Mr Lee Martin

Profession: Practitioner psychologist

Registration Number: PYL31167

Interim Order: Imposed on 02 Oct 2017

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 02/12/2019 End: 17:00 02/12/2019

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

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

Allegation (as amended)

Whilst registered with the Health and Care Professions Council as a Practitioner Psychologist and employed by Cheadle Priory Group:

1) You breached professional boundaries in that you:

b. On dates unknown, on one or more occasion:
ii. Hugged Patient A.

c. In or around December 2016, gave and/or lent two books to Person A.

d. In or around February 2017, gave Person A a birthday gift.

e. Between January 2017 and March 2017, shared personal information with
Person A, including:

i. That you had been “low” and had “not been well lately emotionally” or words to that effect.

f. Between October 2016 and February 2017, you sent text messages to Person A outside of working hours

g. Between 31 August 2016 and 23 March 2017, on one or more occasion made the following comments to Person A:

i. “you are precious” or words to that effect;

iii. “you are important to me” or words to that effect.

2) Your actions as set out at paragraphs 1 (b)(ii) and/or 1 (g) were sexually motivated.

3) The matters set out at paragraphs 1 (b) (ii), 1 (g) and 2 amount to misconduct.

4) The matters set out at paragraphs 1 (c) – 1 (f) amount to misconduct and/or lack of competence.

5) By reason of your misconduct and or lack of competence, your fitness to practise is impaired.

 

Finding

Preliminary Matters:

1. At the outset of the hearing, Mr Millin, on behalf of the HCPC, put before the Panel a copy of the Allegation amended in accordance with the directions given at the preliminary hearing on 9 and 10 September 2019.  The Allegation was amended to delete paragraphs 1 a) b) i and iii, f) ii, iii, and iv and g) ii.  To avoid any uncertainty about the status of those paragraphs, Mr Millin formally offered no evidence in respect of them.

Background

2. The Registrant is a Clinical Psychologist who was employed by the Priory Cheadle Royal Hospital (“the Priory”) between September 2013 and February 2019. This was his first employment after completing his clinical psychology doctorate in 2013. 

3. Between 2001 and 2010, the Registrant had worked as a care co-ordinator in a number of Community Mental Health Teams and qualified as an Approved Social Worker.

4. During his employment at the Priory, the Registrant treated patients in a number of wards including the Adult Psychiatric Intensive Care Unit (PICU) and the Alder Acute Adult Mental Health in-patient unit. After 2015, the Registrant also saw a small number of private patients.

5. Person A, was admitted to the Priory in the summer of 2016 for treatment in relation to serious mental health concerns, following an episode of self-harm and an overdose. The Registrant treated Person A during 5 sessions, in July and August 2016, during the time she was an in-patient at the Priory.

6. Prior to Person A’s discharge, she and the Registrant arranged that the Registrant would continue to treat her as a private patient, following her discharge from hospital.  They made contact on 16 August 2016 and began treatment sessions on 31 August 2016.  The Registrant continued to treat Person A until March 2017. They met approximately once per week often in the evening, either in a therapy room which Dr Martin hired or occasionally at the Priory.

7. The Allegation arises out of the Registrant’s alleged misconduct during his treatment of Person A as a private patient.

8. In summary, the Allegation alleges that there were a number of occasions when the Registrant acted in a way that breached professional boundaries and was, on occasions, sexually motivated. 

The Evidence

9. Person A could not attend the hearing due to the potential negative impact on her health. The Panel therefore read the evidence of Person A contained in 2 witness statements she had provided to the HCPC.  The Panel had already ruled, at a preliminary hearing, which parts of her evidence could go before the Panel at the substantive hearing as hearsay evidence.

10. The Panel also read a redacted statement of Witness 2, who was a Deputy Hospital Director at the Priory.  He had carried out an investigation into some aspects of the Registrant’s treatment of Person A.  His evidence was admitted by agreement and dealt in large part with uncontroversial matters relating to timing. 

11. The Panel also read a bundle of documents containing, but not limited to, text and WhatsApp messages and emails between Person A and the Registrant between August 2016 and March 2017, and the Registrant’s Practice Notes of his sessions with Person A as well as Person A’s medical records from the Priory.

12. The Registrant gave evidence to the Panel both orally and by adopting a written statement dated 10 August 2019.  The Panel also read the witness statement of Dr Tai who had supervised Dr Martin’s practice during his time at the Priory.  It also read the statement of Dr Awanet. Both spoke well of Dr Martin and his practice. In addition, the Registrant provided a number of positive testimonials.

13. The Panel heard the submissions of counsel for the HCPC and for the Registrant and refer to those submissions below where appropriate. It also heard the advice of the Legal Assessor, which it accepted and reflected in its findings below.

14. In particular, the Panel bore in mind that the burden of proving the facts rests upon the HCPC and that the standard of proof is the civil standard, namely the balance of probabilities.  When considering the evidence of Person A, the Panel reminded itself that Person A’s evidence was hearsay evidence which it should treat with caution because it had no opportunity to assess her evidence or see it tested in cross-examination.

15. With regard to the allegation that the Registrant’s actions were, on occasions, sexually motivated, the Panel bore in mind that it was for the HCPC to prove that the Registrant carried out the act alleged “either for sexual gratification and/or in pursuance of a future sexual relationship.”

16. The Panel found the Registrant to be a calm and measured witness. It found that his oral evidence was consistent with the various written accounts provided. Nevertheless, it found that he minimised the extent to which he was aware of Person A’s significant vulnerability. He had treated Person A prior to her discharge from hospital and he knew the reasons for her admission, which included taking an overdose of medication and cutting her neck.  The Panel also noted that, in a message dated 26 December 2016, the Registrant wrote to Person A, “can see you a bit but can’t manage risk so need you to engage with home team more. Please?”. Therefore the Panel concluded that the Registrant was aware of Person A’s vulnerability.

Decision on Facts:

17. The Panel then considered the occasions on which it was alleged that the Registrant breached professional boundaries in his dealings with Person A.

Particular 1 (b) ii

18. With regard to the allegation that the Registrant hugged Person A, the HCPC relied upon the message from Person A to the Registrant dated 15th of March 2017 at 20.48 in which she said, “thank u for hugging me. It means a lot”.  The Panel also noted the Registrant’s reply at 21.16 “no problem, you’ll meet nice people soon”.

19. The Panel Heard the Registrant’s account in evidence of how the hug took place. He told the Panel that Person A unexpectedly advanced towards him and hugged him as she was leaving a treatment session. He described how he was taken by surprise and reacted by engaging with Person A in a brief relatively formal hug.

20. The Panel does not accept Ms Greaney’s submission that what the Registrant described did not amount to him hugging Person A.  The Registrant himself told the Panel “it was a mutual hug’’ and the Panel is satisfied that amounted to him hugging Person A. Nonetheless, the Panel accepted his account of how it occurred and accordingly, accepted that Person A instigated the hug and the Registrant was taken by surprise and felt he could not evade or reject the hug without offending Person A.

21. Having regard to the circumstances in which this hug occurred the Panel does not find that what occurred amounted to a breach of professional boundaries.  The Panel would nonetheless wish to record that the Registrant’s message following the incident was notably unprofessional in that it failed to address the boundaries required in respect of future sessions.

Particular 1 c)

22. The Registrant accepted that, in December 2016, he lent Person A two books. Again, the only direct evidence of how this occurred is the Registrant’s evidence to the Panel.  He described in his evidence that he lent the books and Person A. Person A appears to have returned them.  The Panel accordingly accepts that the Registrant lent rather than gave the books to Person A.

23. The Panel considered each book separately. The Panel accepts that the first book which the Registrant lent to Person A was a cookery book which he had obtained free from a supermarket. The Panel accepts his evidence that person A enquired about the cookery book that she had seen in his consulting room and the Registrant had done no more than to say that she could borrow it.

24. The Panel found than this was ill considered in the context of therapy but fell short of a breach of professional boundaries.

25. The Panel found that the second book, which was apparently a biography of Melanie Klein, fell into a different category.  By his own account, the Registrant had not read the book which he lent to Person A and had not considered the potential consequences to an already vulnerable patient.  On 14 December 2017 at 22.34, Person A messaged the Registrant about the book she had borrowed, saying, “whichever sicko wrote it definitely put the psycho in psychologist”. It is clear from the messages that person A sent to the Registrant, and her statements where she had said “I was completely shocked” that she was distressed by what she had read in the book.  The Panel is satisfied that the Registrant breached professional boundaries because he did not act in Person A’s best interests and failed to discharge his duty of care to her.
      
Particular 1 (d)

26. The Registrant accepted that in February 2017 he gave a candle to Person A around the time of her birthday. Person A messaged the Registrant at 22.31 on 15 February 2017 saying, “Thank you so much for the candle. It is too special! I feel like I don’t deserve it.”  The Registrant replied at 22.38 that night in a message saying, “Not at all, it was your birthday last week and you mentioned u liked them.  Glad u like it and don’t think u don’t deserve things”.  That message ends with an emoji of a smiling face.

27. The gift of a candle and the message discussion about it, have nothing to do with treatment of Person A.  The gift was a purely social interaction, irrelevant in the context of therapy with the potential to adversely affect the therapeutic process. For that reason, it is a clear breach of professional boundaries.

Particular 1(e) i

28. The Panel read messages sent by the Registrant to Person A on 26 December 2019.  The communication was started by the Registrant at 15.48 and continued until 20.05 that evening. In a message he told Person A at 17.50, “I’ve not been well lately emotionally, so need to cut back on my work.”  Later in that exchange of messages, at 19.20, Person A asked “Is everything okay”.

29. The Panel found that the conversation was in part about the Registrant’s welfare and Person A was offering him reassurance.  This exchange is unrelated to the treatment of Person A and is, to a significant extent, focused on the Registrant’s needs.  The Registrant did not accept that this conversation amounted to a breach of professional boundaries, however, in his oral evidence the Registrant that the self-disclosure was poorly judged. The Panel found that this was a breach of professional boundaries which involved him seeking support from a vulnerable patient.

Particular 1 (f)

30.  The Panel has read a large number of messages sent by the Registrant to Person A late in the evening.  Even bearing in mind that their sessions lasted from 19.30 to 20.30, the messages continued a considerable period after that, sometimes after 23.00.  There were messages at weekends and a number were sent on Boxing Day.

31. The Panel noted that the emails went beyond arranging appointments and dealt with both matters that should not have been discussed outside therapy sessions and social matters.

32. The Registrant accepted that the sending of these messages amounted to a breach of professional boundaries.  The Panel found this particular proved.

Particular 1 (g) i and iii

33. The allegation that the Registrant told Person A that she was “precious” and “important to me” is based in part upon a text message from Person A dated 26 March 2017 in which she said “You told me I was precious and valuable and every bit as important as you on multiple occasions.”  It is to an extent, supported by a sentence in Person A’s first statement to the HCPC, in which Person A said, “In our sessions, Dr Martin used to call me precious” Person A says nothing else about this.

34. In his written and oral evidence, the Registrant told the Panel that he had told Person A that all life was precious and every person is important. 

35. The Panel considered the Registrant’s account and accepted it.  In the face of what the Panel found to be a convincing explanation by the Registrant, neither the evidence of the text message nor the untested evidence of Person A persuaded the Panel that the Registrant had said the things alleged or “words to that effect”. 

36. Having considered the text message with care and in particular the words “You told me I was precious and valuable and every bit as important as you on multiple occasions.” the Panel found that the text message was consistent with the Registrant’s explanation.
37. Accordingly, the Panel found Particulars 1(g) i and iii, not proved.

Particular 2

38. The Panel then considered whether the matter proved at 1(b) ii – the hug – was sexually motivated.  The Panel reminded itself, that in order to find that the Registrant’s act was sexually motivated it must be satisfied that the act (in this case a hug) was “either for sexual gratification and/or in pursuance of a future sexual relationship.”

39. Having accepted the Registrant’s account the Panel found that there was no evidence of either motive on that occasion.  The Panel has already found the allegations at paragraphs 1(g) i and iii, not proved.  Accordingly, the Panel finds Paragraph 2 not proved.

Decision on Grounds and impairment

40. Having announced its finding on the facts, the Panel heard submissions on grounds and impairment.

Submissions

41. Mr Millin submitted that the matters found proved amounted to either misconduct or lack of competence.  He invited the Panel to find one or the other, in respect of all the matters found proved, including those facts where the Panel did not find a breach of professional boundaries.

42. He drew the Panel’s attention to the HCPC “Standards of conduct, performance and ethics” and “The standards of proficiency for practitioner psychologists.”

43. With regard to impairment, he drew the Panel’s attention to the relevant law and emphasised the Panel’s duty to consider the wider public interest as well as the protection of the public.

44. Ms Greaney, accepted that those particulars of the Allegation which the Panel found amounted to a breach of professional boundaries should also give rise to a finding of misconduct.

45. Turning to impairment, she submitted that the Registrant’s fitness to practise was not currently impaired.  She submitted that the Registrant had allayed fears of repetition through his insight and undertaking remediation.  She relied upon the evidence of Dr Tai and the contents of the Registrant’s reflective piece, as well as his good character as evidenced by testimonials.

The Panel’s decision on grounds

46. The Panel heard and accepted the advice of the Legal Assessor, which it has reflected in its decision below.  The panel bore in mind that both grounds and impairment are matters for its independent judgment.

47. First, the Panel considered whether there was any evidence of lack of competence by the Registrant. The Panel had regard to all that it has read about the Registrant. None of the matters found in this case caused the Panel to find lack of competence.

48. The Panel then considered whether the facts found proved amounted to misconduct. It bore in mind that not every failure by a registrant will amount to misconduct. The question is whether the conduct falls sufficiently below what is expected to amount to misconduct.
49. The Panel reminded itself that the 4 particulars found proved and found to amount to a breach of professional boundaries reflected:

a. The loan of a book, which caused Person A significant distress;
b. A gift of a candle to Person A;
c. The disclosure of personal information to Person A, by text messages;
d. Sending messages to Person A outside working hours.

50. The Panel bore in mind that Person A was a vulnerable patient and the matters set out above took place over several months and caused considerable distress to her.

51. The Panel had regard to the HCPC Standards of conduct, performance and ethics and in particular:

e. paragraph 1.7: You must keep your relationships with service users and carers professional.
f. Paragraph 6.1: You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.
g. Paragraph 6.2: You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.
52. It also had regard to the “standards of proficiency for practitioner psychologists” and in particular:
h. 2.1 understand the need to act in the best interests of service users at all times
i. 2.7 be able to exercise a professional duty of care
j. 2.8 understand the complex ethical and legal issues of any form of dual relationship and the impact these may have on service users
k. 2.9 understand the power imbalance between practitioners and service users and how this can be managed appropriately
l. 2.10 be able to recognise appropriate boundaries and understand the dynamics of power relationships

53. The Panel found that the Registrant breached all of these provisions and all the matters found proved amount to serious misconduct.

54. For the avoidance of doubt, the Panel found that those matters found proved but which did not amount to a breach of professional boundaries, that is the hug and the loan of a cookery book, did not amount to misconduct. For the reasons, set out in the factual determination above, they did not amount to a breach of professional boundaries.

The Panel’s decision on impairment

55. The Panel next considered whether the Registrant’s current fitness to practise is impaired by his misconduct.

56. In reaching its decision the Panel considered both the personal component and the public component of fitness to practise, which includes the need to protect service users, maintain confidence in the profession and the regulatory process and uphold proper standards of conduct and behaviour for the profession.

57. In deciding whether the Registrant’s fitness to practise is currently impaired the Panel had regard to the following examples given by Dame Janet Smith in the 5th Shipman report and subsequently adopted by the High Court in Cheatle v GMC [2009] EWHC 645 Admin and NMC v CHRE v NMC and P Grant [2011] EWHC 927 (Admin),

a. Does the Registrant present a risk to patients
b. Has the Registrant brought the profession into disrepute
c. Has the Registrant breached one of the fundamental tenets of the profession
d. Is it the case that the Registrant’s integrity cannot be relied upon.

58. The Panel considered Ms Greaney’s submission that the Registrant is unlikely to repeat his misconduct because of the insight he has developed and the remediation he has undertaken.

59. The Panel was satisfied that the Registrant had undertaken considerable remediation and developed insight into the need to maintain boundaries and ways to do that by separating his professional and personal means of communication and not contacting patients outside work hours.  The evidence of Dr Tai went a considerable way to reassure the Panel.

60. Nevertheless, the Panel found that some of the evidence the Registrant gave did not match his written reflection and remediation.  In his evidence, he sought to justify his disclosure of personal information by text messages to Person A by reference to the use of such disclosure during therapy, even though the disclosures he had made were made by text messages outside working hours. 

61. Even though he understood that he had breached professional boundaries by giving a candle to Person A, he sought to explain it by reference to the practice of giving presents by other therapists. He described this as “normalising”

62. The Panel concluded that Dr Martin is yet to develop sufficient understanding into the impact of his conduct, such as the sending of a significant number of text messaged outside working hours and personal disclosure on Person A and patients in her position before the Panel could be satisfied that the risk of repetition had been reduced to a level where Dr Martin could practise safely without restriction.

63. The Panel then considered whether a finding of impairment was necessary in the wider public interest, to maintain public confidence in the profession and to promote and maintain proper professional standards and conduct for members of that profession

64. The Panel found that because the misconduct of the Registrant was so serious that it must be marked by a finding of impairment. Despite Ms Greaney’s submission to the contrary, the Registrant’s misconduct, although not found to be sexually motivated, represented a significant breach of boundaries, over several months, to the detriment of a vulnerable patient. 

65. The Panel is satisfied that it can only fulfil its duty to the public by making a finding that demonstrates that this sort of misconduct is unacceptable. 
Decision on Sanction (reconvened on 2 December 2019)

66. In coming to its own independent decision on sanction, the Panel paid careful regard to the submissions of both parties and the HCPC’s Sanctions Policy. It also noted the advice of the Legal Assessor that it should apply the principle of proportionality, weighing the interests of the public with those of the practitioner. The public interest includes not only the protection of patients but also the maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour.

67. Mr Foxsmith, in his submissions, invited the Panel to consider the contents of the Sanction Policy, but did not recommend any particular course of action.

68. Ms. Greaney told the Panel that the Registrant had been subject to an Interim Conditions of Practice Order from 2 October 2017. In April 2019, during a review of this order, that panel was informed that another complainant had come forward and made an allegation against the Registrant.  On that occasion, the Interim Conditions of Practice Order was substituted by an interim Order of Suspension. Since then, the HCPC decided to take No Further Action in relation to this other complaint.

69. Ms Greaney accepted that her client’s misconduct involved a breach of trust, although she contended that it was not “at the higher end”.

70. In further mitigation, she drew the Panel’s attention to the contents of paragraph 28 of the Sanctions Policy, which reads as follows:
A key factor in determining what, if any, sanction is appropriate is likely to be the extent to which a registrant recognises their failings and is willing to address them. Where a registrant does recognise their failings and is willing to address them, the risk of repetition is reduced.

71. In this context, Ms Greaney provided to the Panel a copy of a letter dated 1 November 2019 from Dr Tai, the Registrant’s supervisor. Since the adjourned hearing of this case, Dr Tai held two further supervision meetings with the Registrant, on 17 September and 15 October 2019. She said her belief was that the Registrant is aware of the seriousness of his errors and possesses the skills to make the necessary changes to his practice. She added that she regarded the Registrant to be “of sound judgment, as well as a reflective practitioner who is both competent and ethical in practice”.

72. The Panel was reminded of the contents of the four testimonials from the Registrant’s work colleagues which were submitted to the Panel on the last occasion.

73. Ms Greaney’s principal submission was that the concerns identified in this case could be met by the imposition of a Caution Order. As an alternative, she submitted that the Panel might consider the imposition of a Conditions of Practice Order.

74. The Panel took into account the following mitigating factors:

• The Registrant’s acceptance that his sending of messages to Patient A in the evening amounted to a breach of professional boundaries;
•  The fact that the Registrant has already undertaken considerable remediation and developed some insight;
• The helpful views expressed by Dr Tai in her 1 November 2019 testimonial (see above) and her confirmation that the supervision she has been providing includes a concentration on the subject of maintaining professional boundaries;
• The four testimonials from work colleagues

75. The aggravating factors include:

• A significant breach by the Registrant of professional boundaries over a period of several months, to the detriment of a vulnerable patient.

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

77. Given the serious nature of the Registrant’s misconduct and its potential to put patients at risk and to undermine the reputation of the profession, the Panel is of the view that it would not be sufficient to conclude this case by taking no action or by referring it for remediation. Neither course would serve to protect patients or maintain the standing of, and public confidence in, the profession.
78. The Panel then moved on to consider whether to conclude this case by the imposition of a Caution Order. The Panel does not consider this sanction would adequately reflect the seriousness of the misconduct, or provide adequate protection to patients.

79. Next, the Panel considered whether the case could be concluded with a Conditions of Practice Order. In so doing, it had regard to the advice of the Legal Assessor that any conditions must be appropriate, measurable, workable and verifiable. Although, in the judgment of the Panel, the misconduct in this case is not minor, the Registrant has shown a development of insight and his remediation is ongoing. There does remain, nevertheless, some risk of repetition.  In all the circumstances, the Panel’s judgment is that such a sanction would be an appropriate and proportionate outcome to this case. The Panel considered that the imposition of a Suspension Order would be disproportionate.

80. In the knowledge that the Registrant, because of the imposition on his registration of an Interim Suspension Order, has not worked as a Clinical Psychologist since April 2019, the Panel’s view is that 12 months is the appropriate period for a Conditions of Practice Order. This would provide the Registrant with an opportunity to complete his process of remediation.

Order

The Registrar is directed to annotate the Register to show that, for a period of 12 months from the date that this Order comes into effect, you, Mr Lee Martin, must comply with the following conditions of practice:

1. Prior to taking up any employment or self-employment you must identify a supervisor who is a registered practitioner psychologist with experience of working with patients with complex presentations.

2. You must, within 14 days of taking up employment or self-employment, notify the HCPC of the name, job title and professional contact details of that supervisor.

3. You must meet at least fortnightly with that supervisor to discuss individual patients and your practice including maintaining professional boundaries.

4. You must obtain a report from your supervisor, which you must submit to the HCPC before any future review of this order, which addresses, amongst other things, your management of professional boundaries.

5. You must notify your employer of these conditions of practice and provide written evidence to the HCPC for a future review panel that they are aware of these conditions and that you are compliant with the conditions.

6. You must promptly inform the HCPC when you take up employment and also when you cease to be employed by an employer.

7. You must promptly inform the HCPC of any disciplinary proceedings taken against you by any employer.

8. You must inform the following parties that your registration is subject to these conditions:

a) any organisation or person employing or contracting with you (including private patients) to undertake professional work;
b) any agency you are registered with or apply to be registered with (at the time of application); and
c) any prospective employer (at the time of your application).

Notes

Interim Order:

On an unopposed application by Mr Foxsmith, the Panel makes an Interim Conditions of Practice Order for a period of 18 months, the same being necessary to protect members of the public and being otherwise in the public interest.

The conditions of the Interim Order are the same as those of the substantive Order.
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 as 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 Lee Martin

Date Panel Hearing type Outcomes / Status
02/12/2019 Conduct and Competence Committee Final Hearing Conditions of Practice