Miss Kavita Bargota

Preliminary Matters:

Service
1. The Panel was provided with a Notice of Hearing dated 22 February 2023 and a signed certificate as proof that the Notice of Hearing had been emailed to the Registrant on 22 February 2023.

2. The Panel was provided with a signed certificate dated 22 February 2023 confirming that the email address to which the Notice of Hearing had been sent was the address that the Registrant had provided on the HCPC records.

3. Accordingly, the Panel found that the Registrant had been served with the Notice of Hearing in accordance with Rule 3(1) of the HCPC Conduct and Competence Committee (Procedure) Rules 2003 (the Rules).

4. It was accepted that the Registrant had not been given 28 days’ notice in accordance with Rule 13 (4) of the Rules. However, the Registrant had been in email contact with the HCPC and had given her agreement for the hearing to proceed in her absence on 17 March 2023.

5. In these circumstances the Panel found that Service had been effective and that the notice period had been waived.

Proceeding in Private.

6. Ms Welsh applied for the proceedings to be partially heard in private in order to protect the private life of the Registrant in accordance with Rule 10 (1)(a) often health and Care Professions Council (Conduct and Competence Committee (Procedure) Rules 2003. She submitted that the Panel would need to consider issues relating to the Registrant’s health and that these elements of the decision should be in private.

7. The Panel heard and accepted advice from the Legal Assessor.

8. The Panel determined that any part of the proceedings relating to the Registrant’s health should be heard in private. It considered the principle of open justice and determined to hear only the parts of the proceedings that related directly to the Registrant’s health in private.

Proceeding in Absence

9. Ms Welsh applied for the hearing to proceed in the absence of the Applicant.

10. The Registrant had been in regular contact with the HCPC, including on 19 July 2022, 2 September 2022, 22 February 2022 and 9 March 2023. She had spoken to Ms Welsh on 9 March 2023. The Panel had sight of an email sent by the Registrant on 11 March 2023 in which the Registrant explained that she would not be available to attend a hearing until May 2023.

11. Ms Welsh submitted that this is a review of a Conditions of Practice Order which expires on 19 April 2023. The Registrant had clearly indicated that she was not able to attend before that date. The Conditions of Practice Order needs to be reviewed before its expiry. Ms Welsh specifically drew the Panel’s attention to the Registrant’s comments that the Registrant wanted to apologise to the Panel for not coming to the hearing and that she sincerely hoped that her absence would not cause an inconvenience. The Registrant had stated ‘although I am focusing and making my studies a priority at the moment, I do appreciate the importance of the hearing and attempts to find dietic [sic] work, but I am very slammed with uni work at the moment and current not able to stretch beyond my limits”.

12. Ms Welsh drew the Panel’s attention to the relevant case law and the Practice note, ‘Proceeding in the Absence of the Registrant.’ She submitted that in the circumstances of this case an adjournment would be futile. Although the Panel had to conduct a balancing exercise, it was a proportionate decision to proceed in the absence of the Registrant.

13. The Panel heard and accepted advice from the Legal Assessor. The Legal Assessor referred the Panel to the cases of GMC v Visvardis (2004) EWCA Civ 162, R v Jones (Anthony Williams) HL 20 February 2002, Ramaswamy v GMC (2021) EWHC (1619) (Admin) and GMC v Adeogba (2016) EWCA Civ 162 and provided a summary of these cases. The case of Adeogba specifically states that ‘there is a burden on all professional’s subject to a regulatory regime, to engage with the regulator, both in relation to the investigation and ultimate resolution of allegations against them. That is part of the responsibility to which they sign up when being admitted to the profession.’

14. The Panel retired to consider its decision in respect of proceeding in the absence of the Registrant. It was satisfied that the Registrant had been served with the notice of hearing. The Registrant had engaged with follow up emails and a telephone call. She had clearly indicated that, although she wished no discourtesy to the Panel, she would not be attending the hearing.

15. The Panel determined that the Registrant had voluntarily absented herself. She had it made it clear in correspondence that she was not able to attend a hearing at a future date before the Conditions of Practice expired. The Registrant had also made it clear that she was content for the hearing to proceed in her absence and appreciated that the Order needed to be reviewed before its expiry date. The Panel therefore decided that adjourning the hearing to a date within this period would serve no purpose and would be unlikely to secure the attendance of the Registrant.

16. The Panel therefore determined to proceed in the absence of the Registrant.

Background:

17. The Registrant had previously been employed as a Band 5 Dietitian by Leeds Teaching Hospitals NHS Trust from 28 April 2010. She was in a rotational training post in March 2013 when concerns were raised by a patient’s family in respect of the dietetic care provided by her to a patient (Patient A), relating to poor dietary intake and contact with the patient’s family.

18. During an investigation into those concerns, evidence emerged that the Registrant had altered Patient A’s record card, after the concerns had been raised.

19. At a hearing on 10 and 11 December 2014 a panel of the Conduct and Competence Committee (the 2014 panel) found the following allegations were proved against the Registrant:

‘During the course of your employment as a Dietitian with the Leeds Teaching Hospitals NHS Trust, you:

1. On a date between 5 April 2013 and 30 May 2013, following a complaint received from a Senior Sister in relation to dietetic care you had provided to patient A, you:

a. Made retrospective amendments to Patient A's record card, and you:

i. Did not sign the amendments, and/or
ii. Did not date the amendments

2. The actions described in paragraph 1 a i - ii are dishonest.

3. The matters set out in paragraph(s) 1 and 2 constitute misconduct and/or lack of competence.

4. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.

20. The 2014 panel found that the Registrant had “amended the records by adding further information, to suggest there had been more discussion and intervention concerning the patient” than had occurred and that she had done this, on a “large scale”, several weeks after the complaint had been made, in order “to improve her position after the she was aware of the complaint made by the family of (the) Patient”.

21. The 2014 panel found that this conduct was dishonest, that the Registrant’s fitness to practise was impaired and that she had limited insight, demonstrated by her denial of dishonesty and the absence of any remediation. The 2014 panel suspended her from practice for 9 months.

22. The Registrant’s suspension was reviewed on 7 August 2015 and the reviewing panel suspended the Registrant from practice for another period of 12 months. (Redacted).

23. On 12 February 2016, a second reviewing panel approved a Voluntary Removal Agreement in which the Registrant consented to her removal from the Register. When imposing a striking off order that panel observed: “The Panel considered that the matters found proved at the Final Fitness to Practice hearing were serious. These gave rise to concerns in relation to the safety of patients, and to the wider public interest, including maintaining confidence in the profession and the regulatory process, and upholding proper standards of conduct and behaviour.”

24. The Registrant (then the Applicant) first applied for restoration in 2018. Having been advised that her application was premature, she withdrew that application and applied for restoration to the register pursuant to a written application dated 28 April 2022 and emailed to the HCPC on 2 May 2022.

25. The Registrant was re-admitted to the register at a Restoration Hearing held on 6th June and 17th June 2022.

26. The Restoration Hearing Panel (the 2022 panel) accepted the evidence given by the Registrant on 6 June 2022, which was consistent with and supported by the written documentation she had submitted to that panel. It found that the Registrant had reflected properly upon her misconduct and accepted her responsibility for it.

27. That panel accepted that the Registrant had taken steps to ensure that there was no repetition of her misconduct and had demonstrated that, 10 years after her misconduct, she would act openly and honestly regardless of consequences for herself.

28. (Redacted).

29. That panel found that the Registrant had taken appropriate steps to rehabilitate herself, including working without incident over a number of years and contributing to projects related to her profession. The 2022 panel accepted that she had also learnt to manage her workload in a way that made it unlikely she would resort to dishonesty in the future.

30. The 2022 panel examined the evidence of CPD and learning which the Registrant had put before it and was satisfied she had successfully completed a 60 day period of professional updating in accordance with the HCPC standards for return to practice.

31. That panel then considered whether, in light of these findings, the Registrant was a fit person to return to practise and in particular whether she could practise safely, without being so overwhelmed that she was tempted to behave dishonestly in the future.

32. The 2022 panel was satisfied that the Registrant had resolved to behave honestly but was concerned that the return to work might present her with challenges which she would only be able to meet if properly supervised for a period after her return to work.

33. The 2022 panel then considered whether restoration met the overarching objective of protecting the public, including the wider public interest. In particular, it considered whether restoration would promote and maintain public confidence in the profession and uphold proper standards of conduct.

34. That panel was satisfied that it would meet the overarching objectives referred to above because of the significant passage of time since the Registrant’s misconduct and the evidence that the Registrant had used the time to ensure that she would practise safely and honestly in future. The 2022 panel agreed with the finding of the 2014 panel that the Applicant’s misconduct was not so serious that the wider public interest required that she would never be able to return to practice.

35. Therefore, the 2022 panel allowed the application for restoration subject to the Registrant complying with conditions of practice.

36. The 2022 panel stated: ‘For the avoidance of doubt, the Panel records that the conditions of practice order will be reviewed shortly before its expiry and observes that a reviewing panel is likely to be assisted by:

1. The attendance of the Registrant;

2. A report from the Registrant’s workplace supervisor dealing with how the Registrant has managed her workload and maintained accurate records.

3. Testimonials dealing with the Registrant’s performance at work or in any other relevant role;

4. Any other material that the Registrant relies upon to demonstrate that she is ready to return to unrestricted practice.

HCPC Submissions.
37. On behalf of the HCPC, Ms Welsh submitted that the Panel’s task was to “consider whether all the concerns raised in the original finding of impairment have been sufficiently addressed”. She directed the Panel to the case of Abraheam v GMC and explained that in practical terms there is a persuasive burden on the Registrant to demonstrate at a review hearing that she has fully acknowledged the deficiencies which led to the original finding and has addressed that impairment sufficiently “through insight, application, education, supervision or other achievement…”

38. Ms Welsh reminded the Panel that its role is to review the matter on the basis of the evidence available today and decide whether the Registrant’s fitness to practice remains impaired, and if so, to decide what the appropriate sanction should be. She described the Panel’s powers as set out in Article 30(1).

39. Ms Welsh set out clearly the Registrant’s engagement with the HCPC. She indicated that the HCPC’s view was that there was currently insufficient evidence to show that the Registrant had addressed the impairment of her fitness to practice, in relation to both the public and private components of this.

40. Ms Welsh further submitted that the HCPC’s view was that strike-off was not appropriate. The Registrant had engaged by complying with the requirements to be returned to the register, and had provided an update on her personal circumstances and difficulties finding employment which means she has been unable to engage and complete the remaining conditions of returning to practice.

41. It was submitted by Ms Welsh that should the Panel find that the Registrant’s fitness to practice remained impaired, the appropriate sanction would be that the current conditions of practice be extended by a period of 12 months.

42. The Panel heard and accepted the advice of the Legal Assessor. The Legal Assessor referred the Panel to the cases of Abrahaem V GMC (2008 EWC (Admin), Henning v The General Dental Council (2022) EWHC 175 (Admin), CHRE v NMC (and Grant) ( 2011) EWHC 97 (Admin) and Cohen v GMC (2008_ EWHC 158 (Admin) and summarised the case law for the Panel.

43. The Legal Assessor also set out the clear explanation of the meaning of ‘proportionality’ as described in the case of Bank Mellat (Appellant) v Her Majesty’s Treasury (respondent) (No.2) (2013) UKSC 39.

Decision:

44. The Panel noted the decision of the 2022 panel that the Registrant’s fitness to practise remained impaired at that point. The Panel acknowledged the 2022 panel’s view that returning to work without appropriate supervision would present the Registrant with challenges.

45. The Panel determined that it had no new evidence before it today to allow it to conclude that the Registrant’s fitness to practise was no longer impaired. A further period of time had passed, and the Panel was not aware of what the Registrant had been doing to keep her practice up to date since she was re-admitted to the register.

46. The Panel considered that the Registrant had not provided sufficient evidence to indicate that the original concerns had been addressed. She had not had the opportunity to return to work as a dietitian. The Registrant had not provided any testimonials from a place of work, which would enable the Panel to understand how the Registrant was now managing in a workplace environment. (Redacted).

47. The Panel noted that it was positive that the Registrant had kept in contact with and continued to engage with the HCPC.

48. The Panel noted that the burden of proof in persuading it that her fitness to practice was no longer impaired was on the Registrant.

49. There remain concerns as to the Registrant’s current fitness to practise in respect of the personal component. She had now been out of practice for 10 years and had not provided evidence as to how she had maintained her professional development in the last 9 months. She had also not provided evidence from an employer as to how she was better able to manage her workload since the time of her re-admission to the register. (Redacted).

50. The Panel also determined that the public interest component of fitness to practice was engaged. A fully informed member of the public, aware of all of the circumstances of this case, would be concerned if the Registrant were able to return to unrestricted practice at this stage. The duty of a Regulator includes upholding standards in the profession and ensuring that the public are protected.

51. Therefore, the Panel found the Registrant’s fitness to practise is currently impaired on both the personal and public components.

52. The Panel then moved on to consider the appropriate sanction. It considered the sanctions available to it in accordance with the HCPC Sanctions Policy dated March 2019.

53. There had been no finding that the Registrant’s fitness to practise was no longer impaired. Accordingly, the Panel determined that the options available to it of referring a case for mediation, taking no action or imposing a caution order were not appropriate in this case and would not sufficiently protect the public.

54. In light of the 2022 panel’s findings and the fact that the position had essentially remained unchanged from that date, the Panel took the view that Conditions of Practice were necessary, appropriate and proportionate.

55. The Panel took account of the Registrant’s written request to the HCPC for the conditions to be amended or waived, and the comments that the Registrant had made about her difficulties in finding employment. The Panel actively considered whether it could realistically amend the conditions or make them any less restrictive in order to assist the Registrant.

56. The Panel determined that any newly qualified member of staff coming into a workplace in a new post, or returning after a lengthy career break, should expect to be supervised by a manager. It noted that the Registrant had indicated in her written correspondence that she had only applied for locum positions. The Panel took the view that in a substantive and permanent position, supervision is likely to be more readily available.

57. The Panel also considered the fact that both the workplace and the profession had changed considerably in the last ten years. There have also been significant changes brought about by the Covid-19 pandemic, including the fact that staff may be working remotely for at least some of the time.

58. The Panel considered that a Suspension Order was not necessary or proportionate. It would not achieve the desired outcome of assisting the Registrant to return to practice in the future.

59. The Panel considered whether it could reduce the level of supervision or impose conditions preventing the Registrant from having face to face contact with patients (as suggested by the Registrant in her written correspondence). The Panel took the view that weekly supervision, at least in the first instance for a limited period, was realistic, reasonable and proportionate.

60. It was the Panel’s view that preventing the Registrant from having contact with patients would be overly restrictive in the circumstances of her case. The findings of the 2014 panel related to the recording of information, and errors in relation to this could occur in a non-patient facing role. A condition that would enable the Registrant to practise without face to face contact would not assist her if she chose to return to her profession nor would it be warranted given the findings of the previous panels.

61. The Panel found that the current conditions were workable and did not amount to a suspension from practice. It considered the length of time before a review should take place. The Panel concluded that 12 months was appropriate, as this would give the Registrant time to work towards her Masters qualification before applying for positions as a Dietitian.

62. The Registrant is able to apply for an early review if her circumstances change.

63. The Conditions of Practice order will be reviewed before its expiry. A future panel is likely to be assisted by:

1. The attendance of the Registrant;

2. A report from the Registrant’s workplace supervisor dealing with how the Registrant is managing her workload and maintaining accurate records;

3. Testimonials dealing with the Registrant’s performance at work or in any other relevant role;

4. Any other material that the Registrant relies upon to demonstrate that she is ready to return to unrestricted practice.

64. The Panel would draw the Registrant’s attention to the fact that she could provide testimonials or evidence from an employer or supervisor outside of the regulated profession if she has not been able to obtain employment as a dietitian before the next review.

The Registrar is directed to annotate the Register to show that, for a period of 12 months from the date that this Order takes effect (the Operative Date), the Applicant must comply with the following conditions of practice:

1) You must place yourself and remain under the supervision of a workplace supervisor registered by the HCPC or other appropriate statutory regulator and supply details of your supervisor to the HCPC within 14 days of starting any role that requires registration with the HCPC. You must attend upon that supervisor as required and follow their advice and recommendations.

2) For the first 2 months after you commence any role that requires registration with the HCPC you must meet with your supervisor every week.

3) Thereafter you may, if your supervisor agrees, meet each month.

4) You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

5) 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 requiring registration with the HCPC;

b) any agency you are registered with or apply to be registered with (at the time of application) with a view to taking a role requiring registration with the HCPC; and

c) any prospective employer for a role requiring registration with the HCPC; (at the time of your application).

The Order imposed today will apply from 19 April 2023.

This Order will be reviewed again before its expiry on 19 April 2024.

Right of Appeal

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Articles 30(10) and 38 of the Health Professions Order 2001, any appeal must be made to the court not more than 28 days after the date when this notice is served on you.

History of Hearings for Miss Kavita Bargota