Mrs Jospi Alex

Preliminary Matters
Service
1. The Panel was satisfied that the requirements of service had been met. In any event, the Registrant had attended this remote hearing in person and was represented by her solicitor.

Exhibits
2. The exhibits in this case consisted of:
C1. The main hearing bundle of 58 pages in pdf format,
C2 witness statement of LE, Registration Manager, HCPC,
C3 an excerpt from the Registrar’s registration dataset of 5 pages in pdf format, R1 the Registrant’s bundle of 60 pages in pdf format.

3. There was no application made for the hearing to proceed wholly or partly in private.

Background
4. Mr Micklewright said that an applicant is entitled under Article 9 of the Health Professions Order 2001 (the 2001 Order) to be admitted to a relevant part of the Register provided that the applicant meets the relevant registration requirements.

5. In the case of the Registrant, Article 12 of the 2001 Order sets out that where an applicant (such as the Registrant) has qualified overseas, they must hold an approved qualification which satisfies the ‘…Council’ (i.e. the Registrar in accordance with Art 4(2) of the 2001 Order) attests to a standard of professional proficiency comparable to a UK equivalent qualification, and that ‘…he satisfies prescribed requirements as to knowledge of English’. (Art 12(3)). Article 12(2) empowers the Training and Education Committee to determine procedures to assess the standard of English Language proficiency of any candidate applicant for admission to the Register.

6. At the point that the Registrant made her application for admission to the Register on 1 September 2022, the Registrant was required to satisfy the Registrar that she was sufficiently proficient in the English language in accordance with the conditions set by the Training and Education Committee as to be capable of safe and effective practice in accordance with Article 4 of the 2001 Order. The guidance on language proficiency in effect that the relevant time was updated on 13 July 2022 and is exhibited in the defence bundle R1 at page 54.

7. Mr Micklewright on behalf of the HCPC, explained that this case was brought under Article 22(1)(b) of the Health Professions Order 2001 (the 2001 Order), which provides that:
Allegations
22.—(1) This Article applies where any allegation is made against a Registrant to the effect that—
(b) an entry in the register relating to him has been fraudulently procured or incorrectly made.

8. Mr Micklewright said that the provision provided for two alternatives, firstly that a fraudulent entry on the register had been procured, and secondly (alternatively) that an entry in the register had been incorrectly made.

9. Mr Micklewright said that in this case, the HCPC primary case was one of fraudulent obtained entry, in accordance with the allegation as drafted. However, if the Panel was not satisfied that fraud had been made out, he said that it was then open for the Panel to find, depending on the accepted evidence, that the entry was incorrectly made as a result of the Registrant’s entries made in the website application.

10. Mr Micklewright explained that the HCPC primary case was that the Registrant, who qualified as a speech and language therapist overseas, had knowingly misled the registrar in stating that English was her first language, when the Registrant knew that it was not. Further, the Registrant knew that by making this misdeclaration, she would be entitled to join the register for speech and language therapists without any testing of her ability in English language. In addition, the Registrant knew when she made the misdeclaration, that she would probably not have secured entry to the Register otherwise as she was aware that she would not pass the International English Language Testing System (IELTS) test at the required standard.

11. Mr Micklewright explained that when an overseas qualified speech and language therapist makes an application to join the register without having English as a first language the registrar has made it a requirement beginning in 2003 that the applicant must demonstrate sufficient proficiency in English language. This can be satisfied by passing the IELTS tests in competence in the English Language with ‘…a minimum score of 8.0 with no element below 7.5.’ (Certificate of English language proficiency requirements for applicants applying through the international route to confirm their proficiency with the English language dated 13 July 2022).

12. Mr Micklewright said that the HCPC would invite the Panel to find as an objective fact that the Registrant’s first language was not English within the meaning of the Registration requirements.

13. He intended to show that the Registrant knowingly misled the registrar in relation to English being her first language in order to secure her registration.

14. However, if the Panel was not satisfied that the entry in the register was fraudulently obtained by the Registrant, Mr Micklewright said that he intended to rely on the second limb of Article 22, that the entry in the register was nonetheless incorrectly made.

15. That could be so if the Panel is persuaded that the Registrant genuinely believed she was making a truthful but objectively wrong entry, subjectively believing that English was her first language and the entry constituted a genuine error.

16. In this event, Mr Micklewright said that the Panel was required to remove the Registrant’s registration entry as being incorrect even if it was the result of an innocent mistake by the Registrant in the application process.

17. In any application for registration two requirements pertain:
• clinical competence (which is not an issue in this case), and
• meeting the Registrar’s language requirements; which is the issue that is focussed on in this hearing.
This relates to the evidence which establishes the Registrant’s own knowledge as to her proficiency in the English language.
18. Mr Micklewright explained to the Panel that if his case succeeded on either basis, the effect of such a finding must be that the Registrant’s entry in the register is removed by the Panel.

19. Mr Micklewright supported that proposition by reference to the powers of the Panel as set out in Article 26(7) of the 2001 order which provides that:
26.—(1) The Investigating Committee shall investigate any allegation which is referred to it in accordance with Article 22 or 24.
(7) In the case of an allegation of a kind mentioned in Article 22(1)(b), if the Investigating Committee is satisfied that an entry in the register has been fraudulently procured or incorrectly made, it may make an order that the Registrar remove or amend the entry and shall notify the person concerned of his right of appeal under Article 38.

20. Accordingly, the Panel does not have any wider power than to remove or amend the entry. In this case, an amendment would not be appropriate. An amendment relates to correcting the identity of the Registrant or the part of the register to which the Registrant’s name has been added, if incorrectly done. That was not the case here and no amendment was appropriate.

The Hearing
21. Mr Sreevalsalan, on behalf of the Registrant, told the Panel that the Registrant made no admissions.

22. Mr Sreevalsalan did not state an objection to the alternative basis of removal from the Register relied on by Mr Micklewright on behalf of the HCPC.

Witnesses
Witness 1
23. Witness 1 gave evidence under affirmation and adopted her statement of truth as her evidence in chief.

24. Witness 1 said that she is the Lead Speech and Language Therapist (SLT) at St Andrew’s Healthcare (St Andrew’s). She took up this role in September 2022 although she had been employed by St Andrew’s since 2017. One of Witness 1’s duties is the overall responsibility for the learning and development of the speech and language therapy service and team.

25. Witness 1 said that the Registrant was employed by St Andrew’s on 19 June 2023 as a Speech and Language Therapist at a Band 5 equivalent post. The Registrant was employed after her registration with the HCPC was verified. Witness 1 recognised that as a Speech and Language Therapist (SLT), the Registrant would be expected to meet English proficiency of IELTS at score 8.0.

26. Witness 1 explained that in August 2023 concerns were raised regarding the Registrant’s English language proficiency as not being at a suitable standard. On 10 August 2023, a supervision meeting took place between EW, the Registrant’s direct line manager who was a Highly Specialist SLT. In the supervision meeting, the Registrant told EW that she was not required to complete the IELTS test when applying for registration with the HCPC because her degree was in itself adequate proof of her English language skills.

27. As a result of this exchange, EW contact the HCPC on 10 August 2023 and was told that the Registrant’s registration application stated that English was her first language.

28. On 16 August 2023, Witness 1 met with the Registrant to discuss her performance and the issues raised in respect of her English language proficiency. In the meeting, the Registrant provided a document from Ecctis stating that her Master’s degree would meet the requirements of CEFR Level C1. However, Witness 1 pointed out that the certificate, which was exhibited by her, also states that “… The level of English stated is not a reflection of your individual proficiency.”.

29. Minutes of the meeting of 16 August 2023 were taken by an Employee Relations Specialist at St Andrew’s. EW also attended the meeting. Witness 1 exhibited the meeting minutes.

30. In the meeting, Witness 1 invited the Registrant to complete the IELTS course. However, the Registrant responded that the test was hard to pass and that she did not think she would pass the test.

31. Witness 1 explained that in the meeting, the Registrant accepted that she claimed that English was her first language when applying to the HCPC for registration as an SLT. She accepted in the meeting that English was not her first language. The Registrant said “… Everyone did this so that’s what I did.”.

32. Witness 1 said that the Registrant submitted her resignation from St Andrew’s on 17 August 2023, and her last day of employment was 24 August 2023.

33. Witness 1 explained that a number of concerns existed regarding her professional competence due to her language proficiency.

Cross-examination
34. In cross-examination Witness 1 accepted that the meeting of 16 August 2023 was not a formal disciplinary meeting. Witness 1 accepted that the meeting minutes made no reference to the HCPC enquiries.

35. Witness 1 said that the meeting minutes were explicitly not a verbatim account. However, the Registrant’s responses were accurate and had been accepted by her.

36. Witness 1 said that a leading question was a question that leads to a specific answer.

Re-examination
37. In re-examination, Witness 1 did not accept that she had put words in the Registrant’s mouth in the meeting of 16 August 2023.

LE
38. LE gave evidence under affirmation and adopted her statement of truth as her evidence in chief. She said that she is a Registration Manager at the HCPC responsible for assisting the Registrar in maintaining the Register. LE said that the Registrant completed her application on 1 September 2022 which was approved on 16 November 2022.

39. With reference to the exhibits, LE explained that the Registrant had selected ‘yes’ in response to the online application for registration form which reads:
Is English your first language? You should only indicate that English is your first language if it is the main or only language you use on a day-to-day basis. Having studied English or undertaken education or training at an institution where the medium of instruction is English does not necessarily mean that English is your first language.

40. LE said that should the applicant select 'no' to the question regarding English being their first language, before entering the applicant to the register, the HCPC requires the applicant to take an IELTS test. This test provides an independent assessment of an applicant's proficiency in English.

41. The IELTS has four sections of assessment, scored out of 10, which provide an overall average score. The HCPC considers an overall score of 8 to be acceptable for a SLT, as long as no individual section score is less than 7.5. This is set out at paragraph 7.2 of the Standards of Proficiency for Speech and Language Therapists.

42. Although the HCPC does accept confirmation of English proficiency from organisations other than IELTS, the HCPC does require that where the applicant relies on such other evidence the alternative confirmation must make:
• specific reference to IELTS, and
• how the alternative score relates to the IELTS measurement.

43. LE said that the effect of the Registrant giving the ‘yes’ response that she did meant that she was not required to provide any additional information regarding her English proficiency.

44. The Registrant had attached an Ecctis Certificate to her application which was produced as an exhibit as a result of the answer provided, the Ecctis Certificate was not considered by the HCPC to determine her English proficiency.

45. LE told the Panel that If the Ecctis Certificate had been considered, it would not have been determined to sufficiently evidence the Registrant’s proficiency in English proficiency because:
a. The certificate makes no reference to IELTS, and therefore no reference to the applicable IELTS score; and
b. Whilst the certificate does state the relevant course referred meets the requirements of CEFR Level C1, this translates to an IELTS score of between 6.0 and 7.5, and
c. The HCPC states that it is not sufficient to claim that English is an applicant’s first language because an applicant has studied English or undertaken higher education that was taught in English. This position is made clear to applicants in the application process.

In cross-examination
46. LE did not accept that:
• she was not competent to explain and discuss the exhibits provided by a fellow Registration Manager who had been unable to attend the hearing as a witness, and
• that the HCPC Consultation outcome in relation to English language proficiency requirements for international applicants for registration consultation process, between October 2023 and January 2024, which postdated the Registrant’s application for registration, provided an alternative basis on which the requirement for English as a first language could be understood.

47. LE said that the outcome of the consultation process meant that any proposals for establishing relevant proficiency in the English language for internationally qualified applicants would not diminish the standards of proficiency required but would (if the proposal were accepted) widen the range of acceptable evidence to verify that the standards of proficiency are met.

48. LE accepted that where an applicant declared that English was their first language, the Registrar may still ask for further evidence of proficiency. This was not done in the Registrant’s case, whose application was accepted at face value based on her responses.

14 October 2024
The Registrant
49. The Registrant affirmed and gave evidence on her own behalf. The Registrant relied on her signed written statement dated 10 October 2024 as her evidence in chief.

50. The Registrant relied in particular on the third and fourth paragraphs of her statement which read:
‘3. It is admitted that I claim English as my first language not on the basis that was born in a majority English speaking country’
‘4. I claimed English as my first language on the basis that I was using English as my Main or Only Language on a day to day basis.’

Cross-examination
51. In cross-examination, the Registrant accepted that her mother tongue was Malayalam and that in her home state of Kerala, India, she had learned English as part of her academic studies.

52. The Registrant in her evidence accepted that she did not meet the requirements for registration as a SLT either when she applied or now, because she was not a native English speaker and did not have a required IELTS pass certificate.

53. The Registrant did not accept that she had dishonestly applied for registration but had been mistaken in regard to the available exemption from providing an IELTS pass certificate, which she thought she would not have achieved at that time because the pass standard was so high.

54. The Registrant accepted that she still had not attempted the IELTS examination although she was undertaking a course of study towards a pass at the present time.

55. The Registrant agreed that the Guidance explicitly disallows reliance on academic qualifications in English as a means of asserting that English was her first language when applying online for registration with the HCPC as a SLT.

56. The Registrant accepted that she had not passed the IELTS test at the point of making her application for registration. She accepted that, accordingly, the only alternative to providing the HCPC with a pass certificate at the appropriate standard from IELTS was to assert that she was a native English speaker.

57. When invited to consider the guidance in full relating to the HCPC’s definition of a native English speaker, she accepted she did not meet that definition. The Registrant said that when she applied for registration she had been in England for a year. She had been working in a wholly English-speaking environment and that she also used English to communicate outside of the workplace. She thought that, when making her application as she did ‘…I thought that it was Ok as I was in the UK.’.

58. The Registrant accepted that the workplace records of what she had said in the meetings of 10 and 16 August 2023 at St Andrew’s Healthcare were correct. She had said on 10 August that she relied on her academic qualifications as evidence of being a native English speaker when applying for Registration. Further, on 16 August 2023, she had said that she applied for Registration as a native English speaker because she had discussed the matter with others in her situation at a conference and ‘…everyone did it’.

59. The Registrant was unable to identify the persons that she had spoken to at the conference. She said however that the meetings were stressful and that she had been upset and tearful. She did not explain fully what she had been thinking when making the application.

60. When taken to the guidance in support registration applicants in force at the time of the Registrant’s application, the Registrant accepted that the guidance did not allow her to apply for registration without having an IELTS pass certificate at the minimum standard for a SLT.

Re-examination
61. In re-examination, the Registrant maintained that her then reading of the guidance was that she could apply under the reference in the guidance which included:
‘This [declaration to be a native English speaker] must only be done if it is the main or only language that you use on a day-to-day basis.’
62. The Registrant said that having been working in the English language in the Maldives before arriving in the UK and having worked in the UK as an HCA for a year, in which she communicated primarily in English day-to-day, permitted her truthfully to declare that she was a native English speaker.

Submissions
Mr Micklewright
63. Mr Micklewright, on behalf of the HCPC submitted that on any view of the evidence, the Panel must find that the first alternative ground of the allegation was made out. The Registrant herself accepted that her entry in the Register was incorrectly made as she:
i. is not a native English speaker in the meaning required by the HCPC and
ii. she has not provided an IELTS pass certificate at the appropriate level for a SLT.

64. Mr Micklewright invited the Panel to find that the allegation was also proved in the second alternative. The Registrant had been guilty of fraud in making a false declaration that she was a native English speaker. Fraud includes a component of dishonesty and is objectively considered based on what would be held to be dishonest in the minds of decent and honest people.

65. Mr Micklewright said that the construction of the guidance in relation to registration as a native English speaker was clear and unambiguous. It was not open to an artificial interpretation such as the one conceived of by the Registrant. The Registrant’s actions were a deliberate fraudulent attempt to bypass the registration requirements which exist for reasons of public safety. The Registrant had been deliberately deceitful or was at the least recklessly indifferent to the truth at the point of making her application.

66. The true position was revealed by the Registrant’s responses to questions in the meetings of 10 and 16 August 2023. The Registrant knew that she would not pass the IELTS at the appropriate standard at the point of applying for registration. She could not supply the legitimate means of joining the Register. Instead the Registrant had deliberately and falsely asserted that she was eligible to join the Register, relying on her false declaration to deceive the Registrar into admitting her, and had succeeded in this.

Mr Sreevalsalan
67. Mr Sreevalsalan on behalf of the Registrant submitted that it was the HCPC’s responsibility to ensure the Registrant was correctly registered as a SLT, therefore her registration entry should remain undisturbed. It was up to the HCPC to correct its mistake in wrongly admitting the Registrant. The HCPC had been negligent in not making further enquiries of an applicant who had wrongly declared herself to be a native English speaker despite being an Indian national, which was clear on her application. Mr Sreevalsalan said that the Registrant had made an honest mistake in her application and should not be punished for that.

Decision on Facts
68. The Panel paid close attention to the submissions of Mr Micklewright and Mr Sreevalsalan. It accepted the Legal Assessor’s advice.

69. The Panel recognise that the approach recommended by the High Court in Dutta v GMC [2020] EWHC 1974 (Admin) meant that it first had to identify the reliability of the near contemporary records before assessing the credibility and reliability of the witnesses in relation to how well they accorded with the accepted documentary evidence. Demeanour is a poor guide to credibility and reliability. The civil standard of proof always applied and the HCPC had the burden of proof.
70. In relation to the fraudulent procurement of registration entry the Panel had to be satisfied on balance of probabilities that the test for fraud in this case had been made out. This meant that:

The Registrant had been responsible for making;
• a false representation (the declaration)
 knowingly made, or
 made without a belief in it being true, or
 recklessly made,
• with the intention that the Council would rely on that representation (declaration) and that
• the Council did rely on that declaration so securing registration.

Incorrectly made entry
71. In relation to the alternative findings of the allegation, the Panel found that the Registrant’s entry in the Register on 16 November 2022 had been incorrectly made. It was agreed by the parties representatives and by the Registrant herself in her evidence under affirmation that she had not, and still did not, meet the requirements for registration as a SLT.

72. In these circumstances, the Panel found the allegation proved as an incorrectly made entry.

Fraudulently procured entry
73. The Panel was not satisfied, on balance of probabilities, that the Registrant had been guilty of fraud in making her false declaration that she was a native English speaker,

74. The Panel accepted that what the Registrant was recorded as having said in her workplace meetings on 10 and 16 August 2023 were true and accurately recorded. Those entries had the potential to at least support a finding of reckless indifference by the Registrant when making her application for registration. However, those meetings were, in the Panel’s view very different in context from the subject matter of this hearing. The Registrant had been very upset in the meetings and had been under some supervision in relation to the standard of her work and communication with service users. Each of the meetings was intended to support the Registrant in that regard and was not focussed on her thoughts when making her application for registration.

75. The Panel was satisfied that the Registrant was being truthful in her evidence. It accepted the Registrant’s evidence that she had genuinely believed that she was entitled to declare (wrongly) that she was a native English speaker at the point of her application by virtue of her day-to-day use of English language in the workplace since arriving in the UK.

76. The Panel accepted that the guidance was not as obvious and unambiguous as to disallow a reasonable person to read the sentence relied by the Registrant in the way that she had. She had not ‘cherry-picked’ the guidance in a calculating and deceitful way as the HCPC contended in the Panel’s consideration. Instead, the Panel was satisfied that it had been open to the Registrant to make the acknowledged mistake that she had done, by a simple and ordinary interpretation of what the sentence.

77. The Panel was not satisfied, on balance of probabilities, that the Registrant had been dishonest and had procured her registration as a SLT by fraud.

78. In these circumstances, the allegation was not proved in the first alternative.

Decision on Removal from the Register
79. Mr Micklewright, on behalf of the HCPC invited the Panel to direct the Registrar to remove the name of Mrs Jospi Alex from the Register in accordance with Article 26(7) of the 2001 Order. He said that there was no other order available in the circumstances. This is an entry in the Register which ought not to have happened. The power in relation to publicity under Article 26(8) is not engaged in this case. No interim order is necessary under Article 26(11) as an interim order of suspension is already in place and will remain in effect until 17 May 2025. Accordingly, Mr Micklewright did not apply for an interim order.

80. Mr Sreevalsalan invited the Panel to consider revoking the interim order on the basis that the fraudulent entry alternative ground had not been found.

81. The Panel accepted the Legal Assessor’s advice. It had regard to the powers available to it which were either to order that the entry in the Register be corrected or be removed. No other powers were available. The Panel considered that the entry was not open to being corrected in any material sense. There were no internal errors in the Register such as an incorrect spelling of the Registrant’s name. In the circumstances, the Panel concluded that it should direct that the Registrar remove the Registrant’s name from the Register. The Panel did not revoke the current interim order.

The Registrar is directed to remove the entry of Mrs Jospi Alex from the Register.

Right of Appeal
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

History of Hearings for Mrs Jospi Alex