Manish Kaushik

: Occupational therapist

: OT35443

: Final Hearing

Date and Time of hearing:10:00 16/04/2013 End: 17:00 19/04/2013

: Whitefield House, 186 Kennington Park Road, London, SE11 4BT

: Conduct and Competence Committee
: Suspended

Allegation

As amended:
During the course of your practise as an Occupational Therapist with the Kent County Council, between 2007 and September 2011, you:
1. Were unable to work independently, in that you required excessive support from your colleagues.
2. Were unable to manage your workload adequately, in particular that you:
a. Did not provide timely treatment to service users;
b. Had difficulty making autonomous decisions on cases;
c. On some occasions, spent an excessive amount of time with service users;
d. Demonstrated a lack of knowledge and understanding regarding necessary actions and the need to act urgently in some cases.
3. Did not keep accurate records, in that:
a. You did not sign Subjective Objective Analysis Plan (SOAP) notes;
b. Risk assessments were not signed or dated;
c. Several home visit reports conducted were not filed in client files;
d. Notes did not include sufficient information to allow other members of staff to understand what action was required;
e. Treatment plans were not dated or signed;
f. Nine home visit reports were identified after 05 November 2007 as not being stored in the client’s case files;
g. Information was stored in the wrong client’s files;
h. In relation to Service User AP, functional assessments were incomplete in that:
i. Observed scores were not recorded in any section of the standard functional assessment form (STA); and
ii. The assessment was not signed or dated.
4. You did not complete thorough home visit assessments, in particular, on 07 March 2011, in relation to Service User PB, you did not:
a. Take Service User PB’s medical history into consideration;
b. Comment on the posture or positioning of the service user;
c. Conduct a holistic assessment of all transfers and needs of the client and / or carer; and
d. Consider the use of a hoist / ceiling track and/or adjustments to full height shower doors for low level access tray.
5. Following a performance / capability meeting that was held on 17 March 2011, it was identified that there were twenty two outstanding files that needed to be closed which you had not actioned.
6. On 25 October 2010, 22 March 2011 and 13 June 2011, you conducted a home visit for Service User GS, and you:
a. Did not issue recommendations either before or after the visit;
b. Did not update the service user regarding recommendations for a stair lift for approximately four months after 13 June 2011;
c. Did not conduct a thorough assessment, in that you did not assess the rear garden
7. Did not undertake clinical reviews of:
a. Treatment goals; and
b. Treatment plans
8. Did not work adequately with your colleagues, in that you did not provide the Occupational Therapy Assistants enough verbal or written information to allow them to do their jobs competently.
9. Did not make timely clinical decisions, in particular that:
a. On 13 June 2011, you assessed Service User GS and did not inform him of the outcome of that assessment.
b. On 02 January 2009, Service User CP was admitted and on 05 March 2009, she was discharged, but when the case was reviewed on 10 August 2009, no discharge outcome sheet or follow up calls had been made.
10.  The matters set out in paragraphs 1 – 9 amount to misconduct and / or lack of competence.
11. By reason of this misconduct and / or lack of competence, your fitness to practise is impaired.

Finding

Background
1. Mr Kaushik was employed as an Occupational Therapist by Kent County Council ("the Council") from 1 May 2006 until October 2011. During the course of that employment concerns were raised by the Council with Mr Kaushik as to his competence. The Council started formal capability procedures on three occasions. The last such process started in July 2011.  On 27 September 2011 Mr Kaushik was suspended from his employment whilst an investigation was undertaken as to his conduct and competence (463). Mr Kaushik resigned from his employment on 3 October 2011.
2. In support of the HCPC case the Panel heard evidence from four witnesses. Those were Rita Wakeman, Assessment and Enablement Manager, Majorie Jones-Phipps and Denise Lingham (both Senior Practitioner Occupational Therapists) and Paula Bishton, Locum Senior Practitioner Occupational Therapist. The Panel also heard evidence from Mr Kaushik and received submissions from the two representatives. 
Decision on Facts
3. The Panel has made the findings which follow which are relevant by way of background to the Panel's determinations on the specific particulars of the allegation.
4. Between May 2006 and October 2009 Mr Kaushik was allocated to work within the community as an Occupational Therapist. During that period the Council had concerns as to his competence. On two separate occasions action under the Council's formal capability procedure was initiated. The second such process ended in February 2009 when it was accepted that Mr Kaushik had by then achieved acceptable performance standards but he was reminded that any future failure to maintain standards for documentation completion could result in further performance and capability action.
5. In October 2009 the employer introduced a restructure of its occupational therapy service and Mr Kaushik became part of the Assessment and Enablement Team managed by Mrs Wakeman. Mrs Wakeman is not a qualified occupational therapist and Miss Jones-Phipps was appointed to act as Mr Kaushik’s clinical supervisor.
6. As part of her preparation for establishing the new team Mrs Wakeman reviewed old case files. She found a number of files which were the responsibility of Mr Kaushik that had not been kept up to date. On 7 August 2009 she gave him until 14 August 2009 to ensure that all outstanding documentation was completed. The main areas of concern were unsigned risk assessments, unsigned and incomplete specialist assessments and inadequate discharge outcome information. From that point until the end of the employment the competence of Mr Kaushik was kept under review by his managers on a continuous basis as summarised in the following paragraphs.
7. On 29 July 2010 at a meeting between Mrs Wakeman and Mr Kaushik the performance of Mr Kaushik was reviewed. Mr Kaushik had files from 2009 which should have been closed but were not. 11 files were identified as requiring action.
8. On 19 August 2010 at a meeting between Mrs Wakeman and Mr Kaushik, Mrs Wakeman formed the view that although in February 2009 it had been accepted that Mr Kaushik was meeting expected standards he was no longer doing so. They agreed an action plan to improve performance over the following 3 months. It was also agreed that a Mr Murray, experienced Locum Occupational Therapist, would provide professional practice support and guidance to Mr Kaushik over a 4 week period. Mr Murray prepared a report which, whilst recognising, for example, that Mr Kaushik had well developed skills and made thorough assessment recordings, also gave the opinion that Mr Kaushik showed difficulty in clinical reasoning and case management.
9. There were further supervision meetings between Mrs Wakeman and Mr Kaushik on 7 October 2010, 12 October 2010, 21 October 2010, 15 November 2010, 20 December 2010 and 26 January 2011. There were continuing concerns as to Mr Kaushik's inability properly to manage cases. Those included failure to make timely contact with new service users, failure to make follow-up appointments with service users who had been provided equipment and other failures to complete work within required time frames.
10. In March 2011 Mrs Wakeman determined that the Council's formal capability procedure would have to be commenced for the third time. The first meeting of that cycle took place on 17 March 2011. Particular concerns examined were the perceived poor time management skills of Mr Kaushik and his perceived inability to make appropriate and timely clinical decisions.
11. Mr Kaushik had booked an extended period of annual leave from 31 March 2011 to 5 May 2011. At the meeting on 17 March 2011 Mrs Wakeman instructed him that certain cases should be closed before he went on leave and information relating to the remaining cases should be clearly available to colleagues. It was agreed that that information should be completed by 23 March 2011. A further meeting was fixed and at that meeting Mrs Wakeman reviewed Mr Kaushik's current files and concluded he had failed to complete a number of required actions she had instructed during the series of previous supervision sessions. For example, in respect of service user NK, Mr Kaushik had failed to contact the service user to arrange a visit despite having previously been told to do so as a matter of urgency.
12. Mrs Wakeman and Mr Kaushik met again on 30 March 2011 which was his last day before his extended leave. Mr Kaushik was unable to provide evidence to show he had progressed casework as previously required. He had provided to Mrs Wakeman only one case for closure out of a list of 23 cases previously identified for closure.
13. On 4 July 2011 Mr Kaushik and Mrs Bishton made a home visit to service user PB (described in particular 4 as service user B). Mr Kaushik had previously visited PB at home on 7 March 2011. PB was experiencing a number of medical conditions including motor neurone disease, diabetes and osteoporosis. Mrs Bishton formed the view that PB was suffering severe pain and that she and her husband were in crisis. She thought that following his earlier visit on 7 March 2011 it should have been clear to Mr Kaushik that urgent occupational therapy action was required but none had been organised by Mr Kaushik. It was her view that since the previous visit Mr Kaushik should have organised a specialist chair for PB or, at least, should have spoken about the case to a more experienced occupational therapist.
14. On 7 July 2011 a performance and capability meeting was held between Mrs Wakeman and Mr Kaushik at which Mrs Wakeman told Mr Kaushik she had serious concerns about the safety and well-being of the service users on his caseload in the light of his failure to take urgent action to obtain specialist equipment. She told him she would be recommending a formal hearing under the Council's performance and capability procedure.
15. Before the formal hearing could take place Mrs Wakeman received a complaint from service user GS (a service user with mobility restrictions) who reported what he thought were unacceptable delays on the part of Mr Kaushik in organising motor vehicle hard standing and pavement crossover at the service user’s home. The service user said that Mr Kaushik had carried out a home assessment in October 2010 but by August 2011 there had been no satisfactory progress and he had not been kept informed as to what was happening. That complaint was investigated by the Council’s Head of Service for Families and Social Care. That officer concluded Mr Kaushik had not communicated appropriately with the service user and his record-keeping in the case was "less than satisfactory". The service user was told, in effect, that his case was now being transferred to another occupational therapist.
16. As the panel has recorded above Mr Kaushik resigned from his employment on 3 October 2011.
17. The Panel now turns to make findings on each of the specific particulars within the allegation. In doing so the Panel has evaluated the evidence from the various witnesses. The evidence from Mrs Lingham and Mrs Wakeman has been entirely credible, clear, detailed and referenced to the appropriate documentation. The Panel found the evidence from Miss Jones to be unclear in some respects. The documentary material seemed to undermine the thrust of her evidence in particular with regard to the allegations in respect of service user GS.  Mrs Bishton was clear and credible in her evidence and the Panel's assessment is that she gave a balanced account. The Panel believes that Mr Kaushik was open and sincere in his evidence.
Particular 1
18. The Panel is satisfied that particular 1 has been made out by HCPC. It has been demonstrated on the balance of probabilities that during the period 2007 until 2010 Mr Kaushik was lacking in confidence in acting as an autonomous practitioner and he required excessive support from colleagues. The Panel finds that the documents show a number of examples where Mr Kaushik appeared to need reassurance from colleagues on what were basic occupational therapy tasks or practices. There were a number of examples of him seeming to lack confidence and failing to demonstrate adequate clinical reasoning.
Particular 2
19. In respect of particular 2 the Panel is satisfied that each of the 4 subparagraphs in this particular is made out by HCPC save that paragraph 2a is not made out with regard to service user B in as much as it was directed to file notes which appeared to support Mr Kaushik’s assertion that he had contacted this service user.  The Panel finds there were examples of Mr Kaushik not progressing treatment for service users in a timely manner. For example Mr Kaushik visited a service user, Mrs S, on 8 March 2011 but did not thereafter progress the need for a back door ramp as had been identified as needed such that the case had to be allocated to a different occupational therapist.
20. The Panel is satisfied on the basis of the report from the person described as Modern Matron in respect of service user Mrs P that there was a failure in this case on the part of Mr Kaushik to ensure prompt investigation into perceptual concerns. The Panel also accepts as reliable the content of the note dated 7 May 2007 written by Ms Park which showed there had been a failure on the part of Mr Kaushik to ensure a timely handover of work prior to him going on extended annual leave. It is clear to the Panel that the patient in question had been in the treatment centre for at least 3 weeks without timely interventions by Mr Kaushik.
21. The Panel is satisfied that in respect of a service user requiring an urgent referral the case was allocated to Mr Kaushik on 16 July 2010 but by 19 August 2010 Mr Kaushik had not made contact with the service user. There was also evidence of a number of other service users for whom timely treatment was not provided.
22. The Panel determined that the evidence showed that Mr Kaushik had difficulty making autonomous decisions and lacked confidence in his own decision making ability. He regularly sought what should have been unnecessary re-assurance from colleagues on straightforward matters of occupational therapy practice. Furthermore Mr Kaushik was not always able to deal with service users within a reasonable time span. For example there was evidence of Mr Kaushik taking an hour to carry out a task which should really have taken about 15 minutes. This issue was raised separately with Mr Kaushik in a capability meeting on 17 March 2011.
23. The examples referred to above also support the separate sub particular that Mr Kaushik demonstrated a lack of knowledge and understanding regarding necessary actions and the need in some cases to act urgently.
Particular 3
24. The Panel is satisfied on the basis of the oral and documentary evidence that each of the sub particulars in this paragraph has been made out. These matters were, effectively, admitted by or on behalf of Mr Kaushik during the course of the hearing.
Particular 4
25. The evidence relied upon by HCPC in this respect concerns just one home visit. The Panel finds that neither subparagraph (a) nor (b) is made out. The Panel has had careful regard to the relevant documentation and is satisfied that Mr Kaushik took an account of the medical history of service user PB and made comment as to her posture and bed positioning. However, the Panel is clear that there was a failure on the part of Mr Kaushik to carry out a holistic assessment of the needs of the service user and her carer. In particular there was a failure on the part of Mr Kaushik, having regard to the progressive nature of the disease experienced by service user PB, to consider the need for a hoist and improved shower arrangements. Mr Kaushik failed to recognise the impact of the motor neurone disease on the needs of the service user in conjunction with her other medical conditions and failed to plan appropriately for those needs over the near future. The Panel accepts that the service user presented with complex needs but the Panel is satisfied that given the poor medical condition of the service user and the surrounding signals of likely deterioration including the nature of the disease and input by a palliative care nurse Mr Kaushik failed to take the action that would be expected from any competent occupational therapist. He should at least have researched motor neurone disease in the context of occupational therapy treatment for this patient and/or sought guidance from a more experienced practitioner.  The Panel finds that Mr Kaushik’s failure in this regard will have caused unnecessary suffering to service user PB. The Panel notes that responsibility for the failures in the care of PB was not Mr Kaushik’s alone.
Particular 5
26. Mr Kaushik has admitted this particular and the Panel is satisfied it is in any event proved on the evidence provided.
Particular 6
27. The Panel finds this particular is not proved. Following a careful examination of the documentary material there is evidence that steps had been taken by Mr Kaushik to issue recommendations in respect of both the shower and the stairlift. The Panel is satisfied that Miss Jones took the proposals for hardstanding to be provided at the home of service user GS for discussion at a local Joint Management Group. The Panel finds that those proposals would only have been put to the Group by Miss Jones after a recommendation had been made in that respect by Mr Kaushik. So subparagraph (a) is not made out.

28. Equally, the Panel finds that subparagraph (b) is not made out. The evidence shows that service user GS was aware at the relevant time of the recommendation regarding the provision of the stairlift and of quotes being obtained. The concern expressed in the letter from the service user about a shower is not relevant to subparagraph (b) which is an allegation relating to a stairlift.

29. Subparagraph (c) of this particular concerns an asserted failure on the part of Mr Kaushik to assess the rear garden of the service user. The Panel does not accept this to be a reasonable criticism of Mr Kaushik. There is no evidence to show that an assessment of the back garden was either necessary or appropriate. The service user had indicated that he did not use the rear entrance to his property.
Particular 7
30. The Panel is satisfied this particular has been made out and, further, that it was effectively admitted by Mr Kaushik during the hearing. However, the Panel is satisfied there was no failure on the part of Mr Kaushik in this respect after 2007.
Particular 8
31. `Again, the Panel is satisfied that this particular has been made out and, further, that it was effectively admitted by Mr Kaushik during the hearing. However, the Panel is again satisfied there was no failure on the part of Mr Kaushik in this respect after 2007.
Particular 9
32. Subparagraph (a) is not made out. The letter of complaint from service user GS confirms that Mr Kaushik did inform the service user of the outcome of the assessment.

33. Subparagraph (b) is made out and has effectively been admitted by Mr Kaushik during the hearing.
Decision on Grounds
34. Having found a number of the particulars of the allegation made out the Panel has to go on to consider whether the particulars made out amount to either lack of competence or misconduct. The Panel is satisfied that the failures on the part of Mr Kaushik were as a result of his inability to achieve proper standards. The failures were not as a result of any wilful or reckless conduct. They do not amount to misconduct.

35. The Panel has taken into account the HCPC Standards of Conduct, Performance and Ethics and in that respect finds that Mr Kaushik has failed to meet the following standards:
1. You must act in the best interests of service users.
6. You must act within the limits of your knowledge, skills and experience and, if necessary, refer the matter to another practitioner. 
7. You must communicate properly and effectively with service users and other practitioners.
10. You must keep accurate records.
36. The Panel has concluded that there was a lack of competence. The failures on the part of Mr Kaushik were wide ranging and amounted to significant deficiencies occurring over an extended period of time. Mr Kaushik has shown some insight into his failures but has provided little real evidence of correcting or remediating his deficiencies.  The Panel is satisfied that, at the present time, Mr Kaushik is not able to operate safely as an occupational therapist without close supervision and constant support and monitoring.
37. On that basis the Panel finds that the fitness to practice of Mr Kaushik is currently impaired.

Decision on Sanction:

38. In coming to its decision on sanction the Panel has given careful consideration to the submissions made on behalf of the HCPC and those made on behalf of Mr Kaushik. It has taken account of the testimonials to Mr Kaushik's character and practice. It has also accepted the advice and guidance of the Legal Assessor and paid regard to the HCPC guidance on Indicative Sanctions. It has noted that the purpose of any sanction is not to be punitive but to impose only whatever sanction, if any, is the minimum necessary to protect public safety or otherwise to safeguard the public interest.

39. The Panel has carefully considered the case of Mr Kaushik in the light of its findings on the facts. The Panel's finding of impairment is based on persistent failures by the Registrant to perform to an acceptable professional standard in a number of key areas over a period of some years. In particular it was found that Mr Kaushik was frequently unable to work independently and manage his workload. It was apparent that some of his difficulties stemmed from deficiencies in his ability to demonstrate his clinical reasoning and apply that reasoning to the provision of an acceptable standard of service to patients. The evidence of these deficiencies emanated from his work in several different settings. In one of those settings there is evidence that his caseload was heavy and it was suggested that the working environment could be described as bullying inasmuch as a practitioner would be regarded as inadequate if they could not manage an excessive caseload. The Panel has taken full account of that mitigation but sets it against the evidence that the Registrant's shortcomings in that setting appeared broadly consistent with those identified in an earlier setting where his caseload had been very light and he had received much support. Indeed, over a period of four years Mr Kaushik had been put on his employer’s capability procedure on three separate occasions. On two of those occasions he had managed to regain an acceptable standard of practice but there was evidence that when the intense supervision and support involved in that procedure was withdrawn the standard of his practice began to decline. It was evident that the deficiencies in Mr Kaushik's practice had put vulnerable service users at risk. Since he resigned from his post as an occupational therapist with Kent County Council in October 2011 Mr Kaushik has not practised as an occupational therapist and there is no evidence that he has been able to address any of his shortcomings. The Panel accepts that he is highly-motivated in his desire to help the vulnerable and disadvantaged and it notes that his current employment makes a contribution in that field and provides an opportunity for him to apply his undoubted talent to empathise with his clients. However, the Panel is not convinced that Mr Kaushik has more than a very limited insight into the real weaknesses of his practice as an occupational therapist and it has little confidence in his ability effectively to resolve them. Despite his evidence that he has learned from his mistakes the Panel noted that they had nevertheless been repeated.
40. Accordingly it is against that background that the Panel has considered the available sanctions in ascending order beginning with that which is the least onerous upon the Registrant and stopping at that which first achieves the above-mentioned legitimate purpose of safeguarding the public interest. There being no finding of misconduct the sanction of striking off is not available to the Panel. The Panel has also borne carefully in mind the principle of proportionality in terms of balancing the public interest against the personal interest of the Registrant in respect of pursuing his chosen profession without restriction.

41. Having first determined that to take no action would manifestly fail to provide adequate protection to the public the Panel then also rejected the option of the imposition of a Caution Order on the same grounds. The Panel next considered whether a Conditions of Practice Order could be an appropriate sanction. The Panel has noted the suggestion that Mr Kaushik would be more than willing to comply with appropriate conditions and that such an order would demonstrate whether or not he could raise himself to the required level. It was suggested that his practice could be restricted to areas which would preclude him being presented with complex cases or that in more general terms his caseload could be restricted to non-complex cases. The Panel has given careful consideration to this proposal as it accepts Mr Kaushik's assertion that he is genuinely passionate about the profession of occupational therapy. After careful thought, however, it is the view of the Panel that any such Conditions of Practice Order would be unworkable because it is simply not possible to ensure that any area of occupational therapy working could be restricted to simple cases: the complexity of a case only becomes apparent after a competent occupational therapy assessment. Moreover, it is clear that in Mr Kaushik's case there are failings of a general nature and the Panel has come to the conclusion that there are no conditions of practice which could adequately protect the public unless they were so tightly drawn as to prevent Mr Kaushik from working other than under close and detailed direction by an experienced practitioner. Such conditions would be unrealistic, unworkable and would effectively amount to a Suspension. The Panel has therefore come to the conclusion that a Suspension Order is the only sanction available to it which can provide an adequate level of public protection. It is the Panel's view that a Suspension Order is proportionate, necessary and adequate to protect the public. The Suspension Order shall be for a period of 12 months and will be reviewed before its expiry. Should he wish to return to practice Mr Kaushik will need to present clear evidence to the reviewing Panel that he has been able to address his professional deficiencies so that his failings are unlikely to be repeated and that he has kept up to date with current practice.

 

Order

Order: 
That the Registrar is directed to suspend the registration of Mr Manish Kaushik for a period of 12 months from the date this order comes into effect.

 

Notes

The Panel suspended the Registrant for 12 months at this 3 day hearing.

Hearing history

History of Hearings for Manish Kaushik

Date Panel Hearing type Outcomes / Status
20/10/2017 Conduct and Competence Committee Review Hearing Struck off
20/04/2016 Conduct and Competence Committee Review Hearing Conditions of Practice
07/04/2015 Conduct and Competence Committee Review Hearing Suspended
25/04/2014 Conduct and Competence Committee Review Hearing Suspended
16/04/2013 Conduct and Competence Committee Final Hearing Suspended