Mr Leith R T Brown

Profession: Physiotherapist

Registration Number: PH30449

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 23/01/2017 End: 17:00 24/01/2017

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

While you were engaged in duties as a Physiotherapist at Physiolink:


1. On 19 August 2015, in providing treatment to Patient A, you:
a. i) attempted to touch Patient A's breasts;
ii) your actions at paragraph 1ai) were not clinically necessary.

 

b. i) touched Patient A's bottom
ii) your actions at paragraph 1bi) were not clinically necessary.

 

2. Your actions as described in paragraph 1 were sexually motivated.

 

3. The matters described in paragraphs 1 and 2 constitute misconduct.

 

4. By reason of your misconduct, your fitness to practise as a Physiotherapist is impaired.

Finding

Preliminary matters
Application to amend
1. At the outset of proceedings, Ms Sharpe made an unopposed application to amend the Allegation. Notice had been provided to the Registrant in a letter from the HCPC dated 1 December 2016.

2. The stated purpose of the application was to provide clarification. Particular 1 was to be amended as follows:
a. i) attempted to touch Patient A's breasts;
ii) your actions at paragraph 1ai) were not clinically necessary.
b. i) touched Patient A's bottom
ii) your actions at paragraph 1bi) were not clinically necessary.

3. The Panel determined that it was in the interests of justice to grant the application.

Background
4. Having obtained a number of academic qualifications in the field of physiotherapy in New Zealand and Australia, the Registrant started to work in private practice in the UK in 1983.

5. The Registrant found work as a self-employed locum physiotherapist at Physiolink, a clinic based in Harrow, on the 22 July 2015 for an initial period of 12 weeks.

6. Patient A was first treated by the Registrant at Physiolink on 11 August 2015, having been referred there by her General Practitioner. She had been suffering severe pain in the neck, shoulder and upper back areas. Nothing untoward took place on this occasion.

7. Patient A returned for a second treatment, to be conducted by the Registrant on 19 August 2015.

8. During this session, it is alleged that the Registrant made contact with the side of his patient’s breasts whilst she was lying on her front, fully dressed. Patient A claims the Registrant was trying to touch the front of her breasts. There was no clinical justification for this.

9. Furthermore, it is contended by Patient A that, a second or so later, the Registrant ran his hand over the whole of her bottom, again without any clinical justification.

10. These actions, it is said, were sexually motivated.

Decision on facts
11. The Panel has considered all of the documentary evidence placed before it and has had regard to the testimony of the two witnesses called by the HCPC and that of the Registrant himself. The Panel accepted the advice of the Legal Assessor.

12. It has also paid due regard to the closing submissions from each side.

13. In relation to disputed issues of fact, the Panel has reminded itself throughout that the burden of proof rests on the HCPC. It is not for the Registrant to prove any matter or disprove a contention advanced against him.

14. The standard of proof is the civil standard – on a ‘balance of probabilities’.

15. The Panel heard from two live witnesses called by the HCPC
• Patient A, the complainant
• Dr KC, the Practice Principal at Physiolink

16. The Panel found both these witnesses to be honest and entirely credible. In the case of Patient A her evidence was very clear and consistent. She gave it in a composed and comfortable manner. The Panel considered the possibility that she may have misinterpreted the Registrant’s actions, but dismissed it. The Panel was satisfied, to the requisite standard of proof, that the version of events that she gave was credible and reliable.

17. As far as Dr KC was concerned, much of what she had to say was irrelevant to the matters in dispute.

18. The Registrant gave evidence on his own behalf. The Panel found his evidence, in some regards, to be inconsistent. For instance, his explanation of what happened during the treatment changed, particularly in relation to what areas of Patient A’s body he may have touched. Furthermore, the Panel considered that it was unlikely that the Registrant had the detailed recollection of the events which he now claimed, and the Panel took the view that it had been constructed to meet the allegations against him rather than being a true recollection of events. Overall, the Panel was of the view that his account of the critical matters was unreliable.

19. With regard to the Particulars of the Allegation, the Panel made the following findings:

20. Particular 1(a)i – Proved
The Panel was satisfied that Patient A was telling the truth when she said that the Registrant attempted to touch her breasts, albeit for a brief period of time.

21. Particular 1(a)ii - Proved
In the context of the areas of Patient A’s body that required treatment, it is plain that these actions, as found proved in Particular 1(a)i, were not clinically necessary.

22. Particular 1(b)i – Proved
Again, the Panel accepted the evidence of Patient A that her bottom had been inappropriately touched by the Registrant.

23. Particular 1(b)ii – Proved
Following the logic of the decision taken by the Panel in relation to the allegation contained within Particular 1(a)ii, it was plain that these actions, equally, were not clinically necessary.

24. Particular 2 – Proved
In the overall context of what took place during the course of this treatment session, the Panel was satisfied that these actions of the Registrant were sexually motivated. The Panel could not identify any other credible reason as to why they occurred.

25. At the conclusion of the announcement of the Panel’s decision on facts, the Registrant voluntarily left the building. Mr Toms made no application to adjourn these proceedings and both parties were content that the next stage should take place in the absence of the Registrant. The Panel agreed this was an appropriate course.

Decision on grounds
26. Ms Sharpe submitted that the facts found proved amounted to misconduct. She invited the Panel to have regard to the HCPC’s Standards of conduct, performance and ethics and particularly drew its attention to Standards 1, 3 and 13:

1      You must act in the best interests of service users.
3      You must keep high standards of personal conduct.
13   You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.

27. Ms Sharpe also reminded the Panel of Standard 2 of the HCPC’s Standards of Proficiency for Physiotherapists:

2     be able to practise within the legal and ethical boundaries of their profession
2.7   be able to exercise a professional duty of care

28. Mr Toms, for his part, conceded that the facts found proved amounted to misconduct.

29. The Panel took account of these submissions and accepted the advice of the Legal Assessor. The Panel is satisfied, in the exercise of its own professional judgment, that the facts found proved amount to a serious departure from the standards to be expected of a registered physiotherapist.

30. To have engaged in what amounted to sexual assaults upon a female patient in the way described by Patient A cannot be said to amount to anything other than serious misconduct.

Decision on impairment 
31. The assessment of the question of current impairment, again, is a matter for the professional judgement of the Panel.

32. Ms Sharpe, in contending that the fitness to practise of the Registrant is currently impaired, emphasized what she described as examples of a significant lack of insight by the Registrant. In his evidence, for example, he made allegations that Patient A had been suffering from depression (hotly denied by Patient A) and that she had lied on her oath about the principal facts in dispute in this case.

33. In the context of the public component, Ms Sharpe addressed the Panel on the need to protect patients in circumstances such as those found proved by the Panel and also the need to uphold public confidence in the profession and the regulatory process.

34. Mr Toms did not seek to claim that his client was not currently impaired.

35. The Panel accepted the force of the submissions of Ms Sharpe and also took the view that there is a real risk of the Registrant repeating such conduct in the future. The Panel noted that these activities occurred only months after the imposition of a five year Caution Order for conducting an inappropriate sexual relationship with a previous patient whilst he provided her with clinical treatment. One of the allegations in that previous case concerned the caressing of the breast and the pubic area of the same patient. Although this particular allegation was found not proved, it should have had the effect of alerting the Registrant to the vulnerability of his position when treating female patients.

36. The Panel is conscious of its duty to protect the public interest and, in that role, is well aware that it has to protect patients, to declare and uphold proper standards or behaviour and to maintain public confidence in the profession and regulatory process

37. Bearing all these matters in mind, the Panel took the view that the fitness to practise of the Registrant is currently impaired.

Decision on sanction
38. In considering what sanction, if any, to impose the Panel took account of the submissions by each party.

39. Ms Sharpe submitted that the question of sanction was for the Panel’s professional judgment.

40. Mr Toms invited the Panel to conclude that justice would be done by the imposition of a Suspension Order. He provided the Panel with two recent testimonials from colleagues, both of whom spoke to the Registrant’s excellence as a Chartered Physiotherapist with over 30 years’ experience. According to them there have never been any complaints from patients about his clinical expertise since they started work alongside him in 2009.

41. Mr Toms emphasised that the Panel was considering a short lived, single incident, during the course of which Patient A remained fully clothed. He added that the conduct complained of was not accompanied by any inappropriate remarks.

42. The Panel accepted the advice of the Legal Assessor and has at all times had regard to the principle of proportionality. Whilst accepting the mitigation advanced by Mr Toms, the Panel nevertheless took the view that this was a very serious incident. It amounted to a sexual assault upon a patient who was in a vulnerable position. It was a clear abuse of trust which had a significant impact upon Patient A. She now has, as a result of this experience, an ongoing mistrust of male practitioners.

43. It is the view of the Panel that the Registrant has shown neither remorse nor insight.

44. As mentioned above, the gravity of the Registrant’s behaviour is exacerbated by it having taken place not long after the imposition of a Caution Order for earlier sexual impropriety with a patient.

45. The Panel is satisfied that the Registrant’s actions would be regarded as deplorable by fellow practitioners and the public at large, and, as such, needs to be marked with an appropriate and proportionate sanction.

46. It would clearly be inappropriate to conclude this case by taking no action or by referring it for mediation. Nor would it be appropriate to impose a Caution Order. None of these courses would serve to protect patients or maintain the standing of, and public confidence in, the profession.

47. The only information that the Panel has about the Registrant’s current employment is that recently he has taken a job in the field of Information Technology. A Conditions of Practice Order would be inappropriate and would fail to reflect the seriousness of the Registrant’s failings.

48. The Panel reminded itself of the contents of the Indicative Sanctions Policy and regarded the imposition of a Suspension Order to be inappropriate because, apart from anything else, it does not take the view that the conduct found proved is unlikely to be repeated.

49. The Panel noted, in particular, paragraphs 40 – 42 of the policy where it is said that “Striking Off is a sanction of last resort for serious acts involving abuse of trust such as sexual abuse.” It is further aware that “this sanction should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial”. All these constituents are present in this case.

50. Thus, the Panel’s view is that the only appropriate and proportionate sanction to impose is that of a Striking Off Order.

Order

That the Registrar is directed to strike the name of Mr Leith R T Brown from the Register on the date this order comes into effect.

Notes

The order imposed today will apply from 21 February 2017 (the operative date).

Hearing History

History of Hearings for Mr Leith R T Brown

Date Panel Hearing type Outcomes / Status
23/01/2017 Conduct and Competence Committee Final Hearing Struck off