Mr Vimal Vinod

Preliminary Matters
Service
1. The Panel was shown an unredacted email sent to the Registrant’s registered email address on 24 July 2024. The email gave notice of the date and time of this hearing and that it was to be conducted virtually. The Panel also saw an unredacted email from Microsoft Outlook to the HCPTS of the same date confirming delivery of the notice of hearing to the Registrant’s email address.

2. The Panel was satisfied, based on the documentation, that the Registrant had been served with notice of this review hearing in accordance with the relevant Rules.
Proceeding in the absence of the Registrant

3. Ms Khorassani applied for the hearing to proceed in the Registrant’s absence. She submitted that the Registrant had not responded to the notice of the hearing on 24 July 2024 or to an email which she had sent him regarding the hearing on 30 July 2024. Mr Khorassani informed the Panel that the Hearings Officer had attempted to call the Registrant this morning but that the call had not gone through. Mr Khorassani referred the Panel to the case of GMC v Adeogba [2016] EWCA Civ 162 which held that there was “a burden on all professionals subject to a regulatory regime, to engage with the regulator”.

4. Ms Khorassani submitted that the Registrant’s lack of engagement since March 2022 suggested that he had voluntarily waived his right to attend. She further submitted that given the lack of engagement, there was no evidence to suggest that an adjournment would secure the Registrant’s attendance on a later date.

5. Ms Khorassani submitted that this was a mandatory review which must take place before the Suspension Order expires on 15 September 2024. She submitted that the disadvantage to the Registrant in the matter proceeding in his absence was outweighed by the public interest in the mandatory review proceeding when scheduled.

6. The Panel received and accepted legal advice. It took note of the various factors which it must consider set out in the HCPTS Practice Note “Proceeding in the Absence of the Registrant”.

7. The Panel noted that the Registrant had not attended the final hearing in this case and had not engaged with the HCPC since an email dated 28 March 2022 when he had informed the HCPC that he had returned to his home country and was not currently employed as an Occupational Therapist in the UK.

8. The Panel concluded that all reasonable steps had been taken to inform the Registrant of the hearing. In the absence of any engagement since March 2022 and no response to the Notice of Hearing, or to Ms Khorassani’s email of 30 July 2024, the Panel decided that the Registrant had voluntarily absented himself, thereby waiving his right to attend. It did not consider that an adjournment would secure his attendance. The Panel took the view that it was in the public interest to proceed with the mandatory review and to do so expeditiously.

Background
9. The Registrant is an Occupational Therapist registered with the HCPC. At the relevant time, he was a Band 5 Occupational Therapist at Hull University Teaching Hospitals NHS Foundation Trust (“the Trust”) where he was employed between 15 March 2021 and 5 October 2021. As a newly qualified Occupational Therapist, he started in post on a probationary period of six months.

10. When the Registrant first joined the Trust in March 2021, he was placed at Hull Royal Infirmary, a medical trauma-based unit with very complex discharge planning.

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

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

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

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

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

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

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

The Substantive Hearing
18. A panel of the Conduct and Competence Committee heard the case between 14 – 18 August 2023. The panel found all the particulars of the Allegation proved and was satisfied that it had seen a fair sample of the Registrant’s work. It noted that the Registrant had been a probationer during the whole period of his employment by the Trust, and that the examples of his work given in evidence had arisen in two different departments. The panel also noted that the Registrant had carried a low caseload of around two or three patients at any one time, which were cases that had been screened as appropriate patients to delegate to him. The Registrant had also been working under “long-arm” supervision of more experienced practitioners. The panel noted that this was the Registrant’s first employment post-qualification and considered that it would not be reasonable to expect a newly qualified practitioner to immediately start performing at the levels expected of a Band 5 Occupational Therapist.

19. The panel concluded that it was evident from each of the witnesses from whom it had heard that the Registrant was unable to apply his academic knowledge to practice so as to achieve the skills required of an Occupational Therapist in order to practise safely and effectively. The panel referred to evidence it had heard from JL and JH. JL had said that he had occasion to supervise the Registrant when he returned to the Orthopaedic Department for a week in September 2021, and the Registrant had regressed and not retained the skills he had previously developed when supervised by AV in the Orthopaedic Department. JH, who had supervised the Registrant in the last few weeks of his extended probation period, a time when he would be expected to be able to work autonomously, said that she would not allow him to work independently and had effectively placed restrictions on his practice, so that he was working within a focused and supported area.

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

21. The panel also decided that the Registrant had not consistently achieved the following HCPC “Standards of Proficiency for Occupational Therapists”:
“Registrant Occupational Therapists must:

1.2 – recognise the need to manage their own workload and resources effectively and be able to practise accordingly;
4.1 – be able to assess a professional situation, determine the nature and severity of the problem and call upon the required knowledge and experience to deal with the problem;
4.2 – be able to make reasoned decisions to initiate, continue, modify or cease treatment or the use of techniques or procedures, and record the decisions and reasoning appropriately;
4.3 – be able to initiate resolution of problems and be able to exercise personal initiative;
4.4 – recognise that they are personally responsible for and must be able to justify their decisions;
4.5 – be able to make receive appropriate referrals;

8.1 – be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, carers, colleagues and others;
8.4 – be able to select, move between and use appropriate forms of verbal and non-verbal communication with service users, carers and others;
8.9 – be able to listen to a service user’s occupational narrative and analyse the content in order to plan for the future;
14.2 – be able to change their practice as needed to take account of new developments or changing contexts.

22. The panel found that the Registrant’s fitness to practise was impaired on both the personal and the public component by reason of his lack of competence.

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

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

25. The Panel referred, by way of example, (i) to the Registrant’s inability to accurately retrieve and identify relevant clinical information from medical notes in respect of the non-weight-bearing patient, noting that if this was not picked up by another practitioner, it could have had significant implications for the patient’s mobility, (ii) the Registrant’s inability in respect of clinical reasoning which could have implications for the care and treatment provided to patient, (iii) the Registrant’s inconsistent and poor levels of performance in respect of moving and handling which could increase the risk of falls for patients, (iv) the Registrant’s poor levels of performance in respect of assessments and planning of treatment which could create a risk to patients of incorrect treatment or lack of appropriate care being provided. In all the circumstances, the panel judged the Registrant’s fitness to practise to be impaired on the personal component.

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

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

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

29. The panel concluded that to take no action or impose a Caution Order would not be an appropriate sanction given the risk of harm to patients posed by the Registrant’s lack of competence. It discounted a Conditions of Practice Order as the Registrant’s failure to engage with the process since March 2022 did not demonstrate that he would be committed to resolving his competency issues.

30. The panel concluded that the only appropriate and proportionate sanction was a Suspension Order for 12 months. It was satisfied that the period of 12 months would properly reflect the seriousness of the case, and also protect the public and satisfy the wider public interest considerations. The panel also considered that such a period would enable the Registrant to take the opportunity to engage with the HCPC, reflect on his practice, and demonstrate a commitment to the profession.

31. The panel considered that a reviewing panel might be assisted by:
a) the Registrant’s engagement in the process;
b) A demonstration of the Registrant’s commitment to the Occupational Therapy profession and how he may seek to resolve his lack of competence;
c) Evidence that the Registrant has reflected on his period of practice in the United Kingdom;
d) Evidence of any practical, in-person courses or training in the areas of concern; for example, in moving and handling.

Substantive Order Review
32. This Panel reviewed the HCPC bundle which totalled 35 pages and included documents relating to the service of notice of this hearing on the Registrant, and the original panel’s determination.

33. The Panel took account of the HCPTS’s Practice Notes “Review of Article 30 Sanction Orders” and “Fitness to Practise Impairment” and considered Ms Khorassani’s submissions. The Panel received and accepted legal advice.

Submissions
34. Ms Khorassani submitted that the Registrant’s fitness to practise remained impaired. Ms Khorassani referred to the case of Abrahaem v. GMC [2008] EWHC 183 (Admin) and reminded the Panel that there was a persuasive burden on the Registrant to show that his fitness to practise is no longer impaired on both the personal and public component. Ms Khorassani submitted that as there had been no engagement from the Registrant since the imposition of the Suspension Order, there was no evidence to suggest that he had discharged that persuasive burden.

35. Ms Khorassani submitted that there was no evidence of that the Registrant had gained insight into his lack of competence, or that he had taken any steps to remedy it. She also submitted that there was no evidence that the Registrant had taken steps to maintain or improve his professional knowledge and skills. Ms Khorassani submitted that there remained a risk of the Registrant repeating the concerns that led to the findings of lack of competence.

36. Ms Khorassani referred to the HCPC’s Standards of Conduct, Performance and Ethics and, in particular, Standards 6.1 and 6.2 (Manage Risk) and Standard 9.1 (Be honest and trustworthy) which state finding of lack of competence and that his fitness to practice remained impaired on both the personal and the public component. as follows:
6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.
6.2 You must not do anything, or allow someone else to do anything, which could put the health or safety of a service users, carer or colleague at unacceptable risk.
9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

37. Ms Khorassani also referred to Dame Janet Smith’s Fifth Shipman report and the factors relevant to the consideration of impairment which were subsequently approved in the of Cox J in CHRE v. NMC and Grant [2011] EWHC 927 (Admin), namely the risk of harm to patients; of bringing the profession into disrepute; of breaching fundamental tenets of the profession, and where a registrant’s integrity could not be relied upon.

38. Mr Khorassani submitted that it was appropriate and proportionate to extend the Suspension Order.

Panel’s Decision
39. The Panel noted that there was no new information before it which would indicate that the Registrant’s fitness to practise is no longer impaired on the personal component. The previous panel had made non-binding suggestions as to what might assist this Panel when reviewing the Suspension Order. The Panel noted that these had not been provided by the Registrant. The Registrant had not engaged with the HCPC during the course of the Suspension Order, or since 28 March 2022 when he emailed the HCPC to say that he was not working as an Occupational Therapist and had returned to his home country.

40. The Panel therefore concluded that there was no evidence that the Registrant had gained any insight into his competency shortcomings, and nor was there any evidence to suggest that the Registrant had taken any remedial steps or any steps to maintain and improve his professional knowledge and skills. In these circumstances, the Panel had no choice but to conclude that there remained a real risk to patients as a result of the Registrant’s lack of competence and that the risk of his repeating his shortcomings in the future was high.

41. In relation to the public component, the Panel noted that the original panel decided that in order to mark the seriousness of the lack of competence, a Suspension Order for a period of 12 months was required to maintain public confidence in the Occupational Therapy profession and in the HCPC as its regulator, and also to uphold and declare proper standards of conduct and behaviour in the profession.

42. The Panel was satisfied that a reasonable and well-informed member of the public would expect there to be a finding of impairment in the circumstances of this case, where the Registrant had: (i) failed to engage with the regulatory process (ii) failed to provide any evidence of insight or of steps taken to remedy his lack of competence, and (iii) where, as a result, patients remained at risk of harm. The Panel was therefore satisfied that the Registrant’s fitness to practise remained impaired on the public component.

43. The Panel considered if it could replace the Suspension Order with a Conditions of Practice Order. It concluded that as the Registrant had not engaged with the proceedings since March 2022, there was no evidence to suggest that he would comply with conditions on his practice. In addition, the Panel had no information as to his current whereabouts, work situation or whether he had kept his skills and knowledge up to date through, for example, undertaking online training. The Panel noted that when local conditions were imposed on the Registrant by the Trust, these had been unsuccessful in addressing the concerns surrounding the Registrant’s competency. The Panel therefore decided that it was unable to formulate conditions of practice that would address the concerns raised in this case in regard to the Registrant’s lack of competence.

44. The Panel concluded that the only appropriate and proportionate Order was to extend the Suspension Order for a period of 12 months from the date of which the current Order expires. The period of 12 months would provide the Registrant with a further opportunity to engage with the HCPC and take the necessary remedial steps. The Suspension Order will be reviewed before it expires and the Panel noted that there would be a time when if the Registrant did not start to engage and take steps to remedy his lack of competence, a future reviewing panel might decide to make an Order striking his name from the Register.

45. Although this Panel cannot bind a future reviewing panel, it suggests that the following might be of assistance:
a) the Registrant’s engagement in the process;
b) a demonstration of the Registrant’s commitment to the Occupational Therapy profession and how he may seek to resolve his lack of competence;
c) evidence that the Registrant has reflected on his period of practice in the United Kingdom;
d) evidence of any practical, in-person courses or training in the areas of concern; for example, in moving and handling.

ORDER: The Registrar is directed to suspend the registration of Mr Vimal Vinod for a further period of 12 months on the expiry of the existing Order.

The Order imposed today will apply from 15 September 2024. This Order will be reviewed again before its expiry on 15 September 2025.

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 Mr Vimal Vinod