Manish Kaushik

Preliminary Matters

1. Ms Sampson applied for the hearing to be heard in private when matters relating to the Applicant’s health and family life are heard to protect the private life of the Applicant and his family members. Ms Sampson submitted that it is likely that references to medical issues and the Applicant’s family circumstances will arise during exploration of the case.

2. Ms Sampson referred the Panel to its powers in Rule 10(1) of the Health Professions Council (Conduct and Competence) (Procedure) Rules 2003, which highlights the “open justice principle” and provides that whilst most proceedings should be held in public, the Panel has the discretion to exclude the press or the public from all or part of a hearing in appropriate cases, where it’s in the interests of justice to do so; or where it is done to protect the private life of the Applicant of any other relevant party.

3. Ms Sampson also referred to the HCPTS Practice Note on Conducting Hearings in Private (dated March 2017) which reflects the same principles as outlined in the Conduct and Competence Committee Procedure Rules, including the “open justice principle” and the discretion to conduct all or parts of a hearing in private, in appropriate cases.

4. Ms Sampson informed the Panel that the Substantive Review Hearing held on 20 October 2017 was heard partly in private for similar reasons to the ones outlined in her submissions today.

5. The Applicant supported the application.

6. The Panel heard and accepted the advice of the Legal Assessor.

7. The Panel was satisfied that based on the nature of the information before it, it was necessary to hold part of this hearing in private. The Panel was satisfied that matters relating to the Applicant’s health and family matters are private and in order to protect his interests, those parts of the hearing relating to his health and family should be heard in private.

Background

8. The Applicant was employed as an Occupational Therapist by Kent County Council (“the Council”) from 1 May 2006 until October 2011. He was registered as an Occupational Therapist with the HCPC.

9. During that employment, concerns were raised by the Council about the Applicant’s competence. The Council started formal capability procedures on three occasions, the last of which started in July 2011.

10. On 27 September 2011, the Applicant was suspended from his employment whilst an investigation was carried out into his work by the Council. The Applicant resigned from his employment on 3 October 2011 before the disciplinary process was completed.

11. The matter was referred to the HCPC which considered that the Applicant had a case to answer. The case proceeded to a final hearing which took place between 16 - 19 April 2013. The Applicant was present and represented.

12. The Allegation found proved at the final hearing was as follows:
‘During the course of your practise as an Occupational Therapist with the Kent County Council, between 2007 and September 2011, you:

1. Were unable to work independently, in that you required excessive support from your colleagues.

2. Were unable to manage your workload adequately, in particular that you:

a. Did not provide timely treatment to service users;
b. Had difficulty making autonomous decisions on cases;
c. On some occasions, spent an excessive amount of time with service users;
d. Demonstrated a lack of knowledge and understanding regarding necessary actions and the need to act urgently in some cases.

3. Did not keep accurate records, in that:

a. You did not sign Subjective Objective Analysis Plan (SOAP) notes; b. Risk assessments were not signed or dated;
c. Several home visit reports conducted were not filed in client files;
d. Notes did not include sufficient information to allow other members of staff to understand what action was required;
e. Treatment plans were not dated or signed;
f. Nine home visit reports were identified after 05 November 2007 as not being stored in the client’s case files;
g. Information was stored in the wrong client’s files;
h. In relation to Service User AP, functional assessments were incomplete in that:
i. Observed scores were not recorded in any section of the standard functional assessment form (STA); and
ii. The assessment was not signed or dated.

4. [NOT PROVED]

5. Following a performance / capability meeting that was held on 17 March 2011, it was identified that there were twenty two outstanding files that needed to be closed which you had not actioned.

6.[NOT PROVED]

7. Did not undertake clinical reviews of:

a. Treatment goals; and
b. Treatment plans

8. Did not work adequately with your colleagues, in that you did not provide the Occupational Therapy Assistants enough verbal or written information to allow them to do their jobs competently.

9. [NOT PROVED]

10. The matters set out in paragraphs 1 – 9 amount to lack of competence.

11.By reason of this lack of competence, your fitness to practise is impaired.’

13. In summary, the final hearing panel sitting determined that the matters found proved constituted a lack of competence and found impairment on the basis that, at that time, the Applicant was ‘not able to operate safely as an occupational therapist without close supervision and constant support and monitoring.’ The panel imposed a 12-month Suspension Order.

14. Four mandatory substantive order reviews took place on 25 April 2014, 07 April 2015, 20 April 2016, and 20 October 2017. The Applicant was present and represented at all the reviews.

15. At the first two reviews, the Suspension Order was confirmed and extended for a further period of 12 months. At the third review, a Conditions of Practice Order was imposed for a period of 18 months. The panel hearing the third review, ‘was particularly impressed by the efforts and progress made by the [Applicant] whilst his practice has been suspended. The Panel agrees with his self-assessment that, notwithstanding the progress made, there is still some way to go and that he is not yet ready to return to unrestricted practice.’

16. At the fourth review the panel ‘was not satisfied that the [Applicant] has remedied the specific failings identified by the substantive Panel…He had also not demonstrated adequate reflective learning or relevant training to the lack of competence found proved.’ That panel therefore decided that a Striking Off Order ‘was necessary and proportionate on the basis of the [Applicant’s] persistent inability, since 2013 to demonstrate sufficient insight into his failings, or to remediate them.’

17. On or around March 2024, the Applicant contacted the HCPC with an application to rejoin the register as a Podiatrist.

18. It was decided by the HCPC that, given the history of this case, the Applicant’s application to rejoin the register, even in a different professional capacity, should be treated as an application for restoration. The HCPC stated that this matter would have to be put before a panel to assess whether the Applicant is a fit and proper person to practise as a Podiatrist, having regard to all the circumstances that led to the Striking Off Order being imposed.

19. On 30 April 2024, the Applicant’s Case Manager, wrote to the Applicant advising him about the restoration process and about the type of supporting evidence that it would be helpful for him to provide.

20. On the same date, the HCPC Registration’s Team Leader, confirmed that the HCPC had received confirmation, through its verification process that the Applicant had passed a BSc (Hons) in Podiatry.

21. On 27 May 2024, the Applicant submitted several documents which form the basis for his restoration application.

22. The restoration hearing Panel is made up of four members, which includes, the Chair, a lay member, a registered Occupational Therapist, and a registered Podiatrist.

Submissions, Evidence and Legal Advice

23. Ms Sampson opened the hearing by setting out the background above.

24. In advance of the hearing, the Applicant had provided multiple documents to support his application for restoration to the HCPC Register. These documents included a reflective statement and seventeen appendices. The reflective statement outlined the basis for the Applicant’s restoration application. Other documents provided included:

• A testimonial from someone who employed the Applicant between 2018-2022 to provide one to one support to their son.

• An offer of employment as a Band 5 Community Podiatrist, from Oxleas NHS Foundation Trust, dated 31 January 2024.

• A second offer of employment as a Band 5 Podiatrist, from Croydon Health Services, dated 05 February 2024.

• A certificate from the University of East London, dated 06 February 2024, evidencing that the Applicant achieved a First Class, BSc in Podiatry.

• Evidence of continuing professional development.

• Assessments of podiatry student placements undertaken by the Applicant.

• Several testimonials.

25. The Applicant gave lengthy evidence under affirmation and was cross-examined by Ms Sampson.

26. In oral evidence, the Applicant described his reflections on his past failings and why he was confident that they would not be repeated. He offered the Panel his assurance of what had changed during the past six years and how he had developed both personally and professionally.

27. He provided examples of strategies he now used to support him such as use of the electronic diary, and contemporaneous note taking.

28. He told the Panel about his integrity in being transparent with prospective employers about his restoration application and more importantly about the Striking Off Order made in 2017.

29. The Applicant told the Panel about his work with adult learning disability clients and his 1:1 personal assistant role with a child with special educational needs and disabilities. He told the Panel about his transferable skills developed within these roles. This included the use of excellent communication and clear and accurate note keeping, and the importance of these skills in providing safe and effective care for the service users.

30. The Applicant gave evidence about his motivations and desire to study and work in the field of Podiatry. He referred the Panel to his degree certificate and the positive placement feedback he had received during his course.

31. The Applicant set out his reflections on what had happened before and the strategies he now had in place to support him in safe practising. He described the importance of a patient centred approach and said that he was remorseful for his past failings. He told the Panel about the impact he thought his failings had not only on the patients he treated but also his colleagues and the wider public confidence in the profession.

32. The Applicant told the Panel about his job offers with the NHS to work as a Podiatrist, subject to restoration to the Register. Although, due to the length of time that it has taken for the hearing to be held, one of these had since been withdrawn. The Applicant described how he thought the NHS would be a beneficial environment to work in, not only to support vulnerable patients, but also as it provides a structured and supportive work environment.

33. Following the Applicant’s evidence, Ms Sampson made submissions on behalf of the HCPC.

34. Ms Sampson submitted that the HCPC’s position is neutral on whether the Applicant should be restored to the Register. Ms Sampson asked the Panel to have careful regard to the HCPC’s overarching objective and to ask itself whether public safety would be put at risk; or public confidence in the profession and in the regulator undermined, were the Applicant to be restored to the Register.

35. Ms Sampson referred to the HCPTS Practice Note on Impairment (dated November 2023) and the factors that the Panel should consider.

36. Ms Sampson acknowledged the comprehensive documentary evidence provided by the Applicant in support of his restoration application, and the extensive oral evidence given by the Applicant and tested by cross-examination. Ms Sampson submitted that the Panel may reasonably conclude that the way in which the Applicant gave his evidence was open and candid, and that he had demonstrated reflections on the concerns and the steps taken to address them.

37. Ms Sampson acknowledged that the Applicant had engaged throughout the previous proceedings, and that he had described how, since he was struck off, he has continued to work in a caring profession as a support worker for adults with learning disabilities, and having discovered an interest in podiatry has retrained, in the hopes that he can now embark on a second career as a healthcare professional.

38. Ms Sampson submitted that it was a matter for the Panel to consider whether it is satisfied, based on the documentary evidence before it and the Applicant’s oral evidence, that he has sufficiently reflected upon and demonstrated a proper understanding of how his inability ‘to operate safely as an occupational therapist without close supervision and constant support and monitoring’ impacted upon his work, his employer and the general public’s perception of his profession.

39. Ms Sampson reminded the Panel of the Applicant’s submissions, in which he explained to the Panel why he would like to be restored to the Register to take up a career as a Podiatrist. He stated that he had not gone into training as a Podiatrist light-heartedly. He wanted to use his transferable skills, and he wanted to find something that he was passionate about.

40. Following Ms Sampson’s submissions, the Panel afforded the Applicant an opportunity to make closing submissions.

41. The Applicant referred the Panel to the evidence he had provided both documentary and oral and how these showed the journey he had taken since 2017. He said it showed the significant changes both personally and professionally that he had made and how he had learned from his mistakes. He told the Panel that he has been able to rectify what went wrong and has the tools in place to ensure it will not happen again.

42. The Panel heard and accepted the advice of the Legal Assessor which is largely detailed in the ‘Panel’s approach’ set out below. In addition, in relation to insight, the Legal Assessor referred the Panel to the case of PSA v HCPC v Doree [2017] EWCA Civ 319.

Decision

The Panel’s approach

43. The Panel had regard to the HCPTS practice note ‘Restoration to the Register’ (updated June 2022) and it accepted the advice of the Legal Assessor, which it followed in the decision set out below.

44. The Panel reminded itself that this is an application under Article 33(5) of the Health Professions Order which provides that:

(5) The Committee shall not grant an application for restoration unless it is satisfied, on such evidence as it may require, that the applicant not only satisfies the requirements of article 9(2)(a) and (b) but, having regard in particular to the circumstances which led to the making of the order under article 29, 30 or 38, is also a fit and proper person to practise the relevant profession.

45. The Panel bore in mind that the burden of proving that the Applicant is a fit and proper person to be restored to the Register is on the Applicant and that the applicable standard of proof is the civil one, namely on the balance of probabilities.

46. It reminded itself that it is not sufficient for the Applicant to establish that he meets the requisite standard of proficiency and the other general requirements for registration. The Applicant must satisfy the Panel that he has developed the required insight, remorse, and remediation and that he no longer poses any risk, as initially identified by the final hearing panel, and latterly by the fourth reviewing panel which decided to remove the Applicant from the HCPC Register.

47. In determining the application, the Panel considered the following:

a. the matters which led to the Applicant’s striking off and the reasons given by the previous panel;
b. whether the Applicant accepts and has insight into those matters;
c. whether the Applicant has resolved the matters, has the willingness and ability to do so, or whether they are capable of being resolved by the Applicant;
d. what other remedial or rehabilitative steps the Applicant has taken;
e. the period of time since the Applicant was removed from the Register;
f. the Applicant’s employment history since he was removed from the Register;
g. what steps the Applicant has taken to keep his professional knowledge and skills up-to-date;
h. taking all of the aforementioned factors into account, whether the Applicant would be able to practise safely as a Podiatrist in the future; and
i. whether, in the context of the concerns that led to the previous removal order, public confidence in the profession would be undermined if the Applicant were restored to the register.

48. The Panel had particular regard to the guidance given to panels by the High Court in GMC v Chandra [2018] EWCA Civ 1898 to ‘step back’ and ask itself if restoration would promote the statutory overarching objective of the HCPC. Further, to the guidance as stated in Bolton v Law Society [1994] WLR 512 that the reputation of the profession is more important that the fortunes of any individual member.

Decision

49. The Panel was satisfied that it could consider the Applicant’s application in accordance with Article 33 (2) as it is over five years since the Applicant was struck off the Register.

50. The Panel first asked itself whether the Applicant had an approved qualification such as to satisfy the Education and Training Committee (“ETC”) requirements in accordance with Article 9(2).

51. The Panel noted that since his strike off as an Occupational Therapist, the Applicant has retrained as a Podiatrist. He has achieved a BSc (Hons) First Class in Podiatry from the University of East London. The Applicant provided confirmation of this achievement to the Panel.

52. In relation to whether the ETC requirements are met, the Panel relied on an email dated 3 July 2024, from the HCPC Registration Advisor. In part, the email states that:
‘In relation to their UK application (AA874618), the individual has provided details of an approved programme which would enable registration as a Chiropodist / podiatrist. I can confirm that we have third party confirmation from the Education provider that they completed this course via our passlist verification process. The application meets the general requirements for registration on this basis.’

53. The Panel also took into account a further email from the Registration Advisor, dated 4 July 2024, in which he confirmed that the required verification steps for proof of identity / address have been met.

54. The Panel was provided with a copy of the university ‘passlist’ showing the details that the Applicant had received notification of his qualification on 6 April 2024.

55. Having regard to all the above evidence, the Panel concluded that the Applicant had satisfied the ETC requirements for approved qualification.

56. The Panel then considered whether the Applicant had satisfied it that he was now a fit and proper person to be restored to the Register.

57. The Panel reminded itself of the lack of competence (in the field of Occupational Therapy) that had resulted in the Applicant being struck off the Register and the reasons given by the previous panels.

58. The Panel took into account the extensive and comprehensive documentation provided by the Applicant in advance of this hearing to support his application for restoration. His documentary evidence was supplemented by his detailed oral evidence given to the Panel under affirmation and which was subjected to cross-examination by Ms Sampson. The Panel found the Applicant’s oral evidence to be open and candid, and when tested in cross-examination he responded openly and honestly, often pausing to reflect, and then articulating his response with reference to specific documentary evidence to support his responses.

59. The Panel was satisfied that the Applicant has accepted and has insight to the matters that led to his Strike Off Order. The Panel found that he had reflected on his shortcomings, and he provided detailed explanations of the strategies he now uses, (and would use in the future), to ensure that he is an effective and safe practitioner. In accepting the Applicant’s evidence about the use of future strategies, its resulting impact on the Applicant. He explained the framework would assist him with issues like timekeeping and note taking more effectively.

60. In relation to the previous failings, the Panel considered that they fell into four broad categories, independent working, timeliness, accurate record keeping, and communication. The Panel concluded that the degree course undertaken by the Applicant over the last four years, which involved three clinical placements, had allowed the Applicant an opportunity to develop his skills, knowledge, and experience in the areas he had previously struggled with. He has also undertaken extra training, shadowing, and has been actively involved with the Royal College of Podiatry (“RCP”), self-funding his attendance at the training they offer, as well as networking with colleagues at RCP regular branch meetings.

61. Whilst the Panel acknowledged that the profession of Podiatry was different from Occupational Therapy, it considered that many of the key skills required by each profession are the same. The Panel had careful regard to the feedback provided by the placement educators, and to the high marks recorded across the Applicant’s degree programme, as well as the numerous worked examples provided by the Applicant in his oral evidence. The Panel found that he had demonstrated that he had reflected on the concerns that had arisen and had addressed them through learning, placements, supervision and continuous professional development in relation to his training as a Podiatrist. The Panel was satisfied, on balance, that the Applicant had provided satisfactory evidence that he has resolved the matters relating to independent working, timeliness, accurate record keeping, and communication.

62. The Panel was impressed by the Applicant’s development of what he described as “assertiveness” skills. The Panel found that he was particularly insightful about his ability to recognise that he was new to podiatry and therefore would be clear about his scope of practice and conscious of his developing level of experience. He explained how he would use his assertiveness skills, which he feels were lacking previously, to ask for help and support from those around him, whether they be a manager, mentor, or peer. He said if he encountered difficulties and needed support he would “put the brakes on” and ask for it. He also told the Panel how he would work autonomously using Evidence Based Practice and the NICE Guidelines as a framework for clinical practice.

63. The Panel considered that a good level of insight was also evidenced by the Applicant’s reflections on the impact his failings had on patients, colleagues and the profession. He described how he had been unprofessional at the Kent County Council in failing patients, and how he had since developed his understanding of professional ethics and professional standards, taking a patient centred approach.

64. The Panel further considered that strong insight was shown by the Applicant in his description of the environment he wishes to work in should he be restored to the Register. He recognised the sorts of support and level of supervision likely to be available to him if he worked for the NHS or in a large podiatry practice. His assertions that this is the sort of environment he would like to work in were supported by the two job offers, which he had received from NHS hospitals, to work as a Podiatrist (subject to his restoration). The Panel was encouraged by the Applicant’s approach in recognising his past failings and ensuring that he gives himself the best opportunity to work within supportive environments with beneficial frameworks already in place.

65. Overall, the Panel considered that the Applicant has demonstrated that he has learned from his past mistakes and the Panel found that they are unlikely to be repeated.

66. Having reached those conclusions, the Panel asked itself whether, notwithstanding the nature of the original finding of lack of competence, restoring the Applicant to the Register would:
a. Protect, promote and maintain the health, safety and well-being of the public,
b. Promote and maintain public confidence in physiotherapists, and
c. Promote and maintain proper professional standards.

67. Having regard to all the matters set out above, the Panel was satisfied that restoration would achieve these objectives by returning a resilient, competent, and committed practitioner to a position where he could help patients requiring podiatry support. The Panel considered that the Applicant has demonstrated over a significant period his determination to overcome challenges. He has shown strength and resilience to retrain as a Podiatrist enabling him to continue to provide help to people who need it, something which he is passionate about. He has evidenced his ability to practise safely in the future, with a patient centred approach, and with a host of coping mechanisms as well as strategies in place to support his professional competence.

68. The Panel was satisfied that this decision would show that the Applicant was returned to the HCPC Register only after he had done all that could be expected of him to resolve the concerns of the previous panels.

69. The Panel was satisfied that the Applicant is a fit and proper person and that he is capable of safe and effective practice under the part of the Register concerned.

ORDER

RESTORED

The Panel grants the application for restoration to the Register.
The Registrar is directed to restore the name of Manish Kaushik to the Podiatry Part of the Register, but restoration is only to take effect once the Applicant has:

(a) provided the Registrar with any information and declarations required for admission to the Register;
(b) satisfied the Registrar that, in relation to the Applicant, there is or will be in force appropriate cover under an indemnity arrangement;
(c) paid the prescribed restoration fee.

No notes available

History of Hearings for Manish Kaushik