Mubarak Muhammad Mutawakkil
Profession: Physiotherapist
Registration Number: PH128005
Interim Order:
Imposed on 17 Hyd 2024
Hearing Type: Final Hearing
Date and Time of hearing: 10:00 14/10/2024
End:
17:00 17/10/2024
Location:
Via virtual video conference
Panel: Conduct and Competence Committee
Outcome: Suspended
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Allegation
1.Between 21 November 2022 and February 2023, you did not perform at the necessary level in your role as physiotherapist, in that:
a) You used medical terminology that was confusing for Service Users. #
b) You did not gather sufficient information on Service Users and their conditions.
c) You did not take action on red flags after asking questions of Service Users.
d) You were not able to perform a basic physical examination of Service Users.
e) You were not able to recognise pathology requiring additional investigation.
2. On or around 28 December 2022 you provided exercises for Service User A which were not appropriate and had to be stopped.
3. Between 21 November 2022 and February 2023 you did not make adequate notes for the Service Users listed in Schedule A
4. The matters set out in particulars 1 – 3 constitute misconduct and/or lack of competence.
5. By reason of the matters set out above, your fitness to practise is impaired by reason of misconduct and/or lack competence.
Finding
Preliminary Matters
Service
1. The Panel was provided with a Service Bundle from which it noted that the Registrant had been served the Notice of Hearing dated 26 July 2024 (“the Notice”) by email to his registered email address. The Notice set out the date, time and place of the hearing (remote). The HCPC also provided the Panel with a certificate proving the Registrant’s email address and an email header demonstrating that the Notice had been sent.
2. The Legal Assessor advised the Panel that Rule 6 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (as amended) (“the Rules”) required that at least 28 days’ notice of the hearing had to be served on the Registrant. He referred the Panel to the HCPTS’ Practice Note: ‘Service of documents’.
3. The Panel considered the documents and accepted the legal advice. The Panel was satisfied that the Registrant had been properly served with notice of the hearing in accordance with the Rules.
4. The Registrant had not attended the hearing and was not represented. Mr Schofield applied to the Panel to proceed in the Registrant’s absence, pursuant to Rule 11. He submitted that the Registrant had not engaged with the HCPC throughout the investigation of the case. He referred the Panel to the case of GMC v Adeogba [2016] EWCA Civ 162 and the judgment which referred to a registered professional’s obligation to engage with their regulator. Mr Schofield submitted that there had been a number of unsuccessful attempts to engage the Registrant by email. He invited the Panel to proceed with the case.
5. The Legal Assessor advised the Panel that Rule 11 allowed it to proceed with the hearing, if it was satisfied that all reasonable steps had been taken to serve notice of the hearing on the Registrant. He informed the Panel of the factors set out in the cases of R v Jones [2002] UKHL 5 and GMC v Adeogba [2016] EWCA Civ 162. He advised the Panel that it had a discretion to proceed, which had to be exercised with the ‘utmost care and caution’. He advised that, in Adeogba, the court had stated that the interests of the Registrant had to be balanced with the interests of the regulator and the public.
6. The Panel considered the application to proceed. It accepted the advice of the Legal Assessor. The Panel was satisfied that all reasonable steps had been taken to notify the Registrant of the hearing. It acknowledged that the Registrant would be disadvantaged by the hearing proceeding.
7. The Panel balanced the Registrant’s interests with his lack of engagement with the process and the public interest in expeditious determination of regulatory proceedings. The Panel had not been made aware of any request to adjourn proceedings. It had no reason to believe that the Registrant would attend in future, if the hearing was adjourned. The Panel took into account that witnesses had been arranged to attend the hearing. The Panel noted that the allegations went to issues potentially concerning patient safety, and there were therefore issues around public protection.
8. The Panel concluded that in all the circumstances, it was fair and appropriate to proceed to hear the case in the Registrant’s absence.
9. The Panel was provided with a Hearing bundle, a Case Summary and a Service Bundle, together with copies of the Standards of Proficiency for Physiotherapists and Standards of conduct, performance and ethics which had applied at the time of the events in question.
Application to amend the Allegation
10. Mr Schofield applied to the Panel to amend particular 2 of the Allegation. He submitted that the date in the allegation was incorrect and this was not a material change to the case, but a correction to the date of the alleged events.
11. The Legal Assessor advised that the Rules provided no express power to amend the Allegations, however it was clearly envisaged by the courts that an Allegation could be amended by a panel where appropriate, even at a late stage, in that case to avoid undercharging: PSA v HCPC & Doree [2017] EWCA Civ 319. He advised that the Panel was subject to an overriding obligation to act fairly to both parties and the Panel should consider whether the amendment could be made without injustice.
12. The Panel accepted the legal advice. It took into account that the amendment was to bring the particular into line with the evidence served. Both the evidence and the proposed amendment had been sent to the Registrant in advance of the hearing, but the Registrant had not attended. The Panel considered that any prejudice to the Registrant was minimal and it was in the interests of justice to allow the amendment.
13. The Panel granted the amendment of particular 2. The Allegation, as amended, is set out above.
14. The Panel raised with Mr Schofield that particular 1 of the Allegation lacked some detail as to the specific failures alleged. Mr Schofield applied to the Panel to amend particulars 1(a) to 1(e) of the Allegation, to more fully set out the HCPC’s case. In addition, amendment to particular 3 was sought. Mr Schofield provided the Panel with a detailed amended Allegation, which added details of the specific dates and service users related to each of the particulars.
15. The Legal Assessor reminded the Panel of the earlier advice given in relation to amendment. He advised the Panel that the issue of fairness involved a balance between the interests of the Registrant with the public interest in hearing the Allegation. The Registrant had a right to be aware of the case in advance, which was prejudiced by the amendment at this stage. This had to be balanced with the public interest in the case being properly pursued. The Registrant was not present and therefore not on notice of the amendment. He advised the Panel that as part of assessing ‘fairness’ the Panel may consider whether the case against the Registrant was altered by the amendments.
16. The Panel decided to allow the amendment to particular 1, as it set out the HCPC’s case with better particularity and was based on the evidence served on the Registrant. The Panel decided not to allow the word ‘including’ to be used, but instead amended to ‘on the following occasions’, as the HCPC’s submission was that the further sub-particulars completely set out the case. The Panel allowed the removal of Service Users A. C. and D from Particular 3, as it had been accepted that on review of the evidence, it did not support a case involving these service users. The Panel did not allow the addition of service users L and M, because it considered that this would be unfair. The Registrant had not been warned of a case relating to these service users and was not present.
17. The Panel decided against adjourning for re-service of the amended Allegation because the amendments only served to clarify the case and did not prejudice the Registrant’s position. The Panel determined the allegations, as now presented, covered a number of different patients and were of broad scope and content, and it did not perceive a risk of undercharging. The Panel also took into account that the witnesses were in attendance and any further delay may affect their memories and cause significant inconvenience. Balancing the needs of the Hearing, the Panel determined it was both in the Registrant’s and the public interest to continue the Hearing with the amended charges.
Background
18. The Registrant was employed as a ‘Band 6’ Specialist ‘MSK’ (Musculo-skeletal) Physiotherapist. He commenced in the post on 21 November 2022, at the North Cumbria Integrated Care Foundation Trust (“the Trust”) as his first post in the UK healthcare system. Following concerns about the Registrant’s clinical interactions, the Registrant was suspended from his post on 30 January 2023 and on 21 March 2023 the Registrant’s employment was terminated with one week’s notice.
19. The HCPC received a referral regarding the Registrant’s fitness to practise on 21 February 2023. Following an investigation, the case was referred to the Conduct and Competence Committee, which alleged impaired fitness to practice on the basis that on a number of occasions the Registrant had failed to provide an appropriate level of service, which amounted to misconduct or a lack of competence.
20. The Panel read and considered the Hearing bundle. It heard oral evidence from the following witnesses from Trust for the HCPC:
Ms LH - West IMSK* Physiotherapy Lead
Mr BM – Highly Specialist MSK* Physiotherapist
Mr PN – Band 6 Senior Physiotherapist
[*MSK – ‘musculo-skeletal’
*IMSK – ‘integrated musculo-skeletal’]
Evidence
21. Ms LH stated that she managed the MSK Physiotherapy team in West Cumbria at the Trust Hospital (“the Hospital”). The Registrant had completed a two-week induction at the Hospital, including tutorials and shadowing. He had commenced practice with a reduced workload initially, but concerns were raised within the first two weeks. When concerns arose, Ms LH had carried out clinical observations on the Registrant the results of which formed part of her evidence.
22. Ms LH told the Panel that, based on her observations, had the Registrant been a student on placement with her, he would not have passed the placement.
23. Mr BM is a Band 7 MSK Physiotherapist. He was the Registrant’s direct line manager at the Hospital. He stated that Band 6 physiotherapists are expected to have multiple years of experience, work autonomously and with complex patients. He stated that concerns had arisen with the Registrant within the first two weeks of his employment. Mr BM gave evidence about the supervision process and exhibited the Registrant’s supervision records. He stated that the Registrant, if he had been a student would not have passed the placement.
24. Mr PN is a Band 6 senior physiotherapist. At the request of Mr BM, he had carried out a clinical observation of the Registrant’s consultation with Service User K on 11 January 2023.
25. Mr Schofield relied on the Case Summary and submitted that the Panel should find the facts proved. He submitted that the Panel had heard from three live witnesses who were experienced practitioners who had directly witnessed the Registrant’s failings. He submitted that the Registrant had clearly failed to reach the HCPC’s Standards of Proficiency of the relevant time.
26. The Legal Assessor advised that the burden of proving the facts lay on the HCPC, on the balance of probabilities. He referred the Panel to the guidance on assessment of evidence taken from the judgments in the cases of (R (ota Dutta) v GMC [2020] EWHC 1974) and Byrne v GMC [2021] EWHC 2237). He advised that the court had stated that the best way is to base findings of fact on inferences from known or probable facts and use oral evidence to subject documentary evidence to scrutiny. The Panel had to consider whether the HCPC had discharged the burden of proof on each particular of the Allegation in paragraphs 1 to 3.
Decision on Facts
27. The Panel noted, when considering the evidence that the references in the amended particulars to the examinations of Service Users D and E having occurred in ‘January 2024’ were clearly incorrect, and the examinations had occurred in 2023. The Panel considered that this error was due to oversight and the evidence behind the allegation was clear. Accordingly, it determined to amend the particulars to correct them, as no real prejudice was caused to the Registrant thereby.
28. The Panel carefully considered the documentary records produced by each witness. The Panel considered that these documents should be given some weight, because they had been produced directly for the purpose of documenting the Registrant’s professional performance and had been prepared close to the events in question, by experienced professionals. The panel considered these records and used the witness’ oral evidence to subject the documentary record to scrutiny.
29. The Panel considered that each of the three witnesses who had given evidence had been credible witnesses who had done their best to give their best recollection of events. The Panel considered that the witnesses were reliable and had all worked directly with the Registrant or in a supervisory capacity. The Panel acknowledged that, since the events had occurred a while ago, each was reliant on the documentary exhibits. For that reason also, the Panel considered that the documents had particular importance.
1. Between 21 November 2022 and February 2023, you did not perform at the necessary level in your role as physiotherapist, in that:
30. The Panel was satisfied that, as a physiotherapist, the Registrant had been under a duty to perform at a level which met the standards in the HCPC’s Standards of Proficiency (“SoP”).
31. The SoP for Physiotherapists stated:
14.3 be able to gather appropriate information
14.4 be able to select and use appropriate assessment techniques
14.5 be able to undertake and record a thorough, sensitive and detailed assessment, using appropriate techniques and equipment
8.1 be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, colleagues and others
8.7 understand the need to assist the communication needs of service users such as through the use of an appropriate interpreter, wherever possible
a) You used medical terminology that was confusing for Service Users, on the following occasions:
i. 19 December 2022 with Service User A; Proved
32. The Panel noted that this particular related to Ms LH’s direct observation of the Registrant’s clinical examination of Service User A. In the observation form, Ms LH had recorded the Registrant’s use of the terms “HBA/c”, “diagnosis”, “systemic illness” and “dorsi-flex”. It was also noted that the patient had been confused. In her evidence, Ms LH confirmed that the use of language had been confusing. The Panel found Ms LH to be a credible witness of considerable experience who had directly observed the events and it therefore placed reliance on her evidence.
33. The Panel was satisfied that this had amounted to a failure to meet the necessary level of performance as a physiotherapist.
34. The Panel found the facts in particular 1(a)(i) proved.
ii. 13 January 2023 with Service User B; Not proved
35. With regard to this examination, also observed by Ms LH, the Panel noted that some words used had been noted, such as “trauma”, “degenerative changes” and “asymptomatic”. However, the feedback notes included “good subjective history – engaged well and communicated well with patient”. The Panel took into account that, in her oral evidence, Ms LH had not stated that Service User B had been confused. The Panel concluded that, on balance, it was not persuaded that the terminology used had been confusing. The Panel found the facts in particular 1(a)(ii) not proved.
iii. 24 January 2023 with Service User E; Not proved
36. The Panel heard from Ms LH that Service User E had a strong Cumbrian accent. Ms LH stated that the Registrant had used a number of inappropriate questions and appeared to have difficulty understanding the service user. She believed that the Registrant was simply following template questions, based on some of the questions asked, and did not appropriately follow up some of the answers which the service user had given. The Panel considered the clinical observation form exhibited, with the comment that the Registrant should “Be aware of your terminology at certain times and consider what information has been given to you and what your next question is:”
37. However, the Panel took into account that Ms LH did not give evidence that Service User E had been confused by terminology that the Registrant had used. Rather the suggestion appeared to be that any confusion may have been on the Registrant’s part. The Panel found the facts in particular 1(a)(iii) not proved.
b) You did not gather sufficient information on Service Users and their conditions, on the following occasions:
i. 19 December 2022 with Service User A; Proved
38. The Panel noted Ms LH’s evidence that Service User A had expressed frustrations and concerns in this consultation which Ms LH had directly observed. She stated that the Registrant had not responded to the service users concerns or attempted any reassurance. The Panel took into account that the clinical observation form supported Ms LH’s evidence. The grading of “needs further development” appeared under the headings “explores person’s health understanding”, and in relation to the mental state examination section. Further, it was noted the Registrant had not shared a care/support plan and note given the service user the opportunity to be involved in significant decisions.
39. Ms LH’s evidence was that the Registrant also failed to obtain and read the appropriate post-operative protocol and had therefore recommended inappropriate exercises. The Panel considered that the evidence demonstrated the Registrant’s failure to gather sufficient information.
40. The Panel was satisfied that this had amounted to a failure to meet the necessary level of performance as a physiotherapist.
41. The Panel found the facts in particular 1(b)(i) proved.
ii. 11 January 2023 with Service User K; Proved
42. Mr PN had conducted a clinical observation of the Registrant with Service User K. He stated that this had been a particularly complex case, requiring a more holistic assessment to include wider social, mental and physical health issues were covered. He described that “the Registrant took an entirely biomedical approach to the questioning and was very much focused on finding structural issues only, ignoring the multifactorial nature of persistent pain”.
43. The Panel took into account the clinical observation form, which supported Mr PN’s evidence. The form showed that the Registrant had ‘needed improvement’ in multiple criteria of the assessment. The Panel found Mr PN to be a credible and reliable witness and accepted his evidence.
44. The Panel was satisfied that this had amounted to a failure to meet the necessary level of performance as a physiotherapist.
45. The Panel found particular 1(b)(ii) proved.
iii. 13 January 2023 with Service User B; Proved
46. Ms LH said that she had carried out a clinical observation of this consultation. She noted that the Registrant failed to follow up on the information from the service user that she had a rheumatological condition since 13/14 years of age and also had fibromyalgia. She had thought that the Registrant ought to have engaged in a more detailed conversation with the service user to gain the required information relating to Service User B’s conditions.
47. The Panel noted that the clinical observation form also recorded that the Registrant had not initially adverted to the issues. The Panel considered that there had been a failure to obtain sufficient information.
48. The Panel was satisfied that this had amounted to a failure to meet the necessary level of performance as a physiotherapist.
49. The Panel found particular 1(b)(iii) proved.
iv. 23 January 2024 with Service User D; Proved
50. Ms LH stated that she had listened to the Registrant’s consultation with Service User D from behind a curtain. She had heard that the Registrant had failed to pick up on a number of statements by the service user as to being in “agony” and experiencing “cold fingers and numbness”. Ms LH also stated that the Registrant had asked a lot of ‘closed’ questions, which risked having an effect on the accuracy of the assessment.
51. The Panel noted that the clinical observation stated:
‘Beware closed questions that limit interaction from the patient: “That feels
ok?”; “Any discomfort with that?”; “Do you have pain with that?”
What did PROM of CSPine tell you? Why was this different from AROM?
What might the risks of this have been? Have you excluded red flags of
CSpine?”
52. The Panel considered that the patient records supported Ms LH’s evidence, which it accepted. The Panel was satisfied that the Registrant had failed to obtain sufficient information and this had amounted to a failure to meet the necessary level of performance as a physiotherapist.
53. The Panel found particular 1(b)(iv) proved.
c) You did not take action on red flags after asking questions of Service Users, on the following occasions:
i. 6 December 2022 with Service User G - Proved
54. Ms LH stated that she had concerns after noting the Registrant had recorded that Service Use G had reported red flag answers such as “bowel dysfunction due to chrone’s [sic] disease” having attended due to “back pain with radiculopathy”. She said that she did not have confidence in the Registrant’s neurological assessments, based on previous experience. Ms LH’s evidence was that the Registrant had not queried the answers appropriately.
55. The Panel took into account the patient record and noted that it recorded red flag indicators, but there was no evidence of the red flags having been followed up. The Panel accepted Ms LH’s evidence and considered it proved that the Registrant had not taken action.
56. The Panel was satisfied that this had amounted to a failure to meet the necessary level of performance as a physiotherapist.
57. The Panel found particular 1(c)(i) proved.
ii. 12 December 2022 with Service User F; Proved
58. Ms LH stated that there had been red flags in the presentation of Service User F on 12 December 2022. These had included erectile dysfunction, bi-lateral lower limb symptoms and altered neurological signs. She stated that eventually, after further appointments, an electronic “near-miss” incident report had been recorded by the Trust. Ms LH’s evidence was that there had been a failure to act appropriately in response to the neurological signs.
59. The Panel took into account that it been provided with the patient notes and a copy of the incident form which supported Ms LH’s evidence. The Panel accepted Ms LH’s evidence. It considered that the evidence proved that the Registrant had not taken action.
60. The Panel was satisfied that this had amounted to a failure to meet the necessary level of performance as a physiotherapist.
61. The Panel found particular 1(c)(ii) proved.
iii. 24 January 2023 with Service User E; Proved
62. Ms LH stated that the Registrant had failed to ask follow-up questions after Service User E had disclosed that his father had cancer. She stated that the Registrant ought to have been aware of this as a Band 6 physiotherapist and, in addition the template provided the necessary questions.
63.The patient records supported Ms LH’s evidence that he had diagnosed a frozen shoulder and no reference had been recorded relating to the history of cancer in the family. The Panel considered Ms LH a credible and reliable witness. It found a lack of action on the Registrant’s part in relation to exploring and taking any action with regard to the red flag identified during the examination.
64. The Panel was satisfied that this had amounted to a failure to meet the necessary level of performance as a physiotherapist.
65. The Panel found particular 1(c)(iii) proved.
iv. 26 January 2023 with Service User J: Proved
66. Ms LH’s evidence was that the Registrant had documented four out of five red flags but had not documented any safety netting or any follow up action; he had not discussed the case with a senior clinician. The Panel noted that the patient records supported Ms LH’s evidence concerning the red flags and it accepted her evidence that the Registrant had not taken the appropriate action.
67. The Panel was satisfied that this had amounted to a failure to meet the necessary level of performance as a physiotherapist.
68. The Panel found particular 1(c)(iv) proved.
d) You were not able to perform a basic physical examination of Service Users, on the following occasions:
i. 19 December 2022 with Service User A; Not proved
69. The Panel considered the patient notes for Service User A. It noted that Ms LH took issue with the Registrant having undertaken an examination whilst the service user had been seated. In addition, she stated that the examination had been “awkward and there was no flow”. However, the notes recorded observations of a basic examination of Service User A. Whilst Ms LH did not agree with all the methods used by the Registrant, her evidence suggested he carried out the basic requirements in respect to the patient examination. There was no suggestion that anyone other than the Registrant had carried out the examination nor any evidence of an intervention, in addition, the Panel noted the physiotherapy patient records indicated the Registrant did carry out the basic levels required.
70. The Panel decided, in light of the evidence of Ms LH that some form of examination was conducted by the Registrant and noted the recorded results in the notes. It was not satisfied the Registrant had been “not able to perform” a basic physical examination. The Panel found the facts in particular 1(d)(i) not proved.
ii. 13 January 2023 with Service User B; Not proved
71. The Panel noted that Ms LH’s evidence was that the Registrant had carried out an “objective assessment” of Service User B, albeit she criticised that he had commenced this in a chair, then moved the service user to a bed at Ms LH’s suggestion. Although the clinical observation form noted examination as ‘needing improvement’ this only referred to the poor manner in which it had been conducted. The patient notes for Service User B recorded basic examination findings. The Panel concluded that it was not satisfied that the Registrant had not been able to conduct a basic physical examination of the service user. The Panel found the facts in particular 1(d)(ii) not proved.
iii. 23 January 2023 with Service User D; Proved
72. Ms LH stated that she had been present in a clinical observation of the Registrant’s examination of Service User D from behind a curtain. She gave evidence that she had to intervene at a point to find the Registrant using ineffective and passive movements of the service user’s neck. She said that this was inappropriate for the 82-year-old service user. Ms LH stated that the Registrant’s neurological testing had similarly been ineffective. Upon LH’s intervention, she took over the consultation and used it as a teaching session.
73. The Panel was satisfied by Ms LH’s evidence that the Registrant’s physical examination had been ineffective and had been taken over by Ms LH. The Panel was satisfied that this had amounted to a failure to meet the necessary level of performance as a physiotherapist.
74. The Panel found particular 1(d)(iii) proved.
iv. 24 January 2023 with Service User E; Proved
75. Ms LH was critical of the Registrant’s examination of Service User E on 24 January 2023. The Panel noted that, although the patient records showed some results of an examination, LH’s evidence was that the standing passive examination conducted had been ineffective. The Registrant had diagnosed a ‘frozen shoulder’ but Ms LH had suspected arthritis, and this had proved to be the case. The Panel read the patient notes which record the Registrant’s diagnosis. The clinical observation records the Registrant’s performance as ‘needs improvement’.
76. The Panel was satisfied that this had amounted to a failure to meet the necessary level of performance as a physiotherapist.
77. The Panel found particular 1(d)(iv) proved.
e) You were not able to recognise pathology requiring additional investigation, on the following occasions:
i. 13 January 2023 with Service User B; Proved
78. Ms LH was clear that, in her observation of the Registrant, she had seen that “the Registrant did not pick up on the fact that Service User B had had her rheumatological condition since she was 13/14 years of age, and that she also suffered with fibromyalgia”. She recorded that the Registrant had simply focussed on the service user having twisted her ankle shortly before and not adverted to any neurological potential pathology. Ms LH stated that she had taken over the consultation.
79. The patient notes confirmed that the settled treatment plan included referral for rheumatology consultation. The clinical observation form recorded that the Registrant, despite good questioning around joint pain, had failed to pick up “cues of A.S. & F.M. initially”. The Panel was satisfied that this had amounted to a failure to meet the necessary level of performance as a physiotherapist.
80. The Panel was satisfied that the Registrant had not been able to recognise the need for additional investigation. It found particular 1(e)(i) proved.
ii. 23 January 2023 with Service User C; Proved
81. Ms LH had recorded in her witness statement that the Registrant had failed to exclude other possible pathologies with regard to this consultation. The Panel considered that the clinical supervision records supported Ms LH’s evidence, where it recorded:
“Didn’t appear certain or confident in what to do next, so suggest I review the patient with you.
Uncertain diagnosis “sprain”; “flare”. Unaware of differential diagnosis e.g.
Lisfranc injury or osteochondral lesions.
Agreed that on-going symptoms for this length of time, preventing patient from working or participating in activities outside work wasn’t normal.
Agreed that onward referral to AP Podiatry is appropriate for further investigations and management.”
The Panel accepted Ms LH’s evidence and was satisfied that this had amounted to a failure to meet the necessary level of performance as a physiotherapist.
82. The Panel found particular 1(e)(ii) proved.
iii. 23 January 2023 with Service User D; Proved
83. With regard to the consultation on 23 January 2023 with Service User D, Ms LH’s evidence was that the Registrant did not pick up on the alternative pathologies in relation to patient complaints of ‘numbness in hand’ and did not explore nor pursue this line of enquiry. She also considered the method of questioning to be inappropriate and not effective. The Panel considered that the patient record supported Ms LH’s evidence of clinical supervision notes indicated a lack of awareness.
84. The Panel was satisfied that this had amounted to a failure to meet the necessary level of performance as a physiotherapist.
85. The Panel found particular 1(e)(iii) proved.
2. On 19 December 2022 you provided exercises for Service User A which were not appropriate and had to be stopped. Proved
86. Ms LH gave evidence that she had undertaken a clinical observation of the Registrant’s examination of Service User A on 19 December 2022. She exhibited the protocol for this patient who had recently undergone knee surgery. Ms LH stated that the Registrant had asked the service user to do some resistance exercises and suggested that he use resistance bands. LH described having to intervene when the Registrant asked the service user to place weight on the relevant knee. Ms LH exhibited the patient notes which gave a contrary indication. She produced the relevant protocol and stated that she had been alarmed that the Registrant had not consulted this.
87. The Panel note that the clinical observation form exhibited had recorded: “need to ensure that we’re aware of what surgery the patient has had and the protocol, as outlined”. The Hospital had raised a ‘near miss’ form in relation to this event, which was also exhibited. This form supported Ms LH’s evidence that the exercises provided to Service User A had been not appropriate and had to be stopped.
88. The Panel found particular 2 proved.
3. Between 21 November 2022 and February 2023 you did not make adequate notes for the Service Users on the following occasions:
i. 13 January 2023 with Service User B; Proved
89. Ms LH stated that she had carried out a clinical observation on the Registrant on his examination of Service User B. She gave evidence that she had discussed the clinical observation and the patient notes at a clinical supervision on 18 January 2023. Ms LH stated that the notes did not accurately reflect the assessment that Ms LH had observed. She stated that the there was no record of the range of movement of Service User B’s ankle and no mention of the passive movements which he had attempted.
90. The Panel found Ms LH to be a credible witness and her evidence was reliable. The Panel noted the copy of supervision records provided supported Ms LH’s evidence. It stated:
“Review of the notes revealed there was:
No evidence of ankle range of movement (active or passive)
documented
No evidence of ankle resisted movement
No evidence of knee passive or resisted movement
No record of what was palpated at the knee or ankle”
91. The Panel found particular 3 proved.
Impairment
92. The Panel having found facts proved went on to hear any further evidence and consider any submissions regarding the alleged statutory grounds.
93. Mr Schofield on behalf of the HCPC submitted that the seriousness of the allegations lay at the heart of the decision whether the grounds of misconduct or lack of competence were made out. He submitted that the conduct had crossed the threshold.
94. Mr Schofield submitted that there was no burden or standard of proof, but the Panel had a good yardstick in the assessment and reaction of the other clinicians who had given evidence. Mr Schofield submitted that much of the evidence was at the higher end of seriousness, as shown by the fact that other professionals had to intervene, because patients were being put at risk.
95. Mr Schofield submitted that the Registrant’s misconduct fell far below the proper standards. In addition, he submitted there had been a lack of competence displayed by the Registrant.
96. Mr Schofield submitted that the Registrant’s fitness to practise is impaired. He said that there was evidence of a high level of support having been provided by the Trust, together with an inability on the part of the Registrant to make satisfactory progress. He submitted that the Registrant’s fitness to practise had been impaired at the time of the facts that have been found proved. Further, he submitted that as the Registrant had not engaged or provided to the Panel any information whether he had done anything to address the issues. Mr Schofield submitted that the Panel should find the Registrant’s fitness to practise is currently impaired.
97. The Legal Assessor advised the Panel that the issue of impairment is a matter for the judgement of the Panel, not involving a burden of proof. He said that there was a two-step process. First the Panel had to decide whether the facts found proved made out the statutory grounds, of misconduct or lack of competence. The same facts might found either ground, but they are conceptually different. He advised the Panel to first consider whether the facts amounted to misconduct, which is serious professional misconduct. It should also consider whether the facts demonstrated lack of competence. He advised that this may be considered similar to the ground of deficient professional performance, which is used by other regulators. It relates to a standard of professional performance which is unacceptably low and is usually determined by reference to a fair sample of the individual’s work.
98. The Legal Assessor advised that, if the Panel found misconduct or a lack of competence, it had then to decide whether the Registrant’s fitness to practice is currently impaired, either on the ‘personal’ component of a risk of repetition, or the ‘public’ component of a need to maintain public confidence and uphold professional standards.
Decision on Grounds
99. The Panel carefully considered its factual findings, the submissions and accepted the legal advice. It bore in mind that not all misconduct is serious and that it had to consider whether there had been serious professional misconduct and/or whether the Registrant lacked competence. It also bore in mind that, if deciding on lack of competence, the Panel should be satisfied that this was by reference to a fair sample of the Registrant’s work.
100. Before making its decision, the Panel considered that it was helpful to step back and consider the case and the evidence in the round. The Panel reminded itself that the Registrant had joined the Hospital on 21 November 2022, as his first post in the UK NHS. He had undergone a two-week induction and then purposely been given a reduced caseload. The evidence indicated that, coming from another healthcare system, there was a high degree of unfamiliarity with NHS protocols and systems, including IT systems. Additionally, witnesses confirmed that the move to the UK was challenging for the Registrant.
101. Concerns over the Registrant’s practice had been referred to the Hospital management within ‘a week or so’ of the Registrant starting to see his own patients. Ms LH had then undertaken clinical observations, which formed the backbone of the allegations.
102. Ms LH’s evidence, supported by the clinical observation sheets, was that the Registrant received immediate feedback over the deficiencies in practice. Ms LH’s evidence was that the Registrant had been receptive to corrections and suggestions. He had been provided with a lot of support but had been receptive to that support. His communication with patients had improved, but unfortunately his clinical skills had not. The Registrant had been suspended from his post on 30 January 2023 and dismissed on 21 March 2023. Accordingly, his actual practice at the Trust, which was largely under close supervision, was over in approximately two months including the induction period.
103. The Panel considered that the Registrant’s failings had breached a number of the Standards of Proficiency for Physiotherapists (2013 edn.) which had applied, namely:
“4.1 be able to assess a professional situation, determine the nature and severity of the problem and call upon the required knowledge and experience to deal with the problem
4.2 be able to make reasoned decisions to initiate, continue, modify or cease techniques or procedures, and record the decisions and reasoning appropriately 14.3 be able to gather appropriate information
8.1 be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, colleagues and others
8.7 understand the need to assist the communication needs of service users such as through the use of an appropriate interpreter, wherever possible
10.1 You must keep full, clear and accurate records for everyone you care for, treat or provide other services to.
14.4 be able to select and use appropriate assessment techniques
14.5 be able to undertake and record a thorough, sensitive and detailed assessment, using appropriate techniques and equipment
104. The Panel bore in mind that not every breach of the standards will be misconduct; the Panel had to decide if the breach was sufficiently serious. However, in regard to the several failings included in the particulars of this Allegation there was a breadth of matters which breached a number of the standards for physiotherapists, as illustrated above.
105. The Panel considered that the Registrant’s conduct had the potential to have serious consequences for service users. This was particularly the case where ‘red flags’ had been missed, as in the case of particulars 1(c)(i) to (iv). The case of Service User F in particular illustrated the risks to patients where indicators of serious underlying disease were overlooked. It was also the case where there had been an inability to recognise additional investigations that might be required, in relation to particulars 1(e)(i) to (iii). In the case of particular 2, the Registrant had failed to take into account the Hospital’s standard protocol on post-operative care.
106. However, the Panel also considered it relevant that the Registrant’s failings were matters essentially of omission, in the sense that he had failed to ask the right questions, follow up the red flags, carry out the correct procedures or recognise alternative pathologies. The Trust had recognised deficiencies in the Registrant’s performance at a very early stage. Accordingly, he was under close supervision and actual harm to service users was therefore avoided.
107. The Panel acknowledged that it is able to make a finding of misconduct where, objectively judged, the conduct fell far below that required. Nevertheless, on the evidence in this case, there was no suggestion of subjectively reckless inadvertence, far less intentional behaviour by the Registrant.
108. The evidence did point to a serious mismatch between the Registrant’s abilities and the standards which had been required of him as a Band 6 physiotherapist. Despite this the evidence also indicated that the Registrant had been receptive and accepting of criticism and had attempted to improve his practice. The Registrant was described by witnesses as self-aware, out of his depth and although he was initially surprised by the gaps in his skills, he accepted the views of his supervisors and became increasingly withdrawn.
109. The Panel considered it significant that both Ms LH and Mr BM had said, when asked, that had the Registrant been a student on placement, neither considered that he would have passed such a placement. It was apparent to the Panel from the witness evidence that this was not a case of the Registrant performing inconsistently or having attitudinal issues in connection with his practice. The skills gap as presented was simply too great to meet the required standards of a Physiotherapist.
110. Taking everything into account, the Panel decided that the Registrant’s misconduct would not be regarded as ‘deplorable’ behaviour, or an equivalent descriptor by the profession. It decided that the matters above were not serious professional misconduct.
111. In relation to its findings for particulars 1(a)(i) 1(b)(i) to (iv) 1(d)(iii) and (iv) and particular 3, the Panel considered that these were misconduct, but not so serious as to amount to serious professional misconduct. These failings amounted to an inability to completely and properly carry out important basic tasks to the standard expected for a physiotherapist. However, the Panel did not consider this to be ‘deplorable’ conduct, or of so serious to amount to serious professional misconduct.
112. The Panel decided that, in its judgement, the Registrant’s misconduct in total had not amounted to serious professional misconduct.
113. The Panel was satisfied, however, that in respect of the particulars of the Allegation which it had found proved, it had been provided with a fair sample of the Registrant’s work. The Panel had asked the two witnesses, Ms LH and Mr BM, who were in a supervisory capacity at the Hospital, whether they recalled instances of the Registrant having demonstrated a satisfactory standard of work. Both answered that they could not recall such examples.
114. The Panel was satisfied that in relation to all the particulars of the Allegation found proved, a fair sample of the Registrant’s work had been provided which demonstrated an unacceptably low standard of performance on the part of the Registrant. Ms LH and Mr BM had said that the Registrant had not reached the passing level of a student physiotherapist.
115. The Panel concluded that the Registrant had displayed a very low standard of performance. The Panel concluded that: there was clear evidence of a great deal of support having been put in place; the Registrant had appeared willing to try to respond; but the Registrant had not sufficiently improved in practice. The Panel found that the statutory ground of lack of competence was made out.
116. The Panel next considered whether, on the basis of its finding of a lack of competence, it judged that the Registrant’s fitness to practise is currently impaired. The Panel took into account that there had been serious, multiple failings by the Registrant in the past.
117. The Panel acknowledged that the Registrant is a registered physiotherapist and a degree-holder. The equivalence of the Registrant’s qualification and experience will have been considered previously by the HCPC. The Panel concluded that, since these were matters of professional performance, the Registrant’s lack of competence ought to be remediable.
118. The Panel accepted that the Trust had put in place a lot of support for the Registrant, but the evidence was that, at that time, he had not improved sufficiently in practice to keep him in post. The Panel also took into account that the Registrant has not engaged with the regulatory process. He has not provided any information on reflection, insight or remediation of his lack of competence.
119. Whilst the Panel held nothing against the Registrant for not attending the hearing, it is the resulting position that the Panel has no information about any acceptance by the Registrant of his lack of competence, about the development of any insight or about any work the Registrant has done to remedy his limitations.
120. Therefore, the Panel was driven to conclude that in light of the past lack of competence there is a higher risk of repetition, and the public are at risk from the Registrant being in unrestricted practice. The Panel concluded that the Registrant is impaired on the ‘personal’ component of impairment.
121. Further, having found that there is a risk of repetition and considering the past lack of competence, the Panel was satisfied that members of the public would be alarmed and concerned if no action was taken in relation to the Registrant’s registration. There was also a need to send a message to the public and to the profession of the standards which are expected of registered physiotherapists. Accordingly, the Panel concluded that it was necessary to make a finding that the Registrant’s fitness to practise is impaired in the wider public interests of maintaining public confidence in the profession and maintaining professional standards.
122. The Panel found the Registrant’s fitness to practise is impaired.
Order
Order: The Registrar is directed suspend Mr Mubarak Muhammad Mutawakkil from the register for a period of twelve months.
Notes
Interim Order
Application
152. Mr Schofield applied to the Panel to impose an Interim Order pursuant to Article 31(2) of the Order. He submitted that, in light of the Panel’s findings as to the Registrant’s lack of competence, an Interim Order should be imposed because it was necessary to protect the public and was otherwise in the public interest. Mr Schofield submitted that the Interim Order should be for the same sanction as the substantive order of the Panel. The Interim Order was needed to cover the period allowed for an appeal to be made, or for any appeal to be disposed of. Therefore, he submitted, the Interim Order should be for 18 months, to allow for this.
153. The Legal Assessor advised the Panel that it had power to impose an Interim Order if it is satisfied that to do so is necessary to protect the public, was otherwise in the public interest, or in the Registrant’s own interests. He advised the Panel that it could impose either interim conditions of practice or an interim suspension. The Panel should take into accounts its findings made on the Allegation. The Panel should impose the least restriction necessary and decide the length of the interim order.
Decision
154. The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest, taking into account its finding of impairment and a risk of harm to the public. It took into account that notice of the possibility of an interim order being imposed had been provided to the Registrant with the documents served previously. A period of 18 months was required for the Interim order, to allow for the period an appeal may take to dispose of.
155. 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.
Hearing History
History of Hearings for Mubarak Muhammad Mutawakkil
| Date | Panel | Hearing type | Outcomes / Status |
|---|---|---|---|
| 14/10/2024 | Conduct and Competence Committee | Final Hearing | Suspended |