Mr Vijayakumaran Kuttampoil

: Practitioner psychologist

: PYL23901

: Review Hearing

Date and Time of hearing:10:00 31/10/2017 End: 12:00 31/10/2017

: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Conditions of Practice

Allegation

(The following allegation was found proved by a Panel of the Conduct and Competence Committee at the substantive hearing which took place on 07 – 11 December 2015 and 18 – 20 July 2016)

 

During the course of your employment as a Clinical Psychologist employed by Cambridgeshire and Peterborough Foundation Trust at HMP Whitemoor between March 2011 and March 2012, you:
1) Did not follow the security process (at HMP Whitemoor) in that you:
a) carried your prison keys in your hand on at least one occasion instead of attaching them to you as required;
b) took personal possessions in a session with a prisoner on at least one occasion;
c) fell asleep during a group session with prisoners on 24 May 2011;
d) not proved
2) Behaved in an unprofessional manner towards colleagues in that you:
a) not proved
b) not proved
c) invaded the personal space of Colleagues A; B; E and F in that you;
(i) not proved
(ii) not proved 
(iii) not proved 
(iv) stood too close to colleague F when she was locking doors;
d) not proved
e) not proved
f) not proved
g) not proved
h) were unable to control your anger and/or frustration in the office on a number of occasions.
3) not proved
4) not proved
5) The matters described in paragraphs 1-3 constitute misconduct.
6) By reason of that misconduct your fitness to practise is impaired.

Finding

Background:
1. At the review hearing on 07 December 2016 the background to this case was set out in the following terms:
“The Registrant is a HCPC registered Practitioner Psychologist. He commenced employment at the Fens Dangerous and Severe Personality Disorder Unit (the Unit), within Whitemoor Maximum Security Prison in March 2011, as a Specialist Clinical Psychologist at NHS Band 7.
The Registrant had never worked in a prison before. The Unit operated within the prison, delivering group and individual therapy for approximately 70 inmates. At the Final Hearing, the facts found proved related to the Registrant not following the appropriate security processes at the prison; behaving in an unprofessional manner in respect of a colleague by standing too close to her as she was locking doors and being unable to control his anger and/or frustration in respect of two meetings with a colleague.
The Final Hearing took place over two periods. The first period was from 7 to 11 December 2015. It then had to be adjourned part heard, due to lack of time and the resumed hearing was from 18 to 20 July 2016.
The substantive Panel concluded that the facts found proved at the Final Hearing amounted to misconduct and that the Registrant's fitness to practise was consequently impaired by reason of that misconduct. It found the Registrant ‘impaired on personal grounds due to lack of insight, personal reflection, remediation and the consequent risk of repetition’. It also found that a finding of impairment was required ‘in order to declare and uphold the HCPC standards of conduct and to maintain the reputation of the profession’. It imposed a Conditions of Practice Order for 3 years.
On 23 August 2016, the Registrant wrote to the HCPC to bring to its attention that, following disciplinary proceedings, he had been dismissed from his employment by his then employer, Nouvita Limited, with effect from 7 July 2016. He had appealed the decision, which was heard on 5 August 2016 and the appeal was dismissed. He explained that he was bringing the information to the attention of the HCPC, as required by his Conditions of Practice Order.
On 28 September 2016, the HCPC received a referral from Nouvita, dated 26 September 2016, regarding an alleged incident on 18 April 2016, of speaking in an unprofessional manner to a colleague during a ward round. This alleged incident was the subject matter of the disciplinary proceedings which had resulted in the Registrant’s dismissal from Nouvita.”
Substantive Review on 07 December 2016:
2. On 07 December 2016  the panel which reviewed the order [the first review panel] explained the circumstances which led to the early review of the substantive order. The explanation as set out in the determination of the first review panel was as follows;
“This is the first review of a Conditions of Practice Order of 3 years, which was originally imposed at the Final Hearing on 20 July 2016, to come into effect 28 days later. It is an early review of that Order, sought by the HCPC. This Panel is reviewing the Order pursuant to Article 30(2) of the Health and Social Work Professions Order 2001.
The Panel considered the submissions of Mr Thompson on behalf of the HCPC. He effectively submitted that the Order needs to be reviewed as there has been a further referral for similar behaviour, which amounts to a change of circumstances. He proposed amending the Conditions of Practice Order to 9 - 12 months which would enable a future panel to review the order earlier.
The Panel considered the submissions of Ms Hayden on behalf of the Registrant. She explained that the Registrant had not worked since his dismissal. Although he had been seeking employment, the restrictive nature of the first condition preventing him from working in high security settings had resulted in him not being successful in finding work. She submitted that the written reflective piece along with the references were supportive of the insight and understanding he was gaining. She invited the Panel to vary the Order to reduce its term.
The Panel also considered the written and oral evidence of the Registrant. He told the Panel that the references included two from his Clinical Supervisor the most recent dated 2 December 2016. He had engaged her privately and continued to see her fortnightly. He explained the health issues which he had been going through. He described the CBT workshop he had attended and the mindfulness practices he used.
The Panel asked the Registrant about his dismissal and why this information was not put before the substantive Panel. The Registrant explained that he had not been aware that he needed to report the dismissal at that stage as he was disputing it, and was of the view that his appeal would be successful. He said he had also not been in a good place at that time as a result of his health, but looking back he saw it as an omission. He said that after the hearing, when the Conditions of Practice had been imposed, he had contacted his Legal Representative to inform him. The Legal Representative had told him of the need to disclose it to the HCPC, which he had done, in the letter of 23 August 2016.”
Decision on impairment by the first review panel:
3. The first review panel first considered whether the Registrant’s fitness to practise was still impaired. It decided that it was. Its reasons were stated as follows;
“The Panel exercised its own independent judgment in determining whether the Registrant's fitness to practise remains impaired. It kept in mind the need to protect the public, to maintain public confidence in the profession, and to uphold proper standards of conduct and performance within the profession.
The Panel was concerned at what it considered to be a lack of insight on the Registrant’s part. Whilst the Panel accepted that the reflective piece was a first draft rather than a fully reflective document, as this was an early review, the Panel was not of the view that it demonstrated a sufficient level of insight. The mindfulness practice and CBT workshop discussed within it pre-date the conclusion of the Final Hearing and although the Registrant said he continued to use mindfulness techniques, the Panel was not reassured that he was able to demonstrate that he had learnt from these so as to be able to apply it to future, challenging clinical and non-clinical settings.
Condition 5(C) sought evidence of the Registrant’s understanding of issues of personal space, conventions about appropriate language and behaviour and how he might manage any cultural differences which have the potential to be problematic in the workplace. In the Panel’s view, the reflective piece did not adequately address these issues, or consider the measures he might put in place to prevent a recurrence in the future. In evidence, he spoke of not bringing back gifts from India for work colleagues and appreciating that this was not appropriate. However, he did not address, for example, how he might understand and interpret body language.
The Panel was also concerned at the Registrant’s apparent lack of insight in relation to the type of information appropriate to disclose to the substantive Panel, so that it did not act on incorrect information. He had not appeared to understand the need to disclose the fact of his dismissal, which had occurred by the time of the resumed hearing. It was clear to this Panel that the substantive panel had considered mitigating and aggravating factors when deciding which sanction to impose, and the lack of disclosure had allowed that panel to proceed on the incorrect basis that:
‘There have been no similar concerns since 2012’ and ‘The Registrant’s current employer states that the Registrant is an outstanding professional and a hard-working member of a multi-disciplinary team, who interacts well with staff and patients’. 
At paragraph 62 of the determination, when considering sanction, the previous panel found that ‘A suspension order would be disproportionate because the evidence before the Panel shows that the Registrant is performing satisfactorily in his current role and has done so for some time…’. However, this Panel is satisfied that the previous panel was working under a misapprehension that the Registrant was still working when he was not, as he had been dismissed by his employer following disciplinary proceedings, less than two weeks previously.
The Panel made no assessment as to the accuracy or reliability of the subject matter of the referral, recognising that it was still at the early stages and was disputed by the Registrant who was appealing the dismissal to the Employment Tribunal. However, the Panel did have regard to the referral to the extent that the Registrant had not volunteered the fact that he had been dismissed by his employer for an allegation of inappropriate behaviour toward a colleague, which in turn allowed the Panel to proceed to sanction in the mistaken understanding that the Registrant was in work and that no further concerns had been raised.
In light of the above, and in particular the Registrant’s lack of insight, and the fact he has been unable to demonstrate remediation, the Panel was of the view that there remains a risk of repetition. The Panel therefore concluded that the Registrant’s fitness to practise currently remains impaired.”
Decision on sanction by the first review panel:
4. Having decided that the Registrant’s fitness to practice was still impaired, the first review panel proceeded to consider the appropriate sanction. It reviewed all the options available to it and decided that a suspension order for a period of 12 months was the appropriate and proportionate order. It explained its reasons as follows;
“Having concluded that the Registrant's current fitness to practise remains impaired, the Panel went on to consider what would be the appropriate, proportionate and sufficient sanction, or other outcome in this case, in order to protect the public and also meet the public interest.
The Panel had regard to the Indicative Sanctions Policy and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive but to protect members of the public and to safeguard the public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.
The Panel does not consider the option of taking no further action or a Caution Order to be appropriate or proportionate in the circumstances of this case. Neither would protect the public nor meet the wider public interest.
The Panel next considered a Conditions of Practice Order. In light of the Panel’s concerns as to the Registrant’s level of insight, it was not satisfied that such an Order poses ‘no risk of harm’ to the public, given its finding of the risk of repetition. In considering whether a Conditions of Practice Order was appropriate this Panel takes a different view to the substantive panel because it is not accurate to say that he was “performing satisfactorily in his current role”. Therefore, this Panel considers that this case is now too serious for a Conditions of Practice Order and only a Suspension Order would adequately protect the public and meet the wider public interest.
The Panel next considered a Suspension Order, and determined that this was the appropriate and proportionate response. The Panel was of the view that a period of 12 months would be the appropriate length. Although the Registrant, at this stage lacked insight, the Panel considered that over the period of the suspension, he may be able to achieve and demonstrate the level of insight to reassure a future Panel that the risk of repetition is low, such that he may be able to return to safe practice.
The Panel acknowledged that such an Order would be likely to have a serious impact on the Registrant as he will not be able to practise as a Practitioner Psychologist. However, the Panel determined that the interests of protecting the public and upholding confidence in the profession outweighed the interests of the Registrant”
Guidance as to review:
5. Having decided the sanction in the terms set out above the first review panel indicated that another reviewing panel might be assisted by the following:
i. further reflections to demonstrate insight
ii. evidence of steps taken to address his failings.
Decision (of this Panel, today):
6. Ms Shenton on behalf of the HCPC made submissions to this Panel. In summary she said as follows; that on the evidence now available this Panel could properly conclude either that the Registrant’s fitness to practise was no longer impaired, alternatively, if this Panel judged the Registrant’s fitness to practise still to be impaired, an Order less restrictive than the existing Suspension Order might be appropriate.
7. This Panel saw a number of documents that were submitted on behalf of the Registrant; they included the following;
• A written statement from the Registrant dated 27 October 2017.
• Seven testimonials, of which four were written in October 2017, one in January 2015, one in June 2016 and one was undated.
• Two medical reports dated 14 March 2017 and 10 October 2017.
• A number of documents relevant to training and relevant activities undertaken by the Registrant in 2017.
• Three documents entitled “miscellaneous documents”.
8. The Registrant also gave oral evidence, which in summary was as follows; he confirmed the accuracy of his written statement which contained his reflections on what he had done and the lessons that he had drawn from those experiences together with other information which he hoped would be of assistance to this Panel. He stated that he wished to return to practise and felt that he was fit and able to do so. He described the nature of the work that he hoped to undertake which included studying for a PhD at Cambridge. He explained what he had done over the last six months to maintain his professional skills and knowledge base. He said that he had reflected on his actions and had learnt from his experience and that it was not his intention to work in a maximum or high security environment, which he described as “destabilising”. He explained why he had failed to inform the original panel of the fact of his dismissal. He described his state of mind and experiences at work in 2016. He said that he now had much better coping mechanisms and support than was previously the case and that there was no danger of a repetition of his previous actions. He said that he was now able to handle any problems that might arise at work from any cultural differences. He also informed this Panel of his present financial circumstances and confirmed that he had not been in employment since July 2016.
9. Mr Galvin on behalf of the Registrant submitted as follows;
• that having regard to the evidence that the Registrant has given, the quality and range of the testimonial evidence submitted in support of the Registrant and the insight the Registrant has developed, this Panel could safely conclude that the Registrant’s fitness to practise is not now impaired.
• That if contrary to his primary submission, this Panel was to hold that the Registrant’s fitness to practise was still impaired, a Conditions of Practice Order was the appropriate and proportionate sanction.
10. This Panel heard and accepted the advice of the Legal Assessor.
11. This Panel is aware that it has all the powers that are set out in Article 30 (1) of the Health and Social Work Professions Order 2001 (The Order) and which are summarised in the letter dated 29 September 2017 addressed to the Registrant and giving notice of this hearing.
12. This Panel is aware that the process under Article 30 (1) of the Order is one of review and not one of appeal and that its function is to determine whether the Registrant’s fitness to practise is still impaired and if so whether the Suspension Order under review remains the appropriate and proportionate means of public protection or should be varied or replaced by some other order.
Decision on Impairment:
13. This Panel has concluded that the Registrant’s fitness to practise is still impaired in that there was a risk of repetition and therefore a restriction on the Registrant’s ability to practise was necessary in order to protect members of the public. In coming to this conclusion this Panel noted that whilst the Registrant had developed some insight into his past conduct, it did not consider that insight to be complete. The Registrant did not fully address either in his written reflection to this Panel nor in his oral evidence the issues regarding personal space, language or behaviour in the workplace. Furthermore, the Panel was not satisfied that the arrangements for the Registrant’s clinical supervision during his last employment were adequate or that he fully appreciated the need for formal supervision arrangements. This was particularly important in that the Registrant had not worked professionally since July 2016.
Decision on Sanction:
14. Having concluded that the Registrant’s fitness to practice is still impaired, this Panel proceeded to consider what order is appropriate, proportionate, sufficient and necessary to protect the public and to safeguard the public interest.
15. This Panel has considered all the submissions that it has heard and all the evidence that it has received.
16. This Panel took into account the principles of proportionality balancing the interests of the Registrant with the public interest.
17. This Panel has had regard to the contents of the Indicative Sanctions Policy published by the HCPTS and is aware that sanctions should be considered in ascending order of severity. This Panel is aware that the purpose of sanctions is not punitive but to protect members of the public and to safeguard the public interest. The latter objective includes maintaining standards within the profession, together with public confidence in the profession and in its regulatory processes.
18. This Panel has concluded that to take no action, thus allowing the present order to lapse or imposing a caution order would be inappropriate having regard to the nature and gravity of the matters found proved. Such outcomes would not sufficiently protect the public or the public interest. Mediation would not be applicable in this case as the Registrant is no longer in employment.
19. This Panel concluded that a Conditions of Practice Order could be formulated which would  address the Registrant’s failings as  previously established  and which would provide sufficient protection for the public. Such an order would be a proportionate sanction to impose. This Panel concluded that in view of evidence which it had received a Suspension order was no longer necessary or proportionate. The Conditions of Practice order should be for a period of 12 months and should come into immediate effect. The Conditions of Practice Order should be in the following terms:
1) You must confine your professional practice to environments which are not high security prisons or high security hospitals or high security wards.
2) You must place yourself under the supervision of a clinical psychologist registered by the HCPC. You must meet at least monthly with that supervisor and provide to the HCPC prior to the next review copies of the formal supervision notes following these sessions.
3) You must promptly inform the HCPC if you take up any employment for which you require your registration, including self-employment.
4) You must promptly inform the HCPC of any disciplinary proceedings taken against you by any employer.
5) You must inform the following parties that your registration is subject to these conditions:
a. Any organisation or person employing or contracting with you to undertake professional work;
b. Any agency you are registered with or apply to be registered with (at the time of application); and
c. Any prospective employer (at the time of your application).
6) At least 28 days before the date of the next review you must send to the HCPC a written reflective statement setting out your understanding of the issues of personal space, conventions about appropriate language and behaviour and how you might manage any cultural differences which have the potential to be problematic in the workplace, together with examples of how you have modified your behaviour in light of this understanding.

Order

The Registrar is directed to annotate the Register to show that, for a period of 12 months from today’s date, you, Mr Vijayakunaram Kuttampoil, must comply with the following conditions of practice:
1) You must confine your professional practice to environments which are not high security prisons or high security hospitals or high security wards.
2) You must place yourself under the supervision of a clinical psychologist registered by the HCPC. You must meet at least monthly with that supervisor and provide to the HCPC prior to the next review copies of the formal supervision notes following these sessions.
3) You must promptly inform the HCPC if you take up any employment for which you require your registration, including self-employment.
4) You must promptly inform the HCPC of any disciplinary proceedings taken against you by any employer.
5) You must inform the following parties that your registration is subject to these conditions:
a. Any organisation or person employing or contracting with you to undertake professional work;
b. Any agency you are registered with or apply to be registered with (at the time of application); and
c. Any prospective employer (at the time of your application).
6) At least 28 days before the date of the next review you must send to the HCPC a written reflective statement setting out your understanding of the issues of personal space, conventions about appropriate language and behaviour and how you might manage any cultural differences which have the potential to be problematic in the workplace, together with examples of how you have modified your behaviour in light of this understanding.

 

Notes

The order imposed today will apply with immediate effect.

Hearing history

History of Hearings for Mr Vijayakumaran Kuttampoil

Date Panel Hearing type Outcomes / Status
31/10/2017 Conduct and Competence Committee Review Hearing Conditions of Practice
07/12/2016 Conduct and Competence Committee Review Hearing Suspended