Mr Konrad Sikorski

: Physiotherapist

: PH97915

: Final Hearing

Date and Time of hearing:10:00 06/03/2017 End: 17:00 09/03/2017

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

: Conduct and Competence Committee
: Suspended

Allegation

The Panel confirmed the following allegation:

 

During the course of your employment as a Physiotherapist for Western Sussex Foundation Trust:

 

1. Between approximately 21 October 2014 and 20 July 2015, you:

a) recorded information on patient front sheets:

i) without understanding the implications of recording the information;

ii) without understanding the medical terminology used;

iii) missing significant information that could lead to patient safety being compromised.

 

b) did not understand the complications and / or safety implications of potential cord compression to physiotherapy treatment, in that you planned to mobilise a patient

 

c) did not recognise that a patient was unsafe with a walking aid.

 

d) did not recognise and / or seek assistance when a patient was desaturating with a CPAP (continuous positive airway pressure) valve open

 

e) did not recognise and / or seek assistance when a patient had a vasovagal

response

 

2. The matters set out in paragraph 1 constitute lack of competence.

 

3. By reason of your or lack of competence, your fitness to practise is impaired.

Finding

Preliminary Matters

Service and Proceeding in Absence

1. The Panel was satisfied that the notice of hearing dated 18 October 2016 had been properly served on the Registrant. The notice was sent on that day by post addressed to him at his registered address, and set out the day, time and venue of the hearing, in compliance with rules 3 and 6, Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 as amended (‘the Rules’).

2. The Panel was satisfied that the HCPC had taken all reasonable steps to serve the Notice of Hearing on the Registrant for the purposes of rule 11 of the Rules.  In deciding whether or not to proceed in the absence of the Registrant, the Panel also took into account the principles set out by the Court of Appeal in R v Adeogba [2016] EWCA Civ 162, as explained in the HCPC’s Practice Note, Proceeding in the Absence of the Registrant, as advised by the Legal Assessor.

3. The notice of hearing made clear that the Registrant was entitled to attend the hearing and be represented. By a Response Pro Forma dated 24 January 2017, the Registrant stated that he did not intend to appear in person or to be represented, at the hearing. In those circumstances, the Panel was satisfied that the Registrant had deliberately chosen not to attend or to be represented at the hearing and had waived both those rights.  Therefore, the Panel decided that it was appropriate to proceed with the hearing in the absence of the Registrant.

Amendment

4. Ms Turner applied to amend the allegation. Notice of the proposed amendments had been given to the Registrant by the HCPC’s letter dated 3 June 2016 and one further amendment was sought, to paragraph 3, to remove the word ‘or’ between ‘your’ and ‘lack of competence.’ The Legal Assessor advised that the allegation may be amended if no injustice is caused to the Registrant.

5. The amendments proposed in relation to paragraphs 1c), and 1d) clarified the allegation. The proposed amendment to paragraph 3 removed a typographical error. The amendments proposed in paragraphs 1f) and 1g) introduced new allegations. However, the concerns relating to these matters had been recorded (as to 1f) in the Registrant’s Individual Performance Improvement Plan (explained in more detail below) and (as to 1f) and 1g)) were set out in the witness statements which had been sent to the Registrant in advance of the hearing.  In those circumstances, the Panel concluded that no injustice would be caused to the Registrant if the amendments were made and therefore the application to amend was granted in its entirety. 

Ruling on Admissibility of Evidence

6. In support of its case under paragraph 1g) of the allegation, the HCPC relied on statements made by one of the Registrant’s supervisors, MKS to EK, as set out in paragraphs 52-55 of the latter’s witness statement. It was not proposed to call MKS to give evidence. The Legal Assessor advised that the Panel had to be satisfied that it would be fair to admit this evidence, considered in the round and having regard to all the relevant factors: Bonhoeffer v GMC [2011] EWHC 1585 (Admin) at [108] and Thorneycroft v NMC [2014] EWHC 1565 (Admin) at [45]. The Panel decided that it would be unfair to admit the evidence. These statements appeared, at this stage, to be the decisive evidence on this subparagraph of the allegation and if proved, could have serious consequences for the Registrant in view of the number and range of other shortcomings in his practice that were alleged against the Registrant.

 

            

Decision on Facts

7. The Registrant was employed by Western Sussex Hospitals NHS Foundation Trust (‘the Trust’) on 7 May 2014, initially as a Band 3 Physiotherapy Technician. He was appointed as a Band 5 Physiotherapist in July 2014 and placed in a rotational role in order to develop his skills in different aspects of physiotherapy. His duties included the assessment of service users using investigative and analytical skills, to devise treatment plans, to be responsible for the safe use of equipment and to be responsible as an autonomous practitioner to undertake an independent clinical caseload.

8. The Registrant’s first rotation session was in the Musculoskeletal Physiotherapy Outpatients Department of Worthing Hospital until 21 October 2014 when he moved to the Respiratory Physiotherapy Team working in the Acute Medical Unit (‘AMU’). In this part of his rotation he was placed under the supervision of DE, a Band 6 Physiotherapist, and his Line Manager was EK, a Band 7 Team Leader for Respiratory Physiotherapy.

9. In the AMU, the Registrant was responsible for the assessment of medical service users and in particular elderly service users with respiratory complications.  A number of learning objectives were given by DE to the Registrant on 28 October 2014 in view of concerns which had arisen during the first week of his work in the AMU, and as early as the first day of his work there.  

10. The concerns included the carrying out of assessments, which first required completion of written ‘patient front sheets’. These are key documents, which set out in summary form the reason why the service user has been admitted to hospital and the significant features of their medical history (including medical conditions and other reasons that may contra-indicate certain physiotherapy techniques). This summary is compiled by the Physiotherapist after reading the service user’s medical notes. The front sheet was also to incorporate an assessment and a proposed plan of treatment. The document would be for use by the Physiotherapist treating the service user and other Physiotherapists who might treat the service user subsequently. It is a document that will be updated from time to time to reflect any necessary changes.

11. Concerns, which included an inability to write accurate front sheets, to extract relevant information from the medical notes and to apply appropriate clinical reasoning to the treatment of service users, were picked up within the first two days of the rotation. In view of the seriousness of those concerns, the Registrant was supervised on a one-to-one basis for the remainder of his time with the Respiratory Physiotherapy Team.        

12. In November 2014 the Registrant moved to the medical wards at Worthing Hospital, because of his difficulties in assessing service users in an acute setting. HC, another Band 6 Physiotherapist, became his supervisor until January 2015 when she rotated to another team. In February 2015 MKS, another Band 6 Physiotherapist, became his supervisor.

13. The Trust took steps to assess the performance of the Registrant under its Capability Policy in view of continuing concerns with the standard of his work.  EK created a written Performance Improvement Plan (‘the Plan’) to address the areas of concern, setting standards to be attained with a timescale and an evaluation of progress to date. A supervision review meeting took place on 20 November 2014 at which the Registrant was present. The Plan was updated and further considered by EK with the Registrant on 16 December 2014 at a second supervision review meeting.

14. Formal Capability Review Meetings took place with the Registrant on 13 February 2015 and 16 March 2015. In that period the Plan was further updated and discussions took place between EK and the Registrant with a view to addressing continuing concerns in his practice. A formal letter of concerns dated 16 April 2015 was sent to the Registrant following a Capability Review Meeting on that day. An informal review meeting took place with the Registrant on 28 May 2015, but in view of the lack of progress matters proceeded to a Capability Hearing, which took place on 20 July 2015.  

 

The Witnesses

15. Each of the witnesses who gave oral evidence on behalf of the HCPC are employees of the Trust.

DE -  Respiratory Physiotherapist Team Leader.

HC – Band 6 Physiotherapist.  

EK – Band 7 Physiotherapist who was the Registrant’s Line Manager and also conducted the Trust’s Capability procedures.

The Panel found that each was a credible witness, for the following reasons:

16. DE’s oral evidence was consistent with the contents of her witness statement. She did not speculate and if she did not know the answer to a question she said so. Although she supervised the Registrant for one month only, she was supervising him every working day in that period. She also gave a clear and convincing picture of the professional standards expected of a Band 5 Physiotherapist. She was a credible witness and the Panel accepted her evidence.

17. HC had no prior knowledge of the Registrant’s work and she supervised him daily on a one-to-one basis after his period of supervision with DE. HC was fair-minded towards the Registrant and had wanted him to succeed. Her evidence was clear, consistent and convincing.

18. EK had a distinct recollection of the important events. She had made contemporaneous notes of her meetings with the Registrant and although these were not included in the bundles of documents for the hearing, it was clear from her evidence that she had used these notes in order to complete and update the Plan as matters progressed and in writing letters to the Registrant at the time about the ongoing review of his work. Copies of the Plan and of most of those letters were in the hearing bundles. EK had one-to-one meetings with the Registrant over the period to which the allegation relates and she talked through with him at the supervision sessions the concerns that had been referred to her by the Registrant’s three supervisors. In those circumstances, the evidence of EK was clear, consistent and convincing.

The Registrant’s Admissions

19. The Response Pro Forma contained the question, ‘Do you admit the facts alleged against you, as set out in the Notice of Allegation at page number 15?’ In answer, it was stated, ‘Yes’. Page 15 of the final hearings bundle sets out the allegation in its original, unamended form.  

The Panel’s Approach

20. The HCPC bears the burden of establishing its factual case. The standard of proof is that applicable to civil matters: the balance of probabilities. This means that in respect of each element of paragraph 1 of the allegation as amended, is it more likely than not that the matter alleged is true?

21. In making its findings with respect to each subparagraph of the allegation, the Panel has taken into account its overall assessment of the evidence, both oral and documentary, the admissions made, the submissions of Ms Turner and such points as were in favour of the Registrant.

22. The HCPC’s case is that in respect of each of the sub-paragraphs of paragraph 1 the Registrant did or did not do something required of a registered Physiotherapist. The Panel considered whether or not this was so in view of all the relevant evidence and its findings of fact reflect that approach. In all other respects, the Panel directed itself in accordance with the advice given by the Legal Assessor.

Between approximately 21 October 2014 and 20 July 2015, you;

 

a)           recorded information on patient front sheets;

i) without understanding the implications of recording this information;

23. During DE’s time with the Registrant, he was tasked to assess about 5 service users each day and her evidence was that there were problems with every front sheet he completed. DE explained in her oral evidence the significance of recording information without understanding it. She said that if a service user suffered from osteoporosis, physiotherapy to the rib cage would be ill-advised in view of the risk of a fracture. Another example she gave was that if the service user had an acute coronary condition, inappropriate mobilisation might put the service user at risk.

24. In view of these findings and the Registrant’s admission of this part of the allegation, subparagraph 1a) i) of the allegation has been found proved.

ii)                    without understanding the medical terminology used;

 

25. On one occasion DE reviewed a front sheet completed by the Registrant in which he had written the acronym ‘NSTEMI’. She asked him whether he knew what it meant and he said, ‘No.’ The word stands for ‘Non-ST segment elevation myocardial infarction’, i.e. a heart attack. DE would not necessarily have expected him to have known what the letters stood for if he had not previously seen the abbreviation. However, she would have expected him to have looked it up.

 

26. HC also found that when she asked him to explain medical terms on a patient front sheet that he had completed, he was unable to give her an answer.

 

27. As a means of overcoming the gap in his knowledge of medical terminology EK told him to carry a note pad with him so he could write down any phrases he did not understand and then research them when he had the time to do so. His supervisors asked him questions about the information he was reviewing, but he never had the answer, and he had to be told the answer. Even then he did not recall the information he had been given, because he did not record the information he had been given. DE said that on occasion he did ask her the meaning of a medical term.

 

28. In view of these findings and the Registrant’s admission of this part of the allegation, subparagraph a) ii) of paragraph 1 has been found proved.

 

iii)          missing significant information that could lead to patient safety being compromised;

 

29. The Registrant’s ignorance of the term NSTEMI in relation to the particular service user was significant. The service user had suffered a heart attack. The role of the Physiotherapist in the position of the Registrant was in part to assess whether the service user was safe to be discharged. Had EK not intervened, the service user could have been discharged prematurely or been inappropriately mobilised by the Registrant.   

 

30. In supervision by EK on 20 November 2014 her evaluation of his progress was, ‘Looking up some abbreviations / terms but still requiring prompting to do this consistently’ and, ‘Still missing things off front sheets.’ She recorded that he had, ‘missed aortic thrombus’. EK explained that this information was significant, because it would not be safe to mobilise such a service user unless the Physiotherapist knew that the service user had taken anti-coagulant drugs sufficiently in advance of any attempt to mobilise the service user.   

 

31. The concerns remained after the Registrant had been working on the medical wards. HC told EK that the Registrant was not recognising the patient issues that were identifiable in the notes. He had not identified that a service user had suffered a fall before he had visited her. She required neurological observations, which meant that the fall must have been significant. However, the Registrant had not realised this even though it had been recorded in the medical notes in the form of a large sticker. 

32. In view of these findings and the Registrant’s admission of this part of the allegation, subparagraph a) iii) of paragraph 1 has been found proved.

b)   did not understand the complications and/or safety implications of potential cord compression to physiotherapy treatment, in that you planned to mobilise a patient;

33. Although HC could not recall this alleged incident, it did appear in the Plan which was discussed by EK with the Registrant at the supervision meetings that took place on 16 December 2014 and 13 February 2015. EK also recalled the conversation that she had had with HC on this matter. That concern was then noted in the Plan. The note made clear that the Registrant did not understand either the complications or the safety implications of this matter, which could have led to the service user suffering significant harm.

34. In view of these findings and the Registrant’s admission of this part of the allegation, subparagraph b) of paragraph 1 has been found proved in that the Registrant did not understand the complications and safety implications of potential cord compression to physiotherapy treatment, in that he planned to mobilise the service user.

c)   inappropriately permitted a patient to continue walking with crutches whilst supervised by Colleague B;

 

35. On 21 October 2014 or the day after, the Registrant was required to assess a service user who had been referred to the AMU for an assessment with a walking aid. The service user had an ulcer on her foot and the doctor did not want her to weight bear fully, as it might adversely affect the integrity of the skin and prolong the healing process. DE spoke to the Registrant before the assessment and told him that the service user could not put their full weight on that leg.

 

36. As DE did not want the Registrant to carry out the assessment without supervision, she (‘Colleague B’ in this part of the allegation) stood at the nurses’ station nearby watching the Registrant. He gave the service user elbow crutches with which to walk. The Registrant failed to notice that, as DE saw, the service user was unstable on elbow crutches and was fully weight bearing on both feet as a result.

 

37. She was about to fall over during the assessment and DE had to intervene to stop the service user from falling. DE’s evidence (which the Panel accepted) was that in the circumstances the Registrant should have appreciated that the service user was fully weight bearing and should have given her a different walking aid, such as a walking frame.

 

38. In view of these findings and the Registrant’s admission of this part of the allegation (in its original form), subparagraph c) of paragraph 1 has been found proved.

d)   did not respond appropriately when a patient’s oxygen levels continued to fall whilst the valve on their CPAP (continuous positive airway pressure) was left open;

 

39. CPAP is a mode of non-invasive ventilation. It looks like a space helmet and is placed above the head of the service user resembling a hood. There is a port at the side of the helmet, which is a circular cap. If the cap is removed, the pressure is lost. The CPAP is used for service users who are critically ill, to treat respiratory failure. In around March 2015 EK saw a service user who was wearing a CPAP device telling the Registrant that they wanted to go to the toilet. She was content for him to assist the service user with toileting and stepped out of the cubicle to answer her bleep.

 

40. The nursing staff reported to EK that the Registrant had taken the cap off the device, which meant that the pressure had been lost and the alarm on the device had gone off. They reported to EK that the Registrant had not noticed that the pressure was dropping despite the alarm going off and that he had not asked for assistance. When EK discussed this incident with the Registrant, he told her that the service user had asked for a drink. He should have checked with the nursing staff or with EK at the time to see if it was appropriate to remove the cap of the CPAP hood, particularly as this was a device which he had never seen before, nor had he received instruction on its use.

 

41. Once he had inappropriately released the cap and opened the valve, he should have been alerted by the alarm sounding and have sought assistance from the nursing staff to stop a further fall in the service user’s oxygen levels. In making these findings the Panel has taken into account and accepted the evidence of EK and the record of the incident that she made in the Plan in its form dated 16 March 2015.         

 

42. In view of these findings and the Registrant’s admission of this part of the allegation (in its original form), subparagraph d) of paragraph 1 has been found proved.

 

e)   did not recognise and/or seek assistance when a patient had a vasovagal response;

 

43. Vasovagal syncope results in confusion and fainting. It is caused by the slowing of the heart rate and a sudden drop in blood pressure and a resulting lack of blood to the brain. The Registrant was working with another Band 5 Physiotherapist, who went to fetch a frame to help mobilise a service user. She left the Registrant with the service user for around 30 seconds. When she returned she found the service user to be unresponsive. However, the Registrant was standing by the service user, doing nothing. Although the Registrant could have been excused for not having appreciated that this was a vasovagal faint, he ought to have sought assistance from other members of staff immediately. He did not do so. EK asked the Registrant about this incident soon afterwards and asked him if he had noticed that the service user was unresponsive, but he said that he had not realised that.  

 

44. In view of these findings and the Registrant’s admission of this part of the allegation, subparagraph e) of paragraph 1 has been found proved in that the Registrant did not recognise when the patient had a vasovagal response. As the Registrant did not recognise that the service user was unresponsive, it follows that he had no reason to seek assistance.

 

f)     inappropriately permitted a patient to continue walking with a stick whilst supervised by Colleague C;

 

45. Colleague C was HC. During the period of her supervision of him (she could not recall when), she asked him to assess a service user who had suffered a fall the night before the assessment. The fall had been recorded in the medical notes. HC asked him to carry out an assessment of the service user and also told him about the fall. Soon after the Registrant had mobilised the service user with a walking stick, she became obviously unsteady as he walked with her. He did not appreciate that she was unsafe with the walking stick, because he left it with her at the end of the assessment, with a view to her using it. He should have given the service user a different walking aid (such as a rollator frame) to provide the necessary stability in the circumstances.   

 

46. In view of these findings, subparagraph f) of paragraph 1 has been found proved.

 

g)   Did not adequately communicate with a patient prior to carrying out a stair assessment.

 

47. In her oral evidence EK stated that she did recall that she had discussed this incident with the Registrant, although there had been no mention of this in her witness statement.

 

48. A stair assessment is performed in order to ascertain if a service user can safely use stairs. The assessment is carried out in the presence of two Physiotherapists, one standing to the side of the service user and the other standing behind the service user. It is important to tell the service user that they may feel stronger than they are and that they might believe that they can go up and down stairs in the same way as before the injury or illness.

 

49. The Registrant did not tell the service user about this during an assessment and the service user rushed up the stairs in an unsafe manner and almost fell. EK recalled that she had spoken to the Registrant about this incident in supervision and had asked him what he would have done differently, but recalled that she had received little response from him. There is also a note recorded by EK on the Plan in the version dated 16 March 2015, ‘Lack of guidance / instruction has lead [sic] to service users being unsafe e.g. stairs.’ The incident is also confirmed by the contents of the investigation report.  In those circumstances, the Panel has accepted the oral evidence of EK

 

50. As a result of these findings, subparagraph g) of paragraph 1 has been found proved.

 

Decision on Grounds

51. The HCPC has alleged that the facts proved establish a lack of competence on the part of the Registrant. The Panel has directed itself in accordance with the advice given by the Legal Assessor. The standard of competence is that applicable to what would have been expected of a Band 5 physiotherapist: see Holton v GMC [2006] EWHC 2960 (Admin) at [71]. The Panel considered whether or not the facts proved showed that the standard of his work was unacceptably low by reference to a fair sample of his work: R (on the application of Calhaem) v GMC [2007] EWHC2606 (Admin) at [39] and R (on the application of Remedy UK Ltd) v GMC [2010] EWCA Civ 1245 at [37(7)].

52. The facts found occurred over a period of 9 months and related to a range of work. There was full one-to-one supervision during 8 of those months and in the other month (January 2015 when it was not possible to give him that level of supervision) the Registrant’s work was still supervised but there was a lower level of discussion and one-to-one teaching. During this period, there were constant reviews of his work by reference to a Performance Improvement Plan (i.e. the Plan) that was regularly updated. The Registrant’s caseload was light in this period, involving 4-5 service users a day. In addition, his caseload was less complex and was limited largely to mobility assessments.

53. In view of the facts found proved, the Registrant failed to comply with many of the Standards of Proficiency for Physiotherapists, 2013 (‘the Standards’) that applied in the relevant period.  The following standards were not met, for the reasons set out below.      

54. Standard 1: ‘be able to practise safely and effectively within their scope of practice.’ The Registrant exposed service users to various risks, arising from his failures to fill out appropriate front sheets, missing out significant information, failing to understand the implications of recording the information and the other failings arising from the particular risks to which he exposed service users in relation to mobilisation, CPAP, the vasovagal fainting episode and other incidents found proved.

 

55. Standard 4: ‘be able to practise as an autonomous professional, exercising their own professional judgement.’ A Band 5 Physiotherapist should not have required constant one-to-one supervision. He was expected to work as an autonomous practitioner but such was the depth of the concerns with his work that he required that level of supervision. He was unable to conduct assessments or make reasoned decisions for the treatment of service users.   

 

56. Standard 8: ‘be able to communicate effectively.’ The Registrant was unable to communicate effectively with colleagues in view of his difficulties with writing service user front sheets appropriately and fully and his responses in his supervision with EK were passive throughout, as she told the Panel. He could not communicate effectively with service uses, as instanced by his failure to give the appropriate advice to the service user for the stair assessment.

 

57. Standard 9: ‘be able to work appropriately with others.’ The Registrant failed to comply with standard 9.1, ‘be able to work, where appropriate, in partnership with service users, other professionals, support staff and others.’ He did not ask colleagues for assistance when he should have done in the circumstances, for example in relation to his removal of the cap on the CPAP device and his failure to understand the handwriting in medical notes. He failed to comply with standard 9.5 because he failed to make logical assessments and resulting treatment plans in the front sheets he prepared.

 

58. His many failings in relation to front sheets meant that he was unable to maintain records appropriately. Therefore, he failed to comply with each part of Standard 10, ‘be able to maintain records appropriately.’

 

59. Standard 11: ‘be able to reflect on and review practice.’ With the exception of asking to attend a course on medical terminology in 2015, he showed that he was unable to reflect on and review his practice. He was passive in supervision and EK stated in paragraph 39 of her witness statement, -

 

“One of Konrad's main issues was identifying for himself that he did not know information, he lacked self-awareness in this respect and would not ask for help.”

 

60. Her evidence was also that she had told him to carry a notepad to write down phrases he did not understand and to look up the terminology. However, this resulted in no improvement. Even when he was told how to find the answer to a question, he did not remember the information he had been given by EK or his supervisors, because “he never wrote anything down.”

 

61. Standard 12: ‘be able to assure the quality of their practice.’ The Registrant’s failure to use the correct walking aids to mobilise service users demonstrated  failures to comply with standard 12.8 in particular, ‘be able to evaluate intervention plans to ensure they meet the physiotherapy needs of service users ..’

 

62. In view of the many failures resulting from the facts proved, the Registrant also failed to comply with the general requirements of Standard 13, ‘understand the key concepts of the knowledge base relevant to their profession’ and those of Standard 15, ‘understand the need to establish and maintain a safe practice environment.’

 

63. Each of the Registrant’s failures to comply with the Standards related to basic skills and knowledge to be expected of a Band 5 Physiotherapist. That is underlined by the one-to-one support he was given during most of the 9 month period, the minimal progress he made in important areas and the concerns about his practice that were raised on almost a daily basis.

64. In her evidence EK referred to the support that had been given to the Registrant, which also included fortnightly feedback meetings with EK to discuss his progression against the Plan. In the correspondence passing between the Trust and the Registrant, it was recorded that the Registrant had accepted that his work was not up to the required standard.

65. The Panel has accepted the assessment made by EK in the final paragraph of her investigation report, that –

“There have been significant safety concerns raised with Konrad’s practice … which have been [a] cause for concern and has necessitated the need for supervision at all times. Konrad has been managed … through the Trust’s Capability Policy since his appointment in October 2014 through to June 2015. Konrad has been fully cooperative throughout the management of this case; however he now recognises that despite the measures that have been put in place, as documented within the Performance Improvement plans and additional training and support, he has been unable to work to the level required …        

66. In those circumstances, the Panel has reached the conclusion that the standard of the Registrant’s work was unacceptably low by reference to a fair sample of his work.

67. Accordingly, the facts proved have established the statutory ground of lack of competence.

Decision on Impairment  

68. The Panel next considered whether the Registrant’s fitness to practise is currently impaired by reason of the lack of competence in his work in the period to 20 July 2015.  In making its decision at this stage, the Panel followed the guidance set out in HCPC’s Practice Note entitled Finding that Fitness to Practise is Impaired and the relevant principles from the case law there set out.

 

69. Although the shortcomings in the Registrant’s practice are capable of being remedied, his absence from the hearing has left the Panel with no knowledge of any remedial action he may have taken since leaving the Trust. There is no evidence before the Panel of his current occupation. He was passive in response to the intensive programme of supervision during the period of the Capability Plan and there is no evidence before the Panel that the Registrant has become proactive since that time.

70. There is no evidence of any current insight on the part of the Registrant into those shortcomings. The Panel has seen his generalised admissions with respect to the allegation (as originally formulated), but nothing else in the way of up-to-date evidence on this aspect of the case. Such insight as the Registrant had at the time was insufficient to enable him to reflect on and change his practice.  That insight was very limited and related to seeking to improve his knowledge of medical terminology, and acknowledging that he felt he was more suited to a post at a lower level.   

71. The Registrant did not recognise what steps he needed to take to remedy the deficiencies in his work and he had not taken them. Those deficiencies covered a large part of his practice for a substantial period of time. In all the circumstances, there is a risk of repetition of those shortcomings in the Registrant’s practice and accordingly there is a continuing risk of harm to both service users and the public.

72. The Panel went on to consider the critically important public policy issues, namely the need to protect service users, to declare and uphold proper professional standards and to maintain public confidence in the profession. In view of the risks identified and the circumstances as the Panel has found them to be, public confidence in the profession and in its regulator also requires a finding of impairment.

73. Therefore, the Panel has concluded that the Registrant’s fitness to practise is impaired by reason of the lack of competence arising from the facts proved.   

Decision on Sanction

74. Ms. Turner submitted that the only appropriate sanction in this case was suspension, particularly in view of the Panel’s findings which showed the many risks to service users which are likely to remain if he were allowed to practise. She submitted that a caution or an order of conditions would be inappropriate. 

75. The Panel has accepted the further advice of the Legal Assessor. The powers of sanction available to the Panel are contained in Article 29(5), (6), Health and Social Work Professions Order 2001 as amended (‘the Order’). In the circumstances, those powers do not include a striking off order, because such an order may not be made against the Registrant in a case of lack of competence unless the Registrant has been subject to suspension or a period of conditional registration for a continuous period of 2 years or more. That is not the position in this case.

76. In exercising its powers, the Panel was required to have regard to the statutory overarching objective. In the present context that objective is to protect, promote and maintain the health, safety and wellbeing of the public, to promote and maintain public confidence in the physiotherapy profession; and to promote and maintain proper professional standards for members of that profession: Article 3(4), (4A) and paragraph 18(10A), Schedule 1 of the  Order.

77. The Panel has followed the guidance given in the HCPC’s Indicative Sanctions Policy (‘ISP’) and has applied the principle of proportionality in giving effect to the overarching objective, and has given due weight to the interests of the Registrant.

78. The Panel first considered the mitigating and aggravating features of the case. The Registrant did return the Response Proforma and did make wide-ranging admissions. However, the aggravating factors included the fact that what were serious and persistent deficiencies in the Registrant’s practice took place over a substantial period of time. These related to a broad range of concerns affecting basic skills and knowledge. There was no evidence that the Registrant had the ability to work as an autonomous practitioner. Service users were also put at risk of significant harm as a result of the acts and omissions found proved. Moreover, there was very limited evidence of insight on the part of the Registrant and no evidence that any of the deficiencies had been remediated.  

79. The Panel first considered whether it would be appropriate to take no action, and if not, whether a caution would be appropriate. In view of the wide-ranging, fundamental and serious nature of the deficiencies in the Registrant’s professional practice which took place over a long period of time, it would be wholly insufficient to conclude this case by taking no action or by imposing a caution order on his registration. The Registrant has insufficient insight into his professional deficiencies, and service users and members of the public who might use his services would be left exposed to the risk of serious harm. Public confidence in the profession and the HCPC as its regulator would be undermined if the Registrant were able to return to unrestricted practice.

80. The Panel next considered whether a period of conditional registration would be appropriate.

 

81. The Panel concluded that the Registrant was effectively working under conditions while employed by the Trust in the 9 month period between October 2014 and July 2015. He was in receipt of one-to-one supervision and had been given personal objectives as part of the Capability process of his employing Trust. He failed to respond to this assistance and he did not show the willingness that was necessary if his work was to improve. Although the defects in his knowledge and skills were in theory capable of remedy, he still failed to meet the necessary standards after the period of 9 months when he was given intensive support.

82. EK, DE and HC all told the Panel that they did not believe that he was capable of achieving the necessary standards, nor did the Registrant believe that he could do so. The Panel is unaware of the Registrant’s current personal circumstances and there is no evidence that he would be willing to comply with conditions, even if appropriate conditions could be formulated.   

83. Paragraph 25 of the ISP states that, -

 

‘Before imposing conditions a Panel should be satisfied that:

·         the issues which the conditions seek to address are capable of correction;

·         there is no persistent or general failure which would prevent the registrant from doing so;

·         appropriate, realistic and verifiable conditions can be formulated;

·         the registrant can be expected to comply with them

 

84. The ISP (paragraph 27, second bullet point) also states that conditions are unlikely to be suitable, where there are serious or persistent overall failings.

 

85. In view of the conclusions reached in paragraphs 81 and 82 in particular, the Panel concluded that conditions of practice would be inappropriate as they would not secure the necessary degree of public protection.

86. The Panel next considered whether an order of suspension would be appropriate. This sanction would contain the risk to service users and to the wider public who may use his services, presented by the deficiencies in the Registrant’s practice. The Panel has borne in mind that such an order will have an adverse effect on the Registrant, should he wish to continue to practise. However, in view of all the circumstances of the case, a period of suspension is necessary for the protection of the public, to maintain public confidence in the profession and to uphold professional standards.

87. The period of suspension should be 12 months. No less a period is likely to provide sufficient protection from the risks to the safety and wellbeing of members of the public presented by the deficiencies in the Registrant’s practice.  

88. Before the period of suspension expires, the Registrant’s case will be reviewed by another Panel at a further hearing. A reviewing Panel may be assisted by, -     

·         the Registrant’s attendance at the hearing;

·         any evidence he may wish to put before the reviewing Panel showing steps to bring his knowledge and skills up-to-date and to resolve the deficits in his practice;

·         steps taken in advance of the review hearing to attempt to arrange a return to practice placement and the results of such attempts, with evidence of these matters.   

Order

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

Notes

Final Hearing of the Conduct and Competence Committee to take place at

405 Kennington Road London from Monday 6 March 2017 to Thursday 9 March 2017. The hearing will begin at 10:00 hours on day 1 and at 9:30 hours on days 2, 3 and 4.

Hearing history

History of Hearings for Mr Konrad Sikorski

Date Panel Hearing type Outcomes / Status
09/03/2018 Conduct and Competence Committee Review Hearing Suspended
06/03/2017 Conduct and Competence Committee Final Hearing Suspended