Mr Catalin Turcu

Profession: Physiotherapist

Registration Number: PH111426

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 16/12/2019 End: 17:00 19/12/2019

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

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

(As amended on day 1 of the hearing, namely, 16 December 2019)

Whilst registered with the Health and Care Professions Council and employed with Ashbourne Physiotherapy and Sports injuries Centre as a physiotherapist you:

1. Between the dates 21 May 2018 and 2 July 2018, during physiotherapy sessions with Service User 1:

a) Referred to Muslims in a derogatory manner.

b) Showed Service User 1 a parody video of ‘Living Next Door to Alice’ called ‘Living Next Door to Ali.’

2. Your comments and actions in paragraphs 1(a) and/or 1(b) were racist.

3. The matters described in paragraph 1 constitute misconduct.

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

Finding

Preliminary matters:

1. The HCPC made an application to amend limb 1(b) to alter the title of the YouTube video reference from ‘Ahmed’ to ‘Ali’. This was required for accuracy and did not change the nature or extent of the Allegation. The Registrant’s Representative had no objection to this proposed amendment. The Panel accepted the Legal Assessor’s advice. The Panel approved the proposed amendment.

2. The HCPC confirmed that there was no need for Service User 1, as he is referred to in the allegation and the written documentation before the Panel, to remain anonymised. This is a public hearing and the witness is content for his identity to be known.

3. The HCPC confirmed that Service User 1 has agreed that a health issue, a foot condition for which he sought physiotherapy treatment, may be referred to in public session.

4. The Registrant’s representative confirmed that the Registrant’s sworn statement had been signed, dated and placed before the Panel.

5. Following the conclusion of the half time submission deliberations the Registrant’s representative applied for the submissions and consideration of the issue of impairment to be taken as a separate stage. The Panel accepted that, in the Registrant’s interests, this was appropriate in this case.

Background:

6. The Registrant was employed by Ashbourne Physiotherapy and Sports Injuries Centre (the Sports Injuries Centre) as a Physiotherapist between 9 May 2018 and 30 July 2018.

7. Concerns about the Registrant’s professional conduct were raised by Service User 1, CC, when he subsequently attended for a course of treatment with a Clinical Specialist Physiotherapist, OW, at Derby Community Health Services NHS Foundation Trust (the Trust). On 11 October 2018, CC disclosed to OW that, during his previous physiotherapy sessions with the Registrant, the Registrant had made racist and inappropriate comments about Muslims and, during one session, had shown him a racist video posted on YouTube.

8. OW relayed CC’s concerns to the Physiotherapist Team Leader at the Trust. This was, in turn, referred to LS, the joint owner and Principal Physiotherapist at the Sports Injuries Centre. The matter was subsequently referred to the HCPC on 27 November 2018 by the Trust.

Evidence:

9. The Panel had sworn statements from all those who gave live evidence. In addition, it had a sworn statement from OW, the Clinical Specialist Physiotherapist who had relayed the information given to him by CC to his Lead Physiotherapist. This statement was relied on by the HCPC and was not contested by the Registrant. As hearsay evidence this Panel has given it some weight in that it corroborates the concerns that were raised at the time by CC.

10. In the course of receiving live evidence, the Panel was shown the YouTube video which was a parody song based on the music and lyrics of the song by the artist known as Smokie entitled ‘Living next door to Alice’. The parody song ‘Living next door to Ali’ involved references to Muslims from Pakistan involved in polygamy, incest, paedophilia and terrorism. It was noted that there is no prohibition on this type of video presentation being uploaded onto this public media platform and the video had been viewed extensively. There was no dispute between the parties that the video was racist in nature.

11. The HCPC’s main witness was CC, referred to in the Allegation as Service User 1. CC is a long serving police community support officer, who, as a result of the amount of walking he was required to do, had developed a painful foot condition. He had a course of treatment for this condition and was seen by the Registrant on five occasions between 21 May 2018 and 22 July 2018. In the Panel’s view, CC was a credible witness who, by nature of his occupation, would have an understanding of the importance of giving accurate evidence. The Panel found him to be honest and fair, answering questions readily without seeking to speculate and, if he could not recall specific comments made by the Registrant, was entirely candid in saying so. His testimony was consistent with his witness statement. He was a persuasive and believable witness.

12. The HCPC also called LS, the joint owner of the Sports Injuries Centre and a qualified Physiotherapist registered with the HCPC. She was the Registrant’s Line Manager during the time that he worked at the Sports Injuries Centre which, initially, had been for a specified period of six weeks and  was then extended to twelve weeks in order to address a lengthy waiting list. Her live evidence was consistent with her statement. She sought to assist the Panel, answering questions readily and candidly. Her evidence was of limited pertinence to the terms of the Allegation other than that she had not received any other complaints or adverse feedback from patients or colleagues about the Registrant.

13. The Registrant gave live evidence. The Panel noted that English is his third language, the Registrant having been born and raised in Romania where he qualified as a physiotherapist in 2004. He then worked in various parts of France from 2008 to 2017. The Registrant had worked in the UK from 2017 until he moved back to France in November 2018. He had travelled from France to be at the HCPTS hearing. His live evidence was broadly consistent with his sworn statement. His testimony, and his answers to questions put to him, were not always clear. The Panel recognised that this may have been due to language difficulties. On occasions he did not give direct answers to direct questions, even when further clarification was sought. The main thrust of his testimony was an acknowledgment and apology for his action in showing the video which he now appreciated to have been wrong.

HCPC case:

14. CC told the Panel that the Registrant had been the person who had initiated conversations relating to immigration, Brexit and Muslims. CC had told the Registrant on the first occasion he did this, which was at the first treatment session, that it was inappropriate for the Registrant to talk about these issues. Despite this, in subsequent sessions, the Registrant had again tried to initiate conversation on the same topics. CC had to remind the Registrant at every appointment that he did not wish to engage in discussion of immigration, Muslims and Brexit. The Registrant had commented to CC that, having lived in France, he had seen the problems immigration can cause and stated that if the UK did not leave the EU, then the UK would become a worse country because of immigrants. The Registrant had asked CC what he thought of Muslims. CC said that he had told the Registrant that he was happy to be a member of a multicultural society and had no problems with working with his Muslim colleagues. CC considered that it was unprofessional for the Registrant to talk to him on these matters. CC said that he had emphasised that discussion on these topics had made him feel uncomfortable. CC said that he had not reported his concerns at that time as he regarded the Registrant’s comments as personal opinion and he did not think that the Registrant had “crossed the threshold.”

15. In the final session, when CC had been face-down on the treatment couch whilst the Registrant was massaging his foot, the Registrant asked CC if he had heard the song ‘Living next door to Alice’. The Registrant then took out his phone and played the You Tube video of the parody song ‘Living next door to Ali.’ CC had been upset by the video and had turned his head away. CC informed the Panel that the Registrant was laughing hysterically throughout the video but acknowledged in cross examination that this may be the way the Registrant normally laughs. He considered that the Registrant’s action in playing the video was the final straw and had made him feel sick. He told the Panel that he could not understand why a professional person would show this video. He had left the Sports Injuries Centre immediately and, had there been another session, he would have cancelled it because he “was so disgusted”. 

16. CC’s condition had not improved and he was subsequently referred to the Trust’s physiotherapy service. In one of his treatment sessions, he raised with his new Physiotherapist, OW, his concerns about the Registrant’s behaviour.

Half time submission of No Case to Answer:

17. The Registrant’s representative made an application that there was no case to answer in relation to particular 1(a), and in turn to the element of particular 2 relating to the Registrant’s comments identified in particular 1(a). It was argued that the evidential threshold had not been reached by the HCPC. Further, this application was based on the fact that there was no specific evidence to support those elements of the Allegation.

18. The Registrant’s representative reflected that, in the Registrant’s sworn statement, it was accepted that the discussions between the Registrant and CC during the treatment sessions were unprofessional. Particular 1(a) did not relate to unprofessional communications, but to comments made specifically about Muslims, and in particular, it alleged those comments were derogatory in nature. CC was unable to give clarity to the statements made to him by the Registrant. CC had accepted that, at this distance in time, he was unable to recount any specific comment and he was unable to remember that there was specific reference to Muslims made in a derogatory manner.  There was, therefore, in the Registrant’s submission, no specific comment attributed to the Registrant on which the Panel could take a view.

19. The HCPC stated that there was helpful guidance included within the HCPTS guidance on half time submissions and the Panel was directed to the reference in the case of Galbraith that there had to be some evidence. The HCPC stated that you have to find some evidence, not how much.

20. In relation to Particular 1(a), it quite rightly lacked detail in regard to the words used, as the sworn statement supports the fact that this witness cannot recall specifics at this distance from the events. If he could, this particular would be specific and set out the statements made. CC was clear that the Registrant had used terms and references in a derogatory way and had regularly returned to the theme of immigration, Brexit and Muslims and the immigration and Muslim problems of France.

21. The HCPC highlighted the fact that the definition of ‘derogatory’ can include criticism and insult. The Panel was reminded that CC had clearly gained the impression that the Registrant had not used his reference to Muslims other than in a negative way. CC felt that the Registrant had an agenda but was unclear as to what this might be.

22. The Panel received Legal Advice on how to assess this half time submission. It was accepted by the Legal Assessor and the parties that there was no legal definition in the civil jurisdiction of what constituted racism. With a view to assisting the Panel’s deliberations, and with the consent of the parties, during the Panel recess the Legal Assessor provided the Panel with the OED definition of ‘derogatory’ and ‘racism’.

23. The Panel referred to the HCPTS Practice Note relating to half time submissions and accepted the guidance that it should consider this matter in a three-stage process. First, whether there is any evidence. Secondly is that evidence so unsatisfactory as to be unsupportable. Thirdly, the credibility of the witness evidence.

24. On the issue of whether there was any evidence, the Panel referred to its notes of CC’s live evidence, from which it was clear that the Registrant had, despite being asked to desist several times during the period of 5 treatment sessions, regularly raised the issue of immigration, Brexit, problems in France related to immigration, and Muslims. The Registrant had asked CC what he thought of Muslims. There was no reference in CC’s evidence that any other racial group had been identified for comment or question. It appeared from CC’s evidence that the Registrant used interchangeably reference to immigration and Muslims. The Panel considered that there was some evidence that would support this particular.

25. The Panel noted CC had been candid in admitting that he had not at this distance from events been able to recall specifically any one comment other than being asked what he thought of Muslims. CC had been able to recount his discomfort with this course of discussion that interchangeably referred to immigration, Muslims and Brexit and the problems of immigration in France. The Panel considered that the evidence as a whole was consistent and was not, as stated in the HCPTS guidance, so unsatisfactory as to be unsupportable.

26. The Panel considered the evidence of CC to be consistent and credible. The Panel considered him to be a reliable witness.

27. The Panel has therefore concluded that the HCPC has provided some evidence to support further consideration of particular 1(a). The half time application is therefore rejected.

28. The Panel gave consideration to the issue of whether there was sufficient evidence of specific comments made which can be considered as racist as alleged in particular 2. The Panel was assisted in this respect by the further clarification and submissions made by both parties.

29. The Panel has, as mentioned above, concluded that there was a sufficiently close relationship between general statements made by the Registrant about immigration and Muslims, within a stream of uninvited and unwanted observations, to support a finding that those comments were derogatory in their reference to Muslims. Those general comments had a theme, which could be interpreted as racially motivated.

30. The Panel has noted the ordinary meaning of the words used in particular 2 of the Allegation. It has applied the same tests to the evidence as included in the HCPTS Practice Note. In the absence of any specific statement made by the Registrant that CC could recall, the Panel concludes that the evidence does not support particular 2 of the Allegation in relation to the comments referred to in particular 1(a) as of themselves being racist.

Registrant’s evidence

31. The Registrant had made admissions in relation to the issue set out in 1(b), the playing of the video. He denied making derogatory or racist references to Muslims. His live testimony was consistent with his sworn statement. The Registrant admitted to raising questions with CC about Brexit and immigration in the context of the situation in France. He did so because he tried to make conversation with patients about matters which he believed would be of interest to them. In this instance he had sought CC’s view, as a “man of law”, on issues on which he was curious. He accepted that he had shown CC the YouTube video and that he had laughed because he found it ironic and exaggerated. He said he thought that he had told CC that ‘this will make you laugh’. He told the Panel that he had recognised that CC had reacted and recoiled on being shown the video but, when questioned, said that he had continued to work on CC’s foot and allowed the video to play out.

32. The Registrant stated that he had spoken openly of politically sensitive matters when working in France. He commented that he is viewed in the UK and France as an immigrant himself. His work in Marseilles brought him into contact with many different cultures. He said that he had not appreciated that there was such a different level of sensitivity in the UK to such topics, compared to what he was used to in France and Romania, until he received the Notice of Allegation from the HCPC. In response to a question from the Panel the Registrant said that he had not received any equality and diversity training.

33. The Registrant stated that he had found the offending video by searching for similar parodies as those made by ‘Weird Al’ Yankovic. He accepted that the video was offensive and discriminatory of Muslim people. He thought it was ironic and exaggerated. He had only shown it to one other person, his wife, following the notification of the Allegation.

Decision on the Facts:

34. Before the Panel sets out its finding on facts the Panel confirms that it had regard to the fact that the burden of proof is on the HCPC to prove the allegations to the requisite standard, namely the civil standard of balance of probabilities. There is no burden on the Registrant to prove or disprove anything.

35. At this stage, the Panel reminded itself of the definitions it had been provided with, which were:

1. Derogatory (i) showing strong disapproval and not showing respect, and (ii) expressing criticism or insult.

2. Racism is the belief in the superiority of one race over another. It may mean prejudice, discrimination, or antagonism directed against other people because they are of a different race or ethnicity. Modern variants of racism are often based in social perceptions of biological differences between peoples. These views can take the form of social actions, practices or beliefs, or political systems in which different races are ranked as inherently superior or inferior to each other, based on presumed shared inheritable traits, abilities or qualities.

Particular 1(a) Referred to Muslims in a derogatory manner.

36. The Registrant’s representative argued that, whilst the Panel had found that there was sufficient evidence of conflation of discussion of immigration and Muslims to support the half-time submission, that evidence was insufficient to take it to the requisite level of balance of probability. 

37. The HCPC reminded the Panel that the Registrant had continually raised the issue of Muslims, Brexit and immigration despite being asked not to. Whilst accepting that no specific statements could be recalled by CC, the HCPC submitted that the repeated raising of these topics, the general theme and the tone of the Registrant’s comments, could only be considered negative and derogatory.

38. The Panel accepted the evidence of CC that there had been repeated reference to Muslims by the Registrant. This is supported by the witness statement of OW. Whilst not referenced in that statement the Panel had sight in the bundle of the contemporaneous email sent by OW to his line manager reporting the concerns raised by CC.

39. The Panel considers that there is sufficient evidence for it to make a finding on this particular.  The Registrant repeatedly sought to engage in a conversation about Brexit, immigration and Muslims which was framed in the context of social problems caused by immigration. The Panel was able to conclude therefore that, on the balance of probabilities, references to Muslims in that context were of a derogatory nature.

This particular is found proved.

Particular 1(b) Showed Service User 1 a parody video of ‘Living next door to Alice’, called ‘Living next door to Ali’, or a similar title.

40. As stated above, the Panel has had the opportunity of seeing this video which, in the Panel’s view is extremely offensive and disrespectful to Muslims. The Registrant’s act of showing the video has never been in issue. The Panel accepts CC’s evidence that it had been played unsolicited.

This particular is found proved.

Particular 2 Your comments and actions in paragraphs 1(a) and/or 1(b) were racist.

41. Having found that there was insufficient evidence to support a finding that comments made by the Registrant referred to in 1(a) could be considered racist, the Panel confined its consideration of this limb of the Allegation to consideration as to whether the playing of the video to CC could be considered a racist action.

42. The HCPC submitted that the video was racist and, in the absence of any explanation to the contrary, the act of playing the video was in itself racist.

43. The Registrant’s representative invited the Panel to carefully consider the way in which this particular had been drafted. It did not assert that the video was racist, which it clearly is, but that the act of playing the video was to be considered a racist action. The Registrant’s representative argued that, if this were the case, the hearings officer would also be guilty of a racist action by the replaying of the video for the Panel. 

44. In the Registrant’s representative’s view, the Panel should look at the purpose for which the video was played. The Registrant had been keen to canvass the views of CC on the issues of Brexit and immigration. The HCPC had discounted this intent and reason for sharing the video but, in the Registrant’s representative’s view, the intention behind the playing was the crucial issue. The Registrant maintained that it was his enquiring mind and curiosity about how such matters were viewed in the UK that had led him to play the video. That was the reason for the playing and, in the Registrant’s submission, it should not be discounted or disregarded when considering whether it was an action that was racist.

45. The Panel noted that the Registrant had stated in evidence that he thought the video amusing because it was ironic and exaggerated. He appreciated that the video was disrespectful of Muslims. The Registrant said that he had shown this video in the spirit of enquiry. However, he had not prefaced the playing of the video to CC with any indication as to its content or the purpose for playing it. The video was thus shown unsolicited and without any warning that would have prepared CC for what he was to see. In cross examination the Registrant said that he told CC that he would show him something that “will make you laugh”. This indicated to the Panel that the Registrant had seen the video before he showed it to CC and was fully aware of its content. The Panel considers that the Registrant’s view that the parody was amusing does not detract or excuse his action in sharing a racist video. Any higher purpose in playing the video was not apparent and the Panel’s view was that doing so, without any disclaimer or distancing from the content, made the act of showing the video, in effect, an endorsement of its content. The Panel has, after careful consideration, come to the conclusion that the playing of the video was a racist action.

This particular is therefore found proved in relation to 1(b).

Decision on Grounds:

46. The Panel took into account the representations of the parties and the advice of the Legal Assessor. The Panel has discounted any consideration of 1(a) as part of consideration of particular 2.

47. The Panel has referred to the relevant guidance issued by the HCPTS and in particular the published Standards of Performance, Conduct and Ethics relevant at the time of these events.

48. The Panel noted that misconduct had been admitted in relation to all of those factual particulars that had been admitted. It also noted that the Registrant’s representative had stressed that, whilst some aspects of the allegation had been disputed in terms of wording and intent, there had been no intention by the Registrant, or those representing him, to detract from the seriousness of the matters faced by the Registrant. Having noted this, the Panel acknowledged that it is a matter for its judgment to determine whether the matters found proven amount to misconduct individually and collectively.

Decision on Misconduct:

49. The HCPC maintained that this was misconduct of the most serious nature. It was emphasised that this was not discussion or actions within a personal setting but within the professional context of patient and practitioner. It was a breach of professional boundaries. In support the HCPC drew the Panel’s attention to standards 1.5, 1.7, 2.1 and 2.2 which state:

1.5 You must not discriminate against service users, carers or colleagues by allowing your personal views to affect your professional relationship for the care, treatment or other services you provide.

1.7 You must keep your relationship with service users and carers professional.

2.1 You must be polite and considerate.

2.2 You must listen to service users and carers and take account of their needs and wishes.

50. The Panel had little hesitation in identifying that the Registrant’s comments and actions found proved were in breach of professional boundaries and in contravention of the above referenced standards. There was clear evidence from CC that he had not invited any discourse on the topics concerned and had said in the clearest terms that he felt uncomfortable with the Registrant raising them. In the Panel’s view, the Registrant’s derogatory references to Muslims, made to a patient, and his unsolicited showing of a racist video to the same patient, in a clinical setting, constituted serious misconduct in that it fell far short of what was expected of a registered practitioner and would be considered deplorable by fellow registered practitioners.

Submissions on impairment:

51. In relation to the personal element of the Panel’s consideration, the HCPC noted that there was evidence of insight on the part of the Registrant and an acceptance that his behaviour fell below the required standards. However, when asked if he had undertaken any diversity training, he had not. In relation to the public component the HCPC stated that this was a case that clearly engaged the public element of the Panel’s consideration. Members of the public in possession of the facts of this case would be rightly concerned. The public’s view of the Registrant, the profession and his regulatory body would be undermined if a finding of impairment were not made in the public interest.

52. The Registrant’s representative submitted that there was nothing to challenge on the issue of impairment on the public component of the Panel’s decision. The Registrant had acknowledged and accepted in his live evidence that fellow practitioners would be ‘revolted’ by his action in playing the video.

53. The main thrust of the Registrant’s evidence had been one of acknowledgement and apology for his misconduct, which was consistent with his level of insight into the seriousness of his actions. This acceptance that he must not act in such a way again in the future should be taken into account when considering the personal component and the likelihood of repetition. It was submitted on behalf of the Registrant, that whilst he was unable to provide any evidence of recent training on the issue of diversity, his level of remorse and apology should provide the Panel with some comfort in this regard. Further, there was evidence that there had been no complaints in the last year. It was submitted that this was a one-off event in a long career which had not been repeated, and that this should be taken into account in terms of insight and likelihood of future repetition.

Decision on Impairment:

54. In reaching its decision the Panel took into account the following:

• In relation to impairment, the Panel reminded itself that the test of impairment is expressed in the present tense, that fitness to practice ‘is impaired’.

• Whether the Registrant’s fitness to practise is impaired is a matter of judgment for the Panel.

• Rule 9 of the Health Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (as amended) provides ‘where the Committee has found that the health professional has failed to comply with the standards of conduct, performance and ethics established by the Council under Article 21(1)(a) of the Order, the Committee may take that failure into account, but such failure will not be taken of itself to establish that the fitness to practise of the health professional is impaired’.

• The advice of the Legal Assessor and the guidance issued by the HCPTS entitled ‘Fitness to practise impairment.’

55. There was no fresh documentary evidence or personal references placed before the Panel.  There were no character/employer references from the period when the Registrant had worked in the UK in 2017/2018 and no such references from his period of working in France since then.

56. The HCPC witness, LS, had been able to confirm that there had been no other complaints or concerns raised with her by patients or fellow practitioners. LS had confirmed that personally she had no concerns about the Registrant’s practice.

57. The main source of information about previous and recent practice came from the Registrant. In his evidence he had acknowledged that he had never received any training on diversity issues. The Registrant has stated that he now recognises that there are professional boundaries that need to be drawn and maintained. He has also stated that he will in future be more careful and cautious in his discussions with service users. However, he also stated that in France he was able to openly discuss matters of interest to him with his patients and was still doing so. 

58. The Panel considered the issues identified in the Practice Note in relation to the issues of whether the misconduct is remediable, has it been remediated and is there a likelihood of repetition. 

59. The Panel considered that this type of misconduct, which was ill-judged, unprofessional and insensitive to a patient’s wishes, was capable of being remedied.

60. The Panel considered that it had little evidence before it to support the view that the misconduct had been remedied. There was no evidence of training and no evidence of reflection by the Registrant on the impact that his actions had on CC within his written and oral evidence. He told the Panel that he now realised he needed to adopt a different approach to his engagement with patients on non-clinical topics in the UK, to that he follows in France. The Panel concluded that this did not demonstrate appropriate reflection or remediation.

61. The fact that the Registrant has not understood that the need to maintain professional boundaries, and accept and respect patient’s wishes, is not merely a cultural or regional issue is a matter of concern to the Panel. It demonstrates limited insight into the basis on which professional standards should be adopted and complied with.  Further, the Panel considered that the Registrant has gained only limited insight into his behaviour and the impact that it had on CC. The Panel has noted that despite being told on several occasions by CC that he should not discuss sensitive political and social matters, topics which he felt uncomfortable with, the Registrant had persisted in pursuing these lines of discussion.

62. There is no evidence before the Panel that the Registrant has put this insight into effect in his current practice in France. There is no evidence of any research or training sought by the Registrant that would further inform his professional conduct going forward. The Panel therefore has concerns about the Registrant’s likelihood of repetition of this type of conduct. This being the case, the Panel has concluded that there is current impairment on the personal component of its decision.

63. The Panel considers that the public would rightly be concerned about the Registrant’s fitness to practise without restriction given the nature and the extent of his misconduct, involving, as it did, the playing of a racist video during a clinical treatment session. The Panel considers that the matters raised are so egregious that some mark of censure is required in the public interest in this case.

64. The Panel has made a finding of impairment both on the personal component and in the wider public interest.

Decision on Sanction:

65. The HCPC referred the Panel’s attention to the Sanctions Policy bearing in mind that it should adopt the least restrictive sanction possible. It was accepted that there had been an apology, remorse and insight shown and this should be reflected within the Panel’s consideration of the appropriate level of sanction, but without losing sight of the need to reflect the seriousness of the matters found.

66. The Registrant’s representative reminded the Panel of the Registrant’s willingness to comply with any order this Panel imposed, including any directions for further learning. The Panel was invited to accept that, whilst the video which had been shown was discriminatory in content, this was not a discriminatory action in itself as identified in the Sanctions Policy; there were no discriminatory acts directed at an individual. It was accepted that this Panel had concerns as to whether the insight shown by the Registrant was fully embedded. In this regard it was accepted that some further training or reflection may be appropriate. It was acknowledged that this may not be a straightforward conditions of practice case in that there were no concerns about the Registrant’s clinical skills. Nevertheless, it was submitted that a training requirement could be made a condition of practice. It was emphasised that this was not a case where remediation was not possible and so a striking off order would not be warranted
in this case.

67. The Panel, in reaching its decision, has balanced the interests of the Registrant with those of service users, the profession and the wider public interest. In other words, it has adopted the principle of proportionality. The Panel has accepted that sanctions are not to be punitive in nature, but that any sanction imposed in the public interest may have a punitive impact on the Registrant. The Panel has considered carefully the minimum restriction available to it that will maintain service user protection and uphold and maintain the public’s confidence in the profession and the regulatory process.

68. The Panel has noted the point made by the Registrant’s representative that this was not a normal case of discriminatory conduct which would, or may have, an impact on service user treatment and care, or on colleagues. The Panel accepts this position.

69. The Panel has noted the parties’ representations. It has received and accepted the advice of the Legal Assessor. In reaching its decision the Panel has identified the following aggravating and mitigating factors.

Mitigating factors

• There are no previous regulatory findings against the Registrant.

• The Registrant has been qualified for fifteen years.

• The Registrant has worked in the UK for a relatively short period during his career and English is his third language.

• The Registrant fully engaged in the HCPC and HCPTS processes.

• There has been admission of the misconduct.

• The Registrant has apologised and demonstrated remorse.

• He has displayed some insight, athough it is unclear as to what degree this has informed his current practice.

• There is an acceptance by the Registrant of the seriousness of his misconduct.

Aggravating factors

• The matters found are very serious and have brought the profession into disrepute.

• The Registrant had repeated the misconduct despite CC informing him that this was inappropriate and requesting him not to do so again.

• There is no evidence of remediation by way of reflective practice or training on professional boundaries and diversity.

• The Registrant shared a video, without prior warning, which members of the public would find deeply offensive.

• The impact on the service user of the Registrant’s actions, described by CC as making him feel uncomfortable and sick.

70. The Panel started its deliberations by considering whether this was a case that would warrant no further action. Given the seriousness of the matters found proven, the Panel did not consider that it would be appropriate not to impose a sanction. Mediation was not appropriate in this case.

71. The Panel considered whether a Caution Order would be proportionate in this case. In this regard the Panel took note of the following section of the Sanctions Policy:

‘A caution order is likely to be appropriate sanction in cases in which:

o The issue is isolated, limited, or relatively minor in nature;

o There is a low risk of repetition;

o The registrant has shown good insight; and

o The registrant has undertaken appropriate remediation.’

72. In the absence of any evidence of steps taken to identify and address the Registrant’s lack of understanding of the issues of diversity and professional boundaries, the Panel has concluded that there has been no remediation and therefore there is a risk of repetition. That being the case, the Panel considers that this level of sanction is neither appropriate nor proportionate in this case.

73. The Panel went on to consider whether it was able to draft any conditions of practice that would address the Registrant’s lack of understanding of the nature and extent of his misconduct.

‘Conditions typically cover the following areas (this list is not exhaustive)

o Education and training requirements;

o Practice restrictions;

o Chaperones;

o Supervision

o Treatment;

o Substance dependency

o Informing the HCPC and others’ and

o Personal development.’

74. The Panel noted that the Registrant was currently working in France. This would make the imposition of any conditions that required supervision impractical. In this regard the Panel took note of the terms of paragraph 113 of the Sanction Policy:

‘While conditions of practice may be imposed on a registrant who is currently not practising, before doing so, panels should consider whether there are equally effective conditions which could be imposed and which are not dependent on the registrant returning to practise. For example, not all training, reflection or development requires a registrant to be in practice or to have a workplace-based mentor.’

75. The Panel gave consideration as to whether the Registrant’s lack of understanding of the issue of diversity and the need to identify and maintain professional boundaries could be addressed through courses of training, periods of reflection and case studies which could be undertaken outside of a workplace environment. The Panel accepted that whilst this may be considered a satisfactory way of addressing the issue of remediation, making his ability to practise subject to completion of a course of training was unworkable and would in effect be a suspension by another means.

76. The Panel then went on to consider whether a period of suspension was the appropriate and proportionate sanction in this case. In this regard the Panel considered whether the Registrant’s misconduct was fundamentally incompatible with his remaining on the Register. The Panel noted the guidance that a period of suspension would be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. Such instances, were

• where there have been serious breaches of the standards;

• the registrant has insight;

• the issues are unlikely to be repeated; and

• there is evidence to suggest the registrant is likely to be able to resolve or remedy his failings.

77. The Panel considers that the Registrant has gained some insight and has the ability to resolve or remedy his failings. The Panel considers that it is appropriate to impose a period of suspension during which the Registrant would be able to gain further insight and develop his understanding of matters relating to diversity and professional boundaries.

78. The Panel also took note of the following guidance within the Sanctions Policy relating to striking off in order to gauge whether a decision to impose a period of suspension would be proportionate.

‘A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession and public confidence in the regulatory process.’

The Panel considers that this measure would be disproportionate and would prevent the Registrant from having the opportunity to remediate his failings.

79. The Panel has therefore concluded that a period of suspension is the proportionate and appropriate level of sanction in this instance. The Panel considers that a period of nine months with the option of an early review is a sufficiently long period in which the Registrant may undertake training, learning and reflection.

80. Whilst this Panel cannot bind a future review panel it considers that the Registrant should consider providing that panel with evidence of:

• Training, reading and learning on the topics of professional boundaries and diversity.

• Certificates to evidence that he has undertaken appropriate training in these topics.

• A piece of reflective writing relating to his learning on the issues of professional boundaries and diversity.

• A piece of reflective writing on the impact of his actions on CC, who had been clearly distressed from recalling these events at this Hearing.

• Character references.

Order

Order: The Registrar is directed to suspend the registration of Mr Catalin Turcu for a period of nine months from the date this order comes into effect.

Notes

Interim Order:

1. The HCPC made an application for an Interim Order to be imposed upon the Registrant for a period of 18 months, and that it was appropriate and fair for this application to be made. It was submitted that, given the imposition of a substantive Suspension Order, it followed that this interim order should also be on the same basis of suspension.

2. The Panel was reminded that the Notice of Hearing sent to the Registrant, dated 19 July 2019, warned the Registrant that such an application might be made in the event of certain orders being imposed, including that of a Suspension Order. The Registrant is represented at this hearing. In these circumstances, it is fair and in the public interest for the Panel to proceed to consider this application.

3. As far as the application to impose an Interim Suspension Order is concerned, the Panel considers that, in the light of its finding of misconduct, relating to matters that would be of concern to the public, an interim order is necessary in the public interest. The Panel appreciates that, in it substantive decision, there were no service user protection issues although that is not to discount the emotional distress that was caused. However, the public interest issues are so serious that, in the Panel’s view, an order should be imposed. As stated in its substantive order, a conditions of practice order would not be workable or appropriate in this case. The Panel has, therefore, imposed an interim suspension order for the maximum period available to the Panel, which may be required for the whole of the potential appeal process, of 18 months.

4. On an application by the HCPC, the Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being otherwise in the public interest. If no appeal is made against the Panel’s decision and order, this interim order will expire 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, this interim order will expire on the final determination of that appeal, subject to a maximum period of 18 months.

 

Hearing History

History of Hearings for Mr Catalin Turcu

Date Panel Hearing type Outcomes / Status
16/12/2019 Conduct and Competence Committee Final Hearing Suspended