Mark J Leathley

Profession: Physiotherapist

Registration Number: PH62728

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 30/11/2015 End: 17:00 09/12/2015

Location: Health and Care Professions Council, Park House, 184 Kennington Park Road, London, SE11 4BU

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

As amended:

 

During the course of your employment as a physiotherapist you treated Service User A and between January 2013 to March 2013 and:

 

1. You masturbated Service User A on approximately 18 occasions in your work place clinic.

 

2. You encouraged Service User A to masturbate in:

a) your work place clinic;
b) outside of your workplace clinic.

 

3. You led Service User A to believe that your actions described in paragraph 1 and 2 were a form of therapy.

 

4. You exchanged messages of a sexual nature with Service User A.


During the course of your employment as a physiotherapist after March 2013:

 

5. You conducted internal vaginal examinations of Service User A:

a) at Service User A’s home on 15 May 2013;
b) at your workplace clinic on 16 May 2013

 

6. Your actions described in paragraphs 1, 2, 3, 4, and 5 were sexually motivated.

 

7. Your actions described in paragraph 3 were dishonest.

 

8. The matters described in paragraphs 1, 2, 3, 4, 5, 6 and 7 constitute misconduct.

 

9. By reason of that misconduct your fitness to practise is impaired.

Finding

Preliminary Matters

1. The Registrant has neither attended this hearing nor been represented at it.  The Panel initially considered whether a valid notice of hearing had been sent to him, and concluded that the letter dated 8 October 2015 satisfied the requirements of a notice of hearing.

2. After the Panel stated that it was satisfied that there had been proper notice of the hearing sent to the Registrant, the Presenting Officer applied for a direction that the hearing should proceed in the Registrant’s absence.  In considering this application the Panel had regard to the HCPC’s Practice Note entitled “Proceeding in the Absence of the Registrant”, and it heeded the advice of the Legal Assessor that the utmost care and caution should be exercised before deciding that the hearing should proceed in these circumstances.  After carefully considering all the relevant factors the Panel concluded that the hearing should proceed despite the fact that the Registrant was not in attendance.  The reasons for this decision were as follows:
• The Registrant’s intention not to attend the hearing was explained in his witness statement dated 4 November 2015.  It was apparent from that statement that his decision had been made before the date of the statement and had been made at a time when he had the benefit of legal advice.  As a number of reasons for his decision not to attend concern confidential matters they will not be elaborated in this public decision document.
• The witness statement revealed that the HCPC had canvassed with the Registrant whether he would wish to request an adjournment of the hearing, but he did not wish for such an adjournment, explicitly stating that it would seem better for all parties for the present hearing not to be delayed.  He also disclosed that he had decided against seeking a hearing venue nearer to his home.
• It followed from the Registrant’s explanation for not attending that the Panel was unable to conclude that he would be likely to attend on a future occasion if the present hearing did not proceed.
• Further, the disadvantage resulting from the Registrant’s absence would be mitigated to some degree by the submission of his two lengthy statements and accompanying documentation that set out in some detail his case.  In addition to the statement of 4 November 2015, referred to above in which he responds to elements of the allegation which were raised in 2015, he submitted a witness statement made in relation to the original allegations running to some 49 pages, along with exhibits and supporting documents in excess of 230 pages.
• The allegations date back to events nearly two years ago and arose out of events that occurred even longer ago dating back to 2009. Witnesses have attended for the hearing.
• The conclusion of the Panel was that the clear public interest in the hearing proceeding outweighed the absence of the Registrant. Accordingly, the Panel granted the HCPC’s application for the hearing to proceed in the absence of the Registrant.

Application to Amend

3. Before the case progressed any further an application was made on behalf of the HCPC that the allegation should be amended. 

4. On 14 August 2014 a Panel of the Investigating Committee determined that there was a case to answer in relation to those areas of complaint included in paragraphs 1, 2, 3, 4, 6 and 7 as set out above.  Upon full investigation of the case it was decided that the paragraph 1 complaint should be changed from the originally alleged “on at least 12 occasions” to the “approximately 18” appearing above.  Furthermore, it was decided that the complaint concerning the Registrant conducting two vaginal examinations of Service User A referred to in paragraph 5 should be added to the allegation.  Accordingly, the matter was re-referred to a Panel of the Investigating Committee on 14 May 2015 and that Panel agreed to those two changes.  However, at that hearing the need to include paragraph 5 (vaginal examinations) in paragraph 6 (conduct that was sexually motivated) was overlooked. It was this last matter that was the subject matter of the amendment application dealt with by the present Panel at the commencement of the hearing. 

5. The Panel concluded that the omission of paragraph 5 from the terms of paragraph 6 was clearly an oversight on the part of the 14 May 2015 Panel, as, in the context of the case as a whole, it must have been intended to allege action of that nature was sexually motivated.  The Registrant’s statement of 4 November 2015 made it clear he understood it was alleged that he had been sexually motivated when he conducted the vaginal examinations. In all these circumstances, the Panel concluded that the Registrant would not be prejudiced by the amendment under consideration. Accordingly, the Panel granted the HCPC application to amend paragraph 6 to include reference to paragraph 5.

Other Preliminary Matters.

6. A single allegation is made by the HCPC against the Registrant.  It is that his fitness to practise is impaired by reason of misconduct.  The particulars of his behaviour relied upon by the HCPC as amounting to misconduct are those matters set out in paragraphs 1 to 7 inclusive of the allegation as it appears at the head of this decision document.  Those paragraphs will hereafter be referred to as “particulars”.

7. Before the case was opened by the Presenting Officer, the Panel stated that it considered that this was a case where it would be desirable to conclude the factual enquiry before considering any issues of misconduct and current impairment of fitness to practise.  The Presenting Officer therefore opened the HCPC’s case on the facts, reserving until a later stage (if necessary) submissions on any other issues.

8. At a Preliminary Hearing convened in advance of the present hearing it was directed that Service User A should be permitted to give her evidence from behind a screen so that she would not be seen by, or see, the Registrant.  It was also directed that her evidence should be given in private.  The Registrant’s non-attendance at the hearing meant that the direction relating to screens was not required, but the entirety of her evidence was given in a private session of the hearing.

Background

9. At the time relevant to the allegations the Registrant was employed as a physiotherapist at a practice that operated at various clinics in the area of Manchester and Cheshire.  One of the partners in the practice is Mr RH who gave evidence before the Panel.  The Registrant started to work for the practice in approximately 2006, working at a number of different clinics.  In 2012 he was promoted to management level, and from that time he was managing two or three clinics as well as the two or three physiotherapists working at each of those locations.

10. Service User A, an adult female, was first treated by the Registrant in June 2009 for an ankle injury.  Thereafter she attended frequently and regularly upon the Registrant and did so up until the summer/autumn 2013. It was during this period that the events with which this Panel is concerned occurred.  It is clear that over this period of time a friendship developed between the Registrant and Service User A.

11. At some stage in 2011 Service User A came into contact with the Registrant’s wife, and something of a friendship developed between the two of them. Service User A purported to give advice to the Registrant and his wife in relation to a personal issue they were experiencing together at that time and there was social contact.  Service User A’s husband was frequently working away from home, but when he was not, there were occasions when the two couples met.

12. The nature of the allegation of inappropriate behaviour will be fully explained in the Panel’s decision on the facts, as will the Registrant’s case in relation to them.  For the purposes of this background summary, however, it is relevant to state that the Registrant admits that what has been termed ‘Masturbation Therapy’ was undertaken by Service User A in which he had a role, and that it commenced in the early part of 2013. 

13. It is said by the Registrant that his involvement in this activity arose in circumstances in which he was in contact with two purported individuals introduced to him by Service User A.  One was a Mr JVW, a purported Orthopaedic Surgeon practising in Service User A’s country of origin.  The other was a Mr MV, a purported Psychologist (variously described as a Clinical Psychologist and a Sports Psychologist) practising in the same country.  It is not appropriate to say more about these individuals in this neutral background summary because a disputed issue of some significance is whether Mr JVW and Mr MV existed, and, if they did not, whether they were characters invented by Service User A herself.

Decision on Facts

14. Witness credibility and reliability. The HCPC called two witnesses to give evidence before the Panel.  One was Service User A.  The other was Mr RH, a partner in the physiotherapy practice where the Registrant was working.  It is necessary for the Panel to express some general views on these witnesses.

15. Mr RH: the Panel found Mr RH to give his evidence in a careful and natural manner that was patently honest.  Once he became aware of serious concerns about the Registrant’s conduct with regard to Service User A he treated the matter with the seriousness that was required.  A discussion with the Registrant on a Friday resulted in a tape recorded interview the following day and formal external intervention within a week.  It was clear that Mr RH was not only an experienced physiotherapist, but also experienced in managing a business and people.  His evidence was balanced and fair in relation to both the Registrant and Service User A, acknowledging that the former was a good physiotherapist and the latter likeable.

16. The Panel was struck by the clear sense of bewilderment shown by Mr RH at the facts he was describing; there was no sense that he sought to do anything but give his best, honest, evidence concerning circumstances which, as he said, were unlike anything he or his partner had previously experienced.

17. In closing submissions, the Presenting Officer suggested that Mr RH could be regarded as a “reasonable and understanding” person. The Panel agrees with that assessment.

18. In short, the Panel was impressed by him as a witness of truth and of his reliability. As a result it has had no hesitation in accepting as fact the entirety of his evidence.

19. Service User A: in assessing the evidence of Service User A, the Panel, both on an individual basis and collectively, brought to bear its experience of victims of domestic and other violence and also its experience of healthcare professionals who transgress professional boundaries. The Panel accepts that people who have been exposed to violence may present in a wide variety of ways. The Panel has noted the observations concerning witness demeanour recorded in the Council for Healthcare Regulatory Excellence (CHRE) January 2008 document entitled “Clear sexual boundaries between healthcare professionals and patients: guidance for fitness to practise panels”.

20. In his closing submissions for the HCPC the Presenting Officer acknowledged that Service User A could be regarded as a “complicated character” who had vulnerabilities and that the Panel may need to approach some of her evidence with caution but that this should not detract from the core of her evidence given the detail and consistency.

21. Service User A was very composed when giving her evidence, managing her emotions and being careful in the answers she gave.  Her evidence in chief accorded to a surprising degree to the content of her long witness statement, with very little added detail. Her evidence appeared to be a rehearsal of her witness statement.  However, when asked questions that fell outside matters that were explicitly dealt with in the witness statement, Service User A frequently stated that she could not recall.  When asked about details of the case advanced by the Registrant and taken to documents introduced by him, Service User A repeatedly acknowledged that she had made representations to the Registrant and his wife that she acknowledged were untrue, but stated that she had been instructed by others (her husband and/or one or both of the purported health professionals) to make the false representations. 

22. There were also matters that were inherently implausible.  For example, in claiming to have qualified as a medical practitioner in her home country, she stated that no record of her qualification would exist as her husband had bribed people to expunge the record of her university qualification and of the fact that she had been registered with the regulator of medical practitioners.   In addition, the Panel accepts Mr RH’s evidence that in discussion with him and his business partner on Friday 30 May 2014, Service User A stated that she was registered with the General Medical Council (GMC) to practise in the United Kingdom, but explained the fact that it had not been possible to obtain confirmation of that registration on the basis that she had been permitted to register using a pseudonym.  When asked why it was necessary to register with the GMC to practise medicine under a pseudonym when she was living under her own name, she gave a reply that did not make sense to Mr RH.  By her own admission when asked questions arising from the Registrant’s case, she indulged in sophisticated fabrication of stories told to him.  These included fabrication as to her knowledge of Mr JVW and Mr MV, suffering from cancer, undergoing extensive radiotherapy and chemotherapy, undergoing brain surgery.  Yet no acknowledgement of these deceptions appeared in the witness statement made by Service User A in March 2015 or in her evidence in chief. 

23. The various matters noted above have resulted in significant and grave doubts in the minds of each member of the Panel as to Service User A’s credibility.  The Panel has firmly concluded that no reliance could be placed on her evidence without independent supporting evidence.

24. The Registrant: the Panel also gave consideration to the Registrant as a witness, albeit one who did not attend to give oral evidence. Mention has already been made of the fact that the Registrant submitted significant documentation for the consideration of the Panel in the form of two witness statements and documentary exhibits.  These documents were read by the Panel before the case began and again after the close of the HCPC’s case but before the Presenting Officer’s closing submissions.  The Panel was careful to ensure that where the Registrant had positively taken issue with a significant element of Service User A’s evidence, his case was put to her.  In the main this task was undertaken by the Legal Assessor.  Furthermore, the Panel has had full regard to the Registrant’s submissions in reaching these decisions.  In short, the Panel is satisfied that it has done everything it reasonably could to ensure that the Registrant’s written case as presented to the Panel has been fully considered.

25. As the Panel has not had the opportunity to observe the Registrant and assess him as a witness, it has not been possible for the Panel to assess his credibility and reliability in the same way as it has been able to do that with Service User A and Mr RH who did give oral evidence.  The Panel received positive evidence not only from Mr RH, but also by way of written testimonials from clients and colleagues, as to the Registrant’s ability as a physiotherapist.  There was also evidence that he was a caring professional and a caring husband.

26. However, the Registrant’s own admissions as to his conduct raise serious questions about his judgement and character.  The Panel has recalled that it is not for the Registrant to disprove any element of the facts alleged against him. Nonetheless, the reservations about his judgement and character mean that the Panel has taken the view that his evidence has to be approached with caution.

27. Having considered and expressed its judgements regarding the three main witnesses, the Panel went on to consider the factual particulars. It did so in the chronological order in which they were addressed by the Presenting Officer in his closing submissions.

28. Particulars 2 and 4.  These particulars, set out in full above, allege that the Registrant encouraged Service User A to masturbate, both at his clinic and elsewhere, and that he exchanged messages of a sexual nature with her.

29. It is appropriate to deal with these particulars together as the HCPC’s case is that the messages of a sexual nature were communicated between the Registrant and Service User A as part of the encouragement he was giving her to masturbate. 

30. Service User A has given evidence that by 6 January 2013 the Registrant learnt she was experiencing domestic violence at the hands of her husband on the occasions when he returned home after long periods of work abroad. Service User A’s evidence, in summary, is that matters progressed in the following way:
a. The Registrant communicated with her expressing great concern at her situation, seeking details about her abuse which she gave, and advising her to seek help from a women’s sexual assault clinic (which he had contacted for advice) and the police (which she was reluctant to do);
b. That around 11 January 2013 the Registrant proposed she should undergo what was termed ‘Masturbation Therapy’ in order to assist her and enable her to understand what a normal sexual relationship involved, and that he would direct her as to what to do. Service User A agreed to this proposal under pressure, as she would describe it, from the Registrant who emphasised that he was a professional healthcare provider, her friend, and he was to be trusted;
c. Service User A describes how the ‘Masturbation Therapy’ started with the Registrant sending her instructions by text, often in the early hours of a day or late at night, encouraging her to engage in masturbation and requiring her to report back to him, which she did;
d. Service User A describes how matters escalated when around 26 January 2015 the ‘Masturbation Therapy’ was being undertaken on nearly a daily basis, with the Registrant communicating by text at the same time as she was supposed to be masturbating, using colloquial language to describe exactly what she should be doing, requiring her to take and send him photographs, and proposing that he masturbate at the same time;
e. Service User A describes how on 1 March 2013 the Registrant directed her to come to the clinic in the hours before it opened for her to masturbate there, and that once there, he encouraged her to masturbate and that this occurred on an almost daily basis over the next three weeks both at the clinic and at other locations;
f. Service User A goes on to state that on the first occasion when she attended at the clinic she was unable to masturbate effectively when directed to by the Registrant and that he took over and used on her a vibrator she had brought. She describes how this was then the format of all the occasions that then occurred at the clinic and other locations. This element of her evidence is the subject of particular 1 of the allegation.
g. Service User A describes how matters came to a head on 21 March 2013 when she attended at the clinic but did not want the masturbation to happen. For that reason she did not bring her vibrator but the Registrant nonetheless required her to be masturbated using his fingers. Thereafter she states she sought to distance herself from him and no further masturbation sessions occurred.

31. Service User A has produced a large number of emails apparently sent by herself to herself in which she states she had copied and pasted text message exchanges she had with the Registrant, he having said that she should delete the texts.

32. The Registrant, in his written statements, admits to encouraging her to undertake ‘Masturbation Therapy’ and that he did indeed exchange messages with her of a sexual nature. He makes no comment on the detail of the texts or the exact circumstances of the sessions, though he accepts it began by messaging and did progress to them meeting at the clinic and other locations on a number of occasions. He describes how at the clinic, having let them in to the building, he would leave Service User A in his room with music playing while she was supposed to be masturbating, save that he has admitted to his employers to being in the room on just one occasion as she was masturbating. He expressly denies touching her.

33. The Registrant has given written evidence describing in detail how he came to be involved with Service User A in this way. He describes how he was in contact with Mr JVW and Mr MV, how they collectively had very great concerns for Service User A’s well-being given the reports of domestic and sexual violence she was experiencing and her emotional state. The Registrant describes how he was then told that she should undergo ‘Masturbation Therapy’, that he should take the lead in administering it as he was on location with her and, in effect, her only friend available, Mr JVW and Mr MV purportedly being in her home country. The Registrant describes how he had come to respect Mr JVW and Mr MV, believing them to be friends of Service User A and appropriately qualified; and that he was reluctant to engage with her in this way but felt under pressure and under an obligation to do so.

34. It is not necessary at this stage of the determination for the Panel to analyse and adjudicate upon all the detail of the Registrant’s case, particularly with regard to his case that Mr JVW and Mr MV may have been invented by Service User A. What is clear is that he admits encouraging Service User A to masturbate and that he exchanged messages of a sexual nature with her as part of his encouragement to her to masturbate.  When first interviewed by his employers, through to his witness statement prepared for this hearing, the Registrant has admitted that he encouraged Service User A to masturbate and that he did so not only by talking to her but also by messaging her.  Furthermore, he admitted that the masturbation had occurred at a number of locations, including his workplace, the rugby club, where they both volunteered, and at his own home.

35. The Panel therefore finds both particular 2 and 4 to be proven, that the Registrant did encourage her to masturbate and did exchange messages of a sexual nature with Service User A.

36. Particular 1.  This particular, set out in full above, alleges that the Registrant masturbated Service User A on a number of occasions at his clinic.  Service User A’s evidence on this point is summarised above: she describes how she came to attend with the Registrant at his clinic, how she was unable to masturbate effectively, and how the Registrant then took over using a vibrator.

37. The Panel has approached this particular on the basis that what is alleged by the HCPC is that the Registrant had physical or direct contact either with his fingers and/or by using a vibrator for the purposes of Service User A’s masturbation. 

38. On that understanding of the particular the Panel finds that it is not proven for reasons that are given as follows. 

39. The Panel noted that the Registrant has consistently and strongly denied that he acted in the way alleged.  The Panel has closely examined the evidence to see if there is independent evidence of Service User A’s assertion that the Registrant did physically participate. The HCPC has, in particular, referred the Panel to (1) a schedule prepared by Service User A recording, amongst other matters, the dates when the Registrant physically masturbated her at the clinic and other locations, and (2) to certain emails, in particular an email dated 21 March 2013. The Panel has given these pieces of evidence careful consideration.

40. The Schedule: Service User A prepared a schedule (appearing at page 115 of the HCPC’s exhibits bundle) of 26 occasions when she alleges that the Registrant penetrated her with a vibrator, 1 occasion when he used both a vibrator and his fingers and a further occasion when he used his fingers alone. Eighteen of these occasions, according to the schedule, occurred at the Registrant’s workplace clinic as referred to in the particular. The time span of these 28 occasions was 1 March 2013 to 21 March 2013.  This schedule was not a contemporaneous document: Service User A told the Panel that she was asked by the police to prepare it, and did so, in September or October 2014. She gave evidence to the Panel that to prepare the schedule she relied upon her own memory and referred to emails. 

41. Some of these emails are said to have been sent by Service User A to herself, the content being ‘cut and pasted’ copies of text messages exchanged with the Registrant. There was evidence from Service User A and the Registrant that the text messages were to be deleted – his evidence being that he did not want his wife seeing them.  Her evidence is that she copied the text messages into emails she sent to herself either at the Registrant’s suggestion that she should keep them for future reference to assist her in her masturbation and/or because she was not sure about the nature of the ‘Masturbation Therapy’. The Panel was unable to reconcile Service User A’s evidence about keeping a record because of suspicions she had about the Registrant, with her evidence that she trusted him.
42. It is clear that the schedule is not evidence independent of Service User A: she prepared it, more than a year after the events, relying on her memory and emails that she had sent herself. The emails, if genuine, do not confirm all the detail given in the schedule. As it is, the genuineness of the emails is only testified to by Service User A. In the circumstances of this case, and without other relevant independent evidence, the Panel has grave doubts about the genuineness of the emails.

43. Accordingly, the Panel concludes that neither the schedule nor the emails produced by Service User A in support of the schedule, provide independent evidence of Service User A’s allegation that she was masturbated by the Registrant.

44. Emails, in particular an email dated 21 March 2013: the Presenting Officer relied upon an email dated 21 March 2015 apparently sent by the Registrant to Mr JVW and copied to Mr MV.  The HCPC’s case is that in that email, the Registrant wrote,

“I attempted to have [Service User A] start the session on her own, trying to build her own orgasm independent of me for the first time in a long time now”,
and when recording that Service User A had struggled to achieve orgasm, the Registrant stated,
“I stepped in … and helped her over the line and then left her alone for 15 minutes and asked her to just “play””.

45. The Panel does not feel able to accept this email as evidence sufficiently independent of Service User A to place the degree of reliance upon it that would be necessary to find the particular proven.  There are three main reasons for this, as follows: 

a. it is a document produced by Service User A: she has stated she believes it would have been printed by Mr JVW or Mr MV and left at her home by one or other of them and that it was amongst documents she found when clearing her home at a much later date;
b. if accepted as genuine, the references in the email to “on her own”, “independent of me” and to the Registrant having “stepped in” do not necessarily prove physical contact between the Registrant and Service User A in the act of masturbation. For example, the Registrant’s case is that he on all but one occasion left the room when she was to masturbate: “stepped in” could refer to him stepping back in to the room. His assistance to her included words of encouragement: the email does not expressly indicate that his encouragement went on to physically assist her; and
c. in any event, the Panel has doubts about the genuineness of this email. Service User A’s explanation of finding it at her home strains credibility. It is perfectly possible to manufacture a document that looks like a print-out of an email but which in fact is no such thing. In addition, there appears to be an inconsistency between this email produced by Service User A and the schedule also produced by her. The final paragraph of the email, purportedly sent by the Registrant to Mr JVW and Mr MV on 21 March 2013 states in part,
“I am thinking of ideas how to make the masturbation a little less “routine” now … and it may mean changing venues or just springing sessions on her when we are on route to rugby etc.”.
Yet her schedule of masturbation sessions between 1 and 21 March 2013 includes nine instances when masturbation is reported to have already occurred other than at the clinic at five different locations. In addition, two of those occasions include, on Service User A’s evidence, occasions when a masturbation session was sprung on her, including at a motorway service station during a long car journey they undertook together.

46. Given this analysis, the Panel concludes that neither the schedule and accompanying emails, nor the other emails, in particular that of 21 March 2013 provide evidence that is either reliable or independent of Service User A.

47. There being no evidence independent of Service User A, the Panel does not find particular 1 to be proven.

48. Particular 3. This particular, fully set out above, alleges that the Registrant led Service User A to believe that the masturbation sessions referred to in particulars 1 and 2 were a form of therapy.

49. As particular 1 is not proven, it follows that the contention in particular 3, that the Registrant led Service User A to believe that his actions were a form of therapy, is to be considered only with regard to particular 2. 

50. Service User A has given evidence that the Registrant told her that he was a professional healthcare provider as well as her friend, that she was to trust him, and that the masturbation was a form of therapy to help her deal with the domestic and sexual violence she reported experiencing along with the consequential stresses that arose because of this abuse.

51. The Registrant, in his admissions both to his employer and in his written evidence to the Panel, has admitted encouraging her to masturbate and that he did so because he understood this to be a form of therapy that met her needs. He has provided an explanation for this belief. He has referred to Mr JVW and Mr MV explaining that:
a. He was introduced to them by Service User A;
b. He never met them or spoke with them but communicated extensively with them over a long period of time by email and other electronic means;
c. Service User A described them as friends and former work acquaintances both of them being healthcare professionals, and people she relied upon albeit that she told the Registrant they were resident in her country of origin;
d. That Service User A’s domestic violence was disclosed to the Registrant during email exchanges with both Mr JVW and Mr MV during which the three of them were very concerned about her emotional well-being. Mr MV proposed that what she needed was ‘Masturbation Therapy’ and that the Registrant, being close to her, both emotionally as a friend and physiotherapist as well as close by geographically, was the one who should administer the ‘Masturbation Therapy’.
e. The Registrant has provided further evidence suggesting that he was reluctant to engage in this proposal but did so because he was concerned for Service User A, felt obligated to her because of the help she had provided to him and his wife, and because of the insistence of Mr JVW and Mr MV whom he had grown to trust and respect.

52. Service User A’s evidence is that she did present Mr JVW and Mr MV as her friends and former colleagues who were healthcare professionals and people in whom she trusted, and who were resident in her country of origin.

53. Service User A later indicated in oral evidence to the Panel that her presentation of Mr JVW and Mr MV to the Registrant was a fabrication and that she was acting under what would amount to the duress of her husband: that Mr JVW and Mr MV were acquaintances of her husband, and their role was to monitor and control her and her relationship with the Registrant; further, that they were both resident in the UK in circumstances that, as things developed, one or both of them were visiting her on a daily basis. When questioned she could not explain why it was that, if Mr JVW and Mr MV were visiting her on a near daily basis, the Registrant had never met either of them, particularly given that their role was in part to monitor her relationship with him and that they were in email contact with him. She gave oral evidence that these arrangements were at the design of her husband and had she questioned these arrangements it would have led to further abuse.

54. The Presenting Officer advanced three possible scenarios for this case in his closing submissions as follows and which the Panel found helpful:
a. that the Registrant was a sexual predator who exploited Service User A; or
b. that, the Registrant was genuinely taken in by the purported professionals, Mr JVW and Mr MV, and those people were under the direction of someone other than Service User A, possibly the husband; or
c. that Service User A had herself invented Mr JVW and Mr MV and that she orchestrated events. 

55. The Panel has, of course, kept in mind that the allegations are made against the Registrant and not against Service User A.  It is therefore not appropriate to make conclusive findings against her in respect of Mr JVW and Mr MV.

56. The Panel gave very careful and serious consideration to the scenario that the Registrant was a sexual predator: the allegations are extremely grave and he has admitted to engaging with his patient to encourage her to masturbate. There are a number of other features that give cause for concern, including:
a. the time period over which this occurred, the core period being of three weeks in March 2013 but also the weeks beforehand starting January 2013;
b. the apparent frequency of ‘Masturbation Therapy’ sessions – it being nearly daily;
c. the inherent implausibility that a professional healthcare provider could be so naïve to think it appropriate to engage in ‘Masturbation Therapy’ on the instruction of two men who, though he may have trusted them, believed them to be appropriately qualified and suitably authoritative, yet whom he had never met;
d. the absence of anything resembling a care plan and records of treatment;
e. his assertion that the sessions were given in his capacity as a friend and not as a professional physiotherapist;
f. his instruction to delete text messages; and
g. his failure to seek advice from his managers.

57. It is little wonder that this Registrant faces the allegations he does, and the Panel views them with the great seriousness that they deserve.

58. The Panel has kept its mind open as to the Registrant’s case. It notes his previous good character and has considered his case that he was acting in good faith albeit with the greatest of naivety.

59. The Panel has also taken account of the following:
a. There is no evidence independent of Service User A that Mr JVW and Mr MV existed. The HCPC has not produced evidence to indicate confirmation of their existence;
b. Their email accounts appear to have been created at the home of Service User A. It is reported that when this point, along with one other point, was put to Service User A by the police she “struggled to explain the discrepancies and apparent untruths.” This information is reported in a “Telephone Attendance Note” dated 1 December 2014 prepared within the office of the solicitors acting for the HCPC following a telephone conversation with a police detective involved in this matter. The evidence is, therefore, hearsay and to be approached with some caution. Nonetheless, it is a note prepared within a solicitors’ office following an official conversation with a police detective. The Panel was, therefore, prepared to give it some weight. Service User A’s response to the police (“struggled to explain”) contrasted with her evidence: when the same point was put to her during her oral evidence she confidently explained that though she was not in the same room at the time, she was in her house when Mr JVW and, separately, Mr MV were there and, she believed, they set up their email accounts. The Panel had difficulty, against the back-drop of her admitted fabrications regarding Mr JVW and Mr MV, believing Service User A’s explanation about the creation of the email addresses;
c. The Registrant reports that since these events arose he has undertaken investigations to check the various details he does have about Mr JVW and Mr MV, but to no avail.

60. The Panel has concluded as follows:
a. Scenario 1: the Registrant’s previous good character is not indicative of him being a sexual predator. The nature of the allegations if proved in full along with his limited admissions could well indicate that he acted as a sexual predator. His explanation is that he acted on the advice and instruction of Mr JVW and Mr MV;
b. Scenario 2: the Panel is satisfied that there is evidence that he did genuinely believe Mr JVW and Mr MV existed, that their advice and instructions to administer ‘Masturbation Therapy’ was genuine, and that he acted on that belief in what he thought to be the best interests of Service User A towards whom he felt a high degree of obligation. The Panel also notes that these events occurred at a time when the Registrant was himself experiencing stress that could have impacted on his judgement;
c. Scenario 3: the Panel has reached the conclusion, based on the totality of the evidence and supported by the outline analysis and observations given above, that it has the gravest of reservations as to whether Mr JVW and Mr MV existed. Further, the Panel is left with the strongest of suspicions that whereas Service User A has admitted to a fabrication in part about the nature of Mr JVW and Mr MV, a fabrication aimed at the Registrant, she has in fact wholly fabricated their existence.
61. The consequence of the above is that, whereas it is alleged the Registrant led Service User A to believe that his encouragement of her to masturbate was a form of therapy, the Panel finds that:
a. he was genuinely (however naively) acting on what he believed to be the instructions of Mr JVW and Mr MV given for a proper purpose, but that it may very well have been Service User A who was giving him those instructions through characters created by her; and
b. even on the balance of probabilities, the Registrant had not “led” Service User A to believe the masturbation was a form of therapy as she may well have known exactly what was happening.

62. Accordingly, the Panel does not find particular 3 proved.

63. Particular 5. This particular, which is fully set out above, alleges that the Registrant undertook two vaginal examinations of Service User A, on two occasions, on consecutive days in May 2013, first at her home and on the second occasion at his clinic.

64. Service User A has stated that following a visit home by her husband when she was sexually abused, she experienced vaginal bleeding. She went on to state that Mr MV required her to undergo a vaginal examination by the Registrant and that the Registrant did indeed undertake the two vaginal examinations.

65. The Registrant has given evidence that he was informed by Mr MV that Service User A was experiencing vaginal bleeding and that he, the Registrant, was in the best place to undertake that examination, given his closeness to her and his involvement in the ‘Masturbation Therapy’. The Registrant reports being reluctant to undertake this task but admits he was ultimately persuaded to do it.

66. The precise circumstances of these events are complex. They include the fact that the Registrant’s wife had become pregnant and the Registrant reported times when, particularly after the conclusion of the ‘Masturbation Therapy’, he had sought to distance himself from Service User A. Sometime after the Registrant’s wife became pregnant (an event the Panel accepts as fact given other evidence, including that of Mr RH who reported on the successful birth of their child), Service User A also reported being pregnant following a visit home by her husband when she was violently sexually assaulted. The Registrant stated that the consequence of Service User A reporting being pregnant following abuse was that he yet again felt obligated to her.  It was against this backdrop, with concerns about her unborn baby, and under pressure from Mr JVW and Mr MV, that he undertook the examinations, albeit as he has admitted, that he was not qualified to do so and was not entirely sure what he was to look for. 

67. It is noted here that Service User A’s baby is reported by her to have been born prematurely and to have died at or soon after birth. There is no independent evidence to verify these matters. Given the range of other matters concerning Service User A’s evidence about which the Panel has expressed doubts, and the delicate nature of this particular matter of her purported pregnancy and the premature delivery, the Panel has not felt the need to express a view about whether or not the pregnancy and birth occurred. 

68. What matters for the purposes of the Panel’s task is that the Registrant has admitted that he was involved in vaginal examinations on the two occasions particularised. 

69. There is a stark contrast in Service User A’s description of his engagement with the examination and that admitted by the Registrant. She has alleged that he inserted the speculum that she supplied (in her possession, she states, because it was used by her husband as part of his sexual abuse of her), that the Registrant penetrated her with his fingers, and that he palpated her vagina. She also reported that he took photographs and videos of her vagina on her mobile phone which she was required to send to a third party.

70. The Registrant denies these details. He states that it was Service User A who inserted the speculum and that he limited his role in the examination to looking but not touching. He said that the procedure was repeated the day after the first occasion because he had been unable to identify the cause of the bleeding. 

71. The HCPC, in support of Service User A’s evidence, places reliance on the content of an email purportedly sent at 11:38 on 16 May 2015 by the Registrant to Mr MV in which there is reference to insertion of his index finger and findings made on his palpation of a tear. 

72. The Panel has already indicated that it does not accept Service User A’s evidence without independent support. The email referred to was produced by Service User A and, for reasons already given, the Panel is not inclined to rely on the email as either being independent of Service User A or on it being genuine.

73. The HCPC was invited by the Presenting Officer to apply its common sense to conclude that Service User A could not have inserted the speculum herself and that the Registrant must therefore have done so himself as she alleged. The Panel concluded that it would not be appropriate to consider this in the manner suggested.

74. The Panel does not find it proved that the Registrant’s involvement extended beyond that admitted by him and, in particular, does not find that he inserted the speculum, nor that he penetrated Service User A with his fingers, nor that he palpated her in the way alleged.

75. Nevertheless, the Panel finds that the admitted involvement amounted to the Registrant participating in the procedures along with Service User A, and that he thereby “conducted” the examinations with the consequence that this particular is proven.

76. Particular 6.  This particular, set out in full above, alleges that the Registrant’s actions as described in particulars 1,2,3,4 and 5 were sexually motivated. Given that the Panel has not found particulars 1 and 3 proved, the Panel only had to consider whether the Registrant’s actions were sexually motivated in respect of particulars 2 (encouraging her to masturbate), 4 (exchanging sexual messages), and 5 (the vaginal examinations).

77. In considering this particular, the Panel has taken the approach that each of particulars 2, 4 and 5 should be considered separately and collectively. Furthermore, the Panel has had regard to the guidance document entitled, “Clear sexual boundaries between healthcare professionals and patients: guidance for fitness to practise panels” issued by the CHRE dated January 2008.  This guidance describes the sorts of behaviours that might demonstrate sexualised behaviour, including behaviour where sexual gratification is gained. The Panel has considered a scenario in which sexual gratification gained is exclusively by the patient and not by the healthcare provider. The Panel has concluded that for a healthcare provider to be found acting in a sexually motivated way the sexual gratification would have to sit at least in part with the professional and not exclusively with the patient. This interpretation of the guidance is borne out by Appendix B of the guidance that includes as an example of sexualised behaviour “any sexual act induced by the healthcare professional for their own sexual gratification” (emphasis added).

78. For the purposes of this particular, the Panel relies on the relevant reasoning it has given above, particularly with regard to particular 4. In summary, those conclusions are as follows:
a. that the Registrant did, however naively, genuinely believe that the ‘Masturbation Therapy’ he administered was on the genuine and authoritative advice of Mr JVW and Mr MV, and was to address the needs of Service User A as he understood them to be; and
b. that he was not therefore sexually motivated in taking the actions that the Panel has found he did.

79. In reaching these conclusions the Panel has had regard to the extensive pages of emails, produced by Service User A, purporting to record the Registrant’s text messages to her in which he is reported to be gaining sexual gratification during her therapy, in which he uses language that is colloquial and suggestive of a sexualised situation, that he refers to his own preferences, and that he is reported to have sought photographs. As already recorded in this determination, the Panel places no weight on these documents that purport to be print-outs of emails sent by Service User A to herself given the fact that it has grave concerns regarding their genuineness.

80. The Panel has also taken account of features of the case that are apparent from the evidence: the unorthodox nature of the purported therapy; the fact that such therapy fell outside the scope of the Registrant’s expertise, the absence of any treatment plan held by the Registrant, or record of treatment administered, and the apparent deletion of texts.  The Panel concludes that whilst these features are of concern, they appear to be consistent with the very peculiar circumstances in which the Registrant was involved, and a reflection of the difficulties he had got into rather than evidence of sexual motivation.

81. One further point needs to be considered. The Presenting Officer has properly invited the Panel to consider the possibility that whilst the Registrant may have started the ‘Masturbation Therapy’ believing it to be genuine, the way it developed (as alleged by Service User A) indicates that he could not have believed the genuineness of the therapy by the time he had progressed through the use of colloquial language, instructing her contemporaneously with the masturbation, engaging in masturbation himself, and ultimately progressing to him having physical involvement in masturbating her.

82. The Panel has given consideration to this scenario but concludes that it is not made out.  In broad terms the evidence of this progression depends upon the evidence of Service User A, which the Panel is not prepared to rely on without independent supportive evidence.  The emails she has produced are not independent of her, and the Panel is not prepared to rely on them for reasons already given.

83. The conclusion of the Panel is therefore that although the Registrant was naïve in doing so, he genuinely believed that he was carrying out the recommendations of Mr JVW and Mr MV whom he believed were acting in Service User A’s best interests, and that there was no element of sexual motivation.  For these reasons this particular is not proven.

84. Particular 7.  A decision on this particular would only have been required if the Panel had found particular 3 proven.  As it did not it follows that particular 7 is not proven.

Additional observations on the facts

The background circumstances and how it could be that the Registrant came to act as proved against him
 

85. In the particular circumstances of this case the Panel proposes to set-out an additional analysis that reinforces much of the Panel’s conclusions.

86. The allegation in this case is extremely serious. The Panel, with its professional experience of the potentially complex dynamics of both domestic violence and of professionals who transgress professional boundaries, takes the allegation in all its particulars, with considerable seriousness.

87. At the core of this case is the allegation that the Registrant has taken advantage of his professional position to gain his sexual gratification from Service User A who was extremely vulnerable as a result of the domestic abuse she suffered.  In essence, that he manipulated her for his own benefit.

88. The effect of the Panel’s findings is, to some degree or other, that Service User A manipulated the Registrant. It is not for the Panel to surmise why Service User A should have behaved in this way save to note that to some degree it may have meant she gained attention.

89. Had there not been a considered analysis of all the evidence, the obvious explanation for the events would be that it was the Registrant who was the manipulator. It is, therefore, no surprise that he has found himself facing the allegation brought against him, not least of course because of the admissions he has made.

90. However, it is for the Panel to receive the evidence with an open mind and to give proper consideration to the defence case. This Panel has taken this approach. Having done so, and with the benefit of hindsight, the Panel has identified a credible narrative that supports the defence case and explains how it is the Registrant could have acted in the way that he did.

91. That narrative starts with the Registrant himself, described by his employer as a good physiotherapist, who demonstrably cared for his patients and who had potential (he was promoted in 2012), but who was also “a bit of a lad” who tended to ‘cut-corners’ on the processes he should adopt and to side-step management oversight of him.

92. The narrative continues with the Registrant failing to maintain professional boundaries. Service User A was a patient he saw often, who has been described as likeable, who presented to the Panel as intelligent and articulate. The first transgression of boundaries was when the Registrant started having coffee with her. It progressed when the Registrant facilitated the arrangement whereby his wife provided weekly tutoring to Service User A’s daughter and, following that, allowing his patient to provide expert advice and support to him and his wife concerning their very difficult personal issue that they were facing (which is not detailed further in this determination).

93. An additional link was when Service User A, having claimed her medical background and a wish to re-enter medical practice, was invited by the Registrant to join him in providing support services to the local rugby team, an invitation she accepted. The consequence of this was that they spent one or two evenings a week together at the rugby club during the playing season, along with time together on Saturdays attending matches, some of which involved them undertaking lengthy car journeys together. These developments culminated in the Registrant and his wife having dinner with Service User A and her husband on occasions when he was visiting his home from his work abroad.

94. It is also clear that the Registrant was himself emotionally vulnerable to a degree because of the very difficult personal issue he and his wife were facing.

95. Throughout this entire period, the Registrant continued to provide Service User A with physiotherapy treatment on a regular and frequent basis, albeit this tailed off over the summer and into the autumn of 2013.

96. These background circumstances are not in contention. What they demonstrate is that on top of the descriptions of the Registrant provided by his then employer, outlined above, the Panel adds an additional characteristic of the Registrant exhibiting very poor judgement in the management of his professional affairs, particularly with regard to the managing of professional boundaries.

97. The consequences are equally clear. He exposed himself to all the risks that follow when professional boundaries are not respected. A close friendship developed between the Registrant and Service User A: there is no allegation that this was sexual up until the events of early 2013, but nonetheless, this was a very close friendship. On top of the apparent mutual friendship was an emotional bond: Service User A was very clear about the degree of trust she placed in him. He gives evidence of his own emotional vulnerability and the sense of obligation he felt towards her for the advice and support she had provided to him and his wife regarding their personal issue.

98. With the benefit of hindsight, there is then a credible case to be made out that it was Service User A who took advantage of these circumstances. The Panel has already recorded in this determination the doubts it has about her claim of medical qualifications. Specific events appear to have been used to strengthen the emotional bond that the Registrant felt towards Service User A.

Those events include the following matters:

99. Hip operation: Service User A informed the Registrant that she had had a double hip operation. In her oral evidence to the Panel she spoke as a matter of fact about the hip operations. Part of the Registrant’s continuing treatment of her was to address the effects of her hip operation procedures.

100. Ice-skating: during 2011 Service User A was apparently preparing to compete in the European Ice-Skating Championship. The Registrant spent a substantial amount of time treating her to help in her preparations. The Panel has gained the impression that her involvement in the Championship gave her a high profile within the clinic. Certainly the Registrant in his written evidence describes his efforts at preparing her for what he believed to be a major sporting event. Service User A spoke in her oral evidence to the Panel of her winning Gold at the European Ice-Skating Championship in the team event of “synchronised ice-skating”. When she won the clinic sent her congratulations. As it is, the Registrant in his written evidence, and Mr RH in his oral evidence have cast doubt about her winning Gold, or even taking part in the Championship. The HCPC has not adduced evidence of any inquiries it may have made regarding this point. As it is, the Panel is left with considerable doubts about whether Service User A participated in, or won Gold at, the European Ice-Skating Championship.

101. Cancer: Service User A reported to the Registrant that in the run-up to the European Ice-Skating Championship she discovered a lump in her breast. After the Championships and while on a trip to her country of origin with her husband, she disclosed the fact of a lump to her husband who organised for her to be medically examined. In her evidence to the Panel, Service User A described how she was not given a diagnosis directly by any appropriately qualified professional: rather her husband received the results and reported to her that she had cancer. Back in the UK, she shared the diagnosis with the Registrant who, naturally enough given their established bond, showed considerable concern for her well-being.  The Registrant has described in his written evidence how he understood Service User A to be receiving substantial cancer treatment under the direction of certain named consultants at certain hospitals, including one of the most prestigious cancer hospitals. The Registrant also understood her to undergo brain surgery to treat cancer in her brain. The degree to which the Registrant believed this can be seen in an email exchange dated 19 July 2012 between the Registrant and the practice business in which the Registrant describes that Service User A was receiving treatment through her undergoing brain surgery with a very poor chance of survival. This is an email retrieved from the clinic’s systems and is one upon which the Panel is therefore prepared to rely. During the hearing the email was shown to Service User A who confirmed that she received the flowers sent to her as a result of that email.

102. Service User A has given evidence to the Panel that whilst at the time she did believe that she had cancer, her descriptions to the Registrant of receiving treatment from consultants at local hospitals, and the brain surgery, were wholly fabricated. She has said that she told these fabrications as instructed by her husband who was anxious for her not to attend local hospitals (perhaps to avoid discovery of the domestic violence). These fabrications continued over an extended period of time, involved much detail, and impacted on many people. She went on to give evidence that her husband arranged medical support from people he knew abroad, including an oncologist on a US airbase, and that he would send her tablets which she took that he obtained from the Middle East. She explained to the Panel that she did not know what the tablets were because the writing on them was in Arabic, yet continued to take them.

103. At the close of her evidence on this point Service User A observed that she now wondered whether she had ever actually had cancer, particularly as she had now had a scan which revealed no trace, and that her husband’s instructions to her about her having cancer could have been another layer of his abuse.

104. The Panel takes the view that it has very grave doubts about Service User A having had cancer. What is note-worthy is that the impact on the Registrant of her saying that she had cancer, and was undergoing treatment including brain surgery, was to tie him in to the relationship even more and to increase the emotional obligation he felt towards her to a very high degree.

105. Domestic violence: the Registrant stated that in early Jaunary 2013 he learnt that Service User A was experiencing domestic violence at the hands of her husband.  The circumstances and background concerning this are set out above. As with other matters, the Panel now has doubts about whether Service User A was in fact experiencing domestic violence or violence to the degree which she describes – which included early morning calls to her by her husband when he was abroad requiring her to abuse herself.

106. For the purposes of this part of the determination it is important to note the impact on the Registrant. There is clear evidence that he took the report of domestic violence with great seriousness and concern, extending to the uncontested evidence that he researched, and made contact with, a women’s sexual assaults centre for advice that he could then share with Service User A. In the Panel’s view, the consequence of Service User A’s report of domestic violence was to yet again increase the emotional obligation that the Registrant felt towards Service User A.

107. Court actions: a number of court actions have been referred to in the evidence:
a. Service User A reported that she sought an injunction against her husband along with a report to the police that led to a prosecution of him. These two actions are referred to in the papers and it is clear that the Registrant believed he was providing emotional and practical support to Service User A to assist her with the pressures of these actions. The Panel is not clear about the history and outcome of the injunction matter. The Panel is clear that Service User A led the Registrant to believe the prosecution of her husband had resulted in his conviction and sentence, albeit in his absence as he was abroad. In her evidence to the Panel Service User A stated that in fact there was no such action against her husband and that this was yet another fabrication given by her to the Registrant;
b. Service User A gave evidence to the Panel, consistent with evidence from her in the papers, that her husband had sent an associate of his from a nearby town to convey her elsewhere, where she was assaulted and raped by gang members. There is a text message in the papers in which Service User A reports that two men had been convicted. In her evidence to the Panel, Service User A reported that the police investigation was on-going and that she had lodged a complaint with the police regarding one aspect of the investigation. There is no independent evidence supporting this scenario, as a result of which the Panel is left with grave doubts about whether or not these events happened or are yet another apparent fabrication by Service User A.
The Panel again records that the impact on the Registrant of these matters must have been to increase the obligation he felt towards Service User A.

108. As matters developed, or were fabricated by Service User A, there is evidence that she would complain to the Registrant that her life had worsened since she had taken his advice to report matters to the police and sexual violence support agencies, including, according to her, that her husband was taking retaliatory action. The Registrant has given evidence, albeit written and untested, that because of her complaints to him he felt even more obligated towards her to see her through the troubles she appeared to be in.

109. Her pregnancy: reference is made above to Service User A’s pregnancy and the death of her baby. As noted above, there is now a question as to the veracity of these events but, without additional evidence and on such a delicate matter, the Panel declines to express a view. What is clear is that the timing and nature of these events acted to draw the Registrant back into the emotional bond he had with her at a time when he sought to distance himself from her because of his wife’s pregnancy.

110. The death of Mr JVW: Service User A has reported that Mr JVW died in her country of origin in April 2014 following a car-jacking event. This occurred after the events with which this Panel is concerned, though the Panel notes that this is yet another traumatic event that Service User A has experienced in what, by this stage, was a significant list of traumatic events – including the cancer, very serious domestic violence and gang-rape. As witness Mr RH observed, she seemed to have experienced a more than average number of traumatic events in her life. The relevance of all this to the Panel is to question again the plausibility of Service User A’s evidence whilst not being able to firmly conclude that they did not in fact happen.

111. Conclusion: the Panel takes the view, in the light of the matters listed above and all the evidence in the case, that the Registrant did feel a heightened sense of obligation towards Service User A, that he did have a genuine belief in the authority of Mr JVW and Mr MV, and was himself experiencing stress because of the personal issues he and his wife were facing together. In these circumstances, the Panel has reached the conclusion that it is conceivable that the Registrant came to act as he admits and as the Panel finds, by engaging in supporting Service User A in ‘Masturbation Therapy’ and in conducting the vaginal examinations, however incredible this may seem at first inspection.

112. Expressed another way, the Panel concludes that whilst certain particulars are proved against the Registrant, the case is not made out that he was manipulating Service User A for his own sexual gratification, but that she may have manipulated him for reasons that are not immediately apparent save for the attention it may have brought her.

Matters coming to a head

113. As yet, this determination has not explained how matters came to a head. The end scenes of these events concerned another patient at the clinic, Person B who had been treated by the Registrant. He was concerned with a health matter affecting her. To assist her, and with her agreement, the Registrant referred her to Service User A (who, according to the Registrant, he believed to be medically qualified). This Panel has a limited amount of information regarding how this came to be a complaint by Person B. The most clear and reliable account came from Mr RH in his oral evidence to the Panel. It appears that Person B complained to the clinic, and later to the HCPC, about the Registrant’s referral of her case to Service User A. The core issue that brought matters to a head was whether or not Service User A was a registered medical practitioner and therefore an appropriate person to whom the Registrant could refer Person B.

114. Mr RH described becoming involved; having conversations with Person B and receiving communications from Service User A who stated she wished to help the clinic to resolve the complaint. Mr RH contacted the HCPC and was advised that the complaint was not going to be proceeded with. Mr RH described to the Panel how he formed the view that Service User A was manipulating matters by communicating with Person B and the clinic.

115. Mr RH described a meeting that was held on Friday 30 May 2014 between himself and his business partner, the Registrant and Service User A, who he describes as arriving at the meeting having bought coffees for each of them and being effusive in her enthusiasm to help them resolve the complaint.

116. Mr RH described how Service User A claimed to have some insight into the HCPC’s work on Person B’s complaint, and produced a photocopy of two HCPC letters in support of what she said. Mr RH states that she went on in the meeting to explain that she had used her classified status with the Ministry of Defence (MoD) to access HCPC documentation, but asked the clinic to be discrete about this as she should not have done what she did to get the HCPC letters. Mr RH described being suspicious about the copy HCPC letters as there was copying in such a way that the full text did not appear, and the interpretation of the documentation that Service User A gave did not accord with what he had been told directly by the HCPC.

117. At this point in the determination, the Panel records that it accepts in full Mr RH’s account of the meeting and finds as lacking credibility that Service User A might have classified status and have been able to use any position at the MoD to access HCPC documentation.

118. Mr RH describes how at the meeting he positively challenged Service User A about whether she was registered with the GMC as his researches on the GMC web-site did not disclose her name. His evidence was that her response in that meeting was that she was indeed registered with the GMC but that it was under a pseudonym because of other threats she faced. She was further challenged by Mr RH about being registered under a pseudonym with the GMC as this did not tally with her practising under her real name, to which she had no clear answer.

119. Service User A in her evidence to the Panel insisted that during that meeting she clearly stated that she was not registered with the GMC and had never claimed to be. She went on to state that she may later have said to the Registrant that she was registered with the GMC but under a pseudonym.

120. The Panel has no hesitation in accepting Mr RH’s account of the meeting over that of Service User A.

121. The significant outcomes of the Friday meeting were as follows:

a. Mr RH and his partner were so concerned about what they had heard from the Registrant about his involvement with the Service user that unannounced they met him again at the clinic the next morning and invited him to be interviewed by them, to which he agreed. They tape-recorded the interview using a clinic Dictaphone. It is in this recorded interview that the Registrant first formally admits to matters involving Service User A. It is during that meeting that the Registrant, who is described as being distraught, comments “I’ve been done here, haven’t I”;
b. The clinic and the Registrant took steps to report Service User A to the GMC and the police being concerned that she was presenting herself as a registered doctor when she was not;
c. The clinic also took steps to communicate with Person B to resolve the complaint, to explain what they then believed, and to caution her about Service User A. Mr RH anticipated that person B would share this with Service user A and that she would react;
d. Service User A quickly learnt not only of what the clinic had said to Person B but also that she had been reported to the police. Her reported reaction was to express anger and to threaten the Registrant with exposure for what she described as his abuse of her over a year before;
e. Service User A referred her complaint against the Registrant to the HCPC after the Registrant sought the assistance of the police with regard to the prevention of Service User A contacting him

122. These observations conclude the Panel’s summary of its findings of fact. Within the limits of producing a written determination in these regulatory proceedings, it does not cover every nuance of the evidence but seeks to provide an overview of what, on any measure, is a complex and convoluted case.  It is, however, necessary to repeat something already stated by the Panel, namely that in reaching these decisions the Panel has not lost sight of the fact that Service User A is not the party against whom the allegation is brought.  Furthermore, quite apart from the inappropriateness of making findings against someone who is not the subject of the allegation, the Panel has not been presented with evidence that would be required for such findings to be made.  It may be, for example, that Service User A was the victim of some level of domestic violence.  The Panel recognises that the findings might appear to be very critical of Service User A.  In the judgement of the Panel, the findings made have been necessary for the true culpability of the Registrant to be explained by the Panel and understood by anyone reviewing the Panel’s decision.

123. The Panel announced its decisions on the facts before hearing submissions from the Presenting Officer and advice from the Legal Assessor on the issues of misconduct and current impairment of fitness to practise.

124. The Panel carefully considered the submissions of the Presenting Officer and accepted the advice of the Legal Assessor.  The Panel also read again the Registrant’s submissions before considering these issues, but it recognised the fact that it was not possible for the Panel to ask him questions.

Decision on misconduct.

125. The findings made by the Panel under particulars 2, 4 and 5 will not be repeated, although it is, of course, those findings that are to be considered at the present stage of the case.  The Panel has concluded that the seriousness of those findings is in three areas, namely:

• The crossing of professional boundaries.

• Acting beyond the scope of practice.

• Not seeking advice.

126. The crossing of professional boundaries started long before the matters included in particulars 2 and 4 occurred.  Some years before the Registrant had started to go for coffee with Service User A.  That was followed by social contact between Service User A and the Registrant and his wife, as well as the volunteering at the rugby club.   It may be that the Registrant was not challenged by others who knew of this contact, but that is no excuse because it was his personal responsibility to ensure that proper boundaries were respected. Added to the contact already described the Registrant permitted Service User A to offer advice and guidance of a personal nature to both himself and his wife.

127. The Panel has no hesitation in concluding that Service User A was a vulnerable individual.  Whatever the true state of affairs, at the relevant time the Registrant believed her to be vulnerable as a result of the cancer which she told him she was suffering and the domestic violence he believed her to be experiencing.

128. The Registrant’s actions would have constituted a gross breach of the obligation to maintain appropriate professional boundaries wherever the events had occurred, but when they moved into the clinic a clear link between the Registrant’s activities as a physiotherapist and his actions with regard to Service User A was underlined.

129. The fact that “Masturbation Therapy” fell significantly outside the scope of practice of a physiotherapist, and the Registrant’s role as such, is so clear that no further elaboration is required.

130. So far as the failure to seek advice is concerned, the Panel accepts that the Registrant genuinely believed Mr JVW and Mr MV to exist, but in the Panel’s judgement the advice he was receiving from them was for a therapy that was so unusual, there was an obligation on him to seek independent advice in relation to it.  The Panel is satisfied that the Registrant had available other professionals whom he could have consulted, including Mr RH, yet he did not do so over the weeks concerned.

131. The Panel has not overlooked the assertion made by the Registrant that he believed he was acting as Service User A’s friend, rather than as her physiotherapist.  However, the Panel is of the clear view that given the recent professional relationship that had existed, it was not open to the Registrant to develop a friendship with Service User A or to act in any way that might have been appropriate had he been able to be her friend.

132. The Registrant’s behaviour involved breaches of the following standards of the HCPC’s Standards of conduct, performance and ethics:

• Standard 1, “You must act in the best interests of service users.”

• Standard 3, “You must keep high standards of personal conduct.”

• Standard 6, “You must act within the limits of your knowledge, skills and experience and, if necessary, refer the matter to another practitioner.”

• Standard 7, “You must communicate properly and effectively with service users and other practitioners.”

• Standard 13, “You must behave with …… integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.”

In addition to these breaches of the Standards of conduct, performance and ethics, there were wide-ranging breaches of the Standards of proficiency for Physiotherapists.

133. The Panel has noted what the Registrant has said about the sense of obligation he felt towards Service User A.  It should be noted that this sense of obligation arose from the fact that he had allowed the professional relationship to become one of friendship in the first place.  The Panel has also noted what the Registrant has said about the pressures in his personal life.  The Panel notes that any professional may experience pressure in their personal life, but this cannot excuse standards not being met and cannot in this case override the fact that the Registrant’s actions amounted to a serious departure from the standards expected of professionals.  His failure to adhere to standards arose from considerable naivety, poor judgement and carelessness regarding his own professionalism.  As such he exposed himself to the risk of being taken advantage of, of being manipulated and misled.

134. The Panel is satisfied that fellow professionals would regard the Registrant’s serious departure from proper standards as deplorable and his failures risked bringing his profession into disrepute.  The findings in this case can lead to no conclusion other than that they amount to misconduct.

Decision on impairment.

135. The account given by the Registrant to his employers when the matter first came to light at the end of May 2014 included him stating his belief that he was providing “Masturbation Therapy” to Service User A as a friend, as opposed to in his role as a physiotherapist.  It inevitably follows from this account that he failed to grasp the importance of maintaining proper professional boundaries.  In his written submissions for the purposes of the present hearing, the Registrant has apologised and said that he has reflected on matters as a result of which he has come to a recognition that there was a blurring of boundaries.

136. The Panel has not, however, been provided with an account by the Registrant that can reassure it that he has come to a full realisation of what went wrong in his relationship with Service User A and why it went wrong.  When there has been such a serious breach of proper boundaries, the Panel is of the view that considerable steps would need to be taken by a registrant to demonstrate full insight, that being a necessary precondition to finding that there would not be an appreciable risk of repetition.

137. As the Panel has concluded that the Registrant’s insight is incomplete there remains a risk of repetition of inappropriate behaviour by way of a gross lapse of judgement.  For this reason the Panel finds that his fitness to practise is impaired upon consideration of the personal component.

138. Furthermore, in a case of this seriousness the Panel is satisfied that a finding of current impairment of fitness to practise is required in the wider public interest.  Were that conclusion not reached public confidence in the physiotherapy profession and in the efficacy of the HCPC as the regulator of that profession would be undermined.  The Panel is also clear that any other conclusion would undermine professional standards, not least of all with regard to managing professional boundaries.

139. Given the finding that there is current impairment of fitness to practise resulting from misconduct, it is necessary that the Panel should proceed to consider the issue of sanction.

Decision on Sanction:

140. After the Panel announced its decision that there was misconduct currently impairing the Registrant’s fitness to practise, the Presenting Officer made submissions on sanction and the Legal Assessor gave advice on the issue.

141. The Panel has taken into account the Presenting Officer’s submissions, which included the proper approach to the imposition of a sanction and the identification of aggravating and mitigating factors.  Whilst accepting that the sanction to be imposed is entirely a matter for the Panel to decide, the Presenting Officer submitted that the realistic choice for the Panel would be between the making of a suspension order and the making of a striking-off order.

142. The Panel has accepted the advice of the Legal Assessor and has had close regard to the HCPC’s Indicative Sanctions Policy document in reaching its decision on sanction.

143. The Panel has approached the matter on the basis that a sanction is not to be imposed to punish.  Rather, a sanction should only be imposed to the extent that it is required to protect the public, to maintain a proper degree of confidence in the profession of physiotherapy and this regulatory process and to maintain proper standards among fellow professionals.  To ensure this approach it is necessary for a Panel first to consider whether the findings require the imposition of any sanction.  If they do, then the available sanctions have to be considered in an ascending order of seriousness until one that satisfies the factors already identified is reached.  The Panel confirms that it has followed this approach in the present case.

144. The Presenting Officer identified a number of aggravating factors.  He submitted that there had been very serious transgressions of professional boundaries, that the Registrant had exercised very poor judgement, had shown considerable naivety and had provided services that were not within his expertise or his scope of practice.  To these factors the Panel would add the fact that not only did the breaches continue over a period of time, but at any point during that period the Registrant could and should have sought advice.  The fact that he was himself in a managerial role at the time makes his decision not to seek advice all the more serious.

145. The mitigating factors identified by the Presenting Officer identified that the Registrant had been manipulated by Service User A, he had expressed remorse and had shown some, albeit limited, insight.  To these factors the Panel would add that the Registrant was well regarded as a physiotherapist, had not previously transgressed and was experiencing personal difficulties, further details of which will not be given in this public document although they have been fully considered by the Panel.

146. In the judgement of the Panel the mitigating factors referred to carry little weight in the context of the overall picture.  This is because it was the Registrant’s initial failure to respect proper boundaries with regard to the friendship with Service User A that enabled her to eventually manipulate him.  It was his own professional obligation to manage his professional boundaries, and it was his poor judgement that led to him not doing so over an extended period of time.  Any health care professional may be presented with a service user who seeks to push boundaries in a variety of different ways and it is the responsibility of every professional to ensure boundaries are maintained even when tested.

147. In explaining its decision on earlier elements of this case the Panel has stated why it considers the Registrant’s insight to be limited.  It is noteworthy that in putting forward his account, the Registrant has placed great emphasis on his own vulnerability at the time.  He has not acknowledged or particularised his failure with regard to the maintaining of proper boundaries from the outset, nor has he stated what strategies he would consider would be necessary to prevent a recurrence of such problems.

148. Where the fundamental problem is poor judgement, and the person who has exercised poor judgement has not fully recognised that to be the case, in the judgement of the Panel there must remain a very real risk of repetition resulting in a real risk of harm to service users from a further gross lapse of judgement.

149. The Panel’s view that there is an appreciable risk of recurrence means that the taking of no further action, an order that mediation should occur or the imposition of a caution order are all inappropriate as they would not offer a sufficient degree of protection and they would not satisfy public confidence nor would they sufficiently underline the need to ensure that proper professional standards are maintained by other professionals.

150. The Panel has also rejected the imposition of a conditions of practice order.  The failures in the present case resulted from, and the risk of further lapses would result from, breaches of the ordinary standards of registration.  In the view of the Panel there are no conditions of practice that could ensure that a registrant practises while exercising good professional judgement.  Further, a conditions of practice order would not sufficiently address public confidence and the need to declare and uphold proper professional standards.

151. It follows that the Panel has arrived at the situation where the realistic choice is between the imposition of a suspension order and a striking-off order.  This is because a sanction that does not prevent the Registrant from returning to practice would not sufficiently protect the public.  Nor would it maintain confidence and uphold proper professional standards.  It has already been stated that the fundamental problem in this case was one of very poor professional judgement.  It was poor professional judgement exercised by a physiotherapist of some experience who was working in a managerial role.  In the opinion of the Panel it is very difficult for a lack of judgement exercised by a professional working in that position to be fully remediated.  For the reasons already stated, the limited insight demonstrated by the Registrant means that it has not in fact been fully remediated.

152. In his witness statement made on 4 November 2015 the Registrant stated that he accepted that physiotherapy is a career he no longer wished to pursue.  It inevitably follows from this statement that, quite apart from the inherent difficulty of remediating poor judgement, there is no prospect of this Registrant achieving remediation as a physiotherapist.

153. The effect of these findings so far as the decision on sanction is concerned is that the Panel has concluded that there would be no purpose in imposing a suspension order because there is no prospect of remediation.

154. In addition, the Panel takes the view that the nature of the misconduct in this case is such that that public confidence could not be maintained and proper professional standards could not be upheld by the imposition of any lesser sanction.

155. The consequence is that there must be a striking-off order.

 

Order

The Panel decided to strike the Registrant from the register.

Notes

The Order takes effect on 06 January 2016. An interim suspension order was imposed to cover the appeal period.

This was a Conduct and Competence Final hearing to that took place between 30 November 2015 and 09 December 2015 at the HCPC.

Hearing History

History of Hearings for Mark J Leathley

Date Panel Hearing type Outcomes / Status
30/11/2015 Conduct and Competence Committee Final Hearing Struck off
13/11/2015 Conduct and Competence Committee Interim Order Review Interim Suspension
24/08/2015 Conduct and Competence Committee Interim Order Review Interim Conditions of Practice
08/06/2015 Conduct and Competence Committee Interim Order Review Hearing has not yet been held