that the Registrant admitted this particular, having accepted that he should have raised it with a consultant. He submitted there was sufficient to evidence to find the allegation proved.

238. Ms Price confirmed that the Registrant accepts discharging patients following knee surgery with a reduced range of motions and no consent from the relevant consultant. She noted that The Registrant told the Panel that he did discuss discharge with a band 5 and band 4 physiotherapist. He candidly accepted it would have been better had he discussed this with the surgeon. However, he said there was great pressure on the unit to discharge patients. He also told the Panel that sometimes patients were discharged with a lower than 90 degrees range of movement and that this was always dependant on the individual situation of the patient.

239. Ms Price noted that HI could not recall these patients and agreed that now patients reaching an 80-degree range of movement could be discharged. At the material time however, the surgeon would determine the desired range of motion and write it in the theatre notes. She submitted that there is no evidence that 80 degrees was not the range the surgeon had written that they expected in this case. Indeed, the patient notes that would verify this have not been provided which puts the Registrant at a disadvantage in this matter. There is no evidence that the range of movement (ROM) was inadequate. It was clear that it was for the surgeon, Mr Pacheco, to decide if this was the case. There was no evidence that the surgeon’s view was that the ROM was inadequate. She submitted that it follows from this that the HCPC has failed to prove the allegation.

240. The Panel was satisfied that the Registrant did not seek the approval of a senior colleague or consultant prior to discharging patient 53, contrary to the Trust policy explained to it by HI. The particular was therefore proved by the admission of the Registrant and on the balance of probability.

Particular 7(b) – NOT PROVED

241. Mr Olphert told the Panel that despite the absence of formal records in respect of this particular, the HCPC submit that there is sufficient evidence to find it proved.

242. Ms Price told the Panel that there are no patient notes for this patient. Therefore, the Panel cannot know what was or was not documented. The Registrant is severely prejudiced in respect of this allegation by the failure of the Trust to provide these notes as he cannot point to what was or was not written as evidence of his note keeping. It would be highly unusual, in her submission, for a panel to find a failure to accurately keep records, when the Trust has not provided the records in order to verify the allegation. This is not a case where the Trust is saying there are no notes. Given the lack of notes and the prejudice this has caused the Registrant, Ms Price urged the Panel to find this particular not proved.

243. Whilst the Panel did not consider the lack of formal notes to be automatically fatal in itself for a record keeping particular, it could not identify evidence that the Registrant failed to display adequate levels of written and or verbal communication. Accordingly, the Panel was satisfied that the HCPC has not discharged its burden of proof in respect of this particular, which is therefore not proved.

244. Having dismissed 7 particulars as a result of the half time submission, and found a further 7 not proved at the facts stage, the Panel proceeded to consider which, if any, of the remaining 17 particulars amounted to the alleged statutory ground of lack of competence.

Decision on Statutory Ground

245. The Panel listened carefully to the submissions made to it on behalf of the parties in respect of the statutory ground, that being lack of competence in this case. It was grateful to counsel for providing written submissions in advance of the hearing reconvening. The Panel received advice from the Legal Assessor, which it applied. It noted that no additional documents had been provided to it since the last hearing date. The Panel also had regard to the practice notes to which it had been referred, particularly that entitled ‘Fitness to Practise Impairment’.

246. The statutory grounds are contained within the Health Professions Order 2001 at article 22(1). The Panel was conscious that the establishment of a statutory ground was not something that the HCPC was required to prove, but rather a matter for its own judgement having heard all of the evidence. The Panel recognised that it was required to provide a decision in sufficient detail for readers to understand why the facts do or do not amount to the ground alleged.

247. Mr Olphert referred the Panel to the leading case of R (Calhaem) v GMC [2007] EWHC 2606 (Admin) in respect of the test to be applied to determine whether a registrant lacks competence, and that of Holton v GMC [2006] EWHC 2960 (Admin), which established that a registrant should be judged against the standard reasonably expected of any professional undertaking a role. He urged the Panel to conclude that the statutory ground of lack of competence had been made out in this matter given that the Panel had before it information on the Registrant‘s interaction with a number of patients over a period of months, and across two departments of the hospital. He submitted that this constituted a fair sample of the Registrant’s work. He referred the Panel to the HCPC Standards of Proficiency for Physiotherapists and invited it to particularly judge the Registrant’s work against standards 8 and 13 to 15.

248. Ms Price also cited the Calhaem case but told the Panel that the Registrant needing to improve in some areas of his practice was not the same as lack of competence. She reminded the Panel that any new Band 5 physiotherapist coming to work in a hospital setting for the first time would require improvement, and that the Registrant’s quality of work was not so far below that expected of an ordinarily competent practitioner at this level. Ms Price reminded the Panel that since the Registrant’s time at the Trust, it had changed its rotation arrangements to allow for longer periods within each department. She therefore invited the Panel to conclude that this effectively confirmed that the arrangements in place when the Registrant worked with the Trust were ’not ideal’. Ms Price also challenged the extent of the sample of work provided by the HCPC, stating this work was not a fair sample. She directed the Panel to instances she said demonstrated that the Registrant was able to treat patients adequately and independently, with no issues, and highlighted that HI agreed that the Registrant had been able to improve his practice quickly.

249. The Panel reviewed the facts found proved, noting that these spanned the entirety of the Registrant’s limited employment with the Trust, across two departments and multiple patients. Ms Price reminded the Panel that the Registrant had been responsible for a “mini case load” which she submitted demonstrated that he was progressing and achieving. The Panel did not accept this interpretation. Rather, it noted that the experienced practice educators and health care professionals on both wards where the Registrant worked explained to it very clearly that they were concerned at his standard of work. It appeared to the Panel that the Registrant’s colleagues liked him and provided him with a great deal of support to help him achieve the expected standard of practice, but he was unable to achieve and maintain this standard despite that support. The fact that his colleagues thought he could reach an acceptable standard if he was permitted to remain in his first rotation is unfortunately not relevant given that the test of competence is not whether an individual may reach a competent standard, but whether their standard of practice is acceptable when judged against the standards of the role they are fulfilling.

250. In this case, the Panel recognised that the Registrant could have been at a disadvantage when he applied for this post by not having trained in the UK or had practical experience in a clinical setting. However, his professional registration reflects that he should be able to practice competently in whichever role he was employed in. He was provided with intensive support from his colleagues and was not able to bring his practice up to the required standard of performance expected from a newly qualified Band 5 physiotherapist. The Registrant chose to apply for a rotational clinical role in a clinical setting and his competence and skill must therefore be judged against that standard. The Panel did not consider that a lesser standard of practice could be accepted to allow for alternative routes to registration – the fundamental standards are adopted to ensure that any registrant, no matter how or where they have qualified, is competent to practice to a safe standard. Similarly, the fact that the Trust have since adjusted the roles is also immaterial – the Registrant was afforded enhanced opportunities for support and learning compared to other Band 5 physiotherapists in the Trust at the time, and despite this was not able to maintain safe and effective practice in the opinion of his colleagues.

251. The Panel gave careful consideration to the Standards of Proficiency for Physiotherapists (2013) and concluded that the Registrant had not met the following:

1. Be able to practise safely and effectively within their scope of practice;

4. Be able to practices as an autonomous professional, exercising their own professional judgement;

8. Be able to communicate effectively;

12. Be able to assure the quality of their practice;

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;

15. Understand the need to establish and maintain a safe practice environment

252. The Panel was satisfied that the expectations of those working with the Registrant were not unreasonably high and that he had been offered the opportunity to develop over a fair period of time and a reasonable range of cases but had been unable to do so. It did not consider that the circumstances of his qualification could be taken into account at this stage of the regulatory proceedings.

Decision on Impairment

253. Mr Olphert invited the Panel to find that the Registrant is currently impaired on both the personal and public aspect of impairment. He told the Panel that the documentation supplied by the Registrant in relation to his continuing professional development and reflections were accepted by the HCPC, but the limited nature of them did not, in his submission, demonstrate sufficient action being taken by the Registrant to address the regulatory concerns identified by the Panel. Mr Olphert reminded the Panel that in considering the personal aspect of impairment, it should firstly determine whether the conduct is remediable, before moving on to consider whether it has been remediated.

254. In respect of the public component of impairment, Mr Olphert reminded the Panel of the provisions of the leading cases of CHRE v (1) NMC and (2) Grant [2011] EWHC 927 (Admin) and R (on the application of Cohen) v General Medical Council [2008[ EWHC 581 (Admin). He submitted that a finding of impairment on the public component was necessary to uphold proper professional standards, maintain confidence in the profession and protect the public, given the clear findings made by the Panel in relation to the facts and lack of competence. He also reminded the Panel of the potential for harm to service users if the Registrant’s practice was not found to be impaired.

255. Ms Price submitted that the Registrant had been unable to secure employment in his profession and that his continued efforts to do so demonstrated his commitment to the profession. She reminded the Panel that the Registrant had worked in a voluntary capacity and no further concerns had been expressed about him and submitted that “the limited level of any issues regarding his competency any concerns have now been rectified to the extent that it cannot be said that his current fitness to practise is impaired”. She also told the Panel that “he has done sufficient hours of clinical practice meaning that he has met the HCPC’s return to practice requirements”.

256. Ms Price referred the Panel to the courses undertaken by the Registrant and the reflections completed by him, saying that in his evidence he “showed a clear humility on his part that demonstrated a genuine reflection on his actions”. She submitted that he was entitled to maintain his denial of the allegations and no negative inference should be drawn from his insight as he has recognised the shortfalls in his practice and undertaken continuing professional development to mitigate that.

257. The Panel noted that the Registrant’s bundle of documents provided for the hearing in August 2021 contained:

a. A reference dated 14 July 2021 from a registered physiotherapist confirming that the Registrant had volunteered at his musculoskeletal practice in 2020;

b. Confirmation that the Registrant watched a number of online webinars in 2020 and 2021;

c. Hand written dated and undated reflections on procedures and learning opportunities while apparently employed by the Trust.

258. In March 2023 the Panel was provided a supplemental registrant bundle which included further certificates spanning September 2021 to January 2023. These certificates confirmed the Registrant attended a number of one to two hour webinars on a variety of topics.

259. The Panel reminded itself that the test of impairment is expressed in the present tense in relation to the need to protect the public against the acts and omissions of those who are not fit to practise, and that this cannot be achieved without taking account of the way a person has acted or failed to act in the past.

260. The Panel was mindful that a finding of impairment does not automatically follow a finding that the facts proved amounted to the statutory ground of lack of competence – it could properly conclude the deficient performance had been adequately addressed and was unlikely to be repeated. The Panel was satisfied that the Registrant’s conduct was capable of remediation, but concluded it did not have sufficient evidence to find that his conduct had been fully remediated at this point. It had not had the benefit of hearing from the Registrant as to the findings made by the Panel. There was no evidence of recent reflection upon the regulatory failings identified by the Panel, or evidence of recent training and development undertaken by the Registrant – the last provided certificate was dated January 2023. Further, the courses attended by the Registrant did not adequately address the concerns the Panel had about his practical implementation of physiotherapy practice in an NHS setting, with topics focusing mainly on musculoskeletal issues around sporting injuries.

261. The Panel was conscious that the Registrant attained his qualification and registered with the HCPC as required, but was concerned that he was not equipped by that training to work in a busy multi-disciplinary clinical team. When provided with support to improve his practice, he was unable to demonstrate the skills expected from him. The support he received was intensive, but his lack of competence posed a real risk of harm to patients which the Panel considered had not been mitigated. It was concerned that on the information available to it, the Registrant’s insight into the regulatory failings was limited. There was therefore a substantial risk of repetition of the conduct as the Registrant had not demonstrated to it that he had a full understanding of the skills needed to practice in a similar environment at this point. The single reference provided was not current and related to an unspecified timescale, focusing on musculoskeletal outpatients. It was therefore of limited assistance to the Panel.

262. The limited remediation undertaken by the registrant to date did not provide assurance to the Panel that the Registrant had improved his skills working with patients – the Panel’s concerns centred around his ability to apply his knowledge to live patients in a busy clinical setting with minimal support and intervention. The Panel was therefore satisfied that the Registrant was impaired on the personal aspect of impairment.

263. In respect of the public test for impairment, the Panel was satisfied that all three limbs were engaged. There was the potential for the Registrant to cause real harm to patients if allowed to return to unrestricted practice, given his failure to recognise the limitations of his practice and his inability to demonstrate that he was addressing these concerns in a meaningful way.

264. In considering the public component of impairment, the Panel had regard to the important public policy issues, particularly the need to maintain confidence in the profession and declare and uphold proper standards of competence, conduct and behaviour. The Panel determined that public and professional trust and confidence in the profession, professional standards, and the Regulator would be undermined if a finding of impairment was not made. A finding of impairment was therefore required on the public aspect of impairment to uphold standards and maintain confidence in the profession and the regulator.

265. The Panel concluded that the Registrant’s fitness to practise is currently impaired on the basis of the public component as well as the personal component.

Decision on Sanction

266. Mr Olphert addressed the Panel in relation to sanction, referring to the Sanctions Policy adopted by the HCPC. He told the Panel it should impose the least restrictive proportionate sanction that would afford an appropriate level of protection to the public, reminding the Panel that while a sanction may be punitive in effect, it should not be imposed for that purpose.

267. In moving up the ladder of available sanctions, Mr Olphert invited the Panel to take account of aggravating and mitigating features of the matter. He explained that the present of insight, remorse and remediation would be a mitigating factor, while absence would be an aggravating factor. He stressed that the remorse and insight must be genuine and fully formed, and reminded the Panel that the Registrant supplied details of continuing professional development (‘CPD’) he had undertaken to date.

268. Mr Olphert submitted that the potential for harm to be caused to service users was also an aggravating feature of this case, and that this was a relevant factor for the Panel to take into account when determining risk to the public and confidence in the regulator and the profession. He told the Panel that the case involved a repeated pattern of unsatisfactory practice to which the Panel should have regard when determining the likelihood of repetition. He reminded the Panel that the Trust had attempted to address this with the Registrant and it still recurred, which Mr Olphert said increased the seriousness of the conduct.

269. Ms Price told the Panel that any sanction it imposed should be directed and proportionate. She explained that the Registrant is financially dependent upon his work, and supports his family in Bangladesh. He is dedicated to his profession and keen to return to work. Ms Price said that the Registrant had given an honest account of his recollection of events and realised that he had made mistakes. He had however been hampered in the proceedings by the passage of time. Those delays were not attributable to him.

270. The Registrant had reflected on his practice and identified areas of improvement but Ms Price submitted that it was unfair to characterise his conduct as repeated – it occurred over a relatively short period of time (4 months) within the same Trust. She disputed the suggestion that there were repeated concerns and noted the Panel have previously indicated that the conduct is capable of remediation. The Registrant was engaged with the regulatory process, wants to work in the profession and should be supported. Ms Price told the Panel that the Registrant has demonstrated insight and that he understands where his competence was lacking. She reminded the Panel that it heard from witnesses that the Registrant wanted to learn and improve and that he was making progress. Ms Price also reminded the Panel that there is a public interest in those who can practice safely being permitted to do so.

271. Ms Price submitted that the Registrant should be allowed the opportunity to demonstrate that he had remediated the areas of concern identified by the Panel, and that a sanction which prevented that opportunity would be “manifestly disproportionate in the circumstances”. She considered that the most appropriate sanction for the Panel to impose would be a Conditions of Practice Order, noting that the factors identified in the Sanctions Policy at paragraph 108, which mitigated against a Conditions of Practice Order, were not present in this case while factors that supported such an order were present.

272. Ms Price told the Panel it could be certain that the Registrant would comply with the terms of a Conditions of Practice Order. He was currently subject to an Interim Conditions of Practice Order although he had been unable to secure a role as a consequence of the conditions set out in that Order. She urged the Panel to only impose conditions which were workable and allowed the Registrant to obtain employment. She entreated the Panel to avoid imposing direct supervision requirements on the Registrant, saying this would amount to suspension by the back door. She suggested that indirect supervision was sufficient in the circumstances, and could be limited to certain clinical settings in line with the earlier findings of the Panel in respect of impairment, particularly given the time that had elapsed since the concerns arose. Ms Price re-iterated that the Registrant would comply with the terms of a Conditions of Practice Order.

273. The Panel accepted the advice of the Legal Assessor and had regard to the HCPC Sanctions Policy, as well as the HCPC conditions bank. It was mindful that the purpose of any sanction is not to punish the Registrant, but to protect the public and promote the wider public interest. The public interest includes maintaining public confidence in the profession and the HCPC as its regulator by upholding proper standards of conduct and behaviour. The Panel applied the principle of proportionality by balancing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of severity.

274. The Panel considered what aggravating and mitigating features are present in this case, and concluded:

Aggravating

a. Potential for harm to be caused to patients as a consequence of the Registrant’s lack of awareness of the areas where his competence was deficient and improvement was required;

b. The level of insight is currently limited and does not appear to have evolved materially in the time that has elapsed since the concerns to which the allegations relate;

Mitigating

c. The Registrant has remained engaged in the regulatory proceedings despite it being some seven years since the concerns were originally raised;

d. The Registrant has made efforts to remediate, through completion of some voluntary work in 2020 and attendance at online training sessions between 2020 and January 2023.

275. The Registrant’s commitment to his profession was not doubted by the Panel. However, it was concerned as to the level of practical skills he had at the time the concerns were identified (2016 to 2017), and how the passage of time had impacted upon these skills. The Panel had regard to the Registrant’s description of his route to qualification and acceptance on the register by the HCPC. It considered that the failings identified in the Registrant’s practice during his employment by the Trust were in large part caused by the lack of practical learning included within the Registrant’s professional training. Given this, the Panel’s concerns were heightened by the passage of time, rather than lessened as a consequence of the Registrant being unable to secure a job in the profession. It was uncomfortable equating the Registrant’s return to practice with someone returning from a career break as it was not satisfied, on the evidence before it, that the Registrant had reached the minimum standards expected of a Band 5 physiotherapist at any stage.

276. Given this starting point, the Panel then considered the evidence of CPD supplied to it. It noted that none of the CPD was practical in nature – which it did not criticise the Registrant for, given the Covid 19 pandemic restrictions. It also did not address the concerns found proved by the Panel including:

a. Clinical reasoning;

b. Clinical theoretical knowledge

c. Clinical understanding;

d. Evaluation of clinical intervention

e. Action / treatment planning;

f. Discharge planning.

277. The Panel found that the Registrant had not demonstrated sufficient insight and remediation. As a result, it was not appropriate for the Panel to take no action. It noted that there was no outstanding dispute that mediation would assist with and therefore mediation was also an inappropriate sanction in this matter. It also did not consider a Caution Order to be appropriate given the wide ranging nature of the concerns and risk of repetition identified.

278. The Panel therefore moved on to consider whether a Conditions of Practice Order would be an appropriate sanction in the circumstances. It noted that conditions will rarely be effective unless the Registrant is committed to resolving the issues to be addressed and can be trusted to make an effort to do so.

279. In this instance, the Panel was satisfied that the Registrant was likely to make every effort to comply with any conditions of practice imposed, and was motivated and committed to do so. The Panel considered it would be possible to draft conditions which adequately promoted the overarching objective of public safety, while securing the support and guidance which appeared necessary for the Registrant. It was content that it was therefore possible to meet the public interest through the imposition of conditions being placed on the Registrant’s practice.

280. The Panel agreed with Ms Price that the imposition of a Suspension Order would be excessive and disproportionate in this case. The Registrant had not practiced for some seven years and no useful purpose would be served by preventing his reintegration into the profession.

281. The Panel therefore considered the Conditions Bank available to it. It determined that the conditions it should impose would need to address requirements for supervision, training, assessment and development. It therefore identified that the following conditions were appropriate to place on the Registrant’s practice:

1. You must place yourself, and remain under, the supervision of a workplace supervisor who:

a. is registered with the HCPC or another appropriate regulator; and

b. is experienced supervising students and or junior Physiotherapists; and

c. has not been subject to any regulatory concerns or complaints within the preceding three years;

2. You must complete a minimum 75 days (or 500 hours) of practical physiotherapy skills in a supervised clinical setting;

3. You must work with your workplace supervisor to formulate a Personal Development Plan to address the deficiencies identified by the Panel in your professional practice being:

a. Clinical reasoning;

b. Clinical theoretical knowledge

c. Clinical understanding;

d. Evaluation of clinical intervention

e. Action / treatment planning;

f. Discharge planning

4. Within three months of identifying and starting work with a workplace supervisor, you must forward a copy of your Personal Development Plan to the HCPC;

5. You must work with your workplace supervisor to consider your progress towards achieving the aims set out in the Personal Development Plan;

6. You must allow your work place supervisor to provide information to the HCPC about:

a. your progress towards achieving the aims set out in your Personal Development Plan;

b. your completion of hours of practical physiotherapy skills in a supervised clinical setting;

7. You will be responsible for meeting any and all costs associated with complying with these conditions;

8. Any condition requiring you to provide any information to, or obtain the approval of, the HCPC is to be met by you sending the information to the offices of the HCPC, marked for the attention of the relevant Case Manager;

9. You must promptly inform the HCPC if:

a. there is any change to your employment status;

b. disciplinary proceedings are taken against you by your employer.

10. 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)

Order:

The Registrar is directed to annotate the Register to show that, for a period of 12 months from the date that this Order comes into effect (“the Operative Date”), you, Mohammad M Rahman, must comply with the conditions of practice as set out above.

282. The Panel then considered the length of time the above conditions should apply and determined that the appropriate period was 12 months. This would allow the Registrant to secure employment and demonstrate his progress. In the event that his progress was rapid to remediating the failings identified by the Panel, he could seek an earlier review, while if he struggled to make progress, a future reviewing panel could extend the period of the order. The Panel was mindful it could not fetter the discretion of, or bind, a future reviewing panel, but considered that any such panel would be greatly assisted to have the benefit of the Registrant’s continued engagement in the regulatory proceedings.

Order

1. You must place yourself, and remain under, the supervision of a workplace supervisor who:
a. is registered with the HCPC or another appropriate regulator; and
b. is experienced supervising students and or junior Physiotherapists; and
c. has not been subject to any regulatory concerns or complaints within the preceding three years;
2. You must complete a minimum 75 days (or 500 hours) of practical physiotherapy skills in a supervised clinical setting;
3. You must work with your workplace supervisor to formulate a Personal Development Plan to address the deficiencies identified by the Panel in your professional practice being:
a. Clinical reasoning;
b. Clinical theoretical knowledge
c. Clinical understanding;
d. Evaluation of clinical intervention
e. Action / treatment planning;
f. Discharge planning
4. Within three months of identifying and starting work with a workplace supervisor, you must forward a copy of your Personal Development Plan to the HCPC;
5. You must work with your workplace supervisor to consider your progress towards achieving the aims set out in the Personal Development Plan;
6. You must allow your work place supervisor to provide information to the HCPC about:
a. your progress towards achieving the aims set out in your Personal Development Plan;
b. your completion of hours of practical physiotherapy skills in a supervised clinical setting;
7. You will be responsible for meeting any and all costs associated with complying with these conditions;
8. Any condition requiring you to provide any information to, or obtain the approval of, the HCPC is to be met by you sending the information to the offices of the HCPC, marked for the attention of the relevant Case Manager;
9. You must promptly inform the HCPC if:
a. there is any change to your employment status;
b. disciplinary proceedings are taken against you by your employer.
10. 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)

Notes

Interim Order

283. Mr Olphert applied for an Interim Order to cover the appeal period for the substantive Conditions of Practice Order. He submitted such an order is necessary to protect the public. He also sought the order on the ground of it being in the wider public interest given the allegations against the Registrant that have been proved and a reasonable well-informed member of the public would be concerned if no restriction was put on the Registrant’s practice. Mr Olphert suggested conditions in the same terms as imposed by the Panel, but for a period of 18 months to cover the period it would take to determine any appeal.

284. Ms Price told the Panel that she left the decision on an Interim Order to the Panel’s discretion.

285. The Panel had regard to Paragraphs 133-135 of the Sanction Policy and to Paragraph 3.4 of the HCPTS Practice Note on Interim Orders, which offer guidance on interim orders imposed at final hearings after a sanction has been imposed. It noted and applied the advice of the Legal Assessor.

286. The Panel recognises that its power to impose an interim order is discretionary and that imposition of such an order is not an automatic outcome of fitness to practice proceedings in which a Conditions of Practice Order has been imposed. It took into consideration the impact of such an order on the Registrant.

287. Conditions had been imposed on the Registrant’s practice to manage the concerns identified by the Panel in respect of the Registrant’s practice. Further, the Panel concluded that a Suspension Order would be disproportionate to the risks from which the public needed to be protected.

288. The Panel was satisfied it is necessary and proportionate to impose an Interim Conditions of Practice Order under Article 31(2) of the Health Professions Order 2001. Such an order is necessary for the protection of the public and is otherwise in the public interest. The Panel had regard to the reasons provided in its substantive findings and considered that public confidence in the profession and the regulatory process would be seriously undermined were the Registrant allowed to remain in practice as a Physiotherapist without restriction during the appeal period.

289. The Panel then considered the length of order requested, noting that 18 months is the maximum period and this should not be considered the default position. However, having regard to the timescales for completion of appeals, the Panel concluded it was appropriate for the order to be imposed for a period of 18 months, given the same would fall away once the appeal period expired, or the appeal was determined, whichever is sooner.
Interim Conditions of Practice Order:

290. The Panel makes an Interim Conditions of Practice Order under Article 31(2) of the Health Professions Order 2001 for a period of 18 months on the same terms as those set out at paragraph 281 above, the same being necessary to protect members of the public and being otherwise in the public interest.

Hearing History

History of Hearings for Mr Mohammad Rahman

Date	Panel	Hearing type	Outcomes / Status
28/06/2023	Conduct and Competence Committee	Final Hearing	Conditions of Practice
13/03/2023	Conduct and Competence Committee	Final Hearing	Adjourned part heard
09/08/2021	Conduct and Competence Committee	Final Hearing	Adjourned part heard