Mr Nayan S Karsan

Profession: Physiotherapist

Registration Number: PH93506

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 16/09/2016 End: 16:00 20/09/2016

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

Panel: Conduct and Competence Committee
Outcome: No further action

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Allegation

During the course of your employment as a Physiotherapist at Sheffield Teaching Hospitals NHS Foundation Trust between 29 July 2013 and 21 November 2013 you:

 

1. During a consultation on or around 11 November 2013, in relation to Service User A who had sustained a painful lump on her left side, you:

 

a) Did not seek the service user’s permission to place your hands under her top;

 

b) Touched her breasts without permission;

 

c) Used inappropriate language during the consultation in that you repeatedly used the word “shit”.

 

2. Your conduct referred to at paragraphs 1(a) and/or 1(b) above was:

 

(a) not clinically indicated; and/or

 

(b) inappropriate; and/or

 

(c) sexually motivated.

 

3. The matters set out in paragraphs 1 and 2 constitute misconduct and/or lack of competence

4. By reason of your misconduct and/or lack of competence your fitness to practise is impaired. 

Finding

Background:


1. The Registrant was contracted to Sheffield Teaching Hospitals NHS Foundation Trust through Sanctuary Allied Health Locum Agency as a Band 6 Specialist Musculoskeletal Physiotherapist from July 2013. He was based with the PhysioWorks Team. He was responsible for providing physiotherapy services to service users with musculoskeletal conditions referred by their General Practitioner (GP).


2. Sheffield Teaching Hospitals NHS Foundation Trust received a complaint by email from Service User A on 18 November 2013 in relation to the Registrant. Service User A had an appointment with the Registrant on 11 November 2013 for treatment to a lump on the left rib. Service User A alleged that during the appointment, the Registrant had acted unprofessionally in a number of ways and that he had touched her in what seemed to her an inappropriate way.


3. Witness 2, Service Lead and Consultant Physiotherapist, was notified of the complaint by the Patient Services Team, and she investigated this matter further.


4. The matter was then referred to the HCPC.

The evidence
5. The Panel heard oral evidence on oath from the following:
a) Service User A
b) Witness 2
c) The Registrant
d) Witness 3
e) Witness 4
6. The Panel also received bundles of evidence from the HCPC and the Registrant. These bundles contained statements accepted into evidence and other documentary evidence.

Evidence of Service User A
7. Service User A gave evidence on oath. She stated that she had been referred for physiotherapy by her General Practitioner as she had a painful lump on her left rib following a fall in February 2013. Her appointment with Registrant was on 11 November 2013.


8. Service User A told the Panel that when she entered the room where the Registrant was working, the Registrant appeared distant as though his mind was elsewhere and that he was not concentrating on what she was telling him. She stated that the Registrant mistook, more than once, which side the lump was located. After he felt the lump over her top, he asked her to get on the ‘bed’ on “all fours”. When she was shown a picture of a physiotherapist’s plinth, she confirmed that the ‘bed’ she referred to was a physiotherapist’s plinth.


9. Service User A told the Panel that the Registrant swore several times using the word ‘shit’ when he became frustrated. She acknowledged that the swearing was not directed at her.


10. Service User A stated that the Registrant asked her to stretch forward with both her hands together which she did. She told the Panel that her top came away from her stomach and was hanging down due to the position she was in. 

11. Service User A stated that the Registrant moved to stand behind her and  pressed himself against her bottom. She could not tell which part of the Registrant’s body was pressing into her. She told the Panel that the Registrant then slid both of his hands up the gap between her top and her stomach, briefly cupped her breasts, and squeezed them before letting go. The Registrant then adjusted her top and asked her to get off the plinth.


12. Service User A told the Panel that she was shocked by the Registrant’s actions and that she was expecting him to apologise as she thought he might have done it by accident. She stated that the Registrant did use both hands and because he squeezed her breasts, she did not think it could have been an accident.  She told the Panel that the Registrant did not give an, explanation as to where or why he was going to touch her during the consultation.


13. Service User A told the Panel that she did not discuss what had happened during the appointment with the Registrant or anyone else at the time as there was another immediate issue she had to deal with, namely, that on the way to the appointment the exhaust had fallen off her car. She stated that the issue with her car’s exhaust was all that she was thinking about and that she did not think about what had happened to her during the appointment until she was at  the garage whilst her car was being repaired. Service User A stated that at that point in time, she became upset and angry. She thought that the Registrant had touched her when he should not have done and she decided then to put together an email of complaint. There were, however, some inconsistencies during her oral evidence about this. She sent the email to the Patient Service Team on 18 November 2013. She told the Panel that she spoke to Witness 2 on the telephone on 25 November 2013, and then attended a meeting with Witness 2 on 3 December 2013 about her complaint.


14. In cross-examination she stated that when she got onto the plinth, she positioned herself at the bottom end of the plinth and that the plinth was about one metre above the ground. She did not accept that the most logical and stable point on the plinth was in the middle, and therefore she would have positioned herself there as opposed to the end of the plinth. She stated that she was doing what she was told to do.


15. Service User A accepted that, if she was in the position she described, the Registrant would have had to lean forward approximately one or two feet in order to press against her bottom. She also accepted that if the Registrant had then reached further in order to cup her breasts, he would have had to exert significant pressure on her. It was pointed out to her that in her interview with Witness 2 on the 18 November 2013, that she had made no mention of the Registrant pressing against her bottom. She replied that she did not know how far forward the Registrant had leaned, and that all she knew was what she felt at the time.
16. In cross – examination Service User A did not accept that the Registrant stood at her side throughout nor did she accept that he did not lean against her bottom or touch her breasts.
17. Mr Newman pointed out to Service User A that her description of the touching changed over time in that it is described:
a) In her email of 18 November 2013 as, ‘what seemed to be inappropriate’;
b) In her meeting with Witness 2 on 3 December 2016 as, ‘placing his hands under her top and touched her breasts’ and ‘although he did not fully encompass her breasts with his full hands, he had cupped her breasts.’
c) In her witness statement as, ‘as he stood behind me he pressed himself up against my bottom….he cupped my breasts, briefly squeezed them, and then let go.’


18. Service User A did not accept that her version of events had become embellished over time although she accepted that her memory would have been fresher closer to the time.
Evidence of Witness 2


19. Witness 2 gave evidence on oath. She told the Panel that at the time of these matters she was employed by Sheffield Teaching Hospitals NHS Foundation Trust as the Service Lead and Consultant Physiotherapist for the PhysioWorks Team. She was responsible for providing clinical and operational leadership to PhysioWorks in Sheffield.


20. Witness 2 told the Panel that she knew the Registrant as she worked in a clinical capacity in the same building as the Registrant but had never worked with him directly.

21. Witness 2 outlined her role as the person investigating these matters and what she did as part of her investigation. She told the Panel that when she met Service User A on 3 December 2013, Service User A appeared very uncomfortable and upset and that Service User A said that her family had encouraged her to come forward.


22. She told the Panel that in her opinion, based on the clinical presentation described to her by Service User A, it was unlikely that the Registrant would have needed to touch Service User A’s breasts. She also outlined the policy in relation to seeking consent from patients before making physical contact with them.


23. Witness 2 accepted that she could not give any evidence as to what actually occurred in the consultation room as she had not been present. She told the Panel that the Registrant had stated he could not recall the session with Service User A.


24. Witness 2 was asked where she would ask service users to place themselves on the plinth. She stated that she usually did not direct them but told the Panel that service users tended to place themselves at the middle or more towards the top end. When asked what she would do if a service user placed themselves at the bottom end of the plinth, she replied that she would ask them to shuffle up to the middle.

Evidence of the Registrant
25. The Registrant gave evidence on oath. He stated that he could not remember the appointment when he spoke to Witness 2 because there was nothing that stood out that would enable him to recall it. He told the Panel that part of the problem in remembering the appointment was that he had not been shown the patient notes at the time of the allegation.  All he was told was the patient’s name, date and time of the appointment and that a patient had raised an allegation of inappropriate touching against him.


26. The Registrant stated that, not withstanding he could not remember the actual appointment, he would not have placed himself behind a service user in that position, nor would he have pressed himself against her bottom,  nor would he have reached under her top, nor would he have cupped and squeezed Service User A’s breasts. He told the Panel that it was not in his character to do such things.


27. He told the Panel he believed that Service User A would have been situated in the middle of the plinth, and that had she positioned herself at the bottom of the plinth as she says she did, he would have asked her to move up to the middle of the plinth. He stated that this was because that was the most stable position on the plinth as the centre of gravity is located on that line, and his duty of care to his patients is to keep them secure and safe.


28. The Registrant reiterated that he would not have placed himself behind Service User A when she was in the ‘all fours’ position. He told the Panel that this was because, in his experience, it was better to be beside a service user and that there would be no benefit to stand behind a patient.


29. The Registrant accepted that at the time he did swear during consultations, and used the word ‘shit’ on occasions when he was frustrated with equipment or himself. He stated that he never directed such swearing at individual patients. He told the Panel that he accepted the particular in relation to the swearing even though he could not remember the appointment in question because it was highly likely that he did swear as described by Service User A. He told the Panel that he was very sorry for swearing and that he realised that it made him look stupid and unprofessional and affected the image of his profession. He stated that at the time swearing had become a habit and that he no longer swears.  He is aware of the effect it can have on others and would not like it if he or his family experienced a professional swearing during a consultation.  


30. The Registrant told the Panel of his experience, which included working in several overseas locations, and in diverse areas of practice. He stated that he has never had any allegations of this nature brought against him because he has never done anything like this. He told the Panel that inappropriate touching of this nature was against his nature, culture and beliefs.
Evidence of Witness 3 and Witness 4


31. Witness 3 and 4 gave oral evidence by telephone on behalf of the Registrant. They both outlined the background to how they knew the Registrant and how long they had known him for. Witness 3 in particular, told the Panel of his high opinion of the Registrant and of the Registrant’s character as he perceived it to be.


32. The Panel considered all the evidence in this case together with the submissions made by Ms Thompson on behalf of the HCPC, and by Mr Newman on behalf of the Registrant.


33. The Panel accepted the advice of the Legal Assessor who reminded the Panel that the burden of proof rests with the HCPC, and that the Registrant need not disprove anything. The Legal Assessor also reminded the Panel that the standard of proof is the civil standard, namely the balance of probabilities. This means if the Panel was satisfied that it was more likely than not a factual particular occurred as alleged or is true, then it must find that Particular proved.

Decision on Facts:
Particular 1
34. The Panel found Service User A to be a credible witness who was generally consistent. However, parts of her evidence were inconsistent. The Panel noted and accepted that her description of the touching was inconsistent and had escalated over time.


35. The Panel noted that Service User A was adamant as to her position on the plinth. However, the Panel determined that if she was at the end of the plinth as she says was, and was in the position described, it is unlikely that the Registrant would have been able place his hands under her top, and to reach her breasts in order to cup and squeeze them, without exerting considerable pressure on Service User A. The Panel considered it likely that the Registrant would have had to be lying across her back, and his body weight would therefore have exerted a significant amount of pressure on her back and not her bottom. Further, it would not be described as ‘pressing against her bottom’. In the light of the above, and in the absence of any other evidence to the contrary, the Panel cannot be satisfied on the balance of probabilities that the Registrant acted in the manner that the HCPC alleges.


36. The Panel accepted that, from Service User A’s point of view, it was an unsatisfactory appointment where she felt the Registrant was not focussed and did not to listen to her, and also used the word ‘shit’ several times when he was frustrated at the equipment or himself.


37. The Panel found Witness 2 to be a credible and honest witness. She corrected some errors in her evidence without prompting and was clear in her evidence. However she was not present at the consultation and therefore her evidence on the matter is limited to what she was told by Service User A and the Registrant as to what happened.


38. The Panel found the Registrant’s evidence to be credible and honest. The Panel accepted that it was plausible that the Registrant could not remember the consultation session at the time he was informed of the allegation some 10 days later in the light of the fact that he was not shown the patient notes as a reference, and that he would have seen  some 50-70 patients in the intervening period. 


39. The Panel heard oral evidence, again by telephone, from Mr Ghosh and Mr Leggett who provided character evidence on behalf of the Registrant.  Mr Ghosh, is older than the Registrant and has known him for 24 years since the Registrant was a child. Mr Leggett was a Senior Consultant at Sanctuary Personnel who had been dealing with the work placement of the Registrant for several years. They both gave consistent and helpful evidence in relation to the Registrant’s character and integrity.


40. The Panel also received evidence which included:
• The feedback forms from various patients; and
• Written references from employers where the Registrant had undertaken locum work.


41. The Panel cannot determine if the feedback forms were representative of all his patients’ views, and also noted that the written references come from people who do not indicate whether or not they had full knowledge of the allegations against the Registrant. In addition, some of the references pre-date these matters. However, they show there is no similar allegation made against the Registrant of inappropriate touching either prior to these matters or since. They also demonstrate that the Registrant is a consistent professional with good integrity.

Particular 1(a)
42. Implicit in this Particular is that the Registrant did not seek Service User A’s permission to place his hands under her top before doing so. The Panel has indicated that the HCPC has not proved that the Registrant acted in the manner alleged. In the circumstances, there was no reason to seek Service User A’s permission to do so and thus the HCPC has not discharged its burden of proof.


43. Particular 1(a) is found not proved.
Particular 1(b)


44. In the light of the Panel determining that the HCPC has not proved that the Registrant acted in the manner alleged, the HCPC has not discharged its burden of proof in regard to this Particular.
45. Particular 1(b) is found not proved.
Particular 1(c)


46. The evidence of Service User A on this has remained consistent.  The Registrant, even though he had no recollection of the session,   nevertheless accepted that he swore during it by using the word ‘shit’, as this was something he was in the habit of doing at the time.  It was accepted by all parties that the Registrant’s swearing was not directed at Service User A. Rather it was used in his frustration and directed at either the equipment or at himself. The Panel determined that there was a case to answer and that it was appropriate to accept the Registrant’s admission and find this matter proved.
Particular 2


47. In the light of the Panel’s determination that the conduct referred to in 1(a) and 1(b) was not proved, Particulars 2(a), 2(b) and 2(c) are also found not proved.


Decision on Statutory Grounds
Submissions
48. Having made its findings on fact, the Panel heard further submissions and evidence from Ms Thompson on behalf of the HCPC, and Mr Newman on behalf of the Registrant.


49. Ms Thompson submitted that Misconduct was the appropriate statutory ground to be applied in this case. The competence of the Registrant as a physiotherapist is not in question. She posed the following question for the consideration of the Panel: “Was the behaviour of the Registrant professional, and whether that is behaviour to be expected of a Registrant in the circumstances?” Ms Thompson submitted that the behaviour of the Registrant at the time was not professional and fell far below what expected of him.


50. Mr Newman, on behalf of the Registrant, accepted that the Registrant’s usage of the word “shit” was not professional and it was behaviour that was not expected of any professional. However, he reminded the Panel that ‘misconduct’ for the purposes of these proceedings meant serious professional misconduct. Mr Newman submitted that the usage of the word did not amount to serious professional misconduct for the following reasons:
a) the usage was not aimed at any person;
b) it was an expression of frustration at himself, and at the equipment;
c) it not used with intent to cause offence;

Reasons
51. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the decisions in the following cases:
a) Calhaem v GMC [2007] EWHC 2606 (Admin)
b) Roylance v GMC (2000) 1 AC 311

52. The Panel reminded itself that there is a two-stage process in relation to impairment by reason of misconduct. The Panel recognised that it must first consider whether, on the facts found proved, the Registrant’s behaviour constituted misconduct, and secondly, if applicable, whether his fitness to practise is currently impaired by reason of that misconduct.


53. The panel exercised its own judgement in determining the issue before it. In considering the Registrant’s fitness to practise, the panel reminded itself of its duty to protect patients, and of its wider duty to protect the public interest, which includes the declaring and upholding of proper standards of conduct and behaviour, and the maintenance of public confidence in the profession and the regulatory process.


54. The Panel reminded itself of the advice of the Legal Assessor. He had reminded the Panel that misconduct is “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances.” His advice was that misconduct is a term of art in these proceedings and that it meant ‘serious misconduct’. He stressed that misconduct is qualified by the word “serious”. It is not just any professional misconduct which will qualify.


55. The Panel also reminded itself that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC standards would be sufficiently serious such as to amount to misconduct in this context. Therefore, the Panel has had careful regard to the context and circumstances of the matter found proved.


56. The Panel determined that the Registrant’s use of the word “shit” was not professional and fell below what was expected of a physiotherapist in the circumstance. It was not language that was to be used by a physiotherapist at any stage of their careers, when dealing with service users.  Such usage was misconduct. However, in the light of the circumstances of this case, which are that:
a) the Registrant’s actions related to one appointment in the Registrant’s career; and
b) the usage was not directed  at any one, nor used with intent to cause offence
the Panel determined that the Registrant’s misconduct was not so serious so as to amount to professional misconduct.

 

Order

No information currently available

Notes

The Conduct and Competence Committee Panel Final Hearing of Mr Nayan S Karsan was originally scheduled to take place on Monday 29 February 2016 to Wednesday 02 March 2016 at 10.00am at HCPC London. The hearing was adjourned, with no evidence heard.

This Rescheduled Conduct and Competence Committee Panel Final Hearing took place on Friday 16 September 2016 and Monday 19 September 2016 to Tuesday 20 September 2016 at 10:00am at HCPC London.

Hearing History

History of Hearings for Mr Nayan S Karsan

Date Panel Hearing type Outcomes / Status
16/09/2016 Conduct and Competence Committee Final Hearing No further action
29/02/2016 Conduct and Competence Committee Final Hearing Adjourned