Mr Mohammed M Rahman

Preliminary Matters
Service

1. The Registrant was served with notice of the hearing on 16 May 2024 by email sent to his registered email address. The Panel noted there was a delivery receipt for that email, which clearly outlined and explained the review process to the Registrant.

2. The Panel accepted the advice of the Legal Assessor and was satisfied that the Notice of Hearing had been served in accordance with Rule 3 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules).

Proceeding in the absence of the Registrant

3. The Panel then went on to consider whether to proceed in the absence of the Registrant, pursuant to Rule 11 of the Rules.

4. The Panel considered the submissions of Ms Khorassani on behalf of the HCPC. She indicated that there had been no correspondence from the Registrant subsequent to the substantive order being made; and no response to the notice of hearing or a follow up email sent to him on 4 June 2024. In those circumstances she submitted it indicated that the Registrant had voluntarily absented himself. She reminded the Panel of the public interest in matters being dealt with expeditiously. Ms Khorassani invited the Panel to consider that there was no evidence that an adjournment would secure the Registrant’s attendance; and that in those circumstances the balance fell in favour of the matter proceeding today particularly given this is a mandatory review of an existing order.

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

6. In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPC Practice Note ‘Proceeding in the Absence of the Registrant’ dated June 2022 and the submissions made by Ms Khorassani. The Panel were also informed that the Registrant had no longer engaged representation from the Chartered Society of Physiotherapists.

7. The Panel noted the lack of engagement by the Registrant since the Conditions of Practice Order was made. It took into account that the Registrant has not contacted the HCPC since service of Notice of Hearing, including in response to a more recent email on 4 June 2024. The Panel considered that in those circumstances, the Registrant has voluntarily absented himself; and there was no evidence to support that, if the matter were to be adjourned, the Registrant would attend.

8. The Panel was mindful that there is a clear disadvantage to the Registrant in proceeding in his absence. However, this is a mandatory review of a Conditions of Practice Order made in circumstances where public protection and the public interest were engaged. On balance, the public interest in the matter proceeding outweighed any disadvantage to the Registrant. The Panel therefore determined to proceed in his absence.

Background

9. The Registrant is a Physiotherapist who was employed at the relevant time as a Band 5 Physiotherapist by Northern Lincolnshire and Goole NHS Trust (the Trust) between 21 September 2016 and 12 March 2017.

10. The role was a rotational post which required the Registrant to rotate between different specialities, usually on a four-monthly basis. During the first rotation on Orthopaedics he was line-managed by AR, the Team Lead for Orthopaedics. His Clinical Supervisor was HI, who at the time was a Band 6 Physiotherapist working within the Orthopaedics ward. He was also assisted by SW and AW, who were both Band 4 Physiotherapist Technical Instructors.

11. During the Registrant’s first rotation on the Orthopaedics ward, various issues were identified by his colleagues and senior members of the Physiotherapy Team in respect of the Registrant’s ability to undertake physiotherapy work with patients. As a result, the Registrant required regular supervision whilst attending to patients and began to work through the Trust’s Performance Management Process to manage his competency.

12. The Registrant did not complete a full four-month rotation owing to rotational timings within the Trust. On or around 2 December 2016, after approximately nine weeks in Orthopaedics, the Registrant rotated to the Acute Stroke Unit. He was supervised by KG, Operational Manager and Team Lead for the Acute Stroke Unit, and Colleague 1, who was a Band 6 Physiotherapist. Further issues were identified during the course of that second rotation.

13. The Registrant decided to resign from his role prior to Stage 2 of the Performance Management Process commencing. The Registrant was referred to the HCPC by the Trust due to the concerns regarding his competency throughout his employment at the Trust.

14. Following the HCPC’s investigation the alleged deficiencies, as reflected in the Allegation made, were identified.

15. The Registrant provided a detailed statement in which he admitted some of the underlying facts in the matters alleged, but disputed the majority of the allegations and that his fitness to practise was impaired by reason of lack of competence.

16. The Panel heard an application of no case to answer on behalf of the Registrant. Having considered the application, the Panel dismissed particulars 1(b)(i), 1(b)(ii), 4(a)(ii), 5(d), 7(a)(i), 7(a)(ii) and 8.

Decision on facts of the original panel at the substantive hearing

17. Mr Olphert, Counsel for the HCPC at the substantive hearing, reminded the Panel that the HCPC has the burden of proving its case on the balance of probabilities and asserted that the particulars remaining were made out as drafted. He told the Panel that the admissions made by the Registrant can properly be taken into account but are not formally binding on the Panel. He also noted that there are particulars where the Registrant makes no submissions or raises no specific case at all, but that he is not required to and the Panel will need to determine the strength of the evidence. In relation to recollection and credibility, Mr Olphert recognised the passage of time and the impact of it on the reliability and credibility of witnesses, which the Panel would need to assess. He submitted that the witnesses were in the main honest, credible and reliable witnesses. All of the HCPC witnesses were sympathetic to the Registrant, giving balanced evidence that they attempted to help the Registrant with his development. The Registrant himself in evidence admitted that he had been well supported whilst at the Trust. There is no evidence to suggest that the Registrant was targeted or unfairly persecuted in any way. Issues with recollection would, in Mr Olphert’s submission, require the Panel to scrutinise the totality of the evidence and, if necessary, determine the weight to attach to documents and testimony. The witness statements are detailed and supported by detailed contemporaneous notes. None of these witnesses are said to have fabricated their evidence, and all gave clear evidence about the process for writing these notes – including their purpose, their level of detail, and how they were then used in the process of preparing their witness statements. Mr Olphert invited the Panel to properly place weight on those documents, given that the witnesses were questioned about them. He submitted they were reliable records of what occurred in late 2016.

18. Mr Olphert then addressed the Registrant’s recollection of events. He submitted that the Registrant “stepped away from his account” in respect of Patient 31, and “stepped back from his admission” in respect of that patient. The Registrant’s recollection of events had faded. Time had plainly had an impact on all of those giving evidence in this case.

19. In respect of the Registrant’s credibility however, Mr Olphert submitted that there were inconsistencies in his account of events which “do not add up”. Mr Olphert reminded the Panel that the Registrant, when asked if he used the word ‘believe’ in his statement because he had poor recollection, stated that he now remembered. When questioned further, this was repeated. The Registrant also made generalised statements such as that he always read the operation notes thoroughly, but conceded that his own reflective documents highlighted an incident where he had not read them properly. In respect of Allegation 4(b) the Registrant said in his witness statement that the patient’s discharge dates had changed unexpectedly. However, when taken to the patient notes containing a clear endorsement from the Senior House Officer regarding discharge planning, the Registrant could not give a good account of events, save that he had been told by the nurse in charge that the date had changed. Mr Olphert commented that in the context of this admitted allegation, it was clear that there is an issue with the Registrant’s credibility and the reliability of his account as a whole.

20. Mr Olphert provided a table of submissions in respect of each particular and invited the Panel to find them all proved to the required standard.

21. The Panel then heard from Ms Price, Counsel for the Registrant at the substantive hearing, who reminded it that the burden of proof is with the HCPC and this cannot be reversed by suggesting that a registrant must “prove he has or has not done any particular thing”.

22. Ms Price also addressed the issue of witness credibility, submitting that the recollection of events by HI and Colleague 1 was poor. While this may be understandable given the time that had elapsed, and they are to be credited for being honest and candid about it, their evidence must be approached with great caution. Ms Price told the Panel that the Registrant was a credible witness who recognised when he was mistaken or could not recollect a patient. Where he could recall events, he was clear and certain in the evidence he gave, trying his hardest to assist the Panel. She urged the Panel to find him an honest and credible witness and prefer his evidence where the facts are disputed. Ms Price submitted the witnesses would have seen many patients in the intervening periods which could have impacted their recollection of events.

23. As with Mr Olphert, Ms Price also provided submissions in respect of each particular in a tabular format. The submissions of both advocates in respect of each particular to be determined are incorporated with the Panel’s consideration of each particular.

24. Having formed a view on the general issues pertinent to this matter when determining the half time application, and dismissing 7 particulars, the Panel then considered each of the remaining 24 allegations in turn, taking account of the documentary and oral evidence available to it, the submissions of both parties and the legal advice provided by the Legal Assessor. No further consideration was given to those 7 allegations the Panel rejected as lacking a prima facie case. In determining whether an allegation is “well founded” or “proved”, the Panel was required to decide whether the HCPC, which has the burden of persuasion in relation to the facts alleged, had discharged that burden on the balance of probability.

25. The Panel was conscious during its deliberations that:

a. The Registrant worked on an Orthopaedics ward in a rotational Band 5 post when first employed by the Trust in September 2016, where HI was his clinical supervisor;

b. Issues of capability were identified during this rotation therefore the Registrant was subject to extra regular supervision whilst attending to patients as part of the Trust’s Performance Management Process (initial informal stage);

c. The Registrant agreed that HI was a capable educator and that she supported him staying in the Orthopaedics ward when the rotation ended to continue his development but this was not permitted by the Trust due to the nature of the rotational post;

d. The Registrant moved to the Acute Stroke Unit after some 9 weeks with Orthopaedics, on or around 2 December 2016, where he was supervised by KG and Colleague 1;

e. On 6 December 2016 a “Performance Stage 1” meeting took place in relation to the Registrant’s progress towards attainment of the objectives set for him for the Orthopaedics ward, and to establish similar objectives for the Acute Stroke Unit.

f. Issues of capability were identified during the Acute Stroke Unit rotation also.

g. The Registrant resigned from his post prior to the Stage 1 Action Plan being reviewed and before Stage 2 off the performance management process commenced;

h. The Registrant was able to work for the Trust as a consequence of a visa which depended upon his employment.

26. As a consequence of the performance management process, the Registrant’s clinical supervisors were asked to maintain regular supervision of him. They told the Panel that this was done by writing their observations (both positive and negative) in a notebook (supervision diary), including observations from other colleagues. The entries were contemporaneous and reflected what happened during treatment, planning, assessments and handovers. Where issues were raised during treatment or assessment, they were usually addressed at that point which meant that the concerns would not impact patient care or be reflected in the clinical notes. Where they were picked up retrospectively (e.g. when clinical notes were presented for sign off) the Registrant was able to ensure that the issue was dealt with appropriately, and reflected in the notes as necessary (e.g. documenting consent that had been obtained). The Panel was satisfied that the supervision notes therefore performed a different function to the clinical notes for the patient. The majority of the supervision notes were written by HI. Some notes were written by other witnesses who also gave evidence, and some notes were taken in the presence of a witness giving evidence, but the note taker did not either provide a statement or give evidence to the Panel. The Panel therefore determined that the weight to be attached to the supervision notes would vary depending on these factors, but that the supervision notes should generally be accepted as the most contemporaneous record of events in the absence of a direct recollection or clinical record.

27. The Registrant also supplied undated hand written reflections, some of which he said were written during his time with the Trust, in response to issues raised with him. These documents did not contain sufficient detail for the Panel to align them to any of the patients within the particulars of the allegation, but appeared to confirm some of the issues set out within the supervision notes.

28. The Panel also gave consideration to terms which frequently appeared in the stems of the particulars. The submissions of the advocates did not address the interpretation of these phrases outright, and the Panel therefore determined that it should apply the normal meaning of the words to these phrases within the particulars:

a. Clinical theoretical knowledge – the academic knowledge obtained through education, which may or may not evolve with practical experience and subsequent training;

b. Develop exercise progression – a plan for exercises to evolve with the progress made by the individual patient to achieve the desired outcome;

c. Clinically justify – the ability to explain why a particular course of clinical action is appropriate in the circumstances of the individual patient;

d. Clinical understanding – the confluence of theoretical knowledge, practical experience and situational awareness;

e. Clinical reasoning – the ability to apply theoretical knowledge and practical experience appropriately to the individual circumstances of the patient being treated;

f. Discharge planning – the steps to be completed in advance of a patient being discharged from the care of the ward, which can include how needs will be met once the patient leaves the hospital;

g. Discharged – the patient has been discharged from the clinical care of the ward;

h. Clinical intervention – an action carried out to improve, maintain or assess the health of a patient in a clinical situation.

Witnesses

29. The original panel had the benefit of live evidence of six witnesses on behalf of the HCPC, as well as hearing from the Registrant. All of the witnesses affirmed and answered questions to the best of their ability in examination in chief, and or cross-examination, or in response to questions from the Panel.

Particulars found proved by original panel at the substantive hearing
Particular 1(a)(i) - PROVED

30. Patient 78 was an individual who had undergone a tibial osteotomy, as a result of which they were required to wear a hinged knee brace locked at 30 degrees of knee flexion according to clinical notes dated 22 November 2016. The treatment took place towards the end of the Registrant’s placement in the Orthopaedic rotation while he was subject to formal performance management. The Panel was not provided with all the clinical notes for patient 78 but was provided HI’s supervision notes. The Panel heard from both HI and the Registrant in relation to this particular.

31. Mr Olphert submitted that the supervision notes demonstrated that the Registrant didn’t fully know how a hinge knee brace worked and the Registrant could not account for HI’s supervision notes recording issues with his practice. He reminded the Panel that, in oral evidence, the Registrant told it that he remembered reading patient notes. Mr Olphert recognised that HI did not recall the specifics of Patient 78 but stood by her supervision notes and statement, which documented that the Registrant confirmed to her that active range of movement exercises of the knee were suitable for this patient in a locked knee brace when asked.

32. Ms Price reminded the Panel that no patient notes were available for Patient 78 and that HI had no independent memory of the incident. HI did however confirm that the Registrant’s recollection in his statement would be appropriate. Ms Price submitted that the Registrant understood the role of a locked knee brace (to block movement), had worked with patients with knee braces previously in identical scenarios and it would therefore be “very probably that he still was aware of this on 22 November 2016”. The Registrant was, in her submission, entirely credible and honest and did his best to remember events from seven years ago. There was no reason not to accept his evidence. She told the Panel that the evidence did not support the allegation, which should be found not proven.

33. The Panel carefully considered the transcript of HI’s evidence from August 2021, her statement, the supervision notes, the Registrant’s statement and his undated hand written reflections. It also carefully analysed the normal meaning of the entirety of the particular, which it considered required the Registrant to display to HI (his clinical supervisor), that, when he assessed Patient 78 on or around 22 November 2016, he had an adequate level of clinical theoretical knowledge and understanding of a locked knee brace.

34. HI’s statement said that the Registrant had been told to read operation notes before attending a patient as they would “provide clear instructions with regards to treating the patient”. In respect of Patient 78, HI did not believe the Registrant had read the operation notes and he therefore “did not know what to do with the brace” for Patient 78 (i.e. that it should be locked at 30 degrees). This caused HI to ask further questions on the role of the hinged knee brace, and she was not satisfied with his answers in that regard. She recorded her lack of satisfaction in her supervision notes the same day, 22 November 2016, in detail. She told the Panel she could not recall fully whether she was with the Registrant when he saw Patient 78 and that she was reliant upon her supervision notes and she accepted that she may have confused this occasion with another. In cross-examination however she confirmed that she had to check and alter the knee brace. The Panel also noted that, within the performance management paperwork, it was documented in respect of objective two, that “tibial osteotomy required intervention by Hollie” though there was no patient identifier to confirm which patient this comment related to.

35. The Panel noted that the reflection provided by the Registrant was entitled “ACL Reconstruction Rehab”. It did indeed reflect the use of a knee brace and the care required, but this was not the same as a tibial osteotomy – the only commonality was that the joint involved was the knee. Similarly, the Panel noted that Ms Price referred it to the clinical notes for Patient 64 which she said proved the Registrant knew about knee braces. The Panel noted that Patient 64 had an anterior cruciate ligament (ACL) reconstruction, with an open not locked knee brace thus different to the role a knee brace played in the treatment of a patient undergoing a tibial osteotomy. In the Registrant’s statement he referenced that he did demonstrate “the role of a locked knee brace to Patient 78 properly” but that “perhaps I did not explain this as well as I could have done to [HI].”

36. The Panel accepted that the Registrant was aware of hinged knee braces but was persuaded that it was more likely than not that he did not display to HI an adequate level of clinical theoretical knowledge when treating Patient 78 on 22 November 2016 (the date not being in dispute between the parties) of the role of a hinged knee brace in that treatment. Accordingly, this particular was proved on the balance of probability.

Particular 1(a)(ii) - PROVED

37. This particular arises from the same circumstances set out at particular 1(a)(i) therefore the context is adopted and not repeated. Mr Olphert submitted that it was not denied that the Registrant asked HI whether range of movement exercises were appropriate.

38. Ms Price reiterated her submissions that there were no patient notes for Patient 78 and HI had no independent memory of the incident. She added that there is no reference in the supervision notes to developing exercise progression and reminded the Panel that HI accepted that the exercise progression described by the Registrant in his witness statement as being given to the patient was adequate and appropriate. Ms Price submitted that there was no evidence to prove that the Registrant failed to “do this” and the supervision notes and HI’s evidence do not support this. She again stated that the patient notes were not before the Panel and the allegation should not be found proven.

39. The Panel was conscious that, as with particular 1(a)(i), neither advocate addressed it specifically in relation to the stem – that is, the display of adequate clinical theoretical knowledge when treating patient 78 on 22 November 2016. In his statement, the Registrant said “I clearly explained my exercise progression to Patient 78 i.e. static quadriceps strengthening, passive knee extension, co-contraction, hamstring curl, knee and ankle active range of motion exercises” and “I knew Patient 78’s knee brace was locked and that this meant Patient 78 could not do range of movement exercises but perhaps I did not explain this as well as I could have done to [HI]”. The Registrant also responded to questions from the Panel about the difference between a knee brace in recovery from an ACL reconstruction or a tibial osteotomy. He was unable to identify exercises contraindicated for one but acceptable for the other and appeared to suggest the two recovery processes would be similar. When pushed, he said that some treatment would need to be done differently but this would be dependent upon the instructions of the surgeon.

40. The Panel observed that the detail in the Registrant’s statement, while accepted by HI as potentially appropriate when read out to her by Ms Price, was merely a list of exercises, without specific range of motion angles or timeframes when these exercises might be safe to introduce. Furthermore, reasoning of these exercises was not reflected in the supervision notes. Given the extent of the concerns of HI in her supervision notes, the Panel considered it of note that no reference was made to any of these exercises other than the Registrant asking her “if AROM/AAROM suitable exercise after establishing brace is to be locked” and when asked to consider that question, answering it himself “It is not a suitable exercise due to NWB status”. It was unfortunate that the clinical patient notes had not been provided as they could have confirmed what Patient 78 was told.

41. The information provided by the Registrant in his statement did not in any event reflect the impact that a brace locked at 30 degrees would have on certain exercises (i.e. not able to do hamstring curls) or that knee active range of motion exercises would be risky for this recovery initially after tibial osteotomy surgery. The statement does not identify indicative timings for the introduction of the exercises, which would be required to demonstrate progression. When questioned by the Panel the Registrant indicated that hamstring curls could be introduced some 4 to 6 weeks post operation but that this would depend on the surgeon.

42. The Panel was conscious that it was not for the Registrant to prove he did provide exercise progression to Patient 78. However, having found at particular 1(a)(i) that the Registrant was unlikely to have displayed clinical theoretical knowledge in respect of a hinged knee brace to HI in relation to Patient 78, the Panel considered it more likely than not that while the Registrant may have provided a list of exercises to Patient 78, he did not display his clinical theoretical knowledge of exercise progression for Patient 78 to her either. Accordingly, this particular was proved on the balance of probability.

Particular 2(a) – PROVED

43. Patient 21 had a surgical repair of the right ACL and was treated by the Registrant in the Orthopaedic ward on or around 27 October 2016 midway through his rotation.

44. Mr Olphert submitted that HI gave evidence to confirm that she observed the Registrant’s treatment of Patient 21. She did not recall the patient communicating to the Registrant that he felt more comfortable downstairs but said that patients would be encouraged to be as functional as possible. The Registrant stated in evidence that he had had conversations with the patient and discussions with his colleagues about bringing the bed downstairs. Mr Olphert submitted that the Registrant was unclear on what was said to the patient at the time, but accepted that it would on balance have been better for the patient’s bed to remain upstairs. He could not clearly account for why the supervision notes recorded that he had advised for the bed to be taken downstairs.

45. Further, Mr Olphert said that there was “clear evidence that this course of action was advised by the Registrant, and that it was not required”. In his submission, this particular was made out.

46. Ms Price reminded the Panel that HI could not recall this patient when she gave evidence but conceded that the proposal could be appropriate if the patient was at risk of falling and worried about this. She submitted that there is insufficient evidence to show that moving the bed downstairs was not required or that the Registrant advised that this should happen. Ms Price also said it was clear from the Registrant’s evidence that “he plainly did have a good understanding of why this would be required. He raised this because of the history of falls, which would be appropriate clinical justification for the suggestion. As such, the HCPC has not proven this allegation”.

47. The Panel noted that HI made the supervision notes in respect of this incident, and started the same with two positive observations about the Registrant’s practice. Thereafter, she noted the Registrant “wanting patient to bring bed downstairs despite been [sic] independent & safe on the stairs”. She expanded upon the supervision notes in her witness statement, making it clear that she observed the Registrant’s interaction with Patient 21, completing the stair assessment, but that the interaction “finished with [the Registrant] giving inappropriate advice” which was not needed. Both HI’s statement and her supervision notes reflected she thought that the Registrant may have been applying recommendations he had seen with a previous patient and did not reference a history of falls.

48. The Registrant acknowledged in his statement that he discussed the option of the patient bringing the bed downstairs with colleagues but denied advising the patient to do this. In cross-examination the Registrant told the Panel that he discussed the option with the patient first and then with colleagues as they had more experience. He did not accept that in discussing it with the patient he gave any advice. He then said that he didn’t discuss it with the patient but suggested that the patient was more comfortable downstairs. The Registrant accepted that Physiotherapists wanted to keep people mobile and that if a patient could navigate stairs, the bed should stay upstairs. However, the Registrant then said this patient had had a fall so he was discussing whether this was appropriate as it can vary from patient to patient.

49. The Panel was satisfied that there had been a discussion between the Registrant and the Patient in relation to a bed being taken downstairs. It considered it more likely than not that the Registrant then spoke with colleagues about this due to their greater experience as he thought this could “potentially be more safe for him”. The Registrant also accepted that the patient was “independent on stairs”, which was consistent with HI’s contemporaneous note that the patient had successfully completed a stair assessment. HI’s statement told the Panel that she would not expect an ACL reconstruction patient to move their bed, and that the Registrant could not justify this on a clinical basis. She suggested the Registrant mentioned this course of action as he witnessed this advice being given to a patient who was unable to walk. She said that the Registrant incorrectly applied this to the patient. She concluded that the Registrant was unable to clinically reason between individual patients and identified the adverse consequences for the patient and his family in bringing the bed downstairs and the patient being debilitated by not being encouraged to use the stairs. The Panel considered it worthy of note that HI did not reference in either the supervision notes or her statement any suggestion that this patient had either had a fall (as suggested by the Registrant) or a history of falls (as put to her by Ms Price in cross-examination).

50. The Panel was persuaded it was more likely than not that the Registrant did not display adequate clinical understanding in advising a patient to move their bed downstairs. It was also satisfied that this was not required for Patient 21 given that they had successfully completed a stair assessment. As a result, the Panel found this particular proved on the balance of probability.
Particular 3(a) – PROVED

51. This particular relates to Patient 14, who had two procedures - a Long Head of Bicep repair and an arthroscopic subacromial decompression (ASAD) - while on the Orthopaedic ward, towards the start of the Registrant’s employment by the Trust.

52. Mr Olphert invited the Panel to find that this particular was proved on the balance of probability. He directed the Panel to the evidence of HI, who explained how she would expect the Registrant to clinically reason the exercises to utilise when there was no protocol to rehabilitate a long head of bicep repair.

53. HI referred to her handwritten contemporaneous supervision notes which stated the Registrant was “Unaware of term clinical reason, eg what exercises to avoid with Long Head of Biceps repair.”. She told the Panel “he was not able to tell me “We can’t overlift” or “We can’t lift with this operation, otherwise we will risk a re-tear.”. Mr Olphert also accepted that when a treatment plan for a patient in patient 14’s situation was put to HI, she accepted it would be appropriate. The HCPC accepted that her recollection of the specific incident had clearly diminished over time, but maintained it is sufficient to demonstrate a proper concern regarding the Registrant’s approach to this patient – that is that the Registrant “could not properly approach treatment for this programme because there was no set approach for him to follow and he could not reason the matter through independently”.

54. Mr Olphert submitted that it was clear from the evidence, and accepted by the Registrant, that HI was a very able educator, and witness AW stated that in effect, if anyone was unable to develop with HI’s teaching, that would be an issue. Despite this, the Registrant could not account for why HI had raised concerns about his approach in the [supervision] notes, stating that he had given a summary of the treatment program contained in his witness statement when asked in 2016. This, Mr Olphert submitted, simply does not bear scrutiny and the Panel was invited to find the allegation proved.

55. In reply. Ms Price submitted that the Registrant told it he did establish an action plan of treatment for Patient 14, which was accepted by HI as appropriate in the circumstances. She reminded the Panel that the full clinical notes have not been provided to the Registrant, and the supervision notes do not support the allegation given “It does not suggest that [the Registrant] could not develop an action plan for the patient.” She told the Panel that the supervision notes do not support the allegation, HI could not recall it and there is a complete paucity of evidence on the point and it could not be said that the allegation is more likely than not to have occurred, therefore the allegation should be found not proven.

56. The Panel carefully considered the wording of the allegation, which it considered turned on whether the Registrant demonstrated adequate clinical reasoning when establishing a treatment and or action plan for Patient 14. The Panel had not been addressed by the advocates in relation to the meaning of adequate clinical reasoning and again concluded that it related to whether the Registrant demonstrated he could establish a clinically justified treatment and or action plan. The Panel considered it irrelevant whether the Registrant had a plan he could clinically reason – he had to be able to demonstrate his clinical reasoning when asked.

57. The Panel was satisfied that the HCPC had discharged the burden of proof in relation to this particular – whilst the Registrant listed in his statement the steps he said he advised Patient 14 to take at the time, the allegation required him to demonstrate clinical reasoning for his action plan. The Panel could not identify that the Registrant demonstrated adequate clinical reasoning for a patient who had a Long Head of Bicep (LHB) repair. Accordingly, this particular is found proved.

Particular 3(b)(i) - PROVED

58. The Panel noted that the Registrant initially admitted this particular. Patient 31 had a dynamic hip screw (DHS) as well as a manipulation under anaesthetic of the radius.

59. Mr Olphert told the Panel that SW and HI gave evidence in respect of this patient, telling the Panel that it was part of a Physiotherapists role to help nursing staff understand how to safely mobilise patients and she tried to encourage the Registrant to engage with nursing staff. She said that the Registrant should have been able to update the nursing staff on transfers and mobilising having participated in such a session with her but did not do so. When put to him, the Registrant could not recall the incident any longer. Mr Olphert submitted that this particular was made out.

60. Ms Price told the Panel that the Registrant could not recall this patient and could therefore not admit or deny this allegation

61. The Panel was satisfied that these allegations were proved. HI was clear in her recollection of the events as set out in her statement, and this was supported by her contemporaneous supervision notes which reflected “on discussion with [the Registrant] : [unable] to summarise safe transfer technique for nursing staff to use”. SW also recalled this incident, stating that “the Registrant was unable to suggest a solution for the nursing staff despite our prompts”. The particular is found proved.

Particular 3(b)(ii) – PROVED

62. The circumstances of this allegation arise from the same facts as particular 3(b)(i) therefore the Panel adopts them as set out above and does not repeat them.

63. In respect of this particular, Mr Olphert invited HI to tell the Panel what she would expect from a Band 5 Physiotherapist in respect of future treatment plans, to which HI responded “What needed to be practiced on next and what goals we needed to be working towards. So, for example, sit to stand practice, mobilise to the end of a bed with assistance of two on the gutter frame, to complete a chair based exercise programme with minimal supervision, for example.” This was supported by the contemporaneous supervision notes taken by HI.

64. Ms Price reiterated that as the Registrant could not remember this patient, he could not either admit or deny the allegation.

65. The Panel was satisfied that this allegation was proved. HI was clear in her recollection of the events as set out in her statement, and this was supported by her contemporaneous supervision notes which reflected “unable to discuss action plan or future treatment sessions”. SW also recalled this incident, stating that “the Registrant was unable to suggest a solution for the nursing staff despite our prompts”. The particular is found proved on the balance of probability.

Particular 4(a)(i) – PROVED

66. Patient 67 had a DHS whilst in the Orthopaedic ward and was also engaged with social services, who needed to be made aware when the patient was fit to leave hospital and was therefore a priority patient. This patient was seen towards the end of the Registrant’s Orthopaedic rotation on or around 17 November 2016.

67. Mr Olphert submitted that the Panel had heard from HI that the Registrant was responsible for flagging the outstanding issues for the patient at handover and ensuring that they were completed as a priority, but he did neither. The Registrant’s evidence was that he had acted appropriately but acknowledged that he may have required some prompting to ensure that he acted properly. He denied that HI’s supervision note, which record ‘Prompts +++’ on four occasions, showed he required a significant amount of prompting. The Registrant’s witness statement identified that he had given a proper set of discharge goals and he denied they were raised retrospectively to validate his approach.

68. Ms Price pointed out that HI could not recall if she was present for this appointment and could not even recall if the Registrant was the lead clinician for this patient – her supervision notes must therefore be treated with great caution. It was not known if the supervision notes reflected HI’s opinion or that reported to her by someone else. She told the Panel the Registrant was candid that he could not recall this patient, and that this was unsurprising given the passage of time. He did however give evidence that demonstrates when and why a patient may be a priority for discharge, which evidences his wider understanding and makes it more likely than not that he was aware of the discharge plan and priority for this patient. She submitted that the allegation should be found not proven.

69. The Panel recalled that HI said “I believe this was a patient that [the Registrant] was taking a lead with, so therefore it would have been his responsibility to speak up in that handover and say “Okay, this is a priority patient that needs, for example, A, B, C completing in order to complete a safe discharge.” but he did not flag that the patient needed equipment and stick practice in the handover. Her supervision notes reflected the prompting required of the Registrant, which was elaborated upon in her statement and oral evidence. The Registrant could not recall this patient, but rather gave evidence of his current understanding of discharge planning, which did not assist the Panel in terms of determining the facts of this particular.

70. The Panel looked carefully at each part of the particular to determine whether the HCPC had proved on the balance of probability, that the Registrant was, on or around 17 November 2016 in relation to Patient 67, unaware of and unable to develop appropriate discharge goals or plans, and recognise that the service user was a priority. The Registrant could not recall the patient but HI elaborated in her statement on the information in her supervision notes, stating that social services had been notified that the patient was leaving hospital but was actually not ‘therapy fit’ because the Registrant had not completed treatment (stick practice) or arranged necessary equipment for the patient. She said “This was a basic, non-complex discharge and these were tasks which [the Registrant] should have been able to do as a Band 5 Physiotherapist.” She said that the Registrant required repeated prompting to issue equipment, discuss discharge with the patient and decide if a community physio referral was appropriate.

71. The Panel was satisfied that on 17 November 2016, in respect of Patient 67, the Registrant was unable to develop appropriate discharge plans for this priority patient. Accordingly, this particular was proved on the balance of probability.

Particular 4(b)(i) – PROVED

72. Patient 4 was treated by the Registrant a month into his Orthopaedic rotation when he was in informal performance management – the patient had undergone a cemented hemiarthroplasty. The treatment relevant to this particular was provided on or around 21 to 25 October 2016.

73. Mr Olphert reminded the Panel that the Registrant admitted this particular but then qualified the admission by saying the date of discharge changed, which explained “why he had not approached matters as he should have”. Mr Olphert said that SW told the Panel in cross-examination that the Registrant did not, at that point, understand the distinction between discharge planning and discharge. He submitted that “the reality was that the Registrant had misunderstood the recorded notes and information regarding discharge planning and concluded the patient was discharged”. He therefore invited the Panel to find the particular proved.

74. Ms Price reiterated the Registrants admission of the facts and made no other submission on this particular.

75. The Panel noted that although HI documented the concerns in relation to Patient 4 in her supervision notes, it was SW who engaged with the Registrant on this matter and told HI of the problems she perceived the Registrant was having with discharge planning for this patient. HI however stated in her statement that “…[the Registrant] had discharged [Patient 4] in advance of completing the intervention which he should not have done and had to be prompted to complete the standing exercises”.

76. The Panel did not identify any evidence which would undermine the Registrant’s admission of this particular, and was therefore satisfied this particular was proved on the balance of probability and as a result of the Registrant’s admission.

Particular 4(b)(ii) – PROVED

77. The context for this particular arises from the same circumstances as particular 4(b)(i) which are therefore adopted and not repeated. The advocates submissions similarly applied to both particulars and are therefore adopted and not repeated in respect of this particular.

78. The Panel recalled that SW told it that patients could deteriorate or progress on a daily basis which is why they should be seen even if they were to be discharged. The supervision notes reflected that the expected date of discharge of Patient 4 was 25 October 2016. The Registrant’s statement accepted that “I said that Patient 4 was independent and ready for discharge”.

79. The Panel was satisfied that this particular was made out on the balance of probability and by reason of the Registrant’s admission.

Particular 4(c) - PROVED

80. Patient 63 was seen by the Registrant towards the end of his Orthopaedic rotation having undergone a total hip replacement (THR).

81. Mr Olphert submitted that HI’s evidence on this allegation was clear in her statement and [supervision] notes, but that her oral evidence was “occluded by the passage of time”. He told the Panel the Registrant denied the allegation and was rather discussing discharge with HI, but could not account for this not being reflected in the [supervision] notes, other than due to a misunderstanding.

82. Ms Price reminded the Panel that HI could not recall the relevant handover meeting and pointed out that the supervision notes did not state that discharge was recommended by the Registrant when the patient was not ready. The Registrant had also told the Panel he did not mix up discharge planning and discharge. She concluded that the notes provided do not support the allegation and the evidence was insufficient to prove this allegation.

83. The Panel noted the Registrant’s statement said “It is possible that on this occasion I was discussing discharge / planning options with [HI] to gain from her experience, but she misunderstood that that [sic] I had assessed Patient 63 as ready for discharge. I did say to senior occupational therapist [AR] that our treatment was complete but not the management as we had yet to undertake a chair assessment”.

84. HI’s supervision notes reflected that the Registrant “stated in handover ready for d/c”. She conceded in her evidence that the Registrant could have been discussing discharge options with her but was confident she would have documented it if he had, saying “if I have documented that he stated this patient was ready for discharge I do not think I could have got that mixed up with a discussion regarding discharge.”

85. Given that the Registrant only suggested it was possible he was discussing discharge options with HI, but her contemporaneous supervision notes record he did state the patient was ready for discharge, the Panel is satisfied that it was more likely than not that the Registrant stated in handover on 17 November 2016 that the patient was ready for discharge when they were not, therefore not developing appropriate discharge plans. This particular is therefore proved on the balance of probability.

Particular 5(a)(i) and (ii) – PROVED

86. Patient 12 had a total hip replacement and was treated and or managed by the Registrant in the first few weeks of his Orthopaedic rotation, on or around 11 October 2016. By this point, concerns had been raised as to his competence which were over and above those expected of a new Band 5 physiotherapist.

87. Mr Olphert invited the Panel to find that the recorded notes in respect of this patient are very clear. The hand written supervision note set out that the Registrant had treated the patient as TKR [total knee replacement] not as a THR. This was confirmed by HI in her evidence. Mr Olphert reminded the Panel that the Registrant denied this allegation strenuously, stating that it would never happen. However, he could not give a clear explanation as to why the [supervision] notes so clearly recorded that he had not treated the patient properly. In his evidence, as in his statement, he provided the proper approach. Mr Olphert submitted that the Registrant’s explanation for this incident was “at odds with the clear evidence” and does not and cannot account for why HI, whose evidence both in the [supervision] notes and in her oral evidence was balanced and measured, would have stated this to be so. He reminded the Panel that, in response to broad panel questions, the Registrant suggested that those occasions where the [supervision] notes were inaccurate might accord with those times when SW had passed her observations to HI. Mr Olphert submitted that this was an attempt by the Registrant to retrospectively explain the concerns having moments earlier accepted that HI was a good teacher and that the positive [supervision] notes were accurate.

88. Ms Price said that in respect of (i), it is not clear what is meant in the supervision notes that the Registrant treated patient as a TKR not THR. She reminded the Panel there are no clinical notes for this patient and the allegation had not been corroborated by any other evidence – HI was unable to recall it. She submitted that the supervision notes are “entirely unexplained” and in the absence of any other evidence, the allegation had not been proved.

89. In respect of (ii), Ms Price submitted that the supervision notes provided by the Trust do not support the allegation and “There is simply a complete paucity of evidence on the point. The allegation should be found to be not proven”.

90. The Panel was conscious that, when new to a busy ward, it was possible to become confused as to which patient in each bed was receiving which treatment. It heard from HI how important it was to hear about the patient’s procedure at handover and then read the operation notes before seeing the patient. It did not doubt that the Registrant knew the difference between treatment for knee and hip replacement patients then or now, the issue to be determined was whether he treated this patient on this date for the wrong procedure for some reason and therefore did not also provide the relevant standing exercises. HI’s supervision notes did clearly record “Treated as TKR not THR” and “unaware of standing ex’s despite teaching & issuing to previous patient”. The supervision notes also reflected that the Registrant wanted the Patient to return to his seat before commencing exercises. HI was however unable to recall in her evidence why she thought that the Registrant had done this and was reliant on her supervision notes, which did not mention any other therapist. In cross examination HI told Ms Price that “there would be no reason why I would lie in these notes”.

91. The Registrant’s statement confirmed he “clearly explained the standing exercise i.e. hip flexion, extension, marching and heel raise to Patient 12” and that SW “incorrectly told [HI] that I had not given extension and heel raises to Patient 12” and explained the patient sat as he was tired but performed the standing exercises “after some time.” The Panel was conscious that the Registrant said he prepared his statement once he received the HCPC bundle of documents but did not give a timeframe for this. It could therefore have been some four to five years after the events took place. The Registrant’s statement referred to SW’s involvement and additional detail in respect of which exercises are done, but this did not exclude the possibility that prior to this, there had been confusion with this patient. The supervision notes made by HI were written on the day, detailed and contained not only the issues HI identified but also what she taught him (i.e. the S.O.A.P. (understood by the Panel as Subjective, Objective, Assessment, Plan) note format). The Panel also observed that the supervision notes did not reflect any involvement from SW with this patient, nor did the statement of HI or SW.

92. Assessing the evidence before it in its entirety, the Panel found that it was more likely than not that, even if the Registrant ultimately did provide the correct exercises for patient 12, he initially treated them for a knee replacement rather than a hip replacement and at that point did not provide the correct standing exercises. Accordingly, the Panel found 5(a)(i) and 5(a)(ii) proved.

Particular 5(b)(ii) – PROVED

93. This particular again concerned Patient 1 and the submissions as to the events as set out at particular 5(b)(ii) are therefore relevant and not repeated. Mr Olphert made no additional comment specific to particular 5(b)(ii) but Ms Price told the Panel that it was accepted that patient 1 was asked to wait whilst the Registrant got a wheelchair. The Registrant also said however that the patient was with an HCA and was sitting down. Ms Price repeated her submission that the Registrant was an entirely credible witness and there was no reason not to accept his evidence. HI confirmed that if the patient was sitting down, this was not something she would consider a problem.

94. The Panel was confused by the evidence of the Registrant in respect of this particular. His statement said that before mobilising Patient 1 “I clearly informed him that I was getting the wheelchair which was very close to us, but when Patient 1 saw me coming with the wheelchair he stood up “. The statement said Patient 1 was not left to stand on his own when the Registrant went for the wheelchair as there was “an OT assistant present.” When questioned by the Panel however, the Registrant remembered looking for a wheelchair and thought he was possibly mobilising from the washing area. He could not recall if there were any chairs there, or how far he got with the mobilising before needing the wheelchair. There was no reference to HI having to assist the patient back to bed or the use of a commode.

95. In contrast, HI’s statement provided a substantial amount of detail as to the chronology of events in relation to this particular, reflecting that she escorted the patient back to bed to use a commode. In her evidence in chief, HI could not recall the incident but was able to provide insight as to expectations of physiotherapists in such circumstances. In cross- examination however HI stated “From what I recall he [the Registrant] was completing walking practice and the patient requested the toilet during walking practice.” but she could not recall if the Registrant left the patient alone.

96. The Panel was conscious this particular required it to find that the Registrant was unable to apply appropriate and or safe treatment and or management of Patient 1 on 16 November 2016 when assisting the patient to the toilet as he left Patient 1 to stand on his own while he retrieved a wheelchair. The Panel preferred the account provided by HI. Her evidence that she collected the patient, took him back to his bed and got a commode was not challenged. She then documented the situation in her supervision notes, including that the Registrant “went to retrieve a WC [wheelchair] for patient to sit and wait for the toilet”. The Panel concluded that the supervision notes were likely to have been made when HI discussed the incident with the Registrant as she records discussing privacy and dignity with him as well as the risks of leaving a patient unattended. She records that the Registrant “did not see any potential problems with sitting a patient and waiting for the toilet”.

97. The Panel therefore found this particular proved on the balance of probability.

Particular 5(e)(i) and (ii) – PROVED

98. Patient 29 was assessed by the Registrant less than a month into his Orthopaedic rotation. The patient had undergone a ‘knee scope’.

99. Mr Olphert reminded the Panel that HI was asked a significant number of questions about Patient 29 and that it would recall her detailed evidence regarding non-verbal cues. During her evidence in chief, HI explained how and why a stair assessment would be carried out, confirming that the Registrant “would be the main communicator with the patient, informing the patient of instructions and how to carry out a stair assessment safely using whatever aid is needed”. She confirmed that the Registrant would take the lead in positioning so he would be close to the patient and she would be assisting, which would mean she would be behind on the way up the stairs, and possibly on the way down. Her recollection of this incident was clearer than with some others. When asked about the point at which she felt the need to intervene she stated: “I’m unable to recall specifically, but I do feel that I gave [the Registrant] enough time to problem solve independently, so maybe a minute or so before then him saying “Okay, we’re ready to go down the stairs” and I said “Oh, [to] [the Registrant], no, we’re not ready to go down the stairs.”

100. The Registrant’s evidence on this allegation in Mr Olphert’s submission was that HI had spoken to the patient, as had he. The Registrant could not account for why HI’s evidence did not note this. He suggested he could not intervene because he had been some distance away from the patient due to letting people pass on the stairwell. He acknowledged the risk to a patient in this circumstance. In answer to the panel’s questions the Registrant explained that he had thought HI was leading this assessment. Mr Olphert submitted this was inconsistent with the clear evidence of HI, and demonstrative of SW’s remarks in evidence about the Registrant being generally deferent even when he was agreed to be leading a session. Mr Olphert reminded the Panel that the Registrant’s own evidence bundle contains a reflective piece on an occasion where he was too far from a patient.

101. Ms Price told the Panel that the Registrant told it in evidence that he did notice that the crutch was the wrong way and that the arms had not been inserted through the cuff of the crutch. She submitted there was no evidence to contradict this and reminded the Panel that the Registrant was a credible and honest witness.

102. Ms Price suggested that the Registrant’s evidence was not in conflict with HI’s evidence that she used non-verbal prompts to remind him to change the crutch use. HI accepted in her evidence that the Registrant may have noticed as well as her and she got there first in terms of correcting the crutch. The Registrant accepted that he was not as close to the patient due to people walking past on the stairs, and that he had to move out of the way for them which is why he was not able to changethe crutch before HI did it. Ms Price submitted that none of this evidences a failure to notice as alleged and that there was insufficient evidence that the Registrant failed to notice the crutch. She suggested that HI “may have assumed this was the case” as the Registrant was unable to respond to the prompts she gave immediately due to the passage of other people on the stairs. Ms Price said that assumption is the only evidence that the HCPC relies upon and is insufficient to discharge the burden of proof.

103. The Panel gave careful consideration to the evidence before it in relation to these allegations, which it considered were inextricably linked. The account of the incident provided by the Registrant in his statement was that while resting on the corner against the wall, Patient 29 was holding his crutches so they weren’t positioned properly. He admitted “I might not have noticed initially that one of Patient 29’s arms had not been inserted through the cuff of the crutch” but said that the crutches were facing the right way. He also said that he told the patient to correct the crutch even though he knew HI had already seen to this “so that it was clear to [HI] that I was aware of the need to correct the crutch”. The Registrant confirmed he had undertaken stair assessments with many different patients and this was the first time that a patient’s crutches were not positioned correctly. He did not reference HI asking him if there was anything to check before descending the stairs or her non-verbal cues. The Registrant provided the Panel with an undated reflective piece in relation to stair assessments, but this did not appear to reflect this incident. It did however identify that an issue of concern was the Registrant not standing close enough to the patient.

104. HI’s statement said that when she noticed the issue with the crutch, she asked the Registrant if there was anything to be checked, he looked in the direction of the crutch but did not correct it and she had to intervene before the stair descent started. In evidence, her recollection was more detailed, as set out above. The contemporaneous supervision notes written by HI in respect of this incident also recorded “On asking MR why he missed it, MR said that it was only the once and appeared to lack insight into how serious it could have been”.

105. The Panel noted that the Registrant’s statement encouraged it to look at occasions within the bundle demonstrating that the Registrant had successfully participated in stair assessments with Patient 27 and 29. These examples took place on 18 October 2016 (the same date as this particular), at 9:30am and 10:45am. However, the Panel also identified from the bundle that there were concerns about multiple stair assessments during the Registrant’s Orthopaedic rotation.

106. The Panel was conscious that working on stairs with patients was potentially dangerous and that those undertaking such exercises bore equal responsibility for the welfare of the patient and their colleague. The person leading the exercise would be expected to be the prime communicator with the patient, but this did not absolve the companion colleague of any responsibility – this was why two people should conduct stair assessments with patients.

107. Given all of the above, the Panel concluded that while the Registrant’s evidence may not be inconsistent with that of HI, her evidence was more persuasive, and it was more likely than not that the Registrant was unable to apply appropriate and or safe treatment and or management of Patient 29 on 18 October 2016 when undertaking stair exercises. Accordingly the Panel found both particular 5(e)(1) and 5(e)(ii) proved on the balance of probability.
Particular 6(b) – PROVED

108. Patient 57 had undergone a THR while on the Orthopaedic ward. He was treated by the Registrant in the last two weeks of his rotation on or around 15 November 2016.

109. Mr Olphert accepted that the quality of HI’s oral evidence on this was unclear as a result of the passage time, the [supervision] notes were clear, and she was able to assist the panel in their questions to her about this incident. Further, the Registrant recognised in cross examination that there were plainly issues with attempting to progress to two sticks from a trolley, but could not recall this patient specifically.

110. Ms Price noted that Patient 57 is recorded has having progressed on to 2 walking sticks. HI accepted in her evidence that two walking sticks would be the aim if realistic as a mobility goal, which Ms Price submitted it was. HI agreed in cross-examination that this was an example where the Registrant ‘Was appropriately adapting treatment to account for previous mobility’ though she could not recall if he had taken into account the patient’s previous mobility. Ms Price invited the Panel to find that as the supervision notes record patient 57 progressing in his mobilisation using a technique that HI considered suitable and realistic in this case, this allegation had clearly not been proven by the HCPC.

111. Unlike the previous particular, the Panel could make the connection between the stem and the sub-particular. A careful examination of this particular confirmed however that it was not concerned whether the patient progressed to two walking sticks or not, it was concerned about the extent to which the Registrant was able to adapt clinical mobility goals or treatment to account for the previous mobility of the patient. In this instance, the patient mobilised at home with the assistance of a kitchen trolley. Attempting to rehabilitate this patient to two walking sticks instead of the trolley indicated pursuit of a higher degree of functionality than the patient had prior to admission.

112. HI’s supervision notes of 15 November 2016 record HI’s concerns that the Registrant was not looking at the patient’s previous mobility when determining the clinical intervention to apply. It was mindful that the Registrant did not recall this patient when making his statement, as a consequence of which he neither admits nor denies the allegation.

113. The Panel was satisfied that in this matter, the Registrant had not adequately evaluated the impact of the clinical intervention (i.e. walking with sticks instead of using a trolley) on the patient and adapted the mobility goals and treatment accordingly.

114. The Panel was therefore satisfied that this particular was proved on the balance of probability.

Particular 6(c) – PROVED

115. Patient 53 underwent a TKR and was attended to by the Registrant towards the end of his Orthopaedic rotation, on or around 11 November 2016.

116. Mr Olphert reminded the Panel that the Registrant admitted this particular, having accepted that he should have raised it with a consultant. He submitted there was sufficient to evidence to find the allegation proved.

117. Ms Price confirmed that the Registrant accepts discharging patients following knee surgery with a reduced range of motions and no consent from the relevant consultant. She noted that The Registrant told the Panel that he did discuss discharge with a band 5 and band 4 physiotherapist. He candidly accepted it would have been better had he discussed this with the surgeon. However, he said there was great pressure on the unit to discharge patients. He also told the Panel that sometimes patients were discharged with a lower than 90 degrees range of movement and that this was always dependant on the individual situation of the patient.

118. Ms Price noted that HI could not recall these patients and agreed that now patients reaching an 80-degree range of movement could be discharged. At the material time however, the surgeon would determine the desired range of motion and write it in the theatre notes. She submitted that there is no evidence that 80 degrees was not the range the surgeon had written that they expected in this case. Indeed, the patient notes that would verify this have not been provided which puts the Registrant at a disadvantage in this matter. There is no evidence that the range of movement (ROM) was inadequate. It was clear that it was for the surgeon, Mr Pacheco, to decide if this was the case. There was no evidence that the surgeon’s view was that the ROM was inadequate. She submitted that it follows from this that the HCPC has failed to prove the allegation.

119. The Panel was satisfied that the Registrant did not seek the approval of a senior colleague or consultant prior to discharging patient 53, contrary to the Trust policy explained to it by HI. The particular was therefore proved by the admission of the Registrant and on the balance of probability.

120. The Panel proceeded to consider which, if any, of the remaining 17 particulars amounted to the alleged statutory ground of lack of competence.
Decision on statutory ground of the original panel at the substantive hearing

121. The Panel listened carefully to the submissions made to it on behalf of the parties in respect of the statutory ground, that being lack of competence in this case. It was grateful to counsel for providing written submissions in advance of the hearing reconvening. The Panel received advice from the Legal Assessor, which it applied. It noted that no additional documents had been provided to it since the last hearing date. The Panel also had regard to the practice notes to which it had been referred, particularly that entitled ‘Fitness to Practise Impairment’.

122. The statutory grounds are contained within the Health Professions Order 2001 at article 22(1). The Panel was conscious that the establishment of a statutory ground was not something that the HCPC was required to prove, but rather a matter for its own judgement having heard all of the evidence. The Panel recognised that it was required to provide a decision in sufficient detail for readers to understand why the facts do or do not amount to the ground alleged.

123. The Panel reviewed the facts found proved, noting that these spanned the entirety of the Registrant’s limited employment with the Trust, across two departments and multiple patients. Ms Price reminded the Panel that the Registrant had been responsible for a “mini case load” which she submitted demonstrated that he was progressing and achieving. The Panel did not accept this interpretation. Rather, it noted that the experienced practice educators and health care professionals on both wards where the Registrant worked explained to it very clearly that they were concerned at his standard of work. It appeared to the Panel that the Registrant’s colleagues liked him and provided him with a great deal of support to help him achieve the expected standard of practice, but he was unable to achieve and maintain this standard despite that support. The fact that his colleagues thought he could reach an acceptable standard if he was permitted to remain in his first rotation is unfortunately not relevant given that the test of competence is not whether an individual may reach a competent standard, but whether their standard of practice is acceptable when judged against the standards of the role they are fulfilling.

124. In this case, the Panel recognised that the Registrant could have been at a disadvantage when he applied for this post by not having trained in the UK or had practical experience in a clinical setting. However, his professional registration reflects that he should be able to practice competently in whichever role he was employed in. He was provided with intensive support from his colleagues and was not able to bring his practice up to the required standard of performance expected from a newly qualified Band 5 physiotherapist. The Registrant chose to apply for a rotational clinical role in a clinical setting and his competence and skill must therefore be judged against that standard. The Panel did not consider that a lesser standard of practice could be accepted to allow for alternative routes to registration – the fundamental standards are adopted to ensure that any registrant, no matter how or where they have qualified, is competent to practice to a safe standard. Similarly, the fact that the Trust have since adjusted the roles is also immaterial – the Registrant was afforded enhanced opportunities for support and learning compared to other Band 5 physiotherapists in the Trust at the time, and despite this was not able to maintain safe and effective practice in the opinion of his colleagues.

125. The Panel gave careful consideration to the Standards of Proficiency for Physiotherapists (2013) and concluded that the Registrant had not met the following:

1. Be able to practise safely and effectively within their scope of practice;

4. Be able to practices as an autonomous professional, exercising their own professional judgement;

8. Be able to communicate effectively;

12. Be able to assure the quality of their practice;

13. Understand the key concepts of the knowledge base relevant to their profession;

14. Be able to draw on appropriate knowledge and skills to inform practice;

15. Understand the need to establish and maintain a safe practice environment

126. The Panel was satisfied that the expectations of those working with the Registrant were not unreasonably high and that he had been offered the opportunity to develop over a fair period of time and a reasonable range of cases but had been unable to do so. It did not consider that the circumstances of his qualification could be taken into account at this stage of the regulatory proceedings.

Decision on impairment of the original panel at the substantive hearing

127. Mr Olphert invited the Panel to find that the Registrant is currently impaired on both the personal and public aspect of impairment. He told the Panel that the documentation supplied by the Registrant in relation to his continuing professional development and reflections were accepted by the HCPC, but the limited nature of them did not, in his submission, demonstrate sufficient action being taken by the Registrant to address the regulatory concerns identified by the Panel. Mr Olphert reminded the Panel that in considering the personal aspect of impairment, it should firstly determine whether the conduct is remediable, before moving on to consider whether it has been remediated.

128. In respect of the public component of impairment, Mr Olphert reminded the Panel of the provisions of the leading cases of CHRE v (1) NMC and
(2) Grant [2011] EWHC 927 (Admin) and R (on the application of Cohen) v General Medical Council [2008[ EWHC 581 (Admin). He submitted that a finding of impairment on the public component was necessary to uphold proper professional standards, maintain confidence in the profession and protect the public, given the clear findings made by the Panel in relation to the facts and lack of competence. He also reminded the Panel of the potential for harm to service users if the Registrant’s practice was not found to be impaired.

129. Ms Price submitted that the Registrant had been unable to secure employment in his profession and that his continued efforts to do so demonstrated his commitment to the profession. She reminded the Panel that the Registrant had worked in a voluntary capacity and no further concerns had been expressed about him and submitted that “the limited level of any issues regarding his competency any concerns have now been rectified to the extent that it cannot be said that his current fitness to practise is impaired”. She also told the Panel that “he has done sufficient hours of clinical practice meaning that he has met the HCPC’s return to practice requirements”.

130. Ms Price referred the Panel to the courses undertaken by the Registrant and the reflections completed by him, saying that in his evidence he “showed a clear humility on his part that demonstrated a genuine reflection on his actions”. She submitted that he was entitled to maintain his denial of the allegations and no negative inference should be drawn from his insight as he has recognised the shortfalls in his practice and undertaken continuing professional development to mitigate that.

131. The Panel noted that the Registrant’s bundle of documents provided for the hearing in August 2021 contained:
a. A reference dated 14 July 2021 from a registered physiotherapist confirming that the Registrant had volunteered at his musculoskeletal practice in 2020;
b. Confirmation that the Registrant watched a number of online webinars in 2020 and 2021;
c. Hand written dated and undated reflections on procedures and learning opportunities while apparently employed by the Trust.

132. In March 2023 the Panel was provided a supplemental registrant bundle which included further certificates spanning September 2021 to January 2023. These certificates confirmed the Registrant attended a number of one to two hour webinars on a variety of topics.

133. The Panel reminded itself that the test of impairment is expressed in the present tense in relation to the need to protect the public against the acts and omissions of those who are not fit to practise, and that this cannot be achieved without taking account of the way a person has acted or failed to act in the past.

134. The Panel was mindful that a finding of impairment does not automatically follow a finding that the facts proved amounted to the statutory ground of lack of competence – it could properly conclude the deficient performance had been adequately addressed and was unlikely to be repeated. The Panel was satisfied that the Registrant’s conduct was capable of remediation, but concluded it did not have sufficient evidence to find that his conduct had been fully remediated at this point. It had not had the benefit of hearing from the Registrant as to the findings made by the Panel. There was no evidence of recent reflection upon the regulatory failings identified by the Panel, or evidence of recent training and development undertaken by the Registrant – the last provided certificate was dated January 2023. Further, the courses attended by the Registrant did not adequately address the concerns the Panel had about his practical implementation of physiotherapy practice in an NHS setting, with topics focusing mainly on musculoskeletal issues around sporting injuries.

135. The Panel was conscious that the Registrant attained his qualification and registered with the HCPC as required, but was concerned that he was not equipped by that training to work in a busy multi-disciplinary clinical team. When provided with support to improve his practice, he was unable to demonstrate the skills expected from him. The support he received was intensive, but his lack of competence posed a real risk of harm to patients which the Panel considered had not been mitigated. It was concerned that on the information available to it, the Registrant’s insight into the regulatory failings was limited. There was therefore a substantial risk of repetition of the conduct as the Registrant had not demonstrated to it that he had a full understanding of the skills needed to practice in a similar environment at this point. The single reference provided was not current and related to an unspecified timescale, focusing on musculoskeletal outpatients. It was therefore of limited assistance to the Panel.

136. The limited remediation undertaken by the registrant to date did not provide assurance to the Panel that the Registrant had improved his skills working with patients – the Panel’s concerns centred around his ability to apply his knowledge to live patients in a busy clinical setting with minimal support and intervention. The Panel was therefore satisfied that the Registrant was impaired on the personal aspect of impairment.

137. In respect of the public test for impairment, the Panel was satisfied that all three limbs were engaged. There was the potential for the Registrant to cause real harm to patients if allowed to return to unrestricted practice, given his failure to recognise the limitations of his practice and his inability to demonstrate that he was addressing these concerns in a meaningful way.

138. In considering the public component of impairment, the Panel had regard to the important public policy issues, particularly the need to maintain confidence in the profession and declare and uphold proper standards of competence, conduct and behaviour. The Panel determined that public and professional trust and confidence in the profession, professional standards, and the Regulator would be undermined if a finding of impairment was not made. A finding of impairment was therefore required on the public aspect of impairment to uphold standards and maintain confidence in the profession and the regulator.

139. The Panel concluded that the Registrant’s fitness to practise was currently impaired on the basis of the public component as well as the personal component.

Decision on sanction of the original panel at the substantive hearing

140. Mr Olphert addressed the Panel in relation to sanction, referring to the Sanctions Policy adopted by the HCPC. He told the Panel it should impose the least restrictive proportionate sanction that would afford an appropriate level of protection to the public, reminding the Panel that while a sanction may be punitive in effect, it should not be imposed for that purpose.

141. In moving up the ladder of available sanctions, Mr Olphert invited the Panel to take account of aggravating and mitigating features of the matter. He explained that the present of insight, remorse and remediation would be a mitigating factor, while absence would be an aggravating factor. He stressed that the remorse and insight must be genuine and fully formed, and reminded the Panel that the Registrant supplied details of continuing professional development (‘CPD’) he had undertaken to date.

142. Mr Olphert submitted that the potential for harm to be caused to service users was also an aggravating feature of this case, and that this was a relevant factor for the Panel to take into account when determining risk to the public and confidence in the regulator and the profession. He told the Panel that the case involved a repeated pattern of unsatisfactory practice to which the Panel should have regard when determining the likelihood of repetition. He reminded the Panel that the Trust had attempted to address this with the Registrant and it still recurred, which Mr Olphert said increased the seriousness of the conduct.

143. Ms Price told the Panel that any sanction it imposed should be directed and proportionate. She explained that the Registrant is financially dependent upon his work, and supports his family in Bangladesh. He is dedicated to his profession and keen to return to work. Ms Price said that the Registrant had given an honest account of his recollection of events and realised that he had made mistakes. He had however been hampered in the proceedings by the passage of time. Those delays were not attributable to him.

144. The Registrant had reflected on his practice and identified areas of improvement but Ms Price submitted that it was unfair to characterise his conduct as repeated – it occurred over a relatively short period of time (4 months) within the same Trust. She disputed the suggestion that there were repeated concerns and noted the Panel have previously indicated that the conduct is capable of remediation. The Registrant was engaged with the regulatory process, wants to work in the profession and should be supported. Ms Price told the Panel that the Registrant has demonstrated insight and that he understands where his competence was lacking. She reminded the Panel that it heard from witnesses that the Registrant wanted to learn and improve and that he was making progress. Ms Price also reminded the Panel that there is a public interest in those who can practice safely being permitted to do so.

145. Ms Price submitted that the Registrant should be allowed the opportunity to demonstrate that he had remediated the areas of concern identified by the Panel, and that a sanction which prevented that opportunity would be “manifestly disproportionate in the circumstances”. She considered that the most appropriate sanction for the Panel to impose would be a Conditions of Practice Order, noting that the factors identified in the Sanctions Policy at paragraph 108, which mitigated against a Conditionsof Practice Order, were not present in this case while factors that supported such an order were present.

146. Ms Price told the Panel it could be certain that the Registrant would comply with the terms of a Conditions of Practice Order. He was currently subject to an Interim Conditions of Practice Order although he had been unable to secure a role as a consequence of the conditions set out in that Order. She urged the Panel to only impose conditions which were workable and allowed the Registrant to obtain employment. She entreated the Panel to avoid imposing direct supervision requirements on the Registrant, saying this would amount to suspension by the back door. She suggested that indirect supervision was sufficient in the circumstances, and could be limited to certain clinical settings in line with the earlier findings of the Panel in respect of impairment, particularly given the time that had elapsed since the concerns arose. Ms Price re-iterated that the Registrant would comply with the terms of a Conditions of Practice Order.

147. The Panel accepted the advice of the Legal Assessor and had regard to the HCPC Sanctions Policy, as well as the HCPC conditions bank. It was mindful that the purpose of any sanction is not to punish the Registrant, but to protect the public and promote the wider public interest. The public interest includes maintaining public confidence in the profession and the HCPC as its regulator by upholding proper standards of conduct and behaviour. The Panel applied the principle of proportionality by balancing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of severity.

148. The Panel considered what aggravating and mitigating features are present in this case, and concluded:

Aggravating
a. Potential for harm to be caused to patients as a consequence of the Registrant’s lack of awareness of the areas where his competence was deficient and improvement was required;
b. The level of insight is currently limited and does not appear to have evolved materially in the time that has elapsed since the concerns to which the allegations relate;

Mitigating
c. The Registrant has remained engaged in the regulatory proceedings despite it being some seven years since the concerns were originally raised;
d. The Registrant has made efforts to remediate, through completion of some voluntary work in 2020 and attendance at online training sessions between 2020 and January 2023.

149. The Registrant’s commitment to his profession was not doubted by the Panel. However, it was concerned as to the level of practical skills he had at the time the concerns were identified (2016 to 2017), and how the passage of time had impacted upon these skills. The Panel had regard to the Registrant’s description of his route to qualification and acceptance on the register by the HCPC. It considered that the failings identified in the Registrant’s practice during his employment by the Trust were in large part caused by the lack of practical learning included within the Registrant’s professional training. Given this, the Panel’s concerns were heightened by the passage of time, rather than lessened as a consequence of the Registrant being unable to secure a job in the profession. It was uncomfortable equating the Registrant’s return to practice with someone returning from a career break as it was not satisfied, on the evidence before it, that the Registrant had reached the minimum standards expected of a Band 5 physiotherapist at any stage.

150. Given this starting point, the Panel then considered the evidence of CPD supplied to it. It noted that none of the CPD was practical in nature – which it did not criticise the Registrant for, given the Covid 19 pandemic restrictions. It also did not address the concerns found proved by the Panel including:

a. Clinical reasoning;

b. Clinical theoretical knowledge

c. Clinical understanding;

d. Evaluation of clinical intervention

e. Action / treatment planning;

f. Discharge planning.

151. The Panel found that the Registrant had not demonstrated sufficient insight and remediation. As a result, it was not appropriate for the Panel to take no action. It noted that there was no outstanding dispute that mediation would assist with and therefore mediation was also an inappropriate sanction in this matter. It also did not consider a Caution Order to be appropriate given the wide ranging nature of the concerns and risk of repetition identified.

152. The Panel therefore moved on to consider whether a Conditions of Practice Order would be an appropriate sanction in the circumstances. It noted that conditions will rarely be effective unless the Registrant is committed to resolving the issues to be addressed and can be trusted to make an effort to do so.

153. In this instance, the Panel was satisfied that the Registrant was likely to make every effort to comply with any conditions of practice imposed, and was motivated and committed to do so. The Panel considered it would be possible to draft conditions which adequately promoted the overarching objective of public safety, while securing the support and guidance which appeared necessary for the Registrant. It was content that it was therefore possible to meet the public interest through the imposition of conditions being placed on the Registrant’s practice.

154. The Panel agreed with Ms Price that the imposition of a Suspension Order would be excessive and disproportionate in this case. The Registrant had not practiced for some seven years and no useful purpose would be served by preventing his reintegration into the profession.

155. The Panel therefore considered the Conditions Bank available to it. It determined that the conditions it should impose would need to address requirements for supervision, training, assessment and development. It therefore identified that the following conditions were appropriate to place on the Registrant’s practice:

1. You must place yourself, and remain under, the supervision of a workplace supervisor who:

a. is registered with the HCPC or another appropriate regulator; and
b. is experienced supervising students and or junior Physiotherapists; and
c. has not been subject to any regulatory concerns or complaints within the preceding three years;

2. You must complete a minimum 75 days (or 500 hours) of practical physiotherapy skills in a supervised clinical setting;

3. You must work with your workplace supervisor to formulate a Personal Development Plan to address the deficiencies identified by the Panel in your professional practice being:

a. Clinical reasoning;
b. Clinical theoretical knowledge
c. Clinical understanding;
d. Evaluation of clinical intervention
e. Action / treatment planning;
f. Discharge planning

4. Within three months of identifying and starting work with a workplace supervisor, you must forward a copy of your Personal Development Plan to the HCPC;

5. You must work with your workplace supervisor to consider your progress towards achieving the aims set out in the Personal Development Plan;

6. You must allow your work place supervisor to provide information to the HCPC about:

a. your progress towards achieving the aims set out in your Personal Development Plan;
b. your completion of hours of practical physiotherapy skills in a supervised clinical setting;

7. You will be responsible for meeting any and all costs associated with complying with these conditions;

8. Any condition requiring you to provide any information to, or obtain the approval of, the HCPC is to be met by you sending the information to the offices of the HCPC, marked for the attention of the relevant Case Manager;

9. You must promptly inform the HCPC if:

a. there is any change to your employment status;
b. disciplinary proceedings are taken against you by your employer.

10. 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)

Submissions at review hearing today

156. On behalf of the HCPC, Ms Khorassani reminded the Panel of the range of its powers under Article 30. In the event the Panel is satisfied that the Registrant’s practise is no longer impaired, it could allow the current Order to expire, or revoke it with immediate effect. In the event the Panel considers that the Registrant’s fitness to practise remains impaired, it is for the Panel to determine the appropriate sanction, which could be to extend the period for which the Conditions of Practice Order has effect; or make any order which could have been made when the Order being reviewed was made, including a Suspension Order.

157. Ms Khorassani reminded the Panel that the Registrant had been found to have breached fundamental Standards that reflect the need for public protection and that underpin public confidence in the profession, including Standard 6.1, Standard 6.2 and Standard 9.1.

158. Ms Khorassani submitted that, in line with the case of Adeogba v NMC, there is a persuasive burden upon the Registrant to demonstrate that his fitness to practise is no longer impaired. In light of the Registrant’s non-engagement, there is no evidence to support that the Registrant has remediated the identified failings in his practice; nor that he has developed any or any sufficient insight into the ways in which his practice fell short of acceptable standards. In those circumstances, Ms Khorassani submitted that the Registrant had failed to discharge the persuasive burden upon him, and the Panel should conclude that his fitness to practise remains impaired.

159. On behalf of the HCPC, Ms Khorassani submitted that, whilst it was entirely a matter for the Panel’s determination, in light of this being the first review of the Conditions of Practice Order, an extension of the Order would adequately protect the public and the public interest while providing the Registrant with a further opportunity to demonstrate engagement and to address the identified failings in his practice.

Decision of reviewing Panel

160. The Panel considered all the material before it and the submissions made by Ms Khorassani. It accepted the advice of the Legal Assessor. It had regard to the HCPTS Practice Notes “Fitness to Practise Impairment’ dated November 2023 and “Review of Article 30 Sanction Orders” dated November 2023.

161. The Panel reminded itself that its task is to determine whether the Registrant’s fitness to practise remains impaired at the current time; and the test of impairment is expressed in the present tense in relation to the need to protect the public against the acts and omissions of those who are not fit to practise.

162. The Panel noted that the previous panel found a wide range of fundamental aspects of practice which required to be addressed by the Registrant in order that he met the standards expected of a physiotherapist.

163. The Panel took into account that there is a “persuasive burden” upon the Registrant to demonstrate that he has fully acknowledged and addressed his identified deficiencies, such that his fitness to practise is no longer impaired.

164. The Panel contrasted the Registrant’s previous full engagement over a lengthy period up until the Conditions of Practice Order was made in June 2023 with the lack of engagement since. The Registrant has not engaged with the HCPC since the Conditions of Practice Order was made in June 2023, and there was no evidence in relation to his compliance with the Conditions of Practice Order. There was therefore no evidence before the Panel to support that the Registrant has developed insight, or addressed the identified failings in his practice, or has enhanced his clinical skills, or of any relevant continuing professional development.

165. In those circumstances the Panel concluded that the Registrant has not discharged the persuasive burden upon him and that his fitness to practise remains impaired on the grounds of public protection.

166. In considering the public component of impairment, the Panel had regard to the important public policy issues that arise, particularly the need to maintain confidence in the profession and declare and uphold proper standards of competence, conduct and behaviour. The Panel determined that public and professional trust and confidence in the profession, professional standards, and the regulator would be undermined if a finding of impairment was not made. A finding of impairment was therefore required to uphold standards and maintain confidence in the profession and the regulator.

167. The Panel concluded that the Registrant’s fitness to practise is currently impaired on the grounds both of public protection and the public interest.

168. The Panel considered what, if any, sanction to impose. It was mindful that the purpose is not to punish the Registrant, but instead to ensure the public is protected. The Panel bore in mind the need to strike a balance between the competing interests of the Registrant and the HCPC’s overriding objective to protect the public in arriving at a decision that is proportionate. It kept in mind that it should consider the least restrictive sanction available to it first, and only move to a more restrictive sanction if it considered it necessary to do so.

169. The Panel considered that the potential sanctions of taking no further action or imposing a caution order were not appropriate due to the serious nature of the concerns relating to the Registrant’s practice and its finding of impairment.

170. In considering whether to extend or vary the Conditions of Practice Order the Panel took the view that the conditions imposed were workable and comprehensive in addressing the identified deficiencies in the Registrant’s practice.

171. The Panel was mindful that the concerns first arose in relation to the Registrant’s practice in 2016 and that in June 2023 there was a finding of current impairment. It took into account the Registrant’s subsequent lack of engagement, and considered whether, in those circumstances, it may be necessary to impose a Suspension Order to meet with the public protection and public interest concerns that arise where a registrant is at risk of becoming de-skilled through lack of engagement in professional practice and development.

172. However, the Panel took account of the Registrant’s previous long history of full and proactive engagement, and the value in allowing the registrant to address his deficiencies through work so that he may become safe to practice unrestricted in due course. It considered that the Conditions of Practice provided appropriate protection of the public and satisfactorily addressed the public interest, and it was appropriate to provide the Registrant with a further opportunity to engage and remediate.

173. In those circumstances, it determined that it was appropriate and proportionate to extend the current Conditions of Practice Order. Having so decided, the Panel considered the duration of the extension, and noted that the Conditions of Practice require evidence of 500 hours of practical physiotherapy skills demonstrated in a supervised clinical setting. It concluded it would be impracticable for the Registrant to achieve compliance with this condition in anything less than a further 12-month period.

174. The Panel observed that, unless the Registrant chooses to engage and provide evidence of remediation for the next review, a future panel may consider that a Suspension Order is appropriate (and in circumstances where the Conditions of Practice Order has been in place for more than two years the Panel will have the power to impose a Striking Off Order). However, that will be a matter entirely for that panel to determine on the information before it at that time.

ORDER: The Registrar is directed to extend the Conditions of Practice Order against the registration of Mr Mohammad M Rahman for a further period of 12 months on the expiry of the existing order.

 

The Order imposed today will apply from 27 July 2024.
This Order will be reviewed again before its expiry on 27 July 2025.

History of Hearings for Mr Mohammed M Rahman

Date	Panel	Hearing type	Outcomes / Status
20/06/2024	Conduct and Competence Committee	Review Hearing	Conditions of Practice
28/06/2023	Conduct and Competence Committee	Final Hearing	Conditions of Practice
13/03/2023	Conduct and Competence Committee	Final Hearing	Adjourned part heard
09/08/2021	Conduct and Competence Committee	Final Hearing	Adjourned part heard