Arul Rathina

Background

The Original Allegation

1. The Original Allegation was in the following terms;

Allegation

The following allegation was considered and found proved by a Panel of the Conduct and Competence Committee, at a Substantive Hearing on 28 July 2008.

Your fitness to practise as a registered health professional is impaired by reason of your misconduct and / or lack of competence, in that:

1. At all material times you were employed as a Physiotherapist by Devon Primary Care Trust.

2. On 8th March 2006 you were instructed to arrange and attend regular clinical supervision sessions with senior colleagues and you failed to comply.

3. In or before August 2006 you incorrectly treated a patient referred with a neurological condition, leading to a complaint from a specialist neurological physiotherapist.

4. In or before September 2006 you were instructed not to undertake unsupervised treatment of patients with neurological complaints, however:

a. You treated another patient with a neurological condition, contrary to the instruction given

b. You treated the patient incorrectly.

5. Between January 2006 and 31 January 2007 you were unable to demonstrate attainment of the level of competency required for your grade in:

a. Assessment
b. Health & Safety
c. Planning & Preparation
d. Resourcing
e. Discharge
f. Clinical Reasoning
g. Record Keeping & Information Provision.

2. The Applicant qualified as a Physiotherapist in 2004. He was employed by Devon Primary Care Trust at Totnes Community Hospital between 3 October 2005 and 1 February 2007. The Applicant resigned from his employment on 1 February 2007.

3. On 28 July 2008, the particulars in the original Allegation against the Registrant, which are set out in paragraph 1, were found to be proved. It was accepted that during 2006, the Applicant was involved in incidents when he treated patients incorrectly. He failed to follow instructions to undergo regular clinical supervision and to refrain from treating patients with neurological conditions. Despite extended periods of supervision, he was found to have fallen below the level of competence expected of a physiotherapist of his grade.

4. The final hearing panel sitting on 28 July 2008, found that the failings identified above, constituted misconduct and lack of competence. The Applicant’s fitness to practise was impaired. The panel determined that the Applicant’s name should be struck off from the HCPC Register.

5. On 26 October 2016, the Applicant applied for his name to be restored to the HCPC Register. Following a hearing on 14 July 2017, the panel refused to make an order restoring the Applicant’s name to the Register.

6. The hearing on 4 February 2019 was the Applicant’s second application to have his name restored to the Register. The burden was upon the Applicant to satisfy the Panel that he was then fit to practise and that his name should be restored to the Register.

The decisions made by the February 2019 panel

7. The February 2019 panel determined that the Registrant’s application should be granted with a Conditions of Practice Order being imposed. The Conditions are those set out above. The February 2019 panel also directed that the Registrant must complete the recognised return to work procedures. This was due to the length of time since his name was struck from the Register.

8. The reasons given by the February 2019 panel for its decisions, are set out below. For ease of reference, the paragraph numbers used in the determination of the February 2029 panel have been retained, but are shown in brackets;

(6) The Panel bore in mind that its primary function is to protect the public and to maintain confidence in the profession. It has not gone behind the decision made in 2008. It has referred to the HCPTS Practice Note on “Restoration to the Register”.

(7) In reaching its decision, the Panel has taken into account all the information before it, together with the evidence of the Applicant and the submissions made by him and by Ms Senior, on behalf of the HCPC. It has accepted the advice of the Legal Assessor.

(8) Since his first application for restoration in 2017, the Applicant has undertaken physiotherapy related work. The Applicant is employed by Royal Surrey County Hospitals NHS Foundation Trust as a Technical Instructor. He began employment on 18 September 2017. He was initially employed on a fixed term contract from 18 September 2017 until 20 May 2018. On 21 May 2018, the Applicant was taken on as a permanent member of staff.

(9) A document was provided from RB, Clinical Specialist Physiotherapist. It confirmed that the Applicant’s job responsibilities include: (i) completing first line assessments for patients requiring mobility assessment and rehab following screening required by a qualified member of staff; (ii) appropriate progression and rehab of routine mobility patients; and (iii) and discharge planning and onward referral for patients following discussion with a qualified member of staff. RB confirmed that the Applicant has worked as part of the surgical and critical care physiotherapy teams. There have been no concerns with the Applicant’s performance in the role and he is a well-regarded member of the team.

(10) During the Applicant’s probationary period, concerns were raised in relation to caseload management. However, the Applicant did pass the probationary period.

(11) The Applicant’s most recent appraisal related to the period from September 2017 to September 2018. The reviewer, AP (a Senior Physiotherapist), assessed the Applicant as being “proficient/ successful”. This meant that he met the expectations of that job.

(12) The Applicant provided a variety of additional documentation including certificates for courses and training completed, and a work based activities log book for the period from 27 September 2017, which outlined training that had been undertaken with his current employer.

(13) In relation to returning to practice, the Panel noted the minimum requirements of those returning to work after more than 5 years. A person not registered for a period of 5 years, must undertake 60 days of profession related activities, in accordance with the HCPC requirements for professionals returning to practice.

(14) The Panel considered the Legal Assessor’s advice that, in relation to someone previously struck off, it is not sufficient for an applicant merely to establish that he meets the requisite standard of clinical proficiency for registration.

(15) The Panel has taken into consideration the circumstances of the Striking Off Order made in 2008 and the serious concerns identified about the Applicant’s conduct and competence, in particular, that his level of competence was assessed as being only at a level of a student in a first year placement.

(16) The Panel notes that the HCPC does not seek an order preventing the Applicant from making further applications for restoration. Moreover, there was a recognition that the Applicant had taken steps to address the issues highlighted by the previous panel when it considered the Applicant’s last application for restoration.

(17) The Panel was satisfied that the Applicant has undertaken significant steps to address the concerns that were highlighted at the time of his striking off from the Register. The Applicant has worked as a Technical Instructor and has performed well in this role. On the basis of the Applicant’s evidence in relation to the work that he has undertaken in his current role, coupled with the logs demonstrating the training that he has undertaken, and the statements from RB, the Panel was satisfied that the Applicant meets the standard of proficiency for registration.

(18) The Panel was satisfied that the Applicant has reflected on the incidents that resulted in his original striking off and has shown a degree of insight. The Registrant stated in his evidence that he had reflected on the differences in practice between where he trained, in India, and here in the UK. He explained that if faced with circumstances similar to the ones which led to his being struck off the Register he would do things differently. He understood the importance of supervision by a physiotherapist and, if permitted to return to the Register, he would seek a physiotherapist supervisor in a neighbouring NHS Trust if necessary. The Panel considers that the Applicant has taken significant steps since his last restoration application to address the issues identified, including in relation to health and safety and adequate record keeping.

(19) However, the Panel is not satisfied that it is yet appropriate for the Applicant to return to unrestricted practise. The Panel does have some residual concerns in relation to his level of insight into the potential impact that his actions might have had on patients and the profession. The Panel notes that although the Applicant has been successfully working in a role related to physiotherapy, he has no recent experience working as an autonomous Physiotherapist. The Panel was nevertheless satisfied that conditions could be formulated to adequately address these concerns. Demonstration of successfully working under supervision and appropriate commitment to a Personal Development Plan would be necessary before a panel could consider his returning to unrestricted practise.

(20) The Application for restoration shall be granted with a Conditions of Practice Order being imposed.

(21) The Applicant must complete the recognised return to work procedures. That is due to the length of time since his name was struck from the Register.

The hearing on 13 March 2024 before the Panel (the first review panel)

The Submissions made on behalf of the HCPC

9. Ms Khan made submissions to the Panel. She began with an introduction to the case which included her initial submissions. At the conclusion of the Registrant’s evidence Ms Khan made further submissions. In brief summary she said as follows;

• In her opening of the case, Ms Khan summarised the relevant facts and the law. She reminded the Panel of the decisions previously made. Ms Khan submitted that the HCPC was neutral as to whether the Registrant’s fitness to practise remained impaired. Ms Khan made no positive submissions as to the Conditions of Practice previously made, save that she acknowledged that the Registrant was substantially compliant with them.

• In her closing submissions, made at the conclusion of the Registrant’s evidence and having heard that evidence, Ms Khan submitted that the Registrant’s fitness to practise remained impaired on both the personal and the public component. She said that the Registrant still lacked sufficient insight and still posed a risk to potential service users. Ms Khan said that the Registrant was prone to blame communication problems when the real concerns lay with his clinical performance. The Registrant was lacking in a sense of personal accountability. Ms Khan suggested that some variations could be made to the existing Conditions of Practice.

Material supplied and submissions made by the Registrant

10. Prior to this hearing the Registrant has supplied the Panel, and the Panel has read a number of documents. That bundle comprised the following;

1. Personal Development Plan dated 2023
2. Record of Clinical Supervision various, dated 2023
3. Reflections 2023
4. Probationary First Formal review dated 01 November 2023
5. Personal Development Review 08 August 2023
6. Logbook for work based activities 2023 - 2024
7. Cardiorespiratory Problems training slides 02 2024
8. E-learning Report 2023 -2024.

11. The Registrant gave evidence, responded to questions and made submissions to the Panel. In brief summary;

• He contended that he was now capable of safe and effective practice. His confidence had increased and he was able to handle emergencies, some of which he described.

• He explained his present working practices at the Royal Surrey Hospital where he was working as a band 5 physiotherapist. He said that he was working on a 30 patient ward of elderly patients. He described the supervision that he received. In respect of the notes of the January 2024 supervision meeting, he said that they would be soon forthcoming.

• The Registrant explained how he had tried to develop his clinical skills so as to take account of the previously identified concerns. He now sought to apply a step by step approach to his treatment of his patients, taking care to explain to them his objectives and the care that he was about to administer. He was keen to apply an evidence based approach, relying on his reading, study and notes.

• Whilst the Registrant accepted that in the past he may have had problems with his ability to communicate, he said those problems had been largely resolved. He stated that the previously proved failings may have had more to do with communication problems than with substantive failings of clinical skills.

• When pressed to explain what he had learnt from his previous experiences, the Registrant appeared to indicate that he would follow his own understanding of proper clinical procedures and his understanding of the evidence, rather than the instructions given to him by his clinical seniors.

Decisions of the Panel (the First Review Panel) made on 13 March 2024

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

13. The Panel is aware that it has all the powers that are set out in Article 30 [1] of the Health Professions Order 2001 [The Order] and which are summarised in the email sent to the Registrant giving notice of this hearing.

14. The Panel is aware that the process under Article 30 [1] of the Order is one of review and not one of appeal and that its function is to determine whether the Registrant’s fitness to practise remains impaired: if so, whether the Conditions of Practice Order under review remains appropriate and proportionate or should be varied or replaced by some other order.

Decision of the Panel on Impairment

15. The Panel has taken account of the submissions made by Ms Khan; also of the evidence and representations of the Registrant. The Panel acknowledges the progress that the Registrant has made in addressing the underlying concerns expressed by the February 2019 Panel. The Panel is grateful to the Registrant for his personal participation at this hearing. The Panel fully recognises the difficulties that the Registrant faces as an unrepresented registrant and one for whom English is not his first language. However, the Panel has concluded that the Registrant’s fitness to practise remains impaired on both the personal and the public components. Its reasons include the following;

• The Registrant has shown limited insight into his failings as found by the original panel in July 2008.In his evidence the Registrant appeared to attribute the concerns to language problems as opposed to deficiencies in his clinical skills.

• The Panel noted that in his evidence to the Panel, the Registrant appeared to indicate that if he encountered issues of the kind that were found proved in July 2008, he would perform, as he had previously done, namely to act in accordance with his own judgement rather than in accordance with the directions of his clinical seniors. The Panel could not exclude that risk of repetition of the same or similar conduct as that found proved in July 2008.

• The Panel noted that in the notes of the supervision meeting in December 2023, three areas of outstanding concern were noted. The Panel has not seen the notes of the supervision meeting which it understands was held in January 2024. There is currently no direct, independent confirmation that the Registrant is capable of autonomous, safe and effective practice.

• The Panel remained concerned that the Registrant has not adequately remediated or addressed the concerns that were identified by the February 2019 panel and that the risk of repetition could not be excluded.

• A well informed member of the public aware of the concerns previously identified and aware of the evidence given to the Panel, would be concerned if the Panel was to determine, that the Registrant’s fitness to practise was not now impaired and if the Registrant was enabled to practise unrestricted.

• In substance, the Panel concluded that the Registrant had not discharged the persuasive burden of establishing that he was no longer impaired.

Decision of the Panel on Sanction:

16. In considering the appropriate order the Panel had regard to the HCPC’s Sanctions Policy updated in March 2019, to the submissions of Ms Khan, and those of the Registrant. The Panel has heard and accepted the advice of the Legal Assessor.

17. The Panel has applied the principle of proportionality. The Panel is aware that the purpose of sanction is not to be punitive and that it must consider the risk of repetition and public confidence in the profession and its regulator.

18. The Panel has considered the sanctions available in ascending order of restriction. The Panel considered that to take no action or to impose a Caution Order would be wholly inappropriate.

19. The Panel has determined that a Conditions of Practice Order remains the appropriate and proportionate Order to make. However, the Panel has determined that the existing Order should be varied so as to ensure that a reviewing panel has the advantage of seeing an up to date report from the Registrant’s supervisor. That report should advise a reviewing panel, as to the extent that the Registrant has complied with and fulfilled the terms of the Personal Development Plan, whether there are outstanding matters to be addressed and fundamentally, whether the Registrant is capable, as an autonomous and unsupervised physiotherapist of delivering a safe and effective service to patients. If there are concerns yet to be addressed before he is so capable, they should be identified in the report.

20. The Panel determined that some of the conditions contained in the Order made by the February 2019 panel have been fulfilled and can be deleted from the Order.

21. Accordingly, the Panel has made a Conditions of Practice Order in the terms set out below. The Order is for a period of 6 months. The Panel hopes that this will enable the Registrant to address the outstanding concerns.

22. This Order will be reviewed before the date when the Order expires. The reviewing panel will be greatly assisted by the Registrant’s participation at the hearing. The reviewing panel will wish to see all the documents that are identified in the Conditions of Practice Order. If the Registrant’s supervisor could be persuaded to provide oral testimony as to whether the Registrant is capable of providing safe and effective care as indicated in Condition 10 of the Order, that could be of great assistance to the reviewing panel.

Order

The Registrar is directed to annotate the Register to show that for a period of 6 months from 13 April 2024 you Mr Arul Rathina, must comply with the following conditions of practice:

1. You must inform the HCPC of the details of your current employer.

2. Promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.

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

4. 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 your application); and

C. Any prospective employer (at the time of your application).

5. You must place yourself and remain under the supervision of a workplace supervisor, being a Physiotherapist registered by the HCPC (the “Supervisor”) and supply details of your Supervisor to the HCPC within 28 days of taking up employment. You must attend upon that Supervisor as required and follow their advice and recommendations.

6. You must work with your Supervisor to formulate, develop and adhere to a Personal Development Plan (PDP) designed to address the following areas of your practice:

A. Assessment

B. Planning & Preparation

C. Resourcing

D. Discharge

E. Clinical Reasoning

F. Communication skills

7. You must provide the HCPC with an updated copy of your PDP no later than 14 days before the next review date.

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

9. You must provide copies of your Supervisor’s records of supervisions, including those addressing your progress towards attaining the goals set out in the Personal Development Plan, to the HCPC no later than 14 days before the date of any review of this Order.

10. You must use your best endeavours to obtain a comprehensive report from your Supervisor. That report should address each of the matters set out in Condition 6 (A) to (F) inclusive. The report should identify any issues still to be resolved in respect of any of the matters described in (A) to (F); also whether there are residual areas of concern outside the matters specified in Condition 6. Further, the report should state whether in the opinion of the supervisor you are capable of safe and effective practice as an unsupervised autonomous physiotherapist: if not, why not. The Report should be furnished to the HCPC not less than 14 days before the next review date.

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

12. The conditions requiring you to provide any information to HCPC are to be met by you sending the information to the Offices of the HCPC marked for the attention of the Director of Fitness to Practise or Head of Case Management.

The Order imposed today will apply from 13 April 2024

This Order will be reviewed again before its expiry on 13 October 2024.

Right of Appeal

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Articles 30(10) and 38 of the Health Professions Order 2001, any appeal must be made to the court not more than 28 days after the date when this notice is served on you.

History of Hearings for Arul Rathina