Mr Manish Kaushik

: Occupational therapist

: OT35443

: Review Hearing

Date and Time of hearing:10:00 20/10/2017 End: 12:30 20/10/2017

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

: Conduct and Competence Committee
: Struck off

Allegation

Allegation found proved at the Final Hearing:

During the course of your practice as an Occupational Therapist, you:

1. Were unable to work independently in that you required excessive support from your colleagues.

2. Were unable to manage your workload adequately, in particular that you:

(a) Did not provide timely treatment to service users;

(b) Had difficulty making autonomous decisions on cases;

(c) On some occasions, spent an excessive amount of time with service users;

(d) Demonstrated a lack of knowledge and understanding regarding necessary actions and the need to act urgently in some cases.

3. Did not keep accurate records in that:

(a) You did not sign Subjective Objective Analysis Plan (SOAP) notes;

(b) Risk assessments were not signed or dated;

(c) Several home visits reports conducted were not filed in client files;

(d) Notes did not include sufficient information to allow other members of staff to understand what action was required;

(e) Treatment plans were not dated or signed;

(f) Nine home visit reports were identified after 5 November 2007 as not being stored in the client’s case files;

(g) Information was stored in the wrong client’s files;

(h) In relation to Service User AAP, functional assessments were incomplete in that:

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(i) Observed scores were not recorded in any section of the standard- functional assessment form (STA); and

(ii) The assessment was not signed or dated.

5. Following a performance/capability meeting that was held on 17 March 2011, it was identified that there were twenty two outstanding files that needed to be closed which you had not actioned.


6. Did not undertake clinical reviews of:

(a) treatment goals and;

(b) treatment plans.

7. Did not work adequately with your colleagues, in that you did not provide the Occupational Therapy Assistants enough verbal or written information to allow them to do their jobs competently.

8. Did not make timely clinical decisions, in particular that:

(a) On 2 January 2009, Service User CP was admitted and on 5 March 2009, she was discharged, but when the case was reviewed on 10 August 2009, no discharge outcome sheet or follow-up calls had been made.

Finding

Preliminary Matters


Application for hearing to proceed in private
1. Mr Garvin on behalf of the Registrant applied for the hearing to be in private when matters dealing with the Registrant’s health and references to the Registrant’s family circumstances are heard. Ms Royer did not oppose the application.

2. The Panel took the advice of the Legal Assessor who referred to Rule 10(1)(a) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003. The Panel also considered the HCPTS Practice Note entitled “Conducting Hearings in Private”. The Panel decided that any such references to the Registrant’s health and his family circumstances should be held in private in order to protect his private life.

Background


3. The Registrant was employed as an Occupational Therapist by Kent County Council (“the Council”) from 1 May 2006 until October 2011. During the course of that employment, concerns were raised by the Council with the Registrant as to his competence. The Council started formal capability procedures on three occasions. The final such procedure started in July 2011. On 27 September 2011, the Registrant was suspended from his employment whilst an investigation was carried out into his work. The Registrant resigned from his employment on 3 October 2011.

4. At the final hearing, in 2013 the Panel found that the matters found proved constituted a lack of competence, and found impairment on the basis that at that time, the Registrant was “not able to operate safely as an occupational therapist without close supervision and constant support and monitoring”. 

5. Today the Registrant produced some documents consisting of the following:

i. an undated witness statement;
ii. GP report dated 10 October 2017;
iii. information relating to his role as an electoral registration canvasser including a reference form the Electoral Services Manager;
iv. a testimonial dated 17 October 2017 from the Registered Manager of Carers First, an organisation which has employed the Registrant as a home and community support since 2012 as well as other information relating to that role;
v. training certificates from 2015 and 2016 for training received in his support worker role.

6. Ms Royer on behalf of the HCPC outlined the background to the case. She submitted that the Registrant remained impaired, and that in light of the lack of evidence showing a willingness to remediate, the significant lapse of time and the lack of a significant change in the circumstances of the Registrant, the Panel should consider substituting the Conditions of Practice Order with a Striking Off Order.

7. Mr Garvin submitted that the Panel should bear in mind that the Registrant has found it difficult to obtain employment as an Occupational Therapist (OT) due to the existence of the Conditions and that he has had health and family difficulties which have had an effect on him, although he has not sought to rely on them as an excuse. He referred to the efforts that he has made to continue to maintain the skills required of an OT in his current roles as a care support worker and electoral registration canvasser. Mr Garvin submitted that it might be obvious that the Registrant remains impaired, but that the Registrant’s “heart is in the right place” and that balancing all things together, the fairest thing would be to allow him a  further chance to pursue OT work and continue the Conditions of Practice.

8. The Registrant gave evidence on oath and, in summary, referred to his current role of Carer Support Worker, which requires skills such as dealing with and listening to vulnerable people, building rapport, and making regular and factual case records. The Registrant stated that his role as Electoral Registration Canvasser requires managing data effectively and in an organised manner. He said he has shown adaptability and flexibility in dealing with all his responsibilities. The Registrant highlighted steps taken to try to secure employment as an OT Assistant as well as an OT, as well as volunteer work. He stated that the Conditions have made it very difficult to find employment. The Registrant gave evidence that he undertook a Return to Practise course in 2015 and was willing to undertake another if necessary.

Decision

9. The Panel accepted the advice of the Legal Assessor who referred to CHRE v NMC and Grant (2011) EWHC 927 (Admin). The Panel also took into account the HCPTS Practice Note entitled “Finding that Fitness to Practise is “Impaired””. It bore in mind that it is carrying out a comprehensive assessment of the Registrant’s fitness to practise in light of the current circumstances and that impairment is a matter for its own professional judgment, there being no burden of proof on either side in respect of the question of impairment.

10. The Panel took into account all of the evidence before it. It took into account that the Registrant has not worked as an OT since September 2011 and that he has been suspended for a number of years, as well as the fact that he has found it difficult to obtain employment as an OT due to the Conditions in place. It examined carefully what the Registrant has been doing in the meantime to understand and remediate his failings. Having carefully considered the Registrant’s evidence, the Panel was of the view that the Registrant is clearly a caring and compassionate individual who is highly regarded by his employers, as seen from the testimonials provided by them. In the Panel’s view he gave his evidence in an honest and genuine manner and has clearly sought to engage with his regulator.

11. However, the Panel was of the view that he consistently overestimated how relevant and applicable the skills he is currently using in his roles are to the role of an OT. He repeatedly talked about using his OT skills in his current support worker role, but the examples he gave were insubstantial and generic. While the client group would be the same as in his role as a community support worker as they would in an OT role, the requirements of the role of an OT are very different. The Panel was concerned that the Registrant did not show insight into that difference.

12. The Panel was also concerned that the Registrant was generally narrowly focused on finding employment and was not able to demonstrate that he has thought more broadly about his failings and what he needs to do by way of proactive steps to remediate the failings, as found proved, in respect of his OT work. Insight into the need to do this was also lacking. The Panel was not satisfied that the Registrant has remedied the specific failings identified by the substantive Panel. For example, the training he had undertaken over the last 18 months was at the level of support worker, and would not qualify as CPD for an OT under HCPC requirements. He had also not demonstrated adequate reflective learning or relevant training to the lack of competence found proved. The Registrant also made clear that while he considers that he is competent to work as a Band 5 OT, he would only feel able to work in limited areas of practice even as a Band 5.

13. In all the circumstances, the Panel was of the view that the Registrant had not yet developed sufficient insight into his failings, nor remediated them, and that therefore he was still liable to put service users at unwarranted risk of harm. The Panel therefore concluded that the Registrant remains impaired on the grounds of public protection. The Panel was also of the view that in these circumstances and the lack of sufficient insight and remediation, the need to uphold proper professional standards and maintain public confidence in the profession would be undermined if a finding of impairment were not made.

14. Having determined that the Registrant’s fitness to practice remains impaired by reason of his lack of competence, the Panel went on to consider sanction. The Panel took into account the HCPTS Indicative Sanctions Policy and considered its powers under Article 30(1). It is aware that sanction is a matter for its own professional judgment, and the purpose of sanction is to uphold public protection and/ or the public interest.

15. The Panel first considered taking no further action and allowing the Order to lapse upon expiry. The Panel determined that this was not appropriate as this would not protect the public or sufficiently address the public interest concern in this case.

16. The Panel next considered a Caution Order and determined that this would not be appropriate for the reasons set out in the preceding paragraph.

17. The Panel then considered whether a Conditions of Practice Order was appropriate and proportionate and concluded that it was not. The Conditions as drafted have made it very difficult for the Registrant to find employment and have operated almost as a suspension. In addition, the Panel, in its decision on impairment, has indicated that the Registrant continues, 6 years since he last worked as an OT, to lack insight into how the skills he is currently using in his support worker role are from those of an OT. The Panel was therefore of the view that due to this general lack of insight, conditions could not be drafted that would both ensure safe practice and enable him, realistically to secure employment. Further, the current Conditions, which are the least restrictive which this Panel would consider, have effectively operated to suspend the Registrant, and the Panel cannot see that they are workable.

18. The Panel then considered whether further Suspension would be proportionate and appropriate, and rejected this sanction. The Registrant was suspended in 2013 after the substantive hearing, and remained so until 2016. The public would be protected by further suspension. However, the Panel noted that the HCPC’s Indicative Sanctions Policy says that “If the evidence suggests that the Registrant will be unable to resolve or remedy his or her failings then striking off may be the more appropriate action.” The Panel has found that there is an inability to understand or remedy the failings. Further, the Panel does not see that after three years of suspension it would be in the public interest to impose extended suspensions which serve no real purpose. The Panel has taken into account the Registrant’s health and family circumstances, but concluded that his inability to resolve outstanding matters surrounding the remediation and insight required of him meant that further suspension is not appropriate or proportionate. A further period of suspension would risk undermining confidence in both the profession and in the regulatory process.

19. The Panel therefore decided that a Striking Off Order was necessary and proportionate on the basis of the Registrant’s persistent inability, since 2013 to demonstrate sufficient insight into his failings, or to remediate them. Taking into account that period of time, the Panel is of the view that a Striking Off Order is the only appropriate order that will both protect the public and maintain confidence in the profession and the regulator, in these particular circumstances of a persisting inability to demonstrate sufficient insight and remediation which are required of a regulated professional.

20. In coming to this decision, the Panel carefully considered the Registrant’s interests and the impact a Striking Off Order is likely to have on him, but concluded that these were outweighed by the public interest. In this particular case, it would undermine public interest in the profession and the regulator for Registrants to continue to remain on the record who are unable to address their lack of insufficient insight and remediation on a continuing and protracted basis.

21. The Panel therefore decided to strike off the Registrant.

Order

ORDER: That the Registrar is directed to strike the name of Mr Manish Kaushik from the Register on the date this order comes into effect.

Notes

The Order imposed today will apply from 17 November 2017.

Hearing history

History of Hearings for Mr Manish Kaushik

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