Mr Sudheer Pozthoal Kuttan

Preliminary matters;

Amendment:

1.The Panel noted Ms Jones’ and Mr Eason’s joint application to amend Particular of Allegation 2 c), to add the words “within the records”. The Panel determined that the amendment properly reflected the evidence and that it was fair and that it caused no prejudice to the Registrant. Thus, the Panel permitted the amendment.

Private/Public:

2. The Panel had regard to the submissions of Ms Jones and Mr Eason. In reaching its decision, the Panel accepted the Legal Assessor’s advice and took into consideration the contents of the HCPTS’ Practice Note on Private and Public Hearings. Under Rule 10(1)(a) of the HCPC’s Conduct and Competence Committee (Procedure) Rules 2003 (the Rules), the Panel was satisfied that any reference to the Registrant’s private and family life, should be heard in private, so as to preserve the principle of confidentiality and in the interests of justice. This may entail parts of the hearing being heard in private.

Stages of the hearing:

3. At the request of Mr Eason the Panel first considered Facts and the Statutory Grounds.

Impairment and the expert witness:

4. The Panel heard an application from Mr Eason on 10 May 2023 for the expert witness, DP, to receive the Registrant’s two bundles so as to inform her on the current situation with the Registrant’s Occupational Therapist practice. That was granted on the basis that any questions asked of the expert witness relating to Impairment were to be noted but put aside by the Panel, it being a professional panel that could extrapolate information according to the remit before it at any one time. However, on 12 May 2023, Mr Eason sought to retract from that position, seeking to apply to have the expert witness address only matters within her expert report; namely, the facts and the grounds. Ms Jones agreed to the application, but emphasised that the only reason that the expert witness had received the Registrant’s bundles was at his request on 10 May 2023.

5. The Panel accepted the Legal Assessor’s advice and agreed to the application, on the grounds that the expert witness, duly advised, could and should adhere to the subject matter of her written expert report only and not stray into Impairment, which was a matter for the Panel’s judgement. Any matters that the Panel wished to clarify with her, within her remit of the facts and grounds only, could be used by the Panel to inform it on the Impairment stage, if necessary, without the expert having given her opinion on Impairment at any time.

Background:

6. The Registrant was employed, via an agency (the Sugarman Agency) (the Agency), as a locum Occupational Therapist (OT) by the Royal Borough of Kensington and Chelsea (RBKC) (the Borough) on behalf of Barlby Primary School (the School). At the time, the RBKC was part of a tri-borough arrangement comprising RBKC, Westminster City Council and Hammersmith and Fulham Borough with respect to the provision of special educational needs for children. The Registrant commenced his employment with the School on 25 November 2015 and was allocated by the Borough to work one day per week during term time at the School’s specialist Autistic Spectrum Disorder (ASD) Unit called The Orchard. For the period after his appointment up to and including January 2019, there had been no oversight or review of the occupational services provided, by any organisation involved, although the Borough had intended to do so, but it never took place. The Registrant was employed to establish an Occupational Therapy service to the School.

7. Thus, on discovering this omission, on or about 30 January 2019, the Borough decided to hold a meeting at the School. The purpose of the meeting was to meet with the Registrant and appropriate school staff including the School’s Special Educational Needs Co-Ordinator (SENCO) and the Head of the Unit to understand the Occupational Therapy delivery model implemented by the Registrant, the impact it had made, whether any further support was required and the future arrangements for Occupational Therapy provision for the Unit.

8. However, the Registrant immediately resigned from his role on 30 January 2019 when notified of the meeting, giving one week’s notice, which had been in accordance with his contract with the Agency. Therefore, the meeting took place without him on 26 February 2019 between representatives from the Borough and the School to discuss the work the Registrant had been doing. At the meeting, the Borough representatives were AM, Designated Clinical Officer (DCO) for SEND for Central London with the West London and Hammersmith and Fulham Clinical Commissioning Groups (CCGs) and DJ, Quality Assurance and Improvement Manager at the Royal Borough of Kensington and Chelsea (RBKC) and with the RBKC and Westminster City Council (a Bi-Borough arrangement). AM and DJ requested copies of any reports, notes or records completed by the Registrant. The School could not provide anything at the meeting, but subsequently provided everything they could find that was produced by the Registrant from his period working at The Orchard.

9. A detailed review of the Registrant’s records took place by AM and DJ. They discovered a number of concerns, including a failure to gain consent, records kept in a series of notebooks that contained notes for a number of children, lack of baseline assessments, lack of regular goal setting and reviews, and incomplete and illegible notes. The Allegation sets out the detail of the findings of AM and DJ.

10. DJ referred their concerns to the HCPC on 10 April 2019. On 7 July 2020, the HCPC’s Conduct and Competence Committee found a case to answer, which was communicated to the Registrant in a letter dated 14 July 2020.

11. The HCPC commissioned an expert report from DP, an OT, to produce expert evidence. Her first report was dated 4 November 2021, having received a bundle of documents, the witness statement of DJ dated 9 April 2021, the HCPC’s Standards of Proficiency for Occupational Therapists (March 2013) (the Standards of Proficiency), the HCPC Standards of Conduct, Performance and Ethics (July 2008 & January 2016) (the Standards), which were in force at the relevant time and the HCPC’s Practice Note “Assessors and Expert Witnesses”. DP’s second report was dated 13 April 2022, by then having received AM’s undated witness statement.

12. DP’s remit from the HCPC was to provide her opinion on these issues identified below:

a) In the case of each allegation/area of concern which she considered was supported by the facts to set out in her report her opinion as to whether the Registrant’s conduct fell short of the standards which the public and the profession were reasonably entitled to expect at the relevant time. In particular, DP was asked to give her opinion on the following:

⦁ the adequacy of the Registrant’s records in relation to
the children outlined in Schedule A, specifically referring to obtaining
consent, and the fullness and accuracy of the records (Particulars of Allegations 1 and 3);
⦁ the quality of the report in relation to Child B, specifically addressing the matters raised in each sub-Particular of Allegation 2;
⦁ the adequacy of the clinical reasoning demonstrated
in the records relating to the children outlined in Schedule B (Particular of Allegation 4).

b)  DP was asked to consider the Registrant’s conduct against the standards expected of a reasonably competent registrant (by applying a reasonable standard of care, not the “gold standard” or “best practice”).

c)  DP was asked to ensure that her report set out the standard she applied and why she reached the conclusions that she did.

d)  In each instance, where DP was of the view that the Registrant’s conduct had fallen short of the standards expected, to set out her view on whether or not the falling short could be said to be “serious”; namely, if the Registrant’s conduct had fallen ‘far below the standards expected.’

DP was informed that the Education Health Care Plans (EHCP) of Clients H, M and Q were not obtainable due to children having left the service.

Decisions:

Facts:

13. In reaching its decisions on the facts, the Panel had regard to the HCPTS’ bundle and the written witness statements/reports of the HCPC witnesses as follows:

Witness AM, is an OT and Head of Special Educational Needs and Disability (SEND) and Senior Designated Clinical Officer (DCO) at Hammersmith and Fulham Borough in the North West London Community Group (CCG), a joint post.

14. At the time of the events under scrutiny, AM was DCO for SEND for Central London with the West London and Hammersmith and Fulham CCGs.

15. Her witness statement was dated 29 March 2022. AM stated that the School had provided her with: a set of exercise books used by the Registrant to make notes; loose paperwork within the exercise books; some envelope-style foolscap document folders; a bundle of loose papers; a list of the childrens’ names relevant for the time the Registrant worked at the School and printed copies of Occupational Therapy reports and programmes written by the Registrant held on the School’s electronic system. AM further explained that each folder had a child’s first name on the front with loose paperwork inside, some of which was undated and unnamed. There was not a corresponding file for every child the Registrant had worked with.

16. AM detailed her findings from the overview of record keeping for each child into a table entitled ‘Audit of Occupational Therapy Records – Barlby School – March 2019’ (Exhibit 3 of AM’s statement). AM confirmed that there were gaps from mid-February 2016 to mid-May 2016, the entire 2016/17 academic year and September 2018 to December 2018 which represented approximately 50% of the time when the Registrant was working at the School. The Registrant was reported to have confirmed that he did not have any records at home.

Witness DJ, is Head of SEND and Inclusion at Wandsworth Borough Council.

17. At the time of the events under scrutiny, DJ had been employed as the Quality Assurance and Improvement Manager at the Royal Borough of Kensington and Chelsea (RBKC) and with the RBKC and Westminster City Council (a Bi-Borough arrangement) as a Consultant to advise on improved performance, and she managed Early Years Primary School Special Educational Needs.

18. Her witness statement was dated 9 April 2021. DJ stated that AM spent three nights in Kensington Town Hall until about 9pm each night trying to work out which record or piece of work related to which child.

Witness DP is an OT and has provided her expert opinion in this case, in the form of two reports dated 4 November 2021 and 13 April 2022, as referred to above.

19. The Panel also heard oral evidence from AM, DP and DJ.

20. As demonstrated in the reasons below, the Panel considered the written evidence of AM and DP to be reliable because AM and DP clearly identified the contemporaneous documentation upon which they base their respective investigations/report. Further, the Panel considered AM and DP to be knowledgeable, taking into account their respective qualifications and experience as OTs. It was clear to the Panel that the written and oral evidence of AM and DP was consistent. There was also consistency between the evidence of AM and DP.

21. The Panel noted that DJ instigated the enquiry and thereafter facilitated a full investigation. DJ informed the Panel that the Registrant’s records were ‘not up to standard’.

22. The Panel paid regard to the Registrant’s two bundles comprising his reflective piece dated 6 April 2023, his present employer’s feedback, 10 individual references, 2 patient emails and 3 training courses. During its deliberations in camera on the Facts and Grounds stage, the Panel received three additional documents dated 2003 to 2013, relating to the Registrant’s training in Joint Compression Sensory Integration Theory and Development and Brushing provided to the Panel by the Registrant. The Panel was careful to ensure that it did not pay regard to Impairment at this stage, including any documents alluding to Impairment. However, it drew on some of the Registrant’s documents that related to his past performance and training at and before the time of the events, when decided on the misconduct/lack of competency element of this stage.

23. The Panel accepted the Legal Assessor’s advice and approached the Allegation as advised, considering Particulars of Allegation 1 and 3 for each of the 17 children referred to in Schedule A, Particular of Allegation 4 (“no demonstration and/or evidence of good clinical reasoning”) for each of the 12 children referred to in Schedule B and Particular of Allegation 2, in relation Child B alone, giving each sub-Particular a) to i) due individual consideration, and then determining if the stem “of poor quality” had been proved. The Panel noted that it was for the HCPTS to prove the facts on the balance of probabilities.

Particular of Allegation:

1: Proved as to all 17 children referred to in Schedule A.

24. The Panel considered the detail of the evidence of AM and DP, noting their respective exercises in analysing the contemporaneous documentation of each child and providing schedules of what the evidence demonstrated, with their respective methodology. The Panel was satisfied that these were accurate analyses for each child.

25. The Panel determined that this evidence of AM and DP demonstrated that the Registrant did not record gaining consent from any of the children’s parents or carers on the relevant dates referring to each child between 25 November 2015 and 30 January 2019, and, thus, it was not shown that the Registrant had gained the necessary consent from each child’s parent or carer.

26. In addition, the Panel noted that the Registrant admitted to this Particular of Allegation in full. The Panel noted that Mr Eason stated in his submission that the Registrant’s reflective piece referred to the fact that the School has suggested to the Registrant that he did not have to gain consent as the School would do so. The Panel also noted that Mr Eason stated that the Registrant’s reflective piece also referred to the fact that he should ‘concentrate on the sessions more than take time to do elaborate notes’. However, the Panel concluded that these assertions did not remove his professional obligations to gain consent and maintain accurate and effective records for each child that he treated. To that end, the Panel having considered each child’s case individually the Panel cross referenced the specific detail written evidence of AM and DP, the Panel concluded that the HCPC evidence supported the Registrant’s admissions. Thus, the Panel found this Particular of Allegation as to each of the 17 Schedule A children proved.

2a): Proved.

27. The Panel was satisfied that the HCPC evidence demonstrated that the Registrant’s report, entitled “Multidisciplinary Therapy Advice for Education, Health and Care Needs Assessment Report” (the Registrant’s Report) did not include Child B’s surname, date of birth, address or their language.

28. In the Panel’s judgement, this was consistent with the written and oral evidence of AM and DP.

29. The Panel also noted that the Registrant admitted to this Particular of Allegation in full. To that end, having considered the HCPC evidence as set out, the Panel concluded that the HCPC evidence supported the Registrant's admission.

30. Thus, for these reasons, the Panel determined that the Particular of Allegation 2a) has been proved.

2b): Proved.

31. The Panel was satisfied that the HCPC evidence demonstrated that the Registrant’s Report incorrectly identified the length of time that Child B had been known to the service.

32. In the Panel’s judgement, this was consistent with the written and oral evidence of AM and DP.

33. The Panel also noted that the Registrant admitted to this Particular of Allegation in full. To that end, having considered the HCPC evidence, the Panel concluded that it supported his admission.

34. Thus, for these reasons, the Panel determined that the Particular of Allegation 2b) has been proved.

2c) as amended: Proved.

35. The Panel was satisfied that the HCPC evidence demonstrated that the Registrant’s Report stated that Child B’s motor skills had improved when there was no evidence within the records to substantiate this.

36. In the Panel’s judgement, this was consistent with the written and oral evidence of AM and DP.

37. The Panel also noted that the Registrant admitted to this Particular of Allegation in full. To that end, having considered the HCPC evidence, the Panel concluded that it supported his admission.

38. Thus, for these reasons, the Panel determined that the Particular of Allegation 2c) has been proved.

2d): Proved.

39. The Panel was satisfied that the HCPC evidence demonstrated that the Registrant’s Report did not show any evidence of any baseline assessment or review of Child B’s progress.

40. In the Panel’s judgement, this was consistent with the written and oral evidence of AM and DP.

41. The Panel also noted that the Registrant admitted to this Particular of Allegation in full. To that end, having considered the HCPC evidence, the Panel concluded that it supported his admission.

42. Thus, for these reasons, the Panel determined that the Particular of Allegation 2d) has been proved.

2e): Proved.

43. The Panel was satisfied that the HCPC evidence demonstrated that the Registrant’s Report stated that the content therein about Child B was based on discussions with class staff, observations in the class room and 1:1 Occupational Therapy sessions, when there was no evidence of any observations in the Registrant’s note books that he had used for record keeping.

44. In the Panel’s judgement, this was consistent with the written and oral evidence of AM and DP.

45. The Panel also noted that the Registrant admitted to this Particular of Allegation in full. To that end, having considered the HCPC evidence, the Panel concluded that it supported his admission.

46. Thus, for these reasons, the Panel determined that the Particular of Allegation 2e) has been proved.

2f): Proved.

47. The Panel was satisfied that the HCPC evidence demonstrated that, in the Registrant’s Report, there was no provision or record of the Registrant having set and/or recorded a suitable long-term goal for Child B.

48. In the Panel’s judgement, this was consistent with the written and oral evidence of AM and DP.

49. The Panel also noted that the Registrant admitted to this Particular of Allegation in full. To that end, having considered the HCPC evidence, the Panel concluded that it supported his admission.

50. Thus, for these reasons, the Panel determined that the Particular of Allegation 2f) has been proved.

2g): Proved.

51. The Panel was satisfied that the HCPC evidence demonstrated that, in the Registrant’s Report, there was no timescale set by the Registrant for 3 out of the 4 outcomes in respect of Child B’s fine motor and gross motor outcomes.

52. In the Panel’s judgement, this was consistent with the written and oral evidence of AM and DP.

53. The Panel also noted that the Registrant admitted to this Particular of Allegation in full. To that end, having considered the HCPC evidence, the Panel concluded that it supported his admission.

54. Thus, for these reasons, the Panel determined that the Particular of Allegation 2g) has been proved.

2h): Proved.

55. The Panel was satisfied that the HCPC evidence demonstrated that, from the Registrant’s Report, the Registrant appeared to have used a generic template when detailing provisions and requirements for Child B, and that, therefore, it was not specific to Child B.

56. In the Panel’s judgement, this was consistent with the written and oral evidence of AM and DP.

57. The Panel also noted that the Registrant admitted to this Particular of Allegation in full. To that end, having considered the HCPC evidence, the Panel concluded that it supported his admission.

58. Thus, for these reasons, the Panel determined that the Particular of Allegation 2h) has been proved.

2i): Proved.

59. The Panel was satisfied that the HCPC evidence demonstrated that, in the Registrant’s Report, the Registrant had stated that: “therapy service will work closely with child’s parents/carers”, when there was no evidence in Child B’s Occupational Therapy records up to January 2019 of any communication with Child B’s parents.

60. In the Panel’s judgement, this was consistent with the written and oral evidence of AM, DJ and DP.

61. The Panel also noted that the Registrant admitted to this Particular of Allegation in full. To that end, having considered the HCPC evidence, the Panel concluded that it supported his admission.

62. Thus, for these reasons, the Panel determined that the Particular of Allegation 2i) has been proved.

2 - the stem: Proved.

63. AM and DP asserted that the Registrant’s Report was of ‘poor quality’.

64. It was clear to the Panel that the written and oral evidence of AM, DJ and DP, taken together, was consistent and reliable.

65. The Panel also noted that the Registrant admitted to the stem of particular of Allegation 2. To that end, having considered the HCPC evidence, the Panel concluded that it supported the Registrant’s admission.

66. Thus, for these reasons, the Panel determined that the nine Sub-Particulars of Allegation 2a) to 2i) have been made out and that the report the Registrant wrote in respect of Child B on 21 March 2017 was of poor quality.

3. Proved.

67. The Panel considered the detail of the evidence of AM and DP, noting their respective exercises in analysing the documentation of each child and providing schedules of what the evidence demonstrated, with their respective methodology. The Panel was satisfied that these were accurate analyses for each child.

68. The Panel also determined that the evidence of AM, DJ and DP demonstrated that the Registrant did not make full and accurate records in respect of the Registrant’s treatment sessions on the relevant dates referring to each child between 25 November 2015 and 30 January 2019.

69. In addition, the Panel noted that the Registrant admitted to this Particular of Allegation in full. To that end, having considered each child’s case individually as set out, the Panel concluded that the HCPC evidence supported the Registrant’s admissions.

70. Thus, for these reasons, the Panel found this Particular of Allegation as to each of the 17 Schedule A children on the relevant dates for each child proved.

4. Proved.

71. The Panel considered the detail of the evidence of AM and DP, noting their respective exercises in analysing the documentation of each child and providing schedules of what the evidence demonstrated, with their respective methodology. The Panel was satisfied that these were accurate analyses for each child.

72. The Panel determined that the evidence of AM, DJ and DP showed that the Registrant did not demonstrate and/or, in any other way evidence good clinical reasoning in respect of his treatment sessions on the relevant dates referring to each child between 25 November 2015 and 30 January 2019. In the Panel’s judgement, this was well evidenced, for example, by AM’s comment in her witness statement: “The lack of a more detailed description of the activities carried out means that it is not possible to gain an accurate view of the clinical reasoning behind the choice of activity, a child’s strengths and the difficulties encountered…. This is not sufficiently comprehensive”.

73. In addition, the Panel noted that the Registrant admitted to this Particular of Allegation in full. To that end, having considered each child’s case individually as set out, the Panel concluded that the HCPC evidence supported the Registrant’s admissions.

74. Thus, for these reasons, the Panel found this Particular of Allegation as to each of the 12 Schedule B children on the relevant dates for each child proved, and that the Registrant had not demonstrated and/or evidenced good clinical reasoning on those dates for each child.

Grounds:

75. In reaching its decision on misconduct/lack of competence, the Panel paid regard to the expert report and oral evidence of DP, the ‘HCPTS’ Practice Note entitled drafting Fitness to Practise Decisions’, the HCPC’s relevant Standards and the relevant Standards of Proficiency Standards. The Panel accepted the Legal Assessor’s advice and used its own judgment, noting that there is no standard of proof at this stage.

76. In the Panel’s judgement, this case concerned serious and wide-ranging fundamental failures of duty of care and professional standards by the Registrant in relation to issues of consent, record keeping and lack of clinical reasoning over a long period of time, namely a period of 3 years and 2 months from November 2015 to January 2019, including the Child B matters on 21 March 2017. On the Panel’s analysis, viewed overall, this involved a total of 55 incidents covered by Particulars of Allegation 1,3 and 4 and a further 9 incidents relating to Child B alone in Particular of Allegation 2, making 64 incidents in total over the 3-year 2 month period spanning the Allegation.

77. Furthermore, in the Panel’s judgement, the Registrant’s disorganised working practices, often by omission, resulted in the in-depth investigation by the Borough and it exemplified his seriously substandard conduct. This conduct was evidenced by the expert opinion of DP that all the matters found proved fell far below the standard expected of a registered OT of the Registrant’s seniority experience.

78. In addition, the Registrant’s reflective piece, positive testimonials, written references, some of which span the time frame of the Allegation, demonstrate that the Registrant was clearly senior and highly experienced. Hence, in the Panel’s judgement, the Registrant should have known that he was falling seriously below the standards expected of him and, knowing the principles of professional autonomy and responsibility, that he should have taken remedial action on his shortfalls, despite the apparent lack of supervision from the School or the Borough.

79. In its judgement of this matter, the Panel did not demur in any way from the expert’s opinion on the level of failings of the standards expected of an OT. In addition, the Panel noted that the Registrant has admitted misconduct and denied lack of competence.

80. In the Panel’s opinion, the failings found proved demonstrated conduct that was so consistently poor and disorganised that this case could not be solely one of lack of competence. The examples given are a large and fair sample of the sub-standard conduct of the Registrant, indicating a potentially severe lack of competence, albeit that no remediative/capability/competence measures were taken by the Borough by its own admission.

81. However, in addition, in the Panel’s judgement, there is an obligation on a professional such as the Registrant to keep apace of his work, to ensure his clinical practise does not fall so far below the standard expected as has been found, to recognise the need to arrange supervision, to keep diligent and accurate records and to obtain consent from the parents and carers of the children under his care. In persistently failing to have recognised his duties under the Standards, so as to address these matters at the time in the said 38-month period, the Panel determined that the Registrant has breached several of the fundamental tenets of the profession as follows:

Standard 1.4: You must make sure that you have consent from service users or other appropriate authority before you provide care, treatment or other services.
Standard 10.1: You must keep full, clear, and accurate records for everyone you care for, treat, or provide other services to.
Standard 10.2: You must complete all records promptly and as soon as possible after providing care, treatment or other services.

Standard of Proficiency 10.1: be able to keep accurate, comprehensive and comprehensible records in accordance with applicable legislation, protocols and guidelines.
Standard of Proficiency 10.2: recognise the need to manage records and all other information in accordance with applicable legislation, protocols and guidelines.
Standard of Proficiency 12.1: be able to engage in evidence-based practice, evaluate practice systematically and participate in audit procedures.
Standard of Proficiency 12.2: be able to gather information, including qualitative and quantitative data, that helps to evaluate the responses of service users to their care.
Standard of Proficiency 13.1: understand and be able to apply the theoretical concepts underpinning Occupational Therapy, specifically the occupational nature of human beings and how they function in everyday activities.
Standard of Proficiency 13.5: understand the need to identify and assess occupational, physical, psychological, cultural and environmental needs and problems of service users, their families and carers.
Standard of Proficiency 14.3: be able to undertake and record a thorough, sensitive and detailed assessment, using appropriate techniques and equipment.

82. In the Panel’s judgement, the Registrant’s conduct had the potential of putting at risk the health, safety and welfare of the vulnerable children, including those subject to an Educational and Health Care Plan, under his care and was extremely serious. In the Panel’s judgement, the Registrant’s overall conduct may have created an inability for the School to operate under its statutory principles for the benefit of the vulnerable children. The Panel considered that a failure to maintain accurate and appropriately detailed records may have prevented an appropriate handover and thus potentially impact on the delivery of the care and therapies to those vulnerable children. In the Panel’s view, this was reckless conduct on the Registrant’s part, in that he knew or should have known that he was failing in these respects and ignored those failings over a period of 38 months to the detriment of the vulnerable children under his care.

83. In recklessly failing to alert his employers, be that the School or the Borough, to these fundamental and wide ranging failings that took place over a long period of time, the Panel determined that this case, taken in the round, cannot be a lack of competence based on any reasonable ignorance of his failings and/or a lack of employer support, for example, but, rather, that it falls squarely into one of misconduct only.

84. Thus, for these reasons, the Panel concluded that the facts found proved, taken in the round, amount to misconduct.

Impairment:

Email of JS, SENCO and Senior Teacher at the School:

85. The Panel considered the Registrant’s application on 17 May 2023 to admit the email dated 29 January 2019 from JS the SENCO and Senior Teacher at the School to the Registrant to clarify the Registrant’s position in relation to his leaving date and the postponed meeting at the end of his employment. Mr Eason stated that the Registrant had sent the email to his representatives on 6 March 2023. The Panel also took into account the HCPC’s opposition to that email. Ms Jones stated that there had been no chance for the HCPC to absorb it and act on it, whether to obtain a witness statement and/or the attendance of a witness to deal with its contents and no HCPC witness had been asked about it.

86. The Panel considered that the subject matter of the email had been adequately dealt within the evidence, in particular, in the Registrant’s account of the timeline in this matter and thus, the email would not be required for that purpose. The Panel determined that the prejudice to the HCPC’s position, as outlined by Ms Jones, outweighed any detail from the email on this matter. For these reasons, the Panel determined not to admit the email into evidence.

Additional Certification from the Registrant:

87. During its in camera deliberations on Impairment, the Panel received the following documentation from the Registrant and approved by the HCPC:

1) A certificate showing the Registrant’s attendance for 3.5 hours at a seminar entitled: ‘Sensory Integration Seminar 1 Clarification of Concepts in Clinical Practice’ dated 18 November 2019;

2) Certificate showing the Registrant’s attendance for 3.5 hours at a seminar entitled: ‘Attention Deficit Hyperactivity Disorder (ADHD) and Sensory Processing Disorders (SPD) - Differential Diagnosis and Comorbidity dated 18 November 2019.

88. In reaching its decision on Impairment, the Panel paid regard to the HCPTS’ Practice Note on Impairment. The Panel accepted the Legal Assessor’s advice and used its own judgement, noting that there is no standard of proof at this stage.

89. The Panel also paid regard to the Registrant’s oral evidence, the two bundles comprising his reflective piece dated 6 April 2023, his present employer’s feedbacks dated 2020 and 2023, 10 individual references (various dates), 2 patient emails and 3 training courses, as well as documents dated 2003 to 2013, relating to the Registrant’s training in Joint Compression Sensory Integration Theory and Development and Brushing provided to the Panel by the Registrant. The Panel also took into account the oral evidence of Ms M, the Registrant’s supervisor and Deputy Head Teacher at one of his current school placements, and where he has worked since 2016/2017 for one day a week. The Panel also paid regard to the two additional certificates both dated 18 November 2019 confirming the Registrant’s attendance at two Sensory Integration Seminars.

90. The Panel determined that the Registrant’s failings identified by this case were remediable and, potentially, were remediable relatively easily.

91. The Panel concluded that the Registrant’s documents, including his references and testimonials pointed to a practitioner who is highly respected and well-liked by the children, their parents, teachers and other professionals who have been working alongside the Registrant since, and some before, these events.

92. The Panel fully understands that the Registrant is a highly regarded OT, who had an unblemished record before these events and since. The Panel concluded, and accepted, that the Registrant has expressed full remorse and regret in his oral evidence, that he had understood the impact of his actions on the children he had treated, their parents and the other professionals involved at the time. The Panel also appreciated that this is a relatively old case, the last matters under scrutiny dating back to 2019, four years ago, during which time the Registrant has been practicing without complaint.

93. This was supported by the very helpful and clear oral evidence of Ms M. The Panel considered that her oral testimony, given at extremely short notice, was very impressive and highly supportive and persuasive of the Registrant’s current abilities and expertise within a school setting. It was explained that Ms M has access to the Registrant’s digitally recorded notes and that she and the Registrant discuss children, at the beginning and end of the Registrant’s working day, with Ms M occasionally adding to the digital notes. Ms M referred to the Registrant’s notes as ‘good’ and ‘comprehensive’. She stated that she is able to follow and talk about what the Registrant had done and the advice he had given. Ms M gave evidence that, in her opinion, the Registrant was performing well in all aspects of his OT work, including, obtaining relevant consents, report writing, record keeping and his clinical reasoning. She told the Panel that she ‘Can’t speak highly enough of him, children want to work with him, parents speak to [the Registrant] if they have a problem, extremely valued member of our team’. The Panel accepted Ms M’s evidence and considered it to reflect her professional view as an Assistant Headteacher supervising the Registrant within a school setting.

94. The Panel therefore considered that gaining and recording consent issues and some record keeping concerns had been addressed by the Registrant as evidenced by his oral evidence, the oral testimony of Ms M and the written references, testimonials and training documents provided by the Registrant.

95. However, the Panel noted that the Registrant was previously employed by the School as a specialist in Sensory Integration and ASD. Witness DP refers, within her expert report, to Sensory Integration Therapy as a specialist provision. The Panel therefore considered the current quality of the Registrant’s report writing, his current record keeping and his current ability to demonstrate good clinical reasoning, within the context of the Registrant practising within this specialist area.

96. The Panel further noted that Registrant’s bundle included two references dated 30 and 31 October 2017 from a lead ASD teacher and class teacher at the School (LT and PB). Both references are entirely positive about the Registrant’s practice as an OT including his record keeping, treatment planning and written communication. In some areas the references refer to the Registrant performing ‘better than expected’. The Allegation, found proven, spans the period 25 November 2015 to 30 January 2019. The Registrant’s poor past practice, highlighted by this case, took place over a 38-month period and went undetected within a school setting, and alongside positive references from School staff dated 2017.

97. The Panel also took into account the evidence of the numerous courses that the Registrant has attended. The Panel then considered how the courses that the Registrant has attended apply to his current practice. The Panel noted that the Principal Occupational Therapist at Cognus, AB, provided a reference (undated but believed to be June 2020) which did not specifically address all the failings identified by this case. Therefore, in the Panel’s judgement, it had limited weight when the Panel assessed the Registrant's current fitness to practise. Furthermore, the Panel determined that the significance of this was further highlighted because AB was, and is, the only qualified OT who had been providing clinical supervision to the Registrant, whilst the Registrant practised in Sensory Integration from 2020 to date. In addition, the Panel noted there were no supervision records provided to the Panel from AB, despite that process having been in place for 3 years since the failings occurred. The Panel further noted that, although the Registrant stated that he has arranged private supervision, the Panel had no evidence of this before it. Furthermore, the Registrant confirmed that he held membership of the Sensory Integration Network, but the Panel had no useful information before in that respect to inform its decision on impairment. Additionally, the Registrant had attended two courses in November 2019 to update his knowledge and skills in Sensory Integration practice. This was welcomed by the Panel. However, the Registrant has not evidenced how he has implemented the learning obtained.

98. The Panel concluded that the case was based upon the Registrant’s role within the School, which included or should have included, the following:

⦁ conducting appropriate assessments
⦁ planning treatment and setting appropriate goals
⦁ using outcome measures to evaluate treatment
⦁ report writing 

The Panel recognised that this comprised his OT role in the School as an Advanced Sensory Integration practitioner.

99. The Panel, having viewed the character references, did not consider that any of them provided the depth of verification of fundamental aspects of OT practice that are required to demonstrate full remediation and ongoing current practice to the required standard. Therefore, in the Panel’s judgement, within the context of the Registrant practising within this specialist area, the Panel did not consider that it had been provided with the necessary degree of assurance about the quality of the Registrant’s current report writing, full and accurate records in respect of his treatment sessions and his current ability to demonstrate good clinical reasoning.

100. The Panel considered that this type of evidence could be provided, with authority and persuasion, by a qualified OT with appropriate experience of Sensory Integration Therapy, having assessed the Registrant’s current work, accompanied by (an) anonymised assessment(s) performed by the Registrant to demonstrate this. This/these assessment(s) could take place in the three schools in which he currently practices. As this vital aspect of his current practice is missing, the Panel considered that the Registrant’s remediation is not sufficiently complete at this time.

101. Therefore, in the Panel’s judgement, this was an omission that has led it to the inevitable conclusion that the Registrant has yet to satisfy the Panel, and, therefore, his regulatory body and the profession, that he is a safe, effective and unimpaired practitioner. The Panel identified a growing level of insight on the Registrant’s part that has allowed him to commence his remediation to a significant degree, but he has not completed it. The Panel considered the Registrant’s understanding of the issues that led to the failings at the School fell short of him recognising the full impact of those failings on the wider profession and others involved, including the local authority. Additionally, as identified in this decision the absence of full insight has prevented the Registrant from demonstrating full remediation by way of the additional matters referred to.

102. The Panel noted that the Registrant is currently working at three different sites, which could be similar to the situation during the period in which the failings occurred. Therefore, the Panel concluded that the lack of evidence on behalf of the Registrant as to his current practice as outlined in this decision, leaves the risk of repetition open, with the commensurate risk of harm to the health, safety and well-being of patients/service users.

103. Without authoritative and experienced evidence from a qualified OT, with appropriate experience of Sensory Integration Therapy, that the Registrant is now performing to the required standards within his report writing, relevant record keeping in respect of his treatment sessions and clinical reasoning as outlined in the Allegation, the Panel determined that there remained a risk of repetition. The Panel was concerned that the Registrant might revert to the poor past practices highlighted by this case that had gone undetected over the 38-month period, especially if there were to be any personal and/or professional stressors involved in the future.

104. Thus, for these reasons, the Panel concluded that, if it were to declare the Registrant fit to practice now, there would remain a risk of harm to the health safety and well-being of the public, albeit restricted to his report writing, relevant record keeping in respect of his treatment sessions and clinical reasoning, within the Registrant’s current practice.

105. For the same reasons, the Panel considered that, if a member of the public was to be fully informed of this case and furnished with all the written and oral evidence, he/she would conclude that their confidence in the profession and in its regulatory body would be undermined if there was to be a declaration that the Registrant was no longer impaired.

106. Thus, for the reasons outlined, the Panel concluded that the Registrant’s fitness to practice is impaired on the grounds of public protection and in the wider public interest.

Sanction:

107. In reaching its decision on sanction, the Panel paid regard to the HCPC’s Sanctions Guidance and it accepted the Legal Assessor’s advice.

108. The Panel also had sight of the Registrant’s two original bundles comprising his reflective piece dated 6 April 2023, his present employer’s feedback, 10 individual references, 2 patient emails and 3 training courses, as well as documents dated 2003 to 2013, relating to the Registrant’s training in Joint Compression Sensory Integration Theory and Development and Brushing. The Panel also noted the Registrant’s additional two Certificates entitled ‘Sensory Integration Seminar 1 Clarification of Concepts in Clinical Practice’ dated 18 November 2019 and ‘Attention Deficit Hyperactivity Disorder (ADHD) and Sensory Processing Disorders (SPD) - Differential Diagnosis and Comorbidity dated 18 November 2019. He had attended both, each 3.5 hours long on 18 November 2019.

109. The Panel also took into account the previous oral evidence of the Registrant and that of Ms M, the Registrant’s supervisor and Assistant Head Teacher at one of his current school placements, and where he has worked since 2016 on one day a week.

110. The Panel took into consideration the submissions of Ms Jones and Mr Eason.

111. The Panel identified the following aggravating factors:

⦁ The wide-ranging nature of the misconduct;
⦁ The large number of vulnerable children, 17, involved in the misconduct;
⦁ The long period of time, 38 months, over which the misconduct took place;
⦁ The Registrant’s failure to effectively raise concerns that his workload was excessive during his period at the School;
⦁ The Registrant not seeking relevant and effective supervision during his time at the School;
⦁ The Registrant’s seniority as an OT and his experience in Sensory Integration.

112. The Panel then identified the following mitigating factors:

⦁ The full admissions he made in this process;
⦁ His engagement with the process;
⦁ His personal oral testimony;
⦁ The high quality of the character evidence he provided to the Panel;
⦁ The Registrant has remediated some of the failings identified by this case;
⦁ That the Registrant wishes to complete the process of his remediation;
⦁ That the Registrant wishes to continue advancing his career for benefit the service users;
⦁ That his oral and written references and testimonials demonstrate clearly that if the Registrant would be removed in any way from the profession, this would be a significant loss to the profession and to the wider community;
⦁ The Registrant’s apologies to the Panel in his oral evidence;
⦁ The Registrant’s clear demonstration in his oral evidence of his regret and remorse that was not centered on himself, but, rather, on the service users, especially the vulnerable children he had treated, and on other professionals working with him at the School;
⦁ The high regard of the Registrant held by his current employers;
⦁ That in 2019 the Registrant had undertaken some remediation on Sensory Integration.

113. The Panel first considered whether to take no action and determined that this outcome would not properly reflect the serious and wide-ranging nature of the misconduct that had taken place over a long period of time. In the Panel’s judgement, with the potential for repetition being a real risk as identified in the Panel’s Impairment decision, there remained a danger to the health, safety and well-being of the public if the Registrant’s practice remained unmonitored. In addition, the Panel considered that an informed member of the public would be concerned to learn that no action at all had been taken in such a serious case.

114. The Panel next considered whether to impose a Caution Order. The Panel determined that the misconduct was not isolated, limited, or relatively minor in nature. The Panel also considered that there was not a low risk of repetition, but, rather, a medium risk. The Panel also concluded that, although the Registrant has shown insight so as to commence remediation, both his insight and commensurate remediation are not yet complete.

115. The Panel had concerns that a Caution Order would not provide the necessary degree of monitoring for this Registrant to be able to demonstrate, within the Fitness to Practise process, that he could achieve the necessary and consistent level of improved practice. For this reason, the Panel considered that the health, safety and well-being of the public would remain at risk of harm should a Caution Order be imposed. The Panel also concluded that an informed member of the public would be concerned to learn that a Caution Order had been imposed in this case, which still required the Registrant to complete his remediation.

116. The Panel next considered imposing a Conditions of Practice Order. The Panel concluded that the Registrant has some insight so as to have commenced his remediation and that his practice is capable of being remedied, but that both were incomplete, as identified in the Panel’s decision on Impairment. The Panel also identified that this had not been an isolated matter. The Panel took into consideration that the Registrant’s failings had taken place reasonably constantly over the 38-month period, but the Panel balanced this against the more recent oral and written references and testimonials. These made it clear that the Registrant has started to remediate effectively, for example, with respect to the issues around consent and some aspects of his record keeping.

117. The Panel concluded that the mitigating factors in this case could be balanced fairly and proportionately against the aggravating factors in this case, so as to allow the Panel to consider the remediable sanction of a Conditions of Practice Order rather than any other sanction. It was clear to the Panel that the Registrant is a highly respected and well-liked OT and that he has a great deal to offer service users and his profession. In the Panel’s judgement, he should be given the opportunity to remediate fully in a case, where he has gone some way towards full remediation, but not all the way.

118. For these reasons, the Panel determined that a Conditions of Practice Order would provide the ideal vehicle for the Registrant to demonstrate safe and effective practice in respect of the matters yet to be remediated and identified in the Panel’s Impairment decision.

119. The Panel also concluded that a Conditions of Practice Order would ensure that the Registrant remained within the Fitness to Practice process, where his case will be reviewed by another panel, whilst also giving the Registrant and any employer the time and opportunity to show that he has fully remediated his practice, if he so choses and is able to.

120. The length of the Order should be for 12 months, to reflect the need for the Registrant and all his employers to have the time and resources to implement the conditions, activate them and show compliance with them. The Panel considered that if the Registrant was not given sufficient time to do this, the effect of this sanction would be diminished, and especially in fairness to the Registrant to enable him to show in the future his compliance and, potentially, his full remediation and, thus, no impairment.

121. The Panel determined that, for these reasons, the imposition of a Conditions of Practice Order for 12 months will protect the public and will uphold public confidence in the profession and in the regulatory process. The Panel also noted that the Registrant has the ability to seek an early review should he require it.

122. As required, the Panel considered whether going to the next Sanction of a Suspension Order would be appropriate and proportionate. The Panel was clear that the Registrant’s oral evidence and that of Ms M, his written documentation, including the references and testimonials, taken together, gave a picture of a highly regarded, well liked and respected OT practitioner. It was clear that this case fell squarely within those cases relating to keeping a valued practitioner within the profession, rather than outwith it. Thus, the Panel concluded that a Suspension Order at this time would be punitive, inappropriate and disproportionate.

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, Mr Sudheer Pozthoal Kuttan, must comply with the following conditions of practice:

1. A month before this order is reviewed you must:

A. satisfactorily complete a course, from an independent training provider, focusing on improving:

i. the standard of report writing;
ii. record keeping in relation to treatment sessions;
iii. assessment;
iv. treatment planning;
v. goal setting and clinical reasoning;
vi. use of outcome measures and evaluating treatment.

B. forward a copy of your proof of attendance to the HCPC.

C. provide a written statement of the learning outcomes from the two November 2019 Sensory Integration courses.

2. You must place yourself and remain under the supervision of an Occupational Therapist (supervisor) registered by the HCPC or other appropriate statutory regulator, who holds an accredited qualification in the clinical specialism (Sensory Integration and/or other) and supply details of your supervisor to the HCPC within 14 days of the Operative Date. You must attend upon that supervisor as required and follow their advice and recommendations.

3. You must keep your professional commitments under review and limit your professional practice to no more than a full-time equivalent post.

4. You must inform your supervisor as soon as reasonably practicable of any issues that may affect your ability to practice effectively and take appropriate action.

5. You must maintain a record of every case where you have undertaken work that demonstrates improvement in your practice in the following areas:

i. conducting assessments;
ii. treatment planning;
iii. goal setting;
iv. clinical reasoning and
v. evaluation

6. You must provide a copy of these records to the HCPC within a month before this Order is reviewed.

7. You must promptly inform the HCPC if you cease to be employed by your current employers or take up any other or further employment.

8. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employers.

9. 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).

10. You must work with supervisor to formulate a Personal Development Plan designed to address the deficiencies in the following areas of your practice:

i. the standard of report writing;
ii. record keeping in relation to treatment sessions;
iii. assessment;
iv. treatment planning;
v. goal setting and clinical reasoning;
vi. use of outcome measures and evaluating treatment.

11. You must meet with supervisor on a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.

12. You must allow your supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.

13. You must compile a Reflective Practice Piece dealing with:

i. the standard of report writing;
ii. record keeping in relation to treatment sessions;
iii. assessment;
iv. treatment planning;
v. goal setting and clinical reasoning;
vi. use of outcome measures and evaluating treatment;
vii. the wider impact of your misconduct identified in this case.

14. You must forward a copy of your Personal Development Plan and Reflective Practice Piece to the HCPC within a month before this Order is reviewed.

Decision on Interim Order:

1. The Panel noted the submissions of Ms Jones and Mr Eason. In reaching its decisions, the Panel has accepted the Legal Assessor’s advice and has paid regard to the HCPTS Practice Note on Interim Orders.

2. The Panel has made decisions on this case, culminating in the imposition of a Sanction to reflect both the seriousness of the misconduct found proved and the Registrant’s incomplete remediation. In the Panel’s judgement, there is reason to ensure that, during the period before any Appeal Notice expires or the period of the resolution of any Appeal is reached, the public should be protected and the wider public interest should be upheld to the same extent as in the period of the sanction.

3. Thus, for those reasons and as set out in the substantive decision, the Panel has concluded that an Interim Order to cover the period of Notice of any Appeal or the resolution of any Appeal, whichever is the longer period, is necessary for the protection of the public and is otherwise in the public interest.

4. The Panel considered that the Interim Order should match the Sanction, as it would be inconsistent and illogical to do otherwise. Hence, the Order that the Panel has determined to impose is that of an Interim Conditions of Practice Order and also substantiated the same reasons as in the substantive decision. The Panel also determined that the conditions in this Interim Conditions of Practice Order should be identical to the substantive sanction conditions, as this makes it fairer for the Registrant to comply with and easier for any employer to monitor.

5. The Panel concluded that an Interim Suspension Order would be confusing, inconsistent and disproportionate, and it would not reflect the matters determined upon and the reasons for its decisions given by the Panel.

6. The Panel concluded that the Interim Conditions of Practice Order shall be of 18 months’ duration to cover, should an Appeal be commenced, the period of the resolution of any Appeal. If no Appeal is brought, then this Interim Conditions of Practice Order will fall way after the period of Notice of an Appeal expires (28 days from today) and the substantive Sanction will then commence.

ORDER: An eighteen (18) month Interim Conditions of Practice Order, the conditions being identical to the substantive sanction.

History of Hearings for Mr Sudheer Pozthoal Kuttan