Shiv K Bhimasani

Profession: Physiotherapist
Registration Number: PH71833
Hearing Type: Final Hearing
Date and Time of hearing: 10:00 11/03/2024 End: 17:00 15/03/2024
Location: Virtually via Video Conference
Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation Finding Order Notes Hearing History

Allegation

Allegation (as amended at the hearing)        

‘As a registered Physiotherapist (PH71833):

 

  1. On 19 October 2020, you were convicted at South Yorkshire Magistrates’ Court of assaulting Person A by beating her. Contrary to section 39 of the Criminal Justice Act1988.

 

  1. On 20 April 2011, you were convicted at Oldham Magistrates’ Court of driving a mechanically propelled vehicle, on a road, namely M60 without due care and attention. Contrary to section 3 of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.

 

  1. On 06 April 2011, you were convicted at Oldham Magistrates’ Court of driving a mechanically propelled vehicle namely large goods vehicle or passenger carrying vehicle, owing to the presence of which on a road, namely M60 an accident occurred whereby damage was caused to another vehicle, failed to stop. Contrary to section 170(4) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Ac 1988.

 

  1. On 20 April 2011, you were convicted at Oldham Magistrates’ Court of driving a mechanically propelled vehicle namely large goods vehicle or passenger carrying vehicle, owing to the presence of which on a road, namely M60 an accident occurred whereby damage was caused to another vehicle, and not having given your name and address to a person having reasonable grounds for requiring you to do so, failed to report the accident at a police station or to a constable as soon as was reasonably practicable, and in any case within twenty-four hours of the occurrence of the accident. Contrary to section 170(4) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.

 

  1. Between 23 March 2021 and 02 September 2021, you accessed service user records relating to up to 79 Service Users without clinical justification.

 

  1. Between 2014 and 2018, you did not renew your registration with the Health and Care Professions Council by a manual renewal form in order to declare the change to your good character or health.

 

  1. On 26 February 2012, you signed the application form to renew your registration with the Health Professions Council and checked the box to confirm there has been no change relating to your good character when this was not the case. 


  2. On 15 May 2020, you signed the application form to renew your registration with the Health and Care Professions Council and checked the box to confirm there has been no change relating to your good character when this was not the case.
  3. You did not inform the HCPC in a timely manner that you had been convicted of the offence at particular 1 above, as required by the SCPE applicable at the time.

 

  1. You did not inform the HPC and/or the HCPC in a timely manner that you had been convicted of the offence at particular 2, 3 and 4 above, as required by the SCPE applicable at the time.

 

  1. Your conduct in relation to particular 6, 7, 8, 9 and 10 above was dishonest.

  2. The matters set out in particulars 5, 6, 7, 8, 9, 10 and 11 above constitute misconduct.

 

  1. By reason of your conviction and/or misconduct your fitness to practise is impaired.’

 

Finding

Preliminary Matters
Proof of Service
 
1. The Panel was provided with a signed certificate as proof that the Notice of Hearing had been sent, by email, to the Registrant, on 15 January 2024. The certificate confirmed that the Notice had been sent to the email address held for the Registrant on the HCPC register. 
 
2. The Panel accepted the advice of the Legal Assessor and was satisfied that notice had been properly served in accordance with The Health Professions Order 2001 (hereafter ‘the Order’) and Rules 3 and 5 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (hereafter ‘the Rules’). 
 
Proceeding in absence of the Registrant 
 
3. Ms Atkin, appearing on behalf of the HCPC, made an application for the hearing to proceed in the Registrant’s absence, as permitted by Rule 11 of the Rules. Ms Atkin submitted the following to the Panel as part of her application: 
 
i. Notice had been served in accordance with the Rules; 
ii. the Registrant had voluntarily absented himself; 
iii. no application for an adjournment had been made by the Registrant and there was no indication before the Panel that if it adjourned the hearing that the Registrant would attend; 
iv. if the Panel adjourned the hearing it would be a significant and lengthy period of time before the matter could be relisted; 
v. the Registrant had provided no indication that he wished to be represented for the purposes of the hearing and it is reasonable to conclude that he has waived the right to representation; 
vi. whilst there may be some disadvantage caused to the Registrant if the Panel proceeded with the hearing in the Registrant’s absence, the Registrant has had an opportunity to engage in the regulatory proceedings and has elected not to do so. Further, the Registrant had provided brief submissions to the HCPC and the Panel could have regard to those representations when considering the matters before it; and
vii. there is a general public interest in the case proceeding, having regard to the fact that there were witnesses available to give evidence today.
 
4. The Panel accepted the advice of the Legal Assessor and took into account the guidance as set out in the HCPTS Practice Note “Proceeding in the Absence of the Registrant”.
 
5. The Panel determined that it was reasonable and in the public interest to proceed with the hearing for the following reasons:
 
i. Notice had been properly effected; 
 
ii. the Panel noted that the Registrant sent an email to HCPC, dated 01 March 2024, timed at 14.06pm, which stated: ‘Thank you for your email. I won’t be attending the hearing, which I have already confirmed’. In addition, the Panel noted there was also earlier correspondence from the Registrant, which outlined that the Registrant would not be attending the hearing. The Panel was satisfied, having regard to the Registrant’s emails, that it was reasonable to conclude that the Registrant was aware of the hearing and that his non-attendance was voluntary and therefore a deliberate waiver of his right to attend and participate in person;
 
iii. there had been no application to adjourn the hearing and no indication from the Registrant that he would be willing or able to attend on an alternative date if the hearing was adjourned. Therefore, re-listing the hearing would serve no useful purpose;
 
iv. the HCPC had made arrangements for a number of witnesses to give evidence during the course of the hearing. In the absence of any reason to adjourn and re-schedule the hearing, the Panel was satisfied that the witnesses should not be inconvenienced by an unnecessary delay and should give evidence whilst the events are reasonably fresh in their minds;
 
v. the Panel recognised that there may be some disadvantage to the Registrant in not being able to give evidence or make oral submissions. However, the Panel noted that he had voluntarily absented himself from the hearing and had previously provided written submissions to the Investigating Committee, which were included within the HCPC bundle of documents, and these representations went some way to mitigate any potential disadvantage to the Registrant not being able to present his case to the Panel; and
 
vi. as this is a substantive hearing, there is a strong public interest in ensuring that the Allegation is considered expeditiously and similarly, it is also in the Registrant’s own interest that the Allegation is heard as soon as possible.
 
Application to amend the Allegation
 
6. Ms Atkin made an application to amend the Allegation. Ms Atkin informed the Panel that she wished to make the following:
 
i. Stem – remove the words ‘your fitness to practise is impaired by reason of your conviction and/or misconduct. In that’; 
ii. Particular 7 – remove the words ‘and Care’; and 
iii. Particular 10 – insertion of the words ‘the HCP and/or’.
 
7. Ms Atkin submitted that the amendment to the stem was required to remove duplication of the wording outlined in Particulars 11 and 12 and that the amendment to Particular 7 was necessary to properly reflect the name of the regulator, in 2012, as the Health Professions Council. In respect of Particular 10, Ms Atkin submitted that insertion of the words ‘the HCP and/or’ was again necessary to accurately reflect who the Registrant was under an obligation to disclose information to and when
 
8. The Panel accepted the advice of the Legal Assessor and carefully considered the application to amend the Allegation. The Panel concluded, after reviewing each of the proposed amendments, that they would agree to the Particulars being amended for the following reasons:
 
i. the proposed amendments were to correct typographical errors and to provide further clarification of the Allegation; 
ii. the proposed amendments did not seek to widen the scope of the Allegation;
iii. whilst the Panel noted that the Registrant was not notified or put on notice of the proposed amendments, as they were only identified at the outset of the hearing, the Panel was of the view that the amendments to the Allegation did not heighten the seriousness of the Allegation and therefore there was no likelihood of injustice to the Registrant.
 
Application to admit the evidence of Person F
 
9. Ms Atkin informed the Panel that she was making an application to admit the evidence of Person F, a Registration Manager for the HCPC, without the requirement for him to give oral evidence. Ms Atkin informed the Panel that the Registrant would have had sight of the documentary evidence within the HCPC hearing bundle and she informed the Panel that this would have included Person F’s two witness statements. Ms Atkin also drew the Panel’s attention to the fact that the Registrant had been provided with an opportunity to object to the evidence being adduced in this way before the Panel and he had not responded to the HCPC. Further, the Registrant had also not attended the hearing to object to the application being made, in person. 
 
10. Ms Atkin informed the Panel that, in her view, the key consideration for the Panel, when determining the application, was fairness and she submitted that the two witness statements of Person F had been provided to the Registrant in advance of the hearing and he had elected not to respond or object to the statements being admitted without Person F being called to give live evidence. Ms Atkin also informed the Panel that should the Panel refuse her application, Person F was warned and able to give live evidence to the Panel if the Panel had any questions of him. 
 
11. The Panel accepted the advice of the Legal Assessor. 
 
12. In determining to permit Person F’s witness statements to be admitted into proceedings, without the need for him to be called to give oral evidence to it, the Panel first considered whether it would have any questions of Person F as a witness and determined that it did not. In the Panel’s view, admitting Person F’s witness statements into proceedings without hearing oral evidence from him would not prejudice the Registrant in any way. The Registrant had not attended the hearing, nor had he objected to the admission of Person F’s witness statements. Additionally, the Panel also noted that the Registrant’s written submissions, dated 22 September 2022, made no mention of any matters relating to the Particulars regarding the Registrant’s alleged failure to disclose his convictions to the HPC (prior to 2012) or the HCPC (after the HCPC inception in 2012). The Panel therefore also concluded that there were no matters, raised by the Registrant, which the Panel would need to put to Person F, in fairness to the Registrant, in the Registrant’s absence. Further, the Panel also considered, in view of the fact that neither the HCPC, or the Panel had any questions of the witness, it would have no impact on the fairness of the proceedings. 
 
13. Consequently, the Panel allowed Ms Atkin’s application to adduce Person F’s two witness statements into proceedings, without Person F being called to give live evidence to it. 
 
 
Background
 
14. The Registrant is a registered Physiotherapist (PH71833). 
 
15. The Registrant worked as a Band 6 Locum Physiotherapist based at the Kingsway site in Derby, part of the Derbyshire Healthcare NHS Foundation Trust (‘the Trust’).
 
16. The HCPC received a referral from the Trust in relation to the Registrant, on 02 September 2021.
 
17. The Trust explained that they had received an updated Disclosure and Barring Service (‘DBS’) certificate for the Registrant, which included driving convictions and a conviction for assault. The Trust had previously been unaware of any criminal convictions. The Trust also advised the HCPC that the Registrant had been accessing a number of files for patients that were not allocated to him. 
 
18. The HCPC received a memorandum of conviction, dated 08 January 2021, from Sheffield Magistrates’ Court stating that, on 19 October 2020, the Registrant was convicted of assaulting Person A on one occasion. The Registrant had entered a not guilty plea but was found guilty after trial and received a community order to carry out unpaid work for 150 hours. A Restraining Order, a victim surcharge and Crown Prosecution costs were also imposed. 
 
19. The HCPC also received a memorandum of conviction dated 06 April 2011 from Oldham Magistrates’ Court stating that, on 06 April 2011, the Registrant pleaded guilty to the charge of failing to stop following a road traffic accident. The sentencing decision was adjourned so that the Registrant could attend and clarify his plea in relation to two other charges. 
 
20. The HCPC received a further memorandum of conviction from Tameside Magistrates Court dated 20 April 2011. This memorandum stated that the Registrant had been convicted of: driving a vehicle without due care and attention; causing an accident; failing to stop, or give his name and address to person having a reasonable ground to request it; and failing to report an accident. The Registrant’s driving license was endorsed with seven penalty points and he received a fine. The Registrant entered guilty pleas for all of these offences.
 
21. The HCPC did not receive a self-referral from the Registrant in relation to any of his convictions. The Registrant also made false declarations that he did not have any convictions when renewing his registration with the HCP and the HCPC, on more than one occasion. 
 
22. The Trust investigated the concerns about accessing patient records inappropriately. The investigation was carried out by Person D and Person G and was collated by Person C. The electronic data contained within that report was collated by Person E and interrogated by Person D and Person G. 
 
Summary of evidence
HCPC
 
23. The HCPC relied upon the oral evidence of four witnesses, as follows:  
 
i. Person E – Records Manager and Data Protection Officer at the Trust; 
ii. Person D – Lead Physiotherapist at the Trust; 
iii. Person G – Senior Physiotherapist at the Trust; and 
iv. Person C – Area Services Manager for the talking therapies clinics at the Trust.
 
24. The HCPC also relied upon the following: 
 
v. a final hearing bundle of 429 pages;
vi. a case summary of 8 pages; 
vii. a service bundle of 9 pages; 
viii. an additional witness statement of Person F consisting of 21 pages; and 
ix. a bundle titled ‘proceeding in absence bundle’ consisting of 5 pages. 
 
25.    The accounts outlined below are provided as a summary of each of the witnesses’ evidence to the Panel and are not a verbatim account of the evidence provided.
 
26. The Panel read the bundles submitted by the HCPC before the commencement of the HCPC case.
 
Person E
 
27. Person E informed the Panel that he is employed as the Records Manager and Data Protection Officer for the Trust and that he had joined the Trust in 2007. 
 
28. He outlined to the Panel that the Trust has various policies and procedures which related to data and information security and he outlined to the Panel which policies and procedures were in place in September 2021.
 
29. Person E told the Panel that on 10 September 2021, he was contacted by Person D ‘Senior Physiotherapist’ via email, as Person D was requesting data from all of the patient records (PR’s) which were accessed by the Registrant during his term of employment with the Trust. Person E exhibited to his witness statement, this email exchange between himself and Person D.
 
30. Person E also informed the Panel that at the time of the investigation into the Registrant’s conduct, the Trust used an electronic PR system called PARIS. Person E informed the Panel that owing to his role, he had access to review staff members on PARIS and see which staff had accessed a PR.
 
31. Person E told the Panel that in response to Person D’s request, he produced the data requested by running an audit on PARIS and that he widened the scope of the search parameters from January 2021 to the end of 2021. Person E exhibited the data extracted from PARIS in a spreadsheet report, to his witness statement. 
 
32. Person E stated that after he had ‘run the report’ he ran the report for a second time to ensure that the data matched with the first report which he had produced. 
 
33. Person E then told the Panel that he was then assisted by a colleague, who helped him to remove any duplicates from the list of patient identifiers, for example where a staff member had accessed more than one document on the same patient record. Person E then informed the Panel that his colleague was then able to use the unique list of patients in a query and run an ad-hoc report from the data warehouse. This report which pulled through the data was used in order to map each patient’s unique system identifier to the patient’s name, date of birth and NHS number. 
 
34. Person E stated that after this, he provided the spreadsheet to another colleague so that someone from the physiotherapy team could determine whether the Registrant’s access of each PR was appropriate. 
 
35. Person E also informed the Panel, during the course of his oral evidence to it, that he was aware of other Trust employees accessing PRs without appropriate permission and that the Registrant’s case had been used as a learning experience for the Trust. Person E also stated that the Trust had, since 2021, moved away from using PARIS and now utilised the services of another PR data management system. 
 
36. In response to questions from Ms Atkins, Person E also explained the term ‘break glass’ to the Panel. He stated that ‘break glass’ was a requirement to help give staff at the Trust “a steer” and was used to ensure “security for patients” so that staff should only be accessing the PR’s which were relevant and that these “should only be accessed for treatment”. He explained that the point of ‘break glass’ was for staff when they needed to access information not part of the PR. He further explained and contextualised his answer by stating that if a patient was not a direct referral to the physiotherapy team the staff member attempting to access the PR would be prompted and asked, by PARIS, why they were accessing the PR at the time. At this point, the prompt, provided by the PARIS system would require the practitioner to clarify why they needed access to that particular PR.
 
37. He stated that if a staff member did ‘break glass’ (i.e. enter a PR not assigned to the department that they were working within) the PARIS system would not alert management to this, but the incident could be scrutinised as part of a subsequent audit. Person E also stated that rather than scrutinise every single PR, the Trust adopted “a balanced approach” to reviewing PR’s. Person E also informed the Panel that he was from an “admin background” and so the determination of whether it was clinically appropriate for the Registrant to access PRs was not for him to determine, but rather had been reviewed by other professional clinical colleagues at the Trust. 
 
38. Person E also told the Panel that not all ‘break glass’ procedures would be inappropriate access of the PR. For example, if someone was working out of hours or had an emergency, he explained that there may be a need for the practitioner to access a PR and this may be considered clinically justified. 
 
39. In response to questions from the Panel, Person E also told the Panel that he was not aware of the specific training undertaken by the Registrant on the PARIS system, but he stated that he was aware that all staff required training before being given access to the PARIS system. Person E also told the Panel that a PARIS user, would be required to enter a username and a password onto a Trust “trusted device”, which he explained was a fixed terminal computer or a laptop, prior to being given access to PARIS. 
 
40. Person E also explained to the Panel that where a patient had died in circumstances related to drug or alcohol misuse, then confirmation of that patient’s death may not appear on PARIS immediately, but he stated that the patient’s death may have shown “locally” on the system.  
 
Person D:
 
41. Person D told the Panel that he is the Lead Physiotherapist at the Trust and that his day-to-day role involves management and allocation of patient referrals, ensuring that patients are seen on time and that their care pathways are “set”. He also told the Panel that he is also responsible for the annual leave of staff, clinical governance and he also treats patients. 
 
42. Person D stated that at the material time the Registrant was employed by the Trust as a Band 6 Locum Physiotherapist. He told the Panel that the Registrant was responsible for seeing all urgent physiotherapy patients in the community as well as seeing physiotherapy patients on hospital wards and managing waiting lists. Person D also told the Panel that the Registrant only treated adult patients. 
 
43. Person D informed the Panel that he was the Registrant’s line manager and that he saw him once or twice a week.
 
44. Person D told the Panel that on 24 June 2021, he received a message from the recruitment agency through whom the Trust had hired the Registrant. The recruitment agency informed Person D that it had an update on the Registrant’s DBS check and asked if Person D required a copy. Person D told the Panel that he responded and indicated that he did. The agency, in turn, responded and stated that it would take up to 14 days to arrive. 
 
45. Person D told the Panel that following the exchange with the recruitment agency, that he spoke with the Registrant and asked him what the concerns were regarding. Person D told the Panel that the registrant informed him that he had been caught driving with tyres which were completely worn off, which had resulted in him receiving a conviction. Person D stated that at this point he discussed the matter with his own line manager as he was concerned about safety towards patients. Person D also informed the Panel that at this point, he chased the recruitment agency for the DBS information.
 
46. Person D then informed the Panel that, on 12 August 2021, he was going on annual leave for a period of three weeks, so he told the recruitment agency to contact a colleague in his absence. On 31 August 2021, the recruitment agency sent an email, attaching the DBS certificate, showing convictions for battery, which he picked up on 02 September 2021, upon returning from leave. 
 
47. On the same day (02 September 2021), the Trust removed the Registrant from the premises owing to the serious nature of the concerns raised in the DBS. 
 
48. Person D gave further evidence to the Panel that on 03 September 2021, in response to the concerns raised, he requested that Person E undertake an audit of all PR accessed by the Registrant on PARIS. Person D told the Panel that on 14 September 2021, Person E provided the audit if PR in the form of a spreadsheet. 
 
49. Person D then informed the Panel that having received the spreadsheet from person E, that he and Person G divided up the PR’s accessed by the Registrant and used the following criteria to review the PR’s: 1) was the patient referred to them (the physiotherapy team)?; and 2) was there a need for the Registrant to access the PR’s?
 
50. Person D told the Panel that he and Person G divided up 207 PR’s and he stated that they “interrogated” the records. Person D told the Panel that on every PR, he opened the PARIS system and reviewed the PR using the aforementioned criteria. He also told the Panel that having done so, it was immediately clear whether the patient was a physiotherapy patient or not. He stated that if the patient was a physio patient there would be a section indicated on the left-hand side of the PR. If not, the PARIS would prompt the reader to ‘break glass’ and quantify why they needed access to the PR. Person D told the Panel that he was unable to provide a screenshot of this ‘break glass’ on the PARIS system because PARIS was no longer utilised by the Trust and he stated that the Trust had migrated to a system called ‘System One’ [SystmOne].
 
51. In response to questions on the point, Person D told the Panel that when PARIS provided this ‘break glass’ prompt the person attempting to enter the PR would be provided with a drop-down menu to select from a pre-categorised list of options as to why they needed to access the system and a further free test box would also appear. Person D  informed the Panel that one of the dropdown menus would need to be selected, but it was not compulsory to enter anything into the free text box to enter the PR. Person D told the Panel that he had been unable to scrutinise the free text box for each PR as some of the content was unavailable and was unable to be provided and he did not know the reason for this was. Person D also informed the Panel that a practitioner would be required to ‘break glass’ if a patient was known to physiotherapy and “not discharged” or if the patient was a “new patient”.
 
52. Person D told the Panel that the Registrant would only have required access to physiotherapy patients who had been allocated to him. Person D also stated that he may also have been required to access other patient records if another Physiotherapist required advice, but these would be patients who had been referred to the physiotherapy service. Person D told the Panel that it was not possible to access PR on PARIS by mistake because both the first name and surname of the patient must be inputted into the system before the record can be opened. He stated that it was not a case of looking through a list of patients and selecting the PR whom the clinician wishes to open.
 
53. Person D informed the Panel that after reviewing each PR he annotated the spreadsheet which was provided by Person E as to whether the Registrant’s access was appropriate or not. Green was for ‘good’, meaning that the Registrant had access to the PR and that this access was justified. Orange on the spreadsheet meant that the Registrant had access to the PR and was not justified and red meant that the Registrant also had access to the PR and this action was not justified as the patient has died. Person D also told the Panel that after conducting this audit he passed his findings on to another colleague for them to compile a report. 
 
54. When asked by the Panel, Person D informed the Panel that whilst he did have experience in conducting audits, as he was required to conduct audits for “pain assessments” as part of physiotherapy practice, he told the Panel that he had never conducted an audit of all PR’s seen by one practitioner, in the manner he had with the Registrant’s PR’s, previously. 
 
Person G:
 
55. Person G told the Panel that she is a Senior Physiotherapist for the Trust and that she has worked for the Trust since 2005, which was also the year she qualified as a Physiotherapist. She told the Panel that she holds a complex case list and is the co-lead for a team of fourteen mental health physiotherapists.
 
56. Person G told the Panel that the Registrant was employed, as a locum Physiotherapist, by the Trust, from 22 March 2021 to 02 September 2021. Person G explained to the Panel that on 02 September 2021, she received an email from Person D regarding a DBS check undertaken by the Registrant’s recruitment agency. Person G stated that it pertained to the nature of the Registrant’s convictions present on his DBS.
 
57. On the morning of the 02 September 2021, Person G stated that she met with her line manager and they decided together to escort the Registrant from the Trust premises. Person G also informed the Panel that she, in conjunction with another colleague, decided to conduct an audit of the Registrant’s access to PR’s.
 
58. Person G informed the Panel that the Trust has and had at the time, an Information Governance Policy which governed which clinicians could see a PR. She told the Panel that this was in place to protect service user’s confidentiality.
 
59. Person G told the Panel that having received the spreadsheet of information from Person E that she and Person D divided the PRs between them. She told the Panel that her concern was that the Registrant had been accessing PR’s who were not his patients.
 
60. Person G also told the Panel that she reviewed the spreadsheet and adopted the colour coding. She told the Panel that patients marked green meant that the Registrant had legitimate access to a PR, orange indicated that the Registrant should not have accessed the PR but that the record had been open to another member of the team and red meant that the Registrant should not have accessed the PR in question as the patient was deceased. Person G indicated that she thought that this was a significant problem because some of the young people had been in the media or the press and had died at a young age. 
 
61. Person G told the Panel that in her view, the only PR that the Registrant needed to access was those who had been referred to physiotherapy and who had been allocated to him. Person G also told the Panel that the Registrant would only have needed to access other PR’s if there had been a discussion with another clinician and that clinician wanted advice as to whether it was appropriate to refer the patient to physiotherapy. She also told the Panel that in these circumstances the Registrant would be expected to enter a note onto the PR to record the conversation. 
 
62. Person G also told the Panel that it would not have been possible for the Registrant to access the PRs by mistake as an alert or ‘pop-up’ appears on PARIS. Person G told the Panel that alert requires the user to type in a reason as to why they wish to access the PR such as ‘discussion with clinician as to whether to refer to physiotherapy’. In response to questions, Person G also told the Panel that completion of the free-text box, which popped up as part of the ‘break-glass’ process, was mandatory and that she had reviewed each of the comment box sections and there were no comments within the PR recorded. Person G, also indicated that she was not able to assist the Panel with the meanings or context of some of the columns outlined on Person E’s spreadsheet provided to her and Person D.
 
63. Person G also told the Panel that after she had completed her audit, the information was sent on to another colleague for that colleague to formulate a report as to the Trust’s findings.
 
64. Person G also informed the Panel that she routinely undertook audits as part of her supervision, but stated that she had never had to review “207 before”.
 
Person C
 
65. Person C gave evidence to the Panel and the Panel permitted his written statement to stand as his evidence– in-chief. In his statement, Person C outlined that he is an Area Services Manager for the Trust and that he has worked for the Trust for approximately 10 years. 
 
66. Person C told the Panel that he commenced a new role as General Manager for Specialist Services in November 2021 and that by this time, concerns regarding the Registrant had already been raised. 
 
67. Person C told the Panel that his role, as part of the Trust investigation into the Registrant’s conduct was to gather together the documentation, emails, a copy of the PARIS audit, copies of the Registrant’s DBS records and correspondence from the Registrant’s employment agency. Person C told the Panel that he compiled all of this into a report, dated 01 December 2021, and he exhibited this to his statement.
 
The Registrant 
 
68. The Panel noted that the Registrant had not provided any documentation for it to consider, but that he had provided written submissions, to the HCPC in an email dated 22 September 2022 as follows: 
 
 ‘Thanks for your email. I have received the paperwork yesterday. I have to admit that this is very poorly handled by the hcpc so far. After our last telephone conversation, where I gave all the explanation, following which you have advised me that, you will get in touch, which never happened until, two days ago, an email from yourself stating my response is due by 23rd September. 
 
I have managed to put together documents as best I can. Please find attached employment reference service user/patient feedback forms My new paper columns. 
My agency has always been responsible for disclosing my dbs to the employers when forwarding my CV. The driving remarks etc. 
 
In regard to access to patient records that had no input from me: I was a floating physio covering communities and wards as the team/service seemed required. I was responsible to pick patients off the list on the Paris system, ring the patient and arrange appointments, starting with whom has been on the list long, and the postcode areas which I was covering each day. 
This means, I have to click on patient name to see the referral details, patient contact number and postcode. Not all patients would answer the phone, All this was during lockdown and getting hold of patients/nok wasn’t easy enough. There was no other reason or intention, for accessing patients notes…’
 
Decision on Facts
Panel’s Approach
 
69. The Panel was aware that the burden of proving the facts was on the HCPC and that the Registrant did not have to prove anything. The Panel also noted that the individual particulars of the Allegation could only be found proved if the Panel was satisfied on the balance of probabilities.
 
70. In reaching its decision, the Panel took into account: the oral evidence of the HCPC witnesses; the documentary evidence contained within the hearing bundles; the oral and written submissions of Ms Atkin; and the written submission of the Registrant. 
 
71. The Panel also accepted the advice of the Legal Assessor. When considering Particular 11, the Panel also had regard to the guidance provided at paragraph 74 of Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 as follows:  
 
  ‘When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. W[T]hen once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.’ 
 
Stem: 
‘As a registered Physiotherapist (PH71833):
 
 
72. The Panel had regard to the witness statements of Person F, the Registrations Manager at the HCPC. The Panel noted that Person F had informed it that, after scrutinising the Registrant’s HCPC registration record, he was able to conclude that the Registrant had first registered as a Physiotherapist, with the Health Professions Council (the predecessor to the HCPC), on 03 March 2005. 
 
73. On the basis of the information presented to it, the Panel was satisfied that the Stem of the Allegation was made out and proved by the HCPC. 
 
 Particulars 1, 2, 3 and 4 – PROVED
1. On 19 October 2020, you were convicted at South Yorkshire Magistrates’ Court of assaulting Person A by beating her. 
Contrary to section 39 of the Criminal Justice Act1988.  
 
2. On 20 April 2011, you were convicted at Oldham Magistrates’ Court of driving a mechanically propelled vehicle, on a road, namely M60 without due care and attention. 
Contrary to section 3 of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.
 
3. On 06 April 2011, you were convicted at Oldham Magistrates’ Court of driving a mechanically propelled vehicle namely large goods vehicle or passenger carrying vehicle, owing to the presence of which on a road, namely M60 an accident occurred whereby damage was caused to another vehicle, failed to stop. 
Contrary to section 170(4) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Ac 1988. 
 
4. On 20 April 2011, you were convicted at Oldham Magistrates’ Court of driving a mechanically propelled vehicle namely large goods vehicle or passenger carrying vehicle, owing to the presence of which on a road, namely M60 an accident occurred whereby damage was caused to another vehicle, and not having given your name and address to a person having reasonable grounds for requiring you to do so, failed to report the accident at a police station or to a constable as soon as was reasonably practicable, and in any case within twenty-four hours of the occurrence of the accident. 
Contrary to section 170(4) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.
 
74. The Panel had regard to both Ms Atkin’s oral submission to it and the Legal Assessors advice that Rule 10(1)(d) states:
 
 ‘where a registrant has been convicted of a criminal offence, a certified copy of the certificate of conviction… shall be admissible as proof of that conviction and of the findings of fact upon which it was based.’ 
 
75. The Panel had regard to the evidence presented to it and noted that the HCPC had produced a certified copy of each of the Registrant’s convictions, from each of the respective Magistrates’ Courts (South Yorkshire and Oldham), as outlined within Particulars 1-4. Having carefully reviewed the certified copies, the Panel was satisfied that the Registrant had been convicted of each of the offences outlined within Particulars 1-4 and therefore it was also satisfied, to the required standard, that Particulars 1, 2, 3 and 4 were proved.
 
Particular 5 – NOT PROVED
5. Between 23 March 2021 and 02 September 2021, you accessed service user records relating to up to 79 Service Users without clinical justification.
 
 
76. The Panel first considered whether it could be satisfied that the Registrant had accessed up to 79 service user records, between 23 March 2021 and 02 September 2021. Having reviewed the evidence presented by the HCPC, the Panel was persuaded that he had. In forming this view, the Panel had regard to the evidence of Person E, and noted that he had conducted an audit of PR’s accessed by the Registrant, during his employment with the Trust, and noted that Person C’s audit period of time spanned from January to December 2021. The Panel also noted that there was a long list of patients outlined within the audit excel spreadsheet which greatly exceeded 79 patients. 
 
77. Having satisfied itself that the Registrant did access service user records between the time frame specified in the Particular wording, the Panel next considered whether the Registrant had accessed the PRs without clinical justification. In its review of the evidence presented by the HCPC, the Panel was unable to conclude that he had accessed the records without clinical justification. 
 
78. In coming to this conclusion, the Panel had regard to the evidence of Person D and Person G. Both witnesses outlined their experience as Physiotherapists and as Managers working within the Trust. They both also told the Panel about their understanding of the PARIS system and the Panel noted that both witnesses also told it that the audit of the PR’s accessed by the Registrant was the first audit of this kind or scope that either of them had undertaken. 
 
79. In reviewing the evidence provided by both witnesses the Panel noted a number of inconsistencies in the witnesses’ accounts. For example, Person D informed the Panel that when he was reviewing the PR’s he applied the following colour coding: green - meant that the Registrant had legitimate access to the PR; orange – meant that the Registrant’s access to PR’s was not justified; and red- meant that the Registrant’s access to PR’s was not justified as the patient was deceased. Conversely, Person G told the Panel that she had adopted the following colour coding criteria: green – meant that the Registrant had legitimate access to the PR; orange – meant that the Registrant should not have accessed the PR but that the patient was a physio patient and open to another member of the physio team; and red – meant that the patient was deceased and the Registrant should not have accessed the PR. 
 
80. The Panel noted that the witnesses were also inconsistent on what PARIS information had been available and reviewed by each of them as part of the audit. Person D told the Panel that the ‘free-text’ box was not a compulsory section of the ‘break-glass’ process to be completed by a practitioner wishing to access a PR, but Person G informed the Panel that it was. Further, Person D told the Panel that he had not reviewed all of the ‘free-text’ box information as some of it was unavailable to him (for reasons unclear to him) and conversely, Person G had informed the Panel that she had reviewed all of the ‘free-text’ box information. 
 
81. Additionally, the Panel also noted that the HCPC had not produced the PRs for the 79 patients for the Panel to review, nor had it provided any screenshots of the PARIS system for the Panel to review for it to determine whether the ‘free-text’ box was or was not a compulsory section to be completed. Whilst Person E was able to assist on the mechanisms of the PARIS system, the Panel noted that he had also informed it that clinical justification to access a PR, was a matter for the clinical team to determine. 
 
82. Further, the Panel noted that both witnesses had stated in their evidence to it, that the Registrant may have had, on occasion, legitimate reason to ‘break-glass’ and to access a PR on PARIS for a patient not referred to the physiotherapy team. Whilst the Panel noted that both witnesses also stated that in such a scenario, they would have expected the Registrant to make an entry on the PR where such a situation occurred, given the aforementioned inconsistencies and lack of PR’s presented to it, the Panel could not be satisfied that the Registrant had not made entries, to account for his access to the PR’s, into the ‘free-text’ boxes section on the PARIS system, which had not been reviewed by Person D. 
 
83. Additionally, the Panel also noted that the majority of the colour coded entries on the spreadsheet audit were coloured either green or orange. In respect of the orange colour coded findings, the Panel noted that Person G’s witness statement outlined that orange meant that the patient was “open” to the physiotherapy team, but that she considered that the Registrant’s access to the PR was not clinically justified. Given the apparent discrepancy in what information had been available and/or reviewed as part of the audit, and given her evidence that there could be clinical justification for the Registrant accessing information if a colleague asked for it, the Panel could not rule out the possibility that that the Registrant accessed the PRs with clinical justification to access some, if not all, of the records marked orange. Whilst the Panel considered the witnesses’ evidence to it that in such a situation the Registrant should have made an entry onto the PARIS system, the Panel noted that this was not reflected in the wording of the Particular nor could the Panel be satisfied that he had not made such an entry.
 
84. In respect of the entries marked red on the audit sheet, the Panel had regard to both Person E’s and Person D’s oral evidence to it that there could be some delays in a patient being marked as deceased on the PR and therefore the PR may not be marked as ‘closed’ on the PARIS system immediately. Further, the Panel noted that it was also accepted by Person D that the physiotherapy department, much like a number of other NHS Trusts, was operating with a backlog of patients waiting to be seen and that consequently, it was entirely possible that someone could appear on one of the physiotherapy ‘lists’ and that the patient died prior to physiotherapy treatment being provided to them. The Panel also noted that Person G had informed it, that it would not have been apparent to the Registrant, that a patient had died prior to entering the PR. In the Panel’s view, this left room for significant doubt as to whether it would have been apparent to the Registrant, prior to entering a PR, that a patient had died prior to accessing the PR. Again, the Panel was not satisfied that in the aforementioned circumstances the Registrant would not have had clinical justification to enter a PR.
 
85. The Panel had regard to Person D and Person G inexperience in undertaking such a large audit of PR’s however, in view of the aforementioned discrepancies outlined, the Panel concluded that it could not rely upon the findings of the audit report undertaken by Person D or Person G. 
 
86. Consequently, the Panel was not satisfied, on the balance of probabilities, that the Registrant had accessed up to 79 service user records without clinical justification and it found Particular 5 not proved.
 
Particular 6 - PROVED
 
6. Between 2014 and 2018, you did not renew your registration with the
Health and Care Professions Council by a manual renewal form in order to declare the change to your good character or health.
 
87. The Panel had regard to Person F’s evidence. The Panel noted that Person F was the Registrations Manager for the HCPC. He had informed it, in his written statement that the Registrant was required to renew his HCPC registration every two years, in order to continue practising as a Physiotherapist. 
 
88. The Panel noted that Person F had outlined that as part of the renewal process, registrants are required to declare any change in their good character, which included any cautions or convictions they have received. The Panel also noted that up until October 2020, if a Registrant had a change in their good character status, they could not renew their HCPC registration online, but instead had to complete a manual handwritten hard copy form. Person F also informed the Panel that the Registrant would have been aware of this, because the online system would not allow him to renew electronically, if the good character/ health box was ticked. Person F further outlined that a message would be displayed on the screen advising the Registrant that he needed to use a hard copy form to make a declaration as to his convictions or health. 
 
89. The Panel noted that Person F also outlined, after reviewing the Registrant’s HCPC registration record, that the Registrant had renewed his registration online, without submitting a hard-copy form declaring a change in his health or conviction status on the following dates: 19 February 2014, 18 February 2016 and 19 February 2018.
 
90. Having regard to the above and the evidence produced by the HCPC, the Panel was satisfied that the Registrant did not renew his HCPC registration by a manual renewal form, as required to do, in order to declare the change to his good character or health, between 2014 and 2018.
 
91. Consequently, Particular 6 is proved. 
 
Particular 7 - PROVED
 
7. On 26 February 2012, you signed the application form to renew your registration with the Health Professions Council and checked the box to confirm there has been no change relating to your good character when this was not the case.  
 
92. The Panel again referred to the evidence of Person F. In doing so, it noted that Person F had informed the Panel that the HPC was the predecessor regulator to the HCPC, which was created in 2012.
 
93. Person F also told the Panel that after checking the Registrant’s registration record, he could see that the Registrant had, on 26 April 2012, renewed his registration via a manual (hard copy) declaration and that the Registrant had marked the form to declare that ‘there have been no changed to my health or relating to my good character which I have not advised HPC abut and which would affect my safe and effective practice of my profession’. The Panel also noted that Person F had produced the hard copy form to it as an exhibit. 
 
94. The Panel reviewed the form and noted that the box outlined by Person F, stating that there was no change to the Registrant’s conviction status had been ticked and that the form had also been signed and dated 26 February 2012. The Panel also had regard to the certificates of conviction, produced by the HCPC and noted that they outlined that the Registrant had been convicted of the motoring offences, outlined in Particulars 1-3 of the Allegation, between 06 April 2011 and 20 April 2011. 
 
95. Having regard to the aforementioned, the Panel determined that, on 26 February 2012, the Registrant signed the application form to renew his registration with the Health Professions Council and that he checked the box to confirm that there had been no change relating to his good character when this was not the case. 
 
96. Consequently, the Panel found Particular 7 proved. 
 
Particular 8 - PROVED
8. On 15 May 2020, you signed the application form to renew your registration with the Health and Care Professions Council and checked the box to confirm there has been no change relating to your good character when this was not the case. 
 
97. As the Panel had done with Particular 7, the Panel again considered the evidence of Person F. The Panel noted that Person F had stated that upon reviewing the Registrant’s registration record, he was able to determine that the Registrant had renewed his registration online (as he was now permitted to do, owing to a change in the operation of the registration department) on 15 May 2020, and that he had again ticked the box, with an ‘x’, which stated: ‘Since my last registration there has been no change relating to my good character (this includes conviction or caution, if any, that you are required to disclose), or any change to my health that may affect my ability to practise safely and effectively’. The Panel noted that Person F had exhibited the Registrant’s form to his witness statement. 
 
98. Upon reviewing the form, the Panel could see that the application had been made in the Registrant’s name, the aforementioned box had been ticked, or marked with an ‘x’ and that the form was signed and dated 15 May 2020. 
 
99. The Panel also had regard to the certificate of conviction, produced by the HCPC, which outlined that the Registrant was present at court, on 19 October 2020, when he was convicted of assaulting Person A by beating her.
 
100. Having regard to the evidence presented, the Panel was satisfied to the requisite standard that, on 15 May 2020, the Registrant signed the application form to renew his registration with the Health and Care Professions Council and checked the box to confirm there has been no change relating to his good character when this was not the case, as he had been convicted of an offence of Assault. 
 
101. Consequently, the Panel found Particular 8 proved.
 
Particulars 9 and 10 - PROVED
 
9. You did not inform the HCPC in a timely manner that you had been convicted of the offence at particular 1 above, as required by the SCPE applicable at the time.  
 
10. You did not inform the HPC and/or the HCPC in a timely manner that you had been convicted of the offence at particular 2, 3 and 4 above, as required by the SCPE applicable at the time. 
 
102. The Panel noted that Person F had informed it that the Registrant was subject to the HCPC’s Standards of Conduct Performance and Ethics (‘SCPE’) and that, in particular Standard 4 (prior to 2016) and Standard 9.5 (after 2016) required that the Registrant, having received a conviction or caution, should have informed the HPC and/or the HCPC as soon as possible in line with the SCPE.
 
103. The Panel noted that Person F, as part of his written evidence, had confirmed that the Registrant had renewed his registration with the HPC on 26 April 2012 and subsequently, the HCPC on the following dates: 19 February 2014; 18 February 2016; 19 February 2018; and 15 May 2020. The Panel noted that, at each renewal process date, and in-between each renewal round (every two years), the Registrant had not notified the HPC or the HCPC of his convictions (as outlined in Particulars 1,2,3,4) at the appropriate and relevant time when he was required to do so. 
 
104. In forming this view, the Panel noted that Person F had informed it that the Registrant had last contacted the Registrations department, at the HCPC, on 18 May 2020 when it received a physical renewal form by post from him and that up until this point, he had never declared his convictions to it. 
 
105. The Panel noted that the Registrant was convicted of the offences, outlined at Particular 2, 3 and 4 (Road Traffic Offences) in April 2011 and the offence outlined at Particular 1 (Assault by beating), in October 2020. The Panel also noted the obligation bestowed upon the Registrant, by each respective SCP in place at the time (pre 2016 and post 2016 versions), to inform the HPC and the HCPC of a conviction within a timely manner. 
 
106. The Panel had regard to Person F’s evidence, which it accepted. The Panel noted that Person F had indicated that the HPC had not been aware of the Registrant’s convictions, nor had the HCPC. Further, the Panel noted that Person F also told it that the Registrant had not contacted the Registrations team, at the HCPC, since May 2020. The Panel considered not contacting or informing the HCPC at all of any of his convictions, could not be considered timely in any person’s interpretation or view. 
 
107. Consequently, the Panel concluded that the Registrant did not inform the HPC or the HCPC, in a timely manner (or at all), that he had been convicted of the offences outlined within Particulars 1, 2, 3 and 4, as he was required to do by the SCPE in place at the relevant time. 
 
108. The Panel therefore found Particulars 9 and 10 proved. 
 
 
Particular 11 - PROVED
 
11. Your conduct in relation to particular 6, 7, 8, 9 and 10 above was dishonest.
 
109. The Panel had regard to the guidance outlined in Ivey v Genting Casino’s. It also had regard to the HCPTS practice note titled: ‘Making decisions on a registrant’s state of mind’. 
 
110. The Panel first considered what the Registrant knew or believed at the time. The Panel noted that the Registrant had been convicted of three offences relating to Road Traffic Offences in April 2011 and that he was subsequently convicted of a further offence, of assault by beating, in October 2020. The Panel had regard to the registration renewal documentation adduced before it and also to the SCPE guidance which was in place throughout the Registrant’s registration with either the HPC or the HCPC for the relevant periods of time (2011-2020 and beyond). The Panel noted that both sets of documentation were very clear in terms of the expectation on any registrant in that if there is a change in a registrant’s conviction status that this should either be declared as part of the renewal process or that it should be disclosed in a timely manner, if the conviction fell between registration cycles. 
 
111. The Panel noted, in respect of the Registrant’s convictions for Road Traffic offences, dated 2011, the Registrant had been required to attend his sentencing hearing and at that hearing he had, via his representative, informed the Magistrates’ court, that he would suffer financial hardship and would lose his job as a physiotherapist if he was disqualified from driving. The Panel also noted that when the Registrant was convicted of Assault by beating, in October 2020, the Registrant was again present in court and he was also present when a sentence of 150 hours of unpaid work was handed down. 
 
112. The Panel determined, having regard to the above, that it was very clear to it that the Registrant was fully aware of his convictions and that it could not be said that he was not aware of them. Further, the Panel also concluded, further to the evidence presented by the HCPC, that as part of the registration’s renewal process, it would also have been abundantly apparent to the Registrant that he should declare his convictions to the HPC and/or the HCPC when he completed each of the registration renewal forms and the Panel had already determined that he failed to do so.
 
113. Additionally, the Panel also considered that the Registrant, as a Band 6 Physiotherapist, with an obligation to undertake continuing professional development, would have known he was subject to the relevant SCPE and that the SCPE placed a clear obligation on him to declare any change in his circumstances regarding his convictions. Again, the Panel had regard to its earlier finding that the Registrant had not done so.
 
114. The Panel also had regard to the Registrant’s submission to the HCPC that his employment agency was responsible for his DBS submissions to his employers. However, in the Panel’s view, this explanation was not plausible because as a Registrant there is a clear obligation to inform his regulator and his submission also did not address why he had failed to declare his convictions to his regulator.
 
115. In addition, the Panel had regard to Person D’s evidence that when he had raised the DBS matter with the Registrant, when it first came to his attention, the Registrant had informed him that his conviction (singular) related to a ‘bald tyre’ when this was clearly not the case.
 
116. The Panel next considered, given the Registrant’s knowledge and/or belief, whether the Registrant’s conduct would be considered to be dishonest by an ‘ordinary decent person’. The Panel determined that it would. 
 
117. The Panel concluded that an ‘ordinary decent person’ would expect all healthcare professionals who receive a conviction for any offence to declare that conviction or convictions to its regulatory body so that the appropriate steps could be taken, to review the conviction and to determine whether a Registrant poses a risk to public safety and/or poses a risk to public confidence in the profession.
 
118. In the Panel’s view, the Registrant was aware of the obligation upon him to declare his convictions to his regulator and the Panel determined that his motive for not doing so was to avoid regulatory oversight and/or regulatory action being taken against him. The Panel concluded that an ordinary decent person would consider the Registrant actions to be dishonest.
 
119. Consequently, the Panel determined that the Registrant’s conduct in relation to Particulars 6, 7, 8, 9 and 10 was dishonest.
 
Decision on grounds
 
120. Having found Particulars 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11 proved, the Panel went on to consider whether the Registrant’s conduct amounted to the statutory grounds of conviction and/or misconduct.
 
121. The Panel took into account the oral submissions made by Ms Atkin on behalf of the HCPC. The Panel accepted the advice of the Legal Assessor and it also had regard to the HCPTS Practice Note titled ‘Conviction and Caution Allegations’.
 
122. The Panel was satisfied that a conviction is one of the statutory grounds specified under Article 22(1)(a) of the Health Professions Order 2001. Consequently, the Panel determined that Particulars, 1, 2, 3 and 4 amounted to the statutory ground of conviction.
 
123. The Panel next considered whether Particulars 6, 7, 8, 9, 10 and 11 amounted to misconduct.
 
124. In considering the issue of misconduct, the Panel bore in mind the explanation of that term given by the Privy Council in the case of Roylance v GMC (No.2) [2000] 1 AC 311 where it was stated that: 
“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a … practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the misconduct to the profession ... Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.”
 
125. The Panel considered the HCPC Standards of Conduct, Performance and Ethics (SCPE) and was satisfied that the Registrant’s conduct breached the following standards:  
• 9 – Be honest and trustworthy;
• 9.1- You must make sure that your conduct justifies the public’s trust and confidence in you and your profession; and 
• 9.5 – You must tell us as soon as possible if: 
- You accept a caution from the police or you have been charged with, or found guilty of, a criminal offence; 
- …
- …
 
126. The Panel was aware that a breach of the standards alone does not necessarily constitute misconduct. However, the Panel was satisfied, that the Registrant’s conduct in this case fell far below the standards expected of a registered Physiotherapist and amounted to serious misconduct. 
 
127. The Panel considered that the Registrant, as a qualified and registered Physiotherapist, had an obligation to comply with the SCPE and to be honest and act with integrity at all times. The Panel was also of the view that the Registrant’s colleagues and members of the public would expect the Registrant to comply with the law and to follow the procedures set out by the Regulator and the Registrant had failed to do so.
 
128. The Panel noted that the driving convictions pertained to: driving without due care and attention; a failure to stop and provide his details after an accident; a failure to provide his details, following the accident, at a police station. The Panel determined that a member of the public would expect a healthcare professional to act with more integrity than the Registrant clearly did in this situation. Whilst the Panel noted that the offences were now of some age, the Panel also had regard to the fact that the HPC, and in turn the HCPC, had not been afforded with an opportunity to subject the Registrant’s conduct to regulatory scrutiny because he had failed to declare the convictions to it for many years. The Panel considered this matter to be serious.
 
129. The Panel also considered the conviction for assault by beating, dating back to 2020. The Panel was of the view that any conviction for violence had to be considered as extremely serious and a significant falling short of what was expected of a registered healthcare professional. In forming this view, the Panel noted that the Registrant had been convicted of assault by beating and that after trial, he was convicted and sentenced to a Community Order of 150 hours and made the subject of a Restraining Order. The Panel also considered this matter to be serious.
 
130. The Panel next considered the Registrant’s dishonest conduct in failing to declare his convictions, when required to do so. In the Panel’s view, the Registrant’s actions in this regard were the most serious of all. The Registrant knew that he had been convicted of driving offences in 2011 and of an assault by beating in 2020. He also knew that he was under a clear obligation to disclose those offences to his regulator and he failed to do so. The Panel considered that the Registrant’s sole purpose for failing to disclose his convictions to his regulator was driven by a self-motivated desire to avoid regulatory oversight and/or scrutiny for his actions and behaviour. In determining the seriousness of these matters, the Panel also noted the sustained period of time in which the Registrant had maintained his dishonest conduct and observed that it had spanned over 10 years (2011-2021) when he was found out by his then employer (The Trust). The Panel was also of the view that had the Trust not found out about his convictions, in an updated DBS certificate, the Registrant would have likely continued with his deception and in the Panel’s view, continued to not declare his convictions to his regulator. Further, in the Panel’s view the Registrant’s actions demonstrated entrenched attitudinal behaviour in thinking that laws and standards did not apply to him.
 
131. In coming to the conclusion that the Registrant’s conduct amounted to a serious misconduct, the Panel also noted that the Registrant’s convictions and subsequent deception had a tangible and adverse effect on his colleagues at the Trust. In forming this view, the Panel reminded itself of the evidence of Mrs Fordham who stated that she had felt uncomfortable being in a room alone with the Registrant, after she had become aware of his conviction for assault by beating and his failure to disclose it.
 
132. Having regard to the aforementioned, the Panel was satisfied that the Registrant’s conduct in respect of Particulars 6, 7, 8, 9, 10 and 11 when considered individually and when taken together amounted to serious misconduct.  
 
Decision on Impairment
 
133. The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of his convictions and misconduct.
 
134. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note on ‘Fitness to Practice Impairment’.
 
135. The Legal Assessor advised that in determining current impairment the Panel should have regard to the following aspects of the public interest:  
i) The ‘personal’ component: the current behaviour of the individual Registrant; and 
 
ii) The ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession. 
 
136. The Panel considered all of the evidence before it, including the documentary evidence contained within the HCPC bundles and the submissions made by Ms Atkin, on behalf of the HCPC.
 
137. The Panel first considered whether the Registrant’s fitness to practise was impaired on the personal component. 
 
138. The Panel noted that the Registrant had not attended the hearing, nor had he provided any substantive response to the Allegation. When considering the Registrant’s references and Employment Reference Requests (provided to the HCPC prior to the Investigating Committee meeting), the Panel noted that the documents were dated 2011 and 2020 and that none of the documents were prepared for the purposes of these proceedings. The Panel noted that the references were of considerable age and made no mention of the regulatory proceedings faced by the Registrant. Consequently, the Panel considered that it could not give any weight to the documents submitted by the Registrant.
 
139. In addressing the personal component of impairment, the Panel next asked itself whether the Registrant is liable now or in the future to repeat the conduct of the kind that led to his convictions or his dishonesty in failing to declare his convictions. In reaching its decision the Panel had particular regard to the issues of insight, remorse and remediation. 
 
140. The Panel noted that in the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin) Mrs Justice Cox stated:  
 “When considering whether or not fitness to practise is currently impaired, the level of insight shown by the practitioner is central to a proper determination of that issue.” 
 
141. The Panel also had careful regard to Silber J’s guidance in Cohen v GMC [2008] EWHC 581 (Admin) that panels should take account of:  
• whether the conduct which led to the charge is easily remediable;
• whether it has been remedied; and
• whether it is highly unlikely to be repeated.
 
142. The Panel noted that since responding to the HCPC in September 2022 (for the purposes of the Investigating Committee meeting), the Registrant had not engaged in the regulatory proceedings. The Panel considered whether it had anything before it which demonstrated that the Registrant had demonstrated any reflection, remorse or remediation and concluded it did not. The Panel was disappointed that the Registrant had not come before his regulator to explain his conduct and/or the circumstances that led to his convictions or his ongoing deception and dishonesty. In the absence of any up-to-date information from the Registrant, the Panel was of the view that it was unable to conclude that the Registrant had demonstrated any insight, reflection or remorse, in respect of the Panel’s findings or the conduct which led to his convictions.
 
143. The Panel appreciated that demonstrating remediation following a finding of dishonesty is inherently difficult. In considering whether the Registrant has remediated his conduct the Panel again considered the lack of information before it. In doing so, the Panel noted that the Registrant had not provided any information in respect of steps that he may have taken to address his convictions or his dishonest conduct. In the Panel’s view, the Registrant had taken premeditated steps to avoid declaring his convictions to his regulator and consequently, the Registrant’s conduct and behaviour continued to pose a real risk to the public.
 
144. The Panel also concluded that the Registrant’s actions brought the profession into disrepute, breached fundamental tenets of the profession and demonstrated that his integrity could not be relied upon. There was no evidence before the Panel that the Registrant had fully and appropriately reflected on these issues, all of which are fundamental to the role of an autonomous Physiotherapist and therefore the Panel was led to the inevitable conclusion that there is an on-going and real risk of repetition.
 
145. The Panel therefore concluded that the Registrant is currently impaired on the personal component.
 
146. The Panel next considered whether the Registrant’s fitness to practise is impaired on public interest grounds. In considering the public component the Panel had regard to the public interest, which included the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour.
 
147. The Panel also had careful regard to the public policy issues identified by Silber J, in the case of Cohen when he said: 
 “Any approach to the issue of whether .... fitness to practise should be regarded as ‘impaired’ must take account of ‘the need to protect the individual patient, and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour.”
 
148. The Panel was of the view that the reasonably informed member of the public would consider the Registrant’s convictions and dishonest conduct to be extremely serious. He had been convicted of serious motoring offences and an assault by beating and he had also failed to disclose his convictions to his regulator for a prolonged period of time, thereby avoiding regulatory intervention and oversight in respect of his fitness to practise. In doing so, the Panel was of the view that the Registrant had breached fundamental tenets of the profession.
 
149. The Panel was also of the view that the public have to be able to trust healthcare professionals. Having been convicted of an offence involving violence, alongside a regulatory finding of dishonesty, the Panel was satisfied that the public would determine that it could no longer have any trust or confidence in the Registrant.
 
150. Further, the Panel also considered that public trust and confidence in the wider profession, alongside the need to maintain confidence in the profession and to declare and uphold proper standards, would be undermined if a finding of impairment were not made in the circumstances of this case.
 
151. The Panel therefore concluded that the Registrant’s fitness to practise is currently impaired on both the personal and the wider public interest components.
 
Decision on Sanction
 
152. In reaching its decision on sanction, the Panel took into account the submissions made by Ms Atkin’s on behalf of the HCPC. Ms Atkin did not propose a particular sanction in this matter, but she submitted that given the nature and gravity of the Panel’s findings and the risk which the Panel had found to the public and public interest, a sanction at the higher end of the scale was likely to be appropriate. Ms Atkin also referred the Panel to the ‘Sanctions Policy’.
 
153. The Panel referred to the ‘Sanctions Policy’ issued by the HCPC when making its decision and it accepted the advice of the Legal Assessor.
 
154. The Panel had in mind that the purpose of sanction was not to punish the Registrant, but to protect the public, maintain public confidence in the profession and maintain proper standards of performance, conduct and ethics. The Panel was also cognisant of the need to ensure that any sanction is proportionate. 
 
155. To assist it in assessing the relevant level of sanction, the Panel identified the following mitigating and aggravating factors. 
 
156. The Panel determined that there were no mitigating factors which it could have regard to in this case. In reaching this conclusion, the Panel again reviewed and considered the documents submitted by the Registrant. However, it found that the testimonial and reference documents submitted by the Registrant were not relevant to this part of its decision making as they were not current nor were they prepared with fitness to practise proceedings at the forefront of each of the author’s minds.
 
157. The Panel next considered aggravating factors in this case and concluded that the following were relevant: 
i. the Registrant had not engaged in the regulatory proceedings in any meaningful way, nor had he provided any evidence of insight, remorse or remediation;
ii. one of the Registrant’s convictions was for violence; and
iii. the Registrant’s dishonest conduct was premediated and repeated on a number of occasions. It was also sustained over a prolonged period of time (10 years).
 
158. As advised by the Legal Assessor, the Panel started its consideration of this matter from the bottom of the scale of possible sanctions. In light of the seriousness of the Registrant’s misconduct, the Panel did not consider that this was an appropriate case to offer mediation or take no further action on, since this would not protect the public.
 
159. The Panel then considered whether to caution the Registrant. The Panel was of the view that such a sanction would not reflect the seriousness of the misconduct in this case. The Panel was also of the view that public confidence in the profession and the HCPC as its Regulator, would be undermined if such behaviour were dealt with by way of a caution.
 
160. The Panel next considered whether to place conditions of practice on the Registrant’s registration. The Panel had regard to paragraph 106 of the Sanctions Policy and noted that it stated:
‘A conditions of practice order is likely to be appropriate in cases where:
• The registrant has insight;
• The failure is capable of being remedied;
• There is no persistent of general failures which would prevent the registrant from remediating;
• Appropriate, proportionate, realistic and verifiable conditions can be formulated;
• The panel is confident the registrant will comply with the conditions;
• A reviewing panel will be able to determine whether or not those conditions have or are being met; and 
• The registrant does not pose a risk of harm by being in unrestricted practice. ’
 
161. As identified at the impairment stage, the Panel noted that the Registrant had not engaged since the Investigating Committee meeting, nor had he provided any evidence that he had insight or that he was willing and/or able to comply with a conditions of practice order. For a conditions of practice order to be effective the Panel has to be satisfied that the Registrant will co-operate with any conditions imposed. In light of the Registrant’s limited engagement and insight, and considering the fact that the Registrant’s dishonest conduct was, in the Panel’s view, attitudinal, the Panel considered that it was not possible for it to formulate conditions of practice that would be appropriate, proportionate, realistic or verifiable in the circumstances of this case. The Registrant’s dishonest and violent conduct had taken place outside of the working environment and in the Panel’s view there were no appropriate conditions of practice which could be devised to ensure, or monitor, the Registrant’s ability to tell the truth, or which would prevent him from being violent again.
 
162. The Panel next considered whether to impose a Suspension Order. The Panel had regard to the Sanctions Policy and in particular it noted that at paragraph 121 that it stated a suspension order would be appropriate where: 
‘there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but that these do not require the Registrant to be struck off from the Register. These types of cases will typically exhibit the following factors: 
• the concerns represent a serious breach of the Standards of conduct, performance and ethics; 
• the Registrant has insight; 
• the issues are unlikely to be repeated; 
• and there is evidence to suggest the Registrant is likely to be able to resolve or remedy their failings’.  
 
163. Having regard to its earlier findings, the Panel was of the view that the matters found proved did represent a serious breach of the Standards of conduct, performance and ethics. The Panel also noted that it had already determined that the Registrant had not provided any evidence of insight, nor had he provided any evidence that he would be willing or able to remedy his failings. The Registrant had also not provided any evidence to the Panel to show his true understanding of the seriousness of the case. Further, in determining that a suspension order was not the appropriate sanction in this case, the Panel also had regard to its earlier findings that there was a real risk that the Registrant’s conduct would be repeated.
 
164. The Panel also formed the view that whilst a suspension order may provide the necessary degree of protection for the public, it was not satisfied that a suspension order was appropriate. This case concerned very serious misconduct and the Panel has insufficient confidence that the Registrant would be able to return to safe practice in the future because it had no information from him about his convictions, his misconduct or his understanding of the seriousness and repercussions of his actions. Further, the Panel also considered that a Suspension Order would not reflect the seriousness of the Registrant’s conduct and convictions in this case. In the Panel’s view a clear message was required, that such conduct was not acceptable. In light of all the matters highlighted in this case therefore, the Panel considered that this was not a suitable case for a period of suspension.
 
165. Having determined that a suspension order was not the appropriate order in this case, the Panel went on to consider whether the ultimate sanction of striking the Registrant from the HCPC register was appropriate in this case and it concluded that it was. In forming this view, the Panel had regard to the Sanctions Policy, but in particular paragraphs: 130, 131, 56 - 58 and 93 of the Sanctions Policy.
 
166. The Panel noted that at paragraph 130 of the Sanctions Policy, it stated that that a striking off order may be appropriate in cases involving dishonesty and/or violence and where the acts could be said to be serious, persistent, deliberate and/or reckless. In the Panel’s view, these factors were all present in this case. The Registrant’s conduct had been found to relate to: an act of violence, resulting in a criminal conviction for assault by beating; and also serious, persistent and deliberate acts of dishonesty.
 
167. The Panel next considered paragraph 131 of the Sanctions Policy which stated: ‘a striking off order is likely to be appropriate where ‘the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the Registrant lacks insight…and is unwilling to resolve matters.’
 
168. In the Panel’s view, paragraph 131 of the Sanctions Policy accurately summarises its findings in this case. The Registrant’s repeated and sustained dishonest conduct could, in the Panel’s view, have a profound impact on the trust placed in other Physiotherapists and also in the HCPC as the regulator for healthcare professionals. The Registrant had been convicted of a violent offence and had repeatedly failed to disclose his convictions to his regulator, when requested to do so, which in turn prevented the regulator from undertaking its statutory functions of: protecting the public; maintaining public confidence in the profession; and promoting and maintaining proper professional standards and conduct. The Panel considered these matters to be extremely serious and incompatible with continued registration with the HCPC.
 
169. The Panel also noted that many of the factors highlighted in case law, which indicated that a striking off order may be appropriate, were also present in this case. Including, proven dishonesty and a lack of insight.
 
170. In making its decision to strike the Registrant from the HCPC register, the Panel considered the Registrant’s interests, but it determined that they were outweighed by the need to protect the public and the wider public interest. 
 
171. Accordingly, the Panel made an Order directing the Registrar to strike-off the Registrant from the HCPC register.

Order

ORDER: The Registrar is directed to strike-off Mr Shiv Kumar Bhimasani from the date this Order comes into effect.



Notes

The Order imposed today will apply from 11 April 2024 (the operative date).

Hearing History

History of Hearings for Shiv K Bhimasani

Date Panel Hearing type Outcomes / Status
11/03/2024 Conduct and Competence Committee Final Hearing Struck off
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