Mr Marin Stinca

: Physiotherapist

: PH98405

Interim Order: Imposed on 06 Dec 2016

: Final Hearing

Date and Time of hearing:10:00 27/11/2017 End: 17:00 30/11/2017

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

: Conduct and Competence Committee
: Suspended

Allegation

While employed as a Physiotherapist with Great Western Hospital NHS Foundation Trust:

1. Between 26 February 2016 and 16 March 2016, in respect of Patient A, you:

a) Did not use the SOAP format in your assessments recorded on 26 February 2016 and 9 March 2016;

b) Did not complete and/or record an adequate assessment in that you:

i. Did not record clear clinical reasoning in your assessments recorded on 26 February 2016 and 9 March 2016;

ii. Did not record a clear and/or comprehensive treatment plan or goal;

c) Did not make a distinction between objective Ax and Rx.

2. Between 29 February 2016 and 8 March 2016, in respect of Patient B, you:

a) Did not complete and/or record an adequate assessment on 8 March 2016, in that:

i. you recorded that the patient’s transfer and mobility was back to baseline which was factually incorrect;

ii. you recorded that the patient had improved sitting balance when you did not identified this as a problem during your assessment.

3. On 7 March 2016 in respect of Patient C, you did not complete and/or record an adequate assessment in that you did record clear clinical reasoning for providing no further intervention.

4. Between 26 February 2016 and 11 March 2016, in respect of Patient D, you:

a) Did not complete and or record an adequate assessment in that you did not provide clear clinical reasoning in your assessment recorded on 26 February 2016;

b) Did not record an adequate treatment plan or goal in your assessment recorded on 26 February 2016;

c) Did not make a distinction between objective Ax and Rx in your assessment recorded on 26 February 2016;

d) Did not use clear clinical terminology and/or clinical reasoning in your assessment recorded on 11 March 2016.

5. The matters set out in paragraphs 1 –4 constitute misconduct and/or lack of competence.

6. By reason of your misconduct and/or lack of competence your fitness to practice is impaired.

Finding

Preliminary matters

Proof of Service

1. The Panel was provided with a signed certificate as proof that the Notice of Hearing had been posted on 31 July 2017 by First Class post, to the address shown for the Registrant on the HCPC register.  The Notice was also sent to the Registrant by email on the same date. The Panel was satisfied that Notice had been properly served in accordance with Rule 3 (Proof of Service) and Rule 6 (date, time and venue) of the Conduct & Competence Committee Rules 2003 (as amended).

Proceeding in Absence

2. Having determined that service of the Notice of Hearing had been properly effected, the Panel went on to consider whether to proceed in the Registrant’s absence. The Panel was advised by the Legal Assessor and followed that advice. The Panel also took into account the guidance as set out in the HCPC Practice Note “Proceeding in the absence of the Registrant”.

3. The Panel determined that it was fair, reasonable and in the public interest to proceed in the Registrant’s absence for the following reasons:

a) The Registrant has only engaged with the regulatory process on a limited basis. He confirmed receipt of the Investigating Committee bundle in an email, dated 27 September 2016, in which he stated that he would respond ‘in the next 3 weeks’. However, no response was received. A further Investigatory Committee was scheduled to consider significant amendments to the allegation and on 27 March 2017 the Registrant responded to the amended allegation. The Registrant’s final communication with the HCPC was in response to the Notice of Hearing. In his email dated 16 August 2017, the Registrant stated, ‘I will do my best to attend the hearing, but in case I will not be able to attend due to any unforeseeable circumstances, I have full confidence in Panel’s judgment.’ In these circumstances the Panel was satisfied that it was reasonable to conclude that the Registrant’s non-attendance was voluntary and therefore a deliberate waiver of his right to attend.

b) There has been no application to adjourn and no indication from the Registrant that he would be willing or able to attend on an alternative date and therefore re-listing this final hearing would serve no useful purpose.

c) The HCPC has made arrangements for two witnesses to give evidence during this hearing. In the absence of any reason to re-schedule the hearing the Panel was satisfied that the witnesses should not be inconvenienced by an unnecessary delay and should give evidence whilst the events are reasonably fresh in their minds.

d) The Panel recognised that there may be a disadvantage to the Registrant in not being able to respond to the HCPC’s case. However, he was given the opportunity to send documents to the HCPC and was aware of how to contact the HCPC if he wanted to participate in the hearing other than in person. In these circumstances the Panel concluded that any disadvantage to the Registrant was mitigated by the independence of the Panel and the presence of the independent Legal Assessor, and was outweighed by the strong public interest in ensuring that the final hearing is commenced and considered expeditiously.

Application to Amend

4. At the outset of the hearing Ms Shameli, on behalf of the HCPC, made an application for the Allegation to be amended. The Panel noted that the Registrant had been put on notice of the proposed amendment in a letter, dated 17 May 2017, and that no objection had been raised by him  The Panel was satisfied that the proposed changes were minor and did not materially alter the substance or meaning of the Allegation as originally drafted. The Panel was also satisfied that no injustice would be caused by making these amendments as they more accurately reflected the HCPC case. In forming this view the Panel took into account the fact that the Registrant had been put on notice of the HCPC’s application in advance.

Background

5. The Registrant is a physiotherapist registered with the HCPC. He commenced employment with the Great Western NHS Foundation Trust (“the Trust”) on or around 15 November 2015 as a Band 5 physiotherapist in the Marlborough Community Team. The first 6 months of his employment contract was a probationary period. For the first three months of the probationary period, the Registrant worked on the rehabilitation ward of the Savernake Hospital where he was responsible for assessing and treating a wide variety of patients. His line manager and supervisor on the rehabilitation ward was Witness JC. In February 2016, the Registrant was transferred to work in the community where he was responsible for assessing and treating patients in their homes. Witness RB was responsible for the Registrant’s clinical supervision in that setting.

6. It became apparent that there were concerns in respect of the Registrant’s clinical practice in the Community Team. In an attempt to find a placement where he could be more effective, he was transferred to Musculo Skeletal Out–Patient Department in Salisbury Hospital. This placement lasted for two days due to concerns about the Registrant’s practice. Salisbury Hospital wanted the Registrant to return to Savernake Hospital, but the Registrant handed in his notice and left immediately.

Assessment of Witnesses

Witness JC – Band 6 Physiotherapist at the Trust

7. Witness JC line managed the Registrant during his time on the rehabilitation ward. Witness JC had a reasonably good recall of the events that took place and did her best to assist the Panel. Her oral evidence was consistent with her witness statement and when she was not able to recall something she said so. There was no suggestion from her evidence that she bore any animosity towards the Registrant. On the contrary her evidence was balanced and fair. She described the Registrant as being very pleasant, even tempered and grateful for the support that had been offered to him. She also stated that he took criticism very well during the supervision sessions. Witness JC informed the Panel that the Registrant required more supervision and support than most Band 5 physiotherapists and she had done everything she could to help him. She also stated that the level of supervision he required was ‘like having a permanent student’ on the ward. The Panel had no reason to doubt that she was anything other than a credible and reliable witness. 

Witness RB – Community Specialist Physiotherapist at the Trust

8. Witness RB was responsible for the clinical supervision of the Registrant between 15 February 2016 and 18 March 2016, following his rotation from the ward to the community setting. Witness RB provided the Panel with a clear and consistent account of the Registrant’s clinical practice and notes. Witness RB’s oral evidence was consistent with her written statement and she appeared open and honest when she was unable to assist the Panel. She readily conceded that she had made a mistake by misreading the Registrant’s notes and accepted, on more than one occasion, that there was an alternative interpretation of his notes. Her responses were thoughtful, she was careful not to overstate her evidence and she was not defensive. These features added to her overall credibility. The Panel found Witness RB to be an honest and reliable witness. 

Decision on Facts

Panel’s Approach

9. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything and the individual particulars of the Allegation could only be found proved, if the Panel was satisfied, on the balance of probabilities.

10. In reaching its decision the Panel took into account the oral evidence, the written and documentary evidence including the Registrant’s response to the Investigating Committee and the oral submissions made on behalf of the HCPC.

11. The Panel accepted the advice of the Legal Assessor.

Particular 1(a) – Found Not Proved

12. As the HCPC offered no evidence in relation to particular 1(a) the Panel found it not proved.

Particular 1(b)(i) – Found Proved
‘Did not record clear clinical reasoning;’

13. Patient A was an elderly gentleman who was suffering from a fractured neck of femur as a result of a previous fall. He had been re-admitted because he was presenting with weakness and extreme pain. Patient A was known to the Registrant because he had spent time in the community hospital ward. On 26 February 2016 the Registrant conducted an initial community based assessment with Patient A and produced a record of his assessment. Witness RB did not supervise the patient visit but reviewed the Registrant’s record.

14. The Panel accepted Witness RB’s evidence that the Registrant did not record a full assessment. The Panel had sight of the ‘Record of Care’ and noted that the section relating to the Registrant’s assessment was vague. The Registrant appeared to have performed a number of interventions, for example, ‘Practised sit to stand 8 times’, but it was unclear from the record what the Registrant’s clinical reasoning was for these interventions and the Panel concluded this was because of the lack of detail in the initial assessment.

15. Accordingly, particular 1(b)(i) was found proved.

Particular 1(b)(ii) – Found Not Proved
‘Did not record a clear and/or comprehensive treatment plan or goal;’

16. The Panel noted that at the end of the ‘Record of Care’ the Registrant had made the following entry, ‘As patient is keen to move back upstairs and go outside, on next visit will assess step and if ready stairs.’ The Panel was satisfied that this entry demonstrated that the Registrant set a clear goal. The Panel accepted that the goal was not SMART (an acronym that stands for specific, measurable, achievable, realistic and time related). However, Witness RB informed the Panel during her oral evidence that a SMART goal was the ideal and that she would have been content with a goal. As the Panel was satisfied that the Registrant had recorded a clear goal this aspect of the particular was found not proved.

17. The Panel accepted the advice of the Legal Assessor and gave the words in the particular their ordinary natural meaning. Having found that the Registrant had recorded a clear goal the Panel took the view that the ‘comprehensive treatment plan’ element fell away. The natural reading of particular 1(b)(ii) as drafted was that ‘comprehensive treatment plan’ and ‘goal’ were alternatives. The Panel considered that the HCPC may have meant it to read ‘comprehensive treatment plan and/or goal’. However, there had been no application to amend and the Panel concluded that it would not be in the interests of justice to exercise its discretion to amend the Allegation at this late stage.

18. Accordingly, particular 1(b)(ii) was found not proved in its entirety.

Particular 1(b)(iii) – Found Proved
‘Did not perform and/or record an adequate assessment of active range of movement and/or muscle strength;’

19. The Panel accepted the evidence of Witness RB that the Registrant did not record a thorough assessment of Patient A’s range of movement and muscle strength. The Panel noted that the ‘Record of Care’ referred to the range of movement as being ‘functional’ and ‘all other joints have functional force and ROM’. The Panel concluded that these references were too vague. For example, the Registrant did not specify the angles and directions of the patient’s range of movement. The Panel noted that the pages of the assessment form which would have prompted the Registrant to assess the Patient A’s active and passive range of movement were left blank. The Panel acknowledged that that section of the form did not have to be completed provided that the information was elsewhere on the patient’s record. As there was insufficient detail the Panel concluded that the Registrant’s assessment of Patient A’s range of movement was not adequate.

20. The Panel noted that with regards to muscle strength the Registrant recorded that Patient A’s left hip abduction was ‘force – 3’, which indicated that the hip had been assessed in only one direction. As there was insufficient detail the Panel concluded that the Registrant’s assessment of Patient A’s muscle strength was not adequate.

21. Accordingly, particular 1(b)(iii) was found proved.

Particular 1(b)(iv) – Found Not Proved
‘Did not record any, or any adequate analysis;’

22. The Panel noted that Witness RB stated in her witness statement that she asked the Registrant to use the SOAP format (acronym for subjective, objective, assessment and plan) including ‘the Analysis section in his notes because [she] had concerns about [the Registrant’s] clinical reasoning.’ Therefore, the Panel took the view that there was no material difference between ‘analysis’ and ‘clinical reasoning’. As the Panel had already determined that particular 1(b)(i) was found proved it concluded that particular 1(b)(iv) was repetitious and therefore it would be unreasonable and unfair to find the same criticism proved twice in respect of the same event.

23. Accordingly, particular 1(b)(iv) was found not proved.

Particular 1(b)(v) – Found Not Proved
‘Prescribed exercises that did not target Patient A’s presenting complaint;’

24. Witness RB stated in her witness statement that the Registrant prescribed exercises that did not target the problem area based on the fact that Patient A had a hip fracture. Witness RB expected the Registrant to prescribe exercises that focused on the patient’s hip flexion, hip abduction and hip extension. However, the Panel noted that Patient A’s presenting condition was ‘weakness and extreme pain’. The Registrant did not prescribe exercises that solely related to Patient A’s hips but he did prescribe exercises which included the hips such as ‘marching on the spot with a [zimmer frame] counting to 4 with each knee raised - 8 times.’ The Panel was satisfied that the purpose of these exercises was to improve the patient’s muscle strength.

25. In these circumstances the Panel concluded that the Registrant had prescribed exercises that targeted Patient A’s presenting complaint.

26. Accordingly, particular 1(b)(v) was found not proved.

Particular 1(b)(vi) – Found Proved
‘Recorded that the passive range of movement for Patient A’s left hip was normal, which was factually incorrect.’

27. The Panel accepted the evidence of Witness RB that the Registrant recorded the range of movement of Patient A’s left hip as normal. The Registrant had placed an ‘X’ in each of the boxes for the left and right hip indicating that both hips were normal. However, he also recorded in the ‘Additional information/plan’ section that Patient A could not actively rotate his left hip which indicated that his left hip did not have normal range. The Panel also accepted that Witness RB had personal knowledge of Patient A and she stated that she knew that he did not have a normal range of movement.

28. Accordingly, particular 1(b)(vi) was found proved.

29. Having found particulars 1(b)(i), 1(b)(iii) and 1(b)(vi) proved the Panel went on to consider the stem and concluded that these omissions demonstrated that the Registrant had not completed an adequate assessment on 26 February 2016.

Particular 1(c) – Found Proved
‘Did not make a distinction between objective Ax and Rx.’

30. The Panel was informed that Ax refers to assessment and Rx refers to treatment. Witness RB stated that the Registrant did not make a distinction between the Objective Ax and the Objective Rx. For example, it was not immediately clear from the Registrant’s notes whether the reason Patient A was asked to march on the spot with a Zimmer Frame was as part of the assessment or part of the treatment. Although Witness RB took the view that it was likely to be an intervention, she stated that she would have expected a much clearer note. The Panel accepted Witness RB’s evidence.

31. Accordingly, particular 1(c) was found proved.

Particular 1(d)(i) – Found Not Proved

‘Did not demonstrate and/or record any, or any adequate clinical reasoning;’

32. Witness RB stated in her witness statement that it appeared that the Registrant had tested Patient A’s balance while he was standing on both legs. She concluded that as a result the Registrant’s suggestion that Patient A would be able to use the stairs was ‘questionable’ because to use the stairs the patient would have to be able to balance and transfer his weight between his legs one at a time.

33. The Panel acknowledged that if the Registrant had made the assumption that standing on both legs equated to an ability to climb the stairs that would have demonstrated inadequate clinical reasoning. However, the Panel noted that the Registrant recorded that he had assessed both legs. His note stated, ‘standing on one leg – able to stand for over 30 seconds R and alternatively on L leg.’ Witness RB conceded during her oral evidence that she had made an error. The Panel concluded that the Registrant had demonstrated, and recorded, adequate clinical reasoning.

34. Accordingly, particular 1(d)(i) was found not proved.

Particular 1(d)(ii) – Found Not Proved
‘Did not record a clear and/or comprehensive treatment plan or goal.’

35. Witness RB stated in her witness statement that the Registrant did not record a clear or comprehensive treatment plan as his record lacked clarity.

36. The Panel noted that the Registrant had recorded under ‘Plan’ that at the next visit he would assess use of the stairs inside and outside and went on to state that if the patient was able to manage going upstairs and downstairs safely he would be re-assessed for  a walking stick. The record then states, ‘When safe and confident with stairs and walking sticks, will be discharged from physio caseload.’ The Panel was satisfied that this demonstrated a clear and comprehensive treatment plan and goal. Furthermore, Witness RB conceded during her oral evidence that the record could be interpreted as a treatment plan and goal.

37. Accordingly, particular 1(d)(ii) was found not proved.

38. Having found particular 1(d)(ii) not proved the Panel did not go on to consider the stem with regards to adequacy.

Particular 2(a) – Found Proved
‘You recorded that the patient’s transfer and mobility was back to baseline which was factually incorrect.’

39. Patient B was an elderly gentleman suffering from severe dementia. He had been referred to the Community Team as an ‘urgent’ case because his mobility had rapidly deteriorated due to a chest infection and subsequent course of antibiotics. The Registrant attended a visit with Patient B on 8 March 2016 to review his initial assessment which had taken place on 29 February 2016. Witness RB did not attend with the Registrant but she reviewed his notes of the attendance.

40. The Panel accepted the evidence of Witness RB that a Zimmer frame is for load bearing and that a 3 wheeled walker is more for balance support, which indicates that the user of a 3 wheeled walker has a better level of mobility than someone requiring a Zimmer frame.

41. The Registrant recorded that Patient B was using a Zimmer frame to mobilise and that he was back to his baseline regarding transfers and mobility. However, in the record of Patient B’s initial assessment it was stated that he was using a 3 wheeled walker downstairs and outdoors and that he was able to mobilise independently for 10 or more metres. The Panel accepted the evidence of Witness RB that this was Patient B’s baseline. As the Registrant did not make a like with like comparison and, as Patient B had not resumed walking outside, the Panel concluded that his recording that the patient was back to baseline was factually incorrect.

42. Accordingly, particular 2(a) was found proved.

Particular 2(b) – Found Not Proved
‘You recorded that the patient had improved sitting balance, but there is no record of an assessment of Patient B’s sitting balance and/or any reasoning as to why it was assessed.

43. The Registrant recorded in the notes that Patient B had improved sitting balance. Witness RB stated in her witness statement that as the patient’s sitting balance had not been assessed during his initial assessment it was unclear from the notes why the Registrant was assessing his sitting balance.

44. The Panel noted that the reference to the patient’s sitting balance was recorded in the analysis section of the notes. There was no indication from the notes that the Registrant had conducted an assessment of the patient’s sitting balance. Although, Witness RB challenged the Registrant about the entry he stated that the patient had been more slumped in his chair during the initial visit, the Panel took the view that his note may have been a reference to what the patient had told him. In any event, the Panel concluded that there was insufficient evidence that it was a reference to an objective assessment of balance.

45. Accordingly, particular 2(b) was found not proved.

46. Having found particular 2(a) proved the Panel went on to consider the stem and concluded that this omission demonstrated that the Registrant had not completed an adequate assessment on 8 March 2016.

Particular 3(a) – Found Not Proved
‘Record clear clinical reasoning for providing no further intervention.’

47. Patient C was an elderly lady who suffered from arthritis. On or around 7 March 2016 the Registrant visited Patient C at her home address to assess her for a walking frame.

48. The Registrant recommended that Patient C be discharged. The Panel noted that under the ‘Plan’ section the Registrant had recorded that the patient is ‘safe and independent with transfers, mobility with a zimmer frame. Has a good network of support. Patient is to be discharged from physio caseload. No other concern raised or noticed.’ The Panel was satisfied that this record provided clear clinical reasoning in support of a discharge and no further intervention.

49. Accordingly, particular 3(a) was found not proved.

Particular 3(b) – Found Proved
‘Recommend any exercises to strengthen Patient C’s knees and/or record why no recommendation for exercises to strengthen Patient C’s knees was made;’

50. The Registrant did not recommend any exercises for Patient C. The Panel accepted the evidence of Witness RB that when she asked the Registrant about this he explained that Patient C was attending exercise classes. During her oral evidence Witness RB acknowledged that it may not have been necessary to recommend exercises to Patient C to strengthen her knees if she was already attending exercise classes. However, there was no record in the patient’s notes to that effect.

51. The Panel concluded that it was acceptable for the Registrant to discharge Patient C without recommending exercises on the basis that she was attending exercise classes but this should have been recorded in her notes.

52. Accordingly, particular 3(b) was found proved solely on the basis that the Registrant did not record the reason why he did not recommend exercises to strengthen Patient C’s knees.

Particular 3(c) – Found Proved
‘Clearly record which limbs were tested during the assessment’

53. The Panel accepted the evidence of Witness RB that it was unclear from his record whether he assessed both of Patient C’s limbs for mobility and muscle strength. His note simply states ‘functional’ in relation to the upper and lower limbs.

54. The Panel concluded that the note was not clear because anyone reading the notes would be invited to make an assumption that all four limbs had been assessed which may not be correct. Furthermore, the Panel accepted that the purpose of testing both sides is to compare the affected side with the unaffected side.

55. Accordingly, particular 3(c) was found proved.

56. Having found particulars 3(b) and 3(c) proved the Panel went on to consider the stem and concluded that these omissions demonstrated that the Registrant had not completed an adequate assessment on 7 March 2016.

Particular 4(a) – Found Proved
‘Between 26 February 2016 and 11 March 2016, in respect of Patient D, you:

Did not complete any or any adequate record of the assessment on 26 February 2016;’

57. Patient D was an elderly gentleman who had been diagnosed with Parkinson’s Disease and early stage Lewy Body Dementia. He had been referred to the Community Team for assessment for an outdoor mobility aid. On 26 February 2016 the Registrant visited Patient D in his home. Witness RB was not present during that assessment but she subsequently reviewed the Registrant’s notes.

58. The Panel accepted the evidence of Witness RB that the Registrant’s assessment of Patient D was limited. The Panel noted that the Registrant had not noted in any detail what assessment he had conducted. For example, his reference to ‘AROM – reduced’ and ‘Force 3’ was vague and would be of limited assistance to any physiotherapist conducting a follow up appointment. The Panel accepted that the Registrant had completed a record of the assessment with Patient D but due to its vagueness the Panel concluded that it was not adequate.

59. Accordingly, particular 4(a) was found proved.

Particular 4(b) – Found Proved
‘Did not record an adequate treatment plan or goal in your assessment recorded on 26 February 2016;’

60. The Panel accepted the evidence of Witness RB that the Registrant did not record an adequate treatment plan or goal. In the ‘Plan’ section of the notes the Registrant recorded that Patient D was to be ‘assessed for a four wheeled trolley for outside mobility’ on the next visit. However, this was not adequate as there was no indication from the notes with regard to how this was to be achieved or the timeframe for achieving it. The Registrant also recorded that he, ‘prescribed a set of exercises to practice.’ However, the record did not specify the types of exercises, the number of repetitions, nor the frequency. It was also not clear what the exercises were to achieve.

61. Accordingly, particular 4(b) was found proved.

Particular 4(c) – Found Proved

‘Did not make a distinction between objective Ax and Rx in your assessment recorded on 26 February 2016;’

62. The Panel accepted the evidence of Witness RB that there was no distinction in the Registrant’s assessment note between Objective Ax and Objective Rx. It was not clear from the note what the Registrant’s findings were and it was also not clear what treatment or invention he conducted.

63. Accordingly, particular 4(c) was found proved.

Particular 4(d) – Found Proved
‘Did not use clear clinical terminology in your assessment recorded on 11 March 2016;’

64. The Panel accepted the evidence of Witness RB that the Registrant did not use the correct terminology in the assessment he conducted on 11 March 2016. The Panel noted that the Registrant recorded ‘lesser postural drop’ which would be more readily recognised as a reference to an abnormal drop in blood pressure when a patient stands. The Panel accepted the evidence of Witness RB that when she spoke to the Registrant it became clear that he was referring to the patient’s posture and therefore his phrasing was not an appropriate term to have used. The Registrant also used the phrase, ‘rolling phrase of gait’.  The Panel accepted the evidence of Witness RB that the Registrant informed her that this was meant to be a reference the patient’s heel strike –toe off pattern. She informed the Panel that this walking pattern was normal for patients with Parkinson’s disease but it was not clear from the Registrant’s notes that this is what he was referring to because of his use of a phrase which would not be familiar to his clinical colleagues.

65. Accordingly, particular 4(d) was found proved.

Particular 4(e) – Found Not Proved
‘Did not record clear clinical reasoning in your record of the assessment on 11 March 2016 for conducting an outcome measure on Patient D.’

66. The Panel noted that Witness RB in her written statement took the view that the Registrant did not record clear clinical reasoning in his assessment of Patient D. She stated that the Registrant’s reasoning for conducting the outcome measure was unclear and she doubted whether he had an understanding of the purpose of the measure.

67. However, the Panel concluded that the Registrant’s reasoning was clear from his notes. He stated that the Timed Up and Go (TUG) test would be repeated in 2 weeks’ time. The Registrant therefore had a baseline and he intended to repeat the test prior to discharge in two weeks’ time to measure the outcome of his intervention. During her oral evidence, Witness RB conceded that although outcome measures are usually conducted at the beginning of treatment there is no reason why it could not be used part way through or even towards the end.

68. Accordingly, particular 4(e) was found not proved.

Particular 4(f) – Found Not Proved
‘Did not complete any or any adequate record of the assessment on 11 March 2016.’

69. The Panel noted that Witness RB stated in her witness statement that the Registrant’s record of assessment was unclear with regard to what his original intervention was targeting, what the intended outcomes were and whether those outcomes were achieved. However, the Panel noted that every section of the assessment record had been completed and although the note could not be described as a model assessment record the Panel concluded that it was adequate. The Panel reached this conclusion because based on the record there was an objective assessment, some analysis, appropriate treatment and a plan for the next appointment.

70. Accordingly, particular 4(f) was found not proved.

Particular 5 – Found Proved
‘On 18 January 2016, in respect of Patient E, you had to be prompted to loosen the leg straps when placing Patient E in the hoist;’

71. Patient E was an immobile patient. The purpose of the visit on 18 January was to assess Patient E with the hoist and assess whether the electric hoist would be suitable for her.

72. The Panel accepted the evidence of Witness JC with regards to the hoists that were used to mobilise Patient E on 18 January 2016. She stated during her oral evidence that she had asked the Registrant to take the lead and explain what he was doing to the rehabilitation assistant who was present so that she could assess his level of understanding. Witness JC informed the Panel that she became concerned because it appeared that he was pulling the leg straps too tight which could have led to the patient being pulled off her feet. She stated that she intervened by prompting him to loosen the straps. The Panel had no reason to doubt Witness JC’s account.

73. Accordingly, particular 5 was found proved.

Particular 6(a) – Found Proved
‘On 22 January 2016, in respect of Patient F you:
Used advanced instructions at points during the assessment, which were inappropriate given the patient’s presentation;’

74. Patient F suffered from dementia and experienced a lot of pain. Witness JC was present when the Registrant assessed Patient F. She observed the Registrant’s assessment using a third year student marking criteria to grade his performance.

75. The Panel accepted Witness JC’s evidence that the Registrant initially used simple instructions which were appropriate for a patient with dementia but gradually he began to issue more complicated instructions. Witness JC was unable to recall the specific words used by the Registrant. However, she gave a general example that for a dementia patient the instruction ‘sit down’ would be easier to understand than ‘do not continue standing’ as such patients tend to focus on single words. The Panel noted that Witness JC also stated that the Registrant kept repeating the same instruction to the patient rather than adapting his communication to her needs. The Panel had no reason to doubt Witness JC’s account.

76. Accordingly, particular 6(a) was found proved.

Particular 6(b) – Found Proved 

‘Did not ask adequate questions about Patient F’s pain;’

77. The Panel accepted the evidence of Witness JC that the Registrant did not ask Patient F about the pain she was experiencing when getting off the bed. She informed the Panel that the patient gave verbal and non-verbal indications of being in pain and the Registrant made no enquiries in respect of her pain. The Panel had no reason to doubt JC’s account.

78. Accordingly, particular 6(b) was found proved.

Particular 6(c)(i)  & 6(c)(ii)– Found Not Proved
‘Recorded ‘limited’ in relation to joints you had not tested the range of movement for during the assessment;’
‘Did not record clear clinical reasoning’

79. The Panel was not provided with the treatment record for Patient F. Therefore, although Witness JC stated that the Registrant’s notes recorded ‘limited’ in relation to the Patient F’s joints there was no documentary evidence to corroborate her reading of the notes. For the same reason the Panel was unable to ascertain for itself whether the Registrant had recorded clear clinical reasoning.

80. The Panel had no reason to doubt that Witness JC was anything other than a honest and credible witness. However, the Panel was aware that honest witnesses are capable of making mistakes. In these circumstances the Panel concluded that it would not be fair to make an adverse finding particularly as the Panel was not provided with any explanation for the absence of the notes.

81. Accordingly, particular 6(c)(i) and 6(c)(ii) were found not proved.

82. Having found particulars 6(c)(i)  and 6(c)(ii) not proved the Panel did not go on to consider the stem.

Decision on Grounds

Panel’s Approach

83. In view of the factual findings the Panel went on to consider grounds in relation to the facts found proved only. The Panel was aware that determining the issue of misconduct and/or lack of competence is a matter of judgement; there is no burden or standard of proof. No further consideration was given to the particulars that were found not proved.
84. The Panel was aware that lack of competence connotes a standard of professional performance which is unacceptably low and which has usually been demonstrated by reference to a fair sample of the Registrant’s work.

85. In considering the issue of misconduct, the Panel bore in mind the explanation of that term given by the Privy Council in the case of Roylance v GMC (No.2) [2000] 1 AC 311 where it was stated that:

“Misconduct is 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 … practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the misconduct to the profession ... Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.”

86. The Panel was aware that departures from the HCPC Standards of Conduct Performance and Ethics and the Standards of Proficiency (‘the HCPC standards’) alone do not necessarily constitute lack of competence and/or misconduct.

87. The Panel took into account the oral submissions from Ms Shameli on behalf of the HCPC and accepted the advice of the Legal Assessor.

Decision

Lack of Competence

88. The Panel noted that the Registrant’s first six months of employment with the Trust was a probationary period. The Panel accepted the evidence of Witness JC that the Registrant required ‘direct supervision’ when he was on the rehabilitation ward, and the evidence of Witness RB that he required  ‘constant supervision’ in the community setting. The Panel accepted the evidence of both witnesses that the level of supervision the Registrant required was greater than would normally be provided to a newly qualified Band 5 physiotherapist. Witness JC informed the Panel that there was a general expectation that Band 5 physiotherapists would see up to 8 patients on the ward, but she stated that there was no pressure on the Registrant and she would rather he saw less patients and attended to them properly. Witness RB also stated during her oral evidence that the Registrant was not put under pressure with a heavy patient caseload and that she was ‘more concerned about the quality’ than the quantity.

89. The Panel noted that, in view of its findings of fact, there were six examples where the Registrant had conducted substandard clinical assessments or interventions during a 3 month period. In these circumstances the Panel concluded that these examples represented a fair sample upon which the Panel could make a judgment as to the Registrant’s overall competence.

90. During the short period that the Registrant was employed by the Trust the six examples demonstrated several recurring themes relating to inadequate initial assessments, including not recording range of movements and muscle strength, and an absence of treatment plans, goals and clinical reasoning. The Panel noted the evidence of Witness JC that the Registrant’s presence on the ward was ‘like having a permanent student’ and accepted the evidence of Witness RB that while the records became the focus, the underlying concern was the lack of clinical reasoning. The Panel noted that clinical reasoning is dependent on the findings from the assessment.

91. The Panel took the view that the Registrant’s performance in his role as a Band 5 physiotherapist represented a departure from the following HCPC Standards of Proficiency, which state that registrants must::

1. be able to practise safely and effectively within their scope of practice;
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;
14. be able to draw on appropriate knowledge and skills to inform practice;
15. understand the need to establish and maintain a safe practice environment

92. The Panel noted that the Registrant’s shortcomings related to basic assessments which are fundamental to safe clinical practice as a Band 5 physiotherapist.  The Panel concluded that the Registrant’s inability to meet this standard consistently, despite considerable support and assistance, demonstrated that his performance was well below the standard expected of a registered practitioner. The Panel notified from the evidence that the Registrant appeared willing and committed at the time to improving his clinical practice but was unable to bridge the gap between his knowledge and skills the requirements of a Band 5 role.

93. Therefore, the Panel concluded that the allegation of lack of competence was well-founded.

Misconduct

94. Having determined that the Registrant’s conduct and behaviour was solely due to lack of competence there was no reason for the Panel to consider misconduct.

Decision on Impairment 

Panel’s Approach

95. Having found lack of competence the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. The Panel took into account the HCPC Practice Note: “Finding that Fitness to Practise is Impaired”, the Registrant’s email of 27 March 2017 and the submissions made on behalf of the HCPC. The Panel accepted the advice of the Legal Assessor.

96. In determining current impairment the Panel had regard to the following:

• The ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and

• The ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

Panel’s Decision

97. The Panel considered the Registrant’s current fitness to practise firstly from the personal perspective and then from the wider public perspective.

98. The Panel noted that, according to Witness JC, the Registrant took criticism very well. The Panel also noted that the Registrant accepted in supervision in March 2016 that he had ‘a clear understanding of all concerns and issues raised’. Witness JC stated that although she did not notice any significant improvement in his performance during the 3 months that he was on the ward he appeared to recognise and appreciate the efforts that had been made to support him. Witness RB also described the Registrant as being willing to learn but she informed the Panel that she formed the view that he did not make sufficient improvement with regard to his clinical reasoning. These comments were in contrast to the Registrant’s written response to the amended allegation prior to consideration by the Investigating Committee. The Registrant stated in his email, dated 27 March 2017, ‘All allegations and concern of fitness to practice raised against me, are factually baseless.’  He went on to state, ‘Not one single patient has been harmed or put at risk as a result of my practice as a physiotherapist when working with GWH.’ There was no indication from the Registrant’s most recent correspondence that he has reflected on the deficiencies in his practice in any meaningful way or that he has any sense of the potential impact his shortcomings may have had on patients.

99. The Panel noted that the Registrant’s engagement with these proceedings has been minimal and that there has been no engagement with the hearing itself. As a consequence there was no evidence before the Panel that he fully appreciates the gravity of his failings, of any explanation as to how he would act differently in the future, and no assurance that the clinical deficiencies have been remedied and would therefore not be repeated. In particular there was no evidence before the Panel that the Registrant has brought his clinical knowledge and skills up to date. In the absence of any insight and any steps he has taken towards remediation since the events of 2016, the Panel concluded that there is a real risk of repetition. The Panel was particularly concerned by the persistent nature of the Registrant’s failings and the inability to make sufficient improvement despite considerable support and supervision.

100. The Panel took the view that the factual findings raise serious public safety concerns. The Registrant demonstrated a persistent inability to make or maintain improvements to his clinical practice which had the potential to put vulnerable patients at risk of harm. The Registrant has shown no current insight and, although lack of competence is often capable of being remedied, there is no basis on which the Panel could conclude that any form of remediation has begun. As a consequence the Panel considered that there remains a serious and ongoing risk of repetition. In the absence of any evidence of remediation and current insight the Panel took the view that there is an ongoing risk of harm to patients.

101. The Panel concluded that, in these circumstances, the Registrant’s fitness to practise is currently impaired based on the personal component.

102. In considering the public component the Panel had regard to the important public policy issues which include the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour.

103. A significant aspect of the public component is upholding proper professional standards. Members of the public would be extremely concerned to learn that a physiotherapist working with vulnerable patients was unable to work as an autonomous practitioner, as this clearly has the potential to compromise the safety and well-being of patients. The Registrant’s practice fell far below the standard expected of a registered physiotherapist and the Panel concluded that, until the Registrant has remediated his clinical deficiencies, he continues to pose a risk to patients. The Panel also concluded that a finding of no impairment would fail to declare and uphold proper standards, would undermine confidence in the profession of physiotherapy and would undermine public confidence in the HCPC as a professional regulator given the wide-ranging deficiencies in the Registrant’s practice.

104. In all the circumstances the Panel determined that public trust and confidence would be undermined if a finding of impairment is not made.

105. The Panel concludes that the Registrant’s current fitness to practise is impaired on the basis of both the personal component and the wider public interest and therefore the HCPC’s case is well-founded.

Decision on Sanction

Submissions

106. Ms Shameli, on behalf of the HCPC, referred the Panel to the Indicative Sanctions Policy and reminded the Panel that its primary function is to protect the public and the wider public interest. She informed the Panel that the Registrant has been made subject to an Interim Suspension Order since 6 December 2016 and therefore the interim order will have had an impact on the type of work he will have been able to do. She made no positive submission with regard to the sanction that should be imposed.

107. Having determined that the Registrant’s fitness to practise is impaired the Panel went on to consider what sanction, if any, should be imposed. The Panel bore in mind that the purpose of a sanction was not to punish the Registrant but to protect the public and the wider public interest. The Panel also bore in mind that, as this case relates to lack of competence, a Striking Off Order is not available as a sanction. The Panel accepted the advice of the Legal Assessor.

108. At the outset of its deliberations the Panel considered the aggravating and mitigating factors.

109. The Panel identified the following aggravating factors:

• the factual findings raise serious public safety concerns;

• the Registrant demonstrated a persistent inability to make or maintain improvements to his clinical practice which had the potential to put vulnerable patients at risk of harm.

• the Registrant has shown no current insight;

• the Registrant has provided no evidence of remediation.

110. The Panel identified the following mitigating factors:

• the Registrant expressed a willingness to learn and develop whilst he was undertaking the role as a physiotherapist;

• both of the HCPC witnesses described the Registrant as having good interpersonal skills with colleagues and patients;

• the Registrant was undertaking his first physiotherapy role in the UK and within the NHS and had been out of practice as a physiotherapist for a significant period of time.

111. Having taken the aggravating and mitigating factors into account the Panel first considered taking no action. However, the Panel concluded that, in view of the nature and seriousness of the Registrant’s lack of competence which has not been remedied and in the absence of exceptional circumstances, it would be inappropriate to take no action. Furthermore it would be insufficient to protect the public, maintain public confidence and uphold the reputation of the profession.

112. The Panel then considered a Caution Order. The Panel noted that Cautions appear on the register but do not restrict a registrant’s ability to practise and took into account paragraph 28 of the ISP which states:

“A caution order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate action…A caution order is unlikely to be appropriate in cases where the registrant lacks insight.” 

113. The Registrant’s persistent inability to meet the standards required of a competent physiotherapy practitioner was not minor in nature or limited. Furthermore, the Registrant has not demonstrated that any of the skills and knowledge, relevant to safe and competent practice have been addressed, nor has he demonstrated an appropriate level of insight; as a consequence there is an ongoing risk of repetition. In any event, the deficiencies in the Registrant’s practice had the potential to have wide-ranging adverse consequences and therefore some restriction on his practice is required.  Therefore the Panel concluded that a Caution Order would be inappropriate and insufficient to meet the public interest.

114. The Panel went on to consider a Conditions of Practice Order. The Panel took the view that the Registrant’s deficiencies are capable of being remedied and was satisfied that in theory appropriate, workable conditions could be formulated. However,  the Panel noted that paragraph 33 of the ISP states:
‘Conditions will rarely be effective unless the registrant is genuinely committed to resolving the issues they seek to address and can be trusted to make a determined effort to do so. Therefore, conditions of practice are unlikely to be suitable in cases: 

• where the registrant has failed to engage with the fitness to practise process, lacks insight or denies any wrongdoing;

• where there are serious or persistent overall failings;’

115. The Panel noted that the Registrant has not practised since 6 December 2016 at the very least and, prior to his short period of employment at the Trust, he had not worked as a physiotherapist in the UK. The Panel noted that by attending relevant courses the Registrant may be able to develop his skills and knowledge base. The Panel took the view that the Registrant would have to undertake an updating programme similar to a Return to Work programme for practitioners, who have been out of practice for a significant period of time, which may take the form of formal courses, informal learning and/or work placements. However, a Conditions of Practice Order requires a willingness on the part of the Registrant to comply with conditions and a willingness to make a determined effort to remediate because attending courses and training is only the starting point.  It is the learning and development that has been achieved as a result of the course that is of critical importance and how it will be translated into safe and effective practice.

116. The Panel concluded that, given the Registrant’s failure to engage with the hearing and his failure to provide any evidence that he has developed, or started to develop, the skills and knowledge necessary to perform the role of a physiotherapist to a competent standard, the Panel could have no confidence that he would comply with a Conditions of Practice Order.  In the absence of any evidence of commitment and readiness to prioritise a return to physiotherapy practice the Panel concluded that there were no conditions it could devise which would be workable or appropriate.

117. Having determined that a Conditions of Practice Order would not be appropriate, the Panel concluded that the appropriate sanction is a Suspension Order. A Suspension Order would reaffirm to the Registrant, the profession and the public, the standards expected of a registered physiotherapist. The Panel noted that a Suspension Order would prevent the Registrant from practising during the extended suspension period, which would therefore protect the public and the wider public interest. However, a Suspension Order would also provide the Registrant with the opportunity to consider carefully the decision of this Panel and properly focus on the issues that have been identified. It would also provide him with the opportunity to consider his future and decide whether he is prepared to develop the skills and knowledge required to return to practice as a safe and competent physiotherapist.

118. The Panel determined that the Suspension Order should be imposed for a period of six months. The Panel was satisfied that this period would provide the Registrant with the opportunity to demonstrate that he has developed insight and  is committed to starting the process of addressing the deficiencies in his clinical practice in order to return to practise as a physiotherapist. In imposing a six month period the Panel took into account that the suspension period reflects the amount of time that the Registrant may need to reflect on the Panel’s findings, develop insight into the failings identified and devise a plan of action targeted towards a return to practice.

119. The Panel decided that the appropriate and proportionate order is a Suspension Order.

120. The Suspension Order will be reviewed shortly before expiry.  

121. A future reviewing panel may be assisted by the Registrant’s  attendance at the review hearing and with evidence that he has taken appropriate steps to undertake training that would facilitate a safe and effective return to practice.  This may include:

(i) Evidence of up to date physiotherapy specific skills and knowledge, such as:
• Short courses (online or otherwise)
• Seminars
• Reading journals
(ii) Volunteering or work shadowing;
(iii) Testimonials from individuals able to comment on the Registrant’s skills and knowledge relevant to a physiotherapy role;
(iv) A reflective statement on skills and knowledge that the Registrant has acquired.

Application for Interim Order

122. Ms Shameli, on behalf of the HCPC, informed the Panel that she intended to make an application for an interim order and as a preliminary matter made an application to proceed in the Registrant’s absence.

Proceeding In Absence

123. The Panel noted that the Notice of Hearing that was posted to the Registrant on 31 July 2017 specifically drew his attention to the power to impose an interim order to cover any appeal period, in the event that either a Conditions of Practice Order, a Suspension Order or a Striking Off Order was imposed.

124. The Panel determined that it was fair, reasonable and in the public interest to proceed in the Registrant’s absence for the following reasons:

a) The Registrant has not engaged with the hearing process.  In these circumstances the Panel was satisfied that it was reasonable to conclude that the Registrant’s non-attendance was voluntary and therefore a deliberate waiver of his right to attend or participate.

b) There is a strong public interest in ensuring that once a substantive decision has been made an application for an interim order should be determined as expeditiously as possible.

Interim Order

125. The Panel went on to determine that an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, should be imposed on the basis that it is necessary to protect members of the public and is otherwise in the public interest.  The Panel imposed this order as the Registrant’s lack of competence raises serious public safety concerns and he has demonstrated a persistent inability to improve his practice, which has the potential to put patients at risk of harm. An Interim Conditions of Practice Order would not provide adequate protection as there is no indication, due to the Registrant’s lack of engagement that he is willing to comply with such an order. The Panel concluded that an Interim Suspension Order is the only means to protect the public and uphold public trust and confidence in the profession pending the appeal period.

126. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

Order

That the Registrar is directed to suspend the registration of Marin Stinca for a period of six months from the date this order comes into effect.

Notes

This order will be reviewed again before its expiry.

Hearing history

History of Hearings for Mr Marin Stinca

Date Panel Hearing type Outcomes / Status
27/11/2017 Conduct and Competence Committee Final Hearing Suspended