David N Clay

Profession: Physiotherapist

Registration Number: PH44216

Interim Order: Imposed on 08 Oct 2016

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 02/08/2016 End: 16:00 02/08/2016

Location: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

1. On 14 October 2015 at Sheffield Crown Court, you were convicted of:

 

a. Two counts of Indecent Assault;

b. One count of Sexual Assault

 

2. By reason of your conviction described in paragraph 1, your fitness to practise as a Physiotherapist is impaired.

Finding

Preliminary Matters:

Service of Notice of Hearing

1. The Panel was satisfied that notice of this hearing was sent to the Registrant dated 7 April 2016 by post to his registered address and to his prison address, and had been served in accordance with the rules.

Proceeding in absence

2. Ms Young applied for the hearing to proceed in the Registrant’s absence. She informed the Panel that the Registrant is currently serving a two year custodial sentence of imprisonment imposed on 2 November 2015 for sexual offences and is currently in custody at HMP Hull.

3. The Panel received and accepted the advice of the Legal Assessor who advised that the Panel’s discretion to proceed in a Registrant’s absence should only be exercised with the utmost care and caution.

4. The Panel noted that, through his wife, the Registrant had on 21 June 2016 applied for this hearing to be postponed. The reason for the application was stated to be that the person whom he had appointed to represent him would be unavailable on the hearing date due to a hospital appointment. Evidence of the hospital appointment was provided to the HCPC.

5. The Panel considered the correspondence between the HCPC and the Registrant’s wife in relation to the postponement application. The Panel noted the email from the Registrant’s proposed representative dated 14 July in which he stated that his hospital appointment of today “would be fulfilled”. He gave no reason why it was not possible to re-arrange his appointment. The Panel also noted that the Registrant’s wife had also been appointed to assist in representing him and no reason had been given for her inability to attend this hearing.

6. The Panel was mindful that the date of this hearing was notified to the Registrant on 7 April 2016 and that the HCPC was only notified of the postponement application on 21 June 2016. The Panel was also mindful that the postponement application had already been refused by the HCPC on 19 July 2016 and that the application for a postponement had not been renewed nor had the Registrant provided any written representations.

7. The Panel considered that the purpose of this hearing was to protect the public and that the public interest required the hearing to proceed. It was of the view that the fitness to practise process should not be frustrated on the basis of a hospital appointment without further information. Accordingly, the Panel decided to proceed in the Registrant’s absence.

Application to amend the allegation

8. Ms Young applied to amend the allegation so as to include the fact that the Registrant was a registered Physiotherapist. She submitted that the proposed amendment did not alter the nature of the case against the Registrant and would not be prejudicial to him. The Panel was satisfied that the allegation against the Registrant was always in relation to his conviction and that the amendment could be made without any injustice. Accordingly, the Panel allowed the proposed amendment to be made.

Allegation (as amended):

Whilst registered as a Physiotherapist,

1. On 14 October 2015 at Sheffield Crown Court, you were convicted of the following offences:

a) Two counts of Indecent Assault;

b) One count of Sexual Assault

2. By reason of your conviction described as set out in paragraph 1, your fitness to practise as a physiotherapist is impaired.

Background:

9. The Registrant is a registered Physiotherapist. On 14 October 2015 the Registrant was convicted of the offences set out in the Allegation. On 2 November 2015, the Registrant was sentenced to 2 years imprisonment to run concurrently in relation to each of the three offences for which he was convicted.

Decision on Facts and Statutory Ground:

10. The Panel had regard to the Certificate of Conviction dated 5 November 2015 which certifies that on 14 October 2015 in the Crown Court at Sheffield, the Registrant was convicted of two counts of indecent assault and one count of sexual assault.

11. The Panel was satisfied that the Certificate of Conviction constituted conclusive proof that the Registrant had been convicted of the matters set out in it. Accordingly, the Panel found the facts and statutory ground of conviction proved.

Decision on Impairment:

12. The Panel had regard to the submissions made by Ms Young on behalf of the HCPC. The Panel received and accepted the advice of the Legal Assessor and took into account the HCPC practice note on finding fitness to practise is impaired.

13. The Panel had regard to the nature of the matters for which the Registrant was convicted and to the facts found proved during the course of the Registrant’s criminal trial. The Registrant was convicted of a series of two separate indecent assaults on female patients in 1995 and one sexual assault of a female patient in 2009. All of the offences took place in the course of the Registrant’s practice as a physiotherapist.

14. The Panel noted the facts of the offences as set out in the Judge’s sentencing remarks.

15. The Panel also had regard to the sentence imposed being one of imprisonment for two years and the Registrant being placed on the Sex Offenders Register for five years.

16. The Panel was satisfied that the Registrant had caused harm to the three patients who were the victims of his sexually motivated criminal conduct. The Panel was also satisfied that by virtue of being convicted of offences of such a serious nature, the Registrant had brought his profession into disrepute. In view of the nature of the offences, the time period over which they occurred and in the absence of any evidence of insight or remediation, the Panel was not satisfied that the risk of repetition was low. The Panel was also satisfied that by virtue of his convictions the Registrant had breached fundamental tenets of his profession by behaviour which damaged public confidence in him and his profession. The Panel noted that the victim of the sexual assault in 2009 had stated that,” it must be alright because my Doctor referred me to him”. The Panel considered that the Registrant had abused his position as a physiotherapist and grossly breached the trust placed in him by his patients.

17. Taking all matters into consideration, the Panel was satisfied that reasonable members of the public would be alarmed if the Registrant was allowed to continue to practise as a Physiotherapist unrestricted. The Panel concluded that public confidence in the profession and its Regulator would be undermined were a finding of impairment not made.

18. For all these reasons, the Panel found that the Registrant’s fitness to practise is impaired by reason of his conviction.

Decision on Sanction:

18. The Panel considered the submissions made by Ms Young on behalf of the HCPC. The Panel received and accepted the advice of the Legal Assessor.

19. The Panel was mindful that the purpose of any sanction was not to punish the Registrant but to protect the public and maintain public confidence in the profession and the HCPC as its regulator, by the maintenance of proper standards of conduct and behaviour.

20.  The Panel had regard to the Indicative Sanctions Policy. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of seriousness.

21.   In determining the appropriate and proportionate sanction, the Panel had regard to the facts giving rise to the Registrant’s conviction, the Judge’s sentencing remarks and the length of the sentence imposed including the ancillary order made. In considering aggravating factors, the Panel noted the Judge’s remarks that in relation to three separate women, the Registrant abused the trust which they reposed in him. The Panel also noted that the offences were repeated over a large number of years and were all committed on patients in the course of the Registrant’s practice as a Physiotherapist. As mitigating factors, the Panel noted that the Judge accepted that the Registrant was a well-regarded Physiotherapist and had no previous criminal convictions. The Panel also noted that the Registrant had provided positive testimonial evidence at his criminal trial and was aged 69 years old at that time and was not in the best of health.

22.   The Panel first considered taking no action, however it concluded that this would be inappropriate and would not be sufficient to protect service users or the reputation of the profession. The Panel considered that, due to the seriousness of the conviction this was not an appropriate case for mediation or a caution order. The Panel was unable to formulate any practical or workable conditions, given that the Registrant is a serving prisoner. The Panel considered that a suspension order, which can only be for a maximum period of 12 months was not appropriate, given that it would end before the Registrant’s sentence and inclusion on the Sex Offenders Register had expired.

23.   The Panel had regard to the guidance as to when a striking off order was appropriate. The Panel concluded that the matters for which the Registrant was convicted were of such level of seriousness that it was incompatible for him to remain on the register as a Physiotherapist.

24.    For these reasons, the Panel concluded that the only appropriate and proportionate sanction was a striking off order.

Order

Order: The Registrar is directed to strike the name of David N Clay from the Register on the date this order comes into effect.

The order imposed today will apply from 30 August 2016.

Right of Appeal:

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

Under Article 29(10) of the Health and Social Work 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:

The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work 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.

European alert mechanism:

In accordance with Regulation 67 of the European Union (Recognition of Professional Qualifications) Regulations 2015, the HCPC will inform the competent authorities in all other EEA States that your right to practise has been prohibited.

You may appeal to the County Court against the HCPC’s decision to do so.  Any appeal must be made within 28 days of the date when this notice is served on you.  This right of appeal is separate from your right to appeal against the decision and order of the Panel.

Notes

No notes available

Hearing History

History of Hearings for David N Clay

Date Panel Hearing type Outcomes / Status
02/08/2016 Conduct and Competence Committee Final Hearing Struck off
11/03/2016 Investigating committee Interim Order Review Interim Suspension
22/12/2015 Conduct and Competence Committee Interim Order Review Interim Suspension
17/08/2015 Investigating committee Interim Order Review Interim Suspension
29/05/2015 Investigating committee Interim Order Review Interim Suspension