Mr Mohamed Abouelrish

Profession: Physiotherapist

Registration Number: PH108919

Interim Order: Imposed on 27 Sep 2018

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 28/09/2018 End: 16:00 28/09/2018

Location: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Struck off

Please note that the decision can take up to 5 working days to be uploaded onto the HCPTS website. Please contact one of our Hearings Team Managers via tsteam@hcpts-uk.org or +44 (0)808 164 3084 if you require any further information.

 

Allegation

Whilst registered as a Physiotherapist, you :

1. on or around 25 February 2016, regarding Service User A :
a) asked if Service User A had a boyfriend
b) told Service User A she is beautiful
c) touched Service User A's breasts without any clinical reason for doing so
d) touched Service User A's buttocks without any clinical reason for doing so
e) took Service User A's hand and pressed it against your stomach
f) held Service User A's hand without any clinical reason for doing so

2. on or around 3 March 2016, regarding Service User A :
a) called Service User A "beautiful girl" or words to that effect
b) gave Service User A some chocolate
c) touched Service User A's knee without any clinical reason for doing so
d) touched Service User A's breasts without any clinical reason for doing so
e) touched Service User A's buttocks without any clinical reason for doing so
f) having asked Service User A to place her arms by her side with palms up, rubbed your genitals into her hands
g) held Service User A's hand without any clinical reason for doing so
h) touched between Service User A's buttocks with your facial stubble

3. Your actions in paragraphs 1(a)-(f) and/or 2(a)-(h) were sexually motivated;

4. The matters set out in paragraphs 1 - 3 constitute misconduct;

5. By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary Matters

Service

1. The Panel had information that Notice of today’s hearing, dated 18 April 2018, was sent by first class post on the same date to the Registrant’s registered address. The Panel accepted the advice of the Legal Assessor and determined that service had been effected in accordance with the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”).

Proceeding in Absence of the Registrant

2. Mr Ferson, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. He informed the Panel that the Registrant has not engaged with the HCPC at all since 9 February 2017 when he sent the HCPC an email asking about the Allegation against him. Mr Ferson informed the Panel that the Notice of hearing, sent to the Registrant’s registered address, had been returned and that he was no longer at that address.

3. The Panel read the HCPTS Practice Note entitled “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor. The Panel had sight of the documents which confirmed that the Notice, as well as being sent by post, had been emailed to the same address which the Registrant had used on 9 February 2017. In addition, a letter had been sent by the HCPC to the same email address, dated 20 February 2017, asking the Registrant to confirm that his current address was the same as that on the register. He had not replied, and there is a suggestion in the papers that the Registrant is no longer in the UK.
 
4. The Panel took into account that there is no application for an adjournment from the Registrant, and on the basis of the factors set out above, the Panel is satisfied that an adjournment is unlikely to secure his attendance in the future. The Panel acknowledged that there is a potential disadvantage to the Registrant in proceeding in his absence and took this into account. However, the Panel also took into account that the complainant in this case, Service User A, has attended to give evidence, and that she would be caused inconvenience and possible distress if the case were adjourned. The Panel also took into account the public interest that the hearing proceed expeditiously, particularly because the Allegation dates from 2016, and a further lapse of time beyond today may affect Service User A’s memory of the alleged events. In all the circumstances before it, taking into account the Registrant’s position, and fairness to him, the Panel was satisfied that it was in the public interest, as well as in the interests of justice, to proceed.

5. The Panel therefore decided to proceed in the Registrant’s absence.

Application for Special Measures

6. Mr Ferson applied for special measures to be applied to the manner in which Service User A was to give oral evidence, namely that it should be heard in private, pursuant to Rule 10A(3)(e). Mr Ferson submitted to the Panel that Service User A constituted a “vulnerable witness” pursuant to Rule 10A(1) of the Rules, namely that she is the alleged victim of an Allegation against the Registrant of a sexual nature, and that the quality of her evidence is likely to be adversely affected as a result. Mr Ferson relayed to the Panel that Service User A had expressed that she would not feel comfortable giving her evidence in public, that when told the press was present in the public gallery she became visibly upset, and that she did not want to be identified.

7. The Panel took into account the HCPTS Practice Note entitled “Special Measures’ and accepted the advice of the Legal Assessor. Although the Panel had not been presented with direct evidence of Service User A’s views and feelings, it was prepared to accept, from Mr Ferson’s submissions, that Service User A’s evidence would be adversely affected if she did not give her evidence in private. The Panel therefore accepted that she was a vulnerable witness, and determined that her evidence should be heard in private, pursuant to Rule 10A(2) of the Rules.

8. The Panel therefore acceded to the application for special measures and determined that Service User A’s evidence should be heard in private.  

Background

9. The Registrant is a registered Physiotherapist. The Registrant worked for a physiotherapy company, Physiobeats, as a temporary Physiotherapy Assistant over three dates in February and March 2016. Service User A made a complaint about the Registrant following two appointments with him. This complaint was subsequently investigated by the police, who interviewed the Registrant. Service User A also gave statements to the police. The police did not take the matter further, apparently because the Registrant is no longer residing in the UK.

Decision on Facts

10. The Panel read the hearing bundle, which included a written witness statement from Service User A, an initial undated email she wrote reporting the events, as well as statements given to the police. The Panel also heard live evidence from Service User A. The Panel also read a witness statement by Mr 1, Team Leader at Physiobeats, which was submitted as hearsay evidence for the Panel to read. The Registrant did not provide a written statement or submissions to the Panel. However, he was interviewed by the police with his solicitor and a summary of the interview was contained in the bundle.

11. During the oral evidence of Service User A, she was asked questions. These explored the Registrant’s position, as set out in the summary of his police interview and addressed any gaps and inconsistencies in her evidence.

12. The Panel was of the view that Service User A was a credible and clear witness, who did not exaggerate. Her answers were, in the Panel’s view, given naturally and in an unrehearsed manner. On a number of occasions she stated that she did not remember certain matters, for example, in relation to the timings of events. In the Panel’s view this added to her credibility.

13. The Panel considered the witness statement of Mr 1, which, pursuant to the Civil Evidence Act 1995, is admissible, although the crucial question is what weight to give to it. The Panel took into account that it is signed, and includes a statement of truth, and in it Mr 1 expresses a willingness to attend in person to give evidence. The Panel took into account Mr Ferson’s submissions that while there were initial difficulties for the HCPC in contacting Mr 1 as a potential witness, he did engage with the HCPC, and eventually the HCPC considered that it was not proportionate to call him as a witness, given that he mainly gives background information and exhibits documents.

14. The Panel took into account that Mr 1’s evidence was untested, and that this may undermine its cogency. In this regard, the Panel had in mind that the Allegation is a serious one and that it should consider any hearsay carefully. However, the Panel also took into account that Mr 1 was not an eye witness to the events, and Service User A, who gives the sole evidence as to the actual incidents, was present to give live evidence. There is no suggestion made by the Registrant or any other evidence that Mr 1 has reason to misrepresent matters or that the Registrant challenges his evidence. Nor is there a suggestion that he is a reluctant witness; the HCPC made a decision not to call him on the basis of proportionality.

15. Considering the above factors, the Panel decided to give Mr 1’s evidence some weight. Where it differed in its chronology with the evidence of Service User A, the Panel preferred the latter’s evidence. However, Mr 1 exhibited Service User A’s treatment records, and the Panel was of the view that these were clear, straightforward and cogent and therefore could be given weight. 

16. The Panel took into account the summary of the Registrant’s police interview as a summary of his position and response to the matters alleged against him. There was no other statement submitted by him to the Panel. The Panel drew no adverse inference from his absence when coming to its decision on whether or not the Particulars of the Allegation are proved.

17. The Panel heard the submissions of Mr Ferson regarding the facts and accepted the advice of the Legal Assessor. The Panel was aware that the burden of proof lies wholly on the HCPC and that the standard of proof is the civil standard, namely the balance of probabilities.

Particular 1 (the stem)

18. The Panel accepted from the evidence of Service User A and Mr 1, as well as the treatment records, that the Registrant, a registered Physiotherapist, first saw Service User A to provide physiotherapy treatment on 25 February 2016.

Particular 1(a) – Found Proved

19. Service User A made clear in her police statement as well as her oral evidence that the Registrant asked her if she had a boyfriend and that he “kept asking” her this.

20. In the summary of the Registrant’s police interview, there is no record of whether he asked this or not.

21. On the basis of Service User A’s clear evidence, the Panel found this Particular proved.

Particular 1(b) – Found Proved

22. Service User A made clear in her police statement as well as her oral evidence that the Registrant told her she “is beautiful”.

23. In the summary of the Registrant’s police interview, there was no record of whether he accepted whether he said this or not.

24. On the basis of Service User A’s clear evidence, the Panel found this Particular proved.

Particular 1(c) – Found Proved

25. Service User A stated in her police statement as well as her oral evidence that having voluntarily removed her jumper for treatment, and while lying face down on the treatment bed, the Registrant brushed both sides of her breasts once, over her vest top. In addition, while Service User A was sitting on the treatment bed, and while applying and releasing pressure to her arms, the Registrant stroked the sides of each breast with his open palms, again over her vest top. In her initial email, Service User A also referred to being touched on her breasts.

26. In the summary of his police interview, the Registrant denied that he touched Service User A’s breasts.

27. The Panel was of the view that Service User A’s evidence was clear and cogent about how the Registrant touched the sides of her breasts and accepted her evidence. Service User A’s evidence was that she had sought treatment having suffered a whiplash injury in a car accident. The Panel considered her treatment records for the 25 February 2016. This documents “some pain with movement of neck and back” as well as the presence of trigger points in specific muscles.  In light of this, the Panel determined that there was no clinical justification for touching Service User A’s breasts.

28. The Panel therefore found this Particular proved.

Particular 1(d) – Found Proved

29. In her police statement, Service User A stated that while she was seated on the treatment bed, the Registrant was “twisting my back”, which she clarified in her oral evidence were rotational stretching movements to each side. Following each stretch, the Registrant slid his hands downwards and stroked with an open palm along each buttock, over her jeans, doing this twice over each buttock. Service User A was clear that it was a light stroke. In her initial complaint email she also stated that he had touched her buttocks.

30. In the summary of his police interview, the Registrant denied that he touched Service User A’s buttocks.

31. The Panel was of the view that Service User A was very clear in the way she described the Registrant’s actions, and she demonstrated them by her own actions to the Panel. The Panel therefore accepted her evidence.

32. Having examined Service User A’s treatment records, the Panel determined that while the stretches performed by the Registrant may have been appropriate, there was no clinical reason for a light stroke on Service User A’s buttocks.

33. For the reasons above, the Panel found this Particular proved.

Particular 1(e) – Found Proved

34. In her police statement as well as her oral evidence, Service User A stated that at the end of the session, the Registrant asked her if he had a “6 pack” and then took her hand and placed it against his stomach and told her he had a “1 pack”. Service User A also referred to this incident in her initial complaint email.

35. In the summary of his police interview, the Registrant denied that he took Service User A’s hand to touch his stomach.

36. In the Panel’s view, Service User A was very clear in relating this incident without exaggeration and therefore the Panel accepted her evidence.

37. The Panel therefore found this Particular proved.

Particular 1(f) – Found Proved

38. In her police statement as well as her oral evidence, Service User A stated that during the treatment, the Registrant kept asking her to “high five” and when she did this, he would hold her hand and swing it. Further, as she went to leave the treatment room she placed her hand on the door handle and the Registrant put his hand on top of hers and “swung” her hand off the door handle. There is reference to such matters in her initial email.

39. In the summary of his police interview, the Registrant did not refer to these matters specifically, but stated that he always opened the door for his clients.

40. The Panel noted the clarity with which Service User A gave her evidence about this incident, and demonstrated the Registrant’s action at the door handle for the Panel. The Panel accepted her evidence.

41. Having looked at the Registrant’s treatment records, the Panel could find no justification for holding her hand.

42. The Panel therefore found this Particular proved.

Particular 2 (the stem)

43. On the basis of the evidence of Service User A and Mr 1, including the treatment records, the Panel found proved that there was a second physiotherapy treatment session with the Registrant on 3 March 2016.

Particular 2(a)

44. In her police statement as well as her oral evidence, Service User A gave clear evidence that the Registrant addressed her as “beautiful girl”.

45. In the summary of his police interview, there is no record of whether the Registrant told her this or not.

46. On the basis of Service User A’s clear evidence, the Panel found this Particular proved.

Particular 2(b) – Found Proved

47. In her police statement as well as her oral evidence, Service User A gave clear evidence that the Registrant gave her two bars of chocolate, and named them as a “kinder bueno” and a “peanut kitkat”. She was also very specific that when she went to leave the treatment room at the end of the session, the Registrant reminded her not to forget them, and she took them with her.

48. In the summary of his police interview, the Registrant admitted that he gave her some chocolate on 3 March 2016.

49. On the basis of the clear evidence and the Registrant’s admission, the Panel found this Particular proved.

Particular 2(c) – Found Proved

50. In her police statement as well as her oral evidence, Service User A stated that the Registrant touched her knees.

51. There is no reference to this incident in the summary of the Registrant’s police interview.

52. The Panel was of the view that the Registrant was clear about being touched on the knees and accepted her evidence. Further, on the basis of the treatment notes and the diagnosis, the Panel could find no clinical reason for doing so.

53. The Panel therefore found this Particular proved.

Particular 2(d) – Found Proved

54. In her police statement as well as her oral evidence, Service User A stated that while she was lying face down on the treatment bed, with her hands placed at the front of her head, the Registrant pulled her jumper up over her breasts from the back and also pulled her vest top up. She said he then put his hands underneath her and cupped both breasts with both his hands on top of her bra and held them for a couple of seconds. She also stated he then rubbed her back and ran his hands down the sides of her breasts over her bra.

55. In the summary of his police interview, the Registrant denied that he had touched her breasts.

56. The Panel was of the view that Service User A gave her evidence very clearly and without exaggeration and the Panel accepted it. Having considered Service User A’s treatment record for 3 March 2016, the Panel was not satisfied that there was any clinical reason for touching Service User A’s breasts.

57. The Panel therefore found this Particular proved.

Particular 2(e) – Found Proved

58. In her police statement and oral evidence, Service User A stated that the Registrant told her that he would give her a pelvic massage and put both of his hands underneath her jeans and tried to undo the button. Service User A stated that she stopped him and did it herself, pulling her jeans down around an inch so that more of her back was exposed. In her oral evidence, Service User A confirmed that the Registrant did not tell her what he was doing or why. Service User A further stated that the Registrant stated he needed to pull her jeans down further and asked her if she was enjoying it. He gradually pulled down her jeans and knickers so that her buttocks were fully exposed and her was rubbing and stroking her buttocks. Service User A’s evidence was that it was light pressure, and felt like stroking, rather than a massage of the muscles.

59. In the summary of his police interview, the Registrant denied touching her buttocks.

60. The Panel noted that in her police statement Service User A mentioned that this massage took about 40 minutes. When questioned about the length of time, she told the Panel she was not sure about the length of time. However she said that this was because she was enduring an unpleasant experience and it felt like it was for the majority of the session. The Panel accepted her explanation given the position she was in, lying face down on the treatment bed, and the Panel accepted Service User A would not have been able to track the time. Service User A also explained in answer to questions that she had not objected because she had been intimidated. She also said that she had been very worried that the Registrant would escalate his behaviour if she objected, particularly because he had locked the clinic’s front door and she was the only client at the clinic. The Panel accepted her explanations.  The Panel also noted that Service User A referred to this incident in her initial complaint email which adds to her credibility. The Panel therefore accepted her evidence.

61. The Panel accepted Service User A’s evidence that her buttocks were being stroked, rather than being treated as a therapeutic massage. The Panel could find no clinic reason for touching Service User A’s buttocks in this way and therefore found this particular proved.

Particular 2(f) – Found proved

62. In her police interview and oral evidence, Service User A stated that while face down on the treatment bed, the Registrant told her to put her hands by her sides. She then felt in her left hand a bulge through denim material which she thought was his genitals and he was moving it back and forth into her hand. He then went to her right side and she felt a bulge in her right hand through softer material, which felt like his underwear rather than his jeans. Again her evidence was that this was his genitals being rubbed into her right hand.

63. In the summary of his police interview the Registrant denied putting his penis into her hands.

64. The Panel was of the view that Service User A was very clear in her evidence. While she could not see what was happening, she said that she recalled distinctly what she had felt, she described feeling his ‘balls’ against her hand and was clear about the different  the materials she had felt. In addition, she described the height of both the treatment bed and the Registrant. The Panel determined that these measurements meant that it was more likely than not that the Registrant was at a level with the table so that he could rub his genitals into her hands. Taking into account all of the evidence, the Panel was satisfied that he did do so. The Panel therefore found this Particular proved.

Particular 2(g) – Found Proved

65. In her police statement and oral evidence, Service User A stated that as she went to leave, the Registrant made her do a “high five” and he held her hand. In addition, he also took her hand again from the handle and swung it.

66. In the summary of his police interview, the Registrant makes no reference to this event.

67. The Panel was satisfied that the Registrant acted in this way, having heard the clear evidence of Service User A and again taking into account the diagnosis, there was no clinical reason to do so. The Panel therefore found this Particular proved.

Particular 2(h) – Found Proved

68. In her police statement and oral evidence, Service User A stated that she felt what she thought was his facial stubble brush along the middle of her buttocks. She described the Registrant intermittently speaking to her, and that when he stopped speaking, she could feel the stubble. She stated that she felt this happen twice for 2 or 3 seconds.

69. In the summary of this police interview, the Registrant denied that he did this.

70. On answering questions, Service User A accepted that she could not see what was happening. However, she was very clear in that she stated that what she felt was rough like “sandpaper”, that it happened when he stopped speaking, and that she felt something soft like his bottom lip. The Panel was of the view that Service User A gave her evidence in her very straightforward and natural manner as well as being very precise in what she said. There was no attempt to embellish. The Panel therefore accepted her evidence.

71. The Panel therefore found this Particular proved.

Particular 3 – Found Proved

72. In considering whether acts are sexually motivated, the Panel noted the definition of sexualised behaviour in the CHRE (now PSA) document entitled ‘Clear sexual boundaries between healthcare professional and patients: responsibilities of healthcare professionals’ dated April 2009 at p. 2:

“Acts, words or behaviour designed or intended to arouse or gratify sexual impulses or desires”.

73. The Panel decided, when approaching this allegation, that any sexually motivated act must be intentional and not accidental. The Panel does not consider that sexual motivation exclusively requires an intent for intercourse to result.

In respect of Particular 1a) – Found Proved

74. If taken in isolation, the Panel would not find this action to be sexually motivated, however the Registrant asked this question in the context of a treatment session which involved touching her breasts and buttocks without clinical reason (albeit through her clothing) and, as the Panel has also found, in a deliberate manner (see below). The Panel also accepted Service User A’s evidence was that the Registrant “kept asking” this question, which denotes insistence and a deliberate intention.  Due to the context in which the question was asked, the Panel found that it was a question asked with sexual motivation.

75. The Panel therefore found this Particular proved.

In respect of Particular 1(b) – Found Proved

76. If taken in isolation, the Panel would not find this action to be sexually motivated, however the Registrant made this comment in the context of a treatment session which involved touching her breasts and buttocks (albeit through her clothing) without clinical reason and, as the Panel has also found, in a deliberate manner (see below). Due to the context in which the question was asked, the Panel found that it was a question asked with sexual motivation.

77. The Panel therefore found this Particular proved.

In respect of Particular 1(c) – Found Proved

78. In touching Service User A’ breasts (albeit through her clothing) a number of times, the Panel determined that this was intentional rather than, accidental. In the absence of any clinical justification and, taking the repeated touching into account, the Panel found that this was sexually motivated.

79. The Panel therefore found this Particular proved.

In respect of Particular 1(d) – Found Proved

80. In touching Service User A’s buttocks (albeit through her clothing), once on each side, the Panel determined that this was intentional rather than, rather than accidental. The Panel has also found that there was no clinical justification. In the absence of any clinical justification, the Panel found this action was sexually motivated.

81. The Panel therefore found this Particular proved.

In respect of Particular 1(e) – Found Proved

82. If taken in isolation, the Panel would not find this action to be sexually motivated, However the Registrant took Service User A’s hand and pressed it against his stomach in the context of a treatment session which involved touching her breasts and buttocks without clinical reason and, as the Panel has also found, in a deliberate manner (see above). Due to the context, the Panel found that this action was sexually motivated.

83. The Panel therefore found this Particular proved.

In respect of Particular 1(f) – Found Proved

84. If taken in isolation, the Panel would not find this action to be sexually motivated, However the Registrant held Service User A’s hand in the context of a treatment session which involved touching Service User A’s breasts and buttocks without clinical reason and, as the Panel has also found, in a deliberate manner (see above). Due to the context, the Panel found that this action was sexually motivated.

85. The Panel therefore found this Particular proved.

In respect of Particular 2(a) – Found Proved

86. If taken in isolation, the Panel would not find these words sexually motivated. The Registrant said that, however, in the context of a treatment session which involved touching her breasts and buttocks without clinical reason, as well as touching Service User A’s buttocks with his facial hair and rubbing his clothed genitals into her hands, which, as the Panel has also found were done in a deliberate manner (see below). Due to the context, the Panel found that these words were sexually motivated.

87. The Panel therefore found this Particular proved.

In respect of Particular 2(b) – Found Proved

88. If taken in isolation, the Panel would not find this action sexually motivated, However the Registrant gave her chocolate Service User A in the context of a treatment session which involved touching her breasts and buttocks without clinical reason as well as touching her buttocks with his facial hair and rubbing his clothed genitals into her hands, which, as the Panel has also found were done in a deliberate manner (see below). Due to the context, the Panel found this action was sexually motivated.

89. The Panel therefore found this Particular proved.

In respect of Particular 2(c) – Found Proved

90. If taken in isolation, the Panel would not find this action to be sexually motivated, However the Registrant touched Service User A’s knees in the context of a treatment session which involved touching her breasts and buttocks without clinical reason as well as touching her buttocks with his facial hair and rubbing his clothed genitals into her hands which, as the Panel has also found, were done in a deliberate manner (see below). Due to the context, the Panel found that this action was sexually motivated.

91. The Panel therefore found this Particular proved.

In respect of Particular 2(d) – Found Proved

92. In touching Service User A’s breasts a number of times, the Panel determined that this was intentional rather than accidental. In the absence of any clinical justification, the Panel found that this action was sexually motivated.

93. The Panel therefore found this Particular proved.

In respect of Particular 2(e) – Found Proved

94. In touching Service User A’s buttocks, and stroking them for a prolonged period, the Panel determined that this was intentional rather than accidental. In the absence of any clinical justification, the Panel found that this action was sexually motivated.

95. The Panel therefore found this Particular proved.

In respect of Particular 2(f) – Found Proved

96. The Panel was satisfied that the rubbing of the Registrant’s clothed genitals, into each hand, was a deliberate and intentional act. It was done into each hand separately, and the Panel has accepted Service User A’s evidence, that the last instance was through underwear rather than jeans, and the Panel inferred from this that the Registrant exposed his underwear. The Panel found that this action was sexually motivated.

97. The Panel therefore found this Particular proved.

In respect of Particular 2(g) – Found Proved

98. If taken in isolation, the Panel would not find this action to be sexually motivated, However the Registrant held Service User A’s hand in the context of a treatment session which involved touching her breasts and buttocks without clinical reason as well as touching her buttocks with his facial hair and rubbing his clothed genitals into her hands which, as the Panel has also found, were done in a deliberate manner. Due to the context, the Panel found that this action sexually motivated.

99. The Panel therefore found this Particular proved.

In respect of Particular 2(h) – Found Proved

100. The Panel was satisfied that the Registrant’s actions in touching Service User A’s buttocks with his facial stubble on two occasions were deliberate and intentional acts which by their very nature, and in the context of other sexually motivated behaviour during the treatment session, were clearly sexually motivated.

101. The Panel therefore found this Particular proved.

Decision on Grounds

102. The Panel then considered whether the facts found proved constitute misconduct. It was aware that there is no burden of proof at this stage and that misconduct is a matter for its own professional judgment. The Panel was aware that a breach of professional standards such as those contained in the HCPC Standards of conduct, performance and ethics (“the Standards”) was not necessarily in itself determinative of whether there was misconduct.

103. In considering misconduct, the Panel had regard to the submissions of Mr Ferson who submitted that the Panel should find misconduct in the circumstances of the case. The Panel accepted the advice of the Legal Assessor who referred to the case of Roylance v GMC (No. 2) [2000] 1 AC 311 and Shaw v General Osteopathic Council [2015] EWHC 2721.

104. The Panel has found that the Registrant engaged in sexually motivated behaviour in respect of all of the factual particulars. Some of the behaviour, namely the touching of Service User A’s breasts and buttocks, the rubbing of his clothed genitals into Service User A’s hands and the touching in between her buttocks with his facial stubble were in themselves clearly sexualised behaviour. These overt acts of touching private and sensitive parts of Service User A’s body, as well as the rubbing of his clothed genitals in her hands, were such serious breaches of trust, taking advantage of the imbalance of power, that they clearly, in the Panel’s view, constitute misconduct.  The remaining actions or words said were also found to be sexually motivated. In isolation they may not have been so serious as to constitute misconduct but, when taken together in the context of the more serious matters found proved, the Panel was satisfied that they were sufficiently serious to constitute misconduct.

105. The Panel therefore found that the matters found proved fell seriously short of the standards expected of the Registrant so as to constitute misconduct.  In particular he has breached HCPC Standards 1 and 1.7:

• 1 – Promote and protect the interests of service users and carers.

• 1.7 – You must keep your relationships with service users and carers professional.

Decision on Impairment
106. The Panel then considered whether the Registrant’s fitness to practise is currently impaired. It was aware that impairment is a matter for its own professional judgment.

107. The Panel heard the submissions of Mr Ferson who submitted that the Registrant’s fitness to practise is impaired. The Panel also had regard to the HCPTS Practice Note entitled “Finding that Fitness to Practise is ‘Impaired’”. The Panel accepted the advice of the Legal Assessor.

108. In determining whether fitness to practise is impaired, panels must take account of a range of issues which, in essence, comprise two components:

i. the personal component which includes insight, the risk of repetition, whether the matters raised are remediable and whether there has been remediation by the Registrant.

ii. the public component which includes the need to protect service users, maintain confidence in the profession, declare and uphold proper standards of conduct and behaviour.

109. The Panel considered the questions formulated by Dame Janet Smith in the Fifth Shipman Report as set out in the case of CHRE v NMC and Grant [2011] EWHC 927.

110. In relation to the personal component, the Panel took into account that the Registrant has not submitted any material to the Panel for its consideration. The only document which records the Registrant’s version of events is the summary of the police interview in which he denied all the allegations put to him by the police. There is thus no evidence of insight, no reflection into what occurred, and no evidence of any steps taken to resolve or remedy the misconduct. 

111. In relation to the public component the Panel concluded that the Registrant had caused harm to Service User A and poses a real risk to future service users. Due to the lack of any evidence of insight or remediation, the Panel was of the view that the risk of repetition of the misconduct is high. The Panel was also of the view that the Registrant has brought the profession into disrepute, and breached fundamental tenets of the profession. Once again, in the absence of any evidence of remediation, or insight, the Panel was of the view that there is high risk of bringing the profession into disrepute and breaching fundamental tenets of the profession in the future.

112. The Panel also took into account the wider public interest. The Panel was satisfied that the Registrant’s serious misconduct struck at the heart of the fundamental purpose of a physiotherapist’s role, breached professional boundaries, and took advantage of Service User A’s vulnerability and the fact that she was alone in the clinic with the Registrant. The Panel was satisfied that the need to uphold proper professional standards and maintain public confidence in the profession would be undermined if a finding of impairment were not made in the circumstances of the case.

113. For the reasons set out above, the Panel decided that the Registrant’s fitness to practise is currently impaired on both the personal and public components.  

Reconvened Hearing – 28 September 2018

Service of Notice of Hearing

114. The Panel had information that Notice of today’s hearing, dated 17 August 2018, was sent by first class post on the same date to the Registrant’s registered address. The Panel accepted the advice of the Legal Assessor and decided that service had been effected in accordance with the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”).

 Proceeding in the Absence of the Registrant

115. Ms Shameli, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. She informed the Panel that the Registrant has not engaged with the HCPC since the adjournment of the hearing, and prior to that had not engaged with the HCPC at all since his email dated 9 February 2017.

116. The Panel reminded itself of the HCPTS Practice Note entitled “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor.

117. The Panel was aware that a decision to proceed in absence is one which should be exercised with the utmost care and caution. The Panel was mindful that there has been no engagement from the Registrant since its decision to proceed in his absence in July 2018 at the commencement of these proceedings. The Panel therefore took into account its previous reasons for proceeding in the Registrant’s absence. The Panel also took into account that there is no application for an adjournment from the Registrant, and on the basis of the Registrant’s lack of engagement, the Panel is satisfied that an adjournment is unlikely to secure his attendance in the future. The Panel acknowledged that there is a potential disadvantage to the Registrant in proceeding in his absence and took this into account. However, the Panel also took into account the public interest that the hearing, having commenced in July 2018, should proceed and conclude expeditiously. In all the circumstances before it, taking into account the Registrant’s position, and fairness to him, the Panel was satisfied that it was in the public interest, as well as in the interests of justice, to proceed.

118. The Panel therefore decided to proceed in the Registrant’s absence.

Decision on Sanction

119. Ms Shameli reminded the Panel of the general principles of sanction, and referred the Panel to the Indicative Sanctions Policy (ISP). Ms Shameli submitted that the misconduct was deplorable and that in the circumstances the Panel may consider that a Striking off Order is appropriate in this case, although she acknowledged that the sanction is a matter for the Panel’s own judgment.  

120. The Panel took into account the Indicative Sanctions Policy (ISP), and accepted the advice of the Legal Assessor. The Panel has borne in mind that sanction is a matter for its own independent judgment, and that the purpose of a sanction is not to punish the Registrant but to protect the public. Further, any sanction must be proportionate, so that any order must be the least restrictive order that would protect the public interest, including public protection.

121. The Panel accepted as a mitigating factor the HCPC’s submission that the Registrant is of “previous good character”.

122. The Panel was of the view that the following were aggravating factors:

i. the misconduct was deliberate;

ii. exploitation of a position of trust;

iii. exploitation of Service User A’s uncertainty of what constitutes therapeutic touch;

iv. an escalation of the misconduct to more serious misconduct, at her second appointment with him, when the Service User A was alone with him in the clinic.

123. The Panel first considered taking no action. The Panel concluded that, in view of the nature and seriousness of the Registrant’s misconduct and the ongoing risk to public protection, it would be inappropriate to take no action. It would be insufficient to protect the public, maintain public confidence and uphold the reputation of the profession.

124. The Panel then considered a Caution Order. The Panel noted paragraph 28 of the ISP which states:

125. The Panel then considered a Caution Order. The Panel noted paragraph 28 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.”

126. The Registrant’s misconduct was not minor in nature, it was not an isolated event, and there is a high risk of repetition. Furthermore, the Registrant has not demonstrated that he has taken any steps to address that misconduct. Therefore, the Panel concluded that a Caution Order would be inappropriate and insufficient to protect the public and meet the public interest.

127. The Panel next considered a Conditions of Practice Order. Paragraph. 33 of the ISP states that
“Conditions will rarely be effective unless the registrant is genuinely committed to resolving the issues they seek to address and can be trusted to make a determined effort to do so. Therefore, conditions of practice are unlikely to be suitable in cases:
where the registrant has failed to engage with the fitness to practise process, lacks insight or denies any wrongdoing…”

128. On the basis of the Registrant’s lack of engagement and lack of demonstration of insight, there is no indication that he would be willing to comply with conditions, in all the circumstances the Panel decided that no conditions of practice could be formulated to protect the public nor meet the public interest.

129. The Panel next considered a Suspension Order and considered paragraph. 39 of the ISP:
“Suspension should be considered where the Panel considers that a caution or conditions of practice would provide insufficient public protection or where the allegation is of a serious nature but unlikely to be repeated and, thus, striking off is not merited”.

130. Further paragraph. 41 of the ISP states :

“If the evidence suggests that the registrant will be unable to resolve or remedy his or her failings then striking off may be the more appropriate option. However, where there are no psychological or other difficulties preventing the registrant from understanding and seeking to remedy the failings then suspension may be appropriate.”

131. The Panel has already decided that there is a high risk of repetition of the misconduct. The Registrant’s continued lack of engagement with these regulatory proceedings means that the Panel has no evidence that the Registrant is willing or able to address this. The underlying issues of a lack of insight, absence of steps taken to address the misconduct, a total lack of engagement with this hearing, and the ongoing risk of repetition, led the Panel to conclude that Suspension would not be appropriate or sufficient to protect the public or uphold the wider public interest.

132. The Panel  considered the following paragraphs of  48 and 49 of the ISP which state:

“48.  Striking off 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. A registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate.
49. Striking off may also be appropriate where the nature and gravity of the allegation are such that any lesser sanction would lack deterrent effect or undermine confidence in the profession concerned or the regulatory process. Where striking off is used to address these wider public protection issues, Panels should provide clear reasons for doing so. Those reasons must explain why striking off is appropriate and not merely repeat that it is being done to deter others or maintain public confidence.”

133. The Panel has concluded that there is an ongoing significant risk of repetition of the serious misconduct and therefore an ongoing risk to public safety. The Registrant’s misconduct was deplorable in the Panel’s view. It exploited a young service user’s vulnerability in that she was alone in the treatment room on the first occasion, and was alone in the clinic on the second occasion, when the sexual misconduct escalated significantly.  The Panel was of the view that such deliberate misconduct was fundamentally incompatible with being a registered professional.

134. The Panel was of the view that in the light of the particular circumstances of the case, as referred to above, a reasonable member of the public, fully informed of the facts, would be appalled if the Registrant was permitted to remain on the Register. All of these factors led the Panel to decide that Striking Off Order is the only way in which the public can be protected, and which can uphold the wider public interest. The Panel is also of the view that any lesser sanction would lack a deterrent effect.

135. In coming to his decision, the Panel took into account the principle of proportionality, and the impact that such a sanction will have on the Registrant’s right to practise his profession, as well as the likely reputational and financial impact. However, the Panel decided that the need to protect the public and uphold the public interest outweighed the Registrant’s interests in this regard.

136. The Panel therefore decided to impose a Striking Off Order.

 

Order

The Registrar is directed to strike the name of Mr Mohamed Abouelrish from the Register on the date this Order comes into effect.

Notes

Right of Appeal

You may appeal to the High Court in England and Wales against the Panel’s decision 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.

1. The Panel heard an application from Ms Shameli for an 18 month Interim Suspension Order to cover the appeal period. She submitted that such an order is necessary for the protection of the public and is in the public interest.

2.  The Panel considered the HCPTS Practice Note entitled “Interim Orders” as well as Paragraphs 51-54 of the Indicative Sanctions Policy. The Panel accepted the advice of the Legal Assessor.

3. The Panel decided whether or not hear the application for an interim order in the absence of the Registrant. In deciding this issue, the Panel took into account that the Registrant had been informed, in the Notice of hearing dated 17 August 2018, that if this Panel found proved the allegation against him and imposed a sanction which removed, suspended or restricted his right to practise, the Panel may impose an interim order. In addition, the Panel took into account the reasons set out in its earlier decision to commence the hearing in the absence of the Registrant. In the circumstances, and for the same reasons, the Panel determined that it would also be fair, proportionate and in the interests of justice to allow Ms Shameli’s application.

4. The Panel took into account its previous findings in respect of impairment and sanction, and the need to protect the public and uphold the public interest. The Panel came to the conclusion that an interim order is necessary to protect the public and that an interim order is also in the wider public interest in order to maintain public confidence in the profession and to uphold proper standards. Public confidence in the profession and the regulatory process would be seriously harmed if the Registrant were not made subject to an interim order during the appeal period.

5. The Panel was mindful of its decision at the sanction stage that Conditions were not appropriate. The Panel considered that not to impose an Interim Suspension Order would be inconsistent with its finding that a Striking Off Order is required.

6. The Panel recognised that the Panel must take into consideration the impact of such an interim order on the Registrant as part of the principle of proportionality, and must balance the impact on the Registrant with the need to protect the public and uphold the public interest. The Panel was satisfied that the need to protect the public, the public interest outweighed the Registrant’s interests in this regard.

7. The Panel decided to impose an Interim Suspension Order for a period of 18 months, a duration which is appropriate and proportionate to allow any appeal which the Registrant brings, to be concluded.

Hearing History

History of Hearings for Mr Mohamed Abouelrish

Date Panel Hearing type Outcomes / Status
28/09/2018 Conduct and Competence Committee Final Hearing Struck off
30/07/2018 Conduct and Competence Committee Final Hearing Adjourned part heard
10/05/2018 Conduct and Competence Committee Interim Order Review Interim Suspension
15/02/2018 Conduct and Competence Committee Interim Order Review Interim Suspension
17/11/2017 Investigating committee Interim Order Review Interim Suspension
18/05/2017 Investigating committee Interim Order Application Interim Suspension
24/02/2017 Investigating committee Interim Order Application Adjourned