Mr Kyle Robinson

Profession: Occupational therapist

Registration Number: OT70708

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 20/11/2019 End: 17:00 22/11/2019

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

Panel: Conduct and Competence Committee
Outcome: Caution

Please note that the decision can take up to 5 working days to be uploaded onto the HCPTS website. Please contact one of our Hearings Team Managers via tsteam@hcpts-uk.org or +44 (0)808 164 3084 if you require any further information.

 

Allegation

Whilst registered with the Health and Care Professions Council and working as Occupational Therapist between 1 March 2017 and 31 August 2017, you:

1. Breached professional boundaries in that you:

a) had engaged in an inappropriate and / or sexual relationship with Person A;
b) sent messages of an inappropriate and / or sexual nature to Person A.

2. Your actions set out in paragraph 1 were sexually motivated.

3. The matters described at particulars 1 – 2 constitute misconduct.

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

Finding

Preliminary matters

Application to Amend

1. At the beginning of the hearing, Ms Sharpe, on behalf of the HCPC, applied to amend the stem of the allegation regarding the timeframe, from the wording ‘1 March 2017 to 31 August 2017’, to the wording ‘around 6 February 2017 to around 31 August 2017’. The proposed time frame would better reflect when Person A started her placement with the Registrant. She submitted that there would be no injustice to the Registrant. Mr Walker, on behalf of the Registrant, did not object to the proposed amendment.

2. Having heard and accepted the advice of the Legal Assessor, the Panel decided to allow the proposed amendment. In the Panel’s view, it did not materially affect the nature of the allegation against the Registrant. Therefore, the Panel was satisfied that there would be no prejudice to the Registrant in allowing it.

Parts of the Hearing to be in Private

3. The Panel, with the agreement of the parties, determined to hold those parts of the hearing which related to sensitive and personal information about the parties (but not specifically related to the particulars) in private, satisfied that this was justified to protect the private lives of the parties.

Background

4. The Registrant is an Occupational Therapist registered with the HCPC. He qualified as an Occupational Therapist in 2014. At the material time he was employed by the Norfolk and Suffolk NHS Foundation Trust (the Trust) as a Band 5 Occupational Therapist in an Adult Community Mental Health Team (the Team).

5. The Registrant’s responsibilities included managing a caseload, which would involve undertaking home visits, attending clinics and Care Programme Approach reviews, completing paperwork relating to risk assessments and ensuring care plans are kept up to date.

6. Person A was a university student, undertaking a two year Masters’ degree in Occupational Therapy. From 6 February 2017 until 24 March 2017, Person A undertook a seven week placement in the Team, and the Registrant was her allocated mentor/educator (Educator). In this role, the Registrant was responsible for providing direct clinical experience to Person A, by being shadowed attending patient appointments, supporting her through her clinical experience, and facilitating access to other visits and other mental health services. He was also responsible for grading her placement, determining whether she should be awarded a ‘pass’ or ‘fail’ for the placement.

7. The Trust’s policy regarding personal relationships between colleagues, entitled ‘Personal Relationship with a Colleague’ required that a personal relationship was declared to the worker’s manager. It placed a duty on the worker to ensure that their personal relationship at work would not influence or impact upon their role or professional responsibilities. The policy set out the requirement that a line manager must not be directly or indirectly responsible for a worker with whom they shared a personal relationship. It also set out that any worker who found themselves in a position where they could influence situations related to performance management must inform their manager immediately so that alternative support could be identified and applied.

8. In February 2018, the Trust received from Person A’s university, a complaint from Person A alleging that an inappropriate sexual relationship had occurred between the Registrant and her, which began during her placement and continued after it had finished. A copy of the complaint was sent to the Registrant.

9. On 13 February 2018, the Registrant signed, dated and returned a ‘Disciplinary – 7 day Allegation(s) Response From’ (the Form), in which it was recorded: ‘I confirm that I did engage in sexual activity with a student whilst acting as her placement mentor and that this also continued past the conclusion of this placement’. Within the Form, the Registrant accepted that his actions breached professional boundaries between mentor and mentee. Alongside returning the Form, the Registrant also submitted copies of the written communication between himself and Person A in the form of text messages, WhatsApp messaging, and Facebook Messenger messages.

10. An internal investigation was commissioned by the Trust, and on 6 March 2018, KP, a Registered Mental Health Nurse and an operational manager within the Trust, was appointed to undertake the internal investigation.

11. On 14 March 2018, the Registrant self-referred to the HCPC, informing the Council that he was under investigation by the Trust.

12. As part of the Trust investigation, KP interviewed both the Registrant and Person A. On 21 March 2018, KP interviewed the Registrant. His union representative was present and the interview was recorded. On 30 July 2018, KP interviewed Person A, and a transcript of that interview was produced for this hearing.

13. On 29 August 2018, a Trust disciplinary meeting was held, following which a first written warning for six months was issued for misconduct under the Trust’s Disciplinary Policy for breaching professional boundaries and the Trust Policy regarding Personal Relationships with a Colleague. On 19 March 2019, the first written warning was reviewed and marked as closed.

Decision on Facts

14. At the outset of the Hearing, the Registrant admitted each of the factual particulars.

15. The HCPC called two witnesses, KP and Person A. KP was, at the time an operational manager within the Trust. He was appointed to undertake the Trust’s disciplinary investigation. Person A was a Master’s university student on a seven week placement at the Trust, which started on 6 February 2017, and the Registrant was her Educator.

16. The HCPC provided a bundle of documents, which included:

• a copy of Person A’s initial complaint, dated 2 February 2018;
• a copy of the 7 Day Form completed by the Registrant, dated 13 February 2018;
• a copy of the Registrant’s self-referral to the HCPC, dated 14 March 2018;
• the terms of reference for the Trust Investigation and KP’s Trust Investigation Report (redacted), dated 15 August 2018;
• notes of the investigation interview of 30 July 2018 with Person A,
• transcripts of mobile telephone text messages between the Registrant and Person A between 10 March 2017 and 31 March 2017;
• transcripts of text messages via Facebook Messenger between 15 April 2017 and 24 April 2017;
• transcripts of text messages via WhatsApp between the Registrant and Person A between 4 April 2017 and 22 August 2017; and
• relevant Trust policies.

17. The Registrant gave evidence, and provided a bundle of documents, which included:

• his witness statement, dated 13 November 2019;
• a chronology of events covering the period 6 February 2017 to 14 March 2018;
• KP’s Trust Investigation Report (unredacted), dated 15 August 2018;
• outcome letter of disciplinary meeting dated 31 August 2018 from CP, the then Community Services Manager, who chaired the disciplinary meeting,;
• a copy of a thank-you card from Person A to the Registrant, received on the last day of placement (24 March 2017);
• thank you cards from two subsequent students for whom the Registrant was the Educator;
• thank you cards and letters from patients and relatives of patients;
• feedback forms from fellow members of staff; and
• a witness statement from NB, the Registrant’s Line Manager while the Trust investigation was ongoing.

18. The Registrant also called two witnesses: CP, then the Community Services Manager who set the terms of reference for the Trust investigation, and subsequently chaired the Trust’s disciplinary meeting; and NB, a Modern Matron at the Trust, who had known the Registrant for several years and was his direct line manager between September 2018 and September 2019.
 
19. The Panel heard and accepted the advice of the Legal Assessor. Although the Registrant admitted each of the particulars relating to factual matters, the Panel recognised that it had to be satisfied that those particulars of fact were capable of proof. The Panel recognised that the burden of proving each individual fact rests on the HCPC and that the HCPC will only be able to prove a particular fact if it satisfies the required standard of proof: namely the civil standard, whereby it is more likely than not that the alleged event occurred.

20. At the outset of its deliberations, the Panel considered the credibility and reliability of each of the witnesses called.

21. In relation to KP, the Panel found him to be a clear, consistent and credible witness. The Panel considered that he was impartial in his evidence, and consequently the Panel found him to be a helpful witness.

22. In relation to Person A, the Panel found her to be a nervous witness, who, at times struggled with recall. The Panel considered that her evidence was consistent regarding the specific factual issues that it had to determine. It considered that she had been fair in accepting her role in respect of the messages and their nature; that she had sent and instigated some of the messages and that they could be considered inappropriate.

23. In relation to the Registrant, the Panel considered his evidence to be objective, consistent, reflective and credible.

24. In relation to CP, the Panel considered that he was a confident witness, who at times lacked objectivity. In relation to the issues for the Panel to consider, it found that his evidence was of limited assistance.

25. In relation to NB, the Panel found her to be a straightforward witness, whose evidence was clear and credible.

Particular 1

26. The Panel finds particular 1(a) proved on the basis of Person A’s evidence, the messages and the Registrant’s admissions.

27. The Panel was satisfied that Person A was a Master’s university student, who was on a university placement at the Trust, between 6 February 2017 and 24 March 2017, and that the Registrant was her Educator. In that role, he was responsible for her training, learning, and grading her placement, to determine whether she would pass or fail.

28. Person A confirmed that she had had the opportunity to look through the transcripts of the mobile telephone text messages, the WhatsApp messages and the Facebook Messenger messages (the messages), and that they represented communication between herself and the Registrant. She accepted that the content of some of the messages was sexual.

29. The Panel had regard to the Registrant’s response in the 7 Day Form, signed and dated by him on 13 February 2018, whereby it records “I confirm that I did engage in sexual activity with a student while acting as her placement mentor and that this also continued past the conclusion of this placement”.

30. The Panel had regard to the content of the messages. The Panel considered that they were clearly indicative of a personal relationship that had developed between the Registrant and Person A, which then became a sexual relationship.

31. In all the circumstances, the Panel was satisfied that the Registrant engaged in a personal relationship with Person A, which became a sexual relationship.

32. The Panel had regard to the Trust’s policies in relation to both Practice Placements and a Personal Relationship with a Colleague. The Practice Placement Policy set out the expectations of a placement and the role of the Educator. The Personal Relationship Policy made it clear that it was essential that a member of staff in a managerial/supervisory role must not be directly or indirectly responsible for a worker with whom they share a relationship.

33. The Panel considered that a personal relationship between an Educator and student was covered by the Trust policies. The policy on personal relationships makes clear that a senior member of staff engaging in a personal relationship with a junior member of staff, is duty bound to declare this immediately to their line manager. This would enable alternative support to be identified and applied.  The Panel accepted the evidence of KP that this policy although it makes reference to workers and managers would cover a relationship between a student on placement and their Educator.  The Panel was, therefore, satisfied that the relationship breached the Trust policies and was inappropriate, due to the potential imbalance of power between the parties. In particular, the Registrant was in the senior position, and was the person with the power to pass or fail Person A in her placement.

34. In all the circumstances, the Panel was satisfied that the Registrant had breached professional boundaries by engaging in an inappropriate and sexual relationship with Person A.

35. The Panel finds particular 1(b) proved, on the basis of the transcripts of the text messages and the Registrant’s admissions.

36. The Panel had regard to the content of the messages. It was satisfied that a number of them, which the Registrant had sent to Person A,  were of a sexual nature, containing, as they did, references to sexual activity and the use of sexualised language.

37. The Panel also considered that many of the messages were conversations regarding personal and private matters, and were not to do with the placement. Many were also sent over evenings and weekends. The Panel was satisfied that such personal texts sent on a personal mobile telephone, or via social medial platforms such as Facebook and WhatsApp, regarding personal and sexual information were inappropriate for the Registrant to send to Person A, when in the role of her Educator.

38. In all the circumstances, the Panel was satisfied that the Registrant had breached professional boundaries by sending messages of an inappropriate and sexual nature to Person A.

Particular 2

39. The Panel finds particular 2 proved on the basis of Person A’s evidence, the transcripts of text messages and the Registrant’s admissions.
40. Given that the Panel was satisfied that there was a sexual relationship between the Registrant and Person A, and that messages of a sexual nature were sent by him, the Panel was satisfied that the actions of the Registrant were inherently sexual, being in pursuit of a sexual relationship, and therefore were sexually motivated.

Decision on Misconduct

41. Having found all of the facts proved, the Panel next considered whether the particulars found proved amounted to misconduct, and if so, whether by reason thereof, the Registrant's fitness to practise is currently impaired.

42. The Panel considered the submissions made by Ms Sharpe on behalf of the HCPC. She submitted that the Registrant had breached the Trust’s own policies as well as HCPC Standards of conduct, performance and ethics. She submitted that Person A was inherently vulnerable by virtue of the imbalance of power between her and the Registrant. She submitted that the Registrant had accepted this and that he was aware that Person A had additional anxieties. She submitted that the Registrant’s actions were serious and amounted to misconduct.

43. The Panel noted that the Registrant had admitted misconduct at the outset of the case, and that Mr Walker, on his behalf, accepted that the Registrant’s actions amounted to misconduct, on the basis that it was a serious breach of professional boundaries.

44. The Panel heard and accepted the advice of the Legal Assessor. The Panel was aware that any findings of misconduct and impairment were matters for the independent judgement of the Panel.

45. The Panel was of the view that the matters found proved fell far below the standards of acceptable behaviour for a registered professional. It considered that the Registrant had significantly breached the professional boundaries of his role as an Educator, being responsible for Person A’s training and learning during the placement, and ultimately whether she would pass or fail.

46. The Panel noted that the Registrant accepted that there was an imbalance of power between himself and Person A, and that he stated that he became aware within a few weeks, that Person A had additional vulnerabilities. Initially he had sought to support Person A professionally, but this soon progressed to personal support and then to a relationship which was sexual and inappropriate because of his Educator role.

47. In the Panel’s view, the Registrant had breached the Trust’s policies, in particular, in not disclosing the relationship to his manager as required, as well as maintaining the relationship when the imbalance of power persisted throughout the placement until the grading of the placement was made. The Panel considered that this was a serious breach of professional standards.

48. The Panel considered the HCPC’s published standards required of Registrants: ‘Your duties as a registrant Standards of conduct, performance and ethics’ (2016 version). In the Panel’s judgement, the Registrant had breached the following standards:

• 2.7 – You must use all forms of communication appropriately and responsibly, including social media and networking websites;
• 9.1 – You must make sure that your conduct justifies the public’s trust and confidence in you and your profession; and
• 9.4 – You must declare issues that might create conflicts of interest and make sure that they do not influence your judgement.

49. In all the circumstances, the Panel concluded that the Registrant’s actions amounted to a serious breach of professional boundaries and therefore amounted to misconduct.

Decision on Impairment

50. Having found misconduct, the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note on Impairment and in particular the two elements of impairment, namely the ‘personal component’ and the ‘public component’, as identified from the case law.

51. The Panel first considered the ‘personal component’, and in particular the factors of insight, remorse, remediation, all of which are relevant to its assessment of the likelihood of repetition.

52. The Panel considered whether the Registrant’s misconduct is capable of remediation and concluded that it is. This could be through for example training, reflection and development of insight.

53. The Panel was of the view that the Registrant had considerably reflected on his actions. He expressed regret for his behaviour and recognised the potential impact of it on public confidence in him (as an Educator), on the Trust and on the profession itself. He understood the risk of a personal relationship with a student and the potential impact this could have on the student’s placement grade. He acknowledged that it may affect the student’s ability to fully engage with professional opportunities. He also recognised that there would be a risk of a student feeling vulnerable and of being exploited. In relation to public confidence, he understood that the public would trust a registered professional not to breach professional standards, and it was damaging for both the profession and the HCPC for a registered Occupational Therapist to act in a way which was not in accordance with the values and standards of the profession. He recognised that the public would question the trustworthiness of professionals in such position of responsibility.

54. The Panel recognised that the Registrant had made early admissions both to the Trust and to the HCPC. He made admissions about the sexual relationship with Person A and that it amounted to a breach of professional standards within 7 days (13 February 2017) of being informed of the complaint. He had provided the messages between him and Person A to the Trust. He had self-referred to the HCPC on 14 March 2018, disclosing the investigation and making admissions about the sexual relationship. He also admitted the factual particulars at the outset of the hearing. The Panel considered that the Registrant, had cooperated with the Trust and the HCPC, and had accepted responsibility for his misconduct.

55. The Panel considered that the Registrant had been candid in his oral evidence to it. He explained the steps that he had put in place when given the role of Educator for two subsequent students. This included  providing information in advance about what the placement would involve; providing contact details for university support from the outset; limiting his own personal disclosures to the student; and keeping supervision, both formal and informal, professional. The subsequent student placements had been managed appropriately, with positive feedback from the students, and no concerns raised by either the Trust or the university.

56. The Panel noted the online training course in Professional Boundaries in Health and Social Care, which the Registrant had completed on 28 October 2019.  The Panel considered that the Registrant had developed a good understanding of the importance of maintaining professional boundaries, and the inherent risks of an imbalance of power. It was satisfied that he had put this into practice with the two student placements he had managed subsequent to Person A, and had consolidated and evidenced that understanding with the formalised recent relevant training.

57. The Panel had regard to the feedback forms from colleagues with whom the Registrant worked as well as the reference and oral evidence of NB, his supervisor for the year following receipt of the complaint by Person A. These attested to the usual high standards of the Registrant’s conduct and practice. There were no issues in respect of his clinical practice or competence. On the contrary, NB described the Registrant as an excellent clinician.

58. In light of all the information before it, in the Panel’s judgement, the Registrant had developed a good level of insight.

59. In all the circumstances, the Panel considered that the Registrant had remedied his misconduct, and consequently, it did not consider that there was likelihood of recurrence. Therefore, the Panel concluded, from all the material before it, in respect of the personal component, the Registrant’s fitness to practise is not currently impaired.

60. The Panel went on to consider the ‘public component’, and in particular the effect the Registrant’s actions would have on public confidence in the profession.

61. The Panel was of the view that the Registrant’s actions had the potential to damage the public’s view of the integrity and scrutiny of a student Occupational Therapist’s education and training. There had been an imbalance of power between the Registrant and Person A and he had been in a position of trust, responsible for the learning and success or failure of Person A’s placement.

62. In the Panel’s view, it is paramount that the public is able to trust the integrity of members of the profession charged with the responsibility of educating and training students and overseeing their placements.

63. In all the circumstances, the Panel concluded that a finding of Impairment was required to declare and uphold proper standards of conduct and behaviour. It was of the view that public confidence in the profession and the Regulator would be undermined if it did not make a finding of Impairment, as the public would be left with the impression that no steps had been taken to draw to the Registrant’s attention, the profound unacceptability of his behaviour.

64. Accordingly, in respect of the ‘public component’ the Panel concluded that the Registrant’s fitness to practise is currently impaired.

Decision on Sanction

65. Having determined that the Registrant’s fitness to practise is currently impaired by reason of his misconduct, the Panel next went on to consider whether it was impaired to a degree which required action to be taken on his registration.

66. The Panel took account of the submissions of Ms Sharpe on behalf of the HCPC and those of Mr Walker on behalf of the Registrant. It also had regard to all the evidence it had heard, and all of the material previously before it.

67. The Panel accepted the advice of the Legal Assessor and it exercised its independent judgement. It had regard to the most recent version of the Sanctions Policy (the Policy) and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive but to protect members of the public and to safeguard the public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.

68. Before considering the individual options open to the Panel, it considered the significant aggravating and mitigating features, which have previously been identified at the misconduct and impairment stage of this case.

69. The Panel considered the following to be the significant aggravating factors:

• the Registrant’s actions had been a breach of trust, in that he had breached his professional position, and there was a power imbalance in the relationship between that of a Practice Educator and a student ;
• Person A had been in a vulnerable position by virtue of that power imbalance; and
• Whilst the Registrant demonstrated an understanding of the impact of breaching professional boundaries in respect of students generally, he expressed limited empathy in this regard specifically for Person A.

70. The Panel considered the following to be the significant mitigating factors:

• the Registrant had made early full and repeated admissions to his employer and the HCPC;
• the Registrant had promptly self-referred to the HCPC;
• the Registrant had cooperated at all stages with the employer’s investigation and the HCPC process and had accepted responsibility for his misconduct;
• the Registrant has developed good insight into his actions;
• the Registrant has remedied his misconduct resulting in a very low risk of repetition;
• there has been no repeat of the misconduct with two subsequent students
• the Registrant is a highly regarded Occupational Therapist, as demonstrated by the evidence of his current employer and the colleague feedback forms; and
• there have been no previous or subsequent regulatory concerns against him.

71. The Panel had regard to its earlier findings that this case related to breaching professional boundaries, that the Registrant’s actions were sexually motivated, and that the Registrant’s actions amounted to a serious breach of those professional boundaries. The Panel acknowledged that the Policy makes reference to ‘sexual misconduct’ as being serious. However, the Panel did not consider that in the circumstances of this case, the Registrant’s misconduct, whilst including actions that were sexually motivated, could properly be categorised as ‘sexual misconduct’.

72. The Panel first considered whether a sanction was necessary. The Panel had regard to its earlier findings of misconduct and impairment, where it recognised that the Registrant’s actions had the potential to damage the public’s view of the integrity and scrutiny of a student Occupational Therapist’s practice education; that there had been an imbalance of power between the Registrant and Person A; and he had been in a position of trust, responsible for the learning and success or failure of Person A’s placement.

73. In light of this, the Panel was of the view that the case was too serious to take no action, and that such a course would send the wrong message to the public and the profession. It concluded that some form of sanction was necessary to maintain public confidence in the profession and to declare and uphold proper standards of conduct and behaviour.

74. The Panel next considered whether to impose a Caution Order. Having regard to the Policy, it was of the view that paragraph 101 was particularly relevant in this case. It states:

A caution order is likely to be an appropriate sanction for cases in which:
• the issue is isolated, limited or relatively minor in nature;
• there is a low risk of repetition;
• the Registrant has shown good insight; and
• the Registrant has undertaken appropriate remediation.’

75. The Panel considered that a number of factors relevant for a Caution Order were present in this case. The Panel’s conclusions at the impairment stage had been that the Registrant had shown good insight, had remedied his misconduct, such that it did not consider that there was likelihood of recurrence.

76. However, the Panel did not consider that the misconduct could properly be described as ‘isolated, limited, or relatively minor in nature’, given that it had found that there had been a serious breach of professional boundaries. Therefore, the Panel went on to consider whether the seriousness of the misconduct itself, ruled out a Caution Order as being the appropriate and proportionate sanction in all the circumstances. The Panel then had regard to its earlier findings that the Registrant was not impaired in respect of the personal component, given that it had concluded that he had good insight; had remedied his misconduct, and the Panel considered that there was a very low risk of repetition. It also noted that he had subsequently acted as Educator for two students from the university without any concerns being raised, and both students having described their respective placements in positive terms.

77. The Panel went on to consider the next sanction in the scale of sanctions, a Conditions of Practice Order. In light of its finding that the Registrant’s fitness to practise is not impaired in respect of the personal component, the Panel was of the view that there were no meaningful practice restrictions which could be imposed on the Registrant’s practice, and so a Conditions of Practice Order was not appropriate in his case.

78. In all the circumstances, and having regard to the principle of proportionality, the Panel determined that the appropriate and proportionate sanction in this case is a Caution Order.

79. The duration of the Caution Order will be for a period of two years. A shorter period would not, in the Panel’s view, be sufficient to mark the seriousness of the misconduct by way of breaching professional boundaries. The Panel was satisfied that a Caution Order for a period of two years would send out the message that the Registrant’s behaviour had been unacceptable. It would serve to maintain confidence in the profession, for both members of the public and fellow professionals.

Order

That the Registrar is directed to annotate the register entry of Mr Kyle Robinson with a caution which is to remain on the register for a period of 2 years from the date this order comes into effect.

Notes

No notes available

Hearing History

History of Hearings for Mr Kyle Robinson

Date Panel Hearing type Outcomes / Status
20/11/2019 Conduct and Competence Committee Final Hearing Caution