Markus Matkovits

Preliminary Matters

The nature of this case

1. On 11 October 2019, a panel of the Investigating Committee met to make “case to answer” decisions. Two allegations were put before that panel for such a decision. One of the allegations in respect of which a “case to answer” decision was sought was an allegation of misconduct and/or lack of competence based on the factual particulars which were those being considered by the present Panel (before the amendment to which reference is made below). These original factual particulars were those numbered 1 to 5 inclusive in the Allegation as set out above. The other allegation in respect of which a case to answer decision was sought was an allegation that the Registrant’s fitness to practise was impaired by reason of impaired health. The decision of the Investigating Committee was that a case to answer had been established in respect of both of the allegations it was asked to consider. It decided to refer the allegation based on impaired health, and that referral was made to the Health Committee.

2. At a Preliminary Hearing held on 8 October 2020, the HCPC applied to a panel of the Health Committee for a direction that the substantive hearing should take place before the Conduct and Competence Committee, and that the issues to be decided should be the misconduct and lack of competence ones in respect of which the “case to answer” determination had been made on 11 October 2019. The Registrant, through Counsel by whom he was then represented, opposed the HCPC’s application. However, the direction sought by the HCPC was granted.

3. It followed from this explanation that the focus of the present Panel was on the misconduct and/or lack of competence issues in respect of which a case to answer was determined on 11 October 2019. Included in documents submitted to the Panel in advance of the commencement of the hearing was a Skeleton Argument that was framed on the assumption that the Allegation was a “dual allegation” and that it would be necessary for the health allegation to be considered (and possibly disposed of) after the Panel had finally concluded its consideration of the misconduct and/or lack of competence allegation. In fact, the Panel accepted the view that had been expressed that the decision of the Investigating Committee was not, strictly speaking, a “dual allegation” because the two allegations were not included in one composite referral to a Practice Committee. However, it was suggested that the Panel should consider whether any disposal of the health allegation was required when it finally concluded its consideration of the misconduct and/or lack of competence allegation.

The course of the hearing

4. The Registrant was sent a Notice of Hearing on 25 July 2023 informing him that the hearing dates would be as follows, a total of 11 days:

• Monday 20 to Friday 24 November 2023;
• Monday 27 and Tuesday 28 November 2023;
• Monday 11 to Thursday 14 December 2023.

5. In the week commencing Monday 13 November 2023, the Registrant applied for an adjournment of the hearing. It was not possible for that application to be dealt with remotely during that week, so accordingly the application was considered on the first day of the scheduled hearing, Monday 20 November 2023. The outcome of the application to adjourn made by the Registrant on the first day of the hearing can be best described by reproducing, in this determination, a ruling made by the Panel on Monday 20 November 2023, which was in the following terms:

“(1.) The Registrant, Mr Matkovits, first applied for an adjournment by email on Tuesday, 14 November 2023. It was not possible for that application to be considered remotely before the first day of the scheduled hearing. He has renewed the application at the commencement of the scheduled final hearing.

(2.) The basis of the application is that the Chartered Society of Physiotherapy (“CSP”) withdrew the representation he had been expecting to receive from Thompsons, Solicitors. He was apparently notified of that withdrawal around 31 October 2023. The Panel has not seen any communication from either the CSP or Thompsons as to the reason for the withdrawal of support, but in an email of complaint written by the Registrant to the CSP complaining about the matter, he wrote, “I understand that the reason is because I was not able to provide written information in the manner required … ”. In oral submissions to the Panel, the Registrant stated that he had provided Thompsons with a document that was some 10,000 words in length, and it was deemed to be too wordy.

(3.) The Registrant stated that he was keen for the issues raised by the HCPC’s allegations to be resolved, but he felt that without support he could not do himself justice. He stated that he thought that with the right support he could produce information that would assist him.

(4.) In reply to the email of complaint to the CSP to which reference is made above, [JF], Assistant Director at the CSP, spoke to the Registrant and subsequently sent to the Registrant an email on 16 November 2023, which included the following passages:

“I informed you that there was nothing I could do to enable Thompsons support at your upcoming hearing as it is due to start on Monday 20 November and you expressed that you understood this.

With that said, you also expressed that you were seeking an adjournment of the process, which would mean a new hearing would need to be scheduled in the new year.

We agreed that you would update me as to whether this was granted on Monday or not, and that the CSP will seek to assist you in creating your response to the allegations and a reflective document, should the hearing be adjourned and not relisted until 2024.

If this is the case, I will seek an alternative solicitor to [the individual at Thompsons whom the Registrant had been dealing with], simply in order to seek a different approach from a fresh individual.

Should the hearing be heard or only adjourned a few weeks, we would remain unable to assist you.”

(5.) At a late stage in his submissions to the Panel, the Registrant stated that before Thompsons were instructed on his behalf, he had been represented by Unison, but they had also withdrawn their support for reasons not unlike those which led to Thompsons subsequently making their decision.

(6.) At an early stage, the Registrant was informed that he was not required to answer any questions that the Panel or others might ask him, and that he was not required to introduce any documents if he did not wish them to be disclosed. Additionally, the Legal Assessor informed the Registrant that legal professional privilege would apply to any requests he had made for legal advice or advice given to him by lawyers.

(7.) During the afternoon of Monday 20 November 2023, the first day of the scheduled hearing, in view of the fact that the Registrant had stated that he had prepared documents in response to the HCPC’s case (albeit documents that his representatives had not considered acceptable), the Panel asked him whether he would wish the Panel to see these responses. It was again stressed that there was no requirement that he should present them, but the Panel stated that they would not be deterred from considering them even if they were, to use the Registrant’s term “wordy”. As these documents were on the Registrant’s computer at home, the Panel decided that an early adjournment of the day’s proceedings, and a late start on the second day of the hearing, were appropriate to enable the Registrant the opportunity to consider the issue. At 09:24am on the second day of the hearing, the Registrant wrote an email to the Hearings Officer stating,

“Yesterday evening I discussed what had happened and the discussions I had had with you / the Tribunal Panel at the HCPC yesterday with my wife, brother-in-law and another [acquaintance]. I concluded that I just not do not know if my notes can be ‘safely’ released to the Tribunal panel without first being checked via a legal opinion and so have decided NOT to provide my documentation.”

As the Registrant had been informed, this decision was one he was perfectly entitled to make, and the Panel drew no adverse inferences against him as a result of him making it.

(8.) In response to the Registrant’s application, the Presenting Officer submitted that the Panel should have regard to:

• generally, the importance of proceedings being dealt with expeditiously.
• specifically in the present case, the fact that the allegations concern matters that occurred some 10 years ago;
• the fact that witnesses had been arranged to give evidence during the following days scheduled for this hearing.
• that the Registrant had been in possession of the hearing bundle since April 2023.

(9.) In reaching its decision, the Panel had regard to the HCPTS Practice Note issued in June 2022 entitled, “Postponement and Adjournment of Proceedings”. The Panel reminded itself of the fundamentally important consideration that no decision could be arrived at that would deprive the Registrant of a fair hearing.

(10.) For reasons that are too obvious to require elaboration, the public interest requires as early a resolution of these allegations as is consistent with the Registrant receiving a fair hearing. Any adjournment of the case would necessarily knock back the resolution of these already very stale allegations by many months. The Panel does not doubt the genuineness of the Registrant’s assertions that he would wish to have the benefit of legal representation, and the Panel does not attribute blame to the Registrant for the fact that he does not have it. It is neither appropriate nor necessary for the Panel to reach a view on whether the decision of Thompsons (or, before them, Unison) was justified in declining to further act for the Registrant. However, it is appropriate for the Panel to state that, having heard lengthy submissions from the Registrant that were intended to address the issue of adjournment, it is understandable why his former representatives took the view that his instructions were not sufficiently focused on the HCPC’s allegations. While accepting that events have a contextual setting, and the Registrant’s case is that the context was his employer’s [failings], it is nevertheless necessary to acknowledge that the specifics of the factual particulars have to be addressed.

(11.) In the judgement of the Panel it is very far from certain that, were the hearing to be adjourned, the Registrant would attend a hearing on a future occasion with the benefit of legal representation. It is clear from [JF]’s email of 16 November 2023, that the CSP would seek to assist him in creating a response and reflective document, and would seek an alternative solicitor to seek a different approach. In the view of the Panel, there is a very real prospect that these efforts would not lead to effective representation and/or that representation would be withdrawn for the third time. The simple reason for this is that, at the end of the day, it will require relevant input from the Registrant for any of these possibilities to result in a change in the present position.

(12.) The conclusion to which the Panel has been led is that, provided it could be satisfied that the Registrant would receive a fair hearing, the case should proceed. Having carefully considered the matter, the Panel is so satisfied. The sequencing of witnesses has already been changed to ensure that the Registrant should not be required to deal with a large number of witnesses in a short period of time, and the sequencing of the witnesses can be further reviewed as the case proceeds …

(13.) The result of these various conclusions is that the Panel has decided that the Registrant’s application for an adjournment be refused.”

6. As the hearing proceeded on the originally scheduled dates (i.e. those ending on 14 December 2023), it became clear that the eleven days allocated would be insufficient to conclude the case. The Panel succeeded in adding an additional, twelfth, day, Friday 15 December 2023. The Registrant’s evidence concluded on Friday 15 December 2023, but further days were then arranged for the case to be concluded. Closing submissions on the facts were received on Thursday 16 May 2024, and on the same day the Panel began its deliberations and continued with them the following day. The Panel handed down its written determination on the facts on Monday 20 May 2024.

The hearing to be held partly in private

7. It was apparent from information contained in the documents provided to the Panel in advance of the hearing that confidential issues, particularly those relating to the Registrant’s health, would arise in the hearing. Accordingly, at the outset of the case, the Panel directed that any mention of such matters should be treated as having been made in a private session of the hearing.

The Registrant’s response to the Allegation at the commencement of the case

8. At the beginning of the case, the Registrant was invited to respond to the Allegation and he did so. He made a number of admissions. Rather than list the matters admitted in this paragraph, the Panel took the view that it would serve to assist a proper understanding of the case if the nature of the Registrant’s response was provided when each of the particulars was addressed in this determination. There were, however, two matters that should be explained concerning these admissions. The first was that when the Registrant made this response, the factual particulars were those numbered 1 to 5 above; for the reasons explained immediately below, particulars 6 and 7 were added by amendment at a later stage. The other matter that it was important to record is that the Panel still reviewed the evidence in relation to those matters admitted by the Registrant; in other words, the Panel did not determine matters to be proven merely on the basis of the Registrant’s admission of it.

Amendment of the Allegation

9. At the beginning of the hearing, some very minor typographical corrections were made to the Allegation. These do not require further elaboration.

10. A more substantial amendment was made, however, on Thursday 16 May 2024. It was an amendment which the Presenting Officer indicated on 15 December 2023 that the HCPC would make. The basis for the application to amend arose from the Registrant’s denial that he had treated Patient A in a contraindicated manner as alleged in Particular 1. The Registrant acknowledged that he had both recorded in the patient’s notes and told his supervisor that he had treated the patient in the manner said by the HCPC to be contraindicated, but in his oral evidence before the Panel, he stated that he had deliberately fabricated those accounts of the treatment and he had not in fact treated the patient in the manner alleged.

11. On behalf of the HCPC, the Presenting Officer submitted that this account given by the Registrant necessitated an amendment of the Allegation so that it would be alleged the Registrant had knowingly made a false entry in the patient’s notes and also knowingly given a false account of his treatment, behaviour that should be framed as dishonest conduct. As stated above, the Presenting Officer indicated on Friday 15 December 2023 that the application would be made, but it was made on Thursday 16 May 2024 before the Panel received closing submissions.

12. The Registrant did not oppose the HCPC’s application. The Panel considered that it was desirable that the Allegation should enable it to consider all the relevant circumstances surrounding the treatment (or non-treatment) of Patient A. The Panel also decided that an amendment in the terms sought would not prejudice the Registrant as it alleged a case that was wholly dependent upon his own evidence. The Panel therefore acceded to the application. The Allegation as it is set out above is the allegation as amended. Particulars 6, 7, and 9 are those that were added by amendment, any other changes being consequential changes in numbering.

Background

13. This case concerned the Registrant’s work as a Band 5 Rotational Physiotherapist. He commenced his employment with Whipps Cross University Hospital Trust in January 2004, but after a merger in 2012, his employer became Barts Health NHS Trust (“the Trust”).

14. The chronology of events from the perspective of the HCPC’s case was as follows:

• It was said that concerns regarding the Registrant’s performance arose in January 2013, as a result of which a Performance Improvement Plan was instigated the following month.
• The alleged incidents involving Patient B (Particular 2) occurred in the week commencing 15 April 2013. Initially the concerns involved allegations of misleading retrospective entries in the patient’s note being made, but they then expanded to include the failure to arrange on call and weekend physiotherapy for Patient B. The investigation into these matters was said to have resulted in the Registrant being informed he was not to see respiratory patients.
• It was alleged that in breach of the instruction not to see respiratory patients, the Registrant saw one, Patient A, on 11 July 2013 (Particular 1). It was said that the treatment of Patient A on this occasion was contraindicated.
• The alleged treatment of Patient A on 11 July 2013 came to light the following day, and as a result a capability meeting was arranged on 19 July 2013, when the Registrant was put on a Performance Action Plan.
• In November 2013, the Trust decided to address all continuing concerns under a capability, as opposed to disciplinary, process.
• The incident with Patient C (Particular 3), which was said to have involved the patient suffering a fracture, was alleged to have taken place on 9 December 2013. From that time the Registrant was put on fully supervised practice.
• The Registrant was on sickness leave from December 2013 to March 2014. When he returned to work, he was placed on a training and assessment programme to manage performance. By July 2014, the Registrant was no longer on fully supervised practice, but was on a staged programme working to an increased caseload.
• In November 2015, the Registrant informed his supervisor that he had notes which had not been completed. In December 2015, the Registrant began a period of sickness leave that was to last for approximately 17 months, as he did not return until May 2017. The approximately 300 sets of incomplete notes that are the subject of Particular 4 were discovered when his caseload was re-distributed during this absence.
• The alleged failure to upload patient notes in November 2018 was said to have occurred approximately six months after the Registrant returned to work from the long period of sickness leave.

Decision on Facts

15. The HCPC called five witnesses to give evidence before the Panel. They were:

• TU, who was the Clinical Lead Therapist (Cardio-Respiratory) at the Trust. TU conducted an investigation into the issues concerning Patient B.
• JS, who was a Clinical Lead for Physiotherapy and Occupational Therapy in Older People’s Services employed by the Trust. JS line-managed the Registrant.
• LK, who was employed by the Trust as a Deputy Head of Therapies at the time relevant to the matters she dealt with.
• KG, who at the relevant time was employed by the Trust as Head of Therapies. In that role she was accountable for the provision of therapies, including Physiotherapy across the Trust’s sites.
• KJ was not a clinician, but rather was employed by the Trust as Investigation Services Manager for an organisation that was part of the Trust. She undertook an investigation into matters concerning patient notes, including those being considered by the Panel in relation to Particular 5.

16. In addition to the oral evidence of the witnesses identified above, witness statements were made by each of them. Furthermore, the HCPC’s hearing bundle contained approximately 764 pages of documentary exhibits.

17. The Registrant gave evidence over a number of days. He also called two witnesses on his behalf. They were:

• MR, who at the relevant time was a Senior Occupational Therapist.
• PB, by profession an Occupational Therapist, whose involvement with the Registrant was as a union representative.

The Registrant also produced a testimonial made by Dr SR (not the same SR called as a witness by the HCPC), which was dated 10 December 2023.

18. The Registrant also produced approximately 500 pages of documentary exhibits during the hearing. These documents were included in 13 separate electronic bundles uploaded for the Panel’s consideration.

19. The Panel accepted the advice it received from the Legal Assessor. Critically, the Panel remembered throughout that it was for the HCPC to prove relevant matters against the Registrant on the balance of probabilities. At no stage was the Registrant to be expected to disprove anything. Furthermore, the Panel also heeded the advice it received about the need to treat hearsay evidence with caution because of the inability to either challenge or explore it.

20. It would be apparent from what has been described about the length of the hearing, the number of witnesses who gave evidence during it, and the enormous number of documents produced that the Panel had a great deal of information to review when it reached its decisions on the facts. The Panel confirmed that it had regard to all of the evidence in reaching its decisions. However, to ensure that this determination is kept to a manageable length, the Panel will explain its reasons succinctly.

Particular 1 – Proved

On or around 11 July 2013 treated a respiratory patient, Patient A: -

a) when you were on restricted practice and had been instructed not to assess or treat respiratory patients; and/or

b) when the treatment was contraindicated.

21. At the commencement of the hearing, the Registrant denied both limbs of this particular. As indicated in the explanation for the amendment above, the Registrant maintained his denial that he treated Patient A in his evidence before the Panel, going so far as to volunteer that he had behaved dishonestly in contending to his supervisor and in the patient’s notes that he had.

22. Patient A was an elderly patient with a diagnosis of cancer and pathological spinal fractures. Pathological fractures can occur where the bone structure is weak, in this case due to cancer. He had spinal canal compression and spontaneous paraplegia, rib destruction, lytic lesions, a soft tissue mass, and likely lung metastases. The patient was undergoing radiotherapy. The HCPC’s case against the Registrant in respect of Particular 1 was twofold. Firstly, it was contended that he should not have been treating Patient A at all as he had been told not to treat respiratory patients. Secondly, it was alleged that, in treating the patient having disobeyed that instruction, the manner of his treatment was contraindicated.

23. The explanation for the instruction not to treat Patient A begins with the case of Patient B. The Panel will address the substance of the issues concerning Patient B when it explains its decisions in relation to Particular 2. For present purposes it is sufficient to record that, as a consequence of the Registrant’s perceived failings with regard to Patient B, TU investigated matters. On 14 May 2013, it was contended that TU communicated concerns she had to JS and that later that same day, JS informed the Registrant (who was with his senior at the time) that he was not to see any respiratory patients, but rather to pass them to a senior member of the team.

24. The Panel found that the HCPC had proved this communication was made to the Registrant on 14 May 2013. It found JS to be a reliable and accurate witness. Furthermore, her evidence was consistent with the following contemporaneous documentation:

• The Panel accepted the evidence of TU that on 14 May 2013, the day after she interviewed the Registrant, she informed JS that in her (i.e. TU’s) opinion, the Registrant should be prevented from treating respiratory patients. The Panel found that it would have been extraordinary had JS not acted on this report and recommendation.
• An email the Registrant sent to JS at 09:38 on 14 May 2013, in which the following was included: “Given the discussions yesterday (which I have been told not to discuss with anyone) [the Registrant had been interviewed by TU for the purposes of her investigation on 13 May 2013] and whilst the report is awaited, I think it best that I now longer see respiratory patients by myself”.
• Following the report that reached JS that the Registrant had in fact treated Patient A on 11 July 2013, JS wrote to the Registrant the following day, 12 July 2013. The opening sentence of her letter stated: “As previously discussed with you on 14th May 2013 you are currently on restrictive practice and should not be treating respiratory patients.”

25. For these reasons the Panel found it proved that on 14 May 2013, the Registrant was on restricted practice as alleged in Particular 1.

26. As for the contention that the Registrant did in fact treat Patient A in a manner that was contraindicated, the HCPC’s case was founded upon the Registrant’s own contemporaneous record in the patient’s notes and upon his conversation.

27. Included in a full note made by the Registrant in Patient A’s notes at 12:20 on 11 July 2013 was the following:

“Pt roled [sic] into L side lying → manual techniques to … mobilise secretions and stimulate cough. Same carried out With patient in R side lying // no coughing stimulated – no change”

28. The “percussion” used to loosen retained secretions would involve the Registrant cupping his hands and rhythmically clapping on the patient’s chest. Both that and rolling the patient (who had an unstable spinal lesion) were contraindicated treatments as they gave rise to a significant risk of further fractures of ribs or spine or pneumothorax, and, in circumstances where it was not known if the patient’s spinal canal compression was reversible, rolling the patient created a risk that the paraplegia would be permanent.

29. Having considered all the available evidence, including the Registrant’s evidence before the Panel positively asserting dishonesty by creating an entry in the patient’s notes of something that he contended did not happen, the Panel concluded that the Registrant did in fact treat the patient in the manner recorded in the notes. Had the notes recorded a competent procedure, circumstances could be imagined in which an entry in the notes might be made when the treatment had not actually been undertaken. However, the Panel was unable to accept that a note of such grossly inappropriate treatment would be invented.

30. It followed from these findings that both limbs of Particular 1 were proven.

Particular 2(a) – Proved

In relation to Patient B:-

a) Did not arrange on call physiotherapy on at least one occasion between 11 and 19 April 2013;

31. At the commencement of the hearing, the Registrant stated that he did not admit this particular.

32. A entry in Patient B’s notes made by the Registrant on 11 April 2013 read “…(consultant) requested physio this pm. on call.”

33. When interviewed by TU, the Registrant accepted that it was his responsibility to arrange on call physiotherapy. In fact no on call physiotherapy intervention took place.

34. Particular 2(a) was proven.

Particular 2(b) – Proved

b) Did not place Patient B on the physiotherapy weekend list on 2 occasions when requested to do so by a consultant and/or medical team;

35. At the commencement of the hearing, the Registrant stated that he did not admit this particular.

36. As with Particular 2(a), when interviewed the Registrant accepted that it was his responsibility to arrange physiotherapy on the weekend list. Included in the documentary exhibits presented to the Panel were the hard copy Respiratory Physiotherapy weekend list for 13 & 14 April 2013 and the hard copy of the same document for 20 & 21 April 2013. Patient B was included in neither.

37. Particular 2(b) was proven.

Particular 2(c) – Proved

c) Made entries in Patient B’s medical notes retrospectively on 20 April 2013 for treatment in the week beginning 15 April 2013 indicating that they were made at the time of the treatment;

38. At the commencement of the hearing, the Registrant admitted that on 20 April 2013 he made retrospective notes, but he did not admit that the retrospective notes indicated they were made at the time of treatment.

39. In relation to this particular, the HCPC relied upon two entries in Patient B’s notes made by the Registrant. One was dated 16 April 2013 and appeared immediately before a note recording a Multidisciplinary Team (“MDT”) meeting. The other was dated 18 April 2013 and appeared before an entry made by a Dietician at 10:55 that day. Both entries were short; the first extending to three lines, the latter to five lines which required the Registrant to write below the ruled pages of the document. Neither was timed and neither recorded any treatment having been provided.

40. The HCPC’s evidence was that a senior Physiotherapist had seen the patient’s notes after 18 April 2013 and neither entry had been there. Furthermore, the Registrant was observed by hospital staff on the ward on 20 April 2013, a Saturday, which was not one of his working days. Although the evidence produced by the HCPC was hearsay in nature, the Panel accepted it and found proved that the Registrant had made these two entries in the notes retrospectively, squeezing them into spaces left in the notes by other professionals.

41. As to the HCPC’s contention that the retrospective notes indicated they were made at the time of treatment, the Panel accepted that to be the case. Patient notes will not infrequently have entries made retrospectively, and Patient B’s notes provided examples of that practice. However, when an entry is made retrospectively, there is an expectation that the note will record the fact that they have been made retrospectively. That the Registrant understood this expectation was demonstrated by another entry he made on 20 April 2013 which read “20/04/13 PHYSIOTHERAPY (Retrospective entry for 19/4/13…”.

42. Particular 1(c) was proven.

Particular 2(d) – Proved

d) Did not demonstrate adequate assessment and/or reasoning and/or intervention between 11 April 2013 and 19 April 2013 in that you:

i. did not do a risk assessment; and/or

ii. did not review the chest x ray; and/or

iii. did not document an objective assessment; and/or

iv. did not document a full multi-systems analysis; and/or made an entry in the medical notes that contradicted a consultant’s note immediately above; and/or

vi. did not document and/or provide any treatment for a fractured humerus; and/or

v. did not record an adequate SOAP documentation.

43. When invited to respond to this Particular at the commencement of the hearing, the Registrant admitted each element save for that which related to undertaking a risk assessment, as alleged by 2(d)(i).

44. Having reviewed the evidence, and in particular the entries made by the Registrant in the patient’s notes, the Panel concluded that the admissions made by the Registrant were appropriate and correct. As to the risk assessment issue, the Panel also found that to be made out. When interviewed by TU on 13 May 2013 for the purposes of the investigation she undertook, the Registrant was unable to tell her much about Patient B. He did not tell her why Patient B was in hospital, what had happened to Patient B’s arm, or what the primary diagnosis was. Having reviewed Patient B’s notes, the Panel was satisfied that they contained no risk assessment.

45. Particular 2(d) was proven.

Particular 3 – Proved

3. On 9 December 2013 in relation to Patient C you

a) Did not carry out a risk assessment; and/or

b) Did not carry out an adequate assessment; and/or

c) Demonstrated poor clinical reasoning prior to treating the patient; and/or

d) Used a relative to help mobilise the patient.

46. When invited to respond to this particular at the commencement of the hearing, the Registrant denied each element save for 3(d), which he admitted.

47. The Panel was of the view that sub-particulars (a) to (c) were so closely related that it was appropriate to consider them together, particularly as the evidence relied upon by the HCPC was common to each.

48. Patient C was an elderly female patient with a knee replacement. The HCPC’s case was that on 9 December 2013, the Registrant was seeking to mobilise her by assisting her to stand up and take a few steps. He was mobilising the patient with the assistance of the patient’s son, and the HCPC contended that this was not appropriate as it put both the patient and her son at risk.

49. There was one issue that the Panel should address at the outset, and that concerned the nature of the patient’s “fall”. The HCPC relied upon the hearsay evidence of the patient’s son, and in his account he stated that his mother fell to the ground. The HCPC did not call either Patient C or her son to give evidence before the Panel, and it therefore followed that the issue was to be decided upon the basis of hearsay evidence that could not be tested. The Registrant’s account of the incident was that he intercepted the patient’s fall, with the consequence that she did not reach the ground. The extent of Patient C’s descent was not an issue that the Panel needed to decide; the fall was not alleged in the particulars relating to Patient C.

50. What was alleged in relation to Patient C was that the Registrant did not carry out a risk assessment, that he did not carry out an adequate assessment, and that he demonstrated poor clinical reasoning prior to treating the patient.

51. In the judgement of the Panel, this was not a case where “wisdom after the event” was being unfairly used to criticise decisions reasonably made. Rather, there was a clear signal available to the Registrant in Patient C’s notes that should have caused him to seek the assistance of another professional experienced in manual handling to assist with the mobilisation of Patient C. This was because of the entry in the notes made by CB, a Senior II Physiotherapist in the Rehabilitation Unit, on 3 December 2013, six days before the relevant day. CB’s note recorded “AO2 (min) practised moving along bed while sitting …”. This note meant that CB considered the assistance of (“AO”) a minimum of two people was required to perform the activity. There was no entry in the notes between CB’s “AO2 (min)” and the Registrant’s interventions to suggest that a different view had been taken about the degree of assistance required, and there was no indication in the note made by the Registrant that he had assessed the situation differently, or of any grounds that would justify a different assessment. He recorded that the movement of the patient from sitting to standing was undertaken with the assistance of “1/2 (son helped)” three times, and the mobilisation with a gutter frame was achieved with the assistance of one with a chair behind.

52. In the judgement of the Panel, the HCPC proved all four limbs of Particular 3.

53. Particulars 3(a) to (d) inclusive were proven.

Particular 4 – Proved

4. Had approximately 300 sets of incomplete notes when your caseload was reviewed on 7 January 2016.

54. When invited to respond to the particular at the commencement of the hearing, the Registrant admitted that there were incomplete notes.

55. The HCPC’s case was that in late November 2015, as the 2015 annual audit approached, the Registrant informed his supervisor that there were notes which had not been completed. The Registrant then went on sick leave, and during his absence the Physiotherapist covering the Registrant’s work discovered approximately 300 sets of patient notes that had been stored underneath and behind hang-down files. The notes included numerous examples of incomplete and unactioned notes. This discovery prompted the completion of a “Suspected Serious Incident Proforma” and resulted in an investigation conducted by RS, Associate Director of Nursing. The Trust’s Duty of Candour obligations required all the relevant patients to be informed of what had occurred; the discharged patients were written to and active patients were informed during face-to-face consultations.

56. The Panel found the evidence produced by the HCPC to be compelling.

57. Particular 4 was proven.

Particular 5 – Proved

5. In or around November 2018 you failed to upload patient notes in a timely manner prior to going on leave.

58. At the commencement of the hearing, the Registrant denied this particular.

59. The HCPC did not rely on direct evidence concerning this issue. Rather, it relied upon the evidence of KJ, who conducted an investigation into various matters on behalf of the Trust, one of which was this particular issue of allegedly failing to upload patient notes in a timely manner before going on leave. KJ produced a copy of her investigation report, and that included accounts given by others that were relevant to this issue. The Panel was also provided with an email dated 27 November 2018, written by SR, who was supervising the Registrant in November 2018.

60. In the email of 27 November 2018, which was sent by SR to LR, Clinical Lead for Occupational Therapy and Physiotherapy in Neurosciences, the following was stated:

“In this particular case, notes were uploaded 6 days post seeing the patient. I have tried to ensure [the Registrant] has been maintain [sic] a manageable patient case load. He worked two days last week (Tues 20th and Weds 21st) and had only 3 patient contacts in which he only required [sic] to write two sets of notes.

Towards the end of the day on Wednesday, [the Registrant] reported he had not completed his documentation. Although, we have discussed many times before that he is to avoid retrospective documentations, on this occasion I allowed him to send his notes to me by email as we were approaching out of work hours. I find it difficult to understand that he was not able to complete his notes as he only had one patient contact that day.

The next day I had not received any documentation. I phoned [the Registrant] on his home number and he was fully aware he had not completed his documentation and acknowledged he breached the professional standards with regards to completion of notes within 24 hours. He mentioned he was still working on the notes from home.

There was no further contact all week or any attempt to rectify the situation.”

61. When interviewed by KJ on 25 July 2019, SR said:

“There was a particular incident in November 2018. I Think [sic] it was 27th November 2018. I was supporting him a lot and he was only seeing 2 patients a day. It was the time he was due to go on annual leave. As I knew [the Registrant] was going on leave I was supporting him in terms of his case load and to ensure he was able to see his patients and deal with his ongoing referrals before he went on leave. This was also to ensure patients notes were completed and uploaded before he went on leave.

The day before he was due to go on leave, [the Registrant] came up to me towards the end of the day and said he had not been able to complete his patient notes. Markus had only seen one patient that particular day and I had asked him multiple times throughout the day how he was getting on to ensure that everything would be done. At my discretion I allowed [the Registrant] to write up the notes from home and to email me them so I could update the patient record. [The Registrant] agreed to do this.

I telephoned [the Registrant] the next day as I had not received an email from him and [the Registrant] told me he had not done the patient notes. He acknowledged he didn’t adhere to the HCPC standards and was in breach. I asked him again if he could do these and he said he would. This particular patient had a brain tumour which had been removed. So it was crucial to have that up to date information for this patient. This is important as there may be safety aspects we need to be made aware of when moving the patient.”

62. When KJ interviewed the Registrant about the matter, he confirmed that he left work on the relevant day without completing the patient notes. He confirmed that SR had contacted him and asked him to provide the patient notes. The Registrant stated that he was feeling unwell. He said that he left work late and felt he should not have been doing work at home. The Registrant also stated that he was not in the right frame of mind to complete the patient notes, but that he had completed the patient notes as soon as he returned from leave.

63. In the view of the Panel, it was significant that SR stated he had had a good working relationship with the Registrant, one that was not marked by disagreements. The substance of SR’s account was not disputed by the Registrant when he was interviewed by KJ. The patient notes should have been completed long before the date on which the Registrant completed them. The Panel found the hearsay evidence tendered by the HCPC to be compelling.

64. Particular 5 was proven.

Particular 6 – Not Proved

6. If, contrary to the case alleged in particular 1 above, you did not treat Patient A in a manner that was contraindicated, namely, by performing percussion and/or rolling, then you:

a. knowingly made a false entry in Patient A’s medical records by writing that you had done so; and/or,

b. knowingly gave a false account to your supervisor by stating that you had treated Patient A in that manner.

65. Consideration of this particular did not arise because it would only be necessary to do so if the Panel had found that the Registrant had not treated Patient A in a manner that was contraindicated. The Panel found that he did treat the patient in that manner.

66. Particular 6 was not proven.

Particular 7 – Not Proved

7. Your conduct alleged at particular 6 was dishonest.

67. A decision on this particular would only be required if Particular 6 had been proven. As it was not, the issue of dishonesty did not arise.

68. Particular 7 was not proven.

Summary of findings

69. The Panel found that Particulars 1 to 5 inclusive were proven. Particulars 6 and 7 were not proven. It followed that the Panel must proceed to decide if the findings of fact constituted misconduct and/or lack of competence that was currently impairing the Registrant’s fitness to practise.

Decision on Grounds

70. The Panel handed down its decision on the facts at 1:30pm on Monday 20 May 2024. In doing so, the Panel informed the Registrant that it would allow him at least until 4:00pm to read the document. The Registrant was informed that if he needed further time beyond 4:00pm, he should ask for it.

71. When the Panel reconvened after the Registrant had been given time to consider the decision that had been handed down, the Panel received the Legal Assessor’s advice on the statutory grounds of misconduct and lack of competence and also on impairment of fitness to practise. The advice was given at this stage in order to alert the Registrant to the issues that would be considered. Following the Legal Assessor’s advice, the Presenting Officer made submission on the statutory grounds and impairment of fitness to practise. The Panel then informed the Registrant that it would not expect him to address it that day, but rather would allow him until the following day, Tuesday 21 May 2024, to address the Panel. Before the Registrant left, the Hearings Officer provided hard copies of the HCPC Standards of Conduct, Performance and Ethics and the HCPC Standards of Proficiency for Physiotherapists which were referred to by the Presenting Officer in his submissions, references that were also included in the Case Summary in the HCPC’s hearing bundle. The Registrant had already been provided with a copy of the HCPTS Practice Note entitled “Fitness to Practise Impairment”.

72. On behalf of the HCPC, the Presenting Officer drew attention to the Standards of Conduct, Performance and Ethics and the Standards of Proficiency for Physiotherapists which it was alleged were breached. He also submitted that the circumstances justified a finding that the Registrant’s fitness to practise was impaired in respect of the two components which the Panel were expected to address.

73. When the hearing commenced on Tuesday 21 May 2024, the Registrant was invited to address the Panel on the statutory grounds and impairment of fitness to practise. Included in the Registrant’s submission were the following submissions:

• He said he had been “shell shocked” by the Panel’s determination on the factual issues, and was still trying to make sense of it.
• He stated that he appreciated that the Panel had been obliged to decide the case within a certain framework, but he had not been fully aware of how what he described as “the health stuff” had been separated. He had difficulty separating the health matters and the conduct issues. He stated he could now understand why he had been urged during the hearing to address the conduct issues.
• He stated that he believed he had been open and honest, and had not told an untruth. He referred to the fact that he had confessed to telling an untruth.
• He had thought at length about the behaviour of his employer. Putting his own position to one side, his one regret was that he feared the Panel’s decision would reinforce his former employer’s behaviour towards other people.

74. Although the Panel received the submissions on the statutory grounds and impairment of fitness to practise together, and proposed to make its decisions on those issues in one retirement, the Panel recognised that they were quite distinct issues that it would be required to consider not only separately but sequentially.

75. Before considering the issues of lack of competence and misconduct, the Panel thought it would assist to briefly summarise the findings in relation to the five principal particulars that had been proven.

• Particular 1 involved the treatment of Patient A, who was a category of patient whom the Registrant had been clearly informed two months earlier he should not treat. Furthermore, not only should Patient A not have been treated at all, but the treatment provided on 11 July 2013 was contraindicated, dangerous, and grossly inappropriate.
• Particular 2 involved not arranging on call and weekend physiotherapy for Patient B, writing retrospective notes that did not disclose that they had been written retrospectively, and failing to assess the patient in a number of significant respects.
• Particular 3 involved mobilising Patient C in a manner that was inappropriate without having carried out prior assessments which were required to perform the mobilisation safely.
• Particular 4 involved leaving approximately 300 sets of incomplete notes to be found in a filing cabinet.
• Particular 5 involved failing to upload the notes of a vulnerable patient in a timely manner in circumstances where the Registrant’s supervisor at the time had repeatedly requested that the notes be uploaded.

76. The Panel first addressed the question of whether the proven facts demonstrated a lack of competence. The Panel considered the Standards of Proficiency relied upon by the HCPC. However, the Panel noted that the focus of these standards is to ensure that registrants have the ability to undertake the relevant tasks. Having regard to the summary of the particulars just provided, it was clear that this was not a case of a lack of ability to act appropriately; rather, this was a case of the Registrant not behaving in a manner he fully understood was required of him. The conclusion of the Panel was that this was not a case of lack of competence.

77. The Panel then considered whether the proven facts amounted to misconduct. In this regard, the Panel considered both relevant editions of the Standards of Conduct, Performance and Ethics; those that were in force until January 2016, and those that applied from that date onwards. The former were relevant to particulars 1, 2 and 3; the latter to particulars 4 and 5.

• Of the pre-2016 Standards of Conduct, Performance and Ethics, the most serious breach was of Standard 1, “You must act in the best interests of service users”. This was because the Registrant acted in a manner which he had good reason to believe put the health, safety, and wellbeing of Patients A, B, and C in danger.
• Of the 2016 Standards of Conduct, Performance and Ethics, Standard 10.2 (“You must complete all records promptly and as soon as possible after providing care, treatment or other services”) was the most serious breach because the Registrant did not complete all his records promptly and as soon as possible after providing care or treatment.

78. The Panel acknowledged that a finding of misconduct should not be made merely because HCPC Standards had been breached. For a decision about misconduct to be made, an assessment of the seriousness of any breaches must be undertaken. With regard to the seriousness of the findings:

• The Registrant’s actions with regard to Patient A involved not only a deliberate flouting of an instruction not to treat patients with that patient’s presenting condition, but also the provision of treatment which was dangerously inappropriate. The inappropriateness of the Registrant’s treatment (and his appreciation of its inappropriateness) can be understood from the fact that the case he advanced in this hearing was a positive contention that he had behaved dishonestly in falsely recording the treatment.
• Patient B was not provided with the physiotherapy that a Consultant had requested, and the patient was not assessed.
• Patient C was not assessed and was mobilised in a manner which put not only the patient but also her son at risk of harm (the former suffering a fracture at the site of her knee replacement).
• The failure to complete approximately 300 sets of patient notes not only created the risk that incomplete notes will inevitably create with regard to the continuity of care, but also in this instance gave rise to the reputational damage arising from the Trust’s need to inform patients of what had occurred.
• The risk arising from Particular 5 was articulated by SR in his interview by KJ on 25 July 2019, when he stated that the patient had had a brain tumour removed and the notes were required to assess whether there were safety aspects of moving the patient.

79. Given the factors just identified, the Panel was satisfied that the findings of fact made in this case were of such seriousness that a finding of misconduct was appropriate. The Panel was also satisfied that fellow Physiotherapists would consider the Registrant’s actions to have been deplorable.

80. The Panel found misconduct to be established, and that finding meant that the issue of current impairment of fitness to practise must be addressed.

Decision on Impairment

81. The Panel heeded the advice it received from the Legal Assessor. It paid close attention to the HCPTS Practice Note entitled “Fitness to Practise Impairment”, and that in turn resulted in the personal and public components being considered.

82. So far as the personal component was concerned, the Panel considered that, serious though the breaches were, they were of a type that could be remedied given a desire to do so.

83. The problem in the present case was that there was an absence of evidence of any real desire on the part of the Registrant to address the issues which gave rise to this case. So far as the Panel was able to assess the matter, it would appear that this in turn was because, fundamentally, the Registrant saw the problems as arising from the Trust’s failings, rather than from any shortcomings of his own. This attitude was demonstrated very clearly on Thursday 16 May 2024, during the Registrant’s submissions to the Panel on the factual issues in the case. During his submissions he asked himself the rhetorical question, “Would I do anything differently?”. He then continued by saying, “I would certainly wish to do things differently. What would I do differently? I would certainly take them [the Trust] to a tribunal sooner”. That the Registrant did not identify that he would do things differently by heeding instructions not to treat patients, not to provide dangerous treatments, properly assess patient he was treating, arrange prescribed physiotherapy, and complete patient notes, was indicative of his attitude that the problem was in the way that the Trust had acted towards him, and not with shortcomings for which he had personal responsibility.

84. The absence of any attempts to remediate, or even an acknowledgment that personal efforts would be required to address matters, resulted in the Panel finding that there was a very significant risk that the Registrant would repeat behaviour of the type found in this case.

85. The consequence of this finding was that the Registrant’s fitness to practise is impaired on the personal component.

86. When the Panel considered the public component, it concluded that the risk of repetition, with the attendant risk of patient harm, would necessarily require a finding of the public component of impairment of fitness to practise. However, the findings of fact in this case are of such seriousness that the Panel considered that a public component finding of impairment of fitness to practise would be required even if the risk of repetition was not present. Were that finding not to be made, public confidence in the Physiotherapy profession and in the HCPC’s regulation of the profession would be diminished. Furthermore, a finding of impairment of fitness to practise was required to declare proper professional standards and to serve as a deterrent to other professionals who might otherwise feel tempted to behave in a similar way.

87. The result of these findings was that the Registrant’s fitness to practise is currently impaired on both the personal and public components. As a consequence, the misconduct allegation is well founded and the Panel must consider the issue of sanction.

Decision on Sanction

88. The Panel handed down its decision on the statutory grounds and impairment of fitness to practise in the early afternoon of Tuesday 21 May 2024. The Panel told the Registrant that it would not receive submissions on sanction that day. Rather, it would adjourn the hearing until the following day to allow the Registrant time to consider the decision and prepare any submissions he might wish to make in relation to sanction. The Registrant was provided with a hard copy of the HCPC’s Sanctions Policy to consider. The following morning, the Panel was informed that the Registrant had requested further time to prepare what he wished to say. The Panel granted that request. Accordingly, on Wednesday 22 May 2024, the hearing did not commence until 1:00pm.

89. When the hearing commenced, the Presenting Officer made brief submissions on sanction. He reminded the Panel of the HCPC’s Sanctions Policy and identified some features which might be considered to be aggravating and mitigating factors, the former being matters referred to in the decisions of the Panel already handed down. With regard to mitigating factors, the Presenting Officer referred to the fact that the clinical concerns reflected in Particulars 1, 2, and 3 occurred in 2013, after which the Registrant had undergone re-training. The Presenting Officer also confirmed that the HCPC did not submit that the Panel should apply any particular sanction.

90. Before the Registrant made his submissions, the Panel asked the Legal Assessor to give the advice he would ordinarily give after the Panel had received submissions from the parties. The Panel made this request so that the Registrant would have knowledge of the advice on which the Panel would be acting before he made his submissions.

91. Earlier in the day on Wednesday 22 May 2024, the Registrant had provided some further documents. As presented to the Panel in electronic format, these additional documents comprised of 77 pages.

92. The Registrant addressed the Panel for over two hours. He did make some mention of the specific factual particulars, and the Panel will return to some of these comments below.

93. The Panel confirmed that it accepted the advice it received from the Legal Assessor and paid close attention to the guidance contained in the HCPC’s Sanctions Policy. Accordingly, the Panel proceeded on the basis that a sanction must not be imposed in order to punish the Registrant. Rather, the factors that could justify the imposition of a sanction are the need to protect the public, the deterrent effect on other registrants, and maintaining public confidence in both the Physiotherapy profession and its regulation. A sanction should be no more restrictive than these legitimate factors require. As a finding that an allegation is proven does not of itself require the imposition of a sanction, the first question is whether the finding in a particular case requires the imposition of any sanction. If it does, the available sanctions must be considered in an ascending order of gravity until one that properly addresses the legitimate sanction aims is reached. As the finding in the present case is one of misconduct, the entire sanction range, up to and including striking off, was available.

94. When the Panel began its deliberations, it commenced by identifying aggravating and mitigating factors.

95. So far as the aggravating factors were concerned, the Panel considered them to be the following:

• Matters were repeated and serious.
• The Registrant failed to follow a direct management instruction not to treat a certain category of patient.
• The Registrant had very little insight into his shortcomings. In paragraphs 87 and 88 of this determination, when explaining its reasons for finding current impairment of fitness to practise, the Panel stated that fundamentally, the Registrant saw the problem as arising from the Trust’s failings, rather than from any shortcomings of his own. Nothing the Registrant said in his submissions on sanction enabled the Panel to decide that the Registrant had moved from that position. It was true that in his submissions on sanction the Registrant did acknowledge that Patient C (who suffered a fracture at the site of her knee replacement when she descended towards the floor) suffered harm, but nothing he said acknowledged that Patients A and B were exposed to the risk of serious harm.
• There was a very significant risk of repetition.

96. Against these aggravating matters, the Panel recognised that in the Registrant’s favour it was appropriate to recognise he had fully engaged in this fitness to practise process, and that at the commencement of the hearing he made the admissions that had already been described.

97. The Panel considered that the very limited insight shown by the Registrant and the significant risk of repetition were the factors which were crucial in reaching the decision on sanction.

98. The seriousness of the matter required a sanction to be imposed; this was emphatically not a case in which it would be proper to pass from the case without imposing a sanction.

99. In the judgement of the Panel, a caution order would not be appropriate. The Panel considered paragraph 101 of the Sanctions Policy and decided that the present case did not fit the suggested factors identified in that paragraph. The issues in this case were not isolated, limited, or relatively minor in nature, there was a significant risk of repetition, and the Registrant had not shown insight, nor had he undertaken appropriate remediation. Critically, a caution order would not impose any restriction on the Registrant’s practice to protect service users from the risk of harm. The Panel rejected a caution order as an appropriate outcome.

100. The Panel next considered a conditions of practice order, and in that context had regard to paragraph 106 of the Sanctions Policy. Again, the circumstances of the present case did not meet the suggested circumstances in that paragraph. The Registrant does not have insight. Although the failures were conceptually capable of being remedied, the Registrant’s entrenched attitude suggested that he is not capable of remedying them. The failures were sufficiently wide-ranging that the Panel considered it would not be possible to formulate conditions which would adequately protect service users from the risk of harm. Furthermore, even if such conditions could be formulated, the ignoring of the restricted practice requirement relevant to Particular 1 (something not only imposed on the Registrant by management, but positively suggested by himself) calls into question whether there could be the required confidence that the Registrant would comply with conditions imposed. The Panel rejected conditions of practice as an appropriate outcome.

101. The Panel then considered a suspension order, and in that regard paid close attention to paragraph 121 of the Sanctions Policy. This was indeed a case in which the findings represented a serious breach of the HCPC Standards of Conduct, Performance and Ethics. That apart, the factors suggested in that paragraph were not present. The Registrant does not have insight, the issues were likely to be repeated, and there was no evidence to suggest that the Registrant was likely to be able to resolve or remedy his failings.

102. The Panel was able to envisage circumstances in which a suspension order might be appropriate in a case such as this, notwithstanding the very serious nature of the shortcomings identified by the findings. However, given the actual circumstances of this case, there would be a difficulty in finding a suspension order to be appropriate. That is because, in the absence of any reasons for thinking the Registrant would be both willing and able to remedy his shortcomings, the position at the end of any suspension order would be exactly as it is at the present time. In other words, although a suspension order would protect service users from the risk of harm so long as suspension continued, it would serve no positive purpose.

103. For these reasons, the Panel rejected a suspension order as an appropriate outcome in the present case.

104. It necessarily followed from the rejection of a suspension order as appropriate that the Panel considered a striking off order. The Panel fully acknowledged the seriousness of making such an order, but for the reasons succinctly summarised in paragraph 131 of the Sanctions Policy, it concluded that it was required in the present case. The Registrant lacks insight and is unwilling to resolve matters. No lesser sanction would be sufficient to protect the public or maintain public confidence in the profession and the regulatory process.

105. Before confirming the decision of the Striking Off Order as the appropriate sanction, the Panel asked itself whether it would be a proportionate outcome. Despite the seriously negative effect of that outcome for the Registrant, the Panel was satisfied that it was proportionate for the reason just stated, namely that no other sanction would provide the required degree of public protection.

The Registrar is directed to strike the name of Mr Markus Matkovits from the Register on the date this Order comes into effect.

Interim Order

Application

1. After the Panel announced its decision that the substantive sanction would be a Striking Off Order, the Panel handed down its written determination explaining the reasons for that decision. It allowed the parties time to read those reasons.

2. The Panel subsequently returned to the hearing room and the Presenting Officer applied for an interim suspension order for a period of 18 months to cover the appeal period. He submitted that an interim order was required because it was necessary for the protection of members of the public and was otherwise in the public interest.

3. When asked whether he wished to say anything in response to the HCPC’s application, the Registrant stated that he did not, accepting that the application for an interim order was logical.

Decision

4. The Panel first addressed the question of whether it had jurisdiction to consider the application for an interim order. It concluded that it did because the Notice of Hearing sent to the Registrant on 25 July 2023 informing him of the originally scheduled hearing dates alerted him to the possibility of such an application being made. This afforded the Registrant with an opportunity of making representations on this issue. Furthermore, after the hearing day on Wednesday 22 May 2024, in the presence of the Presenting Officer and the Hearings Officer, the Legal Assessor explained to the Registrant that an application for an interim order might be made in the event of a sanction involving a restriction being put in place.

5. The Panel accepted the advice it received from the Legal Assessor. One aspect of that advice was that it was important that the Panel should acknowledge the default position established by the legislation is that, when a substantive sanction is imposed, there will be no restriction on a registrant’s ability to practise while their appeal rights remain outstanding (i.e. initially the 28-day period during which an appeal can be made, and then the longer period pending the determination of the appeal if it is made). It follows from this that there must be positive reasons to justify the making of an interim order, and those reasons must satisfy at least one of the statutory grounds of (i) necessary for protection of members of the public, (ii) otherwise in the public interest, and (iii) in the interests of the Registrant.

6. Having carefully considered the matter, the Panel considered that, for the reasons expressed in the substantive decision, the risk of repetition presented with the attendant risk of service user harm and an interim order was required on the first and second grounds (namely, protection of the public and the wider public interest).

7. The Panel then considered whether an interim conditions of practice order would address the reasons why an interim order was required. For the same reasons the Panel rejected substantive conditions of practice as an appropriate sanction, the Panel concluded that interim conditions of practice were not appropriate.

8. It followed from these reasons that an interim suspension order was required.

9. The Panel made the Interim Suspension Order for a period of 18 months. It made that order not because it could (18 months being the maximum period) but because (i) if the Registrant does not appeal, the interim order will simply fall away when the time for doing so expires, and (ii) if the Registrant does appeal, the final resolution of that appeal could well take at least 18 months before it would be resolved.

Interim Order

10. The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

11. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

The health allegation

1. Mention was made at the commencement of this determination as to the fact that on 11 October 2019, a panel of the Investigating Committee found there was a case to answer in relation to a health allegation, but that at a Preliminary Hearing on 8 October 2020, a panel of the Health Committee directed that the case be decided by the Conduct and Competence Committee. As the present Panel had concluded the Conduct and Competence Committee hearing, the question that must be addressed was what, if anything, needed to be done about the health allegation.

2. The papers provided to the Panel in advance of the hearing contained a Skeleton Argument prepared on behalf of the HCPC contending that the case was one of a “dual allegation” and that, at the conclusion of the substantive hearing, it would be appropriate for the Panel to consider reconstituting as a panel of the Health Committee to direct the discontinuation of the health allegation. In fact, there was an issue as to whether the outcome of the Investigating Committee decision on 11 October 2019 was a “dual allegation”, it being possible or probable that there were simply two separate “case to answer” decisions. However, it was not necessary for the Panel to resolve this question because even if there was a dual allegation, the guidance document in relation to allegations of that sort was clear as it concluded with the following: “In cases where a Striking Off Order is imposed … by a Panel in respect of the primary allegation, the secondary allegation will fall away, and the above described steps [i.e. steps leading to discontinuance] will not be required”.

3. Accordingly, the Panel made no direction concerning the health allegation.

History of Hearings for Markus Matkovits

Date	Panel	Hearing type	Outcomes / Status
16/05/2024	Conduct and Competence Committee	Final Hearing	Struck off