Mr Gomahan Chelliah

: Physiotherapist

: PH46512

: Final Hearing

Date and Time of hearing:10:00 07/06/2016 End: 17:00 10/06/2015

: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Conditions of Practice

Allegation

Between January 2015 and 7 April 2015, during your employment as a physiotherapist for United Lincolnshire Hospitals NHS Trust you:

1. Did not demonstrate an adequate understanding of:(a) the Active Cycle of Breathing Technique (ACBT) on or around 23 January 2015;
(b) oxygen therapy on or around 10 March 2015.

2. Failed a Respiratory Competency Framework written test on the following occasions:
(a) on or around 16 March 2015;
(b) on or around 1 April 2015.

3. On or around 29 January 2015, saw a ventilated patient, Patient A, despite being told not to see ventilated patients unless asked to do so.

4. In relation to Patient B:
(a) completed chest vibrations on her when she had fractured ribs;
(b) did not reduce the oxygen therapy in a timely manner when it was clinically indicated;
(c) did not provide physiotherapy intervention in relation to the patient’s diagnosis of atelectasis;
(d) on or round 13 February 2015, did not conduct a chest assessment;
(e) on or around 16 February 2015, did not adequately document what concerns you had identified.

5. In relation to Patient C:
(a) did not adequately document what her baseline was;
(b) discharged her without first conducting a transfer assessment.

6. In relation to Patient D:
(a) did not adequately document her baseline transfers;
(b) did not fully and/or accurately document her optiflow settings;
(c) did not adequately document and/or gather sufficient medical and/or social history in your initial assessment.

7. In relation to Patient E, produced a treatment plan that did not adequately address the concerns identified in your assessment.

8. In relation to Patient F:
(a) did not clearly document what exercises had been completed;
(b) did not produce an adequate treatment plan(s) in that you did not document:
(i) sufficient detail in relation to the aims of the physiotherapy sessions;
(ii) sufficient detail in relation to the concerns identified;
(iii) sufficient detail in relation to the proposed treatment.

9. In relation to Patient G:
(a) did not document sufficient information about the patient’s abilities;
(b) did not document sufficient detail in relation to the concerns identified;
(c) produced a treatment plan that did not include sufficient detail in relation to the proposed treatment.

10. On or around 9 February 2015, in relation to Patient H:
(a) did not document sufficient detail in relation to your assessment of the patient;
(b) did not identify and/or document any concerns;
(c) did not document a clear treatment plan and/or treatment goals;
(d) did not document and/or complete a discharge plan.

11. In relation to Patient I:
(a) did not document and/or gather sufficient medical and/or social history in your initial assessment;
(b) did not complete adequate treatment plans in that you did not document;
(i) sufficient detail in relation to the concerns identified;
(ii) sufficient detail in relation to the proposed treatment;
(c) did not conduct and/or document a transfer assessment;
(d) did not conduct and/or document a sufficient number and/or type of strengthening exercises;
(e) did not try using and/or document that you had tried using incentive spirometry to address the patient’s reduced air entry.

12. The matters as described in paragraphs 1 – 11 constitute misconduct and/or lack of competence.

13. By reason of your misconduct and/or lack of competence, your fitness to practise is impaired.

Finding

Background

1. The Registrant commenced employment at Lincoln County Hospital (LCH) physiotherapy department as a Band 5 physiotherapist on the Intensive Care and Surgical Ward (“the Ward”) in January 2015. He resigned from his employment on 7 April 2015 having previously worked in Grantham as a Band 6 physiotherapist.

2. In January 2015 concerns were raised by the Registrant’s Team Lead regarding his competencies, in particular those relating to patients suffering from respiratory conditions, for example in relation to the use of oxygen therapy and the treatment of ventilated patients. It was alleged that despite supervision sessions and training his performance did not improve significantly. He failed his respiratory competency written test on two occasions.

Preliminary matters

Amendment of charges

3. Ms Binding, on behalf of the HCPC, applied for the Allegation to be amended. She informed the Panel that the Registrant had been informed of this application ahead of time. She submitted that the amendments are sought to clarify the Allegation further and that the amendments are fair and would not cause injustice to the Registrant. This was not opposed by Mr Toms on behalf of the Registrant.

4. The Panel considered that the amendments were minor and did not change the substance of the Allegation but served to clarify the Allegation. The Registrant would not be prejudiced by the amendments. The Panel therefore allowed the amendments to be made. The amended Allegation is as set out above.

Admissions

5. At the start of these proceedings, the Registrant made admissions to paragraphs 1(a), 1(b), 2(a)(b), 4(a), 4(c), 4(d), 4(e), 5(a), 5(b), 6(a), 6(b), 6(c), 7, 8(a), 8(b)(i), 8(b)(ii), 9(a), 9(b), 9(c), 10(a), 10(b), 10(c), 10(d), 11(a), 11(b)(i), 11(b)(ii), 11(c), 11(d), 11(e) of the Allegation.

6. The Registrant did not accept paragraphs 3 and 4(b) of the Allegation

7. The Registrant admitted that the above matter amounted to lack of competence.

8. The Registrant admitted that his fitness to practise was impaired as a result of his lack of competence.

The oral evidence

9. The Panel heard evidence on oath from two witnesses on behalf of the HCPC:
a) Witness 1, a Band 7 Physiotherapist Team Leader in Surgical Wards at Lincoln County Hospital and employed by the United Lincolnshire NHS Trust (‘the Trust’).
b) Witness 2, Trust Clinical Specialist Physiotherapist for cardiovascular and respiratory at Lincoln County Hospital and employed by the United Lincolnshire NHS Trust.

10. The Panel also heard evidence on oath from the Registrant.

Witness 1’s evidence

11. Witness 1 gave evidence on oath. The Panel found her to be a witness whose testimony consisted mainly of hearsay evidence. The Panel considered that it could only ascribe limited weight to her evidence as she had limited contact with the Registrant. Her statement, adopted as part of her evidence, was slightly biased against the Registrant. When challenged on certain assertions made therein, she conceded that the opposite was true. For example, in relation to an ‘On-Call Self Evaluation Questionnaire’, she stated initially:
“Upon reading Gomahan Chelliah’s answer provided in the questionnaire, I did not agree with his answers as he seemed to demonstrate a higher level of understanding than that which I perceived him to have. … I was therefore concerned that he did not fully understand his own capabilities and limitations which would make me question his professional judgement. In addition, his answers were quite vague and required more practical knowledge.

12. However, when taken through the questionnaire and challenged about the above comments, she resiled from them and accepted that the completed questionnaire was in fact a realistic and accurate portrayal of the Registrant’s abilities and professional judgment at that time.

13. Witness 1 told the Panel that the Registrant started at LCH on a phased return programme and at Band 5 level which would be the level of a newly qualified Physiotherapist who had just finished their university education. Initially she stated that the Registrant was treated as supernumerary at the beginning and looked to train him accordingly as he had not worked in an Intensive Care Unit or Surgical Ward before.  However, she later changed her position, on reflection, and stated that the Registrant was not, in fact, treated as supernumerary and that he had come in at a substantive level to fill a vacancy on the unit. Witness 1 outlined to the Panel the kind of work that the ICU and Surgical Ward covered.

14. Witness 1 accepted that there were occasions when she became angry at the Registrant for his inability to assimilate, retain, or recall information given to him as part of the support and training provided. When questioned, she also accepted that she shouted at the Registrant on one occasion but could not recall if there were other occasions when she also shouted at him. She told the Panel that there was no formal training programme in place, and the Registrant was receiving informal training from her, and other physiotherapy staff on the unit.
Witness 2’s evidence

15. Witness 2 gave evidence on oath. The Panel found her to be a very credible witness. She told the Panel that when the Registrant started on the Ward, she was the Trust Clinical Specialist Physiotherapist for cardiovascular and respiratory.

16. Witness 2 stated that she began to note concerns in the Registrant’s capabilities around the beginning of February 2015, and that the Registrant appeared to lack an understanding of simple ventilator strategies. She stated that she would have expected a newly qualified Band 5 Physiotherapist to be aware of these strategies.

17. Witness 2 told the Panel of the training support that the team on the Ward provided the Registrant over his time there. This included training sessions as well as one to one sessions. She informed the Panel that the Registrant had difficulty recalling information he received during those training sessions.

18. Witness 2 clearly had very exacting standards and she applied those standards to the work she was asked to carry out in relation to these matters. She accepted that the review of the Registrant’s work that she was instructed to undertake for these proceedings meant that her task was to look for evidence that supported the Allegation s made against the Registrant. She also accepted that her conclusions were made upon retrospective observations of the Registrant’s work. The Panel determined that she reached a professional and fair conclusion, if somewhat based upon a ‘gold standard’.

The Registrant’s evidence

19. The Registrant gave evidence on oath. As part of his evidence, the Registrant adopted his statement made for these proceedings. The Panel found his evidence to be consistent in relation to the matters to which he admitted. However, in relation to some of the matters that were disputed, the Panel found his evidence to be inconsistent. The Panel will refer to these inconsistencies when setting out its decision on the disputed paragraphs of the Allegation below.

Decision on facts

20. In reaching its decisions on facts, the Panel had careful regard to all the oral and documentary evidence put before it, together with the submissions made by Ms Binding, on behalf of the HCPC, and by Mr Toms, on the Registrant’s behalf.
21. The Panel accepted the advice of the legal assessor.

22. The Panel reminded itself that the burden of proof rests on the HCPC, and that the standard of proof is the civil standard, namely the balance of probabilities. This means that the facts will be proved if the Panel is satisfied that it is more likely than not that the incidents occurred as alleged.

23. The Panel firstly considered paragraphs 1(a), 1(b), 2(a)(b), 4(a), 4(c), 4(d), 4(e), 5(a), 5(b), 6(a), 6(b), 6(c), 7, 8(a), 8(b)(i), 8(b)(ii), 9(a), 9(b), 9(c), 10(a), 10(b), 10(c), 10(d), 11(a), 11(b)(i), 11(b)(ii), 11(c), 11(d), 11(e) of the Allegation in turn. In relation to each of these paragraphs of the Allegation, the evidence is consistent with the admission made by the Registrant to each of them. Accordingly the Panel finds these paragraphs proved by way of admission.

Not Admitted

Paragraph 3 of the Allegation

24. The Panel considered paragraph 3 of the Allegation:

3. On or around 29 January 2015, saw a ventilated patient, Patient A, despite being told not to see ventilated patients unless asked to do so.

25. The Registrant’s evidence in relation to this part of the Allegation was inconsistent in part. His position, as set out in his statement, in relation to Patient A was that he had been assigned to treat her by the Lead Physiotherapist who determined his list of patients for the day. However, his position on the matter changed, and in his evidence he stated that he had not been assigned Patient A, that he had been treating another patient when the nurses responsible for Patient A called him over to assist them in moving Patient A. It was accepted by the Registrant that he knew Patient A was a ventilated patient.

26. The Registrant was consistent in his evidence that he did not carry out respiratory treatment on Patient A but that he had conducted some exercises on Patient A. He accepted that he had received clear instructions not to treat ventilated patients.

27. The Panel determined that by conducting some exercises on Patient A, the Registrant was in fact carrying out physiotherapy treatment on Patient A, albeit not respiratory treatment. Accordingly the Panel find paragraph 3 of the Allegation is proved.
Paragraph 4(b) of the Allegations

28. The Panel then considered paragraph 4(b) of the Allegation:

4. In relation to Patient B:
(a) did not reduce the oxygen therapy in a timely manner when it was clinically indicated;

29. Patient B’s notes showed that after it was recorded that his blood oxygen levels was 17 kilopascal, two doctors had separately reviewed the Patient’s condition in the light of that reading. The later doctor was the Surgical Registrar responsible for Patient B. His instruction was “Continue O2”

30. The Registrant’s position was that he was following the instruction of the Surgical Registrar on the patient notes, and that as a Band 5 Physiotherapist, it would have been inappropriate for him to deviate from that instruction.

31. Witness 1 stated that she would not have expected a Band 5 Physiotherapist to go against the doctor’s note and that she thought it would be wrong to do so.

32. Witness 2 also accepted that it was reasonable for a Band 5 Physiotherapist to continue the oxygen therapy following a doctor’s review which stated “Continue O2”.

33. The Panel determined that the HCPC has not discharged its burden in relation to this paragraph of the Allegation. Accordingly, this paragraph is not proved.

Decision on Grounds

34. Having made its findings on fact, the Panel heard further submissions and evidence from Ms Binding on behalf of the HCPC and Mr Toms on behalf of the Registrant.

35. Ms Binding submitted that the all the Allegation save for paragraph 3 was more suited to a finding of lack of competence as the statutory ground. She reminded the Panel that paragraph 3 related to the Registrant directly contravening specific instructions not to treat a ventilated patient. She submitted that Misconduct was the appropriate statutory ground to be applied to paragraph 3.

36. Ms Binding referred the Panel to the case of Roylance v General Medical Council [1999] UKPC 16, in particular to the judgement of Lord Clyde who described misconduct as “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 medical practitioner in the particular circumstances.”

37. Ms Binding submitted that the Registrant had breached the following paragraphs of the HCPC’s standards of conduct, performance and ethics (2008 edition): 1, 5, 6, and 10.

38. She further submitted that the Registrant had also breached the following paragraphs of the HCPC’s standards of proficiency for Physiotherapists: 3.3, 4, 10.1, 10.2, 12.6, 12.8, 13.5, and 14.

39. Mr Toms on behalf of the Registrant submitted lack of competence was the appropriate statutory ground that applied to all the matters brought against the Registrant. He submitted it was because of a lack of competence that the Registrant provided non-respiratory physiotherapy to Patient B. He further submitted that the fact the Registrant did not provide respiratory therapy to Patient B, who was a ventilated patient, demonstrated that the Registrant possessed insight into the limitations of his abilities and his practice.

40. Mr Toms reminded the Panel that the Registrant’s position from the outset was that he lacked the necessary competence to practice unrestricted as a physiotherapist.

41. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the decisions in the following cases:

a) Andrew Francis Holton v General Medical Council [2006] EWHC 2960
b) Calhaem v GMC [2007] EWHC 2606 (Admin)
c) Roylance v GMC (2000) 1 AC 311
d) Remedy UK Ltd v GMC [2010] EWHC 1245 (Admin)
e) Cheatle v General Medical Council [2009] EWHC 645 (Admin)

42. The Panel reminded itself that there is a two stage process in relation to impairment by reason of lack of competence and/or misconduct. The Panel recognised that it must first consider whether, on the facts found proved, the Registrant’s behaviour constituted a lack of competence and/or misconduct, and secondly, if applicable, whether his fitness to practise is currently impaired by reason of that lack of competence and/or misconduct.

43. As stated above, the panel exercised its own judgement in determining the issue before it. In considering the Registrant’s fitness to practice, the panel reminded itself of its duty to protect patients and its wider duty to protect the public interest which includes the declaring and upholding of proper standards of conduct and behaviour, and the maintenance of public confidence in the profession and the regulatory process.

44. The panel was mindful that the standard to be applied, as set out in the case of Holton was that applicable to the post to which the Registrant was employed, that is, a band 5 Physiotherapist, and the work which he was carrying out as per his job description.

45. The facts found proved related to a period between January 2015 and 7 April 2015 during which the Registrant failed to demonstrate the standards of knowledge, skill and judgment required to practise as a band 5 Physiotherapist. They included wide ranging deficiencies in fundamental physiotherapy practice, and essential skills despite the Registrant, who was a Physiotherapist with more than 20 years experience, being supervised and being offered additional training and support.

46. The Panel was of the view that during this period the Registrant was afforded every opportunity, by way of the additional training and support given by the other staff, to demonstrate his competency as a band 5 Physiotherapist.

47. The panel considered that on the facts found proved the Registrant had breached the following paragraphs of the HCPC’s standards of conduct, performance and ethics:

1.  You must act in the best interests of service users.
5. You must keep your professional knowledge and skills up to date.
6. You must act within the limits of your knowledge, skills and experience and, if necessary, refer the matter to another practitioner.
10. You must keep accurate records.

48. The Panel also determined that the Registrant had breached the following paragraphs of the HCPC’s standards of proficiency for Physiotherapists:

Registrant physiotherapists must:

3.3 understand both the need to keep skills and knowledge up to date and the importance of career-long learning
4.1 be able to assess a professional situation, determine the nature and severity of the problem and call upon the required knowledge and experience to deal with the problem.
4.2 be able to make reasoned decisions to initiate, continue, modify or cease techniques or procedures, and record the decisions and reasoning appropriately
4.3 be able to initiate resolution of problems and be able to exercise personal initiative
4.4 recognise that they are personally responsible for and must be able justify their decisions
4.6 understand the importance of participation in training, supervision and mentoring
10.1 be able to keep accurate, comprehensive and comprehensible records in accordance with applicable legislation, protocols and guidelines
12.6  be able to evaluate intervention plans using recognised outcome measures and revise the plans as necessary in conjunction with the service user
12.8 be able to evaluate intervention plans to ensure that they meet the physiotherapy needs of service users, informed by changes in circumstances and health status
13.5 understand the theoretical basis of, and the variety of approaches to, assessment and intervention
13.6   understand the following aspects of biological science:
- factors influencing individual variations in human ability and health status
- how the application of physiotherapy can cause physiological and structural change
13.8 understand the following aspects of clinical science
- the specific contribution that physiotherapy can potentially make to enhancing individuals’ functional ability, together with the evidence based for this
- the different concepts and approached that inform the development of physiotherapy intervention
14.2 be able to deliver and evaluate physiotherapy programs
14.3 be able to gather appropriate information
14.4 be able to select and use appropriate assessment techniques
14.5 be able to undertake and record a thorough, sensitive and detailed assessment, using appropriate techniques and equipment
14.6 be able to undertake or arrange investigations as appropriate
14.7 be able to analyse and critically evaluate the information collected
14.8 be able to form a diagnosis on the basis of physiotherapy assessment
14.9 be able to demonstrate a logical and systematic approach to problem solving
14.10 be able to research, reasoning and problem solving skills to determine appropriate actions
14.11 be able to formulate specific and appropriate management plans including the setting of timescales
14.12 be able to apply problem solving clinical reasoning to assessment findings to plan and prioritise appropriate physiotherapy
14.13 recognising the need to discuss, and be able to explain the rationale for, the use of physiotherapy interventions
14.15 be able to conduct appropriate diagnostic or monitoring procedures, interventions, therapy, or other actions safely and effectively
14.16 be able to select, plan, implement and manage physiotherapy interventions aimed at the facilitation and restoration of movement and function
14.17 know how to position or immobilise service users safe and effective interventions
14.18 be able to select and applies safe and effective physiotherapy-specific practice skills including manual therapy, exercise and movement, electrotherapeutic modalities and kindred approaches
14.19 be able change their practice as needed to take account of new developments or changing contexts

49. The Panel then considered whether some or all of the matters proved against the Registrant amounted to lack of competence on his part.  The Panel bore in mind the Legal Assessor’s advice that in assessing lack of competence, the standard to be applied was that applicable to the post to which the Registrant had been appointed and the work he was carrying out. Therefore the Panel also bore in mind the Registrant’s job description in relation to his band 5 role.

50. The Panel considered each charge in turn and determined that paragraphs 1(a), 1(b), 2(a)(b), 4(a), 4(c), 4(d), 4(e), 5(a), 5(b), 6(a), 6(b), 6(c), 7, 8(a), 8(b)(i), 8(b)(ii), 9(a), 9(b), 9(c), 10(a), 10(b), 10(c), 10(d), 11(a), 11(b)(i), 11(b)(ii), 11(c), 11(d), 11(e) amounted to the statutory ground of lack of competence. That is to say, all the matters found proved against the Registrant save for paragraph 3. The Panel did not consider paragraph 3 of the Allegation amounted to the statutory ground of lack of competence.

51. The Panel then considered whether paragraph 3 of the Allegation amounted to the statutory ground of Misconduct. The Panel reminded itself of the advice of the Legal Assessor. He had reminded the Panel that misconduct is “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances.” His advice was that Misconduct is at term of art in these proceedings and that it meant ‘serious misconduct’. He stressed that Misconduct is qualified by the word “serious”. It is not any professional misconduct which will qualify. He also advised that Misconduct can include lack of competence on the part of the Registrant where the wilful act on the part of a Registrant is done in the full knowledge that he or she lacked the competence to carry out that act or role.

52. The Panel reminded itself that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC standards would be sufficiently serious such as to amount to misconduct in this context. Therefore, the Panel has had careful regard to the context and circumstances of the matters found proved.

53. The Panel considered that the facts of paragraph 3 were serious enough so as to amount to Misconduct for the purposes of these proceedings. It involved the Registrant’s disobedience to the specific instruction not to provide any treatment to ventilated patients unless requested to do so by a more senior Physiotherapist. The Panel did not consider the assistance rendered by the Registrant in helping the nursing staff to move Patient B constituted any wrongdoing on the part of the Registrant. However, the Registrant should not have gone on to carry out physiotherapy exercises on Patient B. Furthermore, Patient B was not a patient who had been assigned to the Registrant’s care.

Decision on Impairment

54. The Panel then went on to consider, on the basis of the matters found proved, whether the Registrant’s fitness to practise is currently impaired by reason of his lack of competence and/or his misconduct.

55. In reaching its decision, the Panel had regard to all the evidence before it. It took account of the submissions of Ms Binding on behalf of the HCPC, and by Mr Toms on the Registrant’s behalf.

56. Ms Binding submitted that the Registrant’s lack of competence had not been remedied, and in the absence of any evidence of remediation, there was a high risk that his deficient level of competence would be repeated. In regard to insight, she accepted that the Registrant had some insight into his lack of competence. She reminded the Panel that despite this, he had not taken steps to remediate his shortcomings as was evident from his failure to answer several questions that related the areas in which he lacked the necessary competence to practise unrestricted.

57. She submitted that the breaches of the HCPC’s standards were wide ranging, and that the Registrant had put patients at risk of harm. She submitted that in the light of the above circumstances, the Registrant’s fitness to practise was impaired by reason of the lack of competence found.

58. Ms Binding further submitted that the facts of paragraph 3 gave rise to current impairment. She submitted that the Registrant lacked insight into his misconduct as he did not accept that he had done anything wrong in providing physiotherapy treatment to Patient B

59. Mr Toms, reminded the Panel that the Registrant is not contesting that his fitness to practise is impaired. Notwithstanding this, the Panel exercised its own judgement.

60. The Panel then went on to consider whether by reason of his lack of competence, his fitness to practise is currently impaired. For this purpose, the Panel took into account the approach formulated by Dame Janet Smith in her 5th report of the Shipman inquiry, and which was cited with approval in the case of CHRE v NMC & Grant, as follows, by asking itself the following questions:

“Do our findings of fact in respect of the Registrant’s lack of competence and misconduct show that his fitness to practise is impaired in the sense that he:
a) has in the past acted and/or is liable in the future to act so as to put patient or patients at unwarranted risk of harm; and/or
b) has in the past brought and/or is liable in the future to bring the physiotherapist profession into disrepute; and/or
c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the physiotherapist profession?”

61. The Panel concluded that the Registrant had acted so as to put patients at unwarranted risk of harm and had breached fundamental tenets of the Physiotherapist profession.

62. The Panel determined that the Registrant’s lack of competence is remediable but also that it has not been remedied. His shortcomings are wide ranging and include some core areas of physiotherapy. He has not undertaken any relevant courses to remedy the shortcomings in his competence as a Physiotherapist. The oral evidence of the Registrant has led the Panel to have serious concerns about his current level of competence as a physiotherapist. He demonstrated a lack of competence not just in relation to respiratory treatment, but also in fundamental principles of physiotherapy practise. The Panel determined that the Registrant’s lack of competence is highly likely to be repeated in the future. In coming to this conclusion, the Panel had regard to all the circumstances of the case, the extent of the lack of competence currently demonstrated by the Registrant, and also to the issue of the Registrant’s insight in respect of his lack of competence.

63. The Registrant has maintained that he had not breached the specific instruction not to treat any ventilated patient, despite the fact that he had carried out non-respiratory physiotherapy on Patient B, a ventilated patient. There was, therefore, very little insight into his behaviour and its seriousness and there remained the likelihood of repetition.
64. The Panel therefore determined that the Registrant’s fitness to practise is currently impaired by reason of his lack of competence and also by reason of his misconduct.

65. In respect of the misconduct found proved under paragraph 3 of the Allegation, the Panel also determined that the public component required a finding of impairment.

66. Therefore the Registrant’s fitness to practise is currently impaired by reason of both his lack of competence and also by reason of his misconduct.

Determination on Sanction

67. Having determined that the Registrant’s fitness to practise is currently impaired, the Panel then considered what sanction should be imposed. It has heard the submissions of Ms Binding on behalf of the Council and Mr Toms on behalf of the Registrant.

68. Ms Binding indicated that the Council was not seeking any particular sanction. She reminded the Panel of the approach that it should take and that it should have regard to the Indicative Sanctions Policy.

69. Mr Toms reminded the Panel that, from the outset of this hearing, the Registrant had accepted that his fitness to practice is currently impaired.

70. Mr Toms submitted that the Registrant had some insight into the actual issues into his practice. The Registrant has demonstrated this as far back as his entries in the ‘On call self-assessment questionnaire’, of which Witness 1 accepted was an accurate portrayal of the deficiencies in his practice at that time. Mr Toms told the Panel that the Registrant accepted that he had not taken action to remediate his shortcomings, in particular record keeping and dealing with ventilated patients.

71. Dealing with the one matter found to amount to misconduct, i.e. paragraph 3 of the Allegation, Mr Toms submitted that is was a single incident and that no such incident had happened prior to, nor subsequent to these matters. He reminded the Panel that the evidence before the Panel was that this matter was known to, and recorded by, those supervising him, and that no action was taken at that time. Mr Toms submitted that this single matter was not so serious that it would warrant a more restrictive sanction than would be imposed for the remaining matters which amounted to the statutory ground of lack of competence.

72. Mr Toms submitted that this case is about the Registrant’s lack of competence. He reminded the Panel that it has already determined that the shortcomings identified in the Registrant’s practice were remediable. He submitted that, if the Panel looked at the entirety of the Registrant’s career, it would determine that the Registrant’s lack of competence had not been persistent.

73. Mr Toms reminded the Panel that the period covered by these matters were three months in 2015, and also that the Registrant had been open and honest about the issues raised at Grantham Hospital about his competence in relation to respiratory patients.

74. Mr Toms submitted that in the light of the evidence and information, the appropriate sanction is one of conditions of practice to be imposed upon the Registrant’s registration. Mr Toms reminded the Panel that the evidence it heard from Witness 1 and Witness 2 was that, at the time, the Registrant’s practice was improving, albeit not as fast as Witness 1 or Witness 2 wanted or expected. Mr Toms also pointed out that the evidence of Witness 1 that she had got angry and shouted at the Registrant on at least one occasion is not conducive to an already underperforming member of staff making significant improvement in their performance.

75. Mr Toms told the Panel that the Registrant was currently under an Interim Conditions of Practice Order and that there has been no repetition of the Registrant’s lack of competence since the imposition of that order, or for that matter, since these matters arose. Mr Toms submitted that the current conditions imposed upon the Registrant’s practice was a good starting point for the Panel when considering that the appropriate sanction should be in this case. He told the Panel that the Registrant is complying with the conditions imposed upon his practice

76. The Panel accepted the advice of the Legal Assessor. He advised the Panel that as it has found the matters proved amounted to a combination of lack of competence and Misconduct, the full range of sanctions is available to the Panel. He further advised that whilst the Panel may make a Striking Off Order as a sanction, that Order can only be imposed in relation to paragraph 3 of the Allegation, if it so merited as the least restrictive required to protect the public and the public interest. He advised the Panel that it should bear in mind its duty to protect members of the public and also the public interest which includes maintaining and declaring proper standards of conduct and behaviour, maintaining the reputation of the profession, and maintaining public confidence in the profession and the regulatory process.

77. The Legal Assessor advised the Panel that any sanction it imposes must be the least restrictive sanction that is sufficient to protect the public and the public interest. It should take into consideration the aggravating and mitigating factors in the case. He reminded the Panel that the purpose of a sanction is not punitive, although it may have that effect. The purpose of a sanction is to protect members of the public and the wider public interest. The Legal Assessor advised that the Panel should consider the least restrictive sanction first and moving up the scale of severity only if the sanction being considered is inappropriate. He also reminded the Panel it must apply the principle of proportionality, weighing the Registrant’s interest against the public interest. 

78. The Panel has had regard to all the evidence presented, and also to the Council’s Indicative Sanctions Policy.

79. The Panel considered the aggravating factors in this case to be:
a) 9 patients involved in the Allegation
b) Risk of harm to patients
c) Lack of CPD
d) Basic wide ranging clinical concerns
80. The Panel next considered the mitigating factors in this case. It considered them to be:
a) Fully engaged with the HCPC
b) No actual harm caused to patients
c) Limited insight and remorse
d) Early admissions to most of the Allegation
e) Previous good record

81. In considering the matter of sanction, the Panel started with the least restrictive moving upwards.

82. The Panel first considered taking no action but concluded that, given the seriousness of the Registrant’s lack of competence, this would be wholly inappropriate.

83. The Panel then considered whether to make a caution order. The Panel was mindful of its finding that the Registrant was likely to repeat his lack of competence in relation to his practice. It bore in mind that a caution order would not restrict his right to practise. In these circumstances, the Panel concluded that a caution order would not be sufficient to protect the public from the risk posed by the Registrant or, in any event, to satisfy the wider public interest.

84. The Panel next considered the imposition of a conditions of practice order. The Registrant has expressed a desire to remain in practice as a Physiotherapist. He has also said that he is willing to abide by any conditions the Panel may impose which would allow him to remain in practice.

85. The Panel has found that the Registrant lacked full insight into the implications that his lack of competence could have on patient safety. However, the Panel noted the reference from the Consultant Orthopedic Surgeon at Grantham and District Hospital. Whilst that reference is dated 21 May 2014 and pre-dates these matters, it provided the Panel with corroboration of the Registrant’s evidence of his practice prior to these matters arising. The Panel balanced these matters and what it has found to be a lack of competence over a period of three months in 2015 despite receiving support and training, with the Registrant’s desire to return to practice, his willingness to abide by conditions, and the fact that he has an otherwise unblemished physiotherapist career of some twenty years during which his competence was not called into question until the last few months preceding these matters. In the circumstances, the Panel was of the view that a conditions of practice order would satisfy the wider public interest, and that it was both fair and reasonable to afford the Registrant the opportunity to safety return to practise as a Physiotherapist.

86. Taking into account all of the above, the Panel concluded that conditions could be formulated which would adequately address the risk posed by the Registrant, and in doing so protect patients and the public during the period they are in force.

87. In all of the circumstances, the Panel determined that a conditions of practice order was both the appropriate and proportionate sanction. It decided to make a conditions of practice order for a period of eighteen months.

88. The Panel went on to consider suspension and decided that this was not an appropriate sanction to be imposed in light of the fact that conditions of practice could be imposed that would allow the Registrant’s to return to safe practise and protect the public and the wider public interest.

Order

ORDER: The Registrar is directed to annotate the Register to show that, for a period of eighteen months from the date that this Order comes into effect (“the Operative Date”), you, Mr Gomahan Chelliah, must comply with the following conditions of practice:

1. You must not undertake work in an Intensive Therapy / High Dependency Unit nor undertake work in the respiratory component of treatment for patients in other clinical settings.

2. You may only take employment as a Physiotherapist at a Band 5 level.

3. You must promptly inform the HCPC if you take up employment as a Physiotherapist.

4. You must promptly inform the HCPC of any disciplinary proceedings taken against you in your role as a Physiotherapist by your employer.

5. When employed as a Physiotherapist, you must place yourself and remain under the supervision of a Physiotherapist of at least Band 6 level, and supply details of your supervisor to the HCPC within 6 weeks of the operative date when such person becomes your supervisor. You must attend upon that supervisor as required and follow their advice and recommendations.

6. When employed as a Physiotherapist, you must meet with your supervisor and formulate a Personal Development Plan (“PDP”) designed to address the following areas:

a. Your ability to work independently on your cases;
b. Assessment and treatment planning;
c. Accurate and appropriate clinical record keeping;
d. Your ability to undertake clinical reviews of:
i. Physiotherapeutic treatment goals and
ii. Physiotherapeutic treatment plans

7. Within 3 months of obtaining employment as a Physiotherapist you must forward a copy of your PDP to the HCPC.

8. When employed as a Physiotherapist you must meet with your supervisor on a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.

9. If employed as a Physiotherapist, you must provide a report from your supervisor about your progress towards achieving the aims set out in your PDP not later than 28 days and not earlier than 56 days before this Order is reviewed. This should include testimonials where possible.

10. You must inform the following parties that your registration is subject to these conditions:
a) any organisation or person employing or contracting with you to undertake work as a Physiotherapist;
b) any agency you are registered with or apply to be registered with as a Physiotherapist (at the time of application);
c) any prospective employer seeking to employ you as a Physiotherapist (at the time of application).

11. You will be responsible for meeting any and all costs associated with complying with these conditions.

Notes

The order imposed today will apply from 7 July 2016 (the operative date).

This order will be reviewed again before its expiry on 6 January 2018.

Hearing history

History of Hearings for Mr Gomahan Chelliah

Date Panel Hearing type Outcomes / Status
04/12/2017 Conduct and Competence Committee Review Hearing Conditions of Practice
07/06/2016 Conduct and Competence Committee Final Hearing Conditions of Practice
02/06/2016 Conduct and Competence Committee Interim Order Review Interim Conditions of Practice