Eric Lumortsey

Preliminary Matters

Decision on adjournment

1. Mr Ross referred the Panel to the HCPC guidance which applies to any witness giving evidence from abroad, including the Registrant. There is a process for obtaining permission from the relevant state. In the Notice of Hearing dated 9 April 2024 the Registrant was advised to contact the HCPC if he wished to give evidence from abroad. No criticism is made of the Registrant, but he did not give advance notice that he intended to give evidence from Ghana. If the HCPC does not comply with the process the evidence may be inadmissible and the decision may be subject to judicial review. The Registrant’s intention as part of the hearing is to give oral evidence to the Panel and he is attending the hearing from Ghana.

2. Mr Ross submitted that in these circumstances the options for the Panel would be to adjourn the hearing and to relist it for a different date or to commence the hearing and adjourn it after hearing the evidence of the HCPC witnesses. On behalf of the HCPC Mr Ross submitted that it would be more appropriate to commence the hearing and adjourn it after hearing the evidence of the HCPC witnesses.

3. Mr Ross submitted that this option would be appropriate because three HCPC witnesses were on standby ready to give their evidence. Service User B was a vulnerable witness because of the nature of the allegation. Special Counsel had been appointed for the limited purpose of cross-examination of Service User B (SUB). Mr Ross submitted that it would be preferable for SUB to give evidence and this would spare her the repetition of stress and anxiety of returning to give evidence on another occasion.

4. Mr Ross next referred to the Registrant’s interests, acknowledging that there would be a delay in him giving evidence and that there would be some disadvantage to him in having to come back in several months’ time. The Registrant had expressed his frustration with the stance taken by the HCPC and indicated that he did not want to give oral evidence, but that this may be ill-advised. He submitted that the Registrant should not feel rushed simply to avoid delay.

5. In response the Registrant opposed the HCPC submissions. He stated that he wanted to cross-examine SUB and that he wanted to give evidence and have the opportunity to present his case.

6. The Legal Assessor referred the Panel to the HCPC guidance on giving evidence from abroad and the HCPTS Practice Note “Case Management, Directions and Preliminary Hearings”. The Legal Assessor referred to the case of Secretary of State for the Home Department v Agbabiaka [2021] UKUT 286 which states that for oral evidence the matter is an issue of law for the country concerned. The HCPC therefore takes the position that the process for obtaining consent should be followed. In the light of this background, the Panel will need to consider the options available to it, carefully balancing the Registrant’s interests against the interests of the HCPC, the public interest and the interests of the witnesses.

7. In its deliberations the Panel had in mind the requirement for the hearing to be fair and it was of the view that this required that the Registrant should have the opportunity to give oral evidence in the same way as the HCPC witnesses give their evidence. The Registrant stated that he wished to present his case, and this would involve his right to give oral evidence. He should not be deterred from doing so. Given the legal limitation that the Panel would not be able to accept the Registrant’s oral evidence from Ghana, the Panel decided that it would not be possible to conduct the hearing fairly on this basis.

8. The Panel next considered the options of adjourning the hearing and relisting it for a different date or hearing the evidence of the HCPC witnesses. The Panel decided that the better option was to proceed and hear the HCPC witnesses. It acknowledged that the Registrant opposed the HCPC proposal and that there might be some disadvantage to him if his evidence did not follow immediately after hearing the evidence of the HCPC witnesses. However, the Panel decided that the disadvantage for the Registrant would be reduced by the availability of transcripts which would give the Registrant the opportunity to fully prepare his evidence for the reconvened hearing. The Panel was also of the view that any disadvantage to the Registrant was outweighed by the public interest and the interests of the witnesses. SUB is a vulnerable witness who has prepared to give oral evidence to the Panel on allegations of a personal and sensitive nature. Independent counsel has been instructed and is prepared for cross-examination of SUB. There is a public interest in expedition and in hearing from the witnesses while the recollections are fresh.

9. In all the circumstances the Panel decided that it would be fair and appropriate for the hearing to proceed, but that the Panel would adjourn at the conclusion of the HCPC case for the case to be relisted.

Hearing in private

10. Mr Ross made an application for the evidence of SUB to be heard in private. He submitted that SUB has the benefit of anonymity and that this should be preserved by hearing her evidence in private. He submitted that SUB made a complaint to the police, has the benefit of lifelong anonymity, and that it would be in the interests of justice for her evidence to be heard in private. He also submitted that her evidence should be heard in private to protect her private life.

11. The Registrant opposed the application. He submitted that there had been enough compromises and that another layer of privacy was not required.

12. The Legal Adviser referred the Panel to its powers as set out in the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the “Rules”) rules 10(1) and 10A. She also referred the Panel to the HCPTS Practice Notes “Conducting Hearings in Private” and “Special Measures”. A decision to hear a case in private is one of the possible measures that may be taken for a witness “who in a case involving an allegation of a sexual nature, was the alleged victim”. It is for the Panel to decide whether SUB falls within this category and, if so, whether it would be appropriate to take the suggested measure of hearing the case in private. The Panel also has the discretion to decide to hear all or part of the case in private if in the interests of justice or to protect SUB’s private life.

13. The Panel was of the view that the anonymity of SUB should be protected and that it was appropriate to hear her evidence in private in the interests of justice. In the Panel’s view SUB was a vulnerable witness, as defined in Rule 10A. The Panel decided that special measures were appropriate to enable SUB to give her best evidence and that her evidence should be heard in private. The Panel was also of the view that anonymity would not be sufficient to protect SUB’s private life, given that she would be required to give details of her name for the purpose of giving evidence. The Panel noted the Registrant’s objection, but it decided that it was appropriate for SUB’s evidence to be heard in private. The remainder of the case should be heard in public in accordance with the principle of open justice.

Background

14. The Registrant was employed as a musculoskeletal Physiotherapist at an Ascenti clinic in Mansfield. Ascenti provides physiotherapy services for patients involved in road traffic accidents. SUB attended the Ascenti clinic due to a whiplash injury and attended for treatment with the Registrant on the following occasions:

• 15 March 2022
• 19 April 2022
• 3 May 2022
• 3 November 2022
• 14 November 2022
• 31 January 2023
• 13 February 2023
• 21 February 2023

15. Ascenti received a complaint from SUB alleging that the Registrant made her feel extremely uncomfortable and upset. SUB reported that the Registrant’s behaviour had occurred on at least two occasions, one in 2022 and one on 21 February 2023.

16. ST, an Area Manager for Ascenti, conducted an investigation meeting with the Registrant on 24 February 2023.

17. Mr FH, Area Manager for the West Midlands, held a disciplinary meeting with the Registrant on 9 March 2023.

Witness evidence

18. The Panel heard evidence from SUB. [SUB evidence redacted]

19. The Panel heard evidence from Mr ST, Area Manager at Ascenti. He conducted an initial investigation into SUB’s complaint and included as exhibits to his statements meeting minutes, investigation report and supporting documents.

20. The Panel heard evidence from Mr FH, Area Manager at Ascenti. He held a disciplinary meeting with the Registrant on 9 March 2023 and exhibited the meeting minutes.

21. The Panel heard oral evidence from the Registrant. He firmly denied that there had been physical contact between himself and SUB as she described.

22. The Registrant told the Panel that SUB had received treatment from other physiotherapists dating back three years before his first assessment session. The Registrant said that in his first session with SUB he carried out an assessment. SUB had a whiplash injury and she described a pins and needles sensation which she said was constant and more acute when she was resting. The Registrant said that his first three treatment sessions did not involve any manual therapy and that he talked to SUB about stress management, relaxation, and advised SUB on exercises. The Registrant referred to his clinical records and said that they confirmed that there was no manual therapy in the first three treatment sessions. The Registrant said that he then recommended that SUB should revisit the Consultant who had referred her and there was a gap in treatment for 5-6 months.

23. The Registrant said that at the session SUB booked for 21 November 2022 he was taken aback when he asked SUB the open question of how should the treatment proceed and she replied “what did the Consultant say”. He said that this was not the response from SUB that he expected. The Registrant explained that there were indicative factors indicating that cervical traction may be beneficial for SUB. He explained that cervical traction involved the patient lying in a supine position and that with his hands on either side of SUB’s neck he pulled gently backwards using his body weight. The Registrant stated that he continued with this treatment in the next sessions because traction is a form of treatment that needs to be consistently repeated over a period of time for a patient to gain the benefit of relief from symptoms.

24. The Registrant explained that traction required SUB to be in a supine position and that traction requires the gentle pull to be directed parallel to the patient. The patient therefore lies horizontally and the head should not be propped up. The Registrant said that he adjusted the bed to his waist level to carry out the traction. He said that there were four pillows in the room and one of them was on the bed for SUB’s comfort.

25. The Registrant said that if there was any contact with SUB’s head it must have been the zipper on his jacket.

26. The Registrant firmly denied that he had any sexual motivation and that he wished to clear his name. He said that he thought he could make improvements to aid the better understanding of the patient.

27. In answer to cross-examination questions the Registrant said that the tests that he recorded in his clinical notes for first treatment session on 15 March 2022, including the Spurling test, were conducted with SUB in a sitting position and that she was not lying on the bed.

28. The Registrant was also asked questions about the treatment session on 21 February 2023. He said that for treatment SUB’s head was aligned with the top of the bed. He was asked about the notes of his interview with Mr ST where he stated that the bed was at “crotch level” and he accepted the possibility of contact between his crotch and SUB’s head. The Registrant was also asked to comment on the fact that he did not mention the possibility that his zipper may have come into contact with SUB’s head in his first interview with Mr ST. The Registrant said that this was the first time he had been asked about the complaint and that he did talk about the zipper in his meeting with Mr FH.

29. The Registrant denied that he made contact with SUB in the manner she described. He said that he had no motivation for such behaviour and no reason to behave in that way.

30. In answer to a question from the Panel, the Registrant said that as a male Physiotherapist he had not considered steps he might take to avoid accidental contact with female patients. He said that it was not something that he had considered and that he had not considered using a barrier. He said that the pillow was for SUB’s comfort and if it acted as a barrier that was a plus and not something that he was considering.

31. The Registrant was also asked about the treatment given to SUB other than traction. The Registrant said in the treatment session on 21 February 2023 that he did carry out stretches and rotation of SUB’s neck and this would involve moving SUB’s head from side to side. However, he said that this did not involve him placing his hands on either side of SUB’s neck. One hand would be on SUB’s shoulder and the other on the side of her head for a lateral stretch.

Submissions

32. Mr Ross invited the Panel to find the facts proved. He submitted that many details were non-contentious and there was a high degree of consistency between SUB and the Registrant, other than the nature of the contact. Mr Ross invited the Panel to prefer the evidence of SUB and to infer that the treatment was sexually motivated.

33. The Registrant submitted that the Panel should not accept SUB’s account. He submitted that her account of the first treatment session was inconsistent with his contemporaneous treatment notes. He submitted that the Panel should not accept the evidence of SUB because she was unable to see and was entirely reliant on her sense of touch on her head. He submitted that it was not credible that SUB would be able to sense and describe the nature of the touch in so much detail. The Registrant also submitted that he had no sexual motivation as alleged.

Decision on Facts

34. The Panel accepted the advice of the Legal Assessor. She reminded the Panel that the burden of proof is on the HCPC and the standard of proof is the balance of probabilities. Her advice included reference to case law including R(Dutta) v GMC [2020] EWHC 1974 and Joseph v General Medical Council [2022] EWHC 3345. The Legal Assessor also referred the Panel to the HCPC Practice Notice “Making decisions on a registrant’s state of mind” which includes guidance on sexual motivation and whether a registrant’s conduct was “sexual”.

35. The Panel noted that the Registrant is of good character in that there are no previous regulatory findings. Good character may be relevant to the assessment of credibility and to the findings as to the Registrant’s state of mind. Having considered the evidence in the case as a whole, the Panel considered that this factor bore little weight.

36. In its deliberations the Panel considered the contemporaneous documents, particularly the patient notes made by the Registrant. The Registrant’s notes were sparse and parts of them were entered as part of a selection from a drop-down menu rather than being typed by the Registrant. The Registrant told the Panel that this was the system in place at Ascenti, and that he did not have sufficient time in a treatment session to add more detail. The use of the drop-down menus led to some contradiction within the notes, and limited detail as to the nature of the treatment or assessment provided by the Registrant. An example is that there was no reference to traction under the heading of treatment in the patient records for the treatment session on 21 February 2023.

37. Given the sparseness of the notes, the Panel was cautious in its assessment of them, and formed the view that the notes should not be treated as a comprehensive record of the entire treatment session. Having given this matter careful consideration, the Panel was not of the view that the contemporaneous notes undermined SUB’s credibility. The notes recorded that in the first three treatment sessions the Registrant did not carry out any manual treatment for SUB. The notes also recorded two tests carried out by the Registrant as part of his objective assessment. The Panel accepted that these two tests were carried out while SUB was seated, as stated by the Registrant. However, the Registrant’s notes were not comprehensive and SUB may not have been able to distinguish between assessment and treatment. The Panel considered that SUB’s description of the first session of treatment was not inconsistent with the patient notes because further assessment tests while SUB was lying on the bed in a supine position were likely to have been conducted by the Registrant as part of his objective assessment.

38. In its assessment of SUB’s evidence the Panel noted that she was clear and certain about what had happened and that something untoward had occurred on two occasions, but in cross-examination she was uncertain about the date of the first untoward event and whether the early session that she described had included treatment. When questioned again by the Panel she gave a clear account that in the earlier session she was lying in a supine position and that she moved herself further down the bed because of the physical contact between her head and the Registrant.

39. The Panel was of the view that some confusion in response to Ms Yeghikian’s questions did not undermine SUB’s credibility. The task of the Panel is to consider whether the core allegations are true, and in respect of this, SUB’s evidence was clear and consistent.

40. The Panel did not accept that SUB would be unable to sense the nature of the contact from the Registrant because the contact was only through her head and she was sensing rather than seeing the contact. SUB gave credible evidence that she would be able to tell the difference between the Registrant’s hip and his crotch area, and that she knew that the contact was not with a bone.

41. The Panel found that SUB was a straightforward witness. She was not evasive and did not embellish her evidence. It found nothing to suggest that she had any animosity towards the Registrant. She reported the matter to the police, which indicated the seriousness with which she viewed the Registrant’s behaviour.

42. The Panel noted that the Registrant has been consistent in denying that there was contact between himself and SUB as she described. The explanation he put forward for SUB’s account was that his zipper may have made contact with her head.

43. The Panel found that there were inconsistencies in the Registrant’s evidence. For example, there was an inconsistency as to the height of the bed. In his interview with Mr ST the Registrant stated that the bed was at crotch level and that the bed “can’t come up to belly button level”. In his interview with Mr FH and in evidence to the Panel the Registrant said the bed was at waist height. There was also an inconsistency with regards to the Registrant’s use of a pillow. In his evidence to the Panel the Registrant said that SUB’s head was on a thin fluffy pillow and this was for her comfort. When he was asked about his responsibilities as a male physiotherapist, the Registrant said that he had not considered this issue or the possibility of using a pillow as a barrier. In his interview with Mr ST the Registrant was asked whether the pillow was a barrier in the session. He said that he uses a pillow in every session and that there is always “that barrier”, referring to the pillow.

44. The Panel did not consider that the Registrant’s suggestion that the zipper of his jacket had made contact with the Registrant’s head was a plausible explanation for the contact that she described. If the Registrant was wearing a jacket, any contact between the Registrant’s zipper and the Registrant would have been momentary and accidental, rather than the pattern of movement described by SUB.

45. Having heard the evidence of the witnesses together with the documentary evidence, the Panel preferred the evidence of SUB.

46. The Panel found particular 1 proved by the evidence of SUB.

47. The Panel found particular 2 proved by the evidence of SUB.

48. The Panel next considered whether the Registrant’s conduct in particulars 1 and 2 was “sexual” and/or “sexually motivated”.

49. The Panel acknowledged that there may be occasions when a Physiotherapist’s body, and potentially their crotch, may accidentally come into contact with a patient’s head when carrying out certain forms of assessment and/or treatment. It therefore carefully considered the possibility that the Registrant’s conduct in particulars 1 and 2 was accidental.

50. The Registrant took the opportunity to describe to the Panel the traction treatment that he carried out for SUB and he was invited by the Panel to describe any other type of treatment he carried out on 21 February 2023. The traction treatment, as described by the Registrant, involved a gentle pull to SUB’s head and did not involve moving her head from side to side. The lateral stretches did involve the Registrant moving SUB’s head from one side to the other, but, as described by the Registrant, they did not involve the Registrant holding one hand to each side of SUB’s head as she described.

51. The Panel has also rejected the Registrant’s explanation that his zipper rather than his crotch made contact with SUB’s head.

52. The contact described by SUB between her head and the Registrant’s crotch was not a single instance of brushing against the crotch area. The contact did not occur at each treatment session, but it did occur at more than one (Allegation 1 and Allegation 2). On 21 February 2023 SUB described the contact as continuing throughout the treatment session, which the Registrant recorded in his notes as lasting 15 minutes. SUB’s evidence was that the Registrant’s contact with her head was intentional.

53. Having carefully considered the evidence, the Panel concluded that the Registrant’s behaviour was deliberate. As it involved deliberate rubbing of his crotch against SUB’s head the Registrant’s conduct was “sexual”. The Registrant’s behaviour in particular 1 is related conduct, and the Panel drew the same conclusion.

54. The Panel next considered whether the conduct was “sexually motivated”. The Panel considered the Registrant’s previous good character, but it could give little weight to it, because of the nature of the Registrant’s behaviour as described by SUB. SUB’s evidence was that at the treatment session on 21 February 2023 she could feel the Registrant’s penis through his trousers. The contact she described is overtly sexual. There was no clinical justification for the conduct, and none of the treatment described by the Registrant could explain SUB’s account. As an experienced Physiotherapist the Registrant would understand the need to protect the dignity of his patient and ways in which he should ensure that he did so.

55. The Panel had regard to the HCPTS Practice Note “Making decisions on a registrant’s state of mind”. A finding as to the Registrant’s state of mind is something which can only be proved by inference or deduction from the surrounding circumstances”. Paragraph 10 of the Practice Note summarises the principle in the case of Haris v GMC [2021] EWCA Civ 763.
“The best evidence of a registrant’s motivation is their behaviour. If the conduct is overtly sexual in nature, the absence of a plausible, innocent explanation for the conduct will invariably result in a finding of sexual motivation”.

56. The Panel has concluded that the conduct in Allegations 1 and 2 is overtly sexual in nature because it involved the Registrant deliberately rubbing his crotch against the SUB’s head, or rubbing SUB’s head against his crotch. The Panel considered all the surrounding circumstances and found no plausible, innocent explanation for this conduct. The Panel therefore inferred that the Registrant’s conduct was in pursuit of sexual gratification.

57. The Panel therefore found particular 3 proved.

Decision on misconduct

58. The Panel heard submissions from Mr Ross. He invited the Panel to find that the statutory ground of misconduct had been established. He submitted that the facts found proved by the Panel were serious breaches of the relevant standards in force at the time.

59. The Registrant made no submissions on the issue of misconduct.

60. The Panel accepted the advice of the Legal Assessor. Her advice included reference to the cases of Roylance v GMC [2000] 1 AC 311 and Nandi v GMC [2004] EWHC 2317 (Admin).

61. 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 professional judgement. It bore in mind that breaches of the Standards did not automatically result in a finding of impairment.

62. The Panel considered that the Registrant’s conduct fell significantly below the standards to be expected of a registered Physiotherapist. In particular the Panel considered that the Registrant was in breach of the following standards:

Standards of Conduct, performance and ethics (2016)

Standard 1: Promote and maintain the interests of service users and carers

Treat service users and carers with respect
1.1 You must treat service users and carers as individuals, respecting their privacy and dignity.

Maintain appropriate boundaries
1.7 You must keep your relationships with service users and carers professional

Standards of Proficiency for Physiotherapists (2013)

Registrant Physiotherapists must:

2. Be able to practise within the legal and ethical boundaries of their profession
2.1 Understand the need to act in the best interests of service users at all times
2.3 Understand the need to respect and uphold the rights, dignity, values and autonomy of service users including their role in the diagnostic and therapeutic process and in maintaining health and wellbeing

63. The Panel also considered that it is a fundamental tenet of the profession that Physiotherapists maintain professional boundaries and maintain the dignity of service users. The Registrant’s sexually motivated and sexual conduct was a breach of that fundamental tenet. Sexual conduct is a very serious matter which has a significant impact on the public and public confidence in the profession.

64. The Panel has concluded that the Registrant’s conduct was deliberate and there is therefore a high degree of culpability. SUB was in a vulnerable position as a patient receiving physiotherapy treatment and the Registrant’s conduct breached the trust that she placed in him as a health professional. The Panel noted that the Registrant’s conduct caused actual harm to SUB. SUB described that she felt very shaken after the appointment. She also stated that the incident made her feel wary about going to see a male physiotherapist again. The Panel concluded that the Registrant’s conduct would be regarded as deplorable by fellow practitioners and members of the public.

65. The Panel decided that both individually and cumulatively the Registrant’s conduct found proved in particulars 1, 2 and 3 of the Allegation fell seriously short of the standards to be expected of a registered Physiotherapist and amounted to misconduct.

Decision on Impairment

66. The Panel was invited by Mr Ross to consider whether, in its judgment, the Registrant’s fitness to practise is impaired at today’s date. Mr Ross submitted that the Registrant’s misconduct was serious and while it might be open to remediation, there was no evidence of remedial action. Mr Ross invited the Panel to conclude that there is a risk of repetition and the Panel should consider what might happen in the future in such a situation and whether the Registrant’s attitude is conducive to reflection or learning. In relation to the public component, Mr Ross submitted that members of the public are at risk due to the potential repetition and that public trust and confidence would be undermined in a finding of impairment were not made.

67. The Registrant was given the opportunity to give evidence or make submissions, but chose not to do so at this stage.

68. The Panel recognised that its findings in relation to misconduct did not necessarily mean that the Registrant’s fitness to practise is impaired.

69. The Panel accepted the advice of the Legal Assessor and took account of the guidance in the HCPTS Practice Note on Fitness to Practice Impairment last updated in November 2023.

70. The Panel considered the personal element of impairment. The Registrant has denied the allegation and he is entitled to do so. The Panel drew no negative inference from the fact that the Registrant has denied the facts of the allegation. As explained in the Practice Note Registrants may be able to demonstrate insight, notwithstanding their denial of the allegations. The Panel carefully considered whether the Registrant had demonstrated any level of insight either at the time of the events or subsequently. The Panel noted that in his interview with Mr FH the Registrant stated in relation to SUB “I’m sorry she feels so bad about me and this is the last thing I want to be talking about”. At other points within the interview the Registrant expressed his frustration that he did not want to be “answering to something like this”. The Panel’s assessment was that in his interviews the Registrant’s focus was on the unfairness of the allegation and its consequences for himself, rather than on any concern for SUB.

71. The Registrant did not place any evidence before the Panel that he has reflected on the allegation made against him and any steps that he might now take as a male Physiotherapist to ensure that he fully protects the dignity of female patients. When the Panel asked the Registrant about his role as a male physiotherapist and how he might avoid accidental contact, he said that he had not considered the issue. The Panel found no evidence that the Registrant has an understanding of the importance of maintaining professional boundaries, particularly with female patients, and the steps that he might take to enable him to do so. The Panel acknowledged that the Registrant has had little time to read and reflect on the decision made by the Panel, but there was nothing in the Registrant’s response to indicate that he is currently able and willing to engage in such reflection.

72. The Panel concluded that the Registrant had not shown any meaningful insight into the impact, harm, and effects of his misconduct.

73. The Panel was of the view that the Registrant’s conduct is attitudinal in nature and is therefore difficult to remediate. The Panel was of the view that with careful thought, reflection and targeted action the misconduct may be remediable. However, there was no evidence that the conduct has been remedied. Given the absence of remedial steps and the absence of meaningful insight the Panel found there is a real risk that the Registrant would repeat his misconduct. If he did so, there was the potential for harm to service users and to a further adverse diminution of the public’s trust and confidence as a consequence.

74. In these circumstances, the Panel concluded that the Registrant’s fitness to practise is impaired on the personal component.

75. The Panel next considered whether, given the nature, circumstances, and gravity of the Registrant’s misconduct, public confidence in the Physiotherapy profession and the HCPC would be undermined if there was no finding of impairment. The Panel also considered whether it would be failing in its duty to declare and uphold proper standards of conduct and behaviour if there was no finding of impairment in this case.

76. The gravity of the Registrant’s conduct is that it is sexual conduct, sexually motivated conduct, and a breach of the trust placed in him by SUB. It also caused actual harm to SUB as explained in the Panel’s decision on misconduct. The Panel has found that there is a real risk of repetition and consequently an ongoing risk to members of the public. The Panel had no doubt that the Registrant’s conduct has brought the profession into disrepute and that it has also breached a fundamental tenet of that profession, namely that a Registrant must respect the dignity of service users. An informed member of the public would be shocked if in these circumstances if the Panel were to conclude that the Registrant’s fitness to practise is not impaired.

77. The Panel therefore concluded that the Registrant’s fitness to practise is impaired on the public component.

Decision on Sanction

78. Mr Ross referred the Panel to the HCPC Sanctions Policy as important guidance on relevant factors for the Panel to consider. He referred the Panel to each available sanction and the guidance for each sanction.

79. The Registrant submitted that the conduct found proved by the Panel had not taken place and that he had no sexual intention or motivation. He said that he had shown respect and dignity towards SUB as with all his other patients. He thanked the Panel for listening to his story. He said that he had already experienced two years of punishment while subject to an Interim Suspension Order and that his life had been taken away from him because of an allegation he knew next to nothing about. He said that he felt sorry for SUB that she thinks so badly of him.

80. The Registrant is not represented and the Panel decided it would be appropriate to give him the opportunity to answer questions. In response to a question about whether he has learned anything and whether he will make any changes to his clinical practice as a Physiotherapist, the Registrant said that he would make improvements to his record keeping. He would also wrap himself with a pillow when treating female patients. He said that if he was concerned about his interactions with a patient he would not rely on his conflict resolution skills, but would ensure that a chaperone was present or would refer the patient to another Physiotherapist.

81. In response to a question about his understanding about why the Panel considered that the behaviour found proved was serious, the Registrant said that if the alleged conduct took place, he understood very well how it affects the reputation of the profession and public confidence in the profession. He said that if there is an abuse of a female service user it brings the profession into disrepute.

82. The Panel accepted the advice of the Legal Assessor. In considering the appropriate and proportionate sanction, the Panel took account of the HCPC’s Sanctions Policy. The Panel recognised that the purpose of any sanction it imposes is not to punish the Registrant, although it may have a punitive effect. Sanctions are imposed only for the purpose of protecting the public, maintaining the trust and confidence in the profession, and declaring and upholding professional standards. 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 case.

83. The Panel noted paragraph 76 of the Sanctions Policy which states that “sexual misconduct is a very serious matter which has a significant impact on the public and public confidence in the profession…Because of the gravity of these types of cases, where a panel finds a registrant impaired because of sexual misconduct, it is likely to impose a more serious sanction. Where it deviates from this approach it should provide clear reasoning.”

84. The Panel also considered that paragraph 67 of the Sanctions Policy was relevant. This addresses abuse of professional position. There was an unequal balance of power between the Registrant and SUB, in favour of the Registrant.

85. The Panel considered the mitigating and aggravating factors.

86. The Panel considered the mitigating factors and noted that there are no previous regulatory findings against the Registrant. The Registrant has attended the hearing and engaged, as is his professional obligation. The Registrant’s engagement was respectful towards the Panel at all times.

87. The Panel considered the Registrant’s responses at sanction stage. The Registrant told the Panel that he respected the dignity of service users, but he did not elaborate on how he would do so, other than the step of wrapping himself with a pillow. In the Panel’s view the Registrant’s answer did not demonstrate any level of understanding of the importance for a Physiotherapist in respecting the patient’s physical space and the practical steps Physiotherapists routinely take in their clinical practice to ensure that they maintain professional boundaries with their patients at all times.

88. The Registrant expressed regret, as he did in his interview with Mr FH, that SUB felt as she did, but he did not demonstrate any empathy towards SUB or understanding of the impact of the conduct found proved by the Panel. The Registrant did demonstrate some insight into the significance of the Panel’s finding in respect of its impact on public confidence in the profession, but the Panel’s overall conclusion was that the insight demonstrated by the Registrant was very limited.

89. The Panel considered the aggravating factors. The Registrant has not provided the Panel with any evidence of remorse, remediation, or of reflection. The Panel noted that the Registrant told it that he has been subject to an Interim Suspension for a significant period of time, but the Panel found that this time had not enabled him to reflect on the serious nature of the regulatory concern. The Registrant’s actions caused harm to Service User B as explained in the Panel’s decision on misconduct. The Registrant’s conduct was sexually motivated, and such conduct damages public confidence in the profession.

90. The Panel considered the option of taking no action. This is an exceptional outcome, and the Panel was of the view that the circumstances were not exceptional. The Panel decided that the option of taking no action was not sufficient to protect the public or to uphold the public interest.

91. The Panel next considered the option of a Caution Order. The Panel considered the guidance in the Sanctions Policy that “A Caution Order is an appropriate sanction for cases, where the lapse is isolated, limited, or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action.”. The Panel considered that these features were not present and that a Caution Order would not reflect the seriousness of the findings in this case. The Panel was also of the view that public confidence in the profession would be undermined if the Registrant’s behaviour were dealt with by way of a Caution Order.

92. The Panel next considered whether to place conditions on the Registrant’s registration. The Panel was of the view that the Registrant’s misconduct, which is behavioural and attitudinal in nature, was conduct that is difficult to remediate by conditions of practice. This case involves sexual misconduct and the Sanctions Policy at paragraph 108 states that conditions are less likely to be appropriate in such cases. In this case the Panel was not of the view that the Registrant’s conduct was minor, and the Panel has also concluded that there is a real risk of repetition. The Panel therefore determined that conditions of practice would not be sufficient to protect the public and to uphold the public interest.

93. The Panel next considered a Suspension Order. The Panel had regard to paragraph 121 of the Sanctions Policy which provides:

“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.”

94. Having taken account of those factors, the Panel considered that a Suspension Order was not the appropriate order in this case. The Panel considered that there is a real risk of repetition and the insight demonstrated by the Registrant was very limited. The Panel was of the view that the misconduct is potentially capable of remediation. The Panel considered the entirety of the evidence and the Registrant’s submissions at sanctions stage and was not persuaded that the Registrant is likely to be able to remedy his failings. The Panel was not reassured that the Registrant is sufficiently committed to the process of reflection and self-criticism that would be required to enable him to remediate his practice.

95. Given the seriousness of the Registrant’s conduct, his very limited insight and commitment to remediation demonstrated by him in these proceedings, the Panel was of the view that public confidence in the profession and regulatory process would be undermined if a suspension order was imposed.

96. The Panel next considered a Striking Off Order.

97. The Panel was aware that this was a sanction of last resort, as set out in paragraph 130 of the Sanctions Policy for serious, persistent, deliberate, or reckless acts involving, among other things, sexual misconduct and/or abuse of professional position.

98. Paragraph 131 of the Sanctions Policy 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 process. In particular where the Registrant:

• lacks insight
• is unwilling to resolve matters

99. In its decision on current impairment the Panel assessed the nature and gravity of the Registrant’s misconduct. The gravity of that conduct, including the impact on SUB, was such that it undermines public confidence in the profession. The Panel was satisfied, based on the Registrant’s lack of insight, the nature and gravity of the misconduct, and the Panel’s conclusion that the Registrant is unlikely to be able to resolve matters, that a striking off order was necessary to protect the public, uphold the standards for members of the profession, and to maintain public confidence in the profession.

100. In reaching this conclusion Panel did not disregard the mitigating factors or the Registrant’s interests. However, the Panel was of the view that the mitigating factors and the Registrant’s interests carried little weight when considered in the context of the gravity of the misconduct and its impact on public confidence in the profession. The Panel reminded itself of the guidance in the case of Bolton v Law Society [1994] 2 AER 486 that:

“A profession’s most valuable asset was its collective reputation and the confidence which that inspired. Since orders were not primarily punitive, mitigating had less effect than in criminal cases….The reputation of the profession was more important than the fortunes of any individual member. Membership of a profession brought many benefits, but that was part of the price”

101. The Panel therefore decided that the appropriate and proportionate sanction is a Striking Off Order.

ORDER: The Registrar is directed to strike the name of Mr Eric Lumortsey from the Register.

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

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

Interim Order
Application

1. Mr Ross made an application for an Interim Suspension order for 18 months to cover the appeal period and allow for any appeal to be disposed of. He submitted that an interim order was necessary for the protection of the public and was otherwise in the public interest. In support of his contention that those grounds are satisfied he relied on the Panel’s decision made in relation to the substantive issues.

2. The Registrant made no submissions in response to Mr Ross’s application.

3. The Panel accepted the advice of the Legal Assessor. She advised that the Panel may impose an interim order if it is necessary for the protection of the public, is otherwise in the public interest, or is in the interests of the Registrant. The Panel should apply the principle of proportionality and impose the least restrictive order that is sufficient to protect the public and the wider public interest.

Decision
4. In its decision on impairment the Panel decided that there is a real risk of repetition.

5. Consequently, the Panel concluded that an interim order is necessary for protection of members of the public. An interim order is also otherwise in the public interest for the same reasons explained by the Panel for its substantive sanction decision.

6. The Panel considered whether Interim Conditions of Practice would be a sufficient restriction during the appeal period, but concluded that they would not provide sufficient protection for the public.

7. The Panel therefore concluded that an Interim Suspension Order should be made.

8. The Panel decided that the Interim Suspension Order should be for the maximum period of 18 months. An Order of that length is necessary because if the Registrant appeals the Panel’s decision and Order, the final resolution of that appeal could well take 18 months. In the event that the Registrant does not appeal the decision and Order the Interim Suspension Order will fall away when the time within which he could have commenced an appeal expires.

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 Eric Lumortsey