Mr Purnoor S Bawa

Preliminary Matters

1. There were no preliminary issues to determine, save that the Panel was invited by the Presenting Officer to confirm that in the event that oral evidence unexpectedly strayed into issues of health or private life, this be marked as being in private. The Panel was in agreement with this approach but asked that both representatives, if possible, give advance warning if they considered that a question was to be asked which may elicit information in relation to health or private life.

Background

2. The Registrant is registered with the HCPC as a Physiotherapist. The Registrant qualified as a Physiotherapist in India in 2003 and moved to the UK to complete a Masters in Physiotherapy in 2004. He was employed by various NHS Trusts between August 2005 and February 2018 as a Physiotherapist at a variety of bands between 5 and 8.

3. In 2012 the Registrant started a private physiotherapy practice, Physios R Us Limited, with a colleague. This continued until December 2016. In January 2017 he entered into private physiotherapy practice with his wife as InstaCure UK Ltd, which trades under the name of Riverview Therapies.

4. In autumn 2016, the Registrant provided physiotherapy services to Patient A, who was referred to Physios R Us by her insurance company (Royal Sun Alliance) via an agency (3d Rehabilitation) following a motor vehicle accident. She was referred for ten sessions of physiotherapy but only attended five. The first session was taken up with assessment of her injuries and treatment was administered to her at the subsequent sessions. She was accompanied by a member of her family at the first three sessions but attended the fourth and fifth sessions alone. After the fifth session, Patient A contacted her insurance company to request that she be referred to a different Physiotherapist as she was not comfortable with the treatment provided by the Registrant at her last two appointments. She stated that the Registrant had, with her consent, touched her left breast at the fourth session on 8 October 2016 under her clothes and had, without her consent, massaged both breasts at the fifth session on 18 October 2016, having asked her to remove her bra and top.

5. In addition to allocating Patient A to an alternative Physiotherapist, the insurance company raised concerns with the agency through which Physios R Us had been allocated. The agency contacted Physios R Us about the concerns and the reply it received was incorporated into a letter sent to Patient A by the solicitors acting for the insurance company which was ultimately received by Patient A on 9 November 2016. Within their response Physios R Us refuted that Patient A had been asked to remove her bra or had been touched on the breast by the Registrant.

6. Upon being informed of the response to the concerns raised, Patient A contacted Kent Police and provided them with a statement on 10 November 2016. The Registrant was interviewed under caution by Kent Police on 22 January 2017. On 22 February 2017, the Registrant was advised by Kent Police that no further action would be taken as a consequence of insufficient evidence.

7. The HCPC provided a bundle of documents in support of the allegations in relation to the Registrant and called Patient A to give evidence to the Panel.

8. The Registrant was in attendance, represented and gave evidence to the Panel. The Panel was provided with a written statement and supporting documents by the Registrant. When the Allegation was read out to him, he formally denied all of the particulars.

Assessment of Witnesses

Patient A

9. Patient A provided a written statement dated 29 April 2019 and gave evidence to the Panel. She was cross examined by the Registrant’s representative and answered questions from the Panel. The Panel was grateful to Patient A for attending to assist it in this matter. She provided clear and coherent oral evidence which was consistent with the concerns she had raised with the insurance company shortly after the fifth session, which were responded to by Physios R Us, and with the written evidence recorded in her signed statement to Kent Police dated 10 November 2016 in respect of the alleged assault. The Panel found Patient A’s signed HCPC statement for the purpose of these proceedings less detailed than her police statement. Patient A was forthright under cross examination and it was clear that she had previous experience of medical treatment, including physiotherapy. It found her to be a credible witness with no axe to grind against the Registrant.

The Registrant

10. The Registrant provided a written statement to the Panel dated 11 November 2019, furnished the Panel with a letter from Kent Police dated 13 March 2017 and a typed transcript of his handwritten treatment notes for Patient A. The Registrant was consistent in his denial that there had been no impropriety in his treatment of Patient A. The Panel did not find him to be evasive, and noted his consistent evidence that his normal practice was to record his treatment of a patient prior to seeing the next patient, or occasionally by writing a brief summary on a sticky note and completing the treatment record before the end of the day. However, the Registrant frequently responded in generalities, having to be brought back to the treatment of Patient A by all who asked him questions. The Panel noted that he had been using English since the age of 4. He admitted that he saw a lot of patients and could not specifically remember Patient A, so he could only offer what he had written in his notes by way of explanation as to what happened during his treatment of Patient A on 8 and 18 October 2016.

11. The Panel was grateful to the Registrant for fully engaging with the regulatory proceedings and it considered that he did his best to assist them. The Panel found the Registrant to be broadly credible as a witness but that he struggled to recall details specific to his treatment of Patient A, possibly as a consequence of the corrosive effects of time. His denials of the alleged particulars were based on the notes he made of the assessment and treatment he had provided, which the Panel accepted as contemporaneous, and there being no clinical justification for touching and / or massaging Patient A’s breasts.

Decision on Facts

12. The Panel considered each particular in turn, taking account of the documentary and oral evidence available to it, the submissions of the Presenting Officer and the Registrant’s Representative and the legal advice provided by the Legal Assessor. In determining whether an allegation is “well founded” or “proved”, the Panel is required to decide whether the HCPC, which has the burden of persuasion in relation to the facts alleged, has discharged that burden.

13. The parties were agreed that the burden of proof applicable to these proceedings is that of the balance of probability, that is that it is more likely than not that the alleged conduct occurred. It was also common ground that the more serious an allegation, the stronger the evidence should be to support a finding of fact, and that regard should be had to the inherent probability or improbability of an event when weighing the probabilities and deciding whether, on balance, the event occurred.

Particular 1(a) – Found Proved (in respect of ‘touched’ only)

On 8 October 2016, during an appointment with Patient A, you:

a)  Touched and / or massaged Patient A’s breast(s).

14. Patient A gave clear and unequivocal evidence to the Panel that the Registrant touched and massaged her left breast during her fourth session with him on 8 October 2016, the first treatment session she had attended alone. She said that the Registrant had asked if she minded if he worked on her breast tissue and that she had consented to this as she trusted that the Registrant was touching her in this manner for the appropriate medical purpose of alleviating her pain. She could not recall if he had touched her right breast on that occasion. She described the Registrant standing behind her head and accessing her left breast under her clothing and bra, and pressing and prodding her breast with the flat of his hand.

15. When giving oral evidence to the Panel, the Registrant was unable to specifically recall the treatment session for Patient A on 8 October 2016, and relied entirely on his handwritten notes of treatment when giving his evidence. He confirmed that this had also been his approach in preparing his written statement. He told the Panel that he had not recorded in the treatment notes that he had done a soft tissue massage of the left breast and, therefore, it had not happened. He did not consider that such treatment was clinically indicated in his notes. Patient A had not raised any concerns with him and had booked a further session of treatment with him prior to leaving the appointment on 8 October 2016. The Registrant’s Representative invited the Panel to conclude that the conduct of Patient A, in booking and attending a further appointment with the Registrant alone without requesting a chaperone, was not consistent with having a sexual assault being perpetrated on her by the Registrant on 8 October 2016.

16. The Panel noted that Patient A had signed an ‘Information and Consent Form’ provided by Physios R Us which included provision for a chaperone if required. However, on questioning in live evidence, the Registrant acknowledged that a chaperone could not always be provided if requested and, in those circumstances, the treatment would stop and be rearranged for when a chaperone was available.

17. The Presenting Officer reminded the Panel that sexual assaults are rarely corroborated, particularly when the assault was alleged to have been perpetrated by a trusted registered professional, who had access to Patient A’s body behind closed doors and violated her trust. Further, people react in a multitude of ways to being the victim of a sexual assault, with some reacting immediately while others take time to process what has happened, sometimes over a period of years or even decades. She submitted that Patient A had nothing to gain by making such a complaint about the Registrant – she did not know him and had no axe to grind therefore her credibility was not undermined.

18. The Panel was referred to the case of Arunkalaivanan v GMC [2014] and consequently was aware that it had to undertake a comparative evaluation of each party’s evidence before reaching a decision and giving reasons for the same - a broad view must be taken putting all the circumstances into the balance and coming to a conclusion on the balance of probabilities.

19. The Panel carefully examined all of the evidence available to it in relation to this particular, conscious that it was required to determine facts on the basis of opposing witness testimony and therefore had to consider the credibility of the witnesses when reaching its decision. In assessing witness credibility, panels may have regard to factors such as inconsistencies between documentary and witness evidence, the relevance and value of contemporaneous information, motive, and demeanour of witnesses giving oral testimony etcetera.

20. The Registrant had, at the first appointment with Patient A, taken a history which he recorded on an appropriate template. The Panel did not consider this to be an entirely clear and comprehensive history of Patient A. It failed to record highly relevant matters identified by Patient A in the course of her live evidence. This may have been because Patient A did not declare these at the time, but it may otherwise be because the Registrant did not take a full, detailed medical history.

21. The next chronological evidence provided to the Panel was the response of Physios R Us to Carpenters Solicitors. It is unfortunate that the Panel was not provided with any details as to the date, time and content of Patient A’s conversation with the insurance company or how these were communicated to Physios R Us. However, it is helpful that the response quotes the concerns it was investigating. It is not disputed by the Registrant that:

i. Patient A raised concerns about the Registrant with her insurance company between 18 October 2016 and 4 November 2016;

ii. She requested a change of physiotherapist and attended no further appointments with the Registrant;

iii. Physios R Us were asked to investigate her concerns and provided a response by email by 4 November 2016.

The concern responded to by Physios R Us did not appear to identify at which appointment it was said that the touching of the breast had occurred, but in any event the response was that “our therapist has not treated the client over her breast / bra but was has treating her right side rib angle along the rib angle with her verbal consent…..there is no clinical reason for therapist to touch her private areas”.

22. The next evidence was the witness statement made by Patient A to Kent Police dated 10 November 2016 which stated that the Registrant “put his hand inside the left cup of my bra, with his palm flat to my skin. He did a pressing and prodding movement around the top of my breast and had put his hand in through the top of my bra. I believe he did the same to my right breast, but I cannot remember for definite. [The Registrant] did this for around five minutes. Whilst he was doing this he asked me if my nipple piercing had hurt. This was in a conversational manner and at the time did not strike me as being too strange.”

23. The Registrant attended an interview under caution with Kent Police on 22 January 2017, and the Panel had the benefit of the transcript of the same. When the Registrant was asked what happened with Patient A, his response was “See, eh, I can’t tell you what happened with [Patient A] but my normal procedure is for any patient…”. By the midpoint of the interview, the Registrant, when asked why the treatment stopped after 5 sessions said “she was very happy, she left as, as normal as anything….she never gave me any sign of distress because she came for two different occasions. If she had shown me a single thing I would have discuss the thing straight away for her”. His response to being asked about Patient A’s nipple being pierced was “Oh my God”. Towards the end of the interview the Registrant responded to a question about Patient A with “See as I said see she is not one of them normal patients”. Towards the end of the interview, he was asked about the investigation undertaken in response to the complaint raised via the insurance company and he commented “The last session because the complaint didn’t happen after three, four months that I can’t recall what happened on the last session, when she left her last session she was absolutely normal. She didn’t, as I said, didn’t show any sign of not feeling happy, even when she came for the appointment she was like she would have…..she was as normal”.

24. The next evidence available to the Panel was the statements of Patient A (April 2019) and the Registrant (November 2019) and then their oral testimony. The Registrant conceded in his oral testimony that his written statement – “I did not touch [Patient A’s] breasts (and for completeness her nipples) during this appointment. I would never touch any area of a service user’s breasts as to do so would never be clinically indicated….I did not ask [Patient A] if I could treat her breast tissue” - was based entirely on his notes rather than a specific recollection of the treatment session with Patient A on 8 October 2016. Whilst he did not claim to remember the specifics of one treatment session from more than three years ago, the Panel was concerned that when interviewed by the police, the Registrant was inconsistent as to whether he remembered Patient A and / or the treatment he had provided. In contrast, Patient A raised her concerns with her insurance company, requested an alternative therapist, reported the
matter to the police and provided a statement within a month of the last treatment session. The Panel preferred her account of events to that of the Registrant, and accordingly found the particular proved.

Particular 1(b) – Found Proved

On 8 October 2016, during an appointment with Patient A, you:

b) Asked Patient A if her nipple piercing had hurt or words to that effect.

25. Although there was no evidence before the Panel that Patient A raised the matter of the Registrant commenting on her nipple piercing with her insurance company, she clearly did recount this in her police statement dated 10 November 2016. Although the Registrant appeared to be shocked when he was asked about this by the police in his interview on 22 January 2017, it was questionable whether he recalled the session with Patient A on 8 October 2016.

26. The Panel again preferred the evidence of Patient A, and accordingly, found this particular proved on the balance of probability.

Particular 2(a) – Found Proved

On 18 October 2016, during an appointment with Patient A, you:

a) Instructed Patient A to remove her upper clothing and / or bra.

27. The complaint to which Physios R Us responded in 2016 was essentially the same as this particular. The response, which pre-dated 4 November 2016, stated “from our investigation we understand that Physiotherapist has not asked the client to remove the bra at any stage. [Patient A] was treated with her bra on during all 5 sessions that she has attended in the clinic”.

28. Patient A’s police statement said that on 18 October 2016 her treatment by the Registrant commenced with acupuncture to her shoulder and then the Registrant “removed the acupuncture needles and asked me to take both my top and bra off and lay on my back. He did not step out the room or offer to step out the room as I did this. I sat sideways on the bed, removed my top and bra and then laid down on the bed I then laid my top across my breasts, because I felt very uncomfortable that my breasts were on show”.

29. During the police interview under caution, the Registrant was asked if he recalled if Patient A removed any clothing on 18 October 2016 and responded “See, as I said, if…. I don’t know what she was wearing, right, to expose the area”. The Registrant then went on to describe in general terms how patients changed or removed clothing at his premises. In live evidence the Registrant said that he did not remember if Patient A had taken her top off to facilitate the treatment provided but stated that if it was not documented, she would not have been asked to take off her top. The Panel noted that Interferential Therapy (IFT) on the part of the body identified in the treatment notes could not have been done through clothing. It was towards the end of the police interview that the Registrant, in response to questions about Patient A getting dressed, commented about her not being a normal patient. The Registrant was asked, when giving live evidence, what he meant by this remark but could not remember why he had said it.

30. The Panel again preferred the evidence of Patient A in relation to this particular given the proximity and consistency of the issue being raised with first the insurance company and then the police. Accordingly, it found this particular proved on the balance of probability.

Particular 2(b) – Found Proved

On 18 October 2016, during an appointment with Patient A, you:

b) touched and / or massaged Patient A’s breast(s).

31. The Panel again preferred the evidence of Patient A in relation to this particular. She was able to describe in detail the positioning of herself and the Registrant, that the request to remove her clothing and lie face up came halfway through the session and that the Registrant applied massage oil to his hands before touching and massaging her breasts given the proximity and consistency of the issue being raised with first the insurance company and then the police. Accordingly, it found this particular proved on the balance of probability.

Particular 3 – Found Proved (in respect of 1(a), 2(a) and 2(b))

Your actions set out in paragraphs 1 and / or 2 were sexually motivated.

32. Having found Particulars 1 and 2 proved, the Panel then moved on to consider the issue of sexual motivation, conscious that this did not automatically follow and must be independently assessed.

33. Patient A made no comment on the motivation for the Registrant touching her breasts, other than to refer to it as a sexual assault. She did not describe any change in the Registrant’s appearance or demeanour but merely said that his actions made her feel uncomfortable at the time. Her statement to Kent Police on 10 November 2016 was “the more I thought about what had happened, the more this didn’t seem right…..and started crying, at which point I realised how much this had upset me.” Her oral evidence to the Panel was that she believed that the Registrant had “groomed” her.

34. The Registrant repeatedly stated in his evidence that there was no clinical justification for him to touch Patient A’s breasts on 8 or 18 October 2016 and maintained his denial that this had happened. He therefore did not comment on the motivation for his actions as he said they did not occur.

35. The Panel did not find the Registrant commenting on Patient A’s nipple piercing to be out of the ordinary or sexually motivated. The comment did not appear to have been highlighted as a concern by the insurance company to Physios R Us, and Patient A, in her statement to the police on 10 November 2016, said it “did not strike me as being too strange”. Accordingly, the Panel found there was no sexual motivation behind Particular 1(b). The same could not however be said for Particulars 1(a), 2(a) and 2(b). The Panel noted the Registrant’s acceptance that there was no clinical reason for him to touch or massage breast tissue. It was satisfied that the Registrant took advantage of Patient A being unaccompanied at her fourth session with him on 8 October 2016 to ‘test the waters’ by touching her breast under her clothes. When she did not object, and returned unaccompanied for a subsequent session on 18 October 2016, he provided acupuncture for half of the session and then asked Patient A to remove her top and bra, which she did, again without objection. He then applied massage milk to his hands and massaged her breasts with no clinical purpose or justification. Accordingly, the Panel was satisfied that the actions of the Registrant set out at Particulars 1(a), 2(a) and 2(b) were sexually motivated.

Decision on Grounds

36. Having determined the facts and found all of the particulars proved (with the exception of Particular 3 in respect of Particular 1(b)), the Panel was required to judge whether the facts found proved amounted to a statutory ground as advanced by the HCPC.

37. The Presenting Officer submitted that the facts the Panel found proved amounted to the statutory ground of misconduct. The HCPC did not seek to advance any of the other statutory grounds.

38. The Registrant’s representative noted that the Registrant had denied the Allegation throughout and maintained that denial, but accepted that conduct of this nature would objectively amount to serious misconduct. He reminded the Panel that the decision was however a matter for them to determine.

39. The Panel was aware that determining the issue of whether a statutory ground had been made out was a matter for its own judgement. The grounds are contained within the Health and Social Work Professions Order 2001 at article 22(1) i.e. misconduct, lack of competence, criminal conviction or caution, physical or mental health, or a finding of impairment by a regulatory body. In considering the grounds, the Panel took into account the oral submissions of the parties and accepted and applied the Legal Assessor’s advice, noting in particular that the relevant authority was Roylance v General Medical Council [1999], which advanced the premise that:

“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 misconduct is qualified in two respects. First it is qualified by the word ‘professional’ which links the misconduct to the profession ...Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious”.

40. The Panel noted that a breach of the professional standards alone does not necessarily constitute misconduct. The Registrant had repeatedly denied all of the particulars. However, the Panel found that he had, with sexual motivation, touched and / or massaged Patient A’s breasts without clinical justification on two separate occasions and asked her to remove her upper clothing and / or bra.

41. The Panel concluded that the conduct of the Registrant was serious and amounted to misconduct and therefore the statutory ground of misconduct was made out in respect of Particulars 1(a), 2(a) and 2(b). It did not consider its finding in respect of Particular 1(b) to amount to misconduct.

Decision on Impairment 

42. The Presenting Officer addressed the Panel on the issue of impairment, submitting that the Registrant is currently impaired and referring the Panel to the evidence of the Registrant, the HCPTS Practice Note, relevant case law and the test for impairment. She also addressed the Panel in relation to the HCPC “Standards of conduct, performance and ethics” and confirmed that the Registrant had one previous regulatory finding against him in January 2019 on an unrelated issue, for which he had received a three month Suspension Order. There were also two further allegations of a similar nature to those considered at this hearing being investigated by the HCPC; however these were at an early stage due to ongoing police enquires.

43. The Registrant’s representative did not seek to dissuade the Panel from finding that the Registrant’s fitness to practice is impaired on the basis of the public interest given the serious nature of the matters found proved. He limited his submissions in respect of the private component by inviting the Panel to consider that the Registrant’s continuing denial does not automatically mean there is a risk of repetition – a significant period of time had passed since this incident and that may be relevant to the issue of the risk of repetition. He urged the Panel to carefully consider the amount of weight to attach to the fact that there are other allegations facing the Registrant, given that nothing had been proved against him of a similar nature.

44. The Panel listened carefully to the submissions in respect of current impairment and received and applied advice from the Legal Assessor. It noted that to assist with determining whether fitness to practise is impaired, the HCPTS has published a Practice Note for the guidance of panels and to assist those appearing before them. The test of impairment is expressed in the present tense in relation to the need to protect the public against the acts and omissions of those who are not fit to practise, but this cannot be achieved without taking account of the way a person has acted or failed to act in the past. When assessing the likelihood of recurrence of harm, panels must take account of the degree of harm caused by the Registrant and the Registrant’s culpability for that harm, recognising that the harm could have been greater or less than the harm which was intended or reasonably foreseeable. Panels may also take account of character evidence.

45. The Panel concurred with the Presenting Officer that Standards 1 and 9 of the HCPC “Standards of conduct, performance and ethics”, which applied to all registered professionals, had been breached:

1. Promote and protect the interests of service users and carers

Treat service users and carers with respect

1.1 You must treat service users and carers as individuals, respecting their privacy and dignity.

Maintain appropriate boundaries

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

9. Be honest and trustworthy

Personal and professional behaviour

9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

but also found that Standards 2.1, 2.7 and 3.1 of the HCPC “Standards of proficiency” for physiotherapists had been breached by the Registrant:

2.1 understand the need to act in the best interests of service users at all times

2.7  be able to exercise a professional duty of care

3.1  understand the need to maintain high standards of personal and professional conduct.

46. The Panel found that all of the particulars had been proved (with the exception of sexual motivation in relation to Particular 1(b)), and that with the exception of Particular 1(b), they amounted to the statutory ground of misconduct. It was mindful that a finding of impairment does not automatically follow a finding on that ground. However the public may struggle to understand why, if facts were found proved that amounted to the statutory ground, a finding of impairment did not follow. The Panel was therefore expected to consider the following factors prior to reaching a determination in respect of impairment:

• the forward-looking nature of the impairment test;

• the wider public interest;

• its findings of fact;

• the extent of the Registrant’s insight and remorse;

• the extent of any remediation undertaken by the Registrant; and

• the risk of repetition.

47. The Panel considered the Registrant’s current fitness to practise firstly from the personal perspective and then from the wider public perspective. The Registrant had not admitted any of the particulars and did not appear to have regarded the concerns of Patient A as serious – indeed, his oral evidence to the Panel was that he attended for a pre-arranged interview with Kent Police while his family waited in the car outside. Notwithstanding his denial of the Allegation, the Registrant could have reflected upon issues such as the provisions of chaperones and provided the Panel with a reflective piece.

48. The Panel noted that the serious misconduct of the Registrant was sexually motivated in respect of three of the four sub-particulars and that it is often difficult to demonstrate remediation in such cases. However, there was no evidence that the Registrant had even attempted to remediate his misconduct. Without appropriate insight, the effectiveness of remediation would, in any event, be limited. It concluded that in the light of the Registrant’s lack of insight and remediation, there was a real risk of the misconduct being repeated and therefore it found the Registrant to be impaired on the personal aspect of the test for impairment.

49. Consideration was then given by the Panel to public confidence in the profession and the Regulator if a finding of impairment was not made. It also had regard to the fact that confidence in the Regulator would also be eroded in respect of right-thinking registered professionals if a finding of impairment was not made given the sexually motivated misconduct perpetrated by the Registrant on Patient A, commencing on the first occasion she attended for treatment unaccompanied.

50. The Panel had regard to important public policy issues when considering the public component of impairment, which include the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour. It considered that members of the public and members of the profession would be concerned to learn that a physiotherapist had been found to have engaged in serious and sexually motivated misconduct on two occasions. It determined that public and professional trust and confidence in the profession, professional standards, and the Regulator would be undermined if a finding of impairment was not made. The Panel concluded that the Registrant’s fitness to practise is currently impaired on the basis of the public component as well as the private component.

Decision on Sanction 

51. The Presenting Officer submitted that this case featured a number of aggravating features, including a breach of trust, a pattern of behaviour, lack of insight and emotional harm to Patient A. She referred the Panel to the HCPC “Sanctions Policy” and in particular, the special categories of abuse of professional position and sexual misconduct. The Registrant had used his position as Physiotherapist to convince Patient A that his actions were part of the treatment for her injuries. She reminded the Panel that special category matters attract a more serious sanction.

52. The Registrant’s Representative acknowledged the seriousness of the Panel’s findings and noted the need for the Panel to start at the bottom rung of the sanctions ladder and work up until a proportionate sanction was reached. He conceded that the matters were serious in nature and it was therefore likely that the Panel would be drawn towards the more serious sanctions. He emphasised that a Striking Off Order would be a sanction of last resort which should be applied only if  no other order would suffice so far as promoting the public interest and ensuring public protection. He invited the Panel to take into account that there was no criticism of the Registrant’s clinical ability. Further, the Registrant had practised for years and had dedicated much of his professional life to the profession, which was reflected by his steady progression in banding. He submitted that the Panel could legitimately conclude that it was not proportionate to end the Registrant’s career given that, in the three years since this matter took place, there had been no finding against the Registrant of matters of a similar nature. The Registrant had demonstrated a commitment to his profession and the Panel could impose a lengthy period of suspension to meet the concerns raised in this case.

53. The Panel received legal advice and reminded itself that each case must be determined on its own merits and therefore the HCPC does not have a tariff of sanctions. It has however adopted a policy in respect of sanctions, which has recently been updated, to aid panels to make fair, consistent and transparent decisions. Clear and cogent reasons should be given by any panel departing from this policy. The purpose of fitness to practise proceedings is not to punish but to:

a) protect the public by ensuring that registered health care professionals practise to a minimum universal standard;

b) maintain public confidence in the regulatory process;

c) protect the reputation of the profession concerned;

d) act as a deterrent to other registrants.

54. Article 29 of the Health and Social Work Professions Order 2001 provides that the sanctions available to a panel to protect the public are:

a) mediation;

b) caution;

c) conditions of practice;

d) suspension;

e) striking off.

Alternatively, a panel may decide that no further action is required. When determining the appropriate level of sanction, panels must be proportionate so that the sanction is proportionate to the circumstances, protects the public in the least restrictive manner and takes account of the wider public interest, striking a proper balance between the rights of the Registrant and the public.

55. The only mitigating factors that the Panel identified in this matter were that the Registrant had engaged with the regulatory process and had not been subject to criticism of his clinical competence.

56. In contrast, the Panel identified a number of aggravating features in respect of the Registrant’s conduct:

a) he breached the trust of a patient and abused his professional position;

b) his conduct was repeated and escalated on the second occasion; 

c) the absence of insight, remorse, apology or remediation; 

d) the emotional and physiological harm caused to Patient A;

e) it was sexually motivated and considered by Patient A to amount to sexual assault.

57. Given that the Panel did not believe that the Registrant had demonstrated any insight or remorse for his conduct, it therefore remained concerned as to his future practice. As a result, it was not appropriate for the Panel to take no action. It noted that there was no outstanding dispute that mediation would assist with and therefore mediation was also an inappropriate sanction in this matter. It also did not consider a Caution Order to be appropriate given that the serious behaviour was repeated and it had found a risk of repetition.

58. The Panel therefore moved on to consider whether a Conditions of Practice Order would be appropriate. It noted that conditions will rarely be effective unless the Registrant is committed to resolving the issues to be addressed and can be trusted to make an effort to do so. The HCPC “Sanctions Policy” points out that conditions of practice are unlikely to be suitable where, as in this case, the Registrant is lacking insight and has not accepted his wrongdoing. 

59. The Panel considered whether any conditions could be drafted in this case and concluded that it would not be possible to satisfy the public interest through imposition of conditions. Protection of the public and promotion of the public interest is paramount and of particular importance in relation to abuse of professional position and sexual misconduct. The Registrant’s practice as a Physiotherapist has not been called into question. Further, the Registrant is currently facing allegations which are said to have occurred during the period of his interim conditions of practice. Therefore the Panel cannot be certain that a Conditions of Practice Order would be complied with. Accordingly, a Conditions of Practice Order was not an appropriate sanction to impose in this case.

60. The Panel then went on to consider whether a Suspension Order would be appropriate. However, it concluded that a Suspension Order would not satisfy the public interest, afford the public sufficient protection or send out a clear message that this breach of a fundamental tenet of the profession is unacceptable. The Panel’s concerns about the risk of repetition had not been allayed and the Registrant had not demonstrated any insight into the serious nature of his misconduct.

61. The Panel determined therefore that the only appropriate course of action open to it that would adequately satisfy the public interest, protect the public and maintain confidence in the regulatory process would be an Striking Off Order. He had used his position as a Physiotherapist to perpetrate sexually motivated conduct on a patient on two occasions, having gained her trust over the preceding three treatment sessions. His conduct was calculated and deliberate and he showed no insight into, or remorse for, the impact his behaviour had on Patient A, nor on his profession or the wider community. The Panel was unable to identify any mitigating factors which would enable it impose a lesser sanction upon the Registrant - any sanction other than striking the Registrant from the Register would undermine public and professional confidence in the Regulator. 

ORDER: The Registrar is directed to strike the name of Mr Purnoor S Bawa from the Register on the date this Order comes into effect.

Interim Order

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.

1. Upon the Panel determining the appropriate sanction to be a Striking Off Order, the Presenting Officer applied for an Interim Order of Suspension for the time allowed for appealing against the final disposal order or, if such an appeal is made, whilst that appeal is in progress. An Interim Suspension Order was applied for on the grounds of public protection and in the public interest based on the risk of repetition of misconduct as identified by the Panel in its decision. She reminded the Panel that the substantive Striking Off Order it had imposed would not take effect until the time for lodging an appeal had elapsed, or when any such appeal is determined, whichever is the later. Given that the Panel had specifically found that the Registrant poses a risk to the public and imposed the Striking Off Order in the public interest, it would be entirely appropriate for an Interim Suspension Order to also be imposed.

2. The Registrant’s Representative had no observations to make on the application for an Interim Suspension Order.

3. The Panel carefully considered the submissions of the parties and the advice provided by the Legal Assessor, which it accepted. They also noted the provisions of the guidance note issued by the HCPTS in respect of interim orders and the provisions about the same in the HCPC “Sanctions Policy”. It reminded itself that it had a discretion to impose an Interim Order where:

• there is a serious and ongoing risk to service users or the public from the Registrant’s conduct; or

• the allegation is so serious that public confidence in the profession or the regulatory process would be seriously harmed if the Registrant was allowed to remain in practice on an unrestricted basis.

4. The Panel was mindful that, in imposing a Striking Off Order, it had found that there was an ongoing risk to patients from the actions of the Registrant. The factors which led the Panel to impose the Striking Off Order were still pertinent.

5. Given that the Panel considered the Registrant’s misconduct to be such that striking off was warranted for the protection of the public, it believed that public confidence in the regulatory process would be seriously harmed if the Registrant was allowed to remain in practice on an unrestricted basis pending the substantive Striking Off Order coming into effect. Without an Interim Suspension Order, there would be no bar to the Registrant practising. Therefore, the Panel determined that it was appropriate and proportionate for it to exercise its discretion and impose an Interim Order of Suspension pursuant to Article 31(2) of the Health and Social Work Profession Order 2001 to protect the public and otherwise promote the public interest. Given the time that appeals can take, it was appropriate for the Order to be imposed for a period of 18 months.

History of Hearings for Mr Purnoor S Bawa