Kavita Bargota

The panel at the Substantive Hearing found the following:
Facts proved: 1a) i, 1a) ii and 2
Facts not proved: N/A
Grounds: Misconduct

The panel found the Registrant’s fitness to practise to be impaired and a Suspension Order for a period of 9 months was imposed as a sanction.

This decision was reviewed on 07 August 2015 and the reviewing panel imposed a further Suspension Order for a period of 12 months.

At a Voluntary Removal Hearing on 12 February 2016 a panel granted the removal of the Registrant from the HCPC register.

At a restoration hearing on 06 and 17 June 2022, a panel granted the Registrant restoration to the HCPC register subject to her complying with conditions of practice for a period of 9 months.

The decision of the restoration hearing was reviewed on 17 March 2023, when a further Conditions of Practice Order was imposed for a period of 12 months.

This Order is due to expire on 19 April 2024.

Preliminary Matters:
Proceeding in Private.

1. Ms Khan applied for the proceedings to be partially heard in private to the extent that any reference was made in the course of the hearing to the Registrant’s health in accordance with Rule 10 (1)(a) of the Rules. The Registrant supported that application.

2. The Panel had regard to the HCPTS Practice Note on “Conducting Hearings in Private” and accepted the advice of the Legal Assessor. The Panel granted the application on the grounds advanced by Ms Khan.

Background:

3. The Registrant had previously been employed as a Band 5 Dietitian by Leeds Teaching Hospitals NHS Trust from 28 April 2010. She was in a rotational training post in March 2013 when concerns were raised by a patient’s family in respect of the dietetic care provided by her to a patient (Patient A), relating to poor dietary intake and contact with the patient’s family.

4. During an investigation into those concerns, evidence emerged that the Registrant had altered Patient A’s record card, after the concerns had been raised.

5. At a hearing on 10 and 11 December 2014 a panel of the Conduct and Competence Committee (the 2014 panel) found the following allegations were proved against the Registrant:

‘During the course of your employment as a Dietitian with the Leeds Teaching Hospitals NHS Trust, you:

1. On a date between 5 April 2013 and 30 May 2013, following a complaint received from a Senior Sister in relation to dietetic care you had provided to patient A, you:

a. Made retrospective amendments to Patient A's record card, and you:

i. Did not sign the amendments, and/or
ii. Did not date the amendments

2. The actions described in paragraph 1 a i - ii are dishonest.

3. The matters set out in paragraph(s) 1 and 2 constitute misconduct and/or lack of competence.

4. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.

6. The 2014 panel found that the Registrant had “amended the records by adding further information, to suggest there had been more discussion and intervention concerning the patient” than had occurred and that she had done this, on a “large scale”, several weeks after the complaint had been made, in order “to improve her position after the she was aware of the complaint made by the family of (the) Patient”.

7. The 2014 panel found that this conduct was dishonest, that the Registrant’s fitness to practise was impaired and that she had limited

insight, demonstrated by her denial of dishonesty and the absence of any remediation. The 2014 panel suspended her from practice for 9 months.

8. The Registrant’s suspension was reviewed on 7 August 2015 and the reviewing panel suspended the Registrant from practice for another period of 12 months. That panel accepted that the Registrant had faced significant health difficulties which had impeded her engaging in remediation.

9. On 12 February 2016, a second reviewing panel approved a Voluntary Removal Agreement in which the Registrant consented to her removal from the Register. When imposing a striking off order that panel observed: “The Panel considered that the matters found proved at the Final Fitness to Practice hearing were serious. These gave rise to concerns in relation to the safety of patients, and to the wider public interest, including maintaining confidence in the profession and the regulatory process, and upholding proper standards of conduct and behaviour.”

10. The Registrant (then the Applicant) first applied for restoration in 2018. Having been advised that her application was premature, she withdrew that application and applied for restoration to the register pursuant to a written application dated 28 April 2022 and emailed to the HCPC on 2 May 2022.

11. The Registrant was conditionally re-admitted to the register at a Restoration Hearing held on 6th June and 17th June 2022.

12. The Restoration Hearing Panel (the 2022 panel) accepted the evidence given by the Registrant on 6 June 2022, which was consistent with and supported by the written documentation she had submitted to that panel. It found that the Registrant had reflected properly upon her misconduct and accepted her responsibility for it.

13. That panel accepted that the Registrant had taken steps to ensure that there was no repetition of her misconduct and had demonstrated that,
10 years after her misconduct, she would act openly and honestly regardless of consequences for herself.

14. The 2022 panel found that the Registrant’s health condition (which was not diagnosed until 2018) was likely to have contributed to the circumstances giving rise to her dishonesty including the feelings she had described of being overwhelmed and the panel was reassured that her condition was now properly treated and was stable.

15. That panel found that the Registrant had taken appropriate steps to rehabilitate herself, including working without incident over a number of years and contributing to projects related to her profession. The 2022 panel accepted that she had also learnt to manage her workload in a way that made it unlikely she would resort to dishonesty in the future.

16. The 2022 panel examined the evidence of CPD and learning which the Registrant had put before it and was satisfied she had successfully completed a 60 day period of professional updating in accordance with the HCPC standards for return to practice.

17. That panel then considered whether, in light of these findings, the Registrant was a fit person to return to practise and in particular whether she could practise safely, without being so overwhelmed that she was tempted to behave dishonestly in the future.

18. The 2022 panel was satisfied that the Registrant had resolved to behave honestly but was concerned that the return to work might present her with challenges which she would only be able to meet if properly supervised for a period after her return to work.

19. The 2022 panel then considered whether restoration met the overarching objective of protecting the public, including the wider public interest. In particular, it considered whether restoration would promote and maintain public confidence in the profession and uphold proper standards of conduct.

20. That panel was satisfied that it would meet the overarching objectives referred to above because of the significant passage of time since the Registrant’s misconduct and the evidence that the Registrant had used the time to ensure that she would practise safely and honestly in future. The 2022 panel agreed with the finding of the 2014 panel that the Applicant’s misconduct was not so serious that the wider public interest required that she would never be able to return to practice.

21. Therefore, the 2022 panel allowed the application for restoration subject to the Registrant complying with conditions of practice.

22. The 2022 panel stated: ‘For the avoidance of doubt, the Panel records that the Conditions of Practice Order will be reviewed shortly before its expiry and observes that a reviewing panel is likely to be assisted by:

1. The attendance of the Registrant;

2. A report from the Registrant’s workplace supervisor dealing with how the Registrant has managed her workload and maintained accurate records.

3. Testimonials dealing with the Registrant’s performance at work or in any other relevant role;

4. Any other material that the Registrant relies upon to demonstrate that she is ready to return to unrestricted practice.

The review hearing on 17 March 2023

23. The panel decided that the Registrant’s return to practice should remain subject to the imposition of conditions of practice for the following reasons:

• the Registrant had not yet returned to practice as a dietitian ;
• she had not provided any evidence as to what she had been doing to keep her practice up to date since being re-admitted to the register;
• she had not provided any testimonials in respect of any work undertaken; and
• she had not provided any information that her health condition was being managed so as to enable her to cope in a working environment.

24. The panel decided to extend the Conditions of Practice Order for a period of 12 months, as this would give the Registrant time to work towards her Masters qualification before applying for positions as a Dietitian.

25. The conditions imposed were as follows:

1) You must place yourself and remain under the supervision of a workplace supervisor registered by the HCPC or other appropriate statutory regulator and supply details of your supervisor to the HCPC within 14 days of starting any role that requires registration with the HCPC. You must attend upon that supervisor as required and follow their advice and recommendations.

2) For the first 2 months after you commence any role that requires registration with the HCPC you must meet with your supervisor every week.

3) Thereafter you may, if your supervisor agrees, meet each month.

4) You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

5) You must inform the following parties that your registration is subject to these conditions:

a. any organisation or person employing or contracting with you to undertake professional work requiring registration with the HCPC;

b. any agency you are registered with or apply to be registered with (at the time of application) with a view to taking a role requiring registration with the HCPC; and

c. any prospective employer for a role requiring registration with the HCPC; (at the time of your application).

26. The panel advised the Registrant that a future review panel was likely to be assisted by:
1. Her attendance at the next review hearing;

2. A report from the Registrant’s workplace supervisor dealing with how the Registrant is managing her workload and maintaining accurate records;

3. Testimonials dealing with the Registrant’s performance at work or in any other relevant role;

4. Any other material that the Registrant relies upon to demonstrate that she is ready to return to unrestricted practice.

Today’s hearing
27. Ms Khan submitted that the Registrant’s fitness to practise remains impaired. She referred the Panel to the email dated 14 March 2024 from SB, the Clinical Lead of Xyla Health & Wellbeing (“Xyla”), who employed the Registrant in a dietetic role for a 6-month probationary period from May 2023. This was extended but terminated in February 2024 after a further 3 months, having “failed for multiple reasons”. SB expressed concern that the Registrant had informed SB at the outset that she was subject to conditions of practice but not the circumstances in which they had been imposed, stating only that they were “in accordance with industry standards”

28. Ms Khan suggested that the Registrant had been dishonest in applying to the HCPC for an early review in the hope of concealing from the HCPC that she had been dismissed by Xyla.

29. Ms Khan further submitted that the Registrant had not provided any evidence to the HCPC of her compliance with the conditions of practice or that she adopted any of the recommendations of the previous review panel.

30. The Registrant provided the Panel with the following documents:
• Reflections analysis - academic
• Reflections
• Evidence of dietetic work undertaken
• Meeting records with her manager at Xyla dated September 2023 and January 2024

31. The Registrant elected to give evidence on affirmation. She confirmed that she had informed the HCPC by email dated 26 May 2023 that she had obtained employment as a Dietitian with Xyla and provided the name of her manager. She stated that she had fortnightly meeting with her manager until September 2023 when they were reduced in frequency to once a month. She stated that periods of illness on the part of both herself and her manager had reduced the number of meetings from about October 2023. She acknowledged that the academic work she was undertaking in respect of the university degree for which she was studying had made her workload at Xyla difficult to manage. She stated that she did not know why her probationary employment had been terminated.

The Panel’s decision
32. The Panel took into account the HCPTS Practice Notes “Review of Article 30 Orders” and accepted the advice of the Legal Assessor.

33. The Panel first considered whether the Registrant was currently fit to practise without restriction having regard to the decision on the restoration panel in June 2022.

34. The Panel took into account the decision of the High Court in Abrahaem v GMC where it was stated that in practical terms there is a “persuasive burden” on the Registrant to demonstrate at a review hearing that she has fully acknowledged the deficiencies which led to the original findings and has addressed his impairment sufficiently “through insight, application, education, supervision or other achievement”.

35. The Panel wished to commend the Registrant for her continued engagement with the HCPC and her attempts to comply with the conditions of practice by obtaining employment with Xyla.

36. The Panel, however, found that the Registrant had not provided any independent evidence of her compliance with the supervision requirements of the Conditions of Practice Order.

37. The Panel considered the Registrant’s written reflections to be very generic and not specific to the issue of how she had been able to cope with the pressures of her working environment, managed her workload or maintained accurate records.

38. The Panel was not satisfied that the Registrant had discharged the persuasive burden referred to above or demonstrated that she was currently fit to practise safely and without restriction.

39. For the record, the Panel did not find that the Registrant had been dishonest in applying the HCPC for an early review, nor was the Panel satisfied on the evidence that the Registrant had misled Xyla as to the reasons why she was subject to conditions of practice. The Panel noted that the HCPC had not contacted Xyla to investigate further the contents of the email from SB dated 14 March 2024.

40. The Panel decided to extend the Conditions of Practice Order for a further period of 12 months and to vary the conditions of practice by including a requirement for the Registrant to obtain and submit to the HCPC a report from her workplace supervisor, as set out in condition 4 below.

41. In addition, the Panel recommended to the Registrant that she should:

1) Attend the next review hearing; and
2) Provide the HCPC in advance of the next review hearing with any other material on which she relies upon to demonstrate that she is ready to return to unrestricted practice.

ORDER:

The Registrar is directed to annotate the Register to show that, for a period of 12 months from the date that this Order takes effect (the Operative Date), the Registrant must comply with the following conditions of practice:

1) You must place yourself and remain under the supervision of a workplace supervisor registered by the HCPC or other appropriate statutory regulator and supply details of your supervisor to the HCPC within 14 days of starting any role that requires registration with the HCPC. You must attend upon that supervisor as required and follow their advice and recommendations.
2) For the first 2 months after you commence any role that requires registration with the HCPC you must meet with your supervisor every week.

3) Thereafter you may, if your supervisor agrees, meet each month.

4) You must provide to the HCPC in advance of the next review hearing a report from your workplace supervisor confirming that you have been supervised in accordance with these conditions and the extent to which you have managed your workload and kept accurate records.

5) You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

6) You must inform the following parties that your registration is subject to these conditions:

a) any organisation or person employing or contracting with you to undertake professional work requiring registration with the HCPC;

b) any agency you are registered with or apply to be registered with (at the time of application) with a view to taking a role requiring registration with the HCPC; and

c) any prospective employer for a role requiring registration with the HCPC; (at the time of your application).

The Order imposed today will apply from 19 April 2024.
This Order will be reviewed again before its expiry on 19 April 2025.

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 Articles 30(10) and 38 of the Health Professions Order 2001, any appeal must be made to the court not more than 28 days after the date when this notice is served on you.

History of Hearings for Kavita Bargota