Perumal Chokkalingam

Preliminary Matters

Service of Notice

 

1. The Notice of this hearing was sent to the Registrant at his registered email address as it appeared on the HCPC Register, and to his then representatives by email on 29 May 2024. The Notice contained the date, time of today’s hearing and confirmation that the hearing would be conducted remotely.

 

2. The Panel accepted the advice of the Legal Assessor and was satisfied that Notice of today’s hearing has been served in accordance with Rule 6(1) of the Conduct and Competence Committee Rules 2003 (the “Rules”) including the Health and Care Professions Council (Coronavirus) (Amendment) Rules 2021.

 

Proceeding in the absence of the Registrant

 

3. The Panel then went on to consider whether to proceed in the absence of the Registrant, pursuant to Rule 11 of the Rules. In doing so, it considered the submissions of Mr Wigg on behalf of the HCPC.

 

4. Mr Wigg submitted that the HCPC had taken all reasonable steps to serve the Notice on the Registrant by email. He stated that there might be some disadvantage to the Registrant if the case proceeded in his absence, but that the Registrant had chosen to voluntarily absent himself. He had not sought an adjournment and four witnesses had attended to give evidence and they would be inconvenienced if the case were not to proceed in his absence.

 

5. In relation to the chronology of events, Mr Wigg stated that on 19 August 2024, the HCPC sent the Registrant a copy of the hearing bundle by email. The email also asked the Registrant whether he would be attending the hearing. In response, the Registrant emailed on 1 September 2024 stating:

 

“I hereby kindly wish to inform that I haven't appointed any legal representative to represent me.

Unfortunately, due to certain unforeseen circumstances, I am not sure if I would be able to attend my hearing. However, I wish I could attend it if possible.

It would be grateful, if you could sent me the password for the bundle.”

 

6. Mr Wigg referred the Panel to an email from the Registrant dated 5 September 2024. In that email, the Registrant stated:

 

“Hi This is bagavathy cause family situation I have moved to india

My brother is in emergency and my mom is not feeling good I need to look after my family iam not retuning uk

And still iam in hospital with my brother. So please take this email as my absence for the hearing.

Because of this hearing I struggled to get job with all agencies.

So I struggled to live with my family

So iam not coming back to uk”.

 

7. Mr Wigg referred the Panel to the HCPC’s practice note “Proceeding in the Absence of a Registrant”. He submitted that the Registrant had not produced compelling evidence as to why this hearing should not proceed in his absence. He accepted that the Registrant had engaged to a limited extent, but had nevertheless chosen to disengage and not attend this hearing when he had the option to, having been notified that this hearing would be conducted remotely.

 

8. Mr Wigg also stated that if the hearing did not proceed today, any adjournment was likely to be substantial, and this may well impact on the memories of the witnesses who had made themselves available for this hearing.

 

9. Mr Wigg stated that the HCPC had done everything possible to secure the attendance of the Registrant. However, whilst the Registrant had stated that he was with family members who were unwell, his assertions were vague, uncorroborated, and insufficient to outweigh the public interest in hearing this case expeditiously.

 

10. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the case of R v Jones & Hayward [2002] UKHL 5 and GMC v Adeogba and Visvardis [2016] EWCA Civ 162. He advised that the Adeogba case reminded the Panel that its primary objective is the protection of the public and the public interest and that the “fair, economical, expeditious and efficient disposal of allegations made against medical practitioners is of very real importance” and that “where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed”. The Panel has borne in mind that “there is a burden on...all professionals subject to a regulatory regime, to engage with the regulator, both in relation to the investigation and ultimate resolution of allegations made against them. That is part of the responsibility to which they sign up when being admitted to the profession.”

 

11. The Panel was mindful of the need to ensure that fairness and justice were maintained when deciding whether or not to proceed in the Registrant’s absence.

 

12. In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPTS Practice Note entitled “Proceeding in the Absence of a Registrant”. The Panel weighed its responsibility for public protection and the expeditious disposal of the case against the Registrant’s right to be present at the hearing.

 

13. The Panel was satisfied that all reasonable efforts had been made by the HCPC to notify the Registrant of the hearing.

 

14. In reaching its decision, the Panel took into account the following:

 

• The Registrant had stated in his email of 5 September 2024 that he will not be attending the hearing despite having been explicitly informed that it would be conducted by video link rather than live in the UK;
• The Registrant had been asked in an email dated 2 September 2024 why he was unable to attend the hearing and whether he had any supporting evidence to corroborate his reasons for not attending. However he has not provided any supporting evidence in response to that request that might indicate that the Registrant was unable to positively participate in this hearing;
• The Registrant unequivocally stated in his email correspondence that he was not going to return to the UK. The Panel concluded that this was indicative of the Registrant’s voluntary decision not to engage further in the regulatory process;
• The Registrant was not asking for an adjournment and therefore the Panel concluded that it was unlikely that an adjournment would result in the Registrant’s attendance at a later date;
• There was a public interest in hearings being held expeditiously;
• The Registrant had been unequivocally informed in writing that if he failed to attend, the hearing might proceed in his absence; and
• Four witnesses had attended to give evidence who would be inconvenienced if this hearing did not proceed.

 

15. Having weighed the public interest for expedition against the Registrant’s own interests, the Panel decided that the Registrant had voluntarily absented himself and determined that it was therefore appropriate to proceed in the Registrant’s absence.

Background

16. At the material time, the Registrant was employed as agency staff at the Fiver Rivers Wellbeing Centre in Sailsbury.

 

17. The allegations relate to the Registrant’s treatment of Service User A during her physiotherapy appointment on 10 May 2022 as alleged in Particular 1a-1e.

 

18. Concerns were subsequently raised in relation to the Registrant’s record keeping. It is alleged that the Registrant stated in Service User A’s records that she had given informed consent for her treatment when it is alleged that that did not happen.

 

19. It is further alleged that the Registrant subsequently made false and dishonest statements to both Colleague A and Person A regarding his treatment of Service User A.

 

20. The Registrant, in his written response to the Investigating Committee Panel (“ICP”), denied the factual particulars.

 

 

 

 

 

Decision on Facts

Live evidence heard

21. The Panel heard live evidence from the following witnesses who gave evidence by video link:

 

• Service User A;
• Craig Evans, Clinical Lead MSK physiotherapist for Wiltshire Health and Care LLP ("the Partnership");
• Colleague A, South Locality Physiotherapy Clinical Lead at the Partnership;
• Person A, Executive Recruitment Consultant at Hunter AHP Resourcing Limited.

 

22. The Panel also had sight of a number of documentary exhibits which included, but were not limited to:

 

• Service User A’s patient notes;
• Bundle of various emails;
• Screenshots of various WhatsApp messages;
• Referral form to the HCPC dated 23 May 2022;
• Incident Report Form dated 11 May 2022; and
• The Registrant’s response to the ICP dated 20 February 2023.

Decision on Facts

Panel’s Approach

23. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything and the individual particulars of the Allegation could only be found proved if the Panel was satisfied that this was the case on the balance of probabilities.

 

24. In reaching its decision, the Panel took into account the oral evidence of the HCPC witnesses, together with all of the documentary evidence provided to it, including the Registrant’s written statement and supporting document submitted by him, and the oral submissions made by Mr Wigg on behalf of the HCPC.

 

25. The Panel also accepted the advice of the Legal Assessor, which is a matter of record. When considering each Particular of the allegation, the Panel has borne in mind that the burden of proof rests on the HCPC and that allegations are found proved based on the balance of probabilities. This means that particulars will be proved if the Panel is satisfied that what is alleged is more likely than not to have happened. The Panel has also taken into account the Registrant’s good character in line with the advice given by the Legal Assessor.
26. The Panel did not draw any inference of guilt by reason of the fact of the Registrant’s absence.

Particular 1

Particular 1a

27. Service User A stated that an appointment had been arranged for 10 May 2022 as a follow up to an appointment two weeks earlier with another Physiotherapist at the Partnership.

 

28. Service User A stated that at the appointment on 10 May 2022, the Registrant called her through from the waiting room to the treatment bay. She stated that the Registrant did not introduce himself, nor explain who he was. However, she could see that he was a physiotherapist as he was wearing the MSK Physiotherapy uniform. She stated that she explained her injury to the Registrant who asked her how the previous consultation had been and how her injury had been since then. She stated that she told him that the exercises she was given had been helping.
29. The Panel also heard live evidence from Craig Evans. He stated that on the day in question, he was working in a bay, cordoned off with curtains, opposite the Registrant from where he saw Service User A enter the Registrant’s bay. He stated that he was only between one and two metres away from the Registrant and that he could clearly overhear the interaction between Service User A and the Registrant. He stated that he did not hear the Registrant introduce himself to Service User A. However, he accepted that he was not aware of any conversation the Registrant might have had with Service User A on her way from the waiting area to the cubicle.

 

30. The Registrant in his written response to the allegations stated:

 

“I introduced myself, explaining I was working as a locum MSK physiotherapist at Wiltshire. Service User A told me she worked at Wiltshire undertaking community administration work. As we were walking towards the treatment room Service User A asked if I was a new physiotherapist at Wiltshire. I explained that I had moved from Wales because my wife had been employed as a community therapist. Service User A asked some questions about my family.”

 

31. The Panel had regard to the fact that the Registrant recalled significant details of a conversation prior to entering the examination cubicle. In the circumstances, even though Service User A stated that the Registrant did not introduce himself, the Panel concluded that it was probable, and more likely than not, that he did introduce himself to Service User A.

 

32. In the circumstances, the Panel concluded that the HCPC had not discharged the burden of proof on the balance of probabilities and therefore found Particular 1a not proved.

Particular 1b

33. Service User A stated that on entering the cubicle, she was asked to sit on the bed. She stated that she put her leg up and in doing so, she stated that she understood how the Registrant might have thought that she was consenting to an examination. She stated that the Registrant asked if he could look at her foot and for her to show him the exercise that she had been given at her first assessment. She stated that the Registrant told her that he did not think those exercises helped, stating that she had no control in some of the movements. She further stated that the Registrant insisted that the exercises previously given had not helped and told her that she should use a band in the future.

 

34. Service User A stated that the Registrant asked where the pain in her foot was, and she said at the Achilles and towards the heel. Without asking for her consent or explaining what he was about to do or why, Service User A stated that the Registrant grabbed her left heel. She stated that the Registrant then used his fingers and thumb to massage the Achilles area which was extremely painful.
35. Mr Evans stated that when starting a treatment, a Physiotherapist should, in addition to obtaining consent for any treatment from a patient, explain what the treatment will be. However, he stated that he did not hear the Registrant give this information to Service User A.

 

36. The Registrant in his written submission stated:

 

“I thoroughly checked Service User A’s referral notes, this included matters such as her current symptoms and past medical history. I explained to Service User A what the assessment process entailed, treatment goals and plan, and home exercise programmes. I also explained to Service User A that during examination that she might experience discomfort and I told her to tell me if the discomfort was beyond her tolerance levels. Service User A confirmed she was happy to proceed.

I asked Service User A if she was currently doing any exercises. She told me previous NHS physiotherapists had provided an exercise plan that required her to move her ankles up and down and do some squats. I asked Service User A if she felt better as the result of doing those exercises. She told me that she had noticed a little bit of improvement. Service User A told me that when she was doing the squats her pain was increasing. She told me she experienced too much pain at night and could not work because her pain was 24/7.

I told Service User A that after I had assessed her I could provide her with some alternative exercises that would benefit her condition. I explained to Service User A that activity which involved weight bearing would cause more pain in her Achilles tendon. I also explained to Service User A that for someone who had a high BMI, as Service User A did, this could make the pain worse. I told Service User A that if she was able to lose some weight it would benefit her condition. Service User A told me that she would be happy to try to lose some weight.

Service User A told me that she had increased tightness and pain in the morning and evening. I suggested that if she lived with somebody she could ask them to massage her Achilles tendon with cream or oil; or she could use an icepack or heat pack as this would reduce the tenderness …

I then told her I would start by first assessing the Achilles tendon, and that I needed her to lie prone – which she did.

Before touching Service User A’s Achilles tendon I asked how much pain she was in. Service User A told me that it was between 7 and 10.

I explained to Service User A that she could massage the soleus muscle, i.e. the calf. I explained this is the main muscle used when walking and if she improved this muscle she would get 60-70% improvement.

I told Service User A I was going to palpate the Achilles tendon, which was very tender and tight. I then gently moved the ankle up and down and while doing this examination I said to Service User A that if she experienced any discomfort or pain she should please let me know.”

 

37. Having heard all the evidence in relation to this Particular, the Panel preferred the evidence of the HCPC’s witnesses which it considered to be more reliable than that of the Registrant for the following reasons:

 

• Service User A’s evidence was consistent with her statement and a contemporaneous email sent two days after the incident in question in which she raised her concerns about the Registrant’s treatment;
• Mr Evan’s evidence was consistent with his contemporaneous entry made on Service User A’s notes entered the day after the incident in question;
• The evidence of Service User A and Mr Evans were consistent with each other;
• The Panel did not consider the evidence of Service User A or Mr Evans to be exaggerated, embellished, or prone to malice. On the contrary, it considered their evidence to be fair and balanced. By way of example, the Panel noted that Service User A conceded that by putting her leg up for examination, the Registrant might have inferred that she had consented to any treatment. Mr Evans also made concessions regarding Particular 1a in relation to whether the Registrant introduced himself to Service User A;
• The Panel considered their evidence to carry more weight than that of the Registrant. Both HCPC witnesses had attended to give live evidence and were subject to the scrutiny of being asked questions by the Panel, whilst the evidence of the Registrant was not subject to the same scrutiny by reason of his non-attendance.

 

38. The Panel therefore concluded that it was more likely than not that the Registrant did not explain his reasoning for the proposed treatment. Having made that finding, the Panel concluded that the Registrant did not communicate effectively and/or promote Service User A’s interests.

 

39. As such, the Panel found the facts of Particular 1b proved.

Particular 1c

40. As set out above, Service User A stated that the Registrant did not say what he was going to do, and in the absence of that, she was unable to give informed consent to any such treatment. However, she accepted that she had put her leg up with a view to being examined and that she understood how the Registrant might have perceived that as consenting to any treatment.

 

41. Service User A stated that the Registrant never said what treatment she would receive or what would happen, so that she would have the opportunity of consenting to, or objecting to it. She stated that, had the proposed treatment been explained to her, she would have had the opportunity of consenting to it, but it had not been. She stated that the Registrant did not explain what he was going to do or why. He just grabbed her left heal.

 

42. Mr Evans also stated that he did not hear the Registrant seek Service User A’s consent or discuss his proposed treatment, which, he stated, was a basic physiotherapy principle

 

43. Mr Evans stated that “When starting a treatment, we ask for consent from the service user and explain the treatment. This consent is primarily given verbally. I did not hear the Registrant do either of these things. The physiotherapist should explain what he found on his assessment, explain the treatment he is proposing and ask for the service users consent before proceeding. Throughout the treatment, the physiotherapist should continuously ask for consent to continue, for example by asking the service user if it feels okay and to inform them if it feels painful. This is to ensure that we do not cause the service user physical distress. This is a basic physiotherapy principle.”

 

44. Mr Evans stated that following the appointment, he reviewed the notes of the appointment that were made by the Registrant, a copy of which has been produced to the Panel. He said that the notes made by the Registrant are very limited and do not reflect what actually happened, for example, the Registrant recorded that 'informed consent given for treatment', when he stated that he knew this was not the case.

 

45. In response to the allegations to the ICP, the Registrant stated:

 

“When we were inside my cubicle I explained that I wanted to review Service User A and then possibly provide treatment. I asked if Service User A was happy to proceed and she confirmed she was. I obtained verbal consent from Service User A to proceed.”

 

46. In considering whether Service User A had given consent, the Panel has borne in mind the definition of ‘consent’ as set out in the glossary to the HCPC’s ‘Standards of conduct, performance and ethics’ document as “Permission for a registrant to provide care, treatment or other services, given by a service user, or someone acting on their behalf, after receiving all the information they reasonably need to make that decision.”
47. For the same reasons as identified at paragraph 37 above, the Panel concluded that the evidence of Service User A and Mr Evans was more reliable than that of the Registrant and that it was therefore more likely than not that the facts alleged occurred.

 

48. Having made that finding, the Panel concluded that, by failing to gain verbal or written consent prior to commencing his treatment of Service User A, the Registrant did not communicate effectively and/or promote Service User A’s interests.

 

49. As such, the Panel found the facts of Particular 1c proved.

 

Particular 1d

 

50. Service User A stated that she asked the Registrant two or three times during the appointment if her x-ray results had come through, but the Registrant ignored her questions. She stated that he did not acknowledge that she had an x-ray and did not look on the computer to check the results. She stated that she was concerned that there may be a bony injury or chip in her foot and felt that this needed checking before any further action was taken.

 

51. Mr Evans also stated that he heard Service User A ask the Registrant about her x-ray results but did not hear the Registrant respond to the question.

 

52. The Registrant in his written response stated: “I do not recall Service User A asking me whether I had her x-ray results.”

 

53. For the same reasons as identified at paragraph 37 above, the Panel concluded that the evidence of Service User A and Mr Evans was more reliable than that of the Registrant and that it was therefore more likely than not that the facts alleged occurred.

 

54. Having made that finding, the Panel concluded that by failing to answer Service User A’s questions about her x-ray results, the Registrant did not communicate effectively and/or promote Service User A’s interests.

 

55. As such, the Panel found the facts of Particular 1d proved.

 

Particular 1e

 

56. Service User A stated that she asked the Registrant three times to “please stop” the treatment as she was in pain, it brought tears to her eyes, and she had begun to cry. She stated that the Registrant said something along the lines of "you cry now, but you'll laugh tomorrow" which made her feel vulnerable.

 

57. Service User A stated that the Registrant did not seem to register or acknowledge that she was in serious pain considering her tears and her requests for him to stop.

 

58. Mr Evans, who had been sat at a computer in a bay nearby stated that after a couple of minutes, he could hear that Service User A was in pain and that she was upset and tearful. He said that he overheard Service User A asking the Registrant to stop. As a result, he stated that he asked if everything was ok. The Registrant did not respond but Service User A said “no”. He stated that Service User A was visibly upset and that she left the bay in tears. He stated that he challenged the Registrant, asking him what he was thinking. The Registrant did not admit his error, and did not appear to have any remorse, nor did he think he had done anything wrong.

 

59. Service User A stated that the pain she experienced in her left foot and lower leg in the week following this appointment was worse than the original pain of the injury. She stated that she had to ice her foot and take co-codamol for the next few days to manage the pain.

 

60. Service User A stated that she subsequently saw another Physiotherapist and Podiatrist at the Partnership, and that, as a result, the pain began to lessen.

 

61. The Panel also had sight of an email sent by Service User A two days after her appointment with the Registrant to Mr Evans in which she set out her concerns about the Registrant’s care. The Panel noted that the contents of her contemporaneous email were consistent with her evidence given at this hearing.

 

62. Mr Evans stated that he spoke to Service User A and booked her in for another appointment with another Physiotherapist.

 

63. On 11 May 2022, Mr Evans stated that he made a retrospective entry on Service User A’s notes as follows:

 

“Retrospective notes entry from physio consultation yesterday with locum physio Vignesh. Band 7 Locality Lead Physio overheard a patient ask locum physio to stop treatment as it was too painful. She asked this several times, then started to cry. Locum physio did not stop treatment. Band 7 physio then asks from outside the cubicle if everything is okay, patient responds 'no', Band 7 physio enters the cubicle to find locum physio with hands still on the patient and the patient visibly upset with tears streaming down her face and visibly distressed. Band 7 physio instructs locum physio to take his hands off the patient, explained that the patient has said stop several times and is visibly upset. Locum physio stops treatment, patient leaves department. Band 7 physio proceeds to question locum on actions with clear explanations of how his treatment was inappropriate. Locum initially defends actions but then concedes that he is was in the wrong and says 'it will not happen again.”

 

64. The Registrant in his written response stated:

 

“Then I started with gentle soft tissue release of the Achilles tendon. I undertook the release for around two to three minutes. I asked Service User A if she had any pain. She told me she had mild pain, but that it was tolerable.

Service User A told me she was experiencing more pain. I removed my hand and advised Service User A to relax. On both occasions Service User A did not ask me to stop. Before I could ask where the pain was located and the pain level, and give advice, Mr Evans suddenly came into the cubicle.

Service User A and I were shocked. Mr Evans started yelling at me. He said words to the effect of ‘Service User A is in pain why didn’t you stop your treatment?’.

I said to Mr Evans words to the effect of ‘You were not in the cubicle and you did not see what happened. The patient did not scream or cry out. There was no reason for you to come in’.

At this point Service User A started crying and said words to the effect of ‘I want to go out now as you are both talking’ and she left. This meant that I did not have the opportunity to discuss Service User A’s pain with her.

Mr Evans and I had a heated discussion and I said that he should have asked in front of Service User A what had happened.

We went to his cubicle and continued our discussion. I do not recall anyone else being present. I explained that when Service User A told me there was pain I removed my hands and was going to discuss her pain with her when he walked in.

I said I would talk to my manager the next day and left (Service User A was my last patient of the day).

…. Service User A did not make multiple requests for me to stop, or ask me to stop at all.”

 

65. For the same reasons as identified at paragraph 37 above, the Panel concluded that the evidence of Service User A and Mr Evans, when taken in conjunction with contemporaneous documents was more reliable than that of the Registrant and that it was therefore more likely than not that the facts alleged occurred.

 

66. Having made that finding, the Panel concluded that by not ceasing treatment despite multiple requests from Service User A to stop, the Registrant did not communicate effectively and/or promote Service User A’s interests.

 

67. As such, the Panel found the facts of Particular 1e proved.

Particular 2

68. The Panel found the facts of Particular 2 proved for the following reasons.

 

69. The Panel has had sight of Service User A’s notes which include the Registrant’s entry made on 10 May 2022 in which he wrote: “Informed consent given for treatment”.

 

70. By reason of the Panel’s finding in relation to Particulars 1b and 1c, the Panel has determined that the Registrant did not obtain Service User A’s consent (as defined above), as alleged. It therefore follows that the Registrant stated in Service User A’s notes that informed consent had been given, when it had not been.

 

71. The Panel therefore found the facts of Particular 2 proved.

Particular 3

72. The Panel found the facts of Particular 3 proved for the following reasons.

 

73. The Panel heard live evidence from Colleague A. She stated that following the Registrant’s treatment of Service user A on 10 May 2022, she spoke to the Registrant on the phone. She stated that the Registrant said;

 

"I was seeing the patient for her achilles. She reported she was getting better and that she only had pain on activity, not at rest. I explained to her I was going to do a massage and that it may be uncomfortable at the time but that it would feel better the next day. I started massaging her and she was fine. She told me it was painful and I tried to explain again that it would feel better the next day. She did not ask me to stop. I had my hand on her achilles still but was no longer doing the massage, the Craig came in and asked if everything was alright and she started crying. All of the crying only happened in that instant. I then stopped treatment and the patient left. I tried to explain to Craig that other patients were very happy with their treatment and you could ask them. Some patients here are really sensitive, too sensitive”.

 

74. In his written response, the Registrant conceded that he told Colleague A that Service User A did not ask him to stop treatment. In light of that admission, the Panel accepted the evidence of Colleague A as credible and reliable as to what the Registrant said to her.

 

75. By reason of its findings in relation to Particular 1e, the Panel has found that Service user A made multiple requests for the Registrant to stop the treatment because of the pain being caused.

 

76. In the circumstances, the Panel therefore found the facts of Particular 3 proved.

Particular 4

77. The Panel found the facts of Particular 4 proved for the following reasons.

 

78. By reason of its findings in relation to Particular 1e, the Panel has found that Service user A made multiple requests for the Registrant to stop the treatment because of the pain being caused.

 

79. Person A stated that when she spoke to the Registrant on the phone about the incident, he stated to her that Service User A had found the massage painful, so he asked her if she wanted him to stop and that she had said ‘yes’ at which point, he then ceased the treatment. As such, the Registrant’s explanation given to her was inconsistent with his assertion in his written statement that Service User A did not ask him to stop the treatment.

 

80. The Panel concluded that Person A’s account of the conversation, was honest, credible and reliable. Given its findings in relation to Particular 1e that Service User A repeatedly asked the Registrant to stop the treatment, the Panel concluded that it was therefore more likely than not that what the Registrant told Person A was incorrect.

 

81. The Panel therefore found the facts of Particular 4 proved.

Particular 5

82. In considering whether the Registrant acted dishonestly, the Panel applied the test for dishonesty as set out in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67.

 

“When dishonesty is in question the fact-finding tribunal must first ascertain subjectively the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the objective standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

 

83. It also took into account the Registrant’s good character, in accordance with the advice received from the Legal Assessor.

 

Dishonesty in relation to Particular 2

 

84. The Panel found the facts of Particular 5 not proved in respect of Particular 2 for the following reasons.

 

85. The Panel, having found the facts of Particular 2 proved, then considered whether the Registrant’s conduct was dishonest.

 

86. Notwithstanding the Panel’s finding in relation to Particular 1c, the Panel has borne in mind Service User A’s observation that by putting her leg up for the Registrant to examine, he might have perceived that, albeit wrongly, as constituting consent. The Panel has also had regard to the Registrant’s observations that he believed that Service User had given consent to the proposed treatment.

 

87. In the circumstances, the Panel concluded that it was more likely than not that the Registrant had a genuine, but wrongly held belief that Service User A had given informed consent to the proposed treatment. The Panel concluded that the Registrant’s conclusion had no doubt been reached carelessly, or negligently, but it was nevertheless genuinely held. The Panel was mindful that, following the principle derived from the case of Ahmedsowida v GMC [2021] EWHC 3466 (Admin), recklessness / carelessness cannot be equated with dishonesty.

 

88. The Panel considered that ordinary members of the public would find that making the relevant entry on Service User A’s notes in those circumstances, would not be considered dishonest.

 

89. The Panel therefore concluded that in relation to this Particular, the Registrant had not acted dishonestly. The Panel therefore found Particular 5 not proved in respect of Particular 2.

 

Dishonesty in relation to Particular 3

 

90. The Panel, having found the facts of Particular 3 proved, then considered whether the Registrant’s conduct was dishonest.

 

91. The Panel has found that what the Registrant said to Colleague A was untrue. Given the Panel’s findings in relation to Paragraph 1e, the Panel concluded that the Registrant knew that what he was telling Colleague A was untrue. The Panel concluded that ordinary members of the public would find that knowingly falsely stating that Service User A did not ask him to stop the treatment, when this was not the case, would be considered dishonest.

 

92. The Panel therefore concluded that in relation to this Particular, the Registrant acted dishonestly. The Panel therefore found Particular 5 proved in respect of Particular 3.

 

Dishonesty in relation to Particular 4

 

93. The Panel, having found the facts of Particular 4 proved, then considered whether the Registrant’s conduct was dishonest.

 

94. The Panel has found that what the Registrant said to Person A was incorrect. Given the Panel’s findings in relation to Paragraph 1e, the Panel concluded that the Registrant knew that what he was telling Person A was untrue. The Panel concluded that ordinary members of the public would find that knowingly falsely stating that he stopped the treatment of Service User A after she responded ‘yes’ to a question from him as to whether she wanted him to stop, would be considered dishonest.

 

95. The Panel therefore concluded that in relation to this Particular, the Registrant acted dishonestly. The Panel therefore found Particular 5 proved in respect of Particular 4.

 

Decision on Grounds

HCPC submissions

96. Mr Wigg, relying on his submissions made in his case summary, submitted that the Registrant’s conduct marked a serious departure from the standards expected of a registered Physiotherapist and was sufficiently serious to amount to misconduct.

 

97. In relation to impairment, Mr Wigg invited the Panel to consider his representations as set out in the case summary, highlighting the seriousness of the Registrant’s failings, an alleged ongoing risk to patients, and a lack of insight into his failings. He submitted that, given the seriousness of the Registrant’s failings, a failure to make a finding of impairment would undermine confidence in the profession and the regulatory process.

 

98. Mr Wigg invited the Panel to conclude that the Registrant had breached standards 1, 2, 8, 9 and 10 of the HCPC “Standards of conduct, performance and ethics” (2016):

 

Standard 1: Promote and protect the interests of service users and carers

Treat service users and carers with respect

1.1 You must treat service users and carers as individuals, respecting their privacy and dignity.

1.2 You must work in partnership with service users and carers, involving them, where appropriate, in decisions about the care, treatment or other services to be provided.

1.3 You must encourage and help service users, where appropriate, to maintain their own health and well-being, and support them so they can make informed decisions.

Make sure you have consent

1.4 You must make sure that you have consent from service users or other appropriate authority before you provide care, treatment or other services.

 

Standard 2: Communicate appropriately and effectively

Standard 2.1 You must give service users and carers the information they want or need, in a way they can understand.

Standard 2.2 You must listen to service users and carers and take account of their needs and wishes.

Standard 2.3 You must give service users and carers the information they want or need, in a way they can understand.

 

Standard 8: Be open when things go wrong

Standard 8.1 You must be open and honest when something has gone wrong with the care, treatment or other services that you provide by:

• informing service users or, where appropriate, their carers, that something has gone wrong;
• apologising;
• taking action to put matters right if possible; and
• making sure that service users or, where appropriate, their carers, receive a full and prompt explanation of what has happened and any likely effects.

 

Standard 9: Be honest and trustworthy;

Standard 9.1: You must make sure that your conduct justifies the public’s trust and confidence in you and your profession;

 

Standard 10: Keep records of your work

Standard 10.1:You must keep full, clear, and accurate records for everyone you care for, treat, or provide other services to.

Registrant’s submissions

99. No specific submissions have been received from, or on behalf of the Registrant, save for his denial that his conduct amounts to misconduct and that his fitness to practise is impaired by reason of his denial of the factual allegations.

Decision

100. On the basis of the facts found proved, the Panel went on to consider whether the Registrant’s conduct amounted to misconduct. It took into account all the evidence received together with the submissions made by Mr Wigg on behalf of the HCPC and those made by the Registrant in his written representations.

 

101. In considering this matter, the Panel exercised its own judgement. The Panel also took into account the public interest, which includes protection of the public, maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour.

 

102. When considering whether the facts found proved amounted to misconduct, the Panel noted that not all breaches of the HCPC’s “Standards of performance, conduct and ethics” need amount to a finding of misconduct.

 

103. The Panel heard and accepted the advice of the Legal Assessorwho reminded the Panel of the meaning prescribed to misconduct in the case of Roylance v General Medical Council (No 2) [2000] 1 A.C. 311, in which it was said:

 

“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a … practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the misconduct to the profession ... Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.”

 

104. In Nandi v GMC [2004] EWHC 2317 (Admin) the Court referred to Roylance where the Court described misconduct as “a falling short by omission or commission of the standards of conduct expected among medical practitioners, and such falling short must be serious” such that it would be “regarded as deplorable by fellow practitioners”.

 

105. The Panel adopted a two-step process in its consideration. Firstly, the Panel considered whether the facts found proved amounted to misconduct. Secondly, and only if the facts proved were found to amount to misconduct, the Panel would go on to consider whether the Registrant’s fitness to practise is currently impaired as a result of that misconduct.

 

106. Given the Panel’s findings in relation to the facts found proved, it concluded that the Registrant breached standards 1, 2, 8, 9, and 10 of the HCPC’s “Standards of conduct, performance and ethics”.

 

107. However, the Panel was mindful that a finding of misconduct did not necessarily follow as a result.

 

108. The Panel carefully considered the seriousness of the Registrant’s failings. In doing so, it identified that:

 

• the Registrant failed to obtain informed consent from a service user, which resulted in his providing treatment which caused Service User A great pain. He repeatedly failed to stop the treatment when asked to do so causing significant distress and pain to Service User A;
• the Registrant acted dishonestly on two separate occasions to conceal his wrongdoing.

 

109. The Panel heard and accepted the advice received from the Legal Assessor. Having done so and for the reasons set out above, the Panel concluded that the matters found proved and subsequent breaches of the HCPC’s “Standards of conduct, performance and ethics”, were both individually and collectively sufficiently serious departures from the standards expected of a Physiotherapist as to amount to misconduct.

 

110. The Panel therefore found that the Registrant’s conduct as found proved amounted to misconduct.

 

Decision on Impairment

Decision

111. The Panel went on to decide whether, as a result of his misconduct, the Registrant’s fitness to practise is currently impaired.

 

112. The Panel had regard to all of the evidence presented in this case, including the submissions of Mr Wigg and the limited written representations of the Registrant. The Panel also heard and accepted the advice of the Legal Assessor and took into account the HCPTS Practice Note on “Fitness to Practise ‘Impairment’”.

 

113. In reaching its decision on impairment, the Panel was mindful that it does not necessarily follow that a finding of current impairment follows from a finding of dishonesty. However, any instance of dishonesty is likely to impair a registrant’s fitness to practise and it will be unusual where this is not found to be the case.

 

114. Physiotherapists are expected at all times to act in a professional manner. They must make sure that their conduct at all times justifies both service users’ and the public’s trust in the profession. In this regard, the Panel considered the judgement of Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision. In paragraph 74, she said:

 

“In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.”

 

115. Mrs Justice Cox went on to say in Paragraph 76:

 

“Do our findings of fact in respect of the doctor’s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:

 

1. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

 

1. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or

 

1. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or

 

1. has in the past acted dishonestly and/or is liable to act dishonestly in the future”.

 

116. Given its findings regarding ‘seriousness’, the Panel considered that limbs a, b, c, and d were all engaged by the Registrant’s conduct. The Panel had regard to the fact that honesty is a core value of the Physiotherapy profession which the Registrant had breached on two separate and distinct occasions.

 

117. In relation to the Registrant’s reflections, the Panel noted that the Registrant has stated in his written submissions that “While I deny the factual allegations in this case I have since 10 May 2022 been more cautious with patients and placed increased emphasis on ensuring they are clear throughout any sessions about what I am doing and why”. However, the Panel had concerns that despite the Registrant’s comments, the Registrant had failed to meaningfully demonstrate that he had taken positive steps, for example by undertaking relevant CPD courses, to remediate his failings. As such, the Panel concluded that, whilst his clinical failings are capable of being remediated, it was not satisfied that the Registrant had, in practice, remediated his failings in this regard such that it could conclude that his misconduct was highly unlikely to be repeated.

 

118. The Panel has taken into account the fact that the Registrant has stated that he is not returning to the UK. However, the Panel has also taken into account the case of GOC v Clarke [2018] EWCA Civ 1463. It concluded that the correct approach was to consider whether a practitioner is fit to practise unrestricted, rather than a deliberation of whether, because of retirement, there is any likelihood of a return to practise and, thereby any risk occasioned by that. As the court observed "a person could hardly claim to be a fit person to practise…because he had no intention of doing so". As such, the Panel concluded that his stated intention not to return to the UK did not obviate the need for a finding of current impairment.

 

119. In relation to dishonesty, the Panel recognised that dishonesty is difficult to remediate. The Panel was not satisfied that he had taken personal responsibility for his conduct, nor had he meaningfully reflected and demonstrated insight into the impact of dishonesty on the reputation of the profession generally.

 

120. As such, the Panel concluded that there remained an ongoing risk of dishonest behaviour, albeit that it may not be in relation to the exact same circumstances as arose in this case.

 

121. As such, in relation to the Registrant’s misconduct, the Panel determined that the Registrant’s fitness to practise is currently impaired on the personal component.

 

122. The Panel also took into account the overarching objectives of the HCPC to protect, promote, and maintain the health, safety, and wellbeing of the public and patients, and to uphold and protect the wider public interest, which includes promoting and maintaining public confidence in the Physiotherapy profession and upholding proper professional standards for members of the profession. The Panel therefore considered that, given the serious nature of the Registrant’s clinical deficiencies and dishonesty that had yet to be fully remediated, public confidence in the profession would be undermined if a finding of impairment were not made in all the circumstances.

 

123. Having regard to all of the above the Panel found that, by reason of his misconduct, the Registrant’s fitness to practise is also currently impaired on the public component of impairment.

 

Sanction

 

HCPC’s submissions

 

124. Mr Wigg submitted that the only appropriate and proportionate sanction to impose was a striking-off order. Given the Panel’s determination on impairment which identified serious breaches of the standards expected of a Physiotherapist, the Registrant’s misconduct represented conduct at the top end of the scale of seriousness which justified such a sanction.

 

125. Mr Wigg reminded the Panel that the Registrant’s conduct caused significant pain to Service User A and that he did not stop his treatment of her even when being repeatedly asked to do so. The Registrant’s misconduct, he submitted, was compounded by his subsequent dishonesty.

 

126. In addition, Mr Wigg submitted, the Panel had concluded that all four limbs of the approach in Grant were engaged, and that the Registrant’s failure to demonstrate effective remediation of his failings resulted in an ongoing risk of harm to the public.

 

Registrant’s submissions

 

127. No specific submissions have been received by, or on behalf of the Registrant.

 

Decision on Sanction

 

128. The Panel accepted the advice of the Legal Assessor who referred it to the HCPC’s Sanctions Policy (“SP”). He reminded the Panel that it should consider any sanction in ascending order, and to apply the least restrictive sanction necessary to protect the public and the public interest. It should also consider any aggravating and mitigating factors and bear in mind the principle of proportionality. He reminded the Panel that the primary purpose of imposing a sanction was protection of the public and the public interest and that there was a need to balance those interests with the interests of the Registrant.

 

129. In reaching its decision on whether to impose a sanction, and if so, which one, the Panel has reminded itself of its conclusions in relation to the seriousness of the Registrant’s misconduct as set out in its determination on impairment. The Panel has concluded that the Registrant continues to pose an ongoing risk to the public, and that there remains a risk of repetition of his misconduct. As such, any sanction should reflect the need to uphold the public interest and mark the seriousness of the misconduct found proved. In that regard, the Panel has had due regard to paragraphs 56-58 of the SP, noting the impact of dishonesty on public confidence.

 

130. The Panel considered all the information before it. In doing so, the Panel identified the following aggravating factors:

 

• That the Registrant behaved dishonestly on two separate occasions to conceal his wrongdoing;
• That the Registrant’s actions caused Service User A a significant amount of pain and distress by continuing with painful treatment when Service User A had repeatedly asked him to stop. Instead, he inferred that Service User A was being “over-sensitive”;
• There has been no expression of remorse, regret or apology;
• The Registrant has not meaningfully demonstrated that he has remediated his failings; and
• The Registrant has demonstrated limited insight into his failings.

 

131. The Panel identified the following mitigating factors:

 

• The Registrant’s misconduct represents an isolated incident resulting from the treatment of a single service user on one occasion; and
• The Registrant does not have any previous regulatory findings recorded against him.

 

132. Considering all the circumstances in the round, the Panel considered the Registrant’s dishonesty, whilst serious, not to be at the most serious end of the spectrum of dishonesty.

 

133. The Panel approached the issue of sanction starting with the least restrictive first, bearing in mind the need for proportionality and to take into account the Registrant’s interests. Having done so, it concluded that taking no further action would not reflect the nature and gravity of the misconduct. The Panel concluded that taking no action would not be adequate to protect the public or the wider public interest of maintaining confidence in both the profession and the regulatory process given the ongoing risks identified. Such an outcome was therefore neither appropriate nor proportionate in the circumstances.

 

134. The Panel next considered mediation, but having had due regard to the circumstances of this case, such an outcome was inappropriate to address the issues of gaining service users’ consent and dishonesty. It therefore concluded that this was not an appropriate outcome.

 

135. The Panel then considered whether to impose a Caution Order and had regard to paragraphs 99-102 of the SP. The Panel concluded that this was also not an appropriate outcome because:

 

• For the reasons set out in its determination on misconduct in relation to dishonesty and impairment, the Panel did not consider the Registrant’s misconduct to be minor in nature;
• The Registrant has demonstrated limited insight;
• The Panel considered that there remained an ongoing risk of repetition given the lack of effective remediation of his failings.

 

136. The Panel next considered whether a Conditions of Practice Order was appropriate. It had regard to paragraphs 105-109 of the SP. Notwithstanding that such an outcome might be considered appropriate to address the Registrant’s clinical failings, it has concluded that such a sanction would neither be appropriate nor proportionate to address the public interest concerns identified. The Panel concluded that workable and appropriate conditions could not be formulated that would meaningfully address the dishonesty concerns identified. In addition, the Panel had concerns whether such an outcome was workable or practicable, or that the Registrant would be willing to comply with any conditions, given that he was in India and had said that he was not returning to the UK.

 

137. In the circumstances, the Panel concluded that imposing a Conditions of Practice Order was not the appropriate sanction to impose.

 

138. The Panel next considered the sanction of suspension. It had regard to paragraph 121 of the SP. The Panel has borne in mind that this would be an appropriate sanction to impose where, even though the allegation is serious, the conduct was not fundamentally incompatible with the Registrant remaining on the register, the Registrant had insight and that the issues were unlikely to be repeated, factors that the Panel concluded were absent in this case.

 

139. In all the circumstances, and given the identified risk of repetition of the Registrant’s misconduct, the Panel concluded that the imposition of a Suspension Order was neither the appropriate nor proportionate sanction to impose.

 

140. The Panel therefore considered whether a striking-off order was appropriate and in doing so, took account of paragraphs 130 – 132 of SP. The Panel concluded that in order to protect the public and the public interest, any sanction less than a striking off order would not be appropriate. The Panel determined that given the nature and gravity of the matters found proved, which related to dishonesty and ongoing risk to service users, a lesser sanction would lack the necessary deterrent effect, and would undermine public confidence in the profession and the regulatory process. The Panel therefore concluded that a striking-off order was the appropriate sanction to impose because:

 

• The matters found proved, as set out in the Panel’s determination on misconduct, represented serious breaches of the ‘Standards of conduct performance and ethics’, including dishonesty;
• The Registrant abused his professional position by continuing his treatment of Service User A despite her distress and repeated requests to stop, in circumstances where Service User A had not given informed consent to the treatment; and
• For the reasons set out earlier in this determination, the Registrant has demonstrated limited insight into concerns surrounding the gaining of consent, the impact of his treatment on Service User A and his dishonest conduct.

 

141. The Panel has considered the Registrant’s interests. However, in light of its findings, the Panel considered that the need to protect the public and the public interest by sending a clear message upholding and declaring proper standards of conduct and behaviour, outweighs the Registrant's interests.

 

142. The Panel accordingly determined to impose a Striking Off order.

ORDER:

That the Registrar is directed to strike the name of Mr Perumal Chokkalingam  from the Register with effect from the date this order comes into effect.

Interim Order

 

1. Mr Wigg applied for an Interim Suspension Order in light of the Panel’s findings on the grounds that it was necessary for the protection of the public, and was otherwise in the public interest to cover the appeal period. Her referred to the SP with particular reference to paragraphs 133 onwards with reference to interim orders.

 

2. No submissions have been received by or on behalf of the Registrant.

 

3. The Panel was mindful that when a substantive sanction is imposed, a Registrant’s entitlement to practise is unrestricted whilst their appeal rights against the substantive sanction remain outstanding. The Panel concluded that in view of its determination that a Striking-off Order should be imposed, it would not be appropriate for the Registrant to return to unrestricted practice given the Registrant’s limited insight and lack of demonstrable remediation and the ongoing risk of repetition of his misconduct.

 

4. The Panel therefore decided to impose an interim order under Article 31(2) of the Health Professions Order 2001, it being necessary to protect members of the public and being otherwise in the public interest, which outweighs the Registrant’s personal and professional interests.

 

5. It first considered an Interim Conditions of Practice Order. The Panel concluded that such an interim order would not be appropriate given its rationale for its earlier determination on sanction. It considered that in light of that determination, an Interim Suspension Order is necessary for protection of the public and is also in the public interest. It would be wholly incompatible with the Panel’s findings and its decision as to sanction not to impose an Interim Suspension Order.

 

6. The Panel concluded that the appropriate length of the Interim Suspension Order should be 18 months, as the interim order would continue to be required pending the resolution of an appeal in the event that the Registrant submits a Notice of Appeal within the 28-day period. This Interim Suspension 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) on the final determination of that appeal, subject to a maximum period of 18 months.

 

ORDER

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. 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.

History of Hearings for Perumal Chokkalingam

Date	Panel	Hearing type	Outcomes / Status
09/09/2024	Conduct and Competence Committee	Final Hearing	Struck off