Mr Boben Zacharia

: Physiotherapist

: PH77211

: Final Hearing

Date and Time of hearing:10:00 08/05/2017 End: 17:00 12/05/2017

: Jurys Inn Glasgow 80 Jamaica Street Glasgow Lanarkshire G1 4QG

: Conduct and Competence Committee
: Suspended

Allegation

Allegations (as amended at Substantive Hearing):

Between 1 August 2014 and January 2016, during the course of your employment as a Physiotherapist with NHS Greater Glasgow and Clyde, you:

1. Did not carry out complete subjective and/or objective assessments for your patients in that:

(a) While assessing Patient A on or around 14 September 2015 and/or 22 September 2015, you did not question the Patient specifically enough, to identify a pattern of pain;

(b) On 23 September 2015, while assessing Patient B and/or Patient C, you:

(i) did not extract relevant information from the patient and/or  the patient’s carer without prompting and/or at all;

(ii) did not ask the patient and/or the patient's carer clear questions without prompting and/or at all.

(c) On 2 October 2015, during an assessment of Patient D, you:

(i) did not identify a Warfarin issue as a Precaution:

(ii) did not complete a respiratory assessment of the patient.

(d) On 6 October 2015, during an objective assessment of Patient E, you did not assess the patient's hamstring and/or ankle strength adequately or at all.

(e) On 2 October and/or 9 October 2015, during an assessment of Patient F, you :

(i) used a bilateral Straight Leg Raise to assess the Patient who had received a total knee replacement;

(ii) Did not assess the patient's knee extension adequately or at all.

(f) On 12 October 2015, during a subjective assessment of Patient G, you did not include the patient.

2. Did not complete full and/or written records of assessments for your patients, in that:

(a) following an assessment of Patient A on 22 September 2015, you:

(i) did not document the assessment in the SOAP format;

(ii) did not make an accurate recording of what had been discussed and/or assessed.

(b) following an assessment of Patient B and/or of Patient C on 23 September 2015, did not record what had been discussed and/or assessed sufficiently and/or in a timely manner.

(c) On 6 October 2015, during an objective assessment of Patient E, you documented the Patient’s hamstring and/or ankle strength as 3+ in the notes, even though this was not assessed adequately or at all.

3. Did not prescribe appropriate exercise programmes for your patients, in that:

(a) On 2 October 2015, in respect of Patient D who had Chronic Obstructive Pulmonary Disease (COPD), you provided the patient with a treatment plan of sitting strength exercises, despite the patient being independently mobile.

(b) On 2 October 2015, in respect of Patient F, did not provide a program appropriate for a Total Knee Replacement Patient.

(c) On 12 October 2015, developed an exercise plan for Patient G in a lying position, despite the Patient being independently mobile.

4. The matters described paragraphs 1 – 3 constitute misconduct and/or lack of competence.

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

Finding

Preliminary matters:

Service of Notice

1. The notice of this hearing was sent to the Registrant at his address as it appeared in the register on 9 February 2017. The notice contained the date, time and venue of today’s hearing.

2. The Panel accepted the advice of the Legal Assessor, and is satisfied that notice of today’s hearing has been served in accordance with Rule 6(1) of the Conduct and Competence Rules 2003 (the “Rules”).

Proceeding in the absence of the Registrant

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

4. Ms Sharpe submitted that the HCPC has taken all reasonable steps to serve the notice on the Registrant. She further submitted that the Registrant has been engaging with the HCPC and he informed the HCPC, by way of email dated 25 April 2017, that he would not be attending this substantive hearing. Ms Sharpe submitted that an adjournment would serve no useful purpose as the Registrant has not engaged with the HCPC since that email. She reminded the Panel that there was a public interest in this matter being dealt with expeditiously.

5. The Panel accepted the advice of the Legal Assessor. He advised that, if the Panel is satisfied that all reasonable efforts have been made to notify the Registrant of the hearing, then the Panel had the discretion to proceed in the absence of the Registrant. He cautioned the Panel that the discretion was to be exercised with care and caution as set out in the case of R v Jones [2002] UKHL 5.

6. The Legal Assessor also referred the Panel to the case of GMC v Adeogba and Visvardis [2016] EWCA Civ 162 and advised that the Adeogba case reminded the Panel that its primary objective is the protection of the public and of the public interest. In that regard, the case of Adeogba was clear that “where there is good reason not to proceed, the case should be adjourned; where there is not … it is only right that it should proceed”.

7. It was clear, from the principles derived from case law that the Panel was required to ensure that fairness and justice was maintained when deciding whether or not to proceed in a Registrant’s absence.

8. The Panel was satisfied that all reasonable efforts had been made by the HCPC to notify the Registrant of the hearing. It was also satisfied that the Registrant is aware of this hearing.

9. In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPC practice note entitled ‘Proceeding in the Absence of the Registrant’. The Panel weighed its responsibility for public protection and the expeditious disposal of the case with the Registrant’s right to a fair hearing.

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

• The Registrant has voluntarily absented himself;

• The Registrant has not made an application to adjourn today’s hearing and implicit in his email dated 24 April 2017 is an expectation that proceedings today proceed in his absence;

• There is a public interest that this substantive hearing proceeds expeditiously.

11. The Panel was satisfied that the Registrant had voluntarily absented himself from the hearing. There is a distinction between a case where the Registrant is clearly aware of the hearing date, and one where there has been no response from the Registrant. It determined that it was unlikely that an adjournment would result in the Registrant’s attendance at a later date. Having weighed the public interest against the Registrant’s own interest, the Panel decided to proceed in the Registrant’s absence.

Amendment of Allegation

12. Ms Sharpe, on behalf of the HCPC, applied to amend the Allegation.  She submitted that the amendments sought were consistent with the evidence before the Investigating Committee, and they served to clarify the allegation by giving further and more precise particulars. One of the proposed amendments was to delete a particular and that would not cause prejudice to the Registrant.

13. The Registrant, who had been engaging with the HCPC, and who had been informed of this application to amend the Allegation by way of letter dated 9 August 2016, did not object to the proposed amendments.

14. The Panel accepted the advice of the Legal Assessor, who advised that it was open to the Panel to amend the Allegation, provided no injustice would be caused by the amendment. The Panel considered that some of the amendments sought were minor, in that they involve the correction of punctuation, re-phrasing and reformatting of some of the particulars. These did not change the substance of the Allegation. The remaining amendments were to delete some of the particulars, and these would not cause injustice to the Registrant. The Panel determined that the proposed amendment would not cause injustice and therefore the Panel allowed the amendments to be made. The amended Allegation is as set out above.

Background:

15. Mr Boben Zacharia (“the Registrant”) commenced employment with Greater Glasgow and Clyde NHS in July 2012 as a Band 2 Nursing Auxiliary. The Registrant was employed as a Band 5 Physiotherapist from 1st August 2014 until 4th March 2016.

16. Whilst working as a physiotherapist, the Registrant worked within the Community Rehabilitation Team in Primary Care. Concerns were highlighted regarding the Registrant’s practice very soon after his commencement as a physiotherapist in August 2014. These concerns were that the Registrant was not able to complete work without promptings from his supervisor and that he required guidance in order to complete his written assessments and patient notes.

17. The Registrant was made subject to an Informal Supported Improvement Framework in October 2014, which was to include additional supervision and support.

18. The Registrant was on a period of sickness leave from 9th October 2014 until 18th August 2015; the Support Improvement Plan re-commenced on his return to the Trust.

19. The Registrant went on a further period of sick leave on 23rd October 2015; whilst away from work, he resigned from his physiotherapy post and requested redeployment in a Band 2 role.

Decision on Facts:

20. The Panel considered all the evidence in this case together with the submissions made by Ms Sharpe on behalf of the HCPC.

21. The Panel accepted the advice of the Legal Assessor who reminded the Panel that the burden of proof rests with the HCPC, and that the Registrant need not disprove anything. The Legal Assessor also reminded the Panel that the standard of proof is the civil standard, namely the balance of probabilities.

22. The Panel heard oral evidence from the following witnesses on behalf of the HCPC:

• Witness 1, Team Leader of the Community Rehabilitation Team where the Registrant worked.

• Witness 2, Physiotherapist within the Community Rehabilitation Team where the Registrant worked. She was also the Registrant’s supervisor as part of the Registrant’s improvement plan. She supervised the Registrant on the relevant visits of 14 September 2015, 22 September 2015 and 12 October 2015.

• Witness 3, Physiotherapist within the Community Rehabilitation Team where the Registrant worked, and who had supervised the Registrant on the relevant visits of 25 September 2015, 2 October 2015 and 9 October 2015.

• Witness 4, senior Physiotherapist based at Sobhill Hospital was the only external supervisor of the Registrant and his mentor. She had experience of mentoring and supervising Physiotherapists. She supervised the Registrant on the relevant visits of 23 September 2015 and 6 October 2015.

23. The Panel also received a bundle of evidence which included:

• Supervision notes in relation to the Registrant

• Relevant Patient notes

• The Registrant’s training record

• The Registrant’s assessment record

• The Supported Improvement Plan/Action in relation to the Registrant

24. All the witnesses who gave evidence were honest and credible. They did their best to assist the Panel and their evidence was reliable. Whilst parts of their recollection was affected by the passage of time, such parts as were material were clarified by the documentary evidence, much of which took the form of contemporaneous, or near-contemporaneous notes and records. Furthermore the documentary evidence corroborated their evidence.

25. The Panel considered each of the particulars in turn and made the findings set out below.

Particular 1(a)

(a) While assessing Patient A on or around 14 September 2015 and/or 22 September 2015, you did not question the Patient specifically enough, to identify a pattern of pain;

26. Witness 2 told the Panel that both assessments took place at Patient A’s home by pre-arranged appointment, and that the Registrant was carrying out the assessment under her supervision. She told the Panel that Patient A’s condition was complex in that he had back pain and leg pain, and suffered from various conditions which could potentially have been the cause or causes of the pain he was experiencing.

27. Witness 2 told the Panel that the Registrant was able to carry out a basic assessment of Patient A but when it came to the assessment of pain, the Registrant did not ask relevant questions of Patient A as to the specifics of the pain nor to identify the cause of the pain.

28. Witness 2 told the Panel that the Registrant had a general assessment form for the visit on 14 September 2015.  If the Patient had pain then the Registrant should have asked further questions about this but he did not. Subsequently Witness 2 gave the Registrant a specific Pain Assessment Form as an aide memoir for the next visit.

29. She told the Panel that on the second visit with Patient A on 22 September 2015, the Registrant again failed to carry out a proper assessment of Patient A’s pain, nor it’s possible cause. She told the Panel that the Registrant did not ask sufficient questions, nor sufficiently probing questions, that would have enabled him to make a proper assessment of Patient A. This was despite having been specifically directed to the Pain Management Form after the 14 September 2015 visit.

30. The Panel finds Particular 1(a) proved in relation to both 14 and 22 September 2015.

Particular 1(b)(i)

(b) On 23 September 2015, while assessing Patient B and/or Patient C, you:

(i) did not extract relevant information from the patient and/or  the patient’s carer without prompting and/or at all;

31. Witness 4 told the Panel that she was the Physiotherapist who supervised the Registrant on both visits on the 23rd of September 2015 in relation to Patient B and Patient C. She told the Panel that she had been present throughout the visits, observing and supervising the Registrant.

32. In relation to Patient B who had dementia, Witness 4 told the Panel that the Registrant spoke to a nurse caring for Patient B, in order to glean information for the purpose of assessing the patient. In carrying out the ‘Falls Assessment’, the Registrant was using a ‘Falls Assessment’ tool that had the questions set out, and he could have just read them out word for word. However, Witness 4 told the Panel that she had to prompt the Registrant a significant number of times during the ‘Falls Assessment’, because he was not asking the questions as worded on the form but was rewording them in a manner that did not obtain the information required.

33. Witness 4 told the Panel that in the end, she had to intervene and prompt the Registrant to ask the questions from the ‘Falls Assessment’ tool, as the information received by the Registrant would not have been sufficient to carry out a ‘falls assessment’ and the appointment was coming to an end.

34. In relation to Patient C, Witness 4 told the Panel that the Registrant asked questions of Patient C directly in a rapid manner without reacting appropriately to the responses. On occasion he did not even wait for an answer before asking the next question. He did not extract relevant information from the patient in order to inform the assessment.

35. The Panel finds Particular 1(b)(i) proved in relation to Patients B and C.

Particular 1(b)(ii)

(b) On 23 September 2015, while assessing Patient B and/or Patient C, you:

(ii) did not ask the patient and/or the patient's carer clear questions without prompting and/or at all.

36. In relation this Particular, the Panel finds it proved in relation to Patient B only. The evidence of Witness 4 was that the Registrant’s questions to Patient B’s carer were not clear. He was re-phrasing the questions on the ‘falls assessment’ form but in a manner that could have been confusing.

37. The Panel does not find this particular proved in relation to Patient C. The evidence of Witness 4 is that the Registrant asked questions in a manner which agitated the patient. The questions were not probing questions that would enable him to glean the appropriate information. However, that is not what the Registrant is charged with.

38. Therefore the Panel finds Particular 1(b)(ii) proved only in relation to Patient B.

Particular 1(c)

(c) On 2 October 2015, during an assessment of Patient D, you:

(i) did not identify a Warfarin issue as a Precaution

(ii) did not complete a respiratory assessment of the patient.

39. Witness 3’s evidence was clear in relation to this Particular. She supervised the Registrant during his visit with Patient D on 2 October 2015. She told the Panel Patient D’s medical history and that the Registrant had noted that the patient was on Warfarin in the ‘Drug History’ section of the Patient records, but he did not include it in the section for ‘Contraindications, Precautions and Allergies.’ Witness 3 told the Panel that in the circumstances, Warfarin was a high-risk drug and a physiotherapist should have been aware of this, and should have evidenced that it had been taken it into consideration as part of the assessment. Witness 3 said this was discussed in the next supervision meeting between Witness 3 and the Registrant. It is recorded in the supervision record of that meeting completed by Witness 3.

40. Witness 3 told the Panel that, during the subjective assessment, Patient D had stated that his main issue was shortness of breath. She told the Panel that shortness of breath was relatively common in elderly patients, as Patient D was, and that shortness of breath was something that Physiotherapists should be aware of. Witness 3 told the Panel that the Registrant did not complete a respiratory assessment, nor did he make a record of any respiratory assessment. She told the Panel that in the circumstances, a respiratory assessment should have been carried out which would have included assessing Patient D’s posture and respiratory function. Witness 4 told the Panel that the Registrant could have then provided Patient D with cardiopulmonary exercises that would have helped the Patient’s shortness of breath.  Again this was discussed in the supervision meeting and noted in the abovementioned supervision record.

41. The Registrant had signed the abovementioned supervision record when it had been completed, indicating that he agreed with its contents.

42. The Panel finds Particular 1(c) proved in its entirety.

Particular 1(d)

(d) On 6 October 2015, during an objective assessment of Patient E, you did not assess the patient's hamstring and/or ankle strength adequately or at all.

43. The Panel accepted that ankle strength refers to the power of the muscles surrounding the ankle.

44. Witness 4 supervised the Registrant on this visit and she told the Panel of the medical history of Patient E that led to his referral to be assessed by a Physiotherapist. She told the Panel that Patient E had reported having a fall three months prior. Therefore, it was very important that the assessment on 6 October 2015 covered every aspect of physical strength and mobility, especially the lower limbs of Patient E, as per the NICE Falls Guidelines.

45. Witness 4, who was present throughout the assessment, told the Panel that the Registrant did not carry out any proper assessment of the Patient E’s hamstring or of his ankle strength. This is supported by the record of the assessment, and the subsequent amendments made. This evidence is dealt with as part of Particular 2(c) below

46. The Panel finds Particular 1(d) proved.
Particular 1(e)

(e) On 2 October and/or 9 October 2015, during an assessment of Patient F, you :

(i) used a bilateral Straight Leg Raise to assess the Patient who had received a total knee replacement;

(ii) Did not assess the patient's knee extension adequately or at all.

47. Witness 3 gave evidence that she supervised the Registrant in relation to the visits to Patient F on both 2 October 2015 and 9 October 2015. She told the Panel of Patient F’s past medical history and what the assessment should consist of. Patient F had received a total knee replacement, with the added complication of a heart attack suffered during his recovery in hospital. Witness 3 explained to the Panel what an initial assessment for a total knee replacement should entail. This included an objective assessment focused on the extension and flexion of Patient F’s knee.

48. Witness 3’s evidence is clear in that she was present throughout the visit on 2 October 2015 and the Registrant used a bilateral Straight Leg Raise when assessing the Patient, which was inappropriate in any circumstances.  She had to intervene to stop the Registrant. She was also clear that the Registrant failed to assess Patient F’s knee extension and she had recorded this in her supervision notes for the day, which the Panel had before it.

49. Witness 3 told the Panel that during the supervision session that took place immediately after the visit on 2 October 2015, she had pointed out to the Registrant that he had not assessed Patient F’s knee extension.  She told the Registrant that he had to complete an assessment of Patient F’s knee extension when they next visited him on 9 October 2015.

50. Witness 3 told the Panel that on 9 October 2015 when she and the Registrant visited Patient F, the Registrant again failed to carry out an appropriate assessment of the patient’s knee extension. She told the Panel that the Registrant provided an exercise involving knee extension, but did not use any recognised method of assessing Patient F’s knee extension. The Registrant did not, at any point during the visit, ask the patient to fully extend his knee which was necessary in order to assess knee extension. No bilateral Straight Leg Raise was performed on this day.

51. The Panel finds Particular 1(e)(i) proved in relation 2 October 2015 only.

52. The Panel find Particular 1(e)(ii) proved in relation to both 2 October 2015 and 9 October 2015.

Particular 1(f)

(f) On 12 October 2015, during a subjective assessment of Patient G, you did not include the patient.

53. Witness 2 told the Panel that she supervised the Registrant during this visit with Patient G. Patient G was an elderly lady who live on the ground floor of a house, with her family living upstairs. Patient G was independently mobile and had been referred to Physiotherapy due to having falls and for mobility issues.

54. Witness 2 told the Panel that when they arrived, Patient G’s daughter initially explained that Patient G was hard of hearing. From that point on, the Registrant did not engage with Patient G and only conversed with her daughter. Witness 2 told the Panel that all questions for the subjective assessment of Patient G were directed at her daughter, and that the Registrant did not attempt to communicate with Patient G in any form, verbal or non-verbal.

55. Witness 2 told the Panel that the Registrant should have attempted to communicate with the patient, and explore reasonable means to do so. To do so would involve the Patient in her own care and enable information to be obtained from the patient herself. Physiotherapists are trained to identify an appropriate method of communication with patients.

56. The Panel find Particular 1(f) proved.

57. In relation to the stem of Particular 1 the Panel found that 1 (a), (b) (c) and (f) related to subjective assessments and 1 (d) and (e) related to objective assessments.

Particular 2(a)(i)

2. Did not complete full and/or written records of assessments for your patients, in that:

(a) following an assessment of Patient A on 22 September 2015, you:

(i) did not document the assessment in the SOAP format;

58. Witness 2 told the Panel that she supervised the Registrant on 22 September when they visited Patient A. She was present throughout the visit, observing and supervising the Registrant.

59. Witness 2 explained that SOAP was an acronym for “subjective, objective, assessment, and plan”, and that it is a standard method used by the Physiotherapy members of her team to make notes of their assessments of patients. Witness 2 told the Panel that whilst it was not compulsory to use the SOAP notes format, the physiotherapists on her team would use them as SOAP served as a structured approach. Witness 2 told the Panel the she had asked the Registrant if he knew what SOAP notes were and he replied that he did.

60. The Panel had before it the notes of the Registrant of the two visits with Patient A. The notes of 22 September 2015 does not follow the SOAP format and there is no delineation in his notes of what subjective and objective assessments he carried out in order to plan the treatment for Patient A.   

61. The Panel finds Particular 2(a) (i) proved.

Particular 2(a)(ii)

(a) following an assessment of Patient A on 22 September 2015, you:

(ii) did not make an accurate recording of what had been discussed and/or assessed.

62. Witness 2 produced the patient’s record relevant to the visit. In it the Registrant only recorded the treatment he provided during the visit and the plan he suggested for the next visit. The patient’s record did not include any subjective or objective assessment of the patient which Witness 2 had observed during the visit.

63. The Panel found Particular 2(a)(ii) proved.

Particular 2(b)

(b) following an assessment of Patient B and/or of Patient C on 23 September 2015, did not record what had been discussed and/or assessed sufficiently and/or in a timely manner.

64. This Particular relates to the visit set out Particular 1(b) above.

65. Witness 4’s evidence, in relation to Patient B, was that the Registrant needed prompting throughout his assessment of Patient B in order to ask the relevant questions. When her prompting was insufficient, she then had to intervene in order to direct the Registrant to ask the correct questions. Hence his records were accurate but only after Witness 4’s intervention and prompting which was not the charge.

66. In relation to Patient C, the documentary evidence showed that the Registrant had not fully recorded the answers provided by the patient during the assessment. She told the Panel that the Registrant could have fully documented the information electronically on the electronic note recording system, EMIS, or on the handwritten notes for this patient on the Physiotherapy Assessment Form. The witness produced both forms of notes in relation to the visit, neither of which were complete. Witness 4 stated that she would have expected the Registrant as a qualified Physiotherapist to know what should be recorded within the notes.

67. The Panel finds Particular 2(b) proved in relation to Patient C, but not proved in relation to Patient B.

Particular 2(c)

(c) On 6 October 2015, during an objective assessment of Patient E, you documented the Patient’s hamstring and/or ankle strength as 3+ in the notes, even though this was not assessed adequately or at all.

68. This particular relates to the visit set out Particular 1(d) above.

69. Witness 4 said that when she reviewed the patient notes of that visit, she found that the Registrant had recorded that the patient’s hamstring and ankle strength was “3+”.

70. Witness 4 told the Panel that lower limb strength assessments were basic assessments that all Physiotherapists should know how to undertake and be able to record. She supervised the Registrant on this visit and no assessment was made of the hamstring and ankle strength.

71. Witness 4 told the Panel that the patient’s record had to be corrected in order to present an accurate reflection of what was carried out during the assessment on 6 October. She told the Panel that the Registrant accepted that he had not asked the patient to actively participate in the assessment of the ankle, and he could not remember making any assessment of the patient’s hamstring.

72. The Panel had sight of Patient E’s record in relation to the assessment which showed the “3+” grading had been crossed out and the correction initialled by the Registrant.

73. The Panel find Particular 2(c) proved.

74. In relation to the stem of Particular 2, the Panel finds that the Registrant did not complete written records of assessments.

Particular 3(a)

(a) On 2 October 2015, in respect of Patient D who had Chronic Obstructive Pulmonary Disease (COPD), you provided the patient with a treatment plan of sitting strength exercises, despite the patient being independently mobile.

75. This Particular relates to the visit set out Particular 1(c) above.

76. Witness 3 told the Panel of the treatment plan provided to Patient D by the Registrant on 2 October 2015. She said sitting exercises were inappropriate for Patient D as they were normally used for patients who were not safe to stand. Patient D was able to stand safely and was independently mobile unaided.

77. The Panel finds Particular 3(a) proved.

Particular 3(b)

(b) On 2 October 2015, in respect of Patient F, did not provide a program appropriate for a Total Knee Replacement patient.

78. This Particular relates to the visit set out in Particular 1(e) above.

79. Witness 3 told the Panel that the Registrant failed to provide the basic exercises that should be provided to all total knee replacement patients, such as “static quad contractions or active knee flexion/extension in sitting or standing positions”. These exercises are routinely provided to all knee replacement patients. Witness 3 told the Panel that the Registrant provided Patient F with a static hip adduction exercise which was not effective nor beneficial to a total knee replacement patient.

80. The Panel find Particular 3(b) proved.
Particular 3(c)

(c) On 12 October 2015, developed an exercise plan for Patient G in a lying position, despite the Patient being independently mobile.

81. This Particular relates to the visit set out in Particular 1(f) above.

82. Witness 2 told the Panel that the exercise plan devised by the Registrant for Patient G was one that involved her lying on her bed with family providing manual resistance.

83. Witness 2 told the Panel that an exercise plan in a lying position was inappropriate for two reasons, namely it would not benefit the patient, and it ignored what the Registrant had been specifically told:

(a) Patient G was able to stand and walk, and therefore exercises that were done lying down would not have been a challenge to her, and therefore would not have been beneficial; and

(b) Asking the family to provide resistance for exercises ignored the fact that Patient G’s daughter had specifically told the Registrant that Patient G was reluctant to let her family members help her as she felt that her family already did more than enough to help her.

84. The Panel finds Particular 3(c) proved.

Decision on Statutory Grounds

Submissions

85. Having made its findings on fact, the Panel then went on to consider whether the facts found proved amounted to lack of competence and/or misconduct.
86. Ms Sharpe 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.”

87. Ms Sharpe submitted that the Registrant had breached the following paragraphs of the HCPC’s standards of conduct, performance and ethics (2008 edition): 1, 7 and 10. She further submitted that the Registrant had also breached the following paragraphs of the HCPC’s standards of proficiency for Physiotherapists: 1, 3, 4, 8, 9, 10, 11, 12, 13, 14 and 15.

Legal Advice

88. The Legal Assessor reminded the Panel that there was no burden of proof nor was there a standard of proof when determining whether the facts found proved amounted to one of the two statutory grounds. The Panel was to exercise its own professional judgment when making its decision.

89. The Legal Assessor reminded the Panel to look to the standards of conduct, performance and ethics established by the council and consider whether the Registrant has failed to comply with them.

90. The Legal Assessor advised that in relation to lack of competence, the Panel must satisfy itself that it has been presented with a fair sample of the Registrant’s work in order to make an assessment of his competence, or lack thereof.

91. The Legal Assessor also advised the Panel that misconduct has been defined as actions that fall short of what would be proper in the circumstances.

Panel consideration and decision

92. The panel exercised its own judgement in determining whether the particulars found proved amounted to one of the statutory grounds. 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.

93. The Panel considered each of the matters proved against the Registrant and if they amounted to either a lack of competence or misconduct on his part.  The Panel determined that this was clearly a case of lack of competence as opposed to misconduct.

94. The Panel considered whether the evidence put before it represented a fair sample of the Registrant’s work, sufficient for it to determine whether his failures constitute a lack of competence. Having regard to the nature and scope of the allegations found proved, and the period in which they occurred, the Panel was satisfied that it had been presented with a fair sample of the Registrant’s work. The Panel had been told that the Registrant had a workload of no more than 5 patients at any time while on average a community Physiotherapist was expected to have a caseload of 30 to 40 patients.

95. The Panel also considered whether the Registrant had been:

(a) alerted to concerns regarding his performance;

(b) provided with opportunities to improve his performance; and

(c) further assessed in respect of any alleged on-going lack of competence.

96. The Registrant failed to demonstrate the standards of knowledge, skill and judgment required to practise as a band 5 Physiotherapist from shortly after he was appointed. The Panel was satisfied that the Registrant was subsequently provided with opportunities to address the deficiencies in his practice that had been identified and that his performance had been continuously monitored, supervised and assessed. It was clear that his colleagues and managers made efforts to help the Registrant address his shortcomings.

97. The Panel particularly noted that the evidence demonstrated:

(a) The Registrant lacked the basic knowledge and basic competence expected of a Band 5 physiotherapist.

(b) The Registrant had the propensity to not recognise or act upon the concerns of patients. For example, In relation to the visit on 2 October 2015, Patient D had specifically told the Registrant about his issue with shortness of breath, but the Registrant failed to take that into consideration when deciding on the appropriate treatment. The Registrant on that occasion not only decided on treatment that was inappropriate, he also failed to recognise and address a specific issue drawn to his attention by Patient D.

98. 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.

7. You must communicate properly and effectively with service users and other practitioners

10. You must keep accurate records.

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

Registrant physiotherapists must:

1 be able to practise safely and effectively within their scope of practice

3  be able to maintain fitness to practise

4  be able to practise as an autonomous professional, exercising their own professional judgement

8  be able to communicate effectively

10  be able to maintain records appropriately

11  be able to reflect on and review practice

12  be able to assure the quality of their practice

13  understand the key concepts of the knowledge base relevant to their profession

14 be able to draw on appropriate knowledge and skills to inform practice.

100. The Panel determined that the facts found proved constitute serious departures from the standards expected of a Physiotherapist and demonstrate a lack of competence on the part of the Registrant.

101. Having considered each particular in turn and in the round the Panel determined that they amounted to the statutory grounds of lack of competence.

Decision on Impairment:

102. 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.

103. The Legal Assessor drew the Panel’s attention to the guidance set out in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin), and reminded the Panel that there was a personal and public component when considering whether the Registrant’s fitness to practise was currently impaired.

104. For this purpose, the Panel adopted the approach formulated by Dame Janet Smith in her fifth report of the Shipman inquiry by asking itself the following questions:

“Do our findings of fact in respect of the Registrant’s lack of competence 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?”

105. The Panel determined that the facts proved demonstrate that the Registrant’s failures had the potential to place service users at unwarranted risk of harm as a consequence of his lack of competence. In coming to its decision it took into account the following factors:

a) Record-keeping errors undermine the continuity of care and therefore present a risk of harm because other practitioners who become involved in providing care may make judgements on the basis of incomplete or incorrect information.

b) The apparent inability of the Registrant to take into account, and react appropriately to, additional and unexpected information provided to him by patients and their carers had put patients at risk of harm.

c) The ability to practice safely is one of the fundamental skills required of a Physiotherapist. The Registrant’s inability to achieve and maintain acceptable standards of competence in a number of essential areas of physiotherapy amounts to a breach of a fundamental tenet of the profession.

d) The Registrant’s lack of competence as a registered Physiotherapist is liable to damage public confidence in the profession.

106. The Panel considered whether the Registrant’s lack of competence was easily remediable, whether it had been remedied, and the likelihood of any repetition. The Panel also had regard to the issue of insight.

107. The Panel determined that the Registrant’s lack of competence was remediable as his shortcomings are the most basic of knowledge and skill expected of a Physiotherapist. However, the Registrant has not demonstrated that he is capable, currently, of remedying his shortcomings. The evidence before the Panel from all the witnesses, supported by the documentary evidence is that he lacks insight into his shortcomings. His colleagues were clear that the Registrant was well liked, and pleasant, but phrases to the effect that ‘he was more confident in his abilities than he should be’ was a recurring theme amongst the witnesses. It is borne out by the evidence, both oral and documentary, that despite his shortcoming being drawn to his attention, on several occasions, he did not alter his approach.

108. The Panel has not heard any further information, nor has the Registrant provided any evidence or representation that it could be satisfied that the Registrant has sufficient insight into his shortcomings or has remedied his shortcomings. His last email to the HCPC indicated an intention to leave the profession, and therefore he is unlikely to have remedied the deficiencies in his practice.

109. The Panel further considered that his lack of competence was so serious that public confidence in the profession and in the regulatory process would be undermined if a finding of impairment were not made. In the circumstances, the Panel finds that the Registrant’s fitness to practise is currently impaired on personal and public grounds.

Decision on Sanction:

110. Having determined that the Registrant’s fitness to practise is currently impaired, the Panel then considered what sanction if any should be imposed. It has heard the submissions of Ms Sharpe on behalf of the Council.

111. Ms Sharpe submitted that Conditions of Practice are not suitable in light of the circumstances and the Registrant’s lack of insight.

112. The Panel accepted the advice of the Legal Assessor. In determining the appropriate sanction in this case, the Panel bore in mind the over-arching objective of protecting 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. The Panel also applied the principle of proportionality, weighing the Registrant’s interest against the public interest. 

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

114. In considering the matter of sanction, the Panel started with the least restrictive and moved upwards.

115. 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.

116. 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, and 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 nor, to satisfy the wider public interest.

117. The Panel next considered the imposition of a Conditions of Practice Order. The Registrant has not expressed a desire to remain in practice as a Physiotherapist. In his last email he indicated that he would not be renewing his registration as a Physiotherapist, and there is no evidence that his position has changed.

118. The Panel has found that the Registrant has not demonstrated sufficient insight into his lack of competence and the implications that his lack of competence could have on patient safety. His lack of competence persisted despite receiving support and training provided by his employers.

119. In the circumstances, the Panel determined that a Conditions of Practice Order would not be sufficient to protect the public nor would it satisfy the wider public interest. There is no evidence that conditions of practice would be effective to enable the Registrant to remediate his lack of competence. Furthermore, his shortcomings were in the most basic areas of knowledge and skill expected of a newly qualified Physiotherapist. Any Conditions of Practice Order in this case would be so restrictive as to amount to a suspension of the Registrant’s practice.

120. In all of the circumstances, the Panel determined that a Conditions of Practice Order was neither appropriate nor proportionate.

121. The Panel went on to consider suspension of the Registrant’s practice and determined that this was the only appropriate and proportionate sanction that would suffice to protect the public and the wider public interest.

122. The Panel determined that the Order would be for a period of twelve months.

123. If at the conclusion of the period of suspension the Registrant has changed his current position and wishes to continue practising in the profession, a future panel reviewing this Order may be assisted by the following:

a) The attendance of the Registrant at the Hearing;

b) A reflective piece by the Registrant, concentrating on:

i) the areas of his practice where he lacked competence at the time of these matters and at the time of the review; and the knowledge and skills he would need to practise safely

ii) how his actions impacted, or could have impacted, on patients and colleagues;

c) Information about any employment, paid or unpaid, since these matters;

d) An indication as to his future plans;

e) Evidence of the Registrant keeping his knowledge and skills up to date either by attending CPD courses, or being employed in a voluntary capacity in allied and relevant roles;

f) Up to date references from persons who are aware of these proceedings.

124. However, if at the end of the period of suspension, the Registrant maintains that he no longer wishes to continue in the profession, and has continued to engage with the HCPC, consideration should be given to an alternative means of disposal other than the imposition of the ultimate sanction, in light of the case of Clarke v GOC [2017] EWHC 521 (Admin).

Order

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

Notes

The order imposed today will apply from 08 June 2017 (the operative date)


This order will be reviewed again before its expiry on 08 June 2018.

Hearing history

History of Hearings for Mr Boben Zacharia

Date Panel Hearing type Outcomes / Status
27/04/2018 Conduct and Competence Committee Review Hearing Suspended
08/05/2017 Conduct and Competence Committee Final Hearing Suspended