Mr Venkata Naga S Syagamreddy

Profession: Physiotherapist

Registration Number: PH102912

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 04/11/2016 End: 17:00 04/11/2016

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

Allegation (As amended at the final hearing)

1. On 28 February 2016 you were cautioned by Durham Constabulary for an offence on 30 November 2015 of Sexual Assault on a Female 16 years or Over – No Penetration.

2. By reason of your caution as set out at paragraph 1, your fitness to practise as Physiotherapist is impaired.

Finding

Preliminary Matters
Proof of Service
1. The Panel was provided with a signed Certificate of Registration as proof that the Notice of Hearing had been sent in a letter, dated 8 August 2016, by First Class post, to the address shown for the Registrant on the HCPC register.  The Panel was satisfied that Notice had been properly served in accordance with Rule 3 (Proof of Service) and Rule 6 (date, time and venue) of the Conduct & Competence Committee Rules 2003 (as amended).

Proceeding in Absence
2. Having determined that service of the Notice of Hearing had been properly effected, the HCPC applied for the hearing to proceed in the absence of the Registrant, as permitted by Rule 11 of the Conduct & Competence Rules 2003 (as amended). The Panel was advised by the Legal Assessor and followed that advice. The Panel also took into account the guidance as set out in the HCPC Practice Note “Proceeding in the Absence of the Registrant” dated September 2016.

3. The Panel determined that it was reasonable and in the public interest to proceed with the hearing for the following reasons:
(i) The Registrant has not engaged with the regulatory process. The Panel noted that the Registrant was aware during the employment disciplinary process, that he would be reported to the HCPC, as confirmed by the letter, dated 4 December 2015, from his former employer. Despite correspondence being sent to the Registrant from the HCPC by post and email throughout these proceedings there has been no response from him.  The Panel was satisfied that the Registrant’s non-attendance was voluntary and therefore a deliberate waiver of his right to attend.
(ii) The Registrant has not made an application to adjourn and there is no indication that even if the case were to be adjourned that he would attend on any future date.
(iii) Although there is a disadvantage to the Registrant in not being able to make submissions, the Panel was satisfied that this was outweighed by the public interest in ensuring that this Final Hearing commences and proceeds expeditiously.

Application to Amend
4. Mr Tallis, on behalf of the HCPC, made an application to amend the Allegation by deleting ’13 years’ and replacing it with ’16 years’ to reflect the correct wording of the criminal offence. The Panel noted that the Registrant had been put on notice of the proposed amendment in a letter dated 27 October 2016 and that no objection had been raised.  The Panel was satisfied that the amendment corrected a minor error and enabled the HCPC case to be accurately reflected in the Allegation.  In these circumstances the Panel determined that the proposed amendment would cause no injustice to the Registrant and therefore the application to amend was granted.

Background
5. On 30 November 2015, Service User A visited a commercial gym in Durham for her sixth and last scheduled appointment with the Registrant. She subsequently informed the Police that the previous 5 treatments had consisted of the Registrant massaging her back and shoulders. Service User A confirms that she unfastened her bra when lying face down on the massage table during the first 5 treatments. However, she stated that she always fastened her bra or the Registrant did prior to her changing positions and lying on her back.

6. Servicer User A confirmed to the Police in her written witness statement that during the appointment on 30 November 2015, the Registrant placed his hands inside her bra and massaged her breasts and rubbed her nipples between his fingers for approximately 2 - 5 minutes. Service User A felt as though she was ‘frozen’ during this incident and did not know what to do. She has described how she went home from the gym in a state of distress, telling her mother and boyfriend what had happened. The next day she contacted the gym to report what had happened. On the following day, 2 December 2015, Service User A reported the incident to the Police.  In her statement she describes how she was affected by these events, including being distressed, tearful, “really insecure” and shocked by the Registrant’s behaviour, and anxious about consulting with male healthcare professionals in the future.

7. On 28 February 2016, the Registrant accepted a police caution for Sexual Assault on a Female 16 years or Over - No Penetration. 

Decision on Facts and Grounds
Panel’s Approach
8. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything and the particular of the Allegation could only be found proved, if the Panel was satisfied, on the balance of probabilities.

9. In reaching its decision the Panel took into account the written and documentary evidence, including the internal employer investigation as well as the oral submissions of Mr Tallis, on behalf of the HCPC.

10. The Panel noted that the Registrant made certain ‘admissions’ in his oral responses during the internal employer investigation. However, he has not engaged with the regulatory process and the Panel proceeded on the basis that none of the allegations were admitted.

11. The Panel drew no adverse inferences from the Registrant’s absence.

Decision
Particular 1 – Found Proved
‘On 28 February 2016 you were cautioned by Durham Constabulary for an offence on 30 November 2015 of Sexual Assault on a Female 16 years or Over – No Penetration;’

12. The Panel accepted the documentary evidence from Durham Police that on 28 February 2016 the Registrant had signed and accepted a police caution for sexual assault.

13. The Panel was therefore satisfied the facts and grounds have been proved.

Decision on Impairment
Panel’s Approach
14. The Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. The Panel received the submissions of Mr Tallis on behalf of the HCPC. The Panel took into account the HCPC Practice Note: “Finding that Fitness to Practise is Impaired” and accepted the advice of the Legal Assessor.

15. The Panel accepted the submissions of the HCPC and legal assessor that it could not go behind the facts of the caution.

16. In determining current impairment the Panel had regard to the following aspects:
• The aggravating and mitigating features of the case;
• The ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and
• The ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

Panel’s Decision
17. With regard to mitigating features, the Panel was not aware of any previous relevant adverse events and therefore accepted that this was a single one-off incident. The Registrant appeared to be committed to a career in physiotherapy with a genuine desire to help people. The Registrant’s former manager spoke positively of him, during his interview, as part of the disciplinary investigation. The manager stated, ‘He’s generally been a good performer, there’s no real issues that I’ve had with him to date, he’s always done his notes on time, he’s always had his reports written to a good standard’.  The manager also stated, ‘…he did have a good background in regards to the technical knowledge and some practical skills as well.’

18. With regard to the aggravating features the Panel noted the following:
(a) The admitted offence clearly represents an abuse of trust. The Registrant was at the time of the offence working as a physiotherapist and the criminal behaviour occurred in the clinical setting with a patient;
(b) the offence was clearly sexually motivated behaviour
(c) the behaviour caused actual harm;
(d) the Registrant made limited admissions in his disciplinary interview as to some of the events that had occurred but did not admit the full facts of what had happened, and appeared to have very limited understanding of inappropriateness of what he had done or the impact on the patient;

19. The Panel considered the HCPC Standards of Conduct and Ethics and was satisfied that the Registrant’s conduct breached the following standards:
(a) 1 – You must act in the best interests of service users; and
(b)  13 – You must behave with …integrity and make sure your behaviour does not damage the public’s confidence in you or your profession.

20. Whilst there was no admission by the Registrant to a sexual assault during his employer’s internal investigation, the Panel noted that his acceptance of the police caution indicates that there was sufficient evidence to prosecute and that the Registrant made an unequivocal admission to the police.

21. The Panel considered the Registrant’s current fitness to practise firstly from the personal perspective and then from the wider public perspective.

22. The Panel noted that the Registrant has not demonstrated that he has reflected on his behaviour. In his interview during the internal investigation, there were no clear expressions of remorse for the impact his behaviour had on Service User A.

23. Furthermore, as there has been no engagement from the Registrant in these proceedings there is no evidence before the Panel that he fully appreciates the gravity of his conduct, there is no explanation as to how he would behave differently in the future and no assurance that such serious conduct would not be repeated.

24. The Panel recognised that demonstrating remediation in a case involving sexually motivated behaviour is particularly difficult, as it is reliant on attitude, which can often only be inferred from conduct. 

25. In any event, in the absence of any information with regards to the Registrant’s current level of insight and any steps he has taken towards remediation, the Panel concluded that there is a real risk of repetition.

26. The Panel concluded that for these reasons the Registrant’s fitness to practise is currently impaired based on the personal component.

27. In considering the public component the Panel had regard to the critically important public policy issues which include the need to protect the public, maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour.

28. The Panel has already concluded that there is a serious risk of repetition by this Registrant of the events that led to his police caution. The Panel is also satisfied that were these events to be repeated there would be a significant risk of serious harm being caused to another person. In these circumstances the Panel concludes that there is a need to protect the public from this Registrant, sufficient to justify a finding of current impairment.

29. The Panel is satisfied that by being subject of a police caution for sexual assault committed within the clinical setting  the Registrant has brought the profession into disrepute as evidenced by Service User A’s response to these events.  The Panel is satisfied that public confidence in the profession and the regulator would be undermined were there to be no finding of impairment in a case involving Registrant with a caution for sexual assault.

30. Similarly, professional standards would be undermined were there to be no finding of impairment.

31. In all the circumstances the Panel determined that public trust and confidence in, and the reputation of, the profession would be undermined if a finding of impairment is not made as would professional standards.

32. The Panel therefore concludes that the Registrant’s current fitness to practise is impaired on the basis of both the personal component and the wider public interest and therefore the HCPC’s case is well-founded.

Decision on Sanction
Panel’s Approach
33. The Panel accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of any sanction is not to punish the Registrant, but to protect the public and the wider public interest. The public interest includes maintaining public confidence in the profession and the HCPC as its regulator and upholding proper standards of conduct and behaviour. 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 severity.

34. The Panel had regard to the Indicative Sanctions Policy (ISP) and took into account the submissions made by Mr Tallis, on behalf of the HCPC.

35. The Panel also took into account the aggravating and mitigating factors it had identified at the impairment stage.
Panel’s Decision
36. The Panel first considered taking no action. The Panel concluded that, in view of the nature and seriousness of the Registrant’s conduct and in the absence of exceptional circumstances, to take no action on his registration would be wholly inappropriate. Furthermore it would be insufficient to protect the public, maintain public confidence and uphold the reputation of the profession.

37. The Panel then considered a Caution Order.  The Panel noted paragraph 22 of the ISP which states:
“A caution order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate action…A caution order is unlikely to be appropriate in cases where the registrant lacks insight.”

38. In view of the Panel’s findings that the Registrant has demonstrated no insight into his behaviour, nor provided evidence of remediation, and that the possibility therefore remains that his behaviour will be repeated, the Panel concluded that a Caution Order would be inappropriate and insufficient to meet the public interest.

39. The Panel went on to consider a Conditions of Practice Order. The Panel noted that the ISP states:
‘The imposition of conditions requires a commitment on the part of the registrant to resolve matters and therefore conditions of practice are unlikely to be suitable in cases:
• [where] the registrant lacks insight…
• Involving…the abuse of service users”.

40. The Registrant’s conduct is not amenable to conditions, as the basis for this type of behaviour is an attitudinal failing. The Panel concluded that it would not be possible to formulate conditions which would be workable, measurable or proportionate. Furthermore, as the Registrant has not engaged with the regulatory process the Panel could have no confidence that he would comply with conditions even if appropriate conditions could be formulated. In any event, the Panel concluded that conditions would not adequately address the serious nature of the Registrant’s sexualised behaviour towards a patient in a clinical setting and so would undermine public confidence in the profession and undermine the need to uphold standards of conduct and behaviour.

41. The Panel next considered a Suspension Order. There has been no demonstration of insight, no evidence of remediation or a willingness to remediate and no evidence of reflection. As a consequence, the Panel concluded that the Registrant continues to pose a risk to service users. A Suspension Order would provide adequate public protection because it would address the identified risk of harm by preventing the Registrant from practising during the suspension period. However, in the Panel’s view the nature and seriousness of the Registrant’s actions has brought the profession into disrepute and has the potential to seriously undermine public confidence in the profession. In these circumstances a Suspension Order would not be sufficient to maintain public confidence in the profession and the regulatory process. It would also not have a sufficient deterrent effect on other Registrants. 

42. Having determined that a Suspension Order does not meet the public interest the Panel determined that the Registrant’s name should be removed from the Register. A Striking Off Order is a sanction of last resort and should be reserved for those cases where there is no other means of protecting the public or the wider public interest. The Panel decided that the Registrant’s case falls into this category because of the nature and gravity of his sexualised behaviour towards a vulnerable patient, his lack of insight and the high risk of repetition.

43. The Panel was satisfied that any lesser sanction would undermine public confidence in the profession. The Panel had regard to the impact a Striking Off Order could have on the Registrant, but concluded that his interests were significantly outweighed by the Panel’s duty to give priority to the significant public interest concerns raised by this case.

44. The Panel decided that the appropriate and proportionate order is a Striking Off Order.

Order

That the Registrar is directed to strike the name of Mr Venkata Naga S Syagamreddy from the Register on the date this order comes into effect.

Notes

The Order will come into effect on 02 December 2016. An Interim Suspension Order was imposed to cover the appeal period.

Hearing History

History of Hearings for Mr Venkata Naga S Syagamreddy

Date Panel Hearing type Outcomes / Status
04/11/2016 Conduct and Competence Committee Final Hearing Struck off