Puneet Narula

Preliminary Matters
Application to Amend
1. At the outset of the hearing Ms O’Connor applied to amend Particular 1 by inserting the number ‘1’ after the words ‘On 28 June 202.’ Ms O’Connor submitted that it was a very minor amendment rectifying an administrative error. She explained that there was no dispute about the date of SUA’s appointment with the Registrant. She further advised that Ms Owusu-Agyei did not object to the proposed amendment.

 

2. Ms Owusu-Agyei confirmed that she did not object to the application.

3. The Panel accepted the advice of the Legal Assessor. He advised that the Panel should consider whether the amendment could be made with no unfairness or prejudice to the Registrant.

4. The Panel decided that the proposed amendment was minor and did not vary the regulatory concerns identified in the existing Particular 1. The Panel further decided that the amendment could be made without unfairness or prejudice to the Registrant.

5. The Panel therefore granted Ms O’Connor’s application to amend.

Background

6. In June 2021, the Registrant worked as an Advanced Physiotherapy Practitioner (APP) for Ascenti Physiotherapy Services (Ascenti) at the Central Lancashire MSK Moving Well Service in Preston. He was employed, on a locum basis, from 15 March 2021 until 13 August 2021. Ascenti provides services to the NHS, private insurance, and medico-legal insurance companies.

7. On 28 June 2021, SUA (SUA) had a physiotherapy appointment with the Registrant at the Fulwood Clinic (the Clinic). This was SUA’s first and only appointment with the Registrant. He had previously had appointments with other Physiotherapists at Ascenti.

8. SUA had been suffering from pain in his lower back and right leg for some months. His key purpose in attending the appointment was to arrange for a referral to be made to allow him to obtain an MRI scan in the hope it would identify the cause of the pain. It is alleged that the Registrant confirmed during the appointment that he did require an MRI scan.

9. It is further alleged that the Registrant explained that he would make a referral for SUA to have an MRI scan of his spine, in order to find out the cause of the issues he was experiencing. According to SUA, the Registrant explained that all the relevant details regarding the scan would be contained in a letter that would be sent to him in advance of his appointment, but at no stage during the appointment did the Registrant make any reference to an “MRI Referral Form”, nor did he ask him any questions for the purposes of completing any such form.

10. On 29 July 2021, SUA attended for his MRI scan. It is alleged that the attending clinician stated that she was going to go through some questions with him, but these were questions he had answered previously, so it was nothing to worry about. It was at this point that SUA asked the clinician what questions she was referring to. The first question was whether he had had any surgery previously. He explained that he had previously had an operation close to his brain. The clinician asked whether that procedure had resulted in any clips being inserted and SUA stated that he did not know. The clinician then explained that he was unable to have the MRI scan and apologised to SUA that the questions had not previously been asked of him.

11. SUA has subsequently been shown a copy of a ‘Diagnostic Referral Form MRI’ (the MRI Referral Form) completed by the Registrant and states that the Registrant did not ask him about any of the MRI contraindications listed on this form. There are a number of factors listed under the “MRI contraindications” section of the MRI Referral Form, and the Registrant has put “No” for all of them. He also states that the Registrant did not ask him any of the MRI Referral Screening questions on the form. In the “MRI Referral Screening Form” section of the MRI Referral Form, there are a number of questions listed. Again, the Registrant has ticked “No” for all of them.

12. SUA subsequently complained to Ascenti because he was very concerned that the MRI Referral Form appeared to have been completed without his knowledge and contained answers to questions that had never been asked of him, which were not an accurate reflection of his medical history. SUA was concerned that the MRI could have been carried out based on the information erroneously provided by the Registrant, potentially putting his health and safety at significant risk. The fact he was unable to have the MRI scan also led to a delay in finding a solution to the ongoing pain he was experiencing.

13. It is alleged that the completion of the safety questions is a mandatory requirement for an MRI referral being made by Ascenti. Ascenti does not have its own specific policy for MRI referrals, but it is alleged that an APP would have received advanced training as part of an MSc degree (which is a requirement for the role of an APP at Ascenti) in relation to the making of such referrals and thus the Registrant would have been aware of this requirement.

14. During the internal investigation at Ascenti, a witness statement was obtained from the Registrant. He stated that SUA was present during the completion of the safety questionnaire. He said he would never refer someone for an MRI scan without checking the risks. He said he would like to apologise with regards to what has happened with SUA because of him. He went onto say that he goes through every question as per the form, and later stated that he is 100% confident that he followed the questions with SUA and he advised “No” to all of them.

15. The Registrant has provided a witness statement for the purpose of the HCPC substantive hearing, dated 19 September 2023. In that statement, he confirms that he explained to SUA that he would have to complete an MRI Referral Form. He confirms he completed the form with SUA and went through each of the questions listed. He repeats that SUA answered “No” to all of the questions asked.

Decision on facts
16. The Panel heard live evidence from SUA, Person B, and the Registrant

SUA
17. SUA took the affirmation and confirmed the terms of his written witness statement and adopted it as his evidence in chief subject to clarifying that the appointment was “probably say more 10 to 15 minutes” rather than 10 to 12 minutes as he had said in his statement.

18. SUA told the Panel that he had met the Registrant during an appointment at the clinic and that this was the only occasion that he ever met him.

19. SUA explained that the appointment was arranged as part of the physiotherapy treatment he had been receiving at the clinic in relation to problems with pain in his back and right leg. He detailed the nature of these problems and the pain he was suffering from. He said that before this appointment with the Registrant he had already had a number of appointments with other Physiotherapists at the clinic but that these had failed to reduce the pain he was suffering. SUA also told the Panel that at various times he had been prescribed co-codamol, gabapentin, dihydrocodeine and pregabalin, but this also had little effect on the pain.

20. SUA explained to the Panel that he was keen to explore other treatment options and from his perspective he went to the appointment with the Registrant to be referred for an MRI scan. SUA told the Panel that the appointment was scheduled for 30 minutes but actually took between 10 and 15 minutes. He explained he had been suffering pain in his right leg and sciatic nerve for several months and wanted an MRI. SUA told that Panel that he said to the Registrant that he wanted an MRI as soon as he entered the consulting room.

21. SUA told the Panel that once in the consulting room, the Registrant introduced himself.

22. SUA told the Panel what happened during the appointment. He said that the Registrant was pleasant and friendly and that the Registrant had asked him to perform some stretches and asked what medication he was taking. SUA said the Registrant then confirmed that he needed an MRI scan and that he would make a referral for one to take place. SUA told the Panel that the Registrant explained that the purpose of the MRI scan was to find out the cause of his pain, but that they did not have an in-depth conversation about what the MRI scan would involve or what the outcome might be. SUA told the Panel that the Registrant said that SUA would be sent a letter containing all relevant details in advance of the appointment for the scan.

23. SUA said that during the course of the appointment the Registrant made no reference to the form or asked any questions for the purposes of completing the form. SUA told the Panel that the Registrant did not fill in any form in his presence and did not ask SUA to complete the form. SUA did accept that during the appointment the Registrant was sitting at a desk with a computer on it and that he did not know what the Registrant was doing on the computer.

24. SUA was referred to a copy of an Ascanti MRI Referral Form completed and signed by the Registrant in relation to him.

25. SUA told the Panel that the Registrant did not ask at any time during the appointment about any MRI contraindications or ask any of the screening questions contained in page 2 of the MRI Referral Form. He said the only question the Registrant asked him regarding his medical history was whether he had any other ailments or medical conditions and that this was a passing query. He said this occurred midway through the appointment. SUA accepted he could not definitively say whether at this point the Registrant mentioned that he needed an MRI referral. SUA told the Panel he thought he told the Registrant he did not have any underlying medical issues but said that he was overweight. He was certain he was not asked any of the specific questions listed in the MRI Referral Form under the heading ‘MRI Referral Screening Form.’ He said he was 100 percent certain that he was not asked the questions and would not be making the accusations which might affect someone’s livelihood if he was not.

26. SUA agreed that the Registrant had asked him about his height and weight saying he recalled this as he had recently lost some weight.

27. SUA confirmed to the Panel what he had said at the length of the appointment at the outset of his evidence. SUA said nothing was said about any potential dangers of the MRI and the Registrant said a letter would be sent to him.

28. SUA told the Panel he then attended the Ramsey Healthcare Fullwood Hall Hospital (the Hospital) on 29 July 2021 for an MRI clinic. SUA said that he spoke to a female clinician who said she was going to ask him questions but not to worry as they would be the same questions he had been asked before. When SUA asked the clinician what she was referring to she explained that a form should have been filled in in advance of the appointment. SUA said the clinician had a piece of paper in her hand when she was talking to him.

29. SUA said the first question the clinician asked him was whether he had any surgery previously. SUA said that when he explained he had had an operation close to his brain to stop a burst artery and stop the bleeding he said the clinician asked if he had any ‘clips’ inserted. SUA said at this time he was unsure if he had. He said the clinician then said he could not have the MRI and apologised for the questions not having been asked before.

30. SUA said that about 20 minutes after leaving the Hospital he telephoned Ascenti’s customer services as he was very concerned that the referral form had been completed without his knowledge and contained answers to questions that he had not been asked and did not reflect his medical history. He said he was concerned that had the clinician not asked him questions that the MRI might have been carried out with significant risk to his health.

31. SUA explained to the Panel what sort of surgery he had had. He said he now knew that a clip had been inserted to stop bleeding from an artery after he was injured during an assault. He said when he told the clinician he had had surgery he thought that the artery had simply been cauterised and had no idea whether a clip had been inserted or not. He said after the issue arose he made enquiries and discovered he did have a clip in his head so could not have an MRI scan.

32. During cross- examination SUA accepted he had had multiple referrals to various Physiotherapists at Ascenti over several months. He explained that they had simply been treating him with stretching and that he had not asked them to refer him for an MRI. He reiterated that after this treatment he had asked to be referred to the Registrant as he hoped for an MRI referral. He also confirmed that he had discussed an MRI with his GP but it had not gone beyond this conversation.

33. When SUA was asked in cross examination if he was aware that medication he was taking might cause memory problems, he said he was not but that his memory was very clear.

34. When asked in cross examination about the level of pain he was experiencing, SUA stated that if he was rating it from 1 - 10 it was around 5 – 6 and a numb dull continuous pain for long periods of time. He explained that it would last for several hours but not 24 hours every day. SUA stated that he wanted an MRI scan when he attended the appointment, but that if the Registrant had not considered this appropriate and suggested a better outcome he would have listened to him. He stated that he could sit down during the appointment and do the stretches requested by the Registrant.

35. SUA confirmed that the Registrant had told him that he needed an MRI scan to get to the source of the problem and that he was told that a letter would be sent to him with all relevant details in it.

36. When asked if the Registrant had specifically asked him about ‘other injuries’ SUA said he could not recall if he was specifically asked about this. He said he considered medical condition included injuries. When he was asked if he had told the Registrant about the injuries he suffered when assaulted, SUA stated that he had not done so as the Registrant had not specifically asked him about surgery. He explained he had had surgery that resolved the issue and he therefore did not think of it as a problem. He compared it to if he had broken his leg and it had healed, he would not see it as an injury once it healed. When questioned further SUA confirmed that he interpreted ‘injuries’ as being concurrent ongoing issues.

37. SUA disagreed with the suggestion that he did not realise the importance of questions that the Registrant was asking him about injuries and was ‘not connecting the dots.’

38. When asked about the ‘general conversation’ SUA said that this took ‘a few minutes.’ When it was suggested to SUA that this ‘general conversation’ was actually the Registrant going through the MRI contraindications, SUA said this was not the case in his opinion. He added that he could not ‘with a hundred per cent accuracy say no because [he] did not know what [the Registrant’s] perception of the conversation was.’ But ‘as far as I am concerned, reading that form and recalling the conversation that I had, it wouldn’t coincide with filling in that form in my opinion.’ SUA reiterated that even if other questions were asked they did not relate to the issues on the form. He said the nature of the injuries he received when assaulted and the treatment after the assault was not something he would forget and had he been told by the Registrant that an MRI scan involved a big magnet he would have recalled this immediately. When further questioned on the issue of the Registrant asking questions from which he might have obtained information to complete the form SUA stated that was theoretically possible but was clear he was not asked the specific questions on the form.

39. SUA accepted in cross examination that the Registrant asked him about his height and weight saying he recalled this because he had lost weight around that time.

40. When asked about the document the MRI clinician had, SUA said he could not state definitively what document she was holding.

41. In cross examination SUA stated that he had told the MRI clinician that he was assaulted and had surgery when he was 20 or 21. He also stated that he was nearly sure the MRI clinician had used the word clip. He was referred to the record of his telephone complaint to Ascenti where it was recorded that he had stated the surgery was 9 to 10 years ago. SUA stated that he considered that the record was wrong or as he was upset at the time he might have explained it incorrectly. He also said he did not say that ‘meshing’ had been used in the surgery, as recorded by Ascenti in their note of his telephone complaint.

42. When it was suggested to SUA that he had ‘worked backwards’ from being told he could not have an MRI and reached the conclusion that the Registrant had not asked him questions he did not accept this.

43. SUA explained that during his communications with Ascenti he was trying to find a solution to the problem that had arisen. He said he did not know at this time if he could have an MRI scan and was trying to establish a route to address his pain.

44. When asked by the Panel about any letter he received after his appointment with the Registrant SUA explained he received a letter confirming the referral and he thought it was just confirming the appointment. He also confirmed that he did not receive a patient information leaflet during the appointment with the Registrant.

Person B
45. Person B affirmed. He adopted his witness statement as his evidence in chief.

46. Person B told the Panel that he was the Chief Governance Officer and Quality Officer at Ascenti, what services Ascenti provided and his role there. He set out his academic background.

47. Person B said he had never met the Registrant in person, but confirmed he had previously worked at Ascenti on a locum basis from 15 March 2021 until 31 August 2021 as an APP. He detailed what this role entailed.

48. Person B said he first became aware of concerns about the Registrant on 29 July 2021 when SUA telephoned Ascenti to raise a complaint. He said SUA had complained that the safety questions on the MRI Referral Form had not been asked by the Registrant and the form had been completed when SUA was not present and contained inaccurate information. Person B stated that the completion of safety questions was mandatory and its purpose was to screen out any contraindications that would mean a patient could not have an MRI. He said the standard practice was for the form to be completed by the patient, but it could be completed by the practitioner. Person B stated that the practitioner should ensure that the form was filled in.

49. Person B said he would expect the specific questions on the form to be asked rather than general questions. He confirmed if a patient had a metal artefact in their body this could move during an MRI scan and cause injury.

50. Person B told the Panel that an internal investigation was carried out into the concerns. He explained how such investigations were conducted. Person B said the concern had been graded as high risk due to the potential risks for SUA.

51. Person B said he was not part of the team that considered the concern about the Registrant. He explained that as part of the investigation witness statements were obtained and further information sought from SUA.

52. Person B confirmed that following the investigation the matter was referred by Ascenti to the HCPC.

53. In cross examination, it was put to Person B that the Registrant had been working as a locum for Ascenti since 2018 but Person B could not confirm this. He also confirmed that his knowledge of standard practice for filling in the MRI Referral Form was from an understanding of how the systems operate.

54. Person B stated that Ascenti operate nationwide and had lots of different services and policies for Central Lancashire MSK Moving Well Service in Preston. He also accepted that while he had stated that an APP would know the correct procedure for MRI referrals because of their advance training as part of an MSC degree that he had no personal knowledge of what this training was.

55. In relation to the MRI Referral Form Person B stated in cross examination, that the MRI Referral Form could be printed off or could be completed in an electronic version. He confirmed that the MRI Referral Form had to be submitted electronically. He also stated that he was not sure if Ascenti had a patient information leaflet.

56. During cross examination, Person B stated that there was a linked file related to the complaint made by SUA. He accepted this might contain information the Panel had not seen including any statement obtained from SUA.

57. When questioned during cross examination about assessing the concern raised in relation to the Registrant as ‘high’ Person B was directed to an entry in the relevant Datix form that stated that reoccurrence was unlikely. He explained this was a ‘prospective risk of assessment at an organisational level’ and referred to the risk of reoccurrence over the whole organisation.

58. During cross examination Person B was unable to provide information or answer questions as to what information or documentation the internal investigating Panel may have had before it.

59. When it was suggested to Person B that the internal investigation was poor he did not agree.

60. In reply to Panel questions Person B stated that it was his understanding that during his Ionising Radiation (Medical Exposure) Regulations training (IRMER training) the Registrant would have been informed about the process of MRI referrals and patient safety and risks.

Application re Undisclosed Documents
61. At the start of the second day of the hearing, following the close of the HCPC case on facts the previous afternoon, Ms Owusu-Agyei advised the Panel that she had concerns about potentially relevant documentation referred to by Person B during his evidence – the linked file – not having been disclosed. She advised that she had raised these concerns with Ms O’Connor who said that she would take instructions on this issue but that a direction was required from the Panel on the matter.

62. Ms O’Connor advised the Panel that the HCPC had requested all relevant information from Ascenti during its investigations and preparation for the HCPC case, but accepted that Person B had alluded to the existence of other documentation. She accepted that if such documentation existed that required to be looked into. She advised that she had contacted Person B who had said he was undertaking a search to see what further documents may exist. She detailed what she had asked him to look for.

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

64. The Panel decided to await a further update during the morning on whether any documents had been identified. When Ms O’Connor updated the Panel, she advised that Person B had provided further documentation and from her initial consideration of this documentation it appeared to contain material that required to be disclosed, however before disclosure it would have to be redacted. Ms Owusu-Agyei asked the Panel for time to consider the redacted documentation and the Panel agreed and resumed the hearing the following morning.

65. When the Panel resumed on 19 October 2023, Ms O’Connor confirmed she had been provided with a copy of a certificate confirming that the Registrant had completed his IRMER training on 28 November 2018. Ms Owusu-Agyei said that she was in a position to proceed with the Registrant’s evidence.

The Registrant
66. The Registrant took the oath and adopted his witness statement.

67. The Registrant told the Panel about his academic and career background. He stated that other than the matters before the Panel there had been no concerns raised about his practice since qualifying in 1999. He referred the Panel to positive comments made about him by his NHS manager, the manager of Crosby Medical Clinic and the agency that placed him with Ascenti.

68. The Registrant told the Panel that from 15 March 2021 until 13 August 2021 he worked one day a week as a locum with Ascenti. He stated his main role was to undertake advanced specialist assessment of patients with musculoskeletal complaints, provide a diagnosis, formulate an accurate prognosis, discuss treatment options, and agree a goal orientated treatment programme. He said he also aided diagnosis and development of treatment plans and had knowledge of and responsibility for requesting and interpreting x-rays, scans etc..

69. The Registrant said that before working for Ascenti he was working at Virgin Care. He said at Virgin the MRI Referral Form was a paper form. He said that at Ascenti the form was completed electronically so the patient would not actually fill it in.

70. The Registrant told the Panel of his recollection of his appointment with SUA based upon his recollection and what documents had been made available to him.

71. The Registrant said that it was his normal practice to read initial notes and referral letter to avoid repeating questions. The Registrant therefore said he thought he would have read any prior notes etc for SUA. He said he undertook an objective and then subjective assessment of SUA who presented with lower back pain radiating to his right leg.

72. The Registrant said he used the Severity, Irritability and Nature (SIN) factor to assess SUA. He said he would have obtained information during his subjective assessment to establish the SIN factor – for example by asking about the intensity of the pain. The Registrant said SUA’s SIN was high.

73. The Registrant said he also undertook a neurological assessment which was normal.

74. The Registrant told the Panel that following the assessment he discussed pain management options with SUA and he advised SUA that he would benefit from an MRI scan and this might find the cause of the pain. He said he explained to SUA he would have to complete an MRI Referral Form.

75. The Registrant told the Panel that it was his usual practice to ask patients about any metalwork in the body and he believed he asked SUA this. He said that SUA could not have told him about any metalwork, because if he had he would not have completed the MRI Referral Form or made the referral.

76. The Registrant said he would also have run through some safety questions to identify if SUA had any metal in his body. He said he went through these questions with SUA while he sat at his computer and asked all of them except if he was pregnant. The Registrant said he also checked SUA’s height and weight.

77. The Registrant said he completed the MRI Referral Form on screen.

78. The Registrant told the Panel that SUA had answered all the questions “No,” including whether he had surgery to his head or spine, eyes, or ears. He said he could not understand why SUA had not told him about his surgery.

79. The Registrant told the Panel he would have expected any surgeon to have advised SUA of any metalwork and that he could not have an MRI.

80. The Registrant said had SUA told him about any operation involving metal clips, pins etc he would not have referred him for an MRI. He suggested SUA may have misunderstood or misheard the questions.

81. The Registrant said that since 2012 he had sent thousands of patients for further investigation without any issues.

82. The Registrant told the Panel he had nothing to gain by completing the MRI Referral Form without SUA present and would never complete such a form without the patient present.

83. The Registrant said he could understand SUA’s anger given SUA’s personal recollection of what had occurred.

84. The Registrant explained that since August 2021 he has continued to practise at Mersey and West Lancashire NHS Trust, Crosby Medical Clinic and Lathom Physiotherapy clinic and one day a week as a locum with Connect Health. He set out his approach to patients at the NHS trust particularly in relation to MRI referrals.

85. The Registrant said that at SUA’s appointment he could have double checked his answers by asking about general surgery in the past in the assessment and then again when filling out the MRI Referral Form. The Registrant suggested had he done this SUA might have recalled his surgery and told the Registrant. The Registrant said this was now his practice.

86. The Registrant confirmed his IRMER was up to date and he had attended Professional Clinical Adviser Training and said he now adds more detailed assessment to his notes to remind him of the exact picture obtained at an appointment. The Registrant also told the Panel that he had attended an MRI Referral course in November 2022 and an ethics course in February 2023 and an emotional intelligence course in August 2023. The Registrant detailed what the IRMER training comprised.

87. During cross examination, the Registrant was referred to the statement he had provided to Ascenti in relation to the concern raised by SUA. The Registrant explained that he had received an email from his line manager on 9 August 2021 which essentially told him to call SUA. He said he called SUA and when he explained who he was SUA had put the phone down on him. He said he emailed his line manager and explained what had happened and that he would try contacting SUA the next Monday. The Registrant said he then got a call from the agency who had placed him with Ascenti telling him that there had been a complaint and that he had to fill in a form. The Registrant explained he was sent this and he filled it in during a lunch time when he was working at his NHS job and this was the document he had been referred to.

88. When asked how his memory of the appointment was he said he did not recollect every single thing about the appointment and that he saw a lot of patients. He said what stood out about SUA and what he recalled is that SUA asked to remain standing due to pain issues. When challenged that SUA had sat down the Registrant said he had not misremembered this.

89. The Registrant denied that he could have clicked “No” to the safety questions on the form thinking he had asked the questions when he had not. He stated he would only submit a form after all the questions had been answered. When challenged if he remembered actually asking the questions during the appointment with SUA, he accepted he did not but stressed that he asks every question in every appointment. He also accepted that in June 2021 he had sufficient training to complete the MRI Referral Form. The Registrant denied he had become ‘blasé’ about completing the MRI Referral Form.

90. The Registrant stated that it was his normal practice to ask the question, await the response and make an entry on the MRI Referral Form before moving on to the next question.

91. In response to Panel questions the Registrant explained that when reflecting on the appointment one of the explanations he thought of was that SUA had misinterpreted the questions the Registrant had asked him. He said it was his standard practice to explain the risks involved in an MRI.

92. When asked about his comment in his Ascenti statement that ‘I would like to apologise with regard to what happened with this patient because of me’ the Registrant explained he was sorry that SUA’s care had been delayed and that SUA thought it was due to the Registrant.

93. The Registrant also explained in reply to Panel question’s that prior to his appointment with SUA, SUA had been subject to a telephone assessment. He explained how that assessment would take place and that it was following this assessment that SUA was referred to him.

94. Prior to the Registrant completing his evidence, the issue of the telephone assessment was raised. After a short adjournment Ms O’Connor confirmed these notes were not in the possession of the HCPC. She set out the steps that the HCPC had taken to obtain all relevant documentation. She further explained that in light of the reference to this telephone assessment, attempts had been made to obtain them but these had been unsuccessful. Ms Owusu- Agyei indicated it was disappointing that the documents were not available, but that it was for the Panel to decide whether it wished further attempts to be made to recover them.

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

96. The Panel determined that as there was no indication that these documents still existed and, if so, when they could be recovered, that it was not in the interests of the parties or the public interest to delay matters further and that the Panel could reach a decision based on the information before it.

Submissions
97. Ms O’Connor submitted that the burden of proof was on the HCPC and the standard of proof was that of the balance of probabilities.

98. Ms O’Connor submitted that there was no dispute between the parties that there was a requirement on the Registrant to complete the MRI referral Form and ask all the questions on the second page. She further submitted that there was no dispute that the MRI Referral Form produced by the HCPC was the form the Registrant submitted for SUA, nor was it disputed that it was important to complete this and the questions to ensure the safety of patients or the potential consequences if it was not completed properly.

99. Ms O’Connor noted that the Registrant had been very clear in his oral evidence about what his standard practice had been and that it was his standard practice to go through every question, that he would have asked each question, recorded the answer then asked the next question.

100. Ms O’Connor argued that the Registrant was not seeking to suggest that he had gleaned the information to answer the questions. She submitted this was based not on the Registrant’s specific recollection of the appointment but on his standard practice.

101. Ms O’Connor submitted that SUA had stated that the Registrant had been pleasant and he had no complaints until he attended for the MRI. She further pointed out that while SUA may have had prior appointments this was his only appointment with the Registrant.

102. Ms O’Connor submitted that there was no basis for suggesting that SUA had fabricated or exaggerated his evidence of what occurred in the appointment. She stated that the issue was the reliability of his memory.

103. Ms O’Connor noted that when SUA provided a statement to the HCPC considerable time had passed since the appointment. However, he had raised a complaint with Ascenti on 28 June 2021 only a month after the appointment.

104. In relation to the issue of medication, Ms O’Connor pointed out that SUA stated his memory was good and he had no side effects from the medication.

105. Ms O’Connor submitted it was reasonable to assume that SUA’s memory of the appointment was good.

106. Ms O’Connor accepted that again it was not disputed that SUA had not disclosed anything about metal clips in his head. She suggested that SUA did not know of the existence of these clips at the date of the appointment and he only clarified this subsequently.

107. Ms O’Connor submitted that it was more likely than not that the Registrant had not asked SUA about having had surgery. She submitted that SUA had explained specifically why he was clear that he would have recalled being asked about surgery and that he would have disclosed his prior surgery. She referred to SUA’s specific evidence about the nature of the assault, the surgery and subsequent impact. He said it was not the sort of thing he would forget.

108. Ms O’Connor submitted that SUA was not saying he remembered some of the questions but not others, rather he specifically stated that he was asked none of them. She submitted that if, as the Registrant said he had done, he had gone through each question sequentially, SUA would have remembered this.

109. Ms O’Connor submitted that SUA was a reliable witness, who did not seek to embellish his account of events. He was clear when he could not recall things, took time to consider his answers and endeavoured to give his best evidence.

110. Ms O’Connor submitted that the suggestion that having been told he could not have an MRI that SUA had effectively worked backwards and assumed that he was not asked about surgery by the Registrant was incorrect. She referred the Panel to SUA’s evidence that when told by the MRI clinician that she was going to ask questions that had been asked at the appointment SUA immediately said, ‘what questions.’ SUA had also said there was no way he would not have mentioned the surgery if asked about it or that he was not paying attention to the Registrant or misunderstood him. Ms O’Connor submitted his account did not change during cross examination. Ms O’Connor also submitted that SUA accepted that he was asked about his height and weight.

111. Ms O’Connor also submitted that the Panel should consider whether the Registrant could have undertaken initial discussions with SUA, done a physical assessment including stretches and then asked the safety questions all in a 15 minute appointment.

112. She referred to the Registrant’s apology in his Ascenti statement and suggested that if the Registrant had asked all the questions he would not have any reason to apologise.

113. Ms O’Connor also asked the Panel to note that the Registrant had given evidence that SUA remained standing during the appointment yet SUA had clearly stated that he had sat down. The Registrant had stated he was not mistaken. However, if he was mistaken on this point then Ms O’Connor suggested he could be mistaken about other matters.

114. Ms O’Connor submitted that the outcome of the internal Ascenti investigation was irrelevant.

115. In relation to the issue of dishonesty Ms O’Connor submitted it followed that, if the Panel found that the Registrant had falsely completed the MRI Referral Form then it satisfied the test in the case of Ivey v Gentings Casinos (UK) Ltd [2017] UKSC 67.

116. Ms Owusu-Agyei provided the Panel with written submissions as follows:
1. This is final hearing of the Conduct and Competence Committee into the following allegations against the Registrant (as amended on 17 October 2023) [7-8]:
(a) On 28 June 2021, you falsified a safety form involving SUA’s MRI referral as safety questions were completed without their involvement.
(b) Your conduct in relation to Particular 1 above was dishonest.
(c) The matters set out in particulars 1 and 2 above constitute misconduct.
(d) By reason of your misconduct, your fitness to practise is impaired.

2. The Panel is invited to find that, on the balance of probabilities, the factual allegation is not made out. Therefore, the allegations should be dismissed and no further action should be taken.

Facts
3. The Panel are invited to find the following facts:

Mr Narula
4. Mr Narula qualified as a Physiotherapist over 20 years ago [PN w/s 2]. He has been practising as a Physiotherapist ever since. He has several qualifications: (a) His initial qualification from Mangalore University (1999)
(b) An MSc in Manual Therapy at Coventry University (2009)
(c) A Pg Dip in Trauma and Orthopaedics at University of Salford (2016), during which he took a module on Applied Radiology

5. Prior to the allegation, he had performed Ionising Radiation (Medical Exposure) Regulation 2017 (“IRMER” training) most recently in 2018.

6. He is a full member of the Musculoskeletal Association of Chartered Physiotherapists.

7. He has held several roles working as a Physiotherapist in the UK: (a) Since 2009, he has worked as a locum Physiotherapist for various organisations, included Virgin Care (Ascenti’s predecessor).
(b) From 2011 to 2013, he worked full time as a Senior Physiotherapist at Care UK in Greater Manchester.
(c) From February to July 2012, he worked as a locum Extended Scope Physiotherapist at Barking and Dagenham NHS Trust.
(d) From July 2012 to January 2013, he worked as a locum Extended Scope Physiotherapist at Care UK in Lincoln.
(e) From September 2013 until present, he has worked at Mersey and West Lancashire Teaching Hospitals NHS Trust (previously called Southport & Ormskirk Hospital NHS Trust) as an Advanced Physiotherapist (for the last 10 years). This role became a permanent, 4-day a week role in August 2015.
(f) Since August 2015, he has worked one day a week at Crosby Medical Clinic.
(g) From 2018 until 13 August 2021, he worked as a locum APP for Ascenti
(h) Since January 2020, he has worked a few hours a week at Lathom Physiotherapy clinic
(i) Since September 2021, he has worked one day a week with Connect Health.

8. In the four roles that Mr Narula currently undertakes, he makes MRI referrals in his NHS role and in his role at Connect Health. He was able to describe the process for making those referrals in detail to the Panel. In relation to his NHS role, he indicated that the system used (CAREFLOW), there is a specific box that must be filled to confirm that the patient is present when the form is being completed.

9. In Mr Narula’s over 20 years of practice, no issues have been raised about his practice other than the present allegation.

SUA
10. SUA had been suffering from pain in his lower back down to his right leg for 7-9 months prior to his appointment with Mr Narula in June 2021. He had been prescribed pregabalin which he stated he had stopped taking prior to June 2021. He had also been prescribed co-codamol, dihydrocodeine and gabapentin. He gave evidence that he was probably taking both the co-codamol and the dihydrocodeine when he attended the appointment with Mr Narula in June 2021. He admitted that he was potentially still taking gabapentin when he saw Mr Narula on 28 June 2021. Both gabapentin and pregabalin have a potential side effect of memory problems. The HCPC has not disclosed any of SUA's medical records.

11. SUA had had between 3 and 10 appointments with other Physiotherapists at Ascenti before the appointment with Mr Narula on 28 June 2021. Although not mentioned in his witness statement, he had also consulted his GP with respect to his pain and had asked his GP about an MRI. He was unable to recall the exact nature of the conversation or when it had taken place, including whether the GP had asked him any Safety Screening questions with respect to an MRI.

28 June 2021
12. SUA had an appointment with Mr Narula on 28 June 2021. He is clear in his evidence that “the key purpose of the appointment, from my perspective, was to arrange for me to be referred for an MRI scan.” [SUA w/s 5]. He states that Mr Narula introduced himself at the beginning of the appointment, then began to ask SUA about what he had been experiencing. In live evidence, SUA that had opened the appointment by stating that his intention was to secure a referral for an MRI. Mr Narula also states that SUA, ”was very keen to have an MRI scan.”

13. Both SUA and Mr Narula describe Mr Narula asking SUA to perform what SUA described as “stretches”. Mr Narula describes the subjective and objective assessment he performed of SUA [PN w/s 22-25].

14. SUA states that Mr Narula also asked him about the medication he had been taking [SUA w/s 8].

15. In live evidence, SUA suggested that the pain he was suffering as at the 28 June 2021 appointment was not significant (5-6/10). However, Mr Narula’s evidence was that his record of “R SLR 30 degrees” (right, straight leg raise, 30 degrees) indicates that at the appointment, SUA was in more pain than SUA suggested in his evidence (“more than 5/10”).

16. Both SUA and Mr Narula also state that Mr Narula stated that SUA would benefit from an MRI scan to find out the exact cause of his symptoms [PN w/s 26; SUA w/s 9]. SUA admits that Mr Narula explained that he would make a referral for an MRI scan of his spine and explained the purpose of the MRI was to find out the cause of the issues he had been experiencing [SUA w/s 10].

17. SUA admits that Mr Narula also asked him about whether he had “any other ailments/medical conditions” [SUA w/s 14]. At the beginning of his evidence, he stated that Mr Narula asked him any “injuries medication, any other ailments or conditions.” In cross examination, he initially tried to resile from the word “injuries,” but in response to further questioning, he once again stated that Mr Narula had asked him, “general questions about ailments, injuries,” although he later stated that “injuries was not the right word.” He stated that this conversation took part in the part of the appointment that he described as “general conversation.” He cannot remember exactly the questions asked during this “general conversation.”

18. In live evidence, when asked whether it was possible that what SUA describes and general conversation was in fact Mr Narula asking the questions that would give him the answers to the MRI contraindications and Safety Screening questions, SUA accepted that he “couldn’t with 100% accurately say no”.

19. Mr Narula states that he explained to SUA that he would have to complete an MRI Referral Form to make sure that it was safe for him to have an MRI. He then electronically requested the relevant investigation template form, the completed version of which appears at [17-18]. His usual practice is to say, “we need to know about any metalwork in the body before the MRI scan” [PN w/s 29]. He has referred thousands of patients for further investigations in a similar manner to SUA, without any issues [PN w/s 42].

20. Mr Narula then went through each of the questions listed at [18] while SUA was in the room. SUA accepted that Mr Narula had been using the computer during the appointment, and he did not look at Mr Narula’s screen (nor would he have thought it appropriate to do so).

21. Both SUA and Mr Narula state that Mr Narula asked SUA his height and weight [PN w/s 34]. SUA does not mention this in his witness statement, in fact stating that Mr Narula “did [not] ask me any questions for the purposes of completing any such form” [SUA w/s 11]. However, in live evidence, he admitted that Mr Narula had asked him for his height and weight, and he specifically remembered Mr Narula asking him those questions. He also ascribed these questions to the middle of the appointment, in the “general conversation.”

22. SUA was happy with the appointment and found Mr Narula to be “pleasant and friendly”. He departed from the time estimate given in his witness statement [SUA w/s 15] and could not give an accurate record of how long the appointment lasted, suggesting maybe 10-15 minutes.

After the appointment

23. For the first time in live evidence, SUA stated that he spoke to his partner about the 28 June 2021 appointment and to he informed his employer that he would be having an MRI. He stated that some of the conversation with his partner could have been via written message, He stated that he will have “talked to her in depth about the fact I was having a referral, what he did while I was there. I updated her regarding the physiotherapy.” The HCPC have not disclosed the content of those messages in the course of these proceedings. SUA stated that his injury and previous surgery did not feature in these discussions with his partner, even though his partner knew that he had had previous surgery.

24. SUA explained that he received a written invitation to the MRI scan. He cannot remember exactly what the letter said, but felt that it was likely to be a standard appointment letter. In live evidence, he stated that he could not be 100% accurate as to whether he had been sent a Patient Information Leaflet along with that letter, but he did not believe so.

25. In live evidence, Mr Narula explained that Patient Information Leaflets are not given out by Ascenti APPs (nor is he aware of any other Physiotherapist working with Ascenti being given Patient Information Leaflets to give to patients), but to his knowledge are sent out with the MRI appointment letter to the patient.

29 July 2021

26. On 29 July 2021, SUA attended Fulwood Hospital for an MRI scan. He remained in pain. In his statement, he states that the clinician explained that “she was going to go through some questions with me,” and that he would have already been asked those questions. He talks of the clinician having a piece of paper in her hand which was smaller than size A4. In his 24 June 2022 email, SUA states that the document the clinician had was “filled in by hand” [R5]. It is clear that SUA’s Diagnostic referral form MRI is a typed document. SUA admitted that the clinician at the hospital did not specifically show him the document and that “it seems unlikely” that the clinician had the document at [17-18] in her hands. The HCPC has not disclosed any other document that matches SUA’s description in the course of these proceedings.

27. When this clinician asked SUA if he had had any surgery previously, he explained to her that he had had “an operation close to my brain to stop a burst artery in my right eye from continuously bleeding”. In the notes of SUA’s 29 July 2021 telephone complaint to Ascenti, the author of the notes states, “…MRI could not be completed because team are unsure if any form of meshing was used in this procedure – pt explains that he believes it was just?cortorised? [sic] but cant be sure.”” In live evidence, SUA stated that he did not say anything about meshing and cannot recall if the clinician had used the word “meshing.” However, he did explain that he thought the wound had been cauterised. SUA stated that the author of the notes must have been wrong in recording that call.

28. In live evidence, SUA stated that the clinician had told him that they (Fulwood Hospital) were advised that he had not had surgery, and that, “she must have said form”. SUA does not give this evidence in his witness statement.

29. SUA’s statement states that the clinician asked him if any “clips” had been used in his previous surgery [SUA w/s 19]. Under cross examination, initially, SUA did not recall whether the word clips was used, but then stated that “I’m almost positive she used the word clips.” The word “clips” does not feature in any of SUA’s calls to Ascenti.

30. SUA’s statement claims that the clinician explained that he was unable to have an MRI scan, “apologised profusely for the questions not having being asked of me previously, and she advised me of the potential dangers of having the MRI scan in light of the information that I had provided her with.” [SUA w/s 20]. In live evidence, SUA sought to resile from this statement, stating that the clinician “didn’t really tell me what the dangers were, just that I couldn’t have an MRI due to having a previous operation and it would be dangerous.”

31. SUA gave evidence that he left the appointment angry. Twenty minutes later, he called Ascenti having first spoken to his partner. In live evidence, he explained that the main purpose was to rearrange the MRI and that, “the complaint was secondary.” He gave evidence that in that twenty minute period from having left the appointment, he was no longer angry when he telephoned to complain.

Ascenti Investigation
32. Mr Narula only worked for Ascenti on Mondays. Mr Narula’s line manager, Person C, instructed Mr Narula to call Patient C to “get the information from the patient ASAP” [R3]. When Mr Narula did as he was instructed, SUA hung up on him. This precipitated a further complaint to Ascenti from SUA [52]. It was only at this point that Ascenti sought to investigate matters.

33. The HCPC has provided the following evidence of material considered in the Ascenti’s internal investigation:
(a) The notes of SUA’s 29 July 2021 telephone complaint (not included in the HCPC’s bundle) [R4]
(b) The notes of two telephone calls with SUA on 9 August 2021 [52]

34. In live evidence, Person B admitted that the statement from Mr Narula that he had stated the Panel had considered in their investigation was not the same one as the Panel had access to when they decided to terminate Mr Narula’s contract [41-45], given that this statement is dated 18 August 2021 – 5 days after they terminated Mr Narula’s contract.

35. The Ascenti Panel considered an email from Fulwood Hospital dated 30 July 2021. Person B’s statement states that “I have been unable to locate that email correspondence,” however in live evidence he admitted that he had not asked Fulwood Hospital for a copy of the correspondence, thereby having made very little attempt to find that correspondence. Within an hour of Person B being asked to search for the disclosure mentioned in his statement (signed in January 2023) on the second day of the final hearing, he was able to locate this email.

36. Confusingly, in live evidence and for the first time, Person B suggested that there was other material relevant to the present allegations that the HCPC has not disclosed in the course of these proceedings. He suggested that the Panel may have spoken to SUA on another occasion and may have even taken a statement from him. This is not mentioned in his witness statement, which clearly states that the correspondence with SUA is set out in exhibit JB5 to his witness statement [Person B w/s 18]. The HCPC only searched for this information after it had closed its case, and months after they were ordered to make disclosure in this matter. There is no written statement from SUA. The HCPC has given no evidence about exactly what the Panel saw when they were performing their ‘investigation.’

37. Person B’s evidence was that the Ascenti investigation Panel did not come to a decision as to what occurred during the 28 June 2021 consultation. There is no written outcome for the investigation that the Ascenti panel conducted.

38. As Mr Narula was a locum employee rather than a permanent employee, a decision was taken either by “the area manager or the people team” to terminate Mr Narula’s contract. The people team are the same team that gave Person B incorrect information about how long Mr Narula had been working at Ascenti [Person B w/s 4]. Mr Narula gave evidence that no-one at Ascenti did in fact contact him to communicate the termination of his contract.

39. Person B explained that he conducted a review of this matter. The Ascenti Feedback Review Form records “Outcome Details” that were entered on 23 November 2021. This includes an entry that the outcome was “Not Upheld” [50]. Person B was unable to explain why that code was used in this matter, although admitted that he was probably the person who inputted that data.

40. Almost four months after Mr Narula’s contract was terminated, Person B decided to make a referral to the HCPC regarding the present allegation. He included he wrong date of the consultation at paragraph 3 of that referral, incorrectly stating that the events took place on 28 July 2021 rather than 28 June 2021 [57].

Areas of dispute
41. There are relatively few relevant areas of dispute between the parties. The main area of dispute is: (a) On 28 June 2021, during the appointment that SUA had with Mr Narula, whether Mr Narula asked SUA any questions that would enable him to answer the safety questions on the second page of the Ascenti MSK Diagnostic referral form for MRI [18].

Relevant test
42. The burden is on the HCPC to provide sufficient evidence to persuade the Panel that the facts alleged are proved. The standard of proof required is the balance of probabilities: a Panel must be satisfied that the act or omission alleged is more likely than not to have occurred before it can find it proved.

Analysis – Allegation 1
On 28 June 2021, you falsified a safety form involving SUA’s MRI referral as safety questions were completed without their involvement.

43. The HCPC has failed to put forward evidence to persuade the Panel that Mr Narula completed the safety questions on the Ascenti MSK Diagnostic referral form MRI for SUA.

44.Mr Narula’s account of his standard practice is persuasive:

(a)On the basis of his training, both as part of his Postgraduate Diploma in Trauma and Orthopaedics, and during his IRMER training, and on the basis of his experience, he has developed a standard practice for dealing with patients who may potentially need further investigations by way of an MRI.

(b)First, he performs a subjective assessment of the patient. This involves asking the patient questions about their medical history, whether they have had any surgeries, any medication they have taken, and about their particular complaint.

(c)Secondly he performs an objective assessment where he asks the patient to do various movements and manipulates the patient to assess their body. This involves a neurological assessment[PN w/s 22-25].

(d)If it appears that further investigation is necessary, Mr Narula explains to the patient that he feels that further investigation is necessary. If it is an MRI scan that appears necessary, he explains why he thinks an MRI scan would be beneficial. He then explains what an MRI scan is. At the time of this appointment, he would have explained that an MRI scan is a giant magnet so “we need to know if there is any metal in the body.”

(e)Mr Narula then explains that he is going to complete an MRI Referral Form and go through Safety Screening questions.

(f)While he was at Ascenti, he would ask the patient all of the safety screening questions that appear on the second page of the Ascenti MSK Diagnostic referral form for MRI. He would ask each question sequentially, wait for the answer, and complete the relevant answer by putting an x in the relevant column. For question 3, he would ask the patient about each type of medical implant. If the answer for each implant was the same (all yes or all no), he would put an x next to the relevant column beside question 3 itself. If the patient was male, he would not ask themquestion12, regarding pregnancy.

(g)Once the appointment was finished. He would electronically sign the form and save it on Ascenti’s EMIS system. A person from Ascenti’s admin would then pick up the form and send that to Fulwood Hospital in due course.

45. Mr Narula gave an oral account that is consistent with his contemporaneous statement about his practice [41-45] and his witness statement for this hearing [SUA w/s 17-42].

46. As Mr Narula explains in his witness statement, he has nothing to gain from completing the Safety Screening questions without the patient’s involvement. He is well aware of the risks of sending a patient for an MRI scan when there are potential contraindications for MRI, and he is well aware of the alternative options for investigations. He gave evidence that he was under no time pressure and explained clearly that “he never rushes a patient”.

47. Crucially, he was very clear that he “never assume[s] anything”. He knows this because he has experience of patients giving him information that they have not given to previous practitioners, even though the same questions are being asked. He was able to describe occasions when patients have said at one point during an appointment that they have not had cancer, then explain not long afterwards that their prostate was removed because of prostate cancer, or patients stating that they have not had surgery when in fact they have had tooth extraction surgery/cataracts surgery/laser eye surgery etc. This evidence strongly mitigates against any potential finding that Mr Narula did not treat the Safety Screening questions with the importance that they required. On the balance of probabilities, it is more likely than not that Mr Narula did perform SUA’s appointment in line with his normal practice and therefore the factual allegation is not made out.

48. The HCPC seeks to suggest to the Panel that because Mr Narula does not say to the Panel that he has exact memory that he asked the questions on the second page of the form, his evidence is not reliable and they should find the factual allegation made out. That is a weak submission. Given the number of patients that Mr Narula gave evidence that he sees (10-15 a day), it would be implausible for him to have an accurate memory about what exactly was said in each individual appointment. In fact, his evidence is more realistic given that he accept that he does not have that actual memory. However, he does have a standard practice that he has been following for years. There is no evidence that he would have deviated from that on this occasion. Nor is there evidence from any other clinician that he has deviated from that standard practice. There is a record of what he did during the appointment. Part of that record is the very form the Panel is considering. Mr Narula’s account stems from the record. In contrast, SUA's account is based on no written record and he has no contemporaneous written document from which to base his account. He simply relies on his memory. In the first written account he provides of events a year later in June 2022, he accepts that his memory is“not100%”[R5].

49.There are several other pieces of evidence that the Panel has heard point strongly against the factual allegation:

(a)We know that Mr Narula definitely did ask SUA questions in order to write the text included in the “Examination Requested “box of the Ascenti MSK Diagnostic referral form[17]including about Service UserA’s back and leg, past response to physiotherapy, medication, and pain. This information comes on the first page of the form;

(b)We know that Mr Narula definitely did ask SUA for his weight and height[18]. This information comes on the second page of the form;

(c)As a matter of logic, it would be bizarre for an APP of Mr Narula’s experience to ask questions at the beginning and end of the form, but omit to ask the Safety Screening questions which hare the most important part of the form;

(d)SUA accepts that there was an additional part of the appointment during which Mr Narula did ask him other questions, including a question that concerned whether he had any other medical conditions. On the balance of probabilities, it is more likely than not that Mr Narula did ask SUA about whether he had had any other previous injuries, as he mentioned twice, unprompted, in his live evidence. SUA accepts that he did not tell Mr Narula about the previous injury detailed at[SUA w/s 19];

(e)SUA’s evidence is that the “general conversation” part of the appointment took place after what he described as “stretches” [SUA w/s7]. If Mr Narula did ask SUA the Safety Screening questions on the second page of the form, but in fact Service UserA has misremembered this part of the conversation as just a general conversation, their accounts would in fact be consistent;

(f)Mr Narula gives evidence that he has several years’ experience of treating patients that include doing referrals for further investigations, including MRIs. Across that decade, there have never been any issues with his work. It is incredibly unlikely that no issues would have emerged about Mr Narula’s work if he had a practice of not asking the relevant Safety Screening questions. As a matter of probability, several other people would have attended for MRIs who also are potentially contraindicated if that were Mr Narula’s ordinary practice. Those matters would have emerged and been referred to the HCPC in the same manner as this allegation has arisen. (g) It is even less likely that on one occasion out of the thousands of patients Mr Narula sees [PN w/s 42], he decided or omitted to ask the relevant safety questions. The HCPC has put forward no evidence to suggest that there would be any reason for Mr Narula to fail to ask the Safety Screening questions on this particular occasion. There were none. That is because Mr Narula did ask SUA the Safety Screening questions during the appointment.

(h) The Panel has the evidence of Berj Kishmishian, a fellow APP who has worked with Mr Narula for 10 years. In the course of that decade, he has “observed [Mr Narula’s] practice both visually and by listening to his assessment, treatment, referral for further investigation and onward referral. For approximately 5 years, we worked next to each other to enable me to do this. … As part of this process, for requesting MRI scans, [Mr Narula] would ask the safety questions prior to sending the referral.” [R34]. This is direct evidence from another practitioner that corroborate Mr Narula’s account that he does in fact ask the Safety Screening questions when referring patients for MRI scans.

50. The reason why this referral was made was because SUA made a complaint to Ascenti. He made that complaint because he was unable to have an MRI scan on 29 July 2021. He was determined to have an MRI when he saw Mr Narula on 28 June 2021, when he went to the hospital on 29 July 2021 and continued to be determined to get the scan for months afterwards [50-52]. As a person who is experiencing pain and who has been waiting for some time for an MRI scan, it is understandable that he is aggrieved when he leaves the hospital without an MRI.

51. The Panel will be aware that everyone has difficulties in memory. The Panel is assisted with by a Registrant Panel member who will be aware that patients are not always reliable historians of the content of their appointments. This is unsurprising.

52. SUA works backwards from the fact that he says the surgery that he previously had was significant to him, so there is no way he could have been asked about surgery because he definitely would have remembered that and told them that. However, we know that SUA feels strongly about some matters which the evidence shows he has reported inconsistently:
(a) For instance, he says that he knows the precise date of his surgery, and that it was 15 years ago. However, we know from the notes of the call with Ascenti, he told Ascenti that his surgery was 9 or 10 years ago [R4].
(b) Furthermore, in live evidence, SUA stated that he would not have used the word meshing when talking to Ascenti on 29 July 2021. However, the notes clearly record the use of the word meshing, in contrast to SUA’s evidence. There is also no mention of the work “clips” which SUA gave evidence that the clinician at the appointment had said to him [R4]

53. We also know from Mr Narula’s evidence that the Physiotherapist who performed the telephone assessment would have asked about previous surgery, and there was no mention of it in the notes. This is further evidence that when asked about surgery, SUA does not always answer that question accurately.

54. It was suggested to you that SUA gave evidence under re-examination that the questions on the second page of the form had not been asked. That is not an accurate description of the evidence you heard. SUA was asked about those questions during cross examination, and he was clear that he could not be 100% certain that the questions had not been asked. When he was re-examined on this, quite inappropriately, he was asked the same question again more than once. In his initial response, which the Panel are invited to take as the more persuasive one, when he was asked whether he had been asked the Safety Screening questions by Mr Narula, he said, “there is no way I wouldn't have mentioned it if I had not been asked it..” He is clearly working on a hypothetical basis, working backwards from what has actually happened. He also gave evidence that it has been 2.5 years, and his memory is not clear. The HCPC’s evidence is insufficiently strong for the Panel to find, on the balance of probabilities, the factual allegation made out.

55. Of course, both the key witnesses you have heard from are working on that hypothetical basis. The Panel is invited to find that Mr Narula’s evidence is more persuasive because he does these appointments all the time, refers patients for further investigations all the time, and there has never been an issue with him not having asked the Safety Screening questions. We don’t know what SUA does, how often he is required to give an account for previous medical appointments or any appointment, but in my submission his account is not persuasive.

56. It is understandable that SUA, in his frustration, would want there to be blame placed somewhere. It was suggested to him by the clinician at the appointment that the questions had not been asked, and he latched on to that. That is a narrative that makes sense to him. Unfortunately, given the wealth of evidence from Mr Narula about his standard practice, and the lack of any other incident or allegation that Mr Narula has failed to ask the Safety Screening questions, or has filled in the form and assigned an answer that was not given by the patient, the balance of probabilities fall strongly in favour of a finding that Mr Narula’s account is accurate, and the factual allegation is not made out.

57. The HCPC seeks to say that because Mr Narula sought to apologise within his initial statement, this somehow suggests a concession or admission on his part [43]. Of course, this suggestion is directly contradicted by his statement earlier in the document where he states specifically, “Yes, the patient was present during the completion of the safety questionnaire.,” “I would never refer someone for an MRI scan without checking the risks” and “I then completed the questionnaire with him present.” [42]. Mr Narula gave live evidence that he was sorry that the patient had suffered a delay in his treatment, and as he had seen Mr Narula he was necessarily part of that factual matrix. On a human level, he was sorry that SUA had experienced that delay. He was not admitting to any wrongdoing.

58. While the outcome of Ascenti’s ‘investigation’ is irrelevant to the panel’s decision making, the panel are invited to take into account Ascenti’s failures in investigating this matter. They did not obtain a written statement from SUA, they did not challenge any of his account in any way, they did not give opportunity for Mr Narula to speak to anyone or be questioned, and there does not appear to have been any process of weighing up evidence. Ascenti made no factual findings whatsoever.

Quality of Evidence
59. Mr Narula has been candid and clear in his evidence. He accepts that he has no direct memory of the appointment on 28 June 2021 but can explain his standard practice – across multiple different service – in detail.

60. SUA’s account is contradicted at various points (see above) and is unspecific with regard to the relevant part of the 28 June 2021 consultation.

Dishonesty
61. If the Panel do not find the first allegation made out in exactly the terms set out at allegation 1, they can come nowhere near a finding that there was any dishonesty on the part of the Registrant.

Conclusion
62. For the reasons set out above, the tribunal is invited to find that the factual allegation is not made out and therefore take no further action against the Registrant.
[The next paragraph of the Panel’s determination following from paragraph 116 is paragraph 122]
122. Ms Owusu-Agyei took the Panel through the foregoing written submissions orally.

Decision on Facts
123. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the cases of Suddock v NMC [2015] EWHC 3612 (Admin), Dutta v GMC [2020] EWHC 1974 (Admin), Khan v GMC [2021] EWHC 374 (Admin) and Byrne v GMC [2020] EWHC (Admin) in relation to its approach to the assessment of witness evidence and to the case of Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 in relation to the test for dishonesty. He advised the Panel that the decision of any internal investigation was irrelevant for their decision making and should be disregarded and that the Panel had no independent evidence before it of the side effects of any medication SUA may have been taking. He gave a good character direction in respect of the Registrant.

124. The Panel considered each particular of the allegation in turn. In reaching its decision the Panel considered how the relevant witnesses’ evidence fitted with the non-contentious or agreed facts, contemporaneous documents, the inherent probability, or improbability of any account of events and any inconsistencies and inconsistencies.

125. The Panel heard live evidence from SUA, Person B, and the Registrant.

SUA

126. The Panel considered that SUA had given his evidence in a clear and straightforward manner. He had not sought to avoid questions and his replies to questions were considered. The Panel decided that SUA’s evidence had, in relation to the core elements of the allegation, remained consistent from his initial complaint through his statements to the HCPC and his oral evidence. The Panel considered that any inconsistencies were minor and arose from the passage of time since the date of the allegation. The Panel did not accept that SUA had varied his evidence during cross examination. It considered the point raised by Ms Owusu-Agyei that SUA had stated that he could not be 100 percent certain if the Registrant had asked him the safety questions during the general conversation, but noted what SUA referred to was he was not able to comment on what the Registrant’s subjective perception of what occurred was. The Panel considered SUA to be a credible and reliable witness.

Person B

127. The Panel considered that Person B gave his evidence to the best of his ability. However, it considered that, in relation to the issues before it his evidence was of little assistance to it.

The Registrant

128. The Panel considered that the Registrant gave his evidence in a clear and straightforward manner. It considered he did not seek to be evasive or avoid questions. However, the Panel took into account that he accepted that he could not remember the specific details of what had occurred at the appointment and his evidence was based on his subjective view of his standard practice applied to the appointment.

1. On 28 June 2021, You falsified a safety form involving SUA’s MRI referral as safety questions were completed without their involvement.

129. In considering this allegation the Panel took into account the evidence of SUA and the Registrant, the submissions of Ms O’Connor and Ms Owusu-Agyei and all relevant documentation.

130. The Panel was aware of the comments made in relation to the assessment of credibility and reliability of witnesses in the case of Byrne v GMC [2021] EWHC 2237 in relation to the approach to take to the assessment of witnesses where it was stated:

‘In a case where the evidence consists of conflicting oral accounts, the court may properly place substantial reliance upon the oral evidence of the complainant (in preference to that of the defendant/appellant)… Fourthly, in a case where the complainant provides an oral account, and there is a flat denial from the other person concerned, and little or no independent evidence, it is commonplace for there to be inconsistency and confusion in some of the detail.’
The Panel applied this approach in relation to this allegation.

131. The Panel further noted that it was not disputed by the parties that the Registrant had filled in the MRI Referral Form and had an obligation to obtain answers to the questions in the form from SUA.

132. The Panel considered that the oral evidence of SUA that the Registrant had failed to ask him any of the questions in the Safety Screening part of the MRI Referral Form or otherwise ask him about historic surgery was consistent with the terms of his initial complaint, subsequent communications and HCPC statement. Further, the Panel did not consider SUA’s evidence was inherently improbable.

133. The Panel noted that SUA had described the Registrant as being pleasant and there was nothing before the Panel to indicate he had any reason to raise a false grievance against the Registrant. The Panel also considered that it was inherently improbable that SUA would have misunderstood any of the specific questions that were relevant to his historic surgery or any general question about past surgery. The Panel noted that the Registrant’s evidence was that his standard approach was to ask each question as they appear on MRI Referral Form sequentially waiting for an answer before moving to the next question. The Panel noted that some of the questions on the MRI Referral Form made specific reference to surgery to the head or spine. The Panel was of the view that it is highly and inherently improbable that SUA would not have understood that he was being asked these questions. The Panel was satisfied SUA would have understood and answered the questions if he had been asked them given the nature of the assault that occurred and the injury he sustained.

134. The Panel took into account that the Registrant himself accepted that he could not recall the specific events of SUA’s appointment. The Panel considered this was understandable given the number of patients that the Registrant would have seen. The Panel also took into account that the Registrant has had a lengthy career with no evidence of any similar incidents. The Panel also noted that there was no evidence to indicate that the Registrant would gain in any way by entering answers to questions not asked of SUA. However, the Panel concluded that the Registrant could only speak to what was his standard practice and could not speak specifically to what occurred during SUA’s appointment.

135. The Panel reminded itself of the guidance in Byrne.

136. In these circumstances, the Panel determined that this was a situation where there were conflicting oral accounts, and in these circumstances it could place substantial reliance upon the oral evidence of the SUA to that of the Registrant.

137. The Panel therefore concluded, on the balance of probabilities, that, for reasons unknown, on 28 June 2021, the Registrant failed to ask the specific questions set out in the MRI form or any general question regarding previous surgery.

138. As it was not disputed that the Registrant was required to ask such questions and only after obtaining the information from the patient make the relevant entry on the form the Panel further concluded that, on the balance of probabilities the Registrant falsified the safety form involving SUA’s MRI referral as safety questions were completed without his involvement.

139. Particular 1 of the allegation is therefore found proved.

2.Your conduct in relation to Particular 1 above was dishonest.

140. In considering this allegation the Panel took into account the evidence of SUA and the Registrant, the submissions of Ms O’Connor and Ms Owusu-Agyei and all relevant documentation.

141. The Panel applied the test for dishonesty as set out in Ivey.

142. The Panel first considered, on the balance of probabilities, what the Registrant’s state of knowledge or belief as to the facts was.

143. For the reasons set out above, the Panel determined that when the Registrant filled out the MRI Referral Form he was at that time aware that he had not asked the relevant questions of SUA. The Panel further determined that the Registrant was aware that he was required to ask the relevant questions of SUA before filling in the form and did not do so and he filled in the form knowing he had not done so.

144. The Panel considered that this conduct would be considered dishonest by the objective standards of ordinary decent people.

145. The Particular of the allegation is therefore found proved.

146. Following the Panel verbally handing down its decision a copy of the decision was provided to the parties. Thereafter Ms Owusu-Agyei requested the Panel to reconvene to allow her to make submissions on the document she had received.

147. Ms Owusu-Agyei indicated to the Panel that the document she had received was contained in a file attached to an email and the file was titled ‘Narula draft decision on facts- for PS.’ She stated she wished to make submissions on the document. Ms Owusu-Agyei referred the Panel to paragraph 137 of the ‘draft’ that stated:

‘The Panel therefore concluded, on the balance of probabilities, that, for reasons unknown, on 28 June 2021, the Registrant failed to ask the specific questions set out in the MRI form or any general question regarding previous surgery.’

148. Ms Owusu-Agyei made specific reference to the words ‘for reasons unknown’ with reference to the failure of the Registrant to ask SUA the questions on the MRI Referral Form. She submitted that the usage of these words resulted in the Panel not providing reasoning why it concluded that the Registrant had falsified the safety form. Ms Owusu-Agyei submitted further that as a result the Panel had not made a specific finding in relation to the Registrant’s state of mind or dishonesty.

149. Ms Owusu-Agyei further submitted that the use of the words ‘For the reasons set out above’ in paragraph 148 gave rise to similar criticism in respect of the Panel’s decision in relation to particular 2.

150. Ms Owusu-Agyei submitted that as the decision was a ‘draft’ it was open to the Panel to revisit its decision and consider whether its conclusions in paragraph 137 supported its decision in relation to the allegation.

151. Ms Owusu-Agyei further submitted that the ‘draft’ she had received also contained wording after the end of the Panel’s determination that referred to future parts of any hearing and in particular wording relating to the imposition of an Interim/Suspension/Interim Conditions Order and that this section had been highlighted. She submitted that this gave rise to concern that the Panel may have a pre-ordained view on sanction before submissions had even been made on grounds.

152. Ms O’Connor agreed with Ms Owusu-Agyei that the Panel’s decision provided to parties should be viewed as a ‘draft’ and it remained open to the Panel to provide further specification of its reasoning. Ms O’Connor submitted that it was for the Panel to decide whether it wished to provide further clarification for its written decision but submitted that further explanation of the Panel’s reasoning might be of assistance.

153. The Panel accepted the advice of the Legal Assessor. He raised the issue of whether the Panel was entitled to go beyond providing further reasoning and whether it was being suggested that the Panel should vary its decision in respect of the allegation.

154. Following the Panel retiring it reconvened to hear further submissions. Ms Owusu-Agyei referred the Panel to the cases of In re L [2013] UKSC 8 and Karunia Holdings Ltd v Creativity Ltd [2021] EWHC 1864 (Ch) and submitted that these were authority for the proposition that the Panel could review and change its decision on the allegation at any time prior to its decision being ‘perfected’. Ms O’Connor agreed with this position and when asked by the Legal Assessor confirmed that it was the HCPC’s position that the oral announcement of the Panel’s general conclusion did not amount to a ‘perfected’ decision and this required a final (not draft) decision to be handed down.

155. In reply to questions from the Panel, Ms Owusu-Agyei confirmed it was her submission that the use of the words ‘for reasons unknown’ could allow for the Registrant to be mistaken in thinking that he had asked questions of SUA. If so, she submitted that the Panel might consider whether this supported that his actions in completing the MRI Referral Form was falsification and/or dishonest.

156. The Panel accepted the advice of the Legal Assessor. He referred to the cases of In re L and Karunia.

157. The Panel carefully considered the submissions of the parties.

158. It first determined that any wording that may have been contained beyond its decision in its draft determination was simply the template as provided by the HCPC. It also noted that the front page of the decision also made reference to grounds, impairment, and sanction. The Panel has not given any consideration to any matter other than facts and determined that a reasonably informed member of the public would not consider it had done so purely on the sections of the template being included in its draft decision.

159. The Panel further determined that it would be of assistance to the parties if it provided further specification in its reasons. However, the Panel determined that its existing decision was supported by its reasons.

160. The Panel therefore varied paragraph 137 as follows:

137. The Panel therefore concluded, on the balance of probabilities, that, for reasons unknown, on 28 June 2021, the Registrant failed to ask the specific questions set out in the MRI form or any general question regarding previous surgery. The Panel took into account that in answer to questions in cross examination, the Registrant had specifically denied clicking ‘No’ to the safety questions on the form thinking he had asked the questions when he had not. It also took into account that he accepted that he did not actually remember asking the questions, but then stressed that he asked every question at every appointment. The Panel noted that the allegation specifically alleged that the Registrant falsified the MRI Referral Form as safety questions were completed without the involvement of SUA. The Panel determined that the Registrant did not ask SUA the safety questions and therefore SUA was not involved in the completion of the MRI Referral Form in this regard. The Panel went onto consider the Registrant’s state of mind when he completed the MRI Referral Form. It applied the approach as set out in the HCPTS Practice Note on Making Decisions on a Registrant’s State of Mind applying the usual civil standard of proof. In particular it noted the guidance that ‘A person’s state of mind can only be proved by inference or deduction from the surrounding evidence.’ Applying this approach, the Panel determined that the Registrant was aware when he completed the MRI Referral Form that he had not asked SUA the safety questions set out in it. Considering all the evidence the Panel determined that, on the balance of probabilities, the Registrant deliberately completed the MRI Referral Form in the full knowledge that this was being done in relation to these specific questions without the involvement of SUA. The Panel determined on the balance of probabilities that it was implausible that the Registrant had completed the form in the mistaken belief that he had asked SUA the specific questions in the MRI Referral Form. The Panel therefore determined that he had falsified the form in respect of these questions.

161. The Panel also varied paragraph 143 as follows:

143. For the reasons set out above, the Panel determined that when the Registrant filled out the MRI Referral Form he was at that time aware that he had not asked the relevant questions of SUA. The Panel further determined that the Registrant was aware that he was required to ask the relevant questions of SUA before filling in the form and did not do so and he filled in the form knowing he had not done so. In considering the Registrant’s state of mind the Panel applied the approach as set out in the HCPTS Practice Note on Making Decisions on a Registrant’s State of Mind applying the usual civil standard of proof in particular the section relating to dishonesty. The Panel also noted the guidance that ‘A person’s state of mind can only be proved by inference or deduction from the surrounding evidence.’ The Panel considered all relevant circumstances including the particular circumstances identified in the HCPTS Practice Note on Making Decisions on a Registrant’s State of Mind relating to dishonesty. The Panel has already determined that the Registrant was aware when he completed the MRI Referral Form that he had not asked SUA the specific safety questions set out in it. The Panel has also determined that the Registrant deliberately completed the MRI Referral Form in the full knowledge that this was being done in relation to these specific questions without the involvement of SUA. The Registrant having deliberately completed the MRI Referral Form in this way the Panel determined that he had falsified the form in respect of these questions. The Panel further determined that the Registrant was aware that he was required to ask the relevant questions of SUA before filling in the form and did not do so and he filled in the form knowing he had not done so.

Decision on Grounds

162. Having found facts, the Panel went onto consider Particular 3 and grounds.

3.The matters set out in particulars 1 and 2 above constitute misconduct.

163. Ms O’Connor referred the Panel to the cases of Roylance v GMC [2000] 1 AC 311 and Nandi v GMC [2004] EWHC 2317. She submitted that grounds were a matter for the Panel and that any act or omission must be serious and fall far short of the standards to be expected of a registered Physiotherapist. Ms O’Connor submitted standards 6.1, 6.2, 9.1and 10.1 of the HCPC standards of Conduct, Performance and Ethics (the standards) had been breached.

164. Ms O’Connor submitted that not all breaches of the standards amounted to misconduct. She further submitted that the Panel might consider that the Registrant’s failures gave rise to a serious risk of harm to SUA . She also submitted that the Registrant’s dishonest conduct fell far short of what was expected and would be regarded as deplorable by fellow practitioners.

165. Ms Owusu-Agyei referred the Panel to page 2 of the HCPTS Practice Note on Fitness to Practise Impairment last updated in February 2022, and the sequential approach set out in the Practice Note. She submitted that if facts were found proved this did not mean that the statutory ground was established. Ms Owusu-Agyei submitted that there must be an element of seriousness and the conduct must be regarded as deplorable by fellow practitioners.

166. Ms Owusu-Agyei submitted that the Panel’s finding in Particular 1 and 2 all rested on what happened on 28 June 2021 and crucially if the Registrant had asked the safety questions. She noted that the Panel had preferred SUA’s evidence to that of the Registrant.

167. Ms Owusu-Agyei referred the Panel to paragraph 134 of its decision on facts and in particular that the Panel had stated that ‘the Registrant himself accepted that he could not recall the specific events of SUA’s appointment. The Panel considered this was understandable given the number of patients that the Registrant would have seen.’

168. Ms Owusu-Agyei also submitted that the Panel had found that the Registrant had had a lengthy career with no evidence of similar incidents. She said that there was no evidence to indicate that the Registrant would repeat the misconduct again by entering answers to questions that he had not asked the patient.

169. Ms Owusu-Agyei also submitted that the Panel had not made a finding that the Registrant was dishonest when he gave evidence that he had not deliberately falsified the MRI Referral Form, contrary to the standards.

170. Ms Owusu-Agyei further submitted that the facts found proved amounted to a single incident and that there was no pattern of behaviour. She referred the Panel to what had been said by the court in Calhaem v General Medical Council [2007] EWHC 2606 that ‘A single act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions.’

171. Ms Owusu-Agyei also submitted that because the Panel had found that the Registrant’s entries on the form were completed by him ‘…for reasons unknown’ there was no finding that the failure was;

• deliberate and
• that the Registrant had failed to ask the safety questions.

172. Ms Owusu-Agyei submitted that it was possible that the failure was one of negligence only, which did not, in itself, cross the threshold of misconduct. Ms Owusu-Agyei also referred the Panel to the evidence of the Registrant’s current manager who supported the Registrant’s diligence and professionalism. Ms Owusu-Agyei also submitted that the Registrant’s colleagues would not view this one isolated failure in an otherwise uncriticised career as being ‘…deplorable.’ Accordingly, the statutory ground had not been made out.

Panel’s decision on grounds

173. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the cases of Roylance v GMC [2000] 1 AC 311, Nandi v GMC [2004] EWHC 2317 and Calhaem v General Medical Council [2007] EWHC 2606.

174. In considering grounds, the Panel took into account the submissions of Ms O’Connor and Ms Owusu-Agyei, all relevant evidence of witnesses and all relevant documents including the testimonials provided on behalf of the Registrant. The Panel also took into account its prior finding of facts and the standards.

175. The Panel was aware that in respect of misconduct there was no standard or burden of proof and that it was a matter for the Panel’s own judgement. It kept in mind that breaches of the standards did not automatically result in the statutory ground being made out. In order for a breach of the standards or a failing to be regarded as misconduct, that act or omission must be a serious falling short of what was expected of the Registrant in the circumstances. An example of what might be serious in this context would include a falling short that a fellow Registrant would regard as being deplorable.

176. The Panel took into account the submission of Ms Owusu-Agyei that the facts found proved amounted to a single incident and that no finding of fact had been made that the Registrant deliberately failed to ask SUA the necessary safety questions. The Panel however referred itself to paragraph 137 of its decisions on fact where it had found that the ‘…Registrant was aware when he completed the MRI form that he had not asked SUA the safety questions …[and]…the Registrant deliberately completed the MRI Referral Form in the full knowledge that this was being done in relation to those specific questions without the involvement of SUA.’ In these circumstances the Panel determined that Ms Owusu-Agyei’s submission, which must have reflected the Registrant’s instructions to her on this matter, was made without full regard for the Panel’s findings. Ms Owusu-Agyei had not made any submissions at the point when facts were being considered that negligence, in the sense of blameworthy inattention or neglect of a duty, was an issue in this case. The Registrant had not suggested in his evidence that this was the reason for the response entries in the safety form being completed in the negative despite the questions not having been asked of SUA.

177. The Panel determined that the Registrant’s conduct found proved in Particular 1 was serious. In Particular 1, the Panel has found that the Registrant ‘falsified’ entries relating to the safety questions in the MRI Referral Form. The Panel further considered that this falsification could have resulted in serious harm to SUA. Had the issue of his prior surgery not been identified when SUA attended the hospital for the MRI scan, he might have been harmed.

178. The Panel further found that in Particular 2 that the Registrant’s conduct in Particular 1 was dishonest.

179. The Panel took into account Ms Owusu-Agyei’s submissions in relation to the Registrant’s lengthy career with no prior incidents and the testimonials provided on his behalf. However, the question for the Panel in relation to the statutory ground was whether the facts found proved amounted to misconduct.

180. The Registrant’s conduct involved falsification of an important patient safety form and dishonesty which gave rise to consequent unacceptable risk of serious harm to SUA. This conduct was serious and fell seriously below the standards to be expected of a registered Physiotherapist. The Panel further determined that this conduct would be viewed as deplorable by fellow registered Physiotherapists.

181. The Panel determined that the following standards were breached:

Standard 6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers, and colleagues as far as possible.

Standard 6.2 You must not do anything, or allow someone else to do anything, which could put the health and safety of a service user, carer, or colleague at unacceptable risk.

Standard 9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and the profession.

Standard 10.1 You must keep full, clear, and accurate records for everyone you care for, treat, or provide other services to.

182. The Panel determined that the Registrant’s acts and omissions found proved in particulars 1 and 2 fell seriously short of the standards to be expected of a registered Physiotherapist and that the statutory ground of misconduct had been made out.

Decision on Impairment

183. Having found the statutory ground of misconduct made out, the Panel went onto consider the question of impairment as set out in particular 4.

4. By reason of your misconduct, your fitness to practise is impaired

184. Ms O’Connor referred the Panel to the HCPTS Practice Note on Impairment and submitted the question of impairment was a matter for the Panel’s professional judgement. She submitted that the question was that of current impairment and that the Panel had to consider both the personal and public component as set out in that Practice Note. She further submitted that the Panel had to take account of the way in which the Registrant had failed in the past or acted in the past and, looking forward consider whether the Registrant’s ability to practise safely was compromised and whether public confidence in the profession would be undermined in the absence of a finding of impairment.

185. In relation to the personal component, Ms O’Connor submitted that an important factor was the level of insight demonstrated by the Registrant. She submitted that the Panel needed to consider the impact of the Registrant’s rejected defence that any denial of facts might have. Ms O’Connor referred the Panel to the case of Sawati v GMC [2022] EWHC 283. She pointed out that the Registrant had denied the allegation in full, but that the Panel had found particulars 1 and 2 proved.

186. Ms O’Connor submitted that the Registrant may have reflected to an extent. She noted that he had told the Panel that he could have double checked questions with SUA about his past surgery and that he had said this was now his practice. Ms O’Connor also accepted that to an extent the Registrant had reflected on the harm that could have occurred to SUA. She submitted that had SUA undergone the MRI scan he could have suffered vary serious harm. She also submitted that the Panel must look forward not back.

187. Ms O’Connor submitted that the Panel might consider that the Registrant had not reflected sufficiently on the particular incident that gave rise to the regulatory concerns. She accepted that the allegation related to a single incident and there had been no other fitness to practise concerns. Ms O’Connor said that in relation to the personal component, the Registrant’s insight was incomplete and inadequate. Accordingly, there remained a real risk of repetition despite his ‘double-checking’ practice.

188. In relation to the public component, Ms O’Connor referred the Panel to the case of PSA v NMC & Grant [2011] EWHC 927 and the approach formulated by Dame Janet Smith in the Fifth Shipman Report which was approved in that case. She submitted that in relation to the past the Registrant;

• had put a patient at risk of harm,
• brought the profession into disrepute,
• breached one of the fundamental tenets of the profession, and
• had acted dishonestly.

She submitted that in these circumstances, the public’s trust and confidence in the profession of registered Physiotherapists and its regulator would be undermined if there was not a finding of impairment. Accordingly, the Panel ought to make a finding of impairment in respect of the public component.

189. Ms Owusu-Agyei also referred the Panel to the Practice Note on Current Impairment. She submitted that the purpose of fitness to practise proceedings was not to punish, but to protect the public from those not fit to practise. She further submitted that impairment meant more than the Registrant had done something wrong. It meant a concern about their conduct, competence, health, or character which is serious enough to suggest that the Registrant is unfit to practise without restriction. She submitted that impairment was a matter for the Panel’s own judgement and that the Registrant was not required to prove he was not impaired.

190. Ms Owusu-Agyei referred to the character evidence provided for the Registrant and that it showed his general competence in

• relation to the subject matter of the allegation,
• the action taken by him since and
• the absence of similar events.

191. Ms Owusu-Agyei submitted that the Registrant’s insight was relevant to the Panel’s assessment of his current impairment. She argued that insight was relevant to the risk of repetition in the future and was different from remorse. Ms Owusu-Agyei submitted that the Panel should be cautious not to equate a denial of the facts with a lack of insight. She submitted that the Panel was required to take into account the Registrant’s remorse and reflection and referred the Panel to his witness statement and reflective piece.

192. In relation to the personal component Ms Owusu-Agyei submitted that a Registrant who had insight was unlikely to repeat his actions nor present any risk. She also submitted that given the nature of the allegations it was unlikely that they would result in public confidence in the profession being undermined. Ms Owusu-Agyei submitted that there was a wealth of evidence of the Registrant’s insight, remorse, and remediation. She referred the Panel to particular sections of the Registrant’s reflective piece. Ms Owusu-Agyei submitted that the Registrant had specifically reflected on dishonesty. She submitted there was no suggestion that the Registrant had failed to reflect on his practice and ample evidence of training. Ms Owusu-Agyei referred the Panel to the Registrant’s witness statement and other evidence in relation to ongoing training since the date of the incident.

193. Ms Owusu-Agyei further submitted that there was evidence that the public had confidence in the Registrant and took the Panel to the various testimonials provided on behalf of the Registrant and identified specific areas of them.

194. In relation to remediation Ms Owusu-Agyei referred the Panel to the Registrant’s written statement and his apology and reflection in it. She submitted it was clear the Registrant showed empathy with SUA. Ms Owusu-Agyei further submitted that there was an absence of evidence of any current impairment in respect of the Registrant again referring to his written statement and reflective piece.

195. In relation to the case of Sawati, Ms Owusu-Agyei submitted that the Registrant was entitled to defend himself against the allegations. She further submitted that the primary allegation was not one of dishonesty. Ms Owusu-Agyei again referred to the Panel’s findings that the reasons for the Registrant not asking the questions was unknown. She submitted that this established that the Panel had not found a deliberate failure or that the Registrant had been deliberately deceitful.

196. Ms Owusu-Agyei further submitted that the Registrant had stated that he could not recall what had occurred at the appointment and that the Panel had simply preferred SUA’s account to that of the Registrant.

197. Ms Owusu-Agyei also submitted that there was no evidence of a lack of insight beyond the Registrant denying the allegations. The Panel had not made a finding of fact that the Registrant had attempted to mislead the Panel in order to pursue a knowingly false defence. In relation to the issues raised in Sawati, Ms Owusu-Agyei submitted that the Registrant’s denial of the allegation was irrelevant to the matter of his current impairment.

198. Ms Owusu-Agyei submitted that the Registrant had been in professional practice for 20 years, that there was a wealth of evidence of his insight, reflection, and remorse and that there was no risk of repetition. In these circumstances she submitted that the Registrant was not currently impaired.

Decision on Impairment

199. The Panel accepted the advice of the Legal Assessor. He referred it to the cases of Grant, Cohen and Sawati and the HCPTS Practice Note on Fitness to Practise Impairment. In reaching its decision on current impairment, the Panel took into account;
• the submissions of Ms O’Connor and Ms Owusu-Agyei.
• the oral evidence.
• the written testimonials provided on behalf of the Registrant.
• its decision on facts and grounds.
• the guidance in the HCPTS Practice Note on Fitness to Practise Impairment and
• the case of Sawati v GMC [2022] EWHC 283.

200. The Panel was aware that the question of whether the Registrant’s fitness to practise was currently impaired was a matter of professional judgement for it.

201. The Panel took into account the HCPTS Practice Note on Fitness to Practice Impairment which states:

202. ‘The HCPC’s overarching objective is protection of the public and the purpose of fitness to practise proceedings is not to punish registrants for their past acts and omissions, but to protect the public from those who are not fit to practise. It does this by:

• protecting, promoting, and maintaining the health, safety, and well-being of the public
• promoting and maintaining public confidence in the professions it regulates
• promoting and maintaining proper professional standards and conduct for members of those professions.

203. Fitness to practise is not defined in the Health Professions Order 2001, but it is generally accepted to mean that a Registrant has the skills, knowledge, character and health to practise safely and effectively. Impaired fitness to practise means more than a suggestion that a Registrant has done something wrong. It means a concern about their conduct, competence, health, or character which is serious enough to suggest that the Registrant is unfit to practise without restriction, or at all.’

204. The Panel first considered the Registrant’s ‘rejected defence.’ It took into account the case of Sawati and followed the guidance in the HCPTS Practice Note on Fitness to Practise Impairment. The Panel recognised that a Registrant is entitled to a fair hearing and that can extend to insisting on a complete rejection of the case against him. Each case must be considered on its own facts and merits when the issue of current impairment follows from a rejected defence.

205. The Panel concluded that in this case, there was no true basis for a Sawati type approach to its finding in relation to current impairment. The Registrant had insisted that SUA had been wrong in stating that the Registrant had answered the safety questions in the negative without input from the service user. It would be unfair, in the Panel’s judgement, to regard the Registrant’s rejected defence as a matter which impacted on his current fitness to practise.

206. The Panel observed that, without any evidential foundation, it had been asserted by Ms Owusu-Agyei that the medications which the Registrant had been prescribed may have had the effect of impacting on his recollection of the events of 28 June 2021. The Panel observed that there was no evidence to support this.

207. In the Panel’s view, it was open to the Registrant to challenge SUA’s reliability since the Registrant (who had no real recall of the events) relied on his assertions of usual good practice. The challenge of a medication-associated impediment was a flimsy basis on which to attack SUA’s reliability, but not one that, in the Panel’s judgement, supported the application of Sawati in the circumstances of this case. The challenge had been made and had been considered by the Panel. It preferred the evidence of SUA.

208. The Panel considered the extent of the information available pointing to the Registrant’s insight.

209. The Panel accepted that, to the extent permitted by his refusal to concede the primary fact of having completed the MRI referral form without asking SUA the relevant questions, the Registrant had reflected in general terms on the issue of dishonesty. He had recognised that dishonesty could adversely affect the reputation of the profession of registered Physiotherapists and the HCPC as its regulator.

210. The Panel noted that in his reflective piece the Registrant had stated that ‘…it is vital for a Physiotherapist and their patient to communicate honestly and accurately about their condition. Dishonesty can result in exaggerated expectations, a lack of adherence to prescribed treatments, and eventually a deterioration of the therapeutic relationship. Falsifying records can damage my reputation as well as the profession’s dedication to patient care and ethical standards as a whole.’ The Panel also took into account that the Registrant had attended an ethics course in February 2023 and an emotional intelligence course in August 2023.

211. The Panel concluded that, while the Registrant does not accept the allegations, he (prior to the hearing) had reflected on and demonstrated insight in relation to the nature and extent of the potential consequences of such dishonest acts on service users, the reputation of the profession, and the HCPC as a regulator. The Registrant provided no further reflections following the findings of fact.

212. The Panel went onto consider the personal and public components of the Registrant’s current fitness to practise.

213. The Panel first considered the matter of the personal component of the Registrant’s current fitness to practise. The Panel has found that the Registrant falsified the MRI Referral Form by completing safety questions on the form without the involvement of SUA and that this conduct was dishonest. The Panel has found that, on the balance of probabilities, the Registrant did this deliberately.

214. The Panel considered that there was no merit in the view that a single serious departure from good practice and associated dishonesty could be regarded as being, in itself, insufficient to demonstrate current impairment on the personal component.

215. The Panel considered that there was some evidence of the Registrant’s current practice in which no concerns were raised. He had insisted, not unfairly, that there was no evidence of a pattern of misconduct or of deliberately harmful behaviour. He had provided insight in the abstract which is not without some worth.

216. Insight, however, is much more than the academic or conditional. Insight is, in the Panel’s consideration; meaningful, specific, and grounded in the facts of the case. The Panel looked closely to ascertain what insight had been provided by the Registrant into;

• the impact that his actions had on the safety of SUA,
• the implications for other service users,
• the impact on the diminishment of the public’s trust and confidence in the profession of Physiotherapist, and
• the declaring and upholding of standards.

217. The absence of real and material insight was striking. The Registrant is quite entitled to insist that he has not acted in the way that the Panel found proved. He is not entitled to insist that the Panel must therefore credit him with the insight that satisfies the test of his not being currently impaired.

218. The Registrant told the Panel that he has now implemented a double-check scheme when asking patient’s questions in regard to MRI Referral forms. The Panel has not been provided with any evidence of that. Nor has it been provided with any reassurance that, in the absence of a real grasp of the fact of his falling short on 28 June 2021, and the risks for SUA that were created by that, there is no real risk of a repetition in that or any other context.

219. The Panel observed that, far from acknowledging the possibility of his having placed SUA at real risk of harm, the Registrant had, in his defence, tried to persuade the Panel that in fact any fault must lie with SUA. SUA had misheard or had misunderstood the questions that were asked of him. There was no attempt to explain how SUA had immediately provided the vital information relating to his head surgery to the hospital when asked, but without explanation, had misheard or misunderstood the same question asked by the Registrant.

220. In all of these circumstances, the Panel found that the Registrant’s fitness to practise is impaired on the personal component.

221. The Panel then went onto consider the public component of the Registrant’s current fitness to practise including the wider public interest. The Panel took into account the HCPC’s overarching objective and how this is achieved as set in the Practice Note on Current Impairment.

222. The Panel has found that the Registrant has deliberately acted dishonestly, albeit without understanding what could have motivated him. The Panel considered that any finding of dishonesty can have a significant impact in the public’s trust in registered Physiotherapists and the HCPC as their regulator. The public is entitled to expect registrants to be professionally competent and act with decency, honesty, and integrity. The Panel determined that the public would expect that a finding of impairment be made in circumstances such as these. The Panel therefore finds that the Registrant’s current fitness to practise is impaired in respect of the public component.

Decision on Sanction

223. In considering the appropriate and proportionate sanction in this case, the Panel considered the guidance set out in the HCPC Sanctions Policy (SG) last updated in March 2019. The Panel took into account the submissions by Ms Owusu-Agyei on behalf of the Registrant and by Mr Collins on behalf of the HCPC.

224. Mr Collins did not ask for a particular sanction to be imposed. However, he invited the Panel to consider the following aggravating and mitigating factors:

Mitigating

• This matter related to a single patient on a single date
• The Panel’s determination at paragraph 211 that the Registrant has developing insight.

Aggravating

• There was dishonesty in a clinical setting in relation to an important patient safety form
• There was serious risk of patient harm if the MRI scan had proceeded
• The patient suffered the adverse impact of a delay in care as a result of the form being falsely completed
• The Panel found (paragraph 217) that the ‘…absence of real and material insight was striking’.

225. Ms Owusu-Agyei invited the Panel to find that no sanction was necessary, appropriate, or proportionate. She provided the Panel with a structured and detailed oral submission in which she emphasised:

• The Registrant was entitled to maintain his position on the facts without being penalised for doing so.
• It is not procedurally fair for a Registrant to face the risk of enhanced sanctions for having robustly defended the allegations (Towuaghantse v General Medical Council [2021] EWHC 681 (Admin). The Registrant is not a liar simply because the Panel preferred SUA’s evidence.
• The Registrant’s defence should not be considered as blatant dishonesty in itself.
• Sanctions are not punitive.
• The impact on the Registrant and his family of any sanction being imposed on him.
• The exceptional patient and professional testimonials on the on behalf.

226. Ms Owusu-Agyei submitted that the Panel must act proportionately striking a balance between the interests of the Registrant and the protection of the public. The Panel must be fair, just, and reasonable. Ms Owusu-Agyei referred the Panel to paragraph 21 of the SG, which emphasises that sanctions are not intended to be punitive. She also reminded the Panel of its obligation under paragraph 22 to explain to the public under reference to the full facts of the case, the process that it has followed in determining any sanction.

227. Ms Owusu-Agyei told the Panel that the Registrant had not been subject to any sanction prior to today. The process had been a difficult one for the Registrant. It has been “… hanging over him” for three years and the process has weighed heavily on his mind.

228. Ms Owusu-Agyei took the Panel in detail to the testimonials provided by the Registrant to the Panel which consisted of many testimonials including those from senior and very experienced professional colleagues and patients. One of the testimonials was from a business owner where the Registrant practices and who was unlikely to offer work to the Registrant if she had any hesitation about his professional probity and competence.

229. Ms Owusu-Agyei reminded the Panel what was said by the court in R (Bevan) v General Medical Council [2005] EWHC 174 (Admin) regarding the importance of testimonials. Ms Owusu-Agyei said that the testimonials provided to the Panel were not simply tributes from the Registrant’s professional colleagues but they include current patients who have expressed absolute confidence in the Registrant. They are all aware of the allegations made against the Registrant.

230. Ms Owusu-Agyei submitted that the Registrant’s dishonesty, as found by the Panel, had to be differentiated from other cases. Dishonesty was not a monolithic concept as was said in the case of Lusinga v Nursing and Midwifery Council [2017] EWHC 1458 (Admin). Dishonesty should be treated in a nuanced way and the different degrees of dishonesty treated separately. In this case there was no financial gain and so less scope to destroy the essential bond of trust and professional confidence.

231. Ms Owusu-Agyei submitted that the Panel should have regard to paragraph 50 of the Registrant’s statement regarding the double-checking process which he has now instituted and paragraph 53, which refers to the extensive refresher training done by him, together with the evidence in support submitted in the Registrant’s bundle. Ms Owusu-Agyei took the Panel to the contents, including the specific, targeted, and relevant courses undertaken by him.

232. Ms Owusu-Agyei submitted that in fact, there are no aggravating factors in this case. There is sufficient remediation already demonstrated and in particular paragraph 43 of the Registrant’s statement. The Registrant set out his understanding of the need for probity in completing patient records, the dangerous consequences for service users if that is not done and the adverse impact on service users generally where that is done. The Registrant understands, Ms Owusu-Agyei said, the consequences of the delay in diagnosis for SUA.

233. Ms Owusu-Agyei submitted that the circumstances of this case reflect only one isolated and exceptional act of dishonesty found proved in an otherwise blameless career extending over 24 years. The Registrant has become a senior practitioner who is sought after for his expertise and is trusted by patients, some of whom report the life-changing improvements to their lives and health as a result of the Registrant’s treatment.

234. The Registrant has a family who depend on him financially and emotionally. Any sanction is likely to have a serious adverse reputational and professional impact on the Registrant’s ability to secure paid work. That will in consequence lead to hardship for his dependent family including his ability to meet his mortgage payments.

235. The Panel accepted the Legal Assessor’s advice. The Panel is aware that the purpose of any sanction it imposes is not to punish the Registrant, although it may appear to have that effect, but it is to;

• protect the public including colleagues and service users,
• to maintain confidence in the Physiotherapy profession, and
• to uphold its standards of conduct and behaviour.

236. The Panel also held in mind that any sanction it imposes must be appropriate and proportionate bearing in mind the misconduct involved which in this case included dishonesty. Any sanction must command the respect and confidence of the public in the Panel’s willingness to uphold the statutory objective of the HCPC. Any sanction however must always be the least restrictive but equally effective alternative to fully protect the public.

237. The Panel considered mitigating and aggravating factors.

Aggravating factors

238. The Panel considered that the aggravating factors were:

i. There was dishonesty in a clinical setting. This was the most important aggravating factor since service users place their faith and trust in registered physiotherapists to behave with complete probity. In particular, there must be scrupulous probity displayed in completing, without falsification, MRI Referral forms.
ii. The MRI Referral form was especially important. It functioned as a patient protection in preventing the patient being exposed to serious risk of harm in a high-energy diagnostic MRI test.
iii. The Registrant created risks of serious harm to SUA - the Panel now knows that SUA was placed at risk of serious and perhaps fatal injury if the surgical clip which was retained in SUAs head had moved during the MRI.
iv. There was an adverse impact on SUA in that a treatment delay was created as a result of the cancelled MRI scan. Alternative treatment could immediately have been explored had the MRI Referral form been completed honestly.
v. The Registrant’s insight was lacking. As the Panel set out in paragraph 219 above, the Registrant blamed SUA for the entries made by the Registrant in the MRI Referral form. Ms Owusu-Agyei maintained this position in her submissions on sanction.

Mitigating factors
239. The Panel considered that the mitigating factors were:

i. The Registrant’s misconduct and dishonesty related to one patient on a single occasion. There was no evidence of repetition.
ii. The Registrant had developing, if self-focused and limited insight. That pointed to the potential for further insight and full remediation.
iii. There was no pattern of dishonesty or misconduct.
iv. The testimonials from professional colleagues and patients were fulsome and unambiguous. In particular, 2 senior members of the physiotherapy profession who fully understood that obligations to patients and the profession held the Registrant in high regard and were satisfied that there were no outstanding concerns regarding his current professional practice. The patient testimonials were helpful. They expressed full confidence in the Registrant’s professional abilities, emphasise the benefits they had from the Registrant’s treatments and their willingness to continue to be treated personally by the Registrant and to recommend him to family members.

240. The Registrant had shown some insight into the importance of honesty in relation to completing patient records and MRI Referral forms and in maintaining the trust and confidence of the public in the profession of physiotherapy. The Registrant had also expressed a measure of insight, in an abstract and conditional way into his responsibility for falsely completing the MRI Referral form and the subsequent risks created for SUA. The insight was based on the fact of the Panel’s findings and not on a recognition by him of his personal responsibility. The Panel recognised that the Registrant is perfectly entitled to maintain, as he did in the submissions advanced on his behalf in mitigation, that SUA had misled the Registrant and not only put himself at risk but had created consequential professional risks for the Registrant who relied on SUA’s answers.

241. The Panel considered with very great care the submissions advanced by Ms Owusu-Agyei that the Registrant should not be penalised for resisting admitting personal responsibility. As the Panel had already said above, it would be unfair to the Registrant to hold his denial of the facts against him. However, where that denial is evidence of an absence of full insight, which creates risks for patients and for the public, the Panel would be wrong to discount that absence of insight.

242. The Registrant’s absence of insight was further illustrated, in the Panel’s mind, by the instructions that he gave to counsel on his behalf that his dishonesty was a secondary finding only and was limited to a few minutes of time. The Panel was unable to reconcile that submission, both with its own findings and with its judgement in relation to the appropriate and proportionate sanction. The Registrant’s dishonesty was not in any sense an academic or logical adjunct to the misconduct of falsely completing important entries to questions not asked in a MRI Referral form. The Registrant’s dishonesty was not in any sense equivalent to momentary thoughtlessness. It was dishonest to deliberately falsify important answers to questions never asked, which created (as it transpired) grave risks for SUA. The dishonesty was not confined to the time taken by the Registrant, to complete the false entries. It extended to causing a false record to be passed to a colleague whose diligence interrupted a potentially catastrophic chain of events. The Registrant’s expressions of recognition, on the assumption that any of these things were true, while valuable evidence of insight, did not extend to ownership of responsibility and acceptance, remorse, and reassurance that there would be no repetition of any form of dishonesty by the Registrant in any professional context.

Sanctions
243. The Panel had regard to paragraph 57 of the SG, which provides in relation to dishonesty:

57. Dishonesty, both in and outside the workplace, can have a significant impact on the trust placed in those who have been dishonest, and potentially on public safety. It is likely to lead to more serious sanctions. The following are illustrations of such dishonesty:
• putting false information in a service user’s record (including in an attempt to cover up misconduct or a lack of competence);
The Panel considered that this passage was directly engaged in its deliberations in the Registrant’s case. It was submitted on behalf of the Registrant that his dishonesty was no more than passive and was simply a logical consequence of the Panel’s findings of fact in respect of the MRI Referral form completion. The Panel considered that the Registrant’s dishonesty was deliberate and conscious.

244. The Panel considered the sanctions in ascending order of restrictiveness, beginning with the consideration of referring the case for mediation. The Panel considered that this was not appropriate in this case. The Registrant’s partial insight was unlikely to alter prior to mediation, in the Panel’s view. Accordingly, mediation, which would require the Registrant actively to engage in all of the issues, was unlikely to be successful. Ms Owusu-Agyei did not make a positive submission in relation to mediation, other than to refer the Panel to it as an option.

245. The Panel decided that taking no action in this case would neither be appropriate or proportionate. In circumstances where findings of current impairment had been made, both on the personal and public components, the public would expect that some action would be taken to protect the public. The Panel considered that if no action were taken, there was a potential for a loss of public trust and confidence in the Physiotherapy profession and in its regulator.

246. The Panel considered but decided against imposing a caution order. The Panel noted that the SG provides at paragraph 101 that a caution order is likely to be an appropriate sanction in cases in which:

• the issue is isolated, limited or relatively minor in nature;
• there is a low risk of repetition;
• the Registrant has shown good insight; and
• the Registrant has undertaken appropriate remediation.

247. The Panel recognised that certain of these factors were directly engaged in the Registrant’s case. However, the Registrant’s actions could not be described as ‘relatively minor’ in nature and in the Panel’s judgement, he has not shown good insight. The Registrant appeared, in his submissions, to write down his dishonesty to being a secondary, logical consequence. Although the Registrant has undertaken appropriate remediation, that remediation is not accompanied by the measure of insight necessary. Accordingly a caution order is not an appropriate and proportionate sanction in this case.

248. The Panel next considered imposing a conditions of practice order. At paragraph 108 of the SG, the Panel is reminded that conditions are less likely to be appropriate in more serious cases, for example, those involving dishonesty. The Panel cross-referred to paragraphs 56 to 58 of the SG in that respect. The Panel recognised that dishonesty is a failing which is particularly difficult to remediate with conditions of practice, even in a single isolated case. It points to an attitude of mind rather than a deficiency in professional competence. The Panel was unable to formulate conditions of practice which would be sufficiently robust as to eliminate the practical possibility of a repeat of dishonesty were he not subject to supervision. In any event, the Panel had no doubt from the Registrant’s own evidence and submissions that he knows precisely what is expected of him in relation to completing patient records honestly. In the circumstances, the Panel decided that a conditions of practice order was neither appropriate nor proportionate.

249. The Panel next considered imposing a suspension order. Ms Owusu-Agyei had not made any specific submissions in relation to this potential sanction. The Panel therefore considered the SG and in particular paragraph 121, which provides:

121. A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the Registrant to be struck off the Register. These types of cases will typically exhibit the following factors:
• the concerns represent a serious breach of the Standards of conduct, performance, and ethics;
• the Registrant has insight;
• the issues are unlikely to be repeated; and
• there is evidence to suggest the Registrant is likely to be able to resolve or remedy their failings.

250. The Panel considered that, although any dishonesty is always serious in a professional context, the single incident of dishonesty in this case could not be regarded as wholly incompatible with the Registrant’s continued professional registration as a physiotherapist. The reasons for the Registrant’s dishonesty were not at all clear. However, the Panel was satisfied that, based on all of the known facts, this was a single and un-repeated act of dishonesty. The potential consequences for SUA were serious. However, taking into account all of the matters known to the Panel including the submissions made on behalf of the Registrant, the Panel considered it was not satisfied that the Registrant was required to be struck off the register.

251. The Panel considered that all of the elements referred to by the SG were engaged in this case. The Registrant’s dishonest actions did represent a serious breach of the standards of conduct, performance, and ethics, but he does have insight. The SG does not make it a condition that insight be full and complete. The Panel considered that it did not have enough evidence to be satisfied that the issues are unlikely to be repeated. Based, however, on the Registrant’s testimonials, the training courses undertaken by him and his expressions of commitment to good practice, the Registrant had provided the Panel with evidence to suggest that he is likely to be able to remedy his failings.

252. In all of the circumstances, the Panel considered that a suspension order was the appropriate and proportionate sanction to impose in this case.

253. A period of suspension would permit the Registrant an opportunity to reflect on his failings and to further develop his insight, so that the public would have full confidence in his return to the register without restriction.

254. The Panel next considered the period that the order should be imposed for.

255. The Panel had regard to paragraph 122 of the SG, which reminded panels that the maximum period for a suspension order is one year. A period less than that can be imposed, provided always that the period is necessary and proportionate in order to ensure that the public is protected.

256. The Panel also had regard to paragraph 123 of the SG, which explicitly set out the long-term consequences that a Registrant may suffer. The Panel recognised the detailed submissions made on the Registrant’s behalf regarding the potentially very significant impact, personally and professionally and financially, that the Registrant may suffer. The Panel understood that the Registrant’s professional reputation may suffer. The Panel acknowledged that there may be consequential impact on the Registrant’s family who, the Panel were told, depend on him financially. The Panel recognised that this process is not in any way a punitive exercise. Full weight must be given to the potential adverse consequences for the Registrant of imposing any sanction on the Registrant’s ability to practise his profession. However, the Panel’s primary focus is to ensure that the public is protected. The Panel was satisfied that the only appropriate and proportionate way to ensure the protection of the public is to impose a suspension order for a period of six months.

257. The Panel considered that the suspension order should be reviewed. The Panel considered that the reviewing Panel may be assisted by the following:

• up to date and detailed reflections by the Registrant on the importance of personal probity in completing patient records.
• The potential impacts on patient safety, public trust and confidence and the declaring and upholding standards, were records completed falsely and dishonestly.
• Reflections by the Registrant on his failings.
• Consideration of the Panel’s findings in relation to the personal component of impairment, including the impact on patients put at risk, the reputation of the profession as a whole and the standards expected of registered physiotherapists

Order: The Registrar is directed to suspend the registration of Mr Puneet Narula for a period of 6 months from the Register on the date this order comes into effect. 

Interim Order

Application

1. Mr Collins, on behalf of the HCPC, made an application for an Interim Suspension Order for a period of 18 months on the grounds that it is necessary for the protection of the public and is otherwise in the public interest. He submitted that this would be consistent with the determination made in respect of impairment and sanction, which references the Registrant’s  incomplete insight and the consequent potential impact on public safety

 

2. Ms Owusu-Agyei on behalf of the Registrant explained that the application is opposed.  Despite the findings today, there has been no interim order in place thus far, and nothing ‘…factually’ has changed today.  There is accordingly no necessity for an interim order.

 

3. The Panel accepted the advice of the Legal Assessor. The Panel has the power to make an Interim Order under Article 31(2) of the Health Professions Order 2001, but this is not an inevitable outcome. The Panel should carefully consider if an Interim Order is necessary and, if so, on which of the statutory grounds. If an Interim Order is required the Panel should apply the principle of proportionality and impose the least restrictive order which is sufficient to protect the public and the wider public interest.

 

Decision

 

4. In its deliberations the Panel noted that the Registrant is currently in practice. An interim order, with immediate effect, will therefore probably have an impact on the patients currently scheduled to be seen by him.  The panel balanced that regrettable impact with its obligations to protect the public.  The Panel was concerned that if the Registrant were to appeal the decision, there would be no protection for the public while the appeal is ongoing. The Panel therefore decided that an Interim Order is necessary for the protection of the public for all of the reasons set out under the decision on sanctions above. The Panel was also of the view that the risks to the public are serious.  Accordingly, an Interim Order was also otherwise in the public interest.

 

5. The Panel considered the option of an Interim Conditions of Practice Order but decided, again for the reasons set out above, that there are no workable conditions that would sufficiently protect the public and would address the risk of repetition. The Panel therefore 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.

 

6. The Panel considered the length of the Order and decided that it was appropriate and proportionate to impose the order for the maximum period of 18 months. In reaching this decision the Panel took into account the realistic length of time that might be required for the final determination of any appeal.

 

Decision

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.

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.

History of Hearings for Puneet Narula

Date	Panel	Hearing type	Outcomes / Status
09/01/2025	Conduct and Competence Committee	Review Hearing	Hearing has not yet been held
03/07/2024	Conduct and Competence Committee	Final Hearing	Suspended
01/05/2024	Conduct and Competence Committee	Final Hearing	Adjourned part heard
17/10/2023	Conduct and Competence Committee	Final Hearing	Adjourned part heard