Mr Andrew M Davidson

Profession: Physiotherapist

Registration Number: PH98935

Interim Order: Imposed on 02 Mar 2016

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 12/08/2019 End: 17:00 20/08/2019

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

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

During the course of your employment as a Physiotherapist with Homerton University Hospital NHS Foundation Trust:

1) On 18 August 2015, during a treatment session with Service User A, you placed your penis in Service User A's hand(s).

2) You allowed your semen to be transferred to the leggings of Service User A during a treatment session.

3) The matters as set out at paragraphs 1 and 2 represent inappropriate conduct during your treatment of Patient A.

4) The matters set out in paragraphs 1 - 3 were sexually motivated.

5) The matters set out at paragraphs 1 - 4 represent misconduct.

6) By reason of your misconduct, your fitness to practice is impaired.

 

Finding

Background

1. The Registrant qualified as a Physiotherapist in 2012 and has since been employed by Homerton University Hospital NHS Foundation Trust (The Trust). At the relevant time he was a Band 6 Physiotherapist at the Trust.

2. Service User A was referred to the Trust in May 2015 for treatment for her long term back pain. She had four consultations with the Registrant between June 2015 and 18 August 2015.

3. On 20 August 2015, Service User A complained to the police that during a treatment session on 18 August 2015, she had been sexually assaulted by the Registrant. She said that he had placed his penis in each of her hands in turn.

4. The Registrant was interviewed by the police on 25 August 2015. He denied the allegations made by the complainant. He was subsequently charged with an offence of sexual assault on Service User A.

5. In September 2016, the Registrant was tried for this offence at the Crown Court. He was acquitted by the jury.

Evidence

6. There was before the Panel a bundle of documents prepared by the HCPC, containing witness statements and exhibits including the transcript of the evidence given at the Crown Court trial. There was also a bundle from the Registrant containing his witness statement, exhibits and a number of character statements.

7. Service User A was called on behalf of the HCPC. Her evidence focused on the events of 18 August 2015.

8. In her evidence she said that she had attended appointments with the Registrant at the Trust for treatment on three or four occasions in 2015. The final such appointment was on 18 August 2015.

9. The substance of her evidence was that on 18 August 2015, whilst she was lying face down on the treatment bed, the Registrant, when purporting to conduct a test on her hands, placed his penis in each of her hands in turn. She did not see what was placed in her hands but by feel, identified it as a penis.

10. Service User A further said that subsequently, after leaving the unit, she saw stains at the back of her leggings which she believed to be wet semen. She subsequently formed the view that the Registrant had ejaculated onto her back which is why she believed his semen had transferred onto her leggings. On 20 August 2015, she took her leggings with her when she reported the incident to the police.

11. She said that she was shocked at what had happened and acknowledged, as a consequence that she was confused about the sequence of events during the incident.

12. The Registrant gave evidence. He denied that he had placed his penis in either of Service User A’s hands. Whilst he accepted that his semen was found on Service User A’s leggings, he was unable to account for how it got there.

Service User A

13. The Panel found Service User A to be an honest and believable witness. She was consistent in the accounts she gave from the time of her interviews by the police until her appearance before the Panel, in her belief that the Registrant placed his penis in each of her hands and that she had observed wet semen on her clothing on the day of treatment.

14. There were inconsistencies in Service User A’s accounts since the incident and she appeared to be muddled in her recollection of some detail and the sequence of events that occurred during the treatment. However, the Panel took into account that she has consistently stated that she was in shock at the time of the alleged incident and that since 18 August 2015, she has tried to put the matter out of her mind. She stated that she could no longer recall some of the treatment details. She also said that she has received counselling as a result of what had occurred. She said she was unable to give her best evidence at the Crown Court trial because she did not understand the language used by the Barristers.

Finlay Kennedy

15. Finlay Kennedy was called by the HCPC as an expert witness. His field of expertise is that of biological evidence including analysis of bodily fluid staining and interpretation of DNA profiling. The Panel found him to be measured and professional in his evidence. He was a credible witness. He conducted an initial analysis on the stains on Service User A’s leggings which indicated that they contained semen and a further analysis on one of them. His conclusion was that that stain indeed contained semen and that this matched the Registrant’s DNA profile. In short, that the semen was that of the Registrant.

The Registrant

16. The Registrant appeared well prepared and was familiar with the documentation before the Panel. Although his account of what occurred, when interviewed by the police, at the Crown Court and before this Panel has been consistent, he has been unable to recall most of the events on 18 August 2015 leading up to the time of the treatment with Service User A. During the hearing, he was at times vague, evasive and demonstrated poor recollection in matters of detail.

Decision on Facts

17. In reaching its decisions, the Panel considered all the evidence before it, both oral and documentary, together with the submissions of Ms Manning-Rees on behalf of the HCPC and those of Mr Stevens on behalf of the Registrant.

18. It accepted the advice of the Legal Assessor.

19. The Panel was aware that the burden of proof rests upon the HCPC and that the facts must be proved on the balance of probabilities.

20. The Panel had well in mind the passage of time since this incident and the effect that this might have had on the recollections of both Service User A and the Registrant.


Particular 1

21. Service User A was consistent in her belief that the Registrant placed his penis in each of her hands. She said this in her two statements to the police on 20 August 2015 and 10 October 2015. She said this also in her evidence at the Crown Court and before the Panel. Service User A said that she felt that something uncomfortable had happened during the treatment session and was in such shock that immediately after treatment she sat in the park for over an hour during which time she cried. On returning home, she said she felt “dirty” and scrubbed her hands because she felt so “dirty”. She then checked her leggings and discovered what she believed to be wet semen on the back of her leggings. She said she put the leggings in a bag which she took to the police at the time she reported the matter, two days later.

22. The Registrant has consistently denied placing his penis in the hands of Service User A during the treatment session on 18 August 2015. In his evidence he said that he placed his fingers in her hands in order to test her grip.

23. The Panel accepted Service User A’s evidence that on 18 August 2015, she was lying on her front with her arms by her sides and that her palms were facing upwards and therefore did not see what it was that the Registrant placed in her hands. She stated that from what she felt, in the short time that the object was in her hands, she was sure that it was the Registrant’s penis. When questioned as to how she was so sure, she stated that she had been married and had three children so knew what a penis felt like.

24. Photographs of the layout of the room, supplied to the Panel were not taken on the day of the incident. They give only an indication of the room layout at the time of the incident. They show two beds in close proximity, separated only by a curtain. Service User A was lying with her right side close to the curtain. Service User A said that although the bed was touching the curtain, the Registrant walked round to the right hand side where she says he placed his penis in her right hand.

25. The Registrant’s evidence was that he tested her grip strength by placing two fingers in each of her hands. This was whilst standing at the left side of the bed as it was not possible to walk to the right hand side of the bed due to the layout of the room. He said that he would have had to move the bed that Service User A was lying on, in order to walk around to her right hand side.

26. In seeking to reconcile the conflicting evidence and how plausible it was that the Registrant could have walked around to the right hand side of the bed, the Panel considered the witness statement of SD, the Physiotherapist who had been treating patients in the adjacent cubicle on the day of the alleged incident. She gave further details of the room layout at the time. She stated that the plinths (treatment beds) were set up by the dividing curtain. Each treatment bed was less than a metre from the curtain on each side. She said that if both Physiotherapists were standing by the curtain side of the plinth “they would likely to be within touching distance of their colleague”. The Panel determined that in the light of this evidence it would be possible for the Registrant to walk around to the right hand side of the bed.

27. Whilst the Panel recognised that there is inconsistency in the accounts of Service User A about the order in which she says the Registrant placed his penis into each of her hands, the Panel regard this as a minor inconsistency which does not detract from the substance and credibility of her evidence.

28. In all the circumstances, the Panel accepted the evidence of Service User A rather than that of the Registrant. It is therefore satisfied that, based on the evidence of Service User A, it is more likely than not that the Registrant did place his penis into Service User A’s hand(s).

29. The Panel found Particular 1 proved.

Particular 2

30. Mr Kennedy’s expert evidence was that the stain on the leggings tested by him contained the Registrant’s sperm. Although there were at least six other areas on the leggings indicating the presence of semen, they were subject only to preliminary testing and therefore could not be confirmed as semen. Mr Kennedy said that it was standard forensic practice that when there was a positive identification of sperm by a second confirmatory test, other stains in the same area would not be subject to that further test.

31. Mr Kennedy said that the stain containing the sample tested by him was four centimetres by three centimetres in area. It was clearly visible, which he said was unusual, and was more likely to be caused by the semen being wet than dry when deposited onto Service User A’s leggings.

32. Mr Kennedy’s evidence to the Crown Court was that his findings provide extremely strong support for the view that the Registrant engaged in sexual activity with Service User A, resulting in the transfer of his semen to her leggings rather than the view that there was no sexual activity resulting in ejaculation. However, in his evidence to the Panel, Mr Kennedy said that this conclusion, in his report to the Court was no longer relevant because the proposition had changed from that which he had originally been asked to address. He said that he now could not preclude secondary transfer of semen to the leggings rather than by ejaculation at the time. He said that secondary transfer could be from hands or clothing which had previously been in contact with semen.

33. In his HCPC witness statement, Mr Kennedy said, in regard to the possibility of secondary transfer of semen that “broadly speaking it was possible but I would have to know the specific details of how such transfer was alleged to have occurred, if for example, [the Registrant] said he had a significant amount of seminal fluid on his hands and he touched the leggings there is a possibility that secondary transfer could occur”. Mr Kennedy’s evidence to the Panel was that the likelihood was that the sperm was wet when deposited on the leggings and was not miniscule in volume. He was however, unable to say when or how it was deposited.

34. The Registrant in his evidence denied ejaculating on Service User A’s back. Further, he said that he did not masturbate whilst in the treatment room. He was not able to give any explanation of how his semen was deposited on Service User A’s leggings. He said however, that it was not unusual for him to have sexual intercourse with his now wife, or to masturbate before leaving for work. He was unable to recall whether he had engaged in either of these activities on 18 August 2015.

35. He said that he believed his work trousers were lying on the floor next to his bed on 18 August 2015. He said that sperm could have been deposited on them if he had indulged in intercourse or masturbation that morning. He said also that although he generally bathed after sexual activity, he could not recall whether he would have done so on that morning. He also could not recall whether he had put on his work clothes before travelling to or on arrival at work. Further, he could not recall how he travelled to work that morning, whether by bus, bicycle or on foot. He conceded that he was speculating as to the possibility of how his semen was transferred to Service User A’s leggings as he could not recall specific details of the morning of 18 August 2015.

36. Service User A’s evidence at the Crown Court and to the Panel was that she believed the Registrant had ejaculated on her back. However, she accepted that she did not see this and had drawn this conclusion from the presence of the Registrant’s semen stains on the back of the leggings. There was no reference to the Registrant ejaculating on Service User A’s back in either of her police statements. The Panel therefore could not be satisfied that the Registrant’s semen was deposited on the leggings in this way.

37. However, the Panel took into account the evidence of Mr Kennedy in regard to the size of the stain that he tested, that it was not of minuscule quantity and that it was likely to have been wet. Also the fact that there were several stains on the garment that the indicative test was suggestive of the presence of semen. The Panel also took into account its findings in relation to Particular 1 in concluding that some form of sexual activity by the Registrant occurred in the treatment room as a result of which his semen was transferred to the leggings of Service User A.

Particulars 3 and 4

38. The Panel had in mind the advice of the Legal Assessor that Particulars 1 and 2 were dependent on Particulars 3 and 4 and that it was the HCPC’s case that this was a result of sexually motivated activity during treatment and not by secondary transfer.

39. The Panel concluded that by placing his penis into the hands of Service User A during a treatment session and by allowing his semen to be transferred to her leggings, the Registrant acted inappropriately. Furthermore, that by doing so his actions were sexually motivated.

40. Accordingly, the Panel find Particulars 3 and 4 proved.

Decision on Grounds

41. The Registrant was not in attendance but Mr Stevens was present and remained instructed on his behalf. Mr Stevens said that the Registrant was distressed by the factual findings to the extent that he did not feel able to attend. He intended no disrespect to the Panel or to the process.

42. In reaching its decision, the Panel had in mind its finding on the facts together with the submissions made by Ms Manning-Rees and by Mr Stevens. It accepted the advice of the Legal Assessor.

43. In his submissions, Mr Stevens conceded that the matters found proved, taken objectively, amounted to misconduct although the Registrant maintained his innocence. However, the Panel is aware that the decision is for the Panel to make.

44. The Registrant, as a Physiotherapist, was in a position of trust. He abused his position when treating Service User A, who was particularly vulnerable in that she was lying face down on the treatment bed and could not see what the Registrant was doing. His actions had what Service User A described as a significant effect upon her. She lost confidence and trust in medical professionals. She required counselling as a result of the incident.

45. By his actions, the Registrant was in breach of the HCPC’s ‘Standards of Performance and Ethics’ (2012):

1. You must act in the best interest of Service Users.

“You must not abuse the relationship you have with a service user…you must treat service users with respect and dignity”.

13. You must …. Make sure that your behaviour does not damage the public’s confidence in you or your profession.

“You must justify the trust that other people place in you”.

46. The Registrant’s actions fell seriously short of the standard expected of a Physiotherapist.

47. The Panel has concluded that the matters found proved, individually and cumulatively, which include sexual motivation, clearly amount to conduct unworthy of a Physiotherapist. The Registrant’s actions were so serious as to constitute misconduct.

Decision on Impairment

48. In reaching its decision, the Panel considered all the information before it together with the submissions by Ms Manning-Rees and Mr Stevens. It had in mind the HCPTS Practice Note ‘Finding Fitness Practice Impaired’. It accepted the advice of the Legal Assessor.

49. Mr Stevens conceded that misconduct of this nature, considered objectively, amounts to impairment, primarily on public interest grounds. However, he recognised that the decision is for the Panel to make.

50. The Panel has determined that these were extremely serious acts of misconduct in a professional capacity.

51. The Registrant’s insight in this matter is limited. He recognised the serious nature of such types of misconduct. He has displayed some remorse in regard to Particular 2, that his semen was transferred to Service User A’s clothing. He stated that he was very sorry that this had occurred.

52. The Panel has taken into account the positive testimonials submitted by the Registrant that attest to his good character. It is also aware that there have been no previous FTP findings against him. There has been no report of repetition since the incident, which occurred over four years ago although the Panel was informed by Mr Stevens that the Registrant has been subject to Interim Conditions of Practice which restricted his practise in relation to female service users. Although the misconduct related to one treatment session and one service user and is thereby an isolated incident, it is by its very nature serious.

53. Misconduct of this nature is not easy to remedy. The Panel cannot be satisfied that there would be no repetition of the misconduct found proved based on the information available to it. Therefore in regard to the personal component, the Panel has determined that the Registrant’s fitness to practise is currently impaired.

54. The Panel has also concluded that a finding of current impairment is required in the wider public interest. An informed member of the public aware of the full facts of the case would view this misconduct as extremely serious and that public confidence in the profession and the regulatory process would be undermined if a finding of current impairment is not made. It is also necessary in order to declare and uphold proper professional standards of conduct and behaviour.

Decision on Sanction

55. In reaching its decision, the Panel considered all the information before it, together with the submissions by Ms Manning-Rees and Mr Stevens. It had regard to the HCPTS Sanctions Policy (2019). It accepted the advice of the Legal Assessor. The Panel exercised the principle of proportionality at all times.

56. Ms Manning-Rees made no submissions in regard to particular sanctions. She referred to the policy emphasising that the purpose of a sanction is not to punish a Registrant but rather to protect the public. She did however refer to certain aggravating and mitigating factors.

57. Mr Stevens realistically accepted that misconduct of this nature falls at the more serious end of the sanctions scale. He referred also to the lapse of time since this incident; to the Registrant’s previous good character and to the large number of testimonials, relating to his character and clinical ability. He drew the Panel’s attention to the Registrant’s statement given in evidence, which included a description of his future career plans and the effect that any sanction preventing him from practicing would have upon his personal and family circumstances.

58. Mr Stevens referred also to the relevant passages in the Sanctions Policy. He submitted however that although a Strike Off might well be in the minds of the Panel, it was a sanction of last resort.

59. Mr Stevens submitted that in these circumstances, the appropriate sanction would be that of a Suspension Order for the maximum period. Furthermore, it would be in the public interest that it should not be deprived of the services of a practitioner of the Registrant’s ability.

60. The Panel found the aggravating factors to be;

• The sexual nature of the misconduct

• The Registrant’s breach of trust

• The continuing effect the misconduct has had upon the service user

• The risk of repetition.

61. The Panel found the mitigating factors to be;

• No previous fitness to practice findings against the Registrant

• The wealth of testimonials relating to his character and professional abilities.

62. The Panel first considered whether to take no action, but decided that the serious nature of the misconduct found demands a sanction.

63. The Panel then considered mediation or a Caution Order. However, the serious nature of the misconduct is such that neither would be sufficient to protect the public or to address public interest concerns.

64. The Panel next considered a Conditions of Practice Order but decided that given the serious nature of the misconduct which is not easy to remedy it could not devise conditions which would be workable, or appropriate or sufficient.

65. The Panel gave serious consideration to a Suspension Order. However, the Registrant has not demonstrated insight into the effect that misconduct of this nature would have on a service user and as a result there remains a risk of repetition. Furthermore, such an order would be insufficient to address the serious nature of the sexual misconduct and the Registrant’s breach of trust nor would it be a sufficient deterrent to other practitioners.

66. The Panel therefore considered a Striking Off Order. It is aware that this is a sanction of last resort for serious acts, including those of sexual misconduct directed towards a service user and the abuse of a registrant’s professional position.

67. The Panel had in mind that the Sanctions Policy indicates that such an order should be used only where there is no other way to sufficiently protect the public. In the current circumstances, the nature of the misconduct and the situation in which it occurred is such that any lesser sanction would be insufficient to protect the public or to uphold public confidence in the profession and in the regulatory process. The Panel did consider the personal and financial impact such an order would have on the Registrant but it determined that this was outweighed by the public interest.

68. In these circumstances, the Panel determined that the only proportionate and sufficient sanction is that of a striking off order.

Order

Order: The Registrar is directed to strike the name of Mr Andrew M Davidson from the Register on the date this order comes into effect.

Notes

Interim Order

1. Ms Manning-Rees applied for an interim order on the grounds that it is necessary for the protection of the public and is otherwise in the public interest. She submitted that the order should be 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.

2. In reaching its decision the Panel considered all the information before it together with its findings on impairment and the submissions by Ms Manning-Rees. It also took into account the HCPTS Practice Note “Interim Orders” and the relevant paragraphs of the HCPC “Indicative Sanctions Policy”. It accepted the advice of the Legal Assessor.

3. It was satisfied that as it has found that the Registrant’s fitness to practise is impaired and that there is a risk of repetition of his conduct, an interim order is necessary for the protection of the public. Furthermore, an order is also in the public interest as right thinking members of the public would be concerned if the Registrant were allowed to practise unrestricted until the substantive order comes into effect. It therefore determined that an interim order was necessary for the protection of the public and is otherwise in the public interest.

4. The Panel was satisfied that during the appeal period there were no workable or appropriate conditions which would be sufficient to protect the public. It therefore concluded that an Interim Suspension Order was necessary to protect the public. Such an order is also in the public interest, to maintain public confidence in the profession and the regulatory process. Although the Registrant will be unable to practise during the currency of this interim order, his interests are outweighed by those of the public. The Interim Suspension Order will be for a period of 18 months to cover any appeal period.

5. 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.

6. 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 Andrew M Davidson

Date Panel Hearing type Outcomes / Status
12/08/2019 Conduct and Competence Committee Final Hearing Struck off
21/06/2019 Conduct and Competence Committee Interim Order Review Interim Conditions of Practice
21/06/2019 Conduct and Competence Committee Interim Order Review Interim Conditions of Practice
28/03/2019 Conduct and Competence Committee Interim Order Review Interim Conditions of Practice
26/03/2019 Conduct and Competence Committee Interim Order Review Hearing has not yet been held
02/01/2019 Investigating Committee Interim Order Review Interim Conditions of Practice
09/10/2018 Investigating committee Interim Order Review Interim Conditions of Practice
10/05/2018 Investigating committee Interim Order Review Interim Conditions of Practice
13/02/2018 Investigating committee Interim Order Review Interim Conditions of Practice
23/11/2017 Investigating committee Interim Order Review Interim Conditions of Practice