Mr Dave Allen

Profession: Physiotherapist

Registration Number: PH63711

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 07/01/2019 End: 17:00 06/02/2019

Location: The health and care professions council 405 Kennington road London SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Whilst working at Tameside General Hospital:

1.During a session with patient A on or around 11 December 2014, you:

a) Said to Patient A: "Your body's really womanly, isn't it?" or words to that effect;

b) Said to a colleague Person B that Patient A "Had a womanly, curvaceous body" and/or "had nice curves" and/or "was nice and curvey" or words to that effect.

2.During a session with Patient A on or around 24 December 2014:

a) massage and/or touched Patient A's lower thoracic and/or lumbar spine

b) massaged and/or touched Patient A's latissimus dorsi

c) Asked Patient A to remove her bra;

d) Pressed your genitals on Patient A's hand and/or body;

e) Inappropriately Touched and/or massaged Patient A's breasts

f) told Patient A that she "smelled nice", or words to that effect

3.Your actions at 2a, 2b, 2c, and 2e were not clinically indicated and/or necessary

4.Did not make clinical notes of your session with Patient A on 24 December 2014

5.Did not obtain and/or record informed consent from Patient A on;

a) 11 December 2014 and/or

b) 24 December 2014

6.Your actions at paragraph 1 - 2 were sexually motivated.

7.The matters described in paragraphs 1 - 6 amounts to misconduct.

8.By reason of that misconduct, your fitness to practise is impaired.

Finding

Preliminary Matters

Proceeding in private

1. The Panel heard that matters relating to Patient A’s health were to be discussed as part of this application. Ms Ryan submitted that it was appropriate that parts of the hearing be held in private where Patient A’s health was to be discussed. Mr Lavers did not object to the application. The Panel accepted the Legal Assessor’s advice and it noted Rule 10(1)(a) of the Health and Care Professions Council (Conduct and Competence Committee) Procedure Rules 2003 (“Procedural Rules”) whereby matters pertaining to the private life of the Registrant, the complainant, any person giving evidence or of any Patient or Client should be heard in private. The Panel agreed the parts of the hearing, where reference was to be made to Patient A’s health, should be heard in private.

Abuse of Process

2. Mr Lavers submitted that the HCPC’s decision to proceed with these matters amounted to an abuse of process, in light of the Registrant’s acquittal in the Crown Court proceedings related to this matter, and in the light of Patient A’s lack of co-operation with the HCPC on these matters. He applied for a stay of these proceedings based upon an abuse of process in relation to Particulars 1, 2, 3 and 6 of the allegation.
3. As part of his submission, Mr Lavers directed the Panel’s attention to the case of Ashraf v General Dental Council [2014 EWHC 2618 (Admin) and to the following passage from that case:
per Sir Brian Leveson:

“[35]. It is important to confirm that although it is not inherently unfair to bring misconduct charges against a professional who has already been acquitted in the criminal courts, this does not mean that there will not be circumstances in which it would be unfair to proceed. Allegations of crime (which if leading to a conviction would justify erasure) may, in some circumstances, not justify further investigation by a regulator.  Without seeking to be determinative, it might be that no further investigation by the regulator is justified because the allegations do not, in any way, touch upon professional responsibilities either to patients or (as here) to the NHS (which is required to invest trust in the integrity of the professional to fulfil the terms of the funding contract honestly).  This elaboration, however, is not intended to be definitive guidance: regulators must each determine how they go about achieving their regulatory objectives and, bearing those objectives in mind, faithfully apply the well known principles engaged within the concept of abuse of process.”

4. Mr Lavers submitted that Patient A’s absence from proceedings meant that a fair hearing could not be achieved for the Registrant, and that the existence of the ABE interview of Patient A did not cure the shortcomings in not having a complainant of very serious allegations present for their evidence to be tested by the Registrant.

5. Ms Ryan submitted that the decision to bring these matters did not amount to an abuse of process and that the Panel could be satisfied that a fair hearing was possible in the circumstances.

6. The Panel accepted the advice of the Legal Assessor. He drew the Panel’s attention to the cases of CHRE v GMC and Saluja [2006] EWHC 2784 (Admin) and Ruscillo v CHRE  [2004] EWCA Civ 1356

7. In the light of the above authorities, the Legal Assessor gave the Panel the following advice:

a) The case of Ashraf v General Dental Council [2014 EWHC 2618 (Admin) was not an authority that regulatory panels have inherent power to stay proceedings. He advised that the HCPTS is a statutory body and can only exercise powers expressedly provided, it does not have inherent powers;

b) Even if there were inherent powers, stay of proceedings for reason of abuse of process is exceptional;

c) The principle of abuse of process related to the misuse of state powers, either by the Crown or its agents, which would compromise the integrity of the judicial system. The HCPC was not an agent of the state, and its actions do not fall to be considered as part of an abuse of process argument in these proceedings;

d) These are proceedings brought in order to protect the public, uphold professional standards and maintain confidence in the profession. These are different considerations from those that apply to a criminal prosecution and misuse of executive powers by the state's agents, and the Panel must bear those in mind;

e) The Panel should play a more proactive role than a judge presiding over a criminal trial in making sure that the case is properly presented and that the relevant evidence is placed before it. Therefore the Panel can, and should, give consideration to all the powers open to it in order to ensure that it meets its overarching object of protection of the public and of the public interest, throughout these proceedings.

8. The Panel carefully considered the submissions of both parties and the advice it received from the Legal Assessor. It determined that in the circumstances of this case, proceeding would not deprive the Registrant of a fair hearing. This is because of the powers that the Panel can exercise to ensure that he has a fair hearing, and the fact that the Panel is to take an active role in proceedings to ensure that the case a Registrant faces is properly presented and that the relevant evidence is placed before it.

Application to exclude hearsay evidence

9. Mr Lavers applied for the ABE interview of Patient A, and other evidence that flowed directly from Patient A to be excluded, namely:

• the evidence of Persons C and Person D;

• the complaint made by Patient A to an unidentified investigator at the Trust;

• the taped interview of the Registrant that was conducted as a result of the allegation made by Patient A; and

• two witness statements made by Patient A dated 19 January 2015 and 16 September 2016.

10. Mr Lavers argued that the Registrant would be unfairly prejudiced by their admission. He submitted that Patient A would have been the sole and decisive evidence for particulars 1 and 2 and that her absence in these proceedings meant that the HCPC were left with an evidential problem. He submitted that it would not be fair for the HCPC to remedy that problem by using the ABE interview of Patient A, the taped interview of the Registrant, and the evidence of persons C and D.

11. Mr Lavers submitted that the ABE interview was hearsay evidence and would be the sole and decisive evidence for particulars 1 and 2. He submitted that it would be unjust in the circumstances to admit the ABE interview into evidence as the Registrant would not have the opportunity to test the evidence of Patient A.

12. Mr Lavers further submitted that the evidence of persons C and D should be excluded as they are not direct witnesses of the incident and are only able to give evidence of what they were told by Patient A.

13. The Panel accepted the advice of the Legal Assessor. He reminded the Panel that the Civil Evidence Rules governed the admissibility of evidence in these proceedings. Therefore, a piece of evidence should not be excluded solely on the ground that it is hearsay. He advised the Panel that it must still consider whether each document subject to this application was relevant to the issues. He further advised that if the Panel considered a document was relevant to such issues, it must still go on to consider whether or not it was fair that such a document be admitted into evidence.

14. The Legal Assessor drew the Panel’s attention to the following cases:

a) Bonhoeffer v GMC [2011] EWHC 1585 (Admin);

b) Thorneycroft v NMC [2014] EWHC 1565 (Admin); and

c) NMC v Ogbonna (2010) EWCA Civ 1216.

15. The Legal Assessor advised that the relevant principles articulated by the above cases are as follows:

a) The more serious the allegations, the more astute the Panel should be to ensure fairness;

b) The decision to admit hearsay evidence is not to be regarded as a routine matter. The Panel must specifically consider the issue of ‘fairness’ before admitting the evidence;

c) Consideration of what weight can be attributed to the evidence once it has been admitted is not relevant to the question of whether it would be fair for the evidence to be admitted in the first place;

d) The existence or otherwise of a good and cogent reason for the non-attendance of the witness is an important factor. However, the absence of a good reason does not automatically result in the exclusion of the evidence;

e) Where the evidence in question is the sole or decisive evidence in relation to the particulars, the decision whether or not to admit it requires the Panel to make a careful assessment, weighing up the competing factors. To do so, the Panel must consider the issues in the case, the other evidence, which is to be called and the potential consequences of admitting the evidence. The Panel must be satisfied either that the evidence is demonstrably reliable, or alternatively that there will be some means of testing its reliability.

16. The Panel accepted the Legal Assessor’s advice. The Panel determined that the ABE interview, and the evidence of persons C and D was relevant to particulars 1 and 2.

17. The Panel took into account why Patient A was not present to give evidence today. It was aware that she had not engaged with the HCPC in these proceedings, and that there were two statements from her doctor about this. However, the Panel did not find that the letters constituted proper medical evidence to demonstrate that Patient A was unfit to attend the hearing. The letters indicated that she did not wish to attend to give evidence which accords with the fact that Patient A had not engaged with the HCPC in this process.

18. The Panel also took into account that the HCPC had not communicated directly with Patient A, but had done so via her mother.

19. In relation to particular 1, the Panel was aware that there was another witness, person B, who had been present during the treatment session and who would be giving independent and direct evidence in relation the appointment on 11 December 2014. The Registrant would have the opportunity of testing this witness’s evidence.

20. In that regard, the Panel determined that the ABE interview, the Registrant’s taped police interview, and the evidence of persons C & D, insofar as they related to the treatment session of 11 December 2014 could be admitted as evidence.

21. In relation to particular 2, there was no direct evidence adduced by the HCPC. Patient A would have provided direct evidence but the indication is that she does not wish to do so. The Panel also determined that Patient A’s evidence is the sole evidence from which all other evidence flows, in relation to particular 2.

22. The Panel also determined that in the circumstances, the Registrant would be unfairly prejudiced if the ABE interview relating to this incident were permitted to be adduced in evidence. Therefore the Panel determined that the ABE interview insofar as it related to the treatment session of 24 December 2014 should not be permitted. The Panel also determined that all other evidence that flowed directly from Patient A would fall into the same category and should be excluded.

Application for evidence to be received by way of telephone evidence

23. Ms Ryan applied for the evidence of a witness, LH, to be received by telephone link. She informed the Panel that LH was unable to attend the hearing to give evidence in person. This was because her husband and her mother were in hospital and she was not in a position to travel. Furthermore, she could not travel far from the hospital they were in, nor stay away for any length of time, in order to give evidence via video-link.  Ms Ryan said that LH had indicated she could and was willing to give evidence by way of telephone link.

24. The Panel accepted the advice of the Legal Assessor. Rule 10(b) sets out that the rules of evidence governing Civil Proceedings apply, and therefore the principles of Relevance and Fairness apply. The Panel bore in mind its over-arching objective of protection of the public and of the public interest.

25. The Panel had sight of LH’s statement and considered that her evidence was relevant to the proceedings.

26. The Panel also determined that it was fair, and would not cause any injustice, to receive LH’s evidence by way of telephone evidence. The circumstances leading to her inability to attend this hearing were unforeseeable and unavoidable.

Application for Patient A to give live evidence

27. On the morning of 1 August 2018, Patient A contacted the Hearings Officer by telephone to indicate that she was able to give live evidence, and that it was her desire to do so.

28. Ms Ryan submitted that the Panel should permit Patient A to attend and give oral evidence. She pointed out that she had not yet closed the HCPC’s case. She accepted that it was not ideal that events have unfolded as they have, but submitted that the HCPC was under a public duty to ensure that cases such as these are properly presented. She drew the Panel’s attention to the case of Ruscillo v CHRE and GMC [2004] EWCA Civ 1356 and pointed out that there was a duty on regulators to ensure that the cases they bring are not under-prosecuted. She submitted that any prejudice to the Registrant could be minimised through effective cross-examination by Mr Lavers, and effective case-management by the Panel.

29. Mr Lavers submitted that it would be unfair to the Registrant to allow Patient A to give evidence at this stage. He submitted that the entirety of the hearing had been predicated upon the previous decision of the Panel to exclude the hearsay evidence relating to Patient A. He pointed out that time had been taken to redact the bundles, and to adjust the opening submissions. He submitted that to permit Patient A to give evidence now, would have an adverse impact on the timing of the case, the witnesses due to give evidence, and the overall duration of this hearing. He pointed out that the change in Patient A’s position would be something that needed to be tested in cross-examination, and that it would be difficult to prepare such a cross-examination if it was expected that Patient A were to give evidence tomorrow. Mr Lavers noted that the HCPC had contended that Patient A was medically unfit to attend the hearing. However, after the Panel’s decision to exclude hearsay evidence of Patient A, she has suddenly expressed her willingness to attend the hearing without any adequate explanation.

30. Mr Lavers suggested that Patient A’s request to attend as a witness was a manipulation of the proceedings and in itself an abuse of process. He further noted that the Panel had the power to issue a witness summons and had decided not to do so. In summary, he suggested that allowing Patient A to attend to give evidence as a witness would be unfair to the Registrant in the circumstances.

31. The Panel accepted the advice of the Legal Assessor. He drew the Panel’s attention to the cases of:

a) PSA v Jozi and NMC [2015] EWHC 764 (Admin); and

b) Ruscillo v CHRE and GMC [2004] EWCA Civ 1356

32. The Legal Assessor reminded the Panel that disciplinary tribunals should play a more proactive role than a judge presiding over a criminal trial in making sure that cases are properly presented and that the relevant evidence is placed before it.

33. The Legal Assessor said that in the Jozi case, one of the grounds of appeal was that the NMC panel itself failed to intervene, despite the insufficiency of the evidence. The Legal Assessor pointed out that the Court accepted that ground of appeal, and he elaborated on the facts of that case.

34. The Legal Assessor advised the Panel that it was a balancing exercise and that it must always bear in mind its overarching objective of protection of the public, maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour on the part of Registrants.

35. The Panel bore in mind its overarching objective when coming to its decision. It identified the competing factors to be considered to be as follows:

a) fairness to all parties;

b) the need for expedition in proceedings;

c) the desirability for best evidence to be presented and heard;

d) the prejudice that would be caused by allowing Patient A to give evidence at this stage,

e) the timing of the case, and the possibility of the need to re-call witnesses; and

f) it had been, and was still, open to the Panel to exercise its power to summons Patient A to give evidence if it determined that was the appropriate course of action to achieve the overarching objective.

36. In coming to its decision, the Panel took into account the following facts:

a) the HCPC had not closed its case;

b) the testimony of Patient A had been served on all parties in the form of her Achieving Best Evidence interview with the police, and a statement by her to the police (albeit it had been excluded on the grounds that the Registrant could not test the veracity of her testimony);

c) the Panel had determined that there was insufficient medical evidence presented to demonstrate that Patient A was unfit to attend and give oral evidence.

37. The Panel determined that it was in the interest of justice to permit Patient A to attend and give oral testimony. It provides the Registrant, and particularly the Panel with the opportunity to test her credibility and evidence. These are serious matters that should be considered by use of the best available evidence. The Panel determined that any prejudice caused could be addressed by the exercising of effective case-management.

38. The Panel determined that it would permit Patient A to attend and give evidence at this stage in proceedings.


Background

39. At the material time, the Registrant was employed by Tameside General Hospital as a Physiotherapist.

40. Patient A was employed by Tameside General Hospital as a Cancer Peer Review Support Officer. On 11 December 2014, Patient A woke up in pain, which started in her shoulder blade and travelled to her neck. She went into work and was internally referred to the Physiotherapy Department. She was then booked in for an appointment that day.

41. The Registrant saw Patient A at approximately 2pm that day. Person B, whom he described to Patient A as a ‘trainee’, accompanied him. During that appointment, it is alleged that the Registrant made inappropriate comments about Patient A’s body.

42. Patient A had a second appointment with the Registrant on 24 December 2014. There was no other person present at this appointment. It is alleged that during this appointment, the Registrant pressed his genitals against Patient A’s body and inappropriately massaged or touched her breasts. It is also alleged that the Registrant did not obtain and/or record consent for his treatment of Patient A, and also failed to record the treatment provided for the appointment of 24 December 2014.

Half Time Submissions

43. Mr Guest made a submission that there was no case to answer in respect of particulars 1(a), 1(b), 2(a), 2(b), 2(e), 5(a) and part of 5(b).

44. Ms Ryan submitted that the Panel should have regard to the guidance in the HCPC Practice Note on half time submissions and outlined the oral and documentary evidence relied on by the HCPC.

45. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note on half time submissions.

46. The Panel agreed Mr Guest’s submission in relation to particular 1(a). Although there is hearsay evidence to support this particular in the form of Patient A’s ABE interview, the Panel considered that no weight could be given to this evidence because it was not supported by the oral evidence of either Patient A or Person B. In her oral evidence Patient A could not recall the detail of comments made to her with regard to this particular. To the extent that she recollected what was said to her it appeared to be closer to particular 1(b). Patient A did not adopt the ABE interview as part of her evidence. Person B, who was present throughout the consultation on 11 December 2014, did not provide evidence to support particular 1(a).

47. The Panel concluded that although there was evidence in support of particular 1(a), that evidence was so unsatisfactory in nature that the Panel could not find the particular proved.

48. The Panel did not agree with Mr Guest’s submission in relation to particular 1(b). The Panel identified the following evidence: Patient A’s oral evidence; the oral evidence of Person B; and the hearsay evidence of Person C.

49. The Panel did not accept that there was no case to answer in relation to particulars 2(a) and 2(b). The Panel considered that there was evidence to support this particular from Patient A who described the massage as being over “all of her back” and the expert evidence of Mr Edbrooke who explained the anatomical location of the “lower thoracic and/or lumbar spine” and “latissimus dorsi”.

50. The Panel agreed that there was no evidence to support particular 2(e). Patient A described a massage of her back only at the appointment on 24 December 2014. There is therefore no case to answer on this particular.

51. Mr Guest made a submission that there was no case to answer in relation to particular 5(a). When Patient A was asked about consent at the appointment on 11 December 2014, she had no recollection. The relevant evidence is therefore the notes completed by the Registrant for the appointment and the expert evidence of Mr Edbrooke. The notes show that the Registrant completed the box on the form to indicate that Patient A gave her consent for assessment. There was no further box on the form to indicate consent for physiotherapy treatment. There was no evidence of any relevant guidelines or policy for obtaining or recording consent for physiotherapy treatment at the Trust. Mr Edbrooke’s expert opinion was that it would be best practice to record consent for treatment especially if that treatment was physically invasive, but he did not give a firm opinion that physiotherapists should always record such consent.

52. Having carefully considered the evidence relied upon by the HCPC, the Panel did not consider that it supported particular 5(a). Accordingly, the Panel concluded that there was no case to answer.

53. In respect of particular 5(b) the Panel agreed to Mr Guest’s submission in relation to obtaining informed consent. Again, Patient A’s evidence in relation to this particular was that she had no recollection. The Panel considered Ms Ryan’s submission that the absence of a record for the appointment on 24 December 2014 was evidence from which the Panel could infer that consent was not obtained. The Panel agreed that this was evidence that provided some support for the particular because there was a possible argument for an inference. However, the Panel did not consider the argument to be strong and it had to be considered in the context of the other evidence, particularly Patient A’s evidence.

54. Having carefully reviewed the evidence, the Panel decided that it was so unsatisfactory in nature that the Panel could not find particular 5(b) proved in relation to obtaining consent.

55. In summary the Panel agreed to the half time submission in relation to particulars 1(a), 2(e), 5(a) and 5(b). This decision does not apply to the allegation of not recording informed consent under particular 5(b) which remains.

56. Mr Guest also raised an issue relating to particular 2(f), inviting the Panel to note that it is not listed within particular 3 as an action which was not clinically indicated and/or necessary. The Panel decided that the drafting of the Allegation was appropriate. The allegation in particular 2(f) is of a similar nature to the alleged comments in particular 1. The whole of particulars 1 and 2 are alleged to be sexually motivated and to constitute misconduct.


Decision on Facts

57. The Panel carefully read and considered the documents in the HCPC bundle of exhibits and Ms Sheehy’s report.

58. The Panel heard evidence from the HCPC witnesses, Person B, Person C, Patient A, LH (the Hospital’s Therapy Services Manager) and Dr Edbrooke, an expert witness. The Panel carefully read the Registrant’s written statement and heard his oral evidence, as well as evidence from Ms Sheehy, an expert witness.

59. The Panel found that Person B was an honest and credible witness. She was not related to Patient A and was entirely independent. On her brief meeting with the Registrant, she liked him and had no reason for making a malicious or exaggerated statement. Although Person B was aged 17 at the time of the events, she was sufficiently mature to understand and recognise flirtatious behaviour. She did not have any knowledge of physiotherapy, but she was straightforward, honest and robust in describing what she saw and heard.

60. The Panel heard evidence from Person C who gave evidence about Patient A’s immediate complaint after the first appointment on 11 December 2014. Person C gave direct evidence that Patient A felt uncomfortable about this appointment. The Panel found that Person C was a credible witness. The Panel found Person C’s evidence was credible.

61. The Panel heard evidence from Patient A on two separate dates. Patient A had appeared as a witness in criminal proceedings at the Crown Court involving the Registrant. The Panel considered that she showed considerable fortitude in attending the hearing and returning on a second occasion for cross-examination and Panel questions. She was hindered by not having access to her witness statement to refresh her memory of the events.
62. The Panel noted that at times during her evidence Patient A was flippant, defiant, upset or defensive. She was understandably anxious and concerned that her evidence may not be believed because of her earlier experiences in the Crown Court. She was also angry about the Registrant’s treatment of her. However, her emotional responses did not cause the Panel to doubt her honesty. Under cross-examination and in response to Panel questions she answered as fully as she was able to and gave the best evidence that she could under the circumstances.

63. The Panel considered that Patient A’s evidence was not wholly reliable in relation to the sequence of events; which the Panel attributed to the passage of time. When she described the most serious aspects of the Registrant’s conduct Patient A was able to give details and was clear and consistent. If she was unable to recall any details she said so.

64. The Panel was provided with a copy of The Council for Healthcare Regulatory Excellence (CHRE) guidance for fitness to practise panels regarding ‘Clear Sexual Boundaries Between health Care Professionals and Patients’ (January 2008). This document outlines the range of ways in which victims of sexual assault/misconduct may respond when giving evidence.

65. The Panel found that Patient A was an honest and credible witness.

66. The evidence of LH was limited and was largely uncontroversial. She gave evidence about the best practice for writing patient notes. The Panel had no reason to doubt her evidence.

67. The Panel found that Dr Edbrooke was a knowledgeable and credible witness. He provided the Panel with clear clinical reasoning for his opinion as to whether or not treatment to Patient A’s latissimus dorsi was justified given her neck symptoms.

68. The Panel heard evidence from the Registrant. He came across to the Panel as personable.

69. When answering questions in examination-in-chief, he was well prepared and confident. When answering questions in cross-examination and Panel questions he was guarded and less confident. Although he had a better recollection of the sequence of some of the events than Patient A, the Panel was not confident of his honesty in all of his answers.
70. The Panel did not consider that the Registrant’s explanation that he had used the word “curves” when describing the lordosis (curvature) of Patient A’s spine was credible. The Registrant’s evidence on this point was not candid.

71. Where the evidence was in conflict the Panel preferred the evidence of Person B and Patient A to the evidence of the Registrant.

72. The Panel also heard evidence from the Registrant’s expert witness, Ms Sheehy. The Panel recognised that Ms Sheehy, as with Dr Edbrooke, is an expert in the field. In cross-examination Ms Sheehy was willing to address the alternative view, based on the HCPC’s case against the Registrant.

73. Ms Sheehy gave her evidence after she had heard evidence from the Registrant and the HCPC’s expert witness. Her expert opinion was that the Registrant had identified, when taking Patient A’s previous medical history, that she had suffered problems with her lower back some two years prior to the treatments in question. Ms Sheehy stated that it was logical for the Registrant to extend his treatment to that area once he had fully addressed the acute pain in Patient A’s neck.

74. On the basis of Patient A’s evidence, the Panel decided that the symptoms she reported to the Registrant were solely symptoms in her neck and that the pain in her neck was still present when she presented for treatment on 24 December 2014. She did not report lower back symptoms at the appointment on 11 December 2014 or at the appointment on 24 December 2014. The Panel did not consider that the notes made by the Registrant on 11 December 2014 showed that the Registrant had planned to treat Patient A’s back at the second appointment.

75. The Panel did not accept the Registrant’s evidence that Patient A reported back symptoms at the second appointment or that he identified a need to treat her back in a clinical assessment. There are no notes of the appointment on 24 December 2014 to support the Registrant’s account. There is no evidence that the pain to Patient A’s neck had been fully addressed when she attended for treatment on 24 December 2014 or that she reported that she had pain symptoms lower down her spine. Therefore on that basis, and taking account of Ms Sheehy’s evidence, there was no clinical justification to treat her back.

Particular 1

76. The Panel found particular 1(b) proved by the oral evidence of Person B and Patient A. Patient A and Person B described flirtatious comments made by the Registrant about Patient A. Both Person B and Patient A used the words “nice” and “curvy” when describing these comments. Person B’s recollection of the comments was clearer than Patient A’s recollection. There was further consistent evidential support regarding comments of this nature from the evidence of Patient C.

77. The Panel found that the Registrant said that Patient A “was nice and curvy” or words to that effect.

78. The Panel did not accept the Registrant’s explanation that he used the word “curves” to describe Patient A’s lumbar lordosis. This explanation was entirely inconsistent with Patient A and Person B’s description of the comments as flirtatious and with Patient A’s report to Person C of her discomfort. The Registrant said that there was no response from Patient A to his use of the word “curves”. If the Registrant had described curves in Patient A’s spine, in the Panel’s view, a response, acknowledgement, or clinical discussion should have followed.

79. Although the comment was made about Person A, Person B was in the room at the time and the comment was made to her.

Particular 2

80. Particulars 2(a), 2(b) and 2(c) were admitted by the Registrant. The Panel found them proved by that admission and by the oral evidence of Patient A and the Registrant.

81. The Panel found particular 2(d) proved. The Panel accepted Patient A’s description that she was lying face down on the couch and had her hands above her head. While she was lying in this position the Registrant pressed his groin and erect penis onto her hands. She was clear that the movement was not a brushing past, but pressing against her. When she moved her hands away the Registrant continued to massage her and to press his groin into the right side of her body. She described that he was pressing onto her and was too close to her. Although she was unable to see the Registrant, she was clear that she was not mistaken and that the sensory touch she experienced was the Registrant’s erect penis rather than any other rigid object.

82. Patient A’s reaction to the event was that she felt very uncomfortable and she described being “completely petrified, frozen on the bed”. Although the Registrant was a confident individual, this was not an unusual initial response to the assault.

83. The Panel decided that the contact between the Registrant and Patient A was not accidental contact that may occur when a physiotherapist moves around the couch to treat a patient. That type of contact would be transitory rather than the repeated pressing described by Patient A. The Panel was satisfied that the incident could have occurred as Patient A described and she was not mistaken in her description of the nature of the contact.

84. In reaching its decision on particular 2(d) the Panel took into account its conclusions that the Registrant made flirtatious comments about Patient A at the appointments on 11 December 2014 and 24 December 2014. The Panel inferred that the Registrant was attracted to Patient A. This background context supported Patient A’s account of the events on 24 December 2014.

85. The Panel found that in the session on 24 December 2014 the Registrant pressed his genitals against Patient A’s hand and body.

86. With regard to particular 2(f) the Registrant admitted that he may have made a comment referring to the smell of Patient A’s perfume at the treatment session on 24 December 2014. On the basis of the oral evidence of Patient A, and the oral evidence of the Registrant, the Panel found particular 2(f) proved.

Particular 3

87. The Panel found particular 3 proved in respect of the Registrant’s actions in 2(a), 2(b) and 2(c). As explained above the Panel found that there had been no change in the location of Patient A’s symptoms between 11 December 2014 and 24 December 2014. Those symptoms were in her neck and shoulders as set out in the Registrant’s written notes of the treatment session on 11 December 2014 and as described in the oral evidence of Patient A on 6 August 2018 when she stated that the Registrant applied oil to the back of her neck where the pain was located. The Registrant did not make a plan to treat Patient A’s back at the session on 24 December 2014.

88. The Panel accepted the expert opinion of Dr Edbrooke that there was no clinical justification for massaging or touching Patient A’s lower thoracic and lumbar spine. He explained to the Panel that the area the Registrant had identified as the source of Patient A’s pain was between the C4 and C7 vertebrae in the mid to low cervical spine, which is the middle to the base of the neck. He described that mobilisation treatments would be to the relevant parts of the spine and that the treatment given by the Registrant at the session on 11 December 2014 was a normal and appropriate treatment. Dr Edbrooke did not consider that a soft tissue massage to the back and arms was appropriate or necessary.

89. In cross-examination Dr Edbrooke agreed that there is a connection between the neck and the back. He accepted that if the Physiotherapist identified dysfunction in the lower spine it would be justified to treat the back as well as the neck. However, unless the Physiotherapist identified such a problem in their clinical assessment, he did not agree that treatment could be extended from the neck to the back. He disagreed that a previous history of lower back pain, dating back some two years and symptom free at the time in question, would, by itself, be sufficient to justify the extension of the treatment.

90. The treatment of Patient A on 11 December 2014 did not involve massage or touching her thoracic or lumbar spine. As noted above in the Panel’s comments on Ms Sheehy’s expert evidence, the Panel found that there was no change in Patient A’s symptoms when she presented for treatment on 24 December 2014 and no change in the Registrant’s clinical assessment. There was therefore no necessity or clinical justification for massaging and touching Patient A’s lower thoracic and lumbar spine. The latissimus dorsi is a large muscle in the back which connects the vertebral column (spine) and the arms. There was no necessity or justification for massaging and touching the latissimus dorsi. The removal of Patient A’s bra was for the purpose of the massage. Accordingly, there was no necessity or clinical justification for that action.

Particular 4

91. The Panel found particular 4 proved by the documentary evidence, the admission of the Registrant and the Registrant’s oral evidence.

Particular 5

92. The Panel found particular 5 proved in respect of the Registrant’s failure to record informed consent from Patient A on 24 December 2014 by the documentary evidence, the admission of the Registrant and the Registrant’s oral evidence. There was no case to answer in respect of the remainder of particular 5 for the reasons set out above.

Particular 6

93. The Panel found particular 6 proved in respect of the Registrant’s conduct in particulars 1(b), 2(a), 2(b), 2(c), 2(d) and 2(f).

94. The Panel found that when particular 1(b) and 2(f) were considered in the context of all the facts found proved, they were sexually motivated. Both Patient A and Person B described the comment at 1(b) as flirtatious. Both the comments at 1(b) and 2(f) were not made for sexual gratification, but in the anticipation and hope of future contact with Patient A, such as the contact of a sexual nature which occurred on 24 December 2014.

95. The conduct in particulars 2(a), 2(b) and 2(c) was not necessary and not clinically justified. The massage was described by Patient A as soft and gentle and more the type of massage that a boyfriend would give. The Panel drew the inference that the conduct was sexually motivated in that it was for the Registrant’s sexual gratification. There could be no motive or reason for the actions described in particular 2(d) other than sexual motivation. The Panel found that this conduct was for the Registrant’s sexual gratification.


Decision on Grounds

96. The question of whether the facts constitute misconduct is for the judgment of the Panel and there is no burden or standard of proof.

97. There is no statutory definition of misconduct, but the Panel had regard to the guidance of Lord Clyde in Roylance v GMC (No 2) 1 AC 311: “Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a practitioner in the particular circumstances…”. The conduct must be serious in that it falls well below the standards.

98. The Panel considered the HCPC Standards of Conduct Performance and Ethics and decided that the Registrant’s actions were a breach of standards 1 – you must act in the best interests of service users, 3 – you must keep high standards of personal conduct, 10 – you must keep accurate records, and 13 – you must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession. The Panel also considered Standards of Proficiency for Physiotherapists and decided that the Registrants actions were a breach of standard 2 – be able to practise within the legal and ethical boundaries of their profession and standard 3.1 – understand the need to maintain high standards of personal and professional conduct.

99. The Panel noted that the Registrant’s actions took place on two separate dates, thirteen days apart. There was a continuing course of conduct rather than an isolated incident. The Panel were also of the view that there was an element of pre-meditation in the Registrant’s conduct. His behaviour on 11 December 2014 paved the way for his conduct on 24 December 2014.

100. The Registrant’s conduct was deliberate and sexually motivated. It had a significant and lasting impact on Patient A. She suffered the distressing experience of remembering and visiting the events on several occasions. In particular she gave evidence in the Crown Court and attended this Hearing on two occasions to give evidence. She remains understandably angry about the way in which she was treated. She told the Panel that she “bottled a lot of feelings and a lot of shame”.

101. The comments made by the Registrant, as outlined in particulars 1(b) and 2(f), were part of the Registrant’s course of conduct and were sexually motivated. In this context they were serious.

102. The two failures to record, particulars 4 and 5, were also inextricably connected and cannot be separated from the Registrant’s overall course of conduct. The Registrant was not focussed on his clinical work and it would have been impossible for him to accurately record clinical treatment of the Registrant on 24 December 2014.

103. The most serious particulars were particulars 2(a), 2(b), 2(c) and 2(d) together with particular 6. Patient A was subject to a sexual assault. In the Panel’s view all members of the profession would describe the Registrant’s conduct as deplorable and a breach of the trust which was placed in him by Patient A. The Panel concluded that the Registrant’s conduct fell well below the standards of a Physiotherapist and was sufficiently serious to constitute misconduct.


Decision on Impairment 

104. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note “Finding that Fitness to Practice is Impaired”. The Panel considered the Registrant’s fitness to practise at today’s date.

105. The Panel first considered the personal component which is the Registrant’s current behaviour.

106. In the Panel’s view, the misconduct in this case involved personal behaviour and a violation of professional boundaries which would not be easy to remedy. Nevertheless, the Panel considered that the conduct might be remediable in the long term.

107. The Registrant has demonstrated very limited insight in relation to the appropriateness of the comments he made to Patient A and no insight in relation to the most serious of the particulars found proved.  He also showed no insight into the impact on his conduct on Patient A.

108. In the Panel’s view any possible remediation of the Registrant’s misconduct would require significant reflection and the development of insight over a long period of time. The Panel’s assessment was that currently there is a risk of repetition of misconduct.

109. The Panel concluded that the Registrant’s fitness to practise is impaired on the basis of the personal component.

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

111. The Registrant’s misconduct was a very serious departure from the required standards of conduct and behaviour of a Physiotherapist. It was a violation of the requirement on the Registrant to maintain appropriate professional boundaries. Members of the public are often in a vulnerable position when physiotherapy takes the form of hands on treatment, and they trust Physiotherapists not to cross professional boundaries. The Registrant’s misconduct was also a breach of fundamental tenets of the profession, including the requirement to act in the best interests of service users. For the wider public interest alone the Panel considered that it was necessary to mark the Regulator’s disapproval of such a serious breach and that this required a finding that the Registrant’s fitness to practise is impaired.

112. A finding of current impairment was also necessary to maintain confidence in the profession and the regulatory process. The Registrant’s misconduct was so serious that any informed member of the public would expect the Regulator to take action and members of the profession would consider his actions to be deplorable.

113. Applying the test suggested by Dame Janet Smith in her fifth Shipman report which was recommended by Cox J in CHRE v Grant [2011] EWHC 927, the Panel’s findings of fact showed that the Registrant has in the past acted to put a patient at unwarranted risk of harm and was liable in the future to do so. He had in the past brought the profession into disrepute and was liable in the future to do so. He had in the past breached and was liable in the future to breach one of the fundamental tenets of the profession.

114. The Panel therefore concluded that the Registrant’s fitness to practise is impaired on the basis of the personal component and the public component.


Decision on Sanction

115. The Panel heard submissions from Mr Millen and from Mr Guest. Mr Millen referred the Panel to the cases of Arunkalaivanan v GMC [2014] EWHC 873, GMC v Khetyar [2018] EWHC 813 and Yasin v GMC [2018] EWHC 677.

116. Mr Guest put forward mitigation on behalf of the Registrant. He informed the Panel that the Registrant continued to work as a Physiotherapist without further incident for four years. However he explained that the Registrant is currently subject to an HCPC Interim Suspension Order. The Interim Suspension Order was imposed in May 2018 and is based upon a conviction allegation in respect of an assault. Mr Guest told the Panel that this relates to an incident which occurred in October 2017.

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

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

119. The Panel decided that the aggravating features were:

• the emotional harm to Patient A;

• Patient A was in a vulnerable position because of her state of undress;

• an element of pre-meditation;

• a sexual assault which was not momentary, but prolonged over the treatment session;

• the course of conduct over two separate patient appointments;

• the Registrant’s very limited insight.


120. The Panel decided that the mitigating features were:

• the Registrant’s full engagement with the HCPC process and the Hearing

121. The Panel noted that the Registrant worked as a Physiotherapist for four years after the incident and that there was no repetition. However, the Panel decided that it was not appropriate to describe this as a mitigating feature because the Registrant was convicted of a criminal offence during that period.

122. Having identified the aggravating and mitigating features the Panel assessed the overall seriousness of the Registrant’s conduct and considered that his actions constituted a sexual assault. The conduct was for the Registrant’s sexual gratification and was deplorable.

123. The Panel considered the option of taking no action, but decided that the misconduct was too serious for this exceptional outcome. Mediation is not appropriate.

124. The Panel next considered a Caution Order. The Panel did not consider that the guidance in the ISP for Caution Orders applied. A Caution Order would also not be sufficient to address the wider public interest considerations because of the gravity of the misconduct, involving a breach of a fundamental tenet of the profession.

125. The Panel next considered a Conditions of Practice Order. The Panel decided that conditions could not be formulated which would adequately protect the public against the risk of repetition. Further, conditions would not be adequate to mark the seriousness of the Registrant’s misconduct.

126. The Panel next considered the option of a Suspension Order. A Suspension Order would prevent the Registrant from working as a Physiotherapist while he was suspended and would guard against the risk of repetition of sexual misconduct. It would therefore provide sufficient protection for service users in the short term. However, the Registrant’s misconduct involved a serious and deliberate act which was an abuse of a service user. The ISP indicates that a Striking Off Order rather than a Suspension Order may be the appropriate order in such a case.

127. The question for the Panel was whether the public interest considerations required the imposition of the more severe sanction of a Striking Off Order. In reaching its decision the Panel evaluated the mitigating circumstances it has identified. The Panel did not consider that the Registrant’s engagement with the HCPC should be given significant weight. It was in the Registrant’s interests to engage with the process and to present his case to the Panel.

128. The Panel also considered the Registrant’s interests. The imposition of a Striking Off Order was likely to have a significant financial impact on the Registrant, prevent him from practising his chosen profession and would have a negative impact on his reputation. The Panel nevertheless decided that the Registrant’s interests were outweighed by the need to maintain confidence in the profession, to uphold standards of conduct and behaviour and to act as a deterrent to other Physiotherapists. The Panel has highlighted above the aggravating features of this case which included the risk of repetition as well as a degree of premeditation to the Registrant’s actions. Given those features and the seriousness of the conduct, the Panel decided that a Striking Off Order was the appropriate and proportionate sanction.

Order

ORDER: That the Registrar is directed to strike the name of Mr Dave Allen from the Register on the date this order comes into effect.

Notes

Interim Order

129. Ms Mallin made an application for an Interim Suspension Order for a maximum period of eighteen months. Mr Guest had no submissions.
130. The Panel accepted the advice of the Legal Assessor.
131. The Panel decided that an interim order was necessary for the protection of the public. The Panel has identified a risk of repetition and a potential risk to the public which is ongoing. The Panel also considered that an interim order was otherwise in the public interest. A member of the public would be shocked or troubled to learn that there was no restriction in place.
132. The Panel did not consider that the risks in this case could be addressed by an Interim Conditions of Practice Order because of its earlier conclusions that conditions would not be sufficient to protect the public.
133. Although the Registrant is currently suspended under a Suspension Order, it is possible that this could change during any appeal period. The Panel therefore decided that an Interim Suspension Order was appropriate.
134. The Panel decided to make an Interim Suspension Order for a period of 18 months, the maximum duration, to allow sufficient time for the disposal of any appeal.

The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. 

This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

 

Hearing History

History of Hearings for Mr Dave Allen

Date Panel Hearing type Outcomes / Status
07/01/2019 Conduct and Competence Committee Final Hearing Struck off
30/07/2018 Conduct and Competence Committee Final Hearing Adjourned part heard