Vijayakumaran Kuttampoil

The panel at the Substantive Hearing found the following:
Facts proved: 1(a), 1(b), 2(a), 2(b), 3, 5 (c), 6
Facts not proved: None
Grounds: Misconduct

The Substantive Hearing Panel found the Registrant’s fitness to practise to be impaired and a Suspension Order for a period of 12 months was imposed as a sanction. The Order was reviewed and confirmed on 25 November 2022 (an early review). The Order was reviewed again on 06 April 2023 whereby a further Suspension Order was imposed for a period of 06 months.

Preliminary Matters

Application for parts of the hearing to be heard in private

1. Miss Welsh, appearing on behalf of the HCPC, submitted that the parts of hearing relating to the Registrant’s health and private life should be conducted in private, under Rule 10(1)(a) of the Health Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (hereafter ‘the Rules’) but the remainder of the proceedings should be heard in public.
2. Mr Galvin, appearing on behalf of the Registrant, agreed to the application that parts of the hearing should be conducted in private.

Panel Approach

3. The Panel accepted the Legal Assessor’s advice, which had drawn the Panel’s attention to Rule 10(1)(a) the HCPTS Practice Note on ‘Conducting Hearings in Private’.

4. The Panel determined that given the nature of the Registrant’s submissions before the previous panels and having regard to the material before it regarding the Registrant’s private life and his health, the Panel considered that there was a need for requisite parts of the evidence, pertaining to the Registrant’s health and private life, to be heard in private, pursuant to Rule 10(1)(a) of the 2003 Rules. In making its decision, the Panel determined that it would be feasible to move between public and private session.

Background
5. The Registrant began working as a Locum Psychologist at Woodland View, part of the Priory Group, on 24 September 2018.

6. On 28 December 2018, it came to light that the Registrant had not been recording notes of his patient sessions on the Priory’s electronic system CareNotes since he began working at Woodland View. The Registrant had instead been keeping his own handwritten session notes. Colleague Z reviewed the handwritten records and noted that many of these were inadequate.

7. The Registrant had also been keeping his handwritten notes in a locked cabinet that only he had access to, meaning they could not be easily accessed by other clinicians.

8. Colleague Z instructed the Registrant to type up his handwritten notes onto CareNotes as soon as possible. When Colleague Z checked the Registrant’s entries to CareNotes on 21 and 22 January 2019 he realised that, with the majority of the entries, the content was inconsistent with the corresponding handwritten note. Colleague Z also found that some CareNotes entries did not have a corresponding handwritten note, and vice versa. Colleague Z subsequently discussed this with the Registrant.

9. The Registrant finished working at Woodland View on 24 January 2019.

10. At the Substantive Hearing the Panel found all of the matters alleged proven. That panel also determined that the matters found proven constituted serious misconduct and it made a finding of misconduct.

11. At the impairment stage, the Substantive Hearing Panel concluded that the Registrant’s lack of insight meant that the conduct shown by the Registrant in the past was likely to be repeated in the future in respect of dishonesty (record-keeping having been addressed). He had considered his own position before that of patients and colleagues, placed patients at unwarranted risk of harm, breached fundamental tenets of the profession and brought the profession into disrepute. The Substantive Hearing Panel had therefore determined that the Registrant’s fitness to practise was currently impaired on the personal component.

12. The Substantive Hearing Panel had also considered that the public interest demanded a finding of current impairment. The Registrant was operating as a psychologist in a role in which accurate notes were required. He did not consider learning to access and use an electronic system of patient records a priority notwithstanding that he was working in a medium - high security unit with vulnerable individuals and did not appear to take personal responsibility for ensuring he was able to do his job as required. On any view that is a serious matter which would cause concern to the public.

13. As noted above, that Panel found that the proportionate and appropriate sanction in such circumstances was a Suspension Order for a period of twelve months, all other sanctions being insufficient to guard against the possibility of repetition.

14. The Substantive Hearing Panel identified three elements that the Registrant may helpfully address before a review. These were:
• Evidence of how his insight has meaningfully developed further via reflection about the standards he should operate under and why it is not acceptable to prioritise his own position over patients and colleagues.
• Stress management strategies that he will employ so that such conduct is not repeated and given his contention that this added to the environment in which his dishonest conduct occurred.
• Evidence that he is keeping up to date with technological changes such as electronically recording material.

Early review on 25 November 2022:

15. The Registrant requested an early review of the Substantive Hearing Panel’s decision and on 25 November 2022 a reviewing panel determined that the Registrant had not discharged the burden upon him to show that his practise was no longer impaired and recorded that:

‘The Panel has considered carefully what has happened since the original decision was reached and was not of the view that the Registrant had satisfied the persuasive burden to demonstrate that he has fully acknowledged the deficiencies which led to the original finding or that he has addressed that impairment sufficiently through insight. In reaching this conclusion the Panel referred to the Registrant’s reflective statements in which he states ‘It would not be right of me to say to you that I accept that my actions were overtly dishonest, but I am coming to understand why my actions could have been viewed as dishonest, and I would like the opportunity to reflect on this further if the panel would allow me to retain my registration’ and ‘Turning to my dishonesty, I can only apologise and beg of the panel, to give me an opportunity to reflect further on this.’. The Registrant is in effect asking the Panel to allow him further time to reflect on and to address the issues raised. The Panel considers that further time is required in order for the Registrant to develop sufficient insight into his misconduct as found at the substantive hearing.

The Panel has noted the efforts that the Registrant has taken to develop and implement a stress management strategy and has taken into account his own reflection that his “…unfailing optimism is coming back”. The Panel wish to give the Registrant credit for this but considered that this was an ongoing process which was, as yet, incomplete.

The Panel took into consideration the action taken by the Registrant to address the record keeping concerns found by the original panel. This Panel noted that he has undertaken a one-hour online course in Digital Technology in Healthcare. The Panel considers that there is insufficient evidence that the Registrant has fully addressed his shortcomings in keeping up to date with technological changes, such as electronically recording material.

Having considered all of the information provided, the Panel finds that there has not been a significant and material change in circumstances since the original finding was made. The Panel determines that the Registrant’s fitness to practice remains impaired taking into account both the public component and the personal component. The concerns raised by the original panel have not been addressed sufficiently to allow this Panel to conclude that the Registrant’s fitness to practise is no longer impaired’.

16. That reviewing Panel concluded that a period of suspension remained the proportionate and appropriate sanction in all the circumstances and it confirmed the existing Order.

Reviewing panel – 06 April 2023:
17. The reviewing panel on 06 April 2023, determined that the Registrant had again failed to discharge the persuasive burden on him and stated the following:

‘…27. The Registrant’s statement within his reflective piece of writing stated that he ‘wholeheartedly’ accepted the decision of the Substantive Hearing Panel. However, further statements within that document had led to the Panel undertaking further exploration of that issue. From those answers to the Panel’s questions, it was clear that the Registrant’s acceptance was limited and qualified. The Panel has
identified three ways in which the Registrant has failed to provide
evidence of his insight into his former dishonesty and misconduct.
Firstly, he was still attributing blame to others. Secondly, there remained no recognition of his culpability in those two sets of dishonest events.
Thirdly, he was now producing further and enhanced reasons or
excuses for his actions. These are the same issues that were identified by the Substantive Hearing Panel.

28. The Panel has therefore concluded that the Registrant has not satisfied the persuasive burden on him. He has failed to demonstrate that he has fully acknowledged the deficiencies which led to the original finding or that he has addressed his impairment sufficiently through insight.

29. The Panel has determined that the concerns raised by the original panel have not been addressed sufficiently to allow this Panel to conclude that the Registrant’s fitness to practise is no longer impaired on the personal component and therefore some form of restriction is required.

30. In relation to the public component, the Panel is of the view that
members of the public would rightly be concerned that a member of the profession, who has been twice before his regulator, and who has been found guilty of incidents of falsification and misleading a panel, has not been able to demonstrate fully that he has gained insight into his former behaviour and completely remediated his failings. A restriction is therefore also required on the public component of the Panel’s decision.

31. The Panel then moved on to consider the appropriate and proportionate restriction to place on the Registrant’s registration. In doing so the Panel took into account the terms of the Sanctions Policy issued by the HCPTS and the advice of the Legal Assessor.

32. The Panel agreed that taking no further action, Mediation or a Caution Order would not be appropriate as they would not address service users concerns or be in the wider public interest. They would not prevent a repetition of the misconduct nor would they be a sufficient deterrent to others to act in the same way. Further they would not provide any mechanism to address the dishonest elements of the Registrant’s behaviour.

33. The Panel considered that conditions of practice could not be
formulated that would address the lack of insight shown by the
Registrant. Further, as stated in the Sanctions Policy, conditions would not be appropriate for addressing issues of dishonesty.

34. The Panel has therefore considered whether to continue the period of suspension. It has noted the steps which the Registrant has taken to date to improve his knowledge, his understanding and to address his wellbeing. However, his insight into his former misconduct is extremely limited. This being the case, in order to assess whether a further period of suspension was appropriate and proportionate the Panel went on to consider the next sanction up.

35. The Panel considered the wording at paragraph 131 of the Sanctions Policy which states:
• A strike off is likely to be appropriate where the nature and gravity
of the concerns are such that any lesser sanction would be
insufficient to the protect the public…..In particular where the
Registrant:
i. Lacks insight;
ii. [not applicable]
iii. Is unwilling to resolve matters.

36. Whilst this Panel considers that this guidance is applicable, in this
instance the Registrant’s failure to address his lack of insight is, in this Panel’s view, remediable and there is evidence that the Registrant is capable of resolving the matters. The Panel did consider the sanction of strike off but concluded, that at this stage, a strike off is not the proportionate sanction. The Registrant should be aware that such a step is a possibility in the future without robust evidence of contrition for, insight into, and understanding of, his former misconduct.

37. The Panel has concluded that a further period of suspension for six months would, in all the circumstances, be sufficient for the Registrant to demonstrate that he has remediated his former misconduct and persuade a panel that there will be no repetition of that misconduct in the future. The Panel notes that the continuation of the Suspension Order will have a punitive impact on the Registrant however it considers that it is in the wider public interest to impose such a sanction and that public interest outweighs that of the Registrant in this time.’

Registrant’s evidence

18. The Registrant gave oral evidence to the Panel. The evidence outlined below is a summary of the Registrant’s evidence to the Panel and is not a verbatim account of it.

19. During the course of his oral evidence the Registrant stated the following:
i. He is 65 years old;
ii. He was HCPC registered in 2009 and consequently had been practising for nearly 20 years;
iii. he got his Master’s degree in India;
iv. he had provided the Panel with a reflective statement and he accepted that he acted dishonestly;
v. he accepted his misconduct and apologised for his behaviour;
vi. he assured the Panel that he would not engage in the same behaviour at any time again in the future;
vii. whilst he was under pressure from work at the time, he accepts that his actions were his own;
viii. he has completed every single continuing professional development (‘CPD’) course that he could, and which was relevant, during the time that he has been suspended;

ix. redacted 
x. redacted

xi. in terms of his aspirations for work, he wishes to work as he did before. It is a passion in his life to be able to practise and he “takes great pride in this in his life and feels upset and disappointed to not be able to work”;
xii. if everything concludes today, his recruitment consultant has indicated that he would be able to find work moving forward;
xiii. he would readily accept any conditions of practise imposed by the HCPC;
xiv. he is an honest man and he accepts that he did not behave as he should have behaved at the time;

xv. redacted
xvi. redacted
xvii. redacted

20. In response to questions from Ms Welsh, the Registrant stated:
i. redacted
ii. redacted
iii. redacted
iv. redacted
v. redacted

vi. he has seen the previous comments about the need for further insight and for him to demonstrate an understanding of his misconduct. He now understands that his actions had a detrimental effect on service users and they could have misled service users’ treatment and his poor record keeping provided a lack information for his colleagues which in turn could also have caused adverse results for service users. He was “guilty” about the potential for this to have occurred;
vii. his actions could have had an adverse effect on the reputation of the hospital, his colleagues and the public’s trust in him and the wider profession could have been affected and this was the most serious thing that one could have. He stated that “mistrust is very important”;
viii. he is not currently working further to the suspension;
ix. he has undertaken extensive CPD courses in data management for the new recording systems which are due to change;
x. he has learnt from “the SBK course and it focussing on the NHS data technology, in future he will be proficient with this”;
xi. if he was struggling in future, he would seek help;
xii. he would not have any shyness in approaching colleagues for help and he is now aware of his failings, his “false pride” and loss of insight;
xiii. he is fully aware of his previous failings

xiv. redacted
xv. redacted

xvi. he has learnt “hard lessons” from this experience; and
xvii. in terms of the work for the future, he does not mind whether this is in private practice or in the NHS. He has no preference as to which, but he would also like to teach. Although his first choice would be to apply for roles as a clinical psychologist.

21. In response to the questions from the Panel, the Registrant stated:
i. in his previous roles, he had used a number of different recording systems, (including “BARRIS, RIO and another which had an Acronym for its name”);
ii. in the system he used at one employer, he had received thorough training for his induction and was now “very particular” to ensure that he had received sufficient training. He made it very clear that without an appropriate induction training programme, he would be “risking his job”;
iii. if he entered the workplace and the training was insufficient, he would say that he was not confident in the preferred system and he would not continue with the role;
iv. he knows the value of the training required now and that this relates to his competence as a practitioner;
v. IT is prevalent in the world of academia, but teaching is an option available to him, albeit not his preferred role although, some practical roles as a clinical psychologist, would still require him to teach trainees in their role;
vi. he is always willing to learn and when he was interviewed to come to the UK to practise, he was asked about his IT skills and he said he was willing to learn; and
vii. recently, he had been undertaking some “mentoring” and he had helped graduates, giving them some guidance on clinical psychology competences and the meaning of working within an NHS setting. He was not paid for this role as it was voluntary.

Submissions:

The submissions outlined below are a summary of the advocates submissions to the Panel and are not a verbatim account of each parties’ submissions.

22. Ms Welsh outlined the background of the case to the Panel. She also submitted that the Registrant’s fitness to practise remains impaired on both the personal and public components.

23. Ms Welsh further submitted:
i. the Registrant has provided submissions, testimonials, CPD certificates, power point presentations and a reflective piece to the Panel;
ii. the Panel ought to consider whether the Substantive Hearing Panel’s concerns have been sufficiently addressed and whether the Registrant remains impaired;
iii. in terms of the personal component, the Panel should have regard to the previous panel’s reasons and should have regard to the Registrant’s limited insight;
iv. the Panel should have regard to the risk of repetition and compare that to the Registrant’s evidence to it today;
v. the Panel should consider whether there has been a change or a risk of repetition;
vi. the Registrant has provided a reflective piece and outlined the difficulties he had in coming to terms with his misconduct;

vii. redacted
viii. redacted
ix. redacted

x. it is a matter for the Panel to determine as to whether the Registrant has accepted full responsibility for his previous conduct;

xi. redacted

xii. the Panel should carefully consider whether, in view of the aforementioned, whether there remains a risk of repetition;
xiii. in respect of the public component, if the Panel are not satisfied that there does not remain a risk of repetition, then a finding of impairment on the public component should also be made to uphold professional standards;
xiv. the Registrant’s misconduct was identified as being serious. The previous Panel determined that the Registrant had not remedied his failings; and
xv. a sanction of something less than a Conditions of Practice order would not be appropriate in this case. The HCPC proposal is that a Conditions of Practice Order with conditions of supervision, reporting and mentoring is appropriate in all of the circumstances.

Registrant’s representative:

24. Mr Galvin submitted the following on the Registrant’s behalf:
i. his written submissions outlined the facts of the case;
ii. the Registrant accepts his wrongdoing;
iii. the Registrant’s conduct can be “redeemed”;
iv. the Registrant has undertaken numerous courses and provided the Panel with the testimonials;
v. the Registrant gave impressive oral evidence to the Panel and answered all questions asked of him;
vi. the Registrant has demonstrated insight and had used the phrase ‘false pride’ and he has done everything he can in his power to ensure that he can return to work;
vii. he has learned hard lessons;
viii. the Panel will consider the testimonials before it;
ix. the Registrant has shown as much insight as it is possible to show;
x. he has given open and frank oral evidence;
xi. there is nothing else that he can do;
xii. he would be an asset to the health service if permitted to return to work; and
xiii. if conditions of practice were considered appropriate by the Panel, then his proposed conditions are set out within his written submissions.

Panel approach
25. The Panel took into account the documents furnished to it by the HCPC and the Registrant. Is also had regard to the evidence before it and the parties’ submissions.

26. The Panel considered the relevant Practice Note issued by the HCPTS, ‘Finding that Fitness to Practise is ‘Impaired’’, together with the HCPC’s Standards of Conduct, Performance and Ethics and the HCPC’s Standards.

27. The Panel accepted the advice of the Legal Assessor.

Decision
28. In making its decision, the Panel had regard to both the personal and public elements of impairment.

29. The Panel also had regard to the previous panel’s determinations. However, it conducted a comprehensive review of all the material and evidence before it today. In doing so, the Panel noted, in particular, that the previous reviewing panel on 06 April 2023, had stated the following:
‘…27. The Registrant’s statement within his reflective piece of writing stated that he ‘wholeheartedly’ accepted the decision of the Substantive Hearing Panel. However, further statements within that document had led to the Panel undertaking further exploration of that issue. From those answers to the Panel’s questions, it was clear that the Registrant’s acceptance was limited and qualified. The Panel has identified three ways in which the Registrant has failed to provide evidence of his insight into his former dishonesty and misconduct.
Firstly, he was still attributing blame to others. Secondly, there remained no recognition of his culpability in those two sets of dishonest events. Thirdly, he was now producing further and enhanced reasons or excuses for his actions. These are the same issues that were identified by the Substantive Hearing Panel.

30. In considering the above, the Panel had regard to the Registrant’s oral evidence to it today. The Panel concluded that the Registrant had been candid, credible and genuine when giving his oral evidence to the Panel and the Panel found the Registrant’s responses to questions to be informative and insightful.

31. In this Panel’s view, having regard to the material before it and the Registrant’s oral evidence to it, the Panel considered that the Registrant had demonstrated complete insight into his previous dishonesty and misconduct. The Panel also determined that the Registrant had demonstrated full insight into the potential impact that his actions had on service users, colleagues, the wider profession, his employers and the public’s trust. Redacted.

32. Further, in forming the view that the Registrant had demonstrated full insight, the Panel also had regard to the Registrant’s reflective piece, in which he stated:
“I now unequivocally accept that my behaviour was dishonest in the preparing and keeping of medical/psychology notes. I am an honest man and I admit I have found this difficult to come to terms with. I apologise unreservedly for my behaviour and can assure the Panel there will be no repetition ever after. I also accept that whatever my feeling about my working environment there were ways to resolve this without behaving the way I did. I am in my best constantly endeavouring to uphold my professional stature in the upmost by strictly adhering to ethics, guidelines and Codes of Practice always’.

33. The Panel also noted that the Registrant’s acceptance of his earlier conduct and behaviour and the steps taken to address that conduct, had been attested to by Professor Hacker Hughes.

34. Having regard to the aforementioned, whilst the Panel noted that the Registrant had been on a journey in respect of his insight, the Panel was now satisfied that the Registrant demonstrated a full and detailed understanding regarding the inappropriateness of his previous conduct and dishonesty.

35. In considering the Registrant’s remorse, the Panel noted that the Registrant has apologised for his actions, both in writing and when giving his oral evidence to the Panel, and in the Panel’s view, importantly, the Registrant now acknowledged and understood how his actions and behaviour fell below the professional standards expected of him. The Panel also noted that the Registrant’s remorse was again attested to by Professor Hacker Hughes in his character reference dated 21 September 2023.

36. When considering whether the Registrant had remedied his misconduct, the Panel noted that the previous panels had accepted that the Registrant had remedied his record keeping failings. This Panel was in agreement with the earlier Panel’s assessments. In forming this view, the Panel noted the extensive CPD undertaken by the Registrant, in addition to the Registrant having worked in an environment where he was required to keep appropriate notes, prior to the imposition of the Suspension Order and after his failings arose.

37. Further, the Panel also considered that the Registrant had done all he could to remediate his dishonest conduct. (Redaction). In addition, he also explained in detail to the Panel, the steps that he would take should he find that he was not familiar with the IT systems which he was required to use in any new role. Namely, that he now insists on appropriate training, he would ask colleagues for help and if he was still not comfortable with the IT requirements, he would not take any role offered to him because he now understood that it “affected his competence” as a professional. In the Panel’s view, the Registrant had demonstrated an understanding of how and why his dishonest conduct had arisen and had explained what steps he would take to ensure it did not recur.

38. Having determined that the Registrant had demonstrated full insight, remorse and remediation to it, the Panel considered that there was a low risk of the Registrant repeating his previous misconduct. The Panel was satisfied and confident that despite it taking the Registrant some time to accept his dishonest conduct, the Registrant had now done so and he had explained that he would seek appropriate support and effectively manage any similar situation should it arise in the future. The Panel was also convinced by the Registrant’s explanation of his understanding of IT systems that might be used going forward and was satisfied that he had learned from his previous mistakes.

39. Taking all of the factors into account the Panel was of the view that the Registrant is no longer impaired on the personal component.

40. The Panel next considered whether the Registrant was impaired on the public component and determined that he was not. In the Panel’s view, a fully informed member of the public would be satisfied that the Registrant’s misconduct had been marked and that the regulatory process had ensured that a practitioner who was previously not fit to practise had been prevented from doing so and in this regard, the public’s trust and confidence in the profession upheld. Further, the Panel also considered that there was a public interest in a capable practitioner, returning to practice for the good of the wider public.

41. Having concluded that the Registrant is not currently impaired, the Panel order that the current Suspension Order be revoked with immediate effect.

ORDER: The Registrar is directed to revoke the Suspension Order with immediate effect.

History of Hearings for Vijayakumaran Kuttampoil