Victoria V Asirvatham

The panel at the substantive hearing found particulars 1(a)(i), 1(a)(ii), 1(a)(iii), 1(a)(iv), 1(b)(i), 1(b)(ii), 1(b)(iii), 1(c), 1(d)(i), 1(d)(ii), 1(d)(iii), 1(e)(i), 1(e)(ii), 1(e)(iii), 1(f)(i), 1(f)(ii), 1(f)(iii), 1(g)(i), 1(g)(ii), 1(g)(iii), 1(h)(i), 1(h)(ii), 1(h)(iii), 1(i)(i), 1(i)(ii), 1(i)(iii), 1(i)(iv), 1(j)(i), 1(j)(ii), 1(k)(i), 1(k)(ii), 1(k)(iii),1(l), 2(a)(i), 2(a)(ii), 2(a)(iii),, 2(c)(iii), 2(d), 3(a)(i), 3(a)(ii), 3(a)(iii), 3(b)(i), 3(b)(ii), 4(a), 4(c)(i), 4(c)(ii), 4(c)(iii), 4(c)(iv), 5(a), 5(b)(i), 5(b)(ii), 5(c), 5(d)(i), 5(d)(ii), 5(d)(iii), 6(a), 6(b)(i), 6(b)(ii), 6(c)(i), 6(c)(ii), 6(d), 6(e), 7(a)(i), 7(a)(ii), 7(a)(iii), 7(c), 7(d)(i), 7(d)(ii), 7(d)(iii), 7(e)(i), 7(e)(ii), 7(f), 7(g), 8(a), 8(b), 9(a), 9(b)(i), 9(b)(ii), 9(b)(iii), 9(b)(iv), 9(b)(v), 9(c)(i), 9(c)(ii), 9(c)(iii), and 9(d) proved, that the proven facts amounted to lack of competence, and that the Registrant’s fitness to practise was impaired.

Preliminary Matters:
Application to hold parts of the hearing in private
1. The Presenting Officer, on behalf of the HCPC, applied for this hearing to be conducted partly in private as the Registrant would be referring, during the course of the hearing, to particularly sensitive matters relating to her health and personal circumstances.

2. The Registrant was present at the hearing and supported the application.

3. The Legal Assessor referred the Panel to Rule 10(1)(a) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 as amended (the Rules). Rule 10 enables all or part of the hearing to be held in private in the interests of justice, or for the protection of the private life of “the health professional, the complainant, any person giving evidence or of any patient or client.”

4. The Panel accepted the advice of the Legal Assessor and determined that any reference to the Registrant’s health or sensitive personal circumstances should be heard in private session, in the interests of justice and to protect her private life. The Panel directed that the transcript and written determination be marked accordingly.

Mandatory review
5. The Presenting Officer clarified to the Panel that this substantive order review hearing is a mandatory review, noting that the current Order expires on 30 March 2024. He said that the reference in his Skeleton Argument to this being an early review was inaccurate and that the Panel should review this order today under the provisions of Article 30(1) (rather than Article 30(2)) of the Health Professions Order 2001.

Background:
6. The Registrant is a registered Occupational Therapist (OT). She qualified as an OT in India in 1995 and became registered with the HCPC in 2005. On 8 December 2008 the Registrant began her employment as a Band 5 Occupational Therapist with 2Gether NHS Foundation Trust (the Trust), which provides mental health and learning disability services. She was responsible for adult patients with severe and enduring mental illness.

7. From 3 November 2014 to 2016, the Registrant was employed in the Wotton Lawn Inpatient Unit, which provides inpatient treatment for adults with mental illness who require hospital treatment due to an acute episode prior to returning to the community.

8. On 26 February 2018 to 2 March 2018, a panel of the Conduct and Competence Committee considered an allegation that the Registrant’s fitness to practise was impaired in relation to her responsibilities for eight separate service users over the period March 2015 to May 2016. The Registrant was neither present nor represented at that hearing. The panel found that the Registrant had failed in a wide range of areas of core occupational therapy skills, including the adequacy of her assessments and observations, the adequacy of her clinical reasoning, failures to initiate or implement Care Plans, and failures in respect of her case notes. The difficulties persisted despite the support provided by the Registrant’s managers in the form of a reduced caseload, a less complex caseload and supervision.

9. The substantive hearing panel also considered that the Registrant had demonstrated an alarming lack of insight. There was no evidence that the Registrant recognised the effect that her shortcomings had on service users and colleagues. The substantive hearing panel decided that the appropriate and proportionate Order was a Suspension Order for a period of 12 months.

10. At the first review hearing, the reviewing panel determined that the Registrant’s fitness to practise remained impaired and extended the period of suspension for a further 12 months. In providing its reasons for this determination, the panel complimented the Registrant on her attendance at the hearing and took the view that she was enthusiastic and motivated in relation to her role as a support worker and her desire to return to practice as an OT. However, the panel also expressed its concern that the Registrant had not appeared to understand, during the course of her evidence, that she had failed to focus on the most serious findings made by the panel at the substantive hearing. Her level of insight, the review panel added, was limited and it found no evidence that the Registrant had remediated her deficiencies to the full.

11. At the second review hearing, the panel found that the Registrant’s fitness to practise remained impaired but considered that she had gained further insight into her deficiencies and decided to impose a Conditions of Practice Order for a period of 18 months.

12. At the third review hearing, the Registrant told the panel that she had applied for Band 5 OT positions but had not yet been successful. The Registrant said that she continued to work part-time as a support worker at the Alders Clinic, a hospital providing rehabilitation for women with personality disorders and submitted a reference from her manager. She also explained that she had begun another, part-time, role as a relief rehabilitation officer at Great Western Court (GWC), a rehabilitation unit for the elderly. She continued to work as a volunteer for CRUSE bereavement care, which involved its own training, and was studying for a qualification in counselling.

13. At the third review hearing, the Registrant provided the panel with reflective case studies, appraisals and supervision records from her work and provided information about training she had undertaken for her roles and of Continuing Professional Development (CPD) training undertaken at the Royal College of Occupational Therapy. The panel saw certificates attesting to that training, including training on risk assessments for OTs. She had also obtained support and guidance with a senior OT through online sessions, which had helped her reflect on the requirements of risk assessments from an OT perspective.

14. The review panel acknowledged the proactive approach demonstrated by the Registrant, but noted that she had not worked as an OT and so had not been able to demonstrate remediation in accordance with the conditions which aimed to address the concerns found proved at the initial hearing. In particular, the panel considered that the Registrant had not been able to provide substantive evidence of assessment observations, clinical reasoning, or treatment planning and observations to a standard commensurate with that expected of an OT. The review panel observed that obtaining work as an OT assistant may assist the Registrant in re-entering the profession, whilst simultaneously allowing her to undertake the return to practice requirements. The panel imposed a Conditions of Practice Order for a further 12-month period.

15. At the fourth review hearing, the Registrant told the panel that, since the third review hearing, she had not worked in an OT role. She said she had applied for two Band 5 OT posts but had not been successful because the restrictions imposed on her registration caused potential employers concern. The Registrant stated that she had accepted a Band 4 post as a Health and Wellbeing Co-ordinator with the Complex Care team of Gloucestershire Health and Care NHS Foundation Trust (the Trust). She added that she was taking an integrated approach, utilising occupational therapy skills, counselling and psychotherapy skills for the well-being of the service users. The Registrant said that she was also working alongside a Band 6 OT, LL. There was information before the panel that LL had agreed to support the Registrant with her return to practice. The Registrant said that, to meet the requirements of a Band 5 post, her understanding was that she would need refresher training in all areas because she has not practised as an OT since 2016.

16. At the fifth review hearing, the HCPC invited the panel to impose conditions of practice for a further 12 months to allow the Registrant sufficient time to acquire a placement as an OT and improve her skills to the requisite standard. The Registrant provided evidence that she had become registered as a counsellor and psychotherapist for the British Association for Counselling and Psychotherapy (BACP), and was planning to start work imminently in this new role for Great Oaks Hospice in Coleford, Gloucestershire, on a part-time basis. She was also a volunteer counsellor for CRUSE bereavement care. The Registrant did not accept that her practice was currently impaired but recognised, inferentially if not directly, that if the panel disagreed with this, she needed to continue with the steps already being taken to complete the enrolling process to join the return to practice course. She stated that she was continuing to receive help and support with this and had discussed with her mentor the topic of transferring the skills she had been honing to the role of an OT. The panel was impressed by the hard work the Registrant had put in to improve her knowledge and skills, but was of the view that she did not yet fully understand the importance of fulfilling the conditions of practice as drafted. The panel was of the view that while the Registrant had developed considerable insight and shown that she is capable of making proper assessments and competent record-keeping (which the panel considered to be the centrepiece of the case), there is no evidence that she has been able to do this from the perspective of an OT. The panel commented that no clinical reasoning had been provided within the otherwise helpful documents supplied by her. The panel imposed a further Conditions of Practice Order for a period of 9 months and stated the following: “The purpose behind the imposition of these conditions is to ensure that the Registrant enters a supervised OT practice to undertake assessments and demonstrate that she can perform an analysis of Service Users’ needs. She will need to show competence as an OT in the fields of assessment, intervention and reviews of intervention. It is fundamental that the Registrant completes a return to practice course satisfactorily.”

Submissions:

17. Prior to this review hearing, the Panel received a skeleton argument dated 11 March 2024 prepared by Blake Morgan LLP, on behalf of the HCPC (the Skeleton Argument). The Presenting Officer referred the Panel to the HCPTS Practice Note ‘Review of Article 30 Sanction Orders’ which details the factors to be taken into account, when assessing what, if anything, has changed since the current Order was imposed or last reviewed. The Presenting Officer said that the HCPC’s position in relation to impairment of fitness to practise and any appropriate sanction order was neutral and was left for the application of the judgment of the Panel.

18. The Registrant provided a bundle of 229 pages of evidence to be considered by the Panel today, including: a Certificate from Coventry University Faculty of Health and Life Sciences dated February 2024 attesting to the Registrant’s successful completion of the Allied Health Professional Return to Practice course; an email dated 7 February 2024 to the HCPC, providing an update in relation to the Registrant’s current circumstances; a reflective piece titled “Learning from Mistakes: A Journey of Growth and Achievement”; a document called “Comparative Remediation” in which the Registrant sets out her “Past Failures” and what she has done in terms of “Remediation”; a reference letter dated 28 February 2024 from the Registrant’s mentor, Professional Advisory Service Manager at the Royal College of Occupational Therapists; and numerous case studies.

19. The Registrant asked the Panel to take account of her hard work since the last review hearing, particularly the fact that she has complied with the previous panels’ requirement of her to successfully complete a Return to Practice course. The Registrant did not believe her fitness to practise to be currently impaired and asked the Panel to remove the Conditions of Practice Order.

20. The Registrant told the Panel that she has not yet applied for registered OT roles. She is currently working as a Rehabilitation Officer for Gloucestershire County Council, a non-qualified role, and is principally involved in admission and discharge assessments, care plans for falls, and risk assessments for COVID. She said that she works alongside registered OTs. The Registrant told the Panel that it is her understanding that, were she to be successful in her application for a Band 5 role, she would still be supervised by a Band 6 OT. She said that she would aim to return to work in a registered role on a part-time basis, initially. This, in her view, would protect her own well-being, service users, and her colleagues.

21. In answer to a Panel question, the Registrant explained that the difference between her current non-registered role and the role of a registered OT is that the registered role would involve more decision-making on “complicated equipment and treatments” and would bring more accountability and responsibility. She accepted that she is not yet “completely equipped” to make decisions by herself and that she would want to attend training with a supervisor to help make the transition to a registered role.

22. In relation to her personal circumstances, the Registrant told the Panel that she is in a much better place now, well supported with friends and in a community, and would have far more confidence to approach her supervisor and disclose details of her private life, should this be necessary in the future.

Decision on Impairment:

23. The Panel received and accepted the advice of the Legal Assessor. The Panel was mindful of its powers upon a review of a Conditions of Practice Order under Article 30(1) of the Health Professions Order 2001 and referred to the HCPTS Practice Notes, Review of Article 30 Orders and Fitness to Practise Impairment. The Panel’s task is to conduct a comprehensive review of the Order in light of the current circumstances. The Panel must first decide whether it finds the Registrant’s fitness to practise to be currently impaired by reason of lack of competence. The Legal Assessor advised that, in accordance with the guidance in the case of Abrahaem v GMC [2008] EWHC 183 (Admin), it is for a registrant to fully acknowledge why past performance was deficient and demonstrate that, “through insight, application, education, supervision and other achievement”, she has sufficiently addressed the past impairments. In practical terms there was a persuasive burden on the Registrant to demonstrate that her fitness to practise is no longer impaired and that the shortcomings which led to the original finding of impairment have now been overcome.

24. The Panel bore in mind that it must first decide if a finding of current impairment is necessary to protect the public from any risk of harm (assessing the extent of that current or future risk), maintain public confidence in the profession, or to declare and uphold the proper standards of conduct or behaviour. This is a matter for the Panel’s independent judgment and is essentially a risk assessment in light of all the information before the Panel today.
25. In the Panel’s view, the Registrant’s lack of competence arising from the incidents found proved in 2015-2016 was serious and involved breaches of her professional standards. The Panel commended the Registrant for her significant progress in relation to completing the requisite Return to Practice course. The Panel considered that the Registrant’s insight has developed further since the last hearing and was satisfied that she has demonstrated sufficient insight into her past failings and the impact that her failings had on those in her care.
26. The Panel was mindful, however, that the Registrant has not worked as an OT since 2016. The Registrant has not yet applied for an OT role and so has not had an opportunity to practise in a registered role and demonstrate remediation while subject to the Conditions. In the Panel’s view, there is insufficient evidence that the concerns underpinning the Registrant’s impaired fitness to practise have been addressed sufficiently such that the risk of repetition is “highly unlikely” as per the guidance in the case of Cohen v GMC. Without being tested in the OT environment, which is substantively different to the role which the Registrant currently undertakes, the Panel concluded that there remains a real risk of repetition of the original concerns. The Panel concluded that the Registrant remains liable to put vulnerable service users at unwarranted risk of harm in the future and that the Registrant remains impaired on public protection grounds. Therefore, the Registrant’s fitness to practise remains impaired on the basis of the personal component.
27. The Panel also considered the wider public interest in the case. In the absence of remediation, members of the public would be concerned if such a Registrant, who has not practised since 2016, were able to practise without restriction. In these circumstances, the Panel was of the view that the need to uphold confidence in the profession and the regulator would be undermined if a finding of impairment were not made. The Registrant is not safe to practise unrestricted given her current impairment and the public interest requires that she should not be in a position to practise unrestricted.
28. Thus, the Panel found that the Registrant remains impaired on both the personal and public components.

Decision on Sanction:

29. The Panel next went on to consider sanction and took into account the HCPC Sanctions Policy. The Panel bore in mind that sanction is a matter for its own independent judgement and that the purpose of a sanction is not to punish the Registrant. Any sanction must be proportionate, so that it is the least restrictive order necessary to protect the public interest.

30. The Panel first considered taking no action and letting the Order lapse upon its expiry. The Panel concluded that, in view of the lack of sufficient remediation, it would be inappropriate to take no action. It would be insufficient to protect the public and maintain public confidence and uphold the reputation of the profession. The Panel concluded that a Caution Order, which would not place any restriction on the Registrant’s practice, would be inappropriate and insufficient for the same reasons.

31. The Panel next considered extending the Conditions of Practice Order. It was of the view that the identified deficiencies are remediable, and that the Registrant has demonstrated a genuine desire and commitment to resolving the areas of practice to be addressed. As such, the Panel concluded that it was possible to devise appropriate, workable, and realistic Conditions of Practice that would protect the public and allow the Registrant to return to safe practice.

32. It carefully considered the conditions which are currently in place and removed Condition 1 in light of the Registrant’s successful completion of the Return to Practice course. The Panel considered that the remaining conditions are focused on the identified deficiencies in the Registrant’s practice as an OT and that they are explicit as to what is required of the Registrant. The Panel made some further amendments and additions in order to ensure that the requirements with which the Registrant must comply are clear and comprehensive. The overall intention of the conditions has not changed. The Panel was satisfied that the revised conditions are appropriate and proportionate, and balance the need to protect the public and the public interest, as well as allowing the Registrant to practise safely.

33. The Panel has therefore determined that the appropriate and proportionate sanction is to extend the Conditions of Practice Order for a period of 12 months and to vary the Conditions as set out below. The Panel considered that this period of time should allow the Registrant to obtain employment as an OT and demonstrate full remediation of her practice.
34. The varied Conditions of Practice Order will begin when the current Order expires.

Order:
The Registrar is directed to vary the Conditions of Practice Order against the registration of Ms Victoria V Asirvatham for a further period of 12 months on the expiry of the existing order.

The Conditions are:

1. You must place yourself and remain under the supervision of a clinical supervisor in your workplace, who must be an OT registered by the HCPC. You must follow their advice and recommendations. You must supply details of your clinical supervisor to the HCPC within one month of beginning in a post as a registered OT. If your clinical supervisor changes, you must inform the HCPC within one month of the change coming into effect.

2. You must have monthly supervision meetings with your clinical supervisor in relation to the following areas of your practice:
a) Assessment/risk assessment;
b) Clinical reasoning;
c) Treatment planning and evaluation.
Prior to the next review of this Order, you must provide to the HCPC a written reflection, detailing your learning in relation to 2(a)-(c) above.

3. You must provide a written report from your clinical supervisor commenting on your ability to perform the OT process in respect of conducting observations; conducting assessments; devising written clinical reasoning; treatment planning and evaluation; and your record keeping standards.

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

5. You must inform the following parties that your registration is subject to these conditions:
A. any organisation or person employing or contracting with you to undertake professional work;
B. any agency you are registered with or apply to be registered with (at the time of application); and
C. any prospective employer (at the time of your application).

The Order imposed today will apply from 30 March 2024.
This Order will be reviewed again before its expiry on 30 March 2025.

History of Hearings for Victoria V Asirvatham