Mr David Stening

Profession: Physiotherapist

Registration Number: PH62838

Interim Order: Imposed on 19 Apr 2018

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 23/04/2019 End: 17:00 23/04/2019

Location: Health and Care Professions Tribunal Service, 405 Kennington Road

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Whilst registered with the Health and Care Professions Council as a Physiotherapist:

1. On 4 July 2018 at Croydon Crown Court, you were convicted of two counts of sexual assault on a female - no penetration.

2. On 22 August 2018 at Croydon Crown Court, you were convicted of two counts of sexual assault on a female - no penetration.

3. By reason of your convictions as set out at paragraphs 1 and 2 above, your fitness to practise as a Physiotherapist is impaired

Finding

Preliminary matters:

Service
1. A letter dated 14 March 2019 informing the Registrant of the date, time and venue of the Hearing was sent to the Registrant’s registered address. The same letter was also sent on the same date addressed to the Registrant at a prison address.


2. The Panel found that good service had been effected.


Proceeding in the absence of the Registrant
3. Mr Millin made an application for the hearing to proceed in the absence of the Registrant. He informed the Panel that the Registrant had not made any contact with the HCPC in response to the correspondence informing him of the date of the hearing. He had not indicated that he wished to be represented at the hearing, asked for a video link from prison, or asked for an adjournment of the hearing.


4. The Panel accepted the advice of the Legal Assessor and had regard to the HCPC Practice Note “Proceeding in the Absence of the Registrant”.


5. The Panel was satisfied that the HCPC had taken all reasonable steps to inform the Registrant of the hearing and that it should exercise its discretion to proceed in the absence of the Registrant. The Registrant had not indicated that he wished to participate in the hearing or asked to be represented at the hearing. He was not engaging with the HCPC and the Panel did not consider that he might attend the hearing if it was adjourned to a later date. Although there might be some prejudice to the Registrant, the Panel decided that it was outweighed by the public interest in the expeditious disposal of the Allegation.


Background:
6. The Registrant is a registered Physiotherapist. The Registrant worked in private practice treating customers who had been involved in road traffic accidents referred from insurance companies. In March 2018, two of the Registrant’s female customers independently made reports to the Police that the Registrant had sexually assaulted them during their physiotherapy appointments.


7. The Registrant pleaded guilty to all offences and on 4 July at Croydon Crown Court he was convicted of two counts of sexual assault on a female and on 22 August 2018 he was convicted of two counts of sexual assault on a female. In respect of the four offences he was sentenced to 22 months imprisonment. He was placed on the Sex Offenders Register for ten years and subject to an indefinite Sexual Harm Prevention Order. The Judge ordered that he may be placed on the Barring list by the Disclosure and Barring Service.


Decision on Facts:
8. The Panel found the conviction in particular 1 proved by a Certificate of Conviction dated 4 September 2018 from Croydon Crown Court.


9. The Panel found the conviction in particular 2 proved by a Certificate of Conviction dated 4 September 2018 from Croydon Crown Court.


10. Further information about the convictions is set out in the sentencing remarks of Charles J.


11. Victim A attended the Registrant’s premises for physiotherapy treatment. She was lying on the massage table facing down and felt the Registrant’s penis pressing against her body. The Registrant turned her hands so that she was cupping his penis and moved so that his groin and penis were rubbing against her hand. The Registrant also rubbed oil onto the side of her breast. On a second visit there was a similar event involving the Registrant rubbing his groin and penis on Victim A’s arm. On this occasion Victim A jumped up and saw the Defendant’s penis and white boxer shorts. The Registrant immediately apologised to Victim A.


12. Victim B also attended the Registrant’s premises for physiotherapy treatment. She was also lying on the massage table face down and felt the Registrant’s penis rubbing against her fingers. A similar incident occurred in a subsequent treatment session and on that occasion the Registrant‘s penis made contact with the Registrant’s palm several times. The Registrant also massaged Victim B’s buttocks and the inside of her upper thigh.


Decision on Impairment:
13. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note “Finding that Fitness to Practice is Impaired” and the HCPTS Practice Note “Conviction and Caution Allegations”. The Panel considered the Registrant’s fitness to practise at today’s date.


14. The Panel considered the nature, circumstances and gravity of the convictions. The convictions occurred during the course of the Registrant’s professional work. There was a breach of trust placed in the Registrant by his victims, in order to satisfy the Registrant’s own sexual desires. The Registrant’s victims were vulnerable in that they were in a state of undress and lying face down on the massage table. There was a repetition of offending behaviour in that the convictions involve two offences for two separate victims. The Registrant’s offending was considered by the sentencing judge to be so serious that only an immediate custodial sentence could be justified.


15. The Panel first considered the personal component which is the Registrant’s current conduct and behaviour. The Registrant made no submissions to the Panel and provided no information in relation to his current insight or any remedial action. The only positive information regarding the Registrant’s insight is that he pleaded guilty to all offences at an early stage.


16. The remarks made by Charles J in the transcript of the sentencing hearing are relevant. Having considered the information in the pre-sentence report, Charles J concluded that “Worryingly, it says that you demonstrated no insight into the consequences of your actions upon [one of the victims] and you were primarily concerned with your own position. One hopes that you will begin to demonstrate insight into what you have done as time goes on”.


17. The information in Charles J sentencing remarks and in the HCPC bundle did not reassure the Panel that the Registrant respects professional boundaries or that there is no current risk of repetition. The Panel concluded that the Registrant’s fitness to practise is impaired on the basis of the personal component.


18. The Panel next considered the wider public interest considerations including the need to maintain confidence in the profession and to uphold standards of conduct and behaviour.


19. The Panel noted the circumstances and gravity of the offences. It had regard to the victim impact statements. These statements described the impact of the Registrant’s criminal behaviour on Victim A and Victim B. Victim A described that she suffered stress and anxiety and that she now requests to see a female doctor. Victim B felt that her physiotherapy treatment had to be put on hold and described her upset, anger, and feelings of vulnerability. The Panel also had regard to the criminal sentence imposed on the Registrant, including the indefinite sexual harm prevention order and the fact that the Registrant has been placed on the sex offenders register.


20. The Panel noted that the Registrant was in serious breach of Standard 9 of the HCPC Standards of Conduct, Performance and Ethics in that his conduct did not justify the public’s confidence in him as a Physiotherapist.


21. The Panel considered that the Registrant’s behaviour brought the profession into disrepute. Members of the profession and the public would rightly be very concerned to learn about the Registrant’s conviction and the extent to which the Registrant departed from the high standards that are expected of Physiotherapists.


22. In the circumstances, a finding of current impairment was necessary to uphold standards of conduct and behaviour and to maintain confidence in the profession and the regulatory process.


23. Therefore, on the basis of the personal and the public component, the Panel decided that the Registrant’s fitness to practise is impaired.


Decision on Sanction:
24. In considering which, if any, sanction to impose the Panel had regard to the HCPC Indicative Sanctions Policy (ISP) and the advice of the Legal Assessor.


25. The Panel reminded itself that the purpose of imposing a sanction is not to punish the practitioner, but to protect the public and the wider public interest. The Panel ensured that it acted proportionately, and in particular it sought to balance the interests of the public with those of the Registrant, and imposed the sanction which was the least restrictive in the circumstances commensurate with its duty of protection.


26. The Panel decided that the aggravating features were:
• sexual offences in the course of professional duties;
• actual psychological harm to Victim A and Victim B;
• lack of insight or remediation;
• premeditated misconduct on more than one victim on more than one occasion;
• risk of repetition.


27. The Panel decided that the mitigating features were:
• early guilty plea in the Magistrates Court;
• no previous disciplinary findings.


28. The Panel considered the option of taking no action. This is an exceptional outcome and would not be sufficient to protect the public or the public interest.


29. The Panel next considered the option of a Caution Order. The Panel noted the guidance in the ISP that “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 remedial action”. This guidance does not apply, the Registrant’s criminal conviction is too serious, and a Caution Order would be insufficient.


30. The Panel considered the more serious sanction of a Conditions of Practice Order, but decided that it was not sufficient or appropriate. A Conditions of Practice Order is not realistic in circumstances where the Registrant is subject to an indefinite sexual harm prevention order. Conditions of Practice would also be insufficient to maintain confidence in the profession and the regulatory process.


31. The Panel next considered the more serious option of a Suspension Order. The Panel carefully evaluated the mitigating circumstances and found that they had little weight, bearing in mind the circumstances and gravity of the sexual offences and the impact of the Registrant’s behaviour on the reputation of the profession. The Panel considered that the gravity of the Registrant’s criminal conduct was such that a Striking Off Order was appropriate and that this was consistent with guidance in the ISP.


32. The Panel decided that any sanction less than a Striking-Off Order would not be sufficient to protect the public interest. The reputation of the profession has been damaged by the Registrant’s convictions and the most severe sanction is necessary to mark the seriousness of the convictions.


33. The Panel concluded that the appropriate and proportionate sanction is a Striking-Off Order.

Order

The Registrar is directed to strike the name of David Stening 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.

European alert mechanism:
In accordance with Regulation 67 of the European Union (Recognition of Professional Qualifications) Regulations 2015, the HCPC will inform the competent authorities in all other EEA States that your right to practise has been prohibited.
You may appeal to the County Court against the HCPC’s decision to do so. Any appeal must be made within 28 days of the date when this notice is served on you. This right of appeal is separate from your right to appeal against the decision and order of the Panel.

Interim Order Application:
Proceeding in the absence of the Registrant:
1) Mr Millin submitted that the Panel should hear his application for an Interim Suspension Order in the absence of the Registrant.


2) The Panel accepted the advice of the Legal Assessor.


3) The Panel decided that it was fair and appropriate to proceed and hear the application in the absence of the Registrant. The Registrant was advised in the Notice of Hearing dated 14 March 2019 that an application for an interim order might be made. There was nothing to indicate that the Registrant wished to make submissions in relation to this application, and it was in the public interest to proceed.


Application for an Interim Suspension Order:
4) Mr Millin made an application for an Interim Suspension Order for the maximum period of 18 months to cover the 28 day appeal period and the time that might be required to conclude any appeal.


Decision on Interim Order:
5) The Panel accepted the advice of the Legal Assessor.


6) The Panel decided that an interim order was necessary for the protection of the public. The Panel has identified a risk of repetition and a potential risk to the public which is ongoing. The Panel also considered that an interim order was otherwise in the public interest. A member of the public would be shocked or troubled to learn that there was no interim restriction in place.


7) The Panel did not consider that the risks in this case could be addressed by an Interim Conditions of Practice Order because of its earlier conclusions that conditions would not be realistic and would be insufficient in the circumstances of this case.


8) The Panel decided to make an Interim Suspension Order for a period of 18 months, the maximum duration, to allow sufficient time for the disposal of any appeal.


Interim Suspension 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.

Hearing History

History of Hearings for Mr David Stening

Date Panel Hearing type Outcomes / Status
23/04/2019 Conduct and Competence Committee Final Hearing Struck off