Preliminary matters

 

Service

1. The Panel saw the service bundle, and, within that, an email dated 29 April 2022 sent by the HCPC to the Registrant at his registered email address which notified him of the dates of the hearing being from 6 to 10 June and 13 June 2022, as well as the time and method of his hearing and that it would be conducted remotely. The Panel saw confirmation that the email had been delivered to the Registrant’s last registered email address.

 

2. The Panel saw a second email to the Registrant dated 1 June 2022 to his last known email address, within the same service bundle, stating that the hearing dates were to be from 6 to 9 June 2022 only.

 

3. The Panel was satisfied with the first email it had seen that the Registrant had been served with proper notice of the originally listed hearing, in accordance with the Health and Care Professions Council’s procedural Rules. These are: Rule 6 of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules), which refers to the method, contents and timing of the Notice of Hearing and Rule 3 of the Health and Care Professions Council (Coronavirus) (Amendment) Rules 2021, amending the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003, which allows for the service of documents via electronic mail.

 

4. The Panel noted that the first date of the Notice letter was in compliance with the HCPC’s service Rules; namely, no earlier than 28 days before this hearing, but that the second did not, especially with the intervening elongated Platinum Jubilee Bank Holiday period this year, being from 2 to 5 June 2022. In effect, therefore, the Registrant barely had one day’s notice of the new listing, albeit that it was within the period of the original set of dates. 

 

4. However, in the Panel’s judgement, the fact of the shortening of the hearing to dates (6 to 9 June 2022) within the original period of the hearing (6 to 13 June 2022) did not nullify the veracity of the original Notice of Hearing, as the original first Notice email encompassed the second set of dates in the second email and there was no unfairness or prejudice to the Registrant.

 

6. Therefore, the Panel determined that there had been good service of the Notice of

 

Proceeding in absence

7. The Panel considered whether to proceed with the hearing in the absence of the Registrant. In reaching its decision, the Panel noted the contents of the HCPC’s bundle “Proceeding in Absence”, in which the Panel noted the Registrant’s responses to the HCPC’s various emails to him with its updating His response emails amounted to five, and they were dated as follows: 30 November 2020, 8 April 2021, 5 July 2021, 28 November 2021 and 13 December 2021. The Panel also took into consideration the Registrant’s resignation letter to his former employer dated 23 June 2020. In addition, the Panel accepted the Legal Assessor’s advice and paid regard to the HCPTS ’Practice Note on “Proceeding in the Absence of the Registrant” and Rule 11 of the Rules, relating to “all reasonable efforts” having been made to serve the Registrant with the said Notice of Hearing.

 

8. The Panel determined that the hearing should proceed in the Registrant’s absence for the following reasons:

 

• The Registrant had good service of the Notices of

 

• Although the Registrant had not responded to the Notice emails dated 29 April 2022 and 1 June 2022, he had responded several times to the HCPC’s updating emails to him during 2020 and 2021 about an earlier listed hearing, and the Panel noted that the Registrant had been robust in his assertion that he had no intention of attending the earlier hearing and that he was content for that hearing to proceed in his absence. He also stated that he had moved abroad, that he had not updated the HCPC with his latest postal address as he was no longer working as an Occupational Therapist and had no intention to do so in the future and that he was not intending to reply to any further communications from the HCPC, save to receive the final hearing outcome.

 

• The Panel determined that the Registrant has voluntarily absented himself from attending the hearing:

 

• The HCPC also has no objection to the hearing taking place;

 

• There is no evidence that an adjournment would secure the Registrant’s attendance at a future date;

 

• There is a public interest in the expeditious disposal of the matter at the listed hearing, particularly as the HCPC witnesses are present and ready to give their evidence;

 

• It is in the interests of the Registrant for the hearing to take place as soon as possible.

 

9. In the Panel’s judgement, it could not have clearer evidence from the Registrant that he has voluntarily agreed for the hearing, whatever date it was listed for, to take place in his absence and that he has actively decided not to engage further in the process. In the Panel’s further judgement, nothing could be gained by adjourning this hearing in the remote possibility that the Registrant might re-engage on some future The HCPC witnesses are present, ready and able to give their evidence. For these reasons, the Panel concluded that it would not be unfair or prejudicial for the Registrant if the hearing was to proceed in hisabsence, but, rather, that it would be unfair and prejudicial for the HCPC to adjourn the hearing and the hearing would be inappropriately delayed.

 

10. Therefore, the Panel determined to proceed in the absence of the Registrant in the public interest, for the reasons set out.

 

Amendments to the Allegation, including the discontinuance of Particular of Allegation 11

11. In reaching its decisions, the Panel addressed separately each of the three amendment applications made by the The Panel noted the proposed amendments for: i) the correction of Service User G’s name,
12. ii) the need to reflect the typographical error in relation to the separation of the Grounds and Impairment in the last two Particulars of Allegation and iii) the need to discontinue Particular of Allegation 11 in light of the non-engagement of Colleague H, whose evidence was the only evidence on the matter.

 

12. The Panel accepted the Legal Assessor’s advice and exercised its own It paid regard to the HCPTS’ Practice Note on “Discontinuance”.

 

13. The Panel concluded that the amendments reflected the evidence now before it, including that Colleague H was the sole and decisive evidence in relation to Particular of Allegation Thus, the Panel determined that the each of the amendments was not unfair or prejudicial to the Registrant.

 

14. For these reasons, the three amendments were permitted and that, accordingly, Particular of Allegation 11 is permitted to be discontinued. 

Evidence

Inadmissible evidence to be disregarded by the Panel:

15. The Panel heard a submission from Ms Sheridan in relation to material within the bundle that, regrettably, had not been redacted out in preparation for the hearing. She prepared a Schedule which the Panel read, which related to Colleagues A’s and Colleague D’s references to extraneous and unnecessary matters not pertaining to the Allegation. These included references to timetabling, annual leave grievances, the Registrant’s attendance at meetings and his cancellation of Occupational Therapy Ms Sheridan asked for these references to be ignored by the Panel as not being relevant to the Allegation and having the potential for being prejudicial to the Registrant, who, although not present or represented, had the right to a fair hearing. She distinguished the facts of the Registrant’s case from the leading case on this issue Enemuwe v NMC [2015] EWHC 2081 (Admin), as being references about internal grievances and of a minor nature, rather than any findings of fact by the former employer (the Enemuwe position).

 

16. The Legal Assessor advised, inter alia, that the Enemuwe case held that: “…normally the findings of fact made at some earlier investigation by another Panel or another person are not admissible in proceedings before this Committee.” and that it would be a matter for the Panel’s judgement if the Registrant’s case was distinguishable, although she did not demure from Ms Sheridan’s submission. The Legal Assessor also concurred with Ms Sheridan’s précis of the caselaw on the professional nature of panels (R (on the application of Mahfouz) v GMC [2004] EWCA Civ 233) and the leading case of Porter v Magill [2001] UKHL 67 on

 

17. The Panel accepted the Legal Assessor’s It accepted Ms Sheridan’s submission that the contents of her Schedule were of no relevance to the Allegation and served no purpose or use for the Panel in its fact finding task. Therefore, as the matters did not relate to any finding/s of fact, they would be excluded and not taken into account by the Panel in its decision making role at any stage.

 

Hearsay evidence

18. The Panel heard an application from Ms Sheridan about the hearsay evidence of four witnesses, Colleagues C, E, F and G, in the Exhibit bundle before it, that required a decision as to their admissibility. She based her application on the cases of El Karout v NMC [2019] EWHC 28 (Admin), R (on the application of Bonhoeffer) v GMC [2011] EWHC 1585 (Admin) and Thorneycroft v NMC [2014] EWHC 1565 (Admin). She submitted that, in respect of Colleagues C, F and G, the Panel’s task might be straightforward, as the contents of each of their evidential material was uncontroversial, and, in the cases of Colleagues F and G, could be viewed as beneficial to the Registrant’s case.

 

19. However, in relation to Colleague E, as a Clinical Psychologist who had performed a Peer Supervision on Colleague A and the Registrant, that evidence was more controversial as it was less favourable to the Colleague E had observed both Colleague A and the Registrant and had taken evidence from others not appearing before the Panel, and therefore, some of Colleague E’s evidence was based on multiple hearsay. Colleague E’s Exhibit evidence was formed from his views of the Registrant’s stance and his attitude towards Colleague A.

 

20. Ms Sheridan submitted that Colleague E’s evidence was not sole and decisive evidence on the issues addressed by Colleague A. Thus, as Colleague A was available to give evidence on the Registrant’s attitude to her, the evidence of Colleague E could be admitted and treated as hearsay, with the usual warning from the Legal Assessor at the appropriate time in relation to the weight to give it, paying regard to the provisions of S.4 of the Civil Evidence Act 1995 and the principles of non-sole-and-decisive evidence from the Thorneycroft

 

21. The Panel accepted the Legal Assessor’s advice, which referred to the El Karout case, the Bonhoeffer case, the Thorneycroft case, the cases of NMC v Ogbonna [2010] EWCA Civ 1216, R v Horncastle [2009] UKSC 14; [2014] ECHR 16/12/14 App No 4184/10; reaffirming Al-Khawaja v UK [2012] 2 Costs O 139, as applied in R v Ibrahim [2012] EWCA Crim 837 (26766/05) and at 26766/05 and 22228/06 (Jan 2009) and the case of R. v Riat (Jaspal) [2012] EWCA Crim 1509, [2013] 1 W.L.R. 2592,[2012] 7 WLUK 276. She advised, inter alia, that the Panel should look to see if there are sufficient counterbalancing measures to permit a fair and proper assessment of the reliability of the evidence; for example, whether the evidence can be reliably tested in cross examination or by questions from the Panel, whether the Panel can be fully advised by the Legal Assessor on how to treat that evidence, or other counterbalancing measures, such as safeguards of …… the Common Law. This includes fairness and taking a measure of the evidence under scrutiny in context.

 

22. The Legal Assessor also advised that, if Colleague E’s hearsay evidence was to be admitted, she would be advising the Panel at the appropriate time at the end of the Facts/Grounds stage, not to treat Colleague E as an expert witness, despite his qualification and part of his evidence referring to his own opinions.

 

23. In relation to Colleague C: The Panel concluded that Colleague C’s comments were nonspecific and appeared to indicate that he had not heard any derogatory language used by the Registrant and he had nothing else to add about the Therefore, the Panel determined that Colleague C’s evidence added nothing and was irrelevant to the Allegation.

 

24. Therefore, for these reasons, the Panel determined to exclude the hearsay evidence of Colleague

 

25. In relation to Colleague F: The Panel noted that Colleague F’s evidence was contextual and that it gave some background to the workings of the Occupational Therapy Department at the Registrant’s former The evidence was not sole and decisive on any aspect in relation to any Particular of Allegation that it might be deemed to address, but the Panel considered that it was useful contextual evidence to the background of the department and that it aligned, to some degree, with some of the Registrant’s defence comments on the contextual background within the department at that time.

 

25. Thus, for these reasons, the Panel concluded that it would be unfair to the Registrant to exclude this evidence and it determined to permit this hearsay evidence to remain. The Panel also concluded that, after the oral evidence from the listed attending HCPC witnesses had been given and when the Panel had been advised in the usual way by the Legal Assessor, at the close of the Facts/Grounds stage, the Panel could give it the weight it considered appropriate at that

 

27. In relation to Colleague G: The Panel noted that Colleague G’s evidence was also contextual and that it gave some background to the workings of the Occupational Therapy Department at the Registrant’s former The evidence was not sole and decisive on any aspect in relation to any Particular of Allegation that it might be deemed to address, but the Panel considered that it was useful contextual evidence to the background of the department and that it aligned, to some degree, with some of the Registrant’s defence comments on the contextual background within the department at that time.

 

28. Thus, for these reasons, the Panel concluded that it would be unfair to the Registrant to exclude this evidence and it determined to permit this hearsay evidence to remain. The Panel also concluded that, after the oral evidence from the listed attending HCPC witnesses had been given and when the Panel had been advised in the usual way by the Legal Assessor, at the close of the Facts/Grounds stage, the Panel could give it the weight it considered appropriate at that

 

29. In relation to Colleague E: The Panel noted that the hearsay evidence of Colleague E, within the Exhibit bundle, was largely based on his opinion of the two witnesses (the Registrant and Colleague A) whom he had interviewed for the Peer Supervision he had done on both the Registrant and Colleague A, both of who were of the same Occupational Therapy Band grade. The Panel further noted that Colleague E’s evidence has references in a number of places to how he “felt” about the interviewee to whom he was speaking, that he had “observed’ them and that he had frequently used the words “I think” when concluding on issues upon which he had opined.

 

30. In the Panel’s judgement, Colleague E’s hearsay evidence was reflective and not factual and the Panel also noted that he was not being called by the HCPC as an expert Thus, the Panel concluded that, without having Colleague E attending at the hearing to answer relevant questions as to the facts about any specific Particulars of Allegation that his evidence might have addressed, the admission of Colleague E’s hearsay evidence would be highly prejudicial and unfair to the Registrant, despite the Registrant’s voluntary absence at this hearing.

 

31. The Panel determined that it was vital to retain a fair hearing and that, by admitting Colleague E’s hearsay evidence, this could not be achieved

 

32. For these reasons, the Panel concluded that the hearsay evidence of Colleague E would be excluded.

 

Private/public hearing

33. Insofar as evidence may impinge on the private and family life of the Registrant, any witness or service user, and pursuant to Rule 10 (1)(a) of the Rules, the Panel determined to permit any part of the hearing to go into private session, should there be any reference to confidential matters relating to the Registrant, any witness or any service

Background

34. The Registrant is a registered Occupational Therapist who was employed by Norfolk and Suffolk NHS Foundation Trust (“the Trust”) as a Band 6 Senior Occupational Therapist and Co-Line Manager (with Colleague A) at the Adult Acute Wards at Wedgwood The Registrant supervised the more junior Occupational Therapists and Activity workers employed within the unit. Prior to that, the Registrant had been the Quality Improvement Lead Occupational Therapist at the Trust.

 

35. In February 2020, a number of the Registrant’s colleagues based at Wedgwood House contacted Colleague J (Ward Manager of Northgate Ward) raising concerns of alleged inappropriate behaviour and inappropriate comments made by the Registrant towards other staff The incidents are alleged to have occurred between September 2019 and February 2020. The inappropriate comments which the Registrant was alleged to have made towards colleagues included alleged sexual and belittling comments to a junior Band 5 Occupational Therapist, a Band 6 Occupational Therapist and to an Activity Worker. The Registrant was also alleged to have disregarded a risk assessment prepared by the Band 5 Occupational Therapist.

 

35. The Trust conducted an internal investigation from 30 March 2020 to 13 July 2020 into the alleged conduct which was led on and after 17 June 2020 by DK. The Registrant gave a statement dated 20 March 2020, in which he denied all the allegations against him, referring to inconsistent management and The Trust investigation was completed on 13 July 2020 with DK’s investigation report (the report). On 22 July 2020, a disciplinary hearing took place at the Trust.

 

37. On 5 August 2020 the Trust submitted an employer referral to the Health and Care Professions Council (HCPC). The matter was heard before the HCPC’s Investigating Committee Panel on 2 September 2021 which found that there was a case to answer. The Investigating Committee Panel referred the original Allegation on to the HCPC’s Conduct and Competence

 

Original Allegation:

As a registered Occupational Therapist (OT70708) your fitness to practise is impaired by reason of misconduct. In that:

 

1. On a date in or around October 2019 you said to Colleague D “it would have been more exciting if you had told him that you were going to be sunbathing topless” or words to that effect.

 

2. On a date in or around October 2019 you said to Colleague D “you haven’t got good rapport with patients.” or words to that effect and/or “you can just flutter your eyelashes or show cleavage to male patients” or words to that effect.

 

3. On a date in or around January 2020 you said to Colleague B, Colleague A and Colleague D ”I bet that was the most delicate training ever” or words to that effect.

 

4. On a date between September 2019 and February 2020 you said to Colleague B “following the booklet is just scripted and crap” and/or “I’m sure my way of working will be different to Colleague A as I don’t use scripted crap” or words to that effect.

 

5. On a date between September 2019 and February 2020 you said to Colleague B “I was going to say something inappropriate then but I won’t” or words to that effect.

 

6. On a date in or around January 2020 you said to Colleague D “don’t off yourself” or words to that effect.

 

7. On a date in or around January 2020 you said to Colleague D “stop ****** smiling then” or words to that effect.

 

 

8. On a date in or around February 2020 you said to Colleague B “oh next week is going to be fun when Colleague Ais back, where were going to have another argument over who is working with Georgia!” or words to that effect.

 

9. On a date in or around February 2020 you referred to Colleague A as a “****” to Colleague B.

 

10. On a date in or around November 2019 you did not consider a patient risk assessment prepared by Colleague D.

 

11. During a supervision session with Colleague H you demonstrated a breakaway technique on Colleague H without adequate regard for her wellbeing.

 

12. Your conduct in relation to paragraphs 1 and 2 above was sexually inappropriate.

 

13. The matters set out in paragraphs 1-12 above constitute misconduct.

 

14. By reason of your misconduct your fitness to practise is impaired.

 

Amended and Re-Amended Allegation (amendments and re- amendments in bold)

As a registered Occupational Therapist (OT70708) your fitness to practise is impaired by reason of misconduct. In that:

 

1. On a date in or around October 2019 you said to Colleague D “it would have been more exciting if you had told him that you were going to be sunbathing topless” or words to that

 

2. On a date in or around October 2019 you said to Colleague D that she was only effective at her job because she could just “ you haven’t got good rapport with ” or words to that effect and/or

“ you can just flutter her your eyelashes or show cleavage to male patients” or words to that effect

 

3. On a date in or around January 2020 you said to Colleague B, Colleague A and Colleague D ”I bet that was the most delicate training ever” or words to that

 

4. On a date between September 2019 and February 2020 you said to Colleague B “following the booklet is just scripted and crap” and/or “I’m sure my way of working will be different to Colleague A as I don’t use scripted crap” or words to that

 

5. On a date between September 2019 and February 2020 you said to Colleague B “I was going to say something inappropriate then but I won’t” or words to that

 

6. On a date in or around January 2020 you said to Colleague D “don’t off yourself” or words to that effect.

 

7. On a date in or around January 2020 you said to Colleague D “stop ******* smiling then” or words to that

 

8. On a date in or around February 2020 you said to Colleague B “oh next week is going to be fun when Colleague A is back, where were going to have another argument over who is working with Georgia Service User G F!” or words to that

 

9. On a date in or around February 2020 you referred to Colleague A as a

“****t” to Colleague B.

 

10. On a date in or around November 2019 you did not consider a patient risk assessment prepared by Colleague D.

 

11. During a supervision session with Colleague H you demonstrated a breakaway technique on Colleague H without adequate regard for her wellbeing.

 

12. Your conduct in relation to paragraphs 1 and 2 above was sexually inappropriate.

 

13. The matters set out in paragraphs 1-12 above constitute misconduct.

 

14. By reason of your misconduct your fitness to practise is impaired.

 

 

The Hearing

38. Three witnesses who had worked with the Registrant at the time of the events, as follows:

 

• Colleague D, a Band 5 Occupational Therapist at the Trust, through her witness statement dated 20 May 2021 and her oral evidence;

 

• Colleague A, a Band 6 Senior Occupational Therapist and Co-Line Manager with the Registrant at the Trust, through her witness statement dated 2 June 2021 and her oral evidence;

 

• Colleague B, an Activity Worker at the Trust, through her witness statement dated 10 May 2021 and her oral evidence;

 

• The written witness statement of OA, Legal Assistant at Kingsley Napley, solicitors for the HCPC, dated 22 June 2021. His evidence was not given orally.

A further application to amend the Allegation:

39. Ms Sheridan sought a further two amendments to the Allegation at the end of the HCPC’s The first reflected the evidence of Colleague D as to the words that were allegedly spoken to her by the Registrant in or around October 2019 and referred to in Particular of Allegation 2. The current structure of that Particular did not reflect her evidence or the proper meaning of it. The second amendment referred to Colleague A having identified the relevant Service User as Service User F not G from the identification key provided to her in her oral evidence.

 

40. The Panel accepted the Legal Assessor’s advice and concluded that both amendments reflected the evidence given more accurately and did not alter the meaning of the two Particulars of Allegation, but, rather, clarified them. The Panel determined that neither amendments were unfair or prejudicial to the Registrant.

 

41. For these reasons, the two further amendments were

 

42. The Panel determined on day four of this hearing that it required to sit on day five to draft the reasons for its decisions. The Panel concluded that the extra day of sitting had been covered by its decision on Service, above, in relation to the relevant Notice of Hearing to the Registrant covering the period from the 6^th to 13^th June 2022.

Decision on Facts 

 

43. In reaching its decisions on the facts, the Panel took into account the written documentation, being the HCPC’s bundle of written witness statements and exhibits and the Registrant’s letter of resignation to the Trust, dated 23 June 2020, together with his interview answers at the Trust to DK dated 3 July 2020, the only other evidence before it from the Registrant, and the oral evidence from the HCPC witnesses. The Panel took into account and accepted the submission from Ms Sheridan and it accepted the Legal Assessor’s advice. The Panel noted that the burden of proof was on the HCPC and that the standard of proof was on the balance of The Panel considered the Particulars of Allegation separately.

 

Particulars of Allegation

 

1: Proved

 

44. The Panel found Colleague D’s evidence on this to be credible, compelling and consistent. From hearing her cogent oral evidence, analysing her written evidence and taking her entire evidence in the round, the Panel judged her to be a genuine and balanced witness, with

 

no motive for lying about the words spoken to her by the Registrant in or around October 2019; for example, the Panel noted that Colleague D had described the Registrant in a complimentary fashion when he had been the Quality Improvement Lead.

 

45. In addition, in the Panel’s judgement, Colleague D had contextualised the comment made by the Registrant by stating that it had occurred immediately after her conversation with the maintenance staff member about her skateboarding, which made it more likely than not that the Registrant said the words

 

46. Moreover, the Panel concluded that Colleague D had been consistent in her evidence, when it compared what she told the Panel in her oral evidence about the matter, with the contents of her email to Colleague J, dated 13 February 2020, which was more contemporaneous to the event and based on her own completely contemporaneous and iterated notes she had written at the time of the event. Her evidence was also consistent with her Trust interview with DK on 25 June 2020, also more contemporaneous than this hearing This also applied to her written witness statement to the HCPC. All four versions described the same words spoken by the Registrant directly to Colleague D, face to face. In addition, the comment made by the Registrant had been corroborated by Colleague A’s written and oral evidence. Therefore, the Panel rejected the Registrant’s denial that he had not spoken those words.

 

2: Proved

 

47. The Panel found Colleague D’s evidence on this Particular of Allegation to be credible, compelling and consistent. From hearing her cogent oral evidence, analysing her written evidence and taking her entire evidence in the round, the Panel judged her to be a genuine and balanced witness, with no motive for lying about the words spoken by the Registrant in or around October 2019. The Panel noted that she had described him in a

 

complimentary fashion when he had been the Quality Improvement Lead, for example.

 

48. Moreover, the Panel concluded that Colleague D had been consistent in her evidence, when it compared what she told the Panel in her oral evidence about the matter, with the contents of her email to Colleague J, dated 13 February 2020, which was more contemporaneous to the event and based on actual contemporaneous iterated notes, with her Trust interview with DK on 25 June 2020, also more contemporaneous than this hearing date and with her HCPC written witness statement. All four versions described the same words spoken by the Registrant. The fact that Colleague B could not corroborate Colleague D as to who was present in the room that day was not an element of the evidence that, in the Panel’s judgement, diluted the force of Colleague D’s direct evidence of the words spoken by the Registrant to her face to Therefore, the Panel rejected the Registrant’s denial that he had not spoken those words. The Panel also rejected the Registrant’s contention that Colleague D had a false memory. The Panel considered that a fanciful suggestion by the Registrant.

 

3: Proved as to Colleagues A and B; Not proved as to Colleague D

 

49. The Panel concluded that the evidence of Colleague B and Colleague A was, in each case, consistent and credible as to the words spoken to them by the Registrant in or around January 2020. Both had given a consistent accounts of the words the Registrant had used on that day to Colleague J in their respective emails (Colleague A on 20 February 2020 and Colleague B on 14 February 2020), in their respective Trust interviews with DK (Colleague A on 22 June 2020 and Colleague B on 24 June 2020) and in their respective HCPC witness These were also consistent with the oral evidence of Colleagues A and B to the Panel.

 

50. In addition, the Panel noted that each witness, Colleagues A and B, had corroborated each other. Despite the fact that the HCPC witnesses had spoken to each other before composing their emails to Colleague J, the Panel concluded that this had not tainted the quality of their individual written and oral evidence nor had it diluted the force of their corroboration of each The Panel was satisfied that the differences in parts of their evidence and the occasional omission of detail in their various written and oral accounts demonstrated that they had not colluded together to present identical versions of the events to add to the authenticity of their individual accounts.

 

51. The Panel noted that Colleague D stated in her oral evidence to the Panel that she had not been present that day when the Registrant spoke the words Therefore, the Panel found this Particular of Allegation proved as to Colleagues A and B only.

 

52. For these reasons, the Panel rejected the Registrant’s denial that he had not spoken those words.

 

4: Proved as to the first set of words spoken. Not proved as to the second set of words alleged to have been spoken:

 

53. The Panel accepted the evidence of Colleague B that the Registrant had referred to the following booklet when facilitating the anger management group as “just scripted and crap”. In the Panel’s judgement, whilst Colleague B had taken the Registrant’s words as referring to her use of the “script” and that it was “crap”, later in her oral evidence, Colleague B had been equivocal about whether the Registrant had been referring to Colleague B’s use of the script as “crap” or whether he meant that the contents of the script were “crap”. The Panel concluded that the words had been spoken by the Registrant in the way alleged, whatever meaning could be attributed to them. Therefore, the Panel rejected the Registrant’s denial that he had not spoken those

 

54. However, in the Panel’s judgement, there was no oral evidence from Colleague B about the second set of words alleged to have been spoken by the Registrant. The Panel concluded that Colleague B, in her HCPC witness statement, had referred to the Registrant’s comment on how Colleagues A and D had run anxiety management groups and how it was different from his style, but that was all she stated that the Registrant had said on this The Panel concluded that there was no evidence that the Registrant had said anything at that time about how Colleague A had worked compared to his style of working. Therefore, the Panel concluded on the balance of probabilities that those latter words or words  to that effect had not been spoken by the Registrant.

 

5: Proved:

 

55. The Panel found Colleague B’s oral evidence on the words spoken by the Registrant to her directly, face to face, to be compelling and The Panel noted that Colleague B, in her written witness statement to the HCPC and in her oral evidence, had consistently used the words “sexually inappropriate” as being the words used by the Registrant at the time. The Panel noted that immediately prior to this Colleague B had sought his advice about an incident when a male patient had been sexually inappropriate with her. After she had told the Registrant about this, the Registrant had laughed and had made the comment: “I was going to say something sexually inappropriate then but I won’t”, or words to that effect.

 

56. The Panel noted that the Particular of Allegation has omitted the word “sexually”. The Panel accepted Colleague B’s consistent evidence on Therefore, the Panel concluded that the Registrant had stated the words as set out in the Particular of Allegation, but also that he had stated to Colleague B directly to her face the additional word “sexually”. In the Panel’s judgement, the fact and context of the use of the word “sexually” by the Registrant here and the Panel’s reasoned decision to

 

include it, going forward in this case, can be encapsulated by the words in the Particular of Allegation “…or words to that effect”.

 

57. Further, for these reasons, the Panel rejected the Registrant’s denial that he had not spoken those

 

6: Proved:

 

58. The Panel found Colleague D’s evidence on this to be credible, compelling and consistent. From hearing her cogent oral evidence, analysing her written evidence and taking her entire evidence in the round, the Panel judged her to be a genuine and balanced witness, with no motive for lying about the words spoken to her by the Registrant in or around January 2020; for example, the Panel noted that Colleague D had described the Registrant in a complimentary fashion when he had been the Quality Improvement Lead. The Panel considered her to be dignified and stoic in her delivery of her oral evidence, especially when speaking of such personally tragic matters.

 

59. In addition, the Panel accepted that it was more likely than not that Colleague D would not have fabricated this comment directly made to her by the Registrant in light of the circumstances of the personal tragedy she had just described to the Registrant.

 

60. Contextually, in Colleague D ’s evidence in her HCPC witness statement, in her Trust interview with DK and in her oral evidence, Colleague D stated that she had approached the Registrant to talk to him about her personal At first, he appeared supportive and concerned about her. Then he changed and had begun to make derogatory comments about her own position having experienced her personal loss, with cynical references to monetary matters. It was at this time that the Registrant made the comment in Particular of Allegation 6.

 

61. The Panel concluded that Colleague D had been consistent in her evidence, when it compared what she told the Panel in her oral evidence about the matter, with the contents of her email to Colleague J, dated 13 February 2020, which was more contemporaneous to the event and based on her own iterated contemporaneous notes she had written at the time of the event, and with her Trust interview with DK on 25 June 2020, also more contemporaneous than this hearing date. This also applied to her written witness statement to the HCPC. All four versions described the same words spoken by the Registrant directly to Colleague D, face to Therefore, the Panel rejected the Registrant’s denial that he had not spoken those words.

 

7: Proved:

 

62. The Panel found Colleague D’s evidence on this to be credible, compelling, and consistent. From hearing her cogent oral evidence, analysing her written evidence, and taking her entire evidence in the round, the Panel judged her to be a genuine and balanced witness, with no motive for lying about the words spoken to her by the Registrant in or around January 2020; for example, the Panel noted that Colleague D had described the Registrant in a complimentary fashion when he had been the Quality Improvement Lead. The Panel considered her to be dignified and stoic in her delivery of her oral evidence, especially when speaking of such personally tragic matters.

 

63. In addition, the Panel accepted that it was more likely than not that Colleague D would not have fabricated this comment directly made to her by the Registrant in light of the circumstances of the personal tragedy she had just described to the Registrant.

 

64. Contextually, in Colleague D ’s evidence in her HCPC witness statement, in her Trust interview with DK and in her oral evidence, Colleague D stated that she had approached the Registrant for to talk to him about her personal At first, he appeared supportive and

 

concerned about her. Then he changed and had begun to make derogatory comments about her own position having experienced her personal loss, with cynical references to monetary matters. It was at this time that the Registrant made the comment in Particular of Allegation 7, said at the same time as the one made in Particular of Allegation 6.

 

65. The Panel concluded that Colleague D had been consistent in her evidence, when it compared what she told the Panel in her oral evidence about the matter, with the contents of her email to Colleague J, dated 13 February 2020, which was more contemporaneous to the event and based on her own iterated contemporaneous notes she had written at the time of the event, and with her Trust interview with DK on 25 June 2020, also more contemporaneous than this hearing date. This also applied to her written witness statement to the HCPC. All four versions described the same words spoken by the Registrant directly to Colleague D, face to Therefore, the Panel rejected the Registrant’s denial that he had not spoken those words.

 

8: Proved:

 

66. The Panel considered that it was more likely than not that the Registrant stated the words alleged directly to Colleague B in or around February 2020, as it was clear that his working relationship with Colleague A had been strained, as stated by all the HCPC The Panel could not discern any reason for Colleague B to have fabricated this comment by the Registrant and he stated it directly to her, face to face. The Panel accepted her evidence on this as credible and the Panel also concluded that Colleague B’s oral evidence was consistent with her written witness statement for the HCPC, her email to Colleague J and her Trust interview with DK. Therefore, the Panel rejected the Registrant’s denial that he had not spoken those words.

 

9: Proved

 

67. The Panel noted that in her email to Colleague J dated 14 February 2020, closer in time to the events, Colleague B had stated, albeit in parenthesis, that she could not remember to whom the Registrant was referring when he used the word “****”. However, in her oral evidence, Colleague B was clear, firm and robust when she stated that she had inferred that the Registrant had been referring to Colleague A as a “****” by reason of the Registrant’s next set of words, following on immediately after the word “****”, which were: “…Speaking of which, has Colleague A spoken to you?”.

 

68. The Panel noted that in her email to Colleague J, Colleague B had asked the Registrant what he had meant, and his answer had been: “oh come on keep up”. The Panel concluded that whilst the evidence did not state in actual words that the Registrant had called Colleague A a “****”, there was clear and unequivocal evidence from Colleague B that the Registrant had referred to Colleague A as a “****’” by indirect speech. The Panel determined that any reasonable person, such as Colleague B, would have reached the same conclusion as she had reached; namely, that the extremely close juxtaposition of the Registrant’s reference to the word “****”, in relation to somebody else, to his immediate uttering by him to Colleague B of the pivotal and important words: “…Speaking of which, has Colleague A spoken to you?”, meant that he was referring to Colleague A as a “****”

 

69. The Panel noted that the other evidence on this Particular of Allegation was from Colleague A in her witness statement where she stated that she had learned from Colleague D about the conversation between Colleague B and the Registrant. The Panel noted that Colleague D had made no mention of this in her witness statement to the HCPC. The Panel concluded that this was multiple hearsay and that, therefore, it would be highly unreliable to rely on this type of evidence in the circumstances of this matter, where Colleague B has provided direct and

 

clear evidence of what the Registrant had said and how, contextually, he had said it.

 

10: Proved

 

70. The Panel noted the Registrant’s only assertion when he was questioned by DK about ignoring colleague D’s patient risk assessment. He stated that he had asked Colleague B to attend the service user’s premises to collect toiletries from them and the Registrant was silent in that interview as to a patient risk assessment for that event. The Panel further noted that Colleague B had agreed in her oral evidence that she had been sent the Registrant to the service user’s premises to collect toiletries and that she had not thought about a patient risk assessment. The Panel noted that Colleague B was an activity worker and not a qualified Occupational For these reasons, the Panel was satisfied that the Registrant had not considered the patient risk assessment prepared by Colleague D.

 

11 as to 1: Proved:

 

71. The Panel noted the context of the words that the Registrant had spoken to Colleague The conversation had commenced with innocent references to Colleague D’s skateboarding plans as she had discussed with a male maintenance staff member, and the Registrant had immediately reposted with the words in Particular of Allegation 1. In the Panel’s judgement, there was no evidence of any other alternative explanation for the Registrant’s immediate utterance of those words, which had turned the conversation to focus on Colleague D’s female physical attributes, than one of sexually inappropriate conduct by the Registrant.

 

72. The Panel also took into consideration that Colleague D had given evidence that she had felt upset by the Registrant’s comment and that she considered that the Registrant had been condescending when he had said the Furthermore, in the Panel’s opinion, Colleague D’s

 

demeanour when giving her oral evidence reflected the level of her distress both at the time and when giving evidence. The Panel considered this to be a reasonable reaction from anybody, irrespective of gender. In the Panel’s judgement, Colleague D had clearly been deleteriously affected by the Registrant’s demeaning words, even after the passing of time.

 

11 as to 2: Proved:

 

73. The Panel noted the context of the words that the Registrant had spoken to Colleague D. The conversation had commenced with a discussion about a male patient having absconded and the Registrant had immediately reposted with the words in Particular of Allegation 2. In the Panel’s judgement, there was no evidence of any other alternative explanation for the Registrant’s immediate utterance of those words, which had, once again, turned the conversation to focus on Colleague D’s female physical attributes, than one of sexually inappropriate conduct by the Registrant.

 

74. The Panel also took into consideration that Colleague D had given evidence that she had felt extremely upset by the Registrant’s comment and that she considered that the Registrant had been condescending when he had said the Furthermore, in the Panel’s opinion, Colleague D’s demeanour when giving her oral evidence reflected the level of her distress both at the time and when giving evidence. The Panel considered this to be a reasonable reaction from anybody, irrespective of gender. In the Panel’s judgement, Colleague D had clearly been deleteriously affected by the Registrant’s demeaning words, even after the passing of time.

 

Decision on Grounds 

75. In reaching its decision on Misconduct, the Panel paid regard to the HCPTS’s Standards of Conduct, Performance and Ethics (the Standards) and the Standards of Proficiency for Occupational

 

Therapists. The Panel accepted the Legal Assessor’s advice. It acknowledged that it must exercise its judgment at this stage of the hearing and that there was no standard of proof.

 

76. In taking all the facts found proved in the round, the Panel concluded that they demonstrated conduct that fell into three main themes:

 

• A theme of inappropriate sexual conduct towards junior and peer colleagues (Particulars of Allegation 1, 2, 5, and 11);

 

• A theme of undermining junior and peer colleagues from his senior position of trust and power, thus having the potential to interfere with Occupational Therapy interventions and putting patients at risk of harm (Particulars of Allegation 4, 6, 7, 8);

 

• A theme of specifically undermining the gender of junior and peer colleagues from his senior position of trust and power (Particulars of Allegation 1, 2, 3, 5, 9).

 

77. In relation to Particular of Allegation 11 as to Particulars of Allegation 1 and 2, found proved, the Panel’s judgement was that this was serious conduct, comprising of sexually inappropriate conduct in the workplace against a vulnerable junior member of staff, which, the Panel concluded, was, in itself, at the top end of gravity of professional When viewed in the round, the entire Allegation reflecting, as it did, in the Panel’s judgment, the Registrant’s modus operandi, was extremely serious and at the top end of the range of deplorable and unacceptable behaviour.

 

78. The Panel concluded that the Registrant’s inappropriate sexually inclined and frequent random comments amounted to deliberate and cynical acts of sexually inappropriate and unprofessional The Panel concluded that the evidence demonstrated that the Registrant had spoken the words concerned in Particulars of Allegation 1 and 2 deliberately.
79. Furthermore, as stated by Colleague D in her oral evidence in relation to the Registrant’s words within Particulars of Allegation 6 and 7, it was “like poking a bear for his own amusement”. This graphic description of how she had felt when he had said the words to her, together with the oral evidence of Colleagues A and B, demonstrated to the Panel how fundamentally the Registrant’s conduct had harmed, undermined, belittled and insulted the female recipients of all his derogatory, cruel and sadistic comments. Furthermore, there was no evidence before the Panel that the Registrant’s conduct would have ceased, save for the courage of his junior and peer colleagues in reporting his unacceptable behaviour to their employer, the Trust, and the Registrant having been investigated by the Trust.

 

80. In relation to Particulars of Allegation 3 to 9, the Panel concluded that the Registrant’s behaviour and comments to junior and vulnerable staff whilst in a position of power and trust, were wholly demeaning, disrespectful, undermining, bullying, unsympathetic and tactless. The Panel further concluded that the Registrant’s conduct was quixotic and unpredictable and had the taint of somebody who was systematically and deliberately abusing his position of power by use of his spoken The female witnesses who were his colleagues described his comments as condescending, belittling and sexist. In the Panel’s judgement, the Registrant’s comments were not comments that an informed member of the public would consider in any way appropriate for a professional to utter in any circumstances.

 

81. The Panel also concluded that, although there was no evidence of actual harm to patients as a result of the Registrant’s acts, in relation to Particulars of Allegation 4, 6, 7, 8 and 10, patients had been put at risk of having substandard care by his comments to Colleagues B and D, as their evidence was that the impact of his words on each of them had undermined their confidence in their abilities as Occupational In addition, the Registrant’s disregard of Colleague D’s

patient risk assessment had the potential of putting at risk of harm both the Service User and Colleague B.

 

82. The Panel concluded that the facts found proved breached the following Standards:

 

• Standard 5: You must not discriminate against service users, carers or colleagues by allowing your personal views to affect your professional relationships or the care, treatment or other services that you provide.

 

• Standard 2.5: You must work in partnership with colleagues, sharing your skills, knowledge and experience where appropriate, for the benefit of service users and carers.

 

• 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 or safety of a service user, carer or colleague at unacceptable risk.

 

• Standard 7.2: You must support and encourage others to report concerns and not prevent anyone from raising concerns.

 

• Standard 7.6: You must acknowledge and act on concerns raised to you, investigating, escalating or dealing with those concerns where it is appropriate for you to do so.

 

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

 

83. The Panel also concluded that the facts found proved breached the following provisions of the Standards of Proficiency for Occupational Therapists:

 

Paragraphs:

 

• Standard 8: be able to exercise a professional duty of care

 

• Standard 3.1: understand the need to maintain high standards of personal and professional conduct

 

• Standard 5.4: recognise the effect of inequality, poverty, exclusion, identity, social difference and diversity on occupational performance

 

• Standard 6: able to practise in a non-discriminatory manner

 

• Standard 7.3: be able to recognise and respond appropriately to situations where it is necessary to share information to safeguard service users or the wider public

 

• Standard 8.1: be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, carers, colleagues and others

 

• Standard 8.4: be able to select, move between and use appropriate forms of verbal and non-verbal communication with service users, carers and others

 

• Standard 8.5: be aware of the characteristics and consequences of verbal and non-verbal communication and how this can be affected by factors such as age, culture, ethnicity, gender, socio-economic status and spiritual or religious beliefs

 

• Standard 9.1: be able to work, where appropriate, in partnership with service users, other professionals, support staff and others

 

• Standard 9.2: understand the need to build and sustain professional relationships as both an independent practitioner and collaboratively as a member of a team

 

• Standard 9.8: understand group dynamics and roles, and be able to facilitate group work, in order to maximise support, learning and change within groups and communities

 

• Standard 15.1: understand the need to maintain the safety of both service users and those involved in their care

 

84. Accordingly, for the reasons outlined, the Panel determined that the facts found proved, taken in the round, amount to misconduct, and that the Registrant’s misconduct falls at the top end of the range of

 

Reconvened hearing – Preliminary matters:

Service  

 

85. The Panel saw an unredacted copy of an email dated 23 June 2022 sent by the HCPTS to the Registrant’s registered email address. The email informed the Registrant of the date and time of this reconvened hearing and that it would be conducted remotely via video link. The Panel also saw an email of the same date from Microsoft Outlook confirming that the email was delivered.

 

86. The Panel was satisfied on the basis of the documents it had seen, that the Registrant had been served with proper notice of today’s reconvened hearing in accordance with the Rules.

 

Proceeding in the absence of the Registrant

87. Mr Foxsmith applied for the case to continue in the absence of the Registrant and submitted the Registrant voluntarily waived his right to attend. Mr Foxsmith reminded the Panel that the Registrant had not attended the earlier part of the hearing and, in earlier correspondence with the HCPC, made it clear that he did not intend to attend. Mr Foxsmith submitted that as there was no evidence of any reason such as illness preventing the Registrant from attending today, his absence was deliberate.  He also submitted that the Registrant had not applied to adjourn the reconvened hearing and that it was unlikely the Registrant would attend at a later date.  Mr Foxsmith referred to the serious nature of the misconduct found in this case and submitted that there was a public interest in the proceedings being concluded.

 

88. The Panel accepted legal advice and considered with care, whether or not it should proceed today in the absence of the Registrant. It was satisfied that by sending the email notice dated 23 June 2022, the HCPTS has taken all reasonable steps to notify the Registrant of the dates of this reconvened hearing. The Panel also noted that the Hearings Officer sent an email dated 15 September 2022 to the Registrant reminding him of those dates.

 

89. The Panel noted that the Registrant did not attend when the hearing commenced in June and referred back to its decision in relation to proceeding in his absence at that time. The Panel noted that the Registrant had been robust in his assertion that he had no intention of attending the earlier hearing and that he was content for the hearing to proceed in his He also stated that he had moved          abroad, that he had not updated the HCPC with his latest postal address as he was no longer working as an Occupational Therapist and had no intention to do so in the future and that he was not intending to reply to any further communications from the HCPC, save to receive the final hearing outcome.

 

90. The Panel was satisfied that the Registrant had voluntarily absented himself from this hearing and thus waived his right to attend. He would have known that the reconvened hearing may proceed in his absence and had not applied for it to be adjourned. Furthermore, he was given a second opportunity to participate in the hearing and had not responded or engaged. The Panel was further satisfied that if the hearing was adjourned, the Registrant would not attend at a later date. 

 

91. The Panel decided it is in the public interest that this hearing continues to its conclusion in the absence of the Registrant.

 

Decision on Impairment

 

92. Before starting the impairment stage of these proceedings, the HCPC submitted an “Impairment” bundle of documents totalling 23 pages which includes the determination of a panel of the Conduct and Competence Committee dated 20-22, 25 November 2019 at a final hearing of a previous Allegation against the Registrant. In that matter, the Registrant was found to have breached professional boundaries with a young female student (Person A) by engaging in an inappropriate and/or sexual relationship with her and by sending text messages of an inappropriate and/or sexual nature to her, and that his conduct was sexually motivated. Having found the facts and statutory ground of misconduct proved, the Panel concluded that the Registrant’s fitness to practise was impaired on the public component alone and imposed a Caution Order for 2 years from 23 December 2019.   Also, in the HCPC’s Impairment bundle was an email from Kingsley Napley LLP on behalf of the HCPC dated 25 May 2022 to the Registrant which notified him that in the event the Panel found the facts and statutory ground proved, the determination of the previous Panel would be put in evidence at the Impairment stage.  The Registrant was invited to make any objections by 30 May 2022.   There was no evidence that the Registrant had lodged any objections.

 

93. In reaching its decision on impairment, the Panel had regard to the Impairment bundle, to the submissions of Mr Foxsmith, and the HCPTS Practice Note “Finding that Fitness to Practise is Impaired”. The Panel received and accepted legal advice. The Panel bore in mind that the purpose of this hearing is not to punish the Registrant for past misconduct but to protect the public against the acts and omissions of those who are not fit to practise.

 

Submissions

 

94. Mr Foxsmith submitted that the Registrant’s misconduct has brought the Occupational Therapy profession into disrepute, and it involves breaches of fundamental tenets of that profession. In relation to the personal component, he submitted that while the Registrant’s misconduct was capable of being remedied, the evidence suggested that the Registrant was not himself capable of remedying it due to attitudinal issues. Mr Foxsmith submitted that there was no evidence that the Registrant had taken any steps to remedy his misconduct.   Similarly, there was no evidence that the Registrant had insight into his misconduct.  Mr Foxsmith submitted that there was a clear risk of repetition in this case.  As support for his submission, Mr Foxsmith referred to the previous finding against the Registrant where the findings of fact involved sexually motivated conduct in breach of professional boundaries with a student for whom he was acting as both a mentor and Educator.  Mr Foxsmith submitted that the Registrant’s fitness to practise is impaired on the personal component.

 

95. In relation to the public component, Mr Foxsmith submitted that whilst the misconduct did not involve service users, it was directed at work colleagues and involved a pattern of appalling behaviour. Mr Foxsmith submitted that the public expects high standards of conduct in registered professionals, as does the HCPC. He submitted that registered professionals are expected to act with decency at all times and that the public should have confidence in the registered professionals who treat them.  Mr Foxsmith submitted that the public is also entitled to rely on a regulatory process to be robust, open and transparent.  Mr Foxsmith submitted that public confidence would be significantly undermined if there were no finding of impairment on the public component given the level of misconduct in this case. 

 

Decision

Personal Component

 

96. In relation to the personal component, the Panel first considered whether the Registrant’s misconduct is capable of being remedied. The Panel found the Registrant’s misconduct is at the top end of the range of misconduct and so it concluded that whilst it might be difficult to remedy this, it is not impossible to do so. However, the Panel noted that there is no evidence that the Registrant has any insight into his shortcomings, or shown any remorse, undertaken any personal reflection, or taken any steps towards remedying it.  The Registrant has not engaged with these proceedings despite being given a second opportunity to do so when the hearing had to be adjourned in June this year before reconvening today.   

 

97. The Panel noted that some of the facts found proved in this case occurred during a period when the Registrant was subject to the previous HCPC regulatory proceedings, whilst other facts found proved occurred in breach of the 2-year Caution Order imposed by the previous Panel. The Panel was concerned that the facts found in this case demonstrate a pattern of sexually inappropriate conduct by the Registrant towards colleagues often in more junior positions. The Panel was particularly concerned that this behaviour was directed at female colleagues.

 

98. The Panel was concerned that there may be an attitudinal problem with the Registrant’s understanding of his misconduct and so, even though the misconduct may be capable of being remedied, the Registrant may be incapable of remedying it. As attitudinal problems do not usually disappear overnight, the Panel considers that there is a real risk of repetition until such time as that problem is resolved. The Registrant in responding to his employer’s internal investigation, denied the allegation and appeared to be deflecting blame onto his female colleagues. The Panel considers this another aspect of the Registrant’s lack of insight.

 

99. The Panel has therefore concluded that because of the Registrant’s lack of insight, lack of remorse, lack of reflection, and failure to provide any evidence that he has taken appropriate steps to remedy his misconduct, there remains a very high risk of repetition in this case.

 

100. The Panel was therefore satisfied that the Registrant’s fitness to practise is impaired on the personal component.

 

 

Public component

 

101. In relation to the public component, the Panel considered whether, given the misconduct found in this case, public confidence in the Occupational Therapy profession and its regulatory body would be undermined if there was no finding of impairment in this case. The Panel has also considered whether it would be failing in its duty to declare and uphold proper standards of conduct and behaviour in that profession if it did not find impairment in this case.

 

102. The Panel’s findings in relation to the statutory ground of misconduct show that it considered that the Registrant’s conduct fell far below those standards expected of registered professionals in their working relationships with colleagues. The Panel has set out above those standards in the HCPC’s Standards of Conduct, Performance and Ethics and the Standards of Proficiency for Occupational Therapists which are engaged and have been breached in this case. The Panel was in no doubt that the Registrant’s misconduct towards his more junior female work colleagues has brought the Occupational Therapy profession into disrepute.

 

103. The Panel was also in no doubt that by making inappropriate sexual comments to junior female colleagues, and/or otherwise humiliated, belittled and embarrassed them, the Registrant has breached a fundamental tenet of his profession to act with decency towards colleagues. By his misconduct, the Registrant has also breached a fundamental tenet his profession that that his conduct should justify the public’s trust confidence in him and his profession.

 

104. The Panel considered that a reasonable and well-informed member of the public would be shocked and appalled if there was no finding of impairment in a case where a registrant in a senior role had made sexually and/or inappropriate comments to colleagues in a more junior role where there was a very high risk of repetition of that conduct. The Panel was satisfied that in order to maintain confidence in the Occupational Therapy profession and its regulator, it must make a finding of impairment on the public component. The Panel was also satisfied that a finding of impairment on the public component is required to uphold proper standards of conduct and behaviour to send out a clear message to the profession that conduct such as this is wholly unacceptable.

 

105. The Panel therefore found, on the public component, that the Registrant’s fitness to practise is impaired.

 

106. Accordingly, the Panel found on both the personal and public component grounds, that the Registrant’s fitness to practise is impaired and that the Allegation is well founded.

 

Decision on Sanction

 

107. In considering the appropriate and proportionate sanction in this case the Panel referred to, and took account of, the HCPC’s Sanctions Policy. The Panel received and accepted legal advice. The Panel was aware that the purpose of any sanction it imposes is not to punish the Registrant, although it may have that effect, but it is to protect the public, to maintain confidence in the Occupational Therapy profession and to uphold its standards of conduct and behaviour. The Panel also had in mind that any sanction it imposes must be appropriate and proportionate bearing in mind the nature and circumstances of the misconduct involved.

 

Submissions

 

108. Mr Foxsmith, as is the HCPC’s usual approach at the sanction stage, did not advance any particular sanction

Decision

 

109. The Panel considered mitigating and aggravating factors. The Panel first looked at the mitigating factors but decided that there were none. The Registrant has not engaged with these proceedings or provided any personal mitigation.

 

110. The Panel considers the following to be aggravating factors:

• a breach of trust in that there was a power imbalance between the Registrant and some of his more junior female colleagues;
• a pattern of escalating inappropriate and sexually inappropriate comments made by the Registrant to his colleagues;
• a lack of any insight by the Registrant into his misconduct and its impact on his colleagues, his profession, and the wider public interest ;
• a lack of remorse or apology;
• a lack of remediation;
• the potential for harm to be caused indirectly to a service user as a result of the impact of his misconduct on his colleagues which resulted either in their reluctance to attend work or on their ability to work safely and effectively;
• a previous finding of impairment for misconduct of a similar nature involving a junior female colleague;
• breach of a Caution Order;
• an attempt to blame colleagues when first confronted by their concerns;
• sexual misconduct.

 

111. The Panel considered the available sanctions in ascending order of seriousness. It decided that to take no action or impose a Caution Order in this case would not be appropriate or proportionate given that the misconduct was not isolated or limited, and nor could it be described as relatively minor in nature. The Panel was not able to conclude that there is a low risk of repetition because the Registrant has yet to engage or show any insight into the causes of his misconduct or the impact of it on his colleagues, his profession and the wider public. The Panel was satisfied that to ensure public confidence in the profession is not undermined, it must consider a more severe sanction.

 

112. The Panel then considered a Conditions of Practice Order and in particular the matters set out in paragraph 106 of the Sanctions Policy which states:

 

“A conditions of practice order is likely to be appropriate in cases where:

• the registrant has insight;
• the failure or deficiency is capable of being remedied;
• there are no persistent or general failures which would prevent the registrant from remediating;
• appropriate, proportionate, realistic and verifiable conditions can be formulated;
• the panel is confident the registrant will comply with the conditions;
• reviewing panel will be able to determine whether or not those conditions have or are being met;
• the registrant does not pose a risk of harm by being in restricted practice”.

 

113. The Panel also had in mind paragraph 109 which states in relation to serious cases and the imposition of a Conditions of Practice Order:

 

“However, it should only do so when it is satisfied that the registrant’s conduct was minor, out of character, capable of remediation and unlikely to be repeated.”

 

114. While the Panel found that the misconduct in this case is capable of being remedied, it did not consider that the Registrant’s conduct was “minor”. The Panel considered that the Registrant had shown no insight into his misconduct and therefore, there remained a very high risk of repetition of the misconduct. The Panel also concluded that it was not possible to devise appropriate, proportionate, realistic, and measurable conditions which would address the serious concerns regarding the Registrant’s inappropriate and sexually inappropriate behaviour in this case.   The Panel had no confidence or expectation that the Registrant would comply with a Conditions of Practice Order.  He has not engaged with these proceedings, and he breached the Caution Order imposed on him in 2019.   Furthermore, the Panel had no information as to the Registrant’s current circumstances.

 

115. The Panel also concluded, given the nature of the misconduct in this case, and its findings as to its gravity, that it would undermine public confidence in the Occupational Therapy profession and in the regulatory process if it were to impose a Conditions of Practice Order.

 

116. The Panel next considered whether to impose a Suspension Order. It had in mind the following guidance from the HCPC’s Sanctions Policy paragraph 121 which states:

 

  “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;
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”

 

117. The Panel had already expressed its view that the concerns in this case are capable of being remedied. The Panel reached the conclusion that whilst the misconduct may be capable of being remedied, it had real concerns that the Registrant is not capable of remedying it.  The Panel considered the purpose of a Suspension Order which was to allow a registrant sufficient time to gain full insight, demonstrate genuine remorse, undertake proper reflection, and take appropriate steps to remedy misconduct so as to reach a position where fitness to practise is no longer impaired.  The Panel concluded that the Registrant’s lack of engagement with the proceedings strongly suggests that he would not embrace that opportunity and so the imposition of a Suspension Order would achieve nothing.  The Panel also concluded that despite being given the opportunity by the previous panel of a 2-year Caution Order, the Registrant had failed to learn from those proceedings where his misconduct was similar to that in this case. 

 

118. The Panel has also concluded that a Suspension Order even for a period of 12 months would not be appropriate or proportionate to maintain public confidence in the Occupational Therapy profession or its regulatory body. Such an Order would not send out an appropriate message to the profession about this type of misconduct. The Panel considered that a reasonable and well-informed member of the public would expect a more severe sanction in circumstances where a practitioner in a position of trust and often in a more senior role effectively targeted his female colleagues by making inappropriate and, in relation to one colleague (Colleague D), sexually inappropriate comments. 

 

119. In these circumstances, the Panel concluded that a Suspension Order is not the appropriate and proportionate sanction in this case.

 

120. The Panel therefore concluded that the only appropriate and proportionate sanction is an order striking the Registrant off the Register. The Panel considered the Sanctions Policy where, in paragraphs 130, it is stated that such a sanction is one of “last resort for serious, persistent, deliberate or reckless acts involving….” e.g., for sexual misconduct.

 

121. The Panel was satisfied that the misconduct in this case came under the section of the HCPC’s Sanctions Policy entitled “Serious Cases” where paragraph 76 states:

 

“Sexual misconduct is a very serious matter which has a significant impact on the public and public confidence in the profession.  It includes, but is not limited to, sexual harassment, sexual assault, and any other conduct of a sexual nature that is without consent or has the effect of threatening or intimidating someone”.   

 

There then follows a list of people to whom the misconduct can be directed including “colleagues”.  

 

122. The Panel concluded that its findings in relation to particular 11 in relation to particulars 1 and 2 of the Allegation, amounted to sexual misconduct within the wording “any other conduct of a sexual nature that is without consent…”. The person to whom the sexually inappropriate comments were directed was Colleague D. She did not consent to the Registrant speaking to her in the way he did. 

 

123. The Panel also had in mind paragraph 131 which states:

 

“A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory profession.  In particular where the registrant:

 

• lacks insight
• continues to repeat the misconduct
• is unwilling to resolve matters.

 

124. The Panel considered that the Registrant’s response when concerns were first put to him and his subsequent lack of engagement with these proceedings, pointed to an attitudinal problem which may mean that he is not only “unwilling” to resolve matters”, but also that he may be incapable of doing so. He had continued to repeat the misconduct and he lacks any insight.

 

125. The Panel considered that the thread running through this case was the lack of respect shown by the Registrant towards female colleagues. Although none of the witnesses referred to feeling “intimidated” by the Registrant’s conduct, the Panel considers that in addition to feeling humiliated, belittled, and embarrassed, what the witnesses described in their evidence could also be considered to be “intimidating”, and was certainly “undermining” of his colleagues.

 

126. The Panel was satisfied for all the reasons set out above that to ensure the public’s confidence in the profession and in its regulatory process, and in order to uphold proper standards of conduct in the profession, it is appropriate and proportionate to order that the Registrant’s name be struck off the register.

 

 

 

Order:  That the Registrar is directed to strike the name of Mr Kyle Robinson from the Register on the date that this order comes into effect.

 

 

Right of Appeal

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

 

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

History of Hearings for Mr Kyle Robinson

Date	Panel	Hearing type	Outcomes / Status
22/09/2022	Conduct and Competence Committee	Final Hearing	Struck off
06/06/2022	Conduct and Competence Committee	Final Hearing	Adjourned part heard
17/01/2022	Conduct and Competence Committee	Final Hearing	Adjourned