Mr Thirunavukkarasu Selvaraj

Preliminary Matters and Legal Argument

First Adjournment Application

1.On 14 May 2018, at the outset of the hearing, Ms Price applied for an adjournment. She submitted that the Registrant would suffer real prejudice if the hearing were to proceed.

2. Ms Price argued that the Registrant had been acquitted following his criminal trial, and the Panel did not have material relating to at least two of the first accounts provided by complainant Service Users in the case, who had been called to give evidence in the Crown Court trial. The Judge’s summing up, which had been copied for the Panel, indicated that the Service Users had been inconsistent. The credibility of the Service Users was to be a very important element of the case. Furthermore, the Panel did not have copies of the transcripts of the criminal proceedings, and it was understood that these could be obtained, given time.

3. Ms Price argued that the Defence were considering instructing an expert to deal with the matters put forward by the HCPC expert. Ms Price also submitted that the expert called by the Crown in the criminal proceedings was favourable to the Registrant and this was something that the Registrant wished to investigate.

4. Ms Price argued that character witnesses had been called at the criminal trial, and that whilst these could be placed before the Panel in the form of written testimonials, the Defence wished to enquire whether they were available to give live evidence.

5. Ms Price argued that she had been instructed for the purpose of making the adjournment application alone, and was not instructed for the purposes of this hearing. If asked to proceed she would need a day in which to take instructions.

6. Ms Price conceded that the Registrant should have acted more promptly in obtaining legal representation. She provided the Panel with personal reasons why the Registrant had not done so.

7. Ms Sheridan argued that the Registrant had been served with the Notice of Hearing and had had since 23 January 2018 to obtain legal representation and prepare.

8. Ms Sheridan argued that the Registrant had been served with a copy of the Crown Court summing up, and that to obtain a full transcript of those proceedings would be extremely expensive and disproportionate.

9. Ms Sheridan argued that she had provided the Registrant’s team with a copy of the expert report that was relied upon in the criminal proceedings.

10. Ms Sheridan submitted that if the Panel was against her, then any prejudice caused by the lack of opportunity to obtain an expert report could be overcome by hearing the evidence of the Service Users and then adjourning to a later date to hear the remainder of the case.

11. The Panel accepted the advice of the Legal Assessor, who took the Panel to the HCPTS Practice Note entitled “Postponement and Adjournment of Proceedings” and to the factors set out in the case of CPS v Picton (2006) EWHC 1108. She reminded the Panel of the importance of enabling the Registrant to obtain a fair hearing, and urged the Panel to consider with care, in particular, the submission made by the Defence regarding the calling of expert evidence.

12. The Panel decided to allow the application in part, by determining that the evidence of the Service Users should be heard but the case should then adjourn to enable the Registrant’s team to obtain further evidence, such as an expert report. The Panel was concerned that if the case was to adjourn in its entirety, the Service Users might disengage, and the Panel concluded that this might be a dereliction of its duty to protect the public. Whilst the Panel had some sympathy with the personal reason the Registrant gave for not being ready to proceed, it was also of the view that the Registrant bore some responsibility for not being fully prepared today. The Panel concluded that, if given adequate time today, Ms Price would be in a position to cross-examine the Service Users without this being a disadvantage to the Registrant. The Panel appreciated the Registrant’s position regarding obtaining an expert report, and therefore determined that the hearing would adjourn prior to the calling of any expert evidence by the HCPC.

13. Following this decision, between 14 and 18 May 2018 the Panel heard the evidence of Service Users A, C, D, F, H, and J, and of LH. The hearing then adjourned until 25 September 2018, with the intention of continuing with the hearing.

Second Adjournment Application

14. The hearing re-commenced on 14 May 2018, but adjourned on 18 May 2018. By then, the HCPC had called all their witnesses save for their expert. The case was listed to re-commence on 25 September 2018 with a 12-day listing.

15. The Defence then obtained their own expert.

16. On 25 September 2018, the proceedings adjourned until 28 September 2018 for the compilation of a joint expert report, as directed by the Panel.

17. On 28 September 2018, in the absence of Ms Price, Ms Hart attended on behalf of the Registrant and applied to adjourn the proceedings.

18. Ms Hart submitted that the allegations were serious and the case was complex. Ms Hart’s primary submission was that the case should be adjourned to a future date to enable Ms Price, who had a detailed knowledge of the case, to attend. Her secondary application, if the Panel was against her primary submission, was that the hearing should be adjourned until Friday 5 October 2018 in the hope that this would enable Ms Price to attend, or another barrister sufficiently experienced in regulatory law to have been briefed and to have met and taken instructions from the Registrant. She explained, however, that four sets of chambers had already been contacted, and no replacement Counsel had been found as yet.

19. Ms Sheridan, on behalf of the HCPC, conceded that the case should not resume until 2 October 2018 to give time for replacement Counsel to be briefed. However, she argued that this should be adequate time in which to find and brief replacement Counsel and that it was in the interests of justice for proceedings to be dealt with expeditiously.

20. The Panel accepted the advice of the Legal Assessor. It took into account the HCPTS Practice Note entitled “Postponement and Adjournment of Proceedings”, and the case of CPS -v- Picton (2006) EWHC 1108.

21. The Panel concluded that, given the serious nature and complexity of these proceedings, it was important for the Registrant to be represented by Counsel with experience in regulatory law. The Panel was also of the view that it would prefer to hear the expert evidence, the Registrant’s evidence, the final submissions, and then be in a position to reach its decision on the facts in one tranche of time, without a break.

22. The Panel concluded that, in the circumstances, the best practical approach was to adjourn until 10am on 2 October 2018 in the expectation that Counsel would be in attendance on that day, briefed and ready to start. In the event that it had not been possible to find properly instructed Counsel by that date, the Panel expected to hear further argument accompanied by details of the efforts that had been made to secure proper representation.

23. By 2 October 2018 it had not proved possible for Counsel to be found. Therefore the hearing was adjourned until the next date when all parties were available, 1 May 2019, when the hearing recommenced.

Application to offer no evidence and amend

24. On 15 May 2018, Ms Sheridan offered no evidence in relation to a number of Sub-Particulars. She also applied to amend Sub-Particular 2(a) by removing the word “repeatedly”, to amend a number of typographical errors in Sub-Particulars 12 and 13, and to amend Sub-Particulars 12 and 13 by reducing the number of Sub-Particulars relied upon in alleging misconduct and/or lack of competence.

25. Ms Price did not oppose the application, and the Panel decided to grant it in its entirety, having satisfied itself that offering no evidence did not amount to undercharging and the amendments did not prejudice the Registrant.

26. At a later stage in the proceedings, Ms Sheridan applied to amend Sub-Particular 8(d) to read, “Did not undertake any and/or any adequate examination of the lumbar spine”. Ms Price did not oppose this application and the Panel decided to grant it, as the amendment better reflected the state of the evidence.

Admissibility submission in relation to Service Users B, E, G, I, and K

27. After the entirety of the live witness evidence for the HCPC had been called, Ms Sheridan submitted that the witness statements of Service Users B (Particular 2), E (Particular 5), G (Particular 7), I (Particular 9), and K (Particular 11) should be admitted into evidence without calling these Service Users to give live evidence. This was opposed by Ms Price.

28. Ms Price submitted that these witness statements provided the decisive evidence for the particulars which related to them. She submitted that it was a fundamental principle that it would be unfair to rely on the witness statements without calling the witnesses to be cross-examined by the Defence. She submitted that the Panel had not been provided with any other evidence against which the reliability of these witnesses could be tested. She submitted that no cogent reasons had been given for the non-attendance of the witnesses. She argued that the consequences of admitting the evidence were potentially very serious for the Registrant’s future career. She took the Panel to the cases of Thorneycroft v NMC [2014] EWHC 1565 and El Karout v NMC [2019] EWHC 28, which she argued were relevant for the purposes of her argument.

29. Ms Sheridan submitted that the witness statements should be admitted into evidence. Ms Sheridan accepted that the disputed witness statements provided the decisive, albeit not the sole, evidence in relation to these Particulars. She also accepted that the allegations made by the witnesses were serious. However, she submitted that the facts of the case could not be compared to the facts of El Karout v NMC [2019] EWHC 28, in that, in each instance, the witnesses in the case being considered by the Panel had given formal police statements or police interviews and had provided other material which rendered the evidence put forward reliable. She took the Panel to evidence in the HCPC statements bundle of the efforts which she said had been made by the HCPC to secure the attendance of each witness. She argued that it was understandable that these witnesses should have chosen not to engage, given the nature of the allegations and the history of the case, which had involved giving evidence in criminal proceedings. She relied on the cases of R (on the application of Bonhoeffer) v General Medical Council [2011] EWHC 1585 Admin 35 and Thorneycroft v NMC [2014] EWHC 1565, arguing that there was no absolute entitlement to cross-examine. She argued that each case should be decided on the specific facts. She submitted that, in the context of the current factual scenario, it was right to admit this evidence.

30. The Panel accepted the advice of the Legal Assessor, who referred to Rule 10 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 as amended (“the Rules”), which state:

“b” “subject to paragraph (c) the rules on the admissibility of evidence that apply in civil proceedings … shall apply”
“c” “the Committee may hear or receive evidence which would not be admissible in such proceedings if it is satisfied that admission of that evidence is necessary in order to protect members of the public”.

31. She also referred to the cases of Ogbonna v Nursing and Midwifery Council [2010] EWCA Civ 1216, R (on the application of Bonhoeffer) v General Medical Council [2011] EWHC 1585 Admin 35, Thorneycroft v NMC [2014] EWHC 1565, and El Karout v NMC [2019] EWHC 28. She advised that the Panel should give consideration to the issues of both relevance and fairness. In considering fairness, the Panel should give consideration to the relevant criteria referred to in case law, including the factors set out in Thorneycroft v NMC, namely:

• Whether the witness statement is the sole or decisive evidence in support of the allegation;
• The nature and extent of the challenge to the content of the statement;
• Whether there is any suggestion that any witness had a reason to fabricate the evidence;
• The seriousness of the Particular, taking into account the impact that adverse findings might have on the Registrant’s career;
• Whether there were good reasons for the non-attendance of the witnesses;
• Whether the HCPC had taken reasonable steps to secure the attendance of the witnesses;
• Whether the Registrant had prior notice that the witness statements were to be read.

32. The Panel first considered whether the disputed witness statements were of potential relevance and concluded that they clearly were. Neither party had suggested that they were not. To the contrary, it was accepted that, if true and accurate, they were highly relevant. Ms Sheridan agreed that they formed the decisive evidence in relation to each Particular.

33. The Panel then went on to consider whether it would be fair to admit the evidence.

34. The Panel accepted that there was a significant disadvantage to the Registrant in not being able to cross-examine the witnesses. It also understood that all cases in which an argument regarding admissibility was raised were fact-specific. It approached the factors set out in the case of Thorneycroft v NMC [2014] EWHC 1565 on that footing.

35. In considering whether the witness statements were the sole or decisive evidence in support of the Particulars, the Panel concluded that it was clear that in each instance the witness statement provided the direct evidence in support of the relevant Particular. The Panel therefore took into account the potential unfairness caused to the Registrant, who was deprived of the opportunity of cross-examination.

36. In considering the nature and extent of the challenge to the content of the statement, it was clear that in relation to each of the witness statements the Registrant totally disputed the key evidence.

37. In considering whether there was any suggestion that any witness had a reason to fabricate the evidence, the Panel concluded that there was no reason to suppose that there was any animosity between the Registrant and any of these witnesses. The Panel accepted and analysed with care the fact that the circumstances in which some of the witnesses had come forward provided scope for concern that they had been influenced by other information. This did not apply to Service Users E and G, who were the first two witnesses to complain to the Trust. Service User B, however, complained after the Trust survey had been sent to her. Service Users I and K complained after they had received the letter from the Trust informing them that the Registrant had been charged with sexual assault. The Panel asked itself whether Service Users B, I, and/or K may have been influenced by this information, unwittingly or otherwise. It concluded that it was highly unlikely that their detailed witness statements could be explained in this way.

38. In considering the seriousness of the charge, taking into account the impact that adverse findings might have on the Registrant’s career, the Panel accepted that the allegations of sexually motivated behaviour were serious and could have grave consequences for the Registrant, if found proved.

39. In considering whether there was a good reason for the non-attendance of the witnesses, the Panel accepted that it had only been provided with a specific reason in relation to Service User G. Service User G was alleged to have explained her decision not to attend as follows: “I cannot put myself through this situation again – it is too painful. I hope the other woman [sic] find the strength to come forward”. The Panel inferred that “this situation” referred to the criminal proceedings in which Service User G had given evidence under Oath. The Panel accepted that it had not been provided with reasons from the other witnesses. However, the Panel concluded that it was appropriate to put the decision made by each witness in context by looking at the history of the case as a whole. Each witness had made an initial complaint to the Trust, and had then made a signed formal police witness statement, before giving evidence and being cross-examined in a public criminal court. This was then summarised in the Judge’s Summing-Up. The Service Users had provided explicit details of their contact with the Registrant and would have had notice of the Registrant’s subsequent acquittal.

40. It was the view of the Panel that, whilst it was regrettable that the witnesses had not come forward, nevertheless it was understandable and did amount to “good reason”. The Panel concluded that Service User G had provided reasons that were understandable and amounted to “good reason” for her non-attendance within the meaning of the term for the purposes of this application.

41. In considering whether the HCPC had taken reasonable steps to secure the attendance of the witnesses, the Panel analysed the evidence with care, and noted that:

• Service User B had initially engaged with the HCPC and was due to attend the current proceedings as a witness. She made an initial HCPC witness statement, followed by a supplementary HCPC witness statement. However, the Panel was informed on Day 1 of the current hearing that she had recently disengaged and would not be attending.
• Service User E had been sent an initial letter, following which there had been attempted telephone calls and voicemail messages, but there was no response.
• Service User G had been sent an initial letter, following which contact was made through a telephone call and a meeting was arranged. However, on the day of the meeting, the witness sent an email to say that she no longer wanted to engage.
• Service User I attended a meeting, at which discussions were held regarding special measures and the location of the hearing. There was then no further engagement despite numerous attempts to contact her by telephone, email, and letter.
• Service User K had been sent an initial letter which was followed up with attempted telephone calls and emails, but there was no response.
The Panel concluded that these amounted to reasonable steps to secure the attendance of the witnesses.

42. In considering whether the Registrant had prior notice that the witness statements were to be read, it was accepted that the Registrant had had notice and was legally represented.

43. In considering the relevant case law, the Panel took into account the points made by both parties in relation to the case of El Karout v NMC [2019] EWHC 28. The Panel accepted the point made by Ms Sheridan that the facts of that case had concerned a wholly unreliable audit summary created on the basis, in part, of multiple hearsay evidence. The Panel contrasted that with the material relied on in this case, which consisted of signed witness statements taken by the police leading to the giving of evidence on Oath, and concluded that this placed the current material into an entirely different category of reliability.

44. The Panel also accepted the point adopted by Ms Price that at the end of the fact-finding stage in this case, it was anticipated that the Panel would be advised that if it found the case proved in relation to one Service User it would be entitled, in certain circumstances, to take that into account when considering other Service Users. This provided another reason why it was important that any decision to admit any of the disputed witness statements should be made on a secure footing, as otherwise it would run the danger that wrongly admitted evidence would improperly and unfairly reinforce a wrong conclusion.

45. Finally, the Panel reminded itself of Rule 10(c), which states that:
“the Committee may hear or receive evidence which would not be admissible in such proceedings if it is satisfied that admission of that evidence is necessary in order to protect members of the public”.
In the circumstances set out in this decision, the Panel was in no doubt that it would be failing in its duty to protect the public if it did not admit the contested evidence, given the seriousness of the allegations related by the Service Users in this case.

46. The Panel balanced the various factors in this case. It understood that in the normal course of events a witness should be made available for cross-examination. However, each case was fact-specific. The Panel concluded that the factors in support of admission of the evidence in this case outweighed the factors suggestive of exclusion, for the reasons set out in this decision. On that basis it concluded that it would be right to admit the evidence of Service Users B, E, G, I, and K.

Half-time submission in relation to Service Users B, E, G, I, and K

47. Ms Price then submitted, in light of the Panel’s decision in relation to Particulars 2, 5, 7, 9, and 11, that there was no case to answer in relation to those Particulars. She submitted that none of the Service Users in those Particulars had been called as witnesses in the case and that the evidence consisted entirely of hearsay evidence. She argued that this evidence was weak and should be given little weight. She submitted that in each instance the evidence, taken at its highest, was insufficient to amount to a case to answer.

48. Ms Sheridan accepted that Particulars 2, 5, 7, 9, and 11 were based on hearsay evidence provided by Service Users who had not been called to give evidence. However, she argued that there was a case to answer in relation to each Particular. She argued that the hearsay evidence presented in this case was reliable and was based on witness statements taken by the police or, in the case of one Service User, the contents of a police interview. She also submitted that the Panel was entitled to take into account the evidence relating to the other Service Users in the case if the Panel found there to be a pattern of behaviour.

49. The Panel accepted the advice of the Legal Assessor, who referred the Panel to Section 4(1) of the Civil Evidence Act 1995, which sets out a list of factors to be considered when assessing the weight to attach to hearsay evidence in the context of civil proceedings. She advised that in deciding whether the weight of the hearsay evidence relating to Particulars 2, 5, 7, 9, and 11 was sufficient to amount to a case to answer, the correct test was set down by the guiding authority of R v Galbraith [1981] 1 WLR 1039, as adapted to a regulatory setting by the case of Sharaf v GMC [2013] EWHC 332. She advised that the test was whether the Panel “could”, on the balance of probability, find the facts proved, not whether they “would” do so. She advised the Panel to consult the Practice Note supplied by the HCPTS entitled “Half Time Submissions”.

50. In response to the submission made by Ms Sheridan regarding a pattern of behaviour, the Legal Assessor advised the Panel to start its deliberations by considering each of the five Particulars in isolation. If the Panel found a case to answer in relation to all five Particulars it would not need to consider the additional submission made by Ms Sheridan. If, however, based on the evidence of the Service User alone, the Panel did not find that there was sufficient evidence in relation to any one of the five Particulars, the Panel was entitled to ask whether there was a case to answer in relation to the other Service Users, and if the Panel concluded that there was, the Panel was entitled to take this into account if the Panel found that the behaviour alleged by them was similar to the behaviour alleged in the contested Particular.

51. The Panel began by considering what weight to attach to the hearsay evidence, and in so doing it considered the factors referred to in Section 4(3) of the Civil Evidence Act 1995.

52. In considering, in accordance with Section 4(3)(a), whether it would have been reasonable and practicable for the HCPC to have produced Service Users B, E, G, I, and K as witnesses, the Panel referred to the reasoning in its earlier decision on the admissibility of this evidence. It concluded that every effort had been made by the HCPC to secure the attendance of the Service Users as witnesses in the case.

53. In considering, in accordance with Section 4(3)(b), whether the original statement was made contemporaneously with the occurrence or existence of the matters stated, the Panel noted that there had been a delay in the taking of the police statements and interview to the following extent: Service User B – six months; Service User E - three months; Service User G - two months; Service User I - ten months; and Service User K - nine months. However, it also noted that there had been earlier contact between the Trust and the Service Users relating to these allegations which the Panel also took into account. In those circumstances, the Panel concluded that any delay in the taking of the police witness statements or interview was not such as to render them unreliable.

54. In considering, in accordance with Section 4(3)(c), whether the evidence involved multiple hearsay, the Panel concluded that it did not.

55. In considering, in accordance with Section 4(3)(d), whether any person involved had any motive to conceal or misrepresent matters, the Panel referred to the reasoning in its earlier decision on the admissibility of this evidence and concluded that there was nothing to suggest such a motive in relation to any of the Service Users.

56. In considering, in accordance with Section 4(3)(e), whether the original statement was an edited account or was made in collaboration with another or for a particular purpose, the Panel took into account that these were formal police statements/interviews and there was no suggestion of editing or that they had been made in collaboration with others.

57. In considering, in accordance with Section 4(3)(f), whether the circumstances in which the evidence was adduced as hearsay were such as to suggest an attempt to prevent proper evaluation of its weight, the Panel concluded that it had not been suggested that this was what had taken place, nor did the Panel find evidence of such an attempt.

58. The Panel then applied the test set out in the case of R v Galbraith [1981] 1 WLR 1039 and asked whether, taking the evidence at its highest, a properly advised panel could, on the balance of probability, find the facts proved.

59. The Panel accepted that the weight to be attached to hearsay evidence was less than the weight to be attached to evidence given on Oath. However, having considered the factors set out in this determination, the Panel concluded that the weight to be attached to the evidence in relation to Particulars 2, 5, 7, 9, and 11 was sufficient to amount to a case to answer. The Panel concluded that a properly advised panel, taking the evidence at its highest, could, on the balance of probability, find the facts proved in relation to each of the disputed Particulars.
60. For the avoidance of doubt, in reaching its decision in relation to any one Service User, the Panel did not find it necessary to take into account the evidence of any other Service User.

Witnesses
61. The HCPC called the following live witnesses:

• LH – Head of Scheduled Care at Berkshire Healthcare NHS Foundation Trust (the Trust);
• Service User A (SUA);
• Service User C (SUC);
• Service User D (SUD);
• Service User F (SUF);
• Service User H (SUH);
• Service User J (SUJ);
• KS – expert witness.

62. The HCPC relied on the witness statements of:

• Service User B (SUB);
• Service User E (SUE);
• Service User G (SUG);
• Service User I (SUI);
• Service User K (SUK);• GD – Locality Leader responsible for musculoskeletal physiotherapy department at Upton Park Hospital;
• RR – Legal Assistant employed by Kingsley Napley solicitors.
63. The Registrant gave evidence and called the following live witness:
• MH – expert witness.

64. The Registrant also relied on typed copies of the Clinical Records on which he had made contemporaneous entries at the time of seeing each Service User.

65. The Registrant produced a bundle of testimonials in support of his good character and proficiency as a physiotherapist.

Background

66. At the time of the Allegation, the Registrant was working at Upton Park Hospital, the Trust, as a Band 6 locum musculoskeletal Physiotherapist.

67. On 18 July 2014, the Trust was contacted by SUD regarding an assessment that she had had with the Registrant on 9 July 2014. LH followed this up on behalf of the Trust by telephoning SUD. A note was made of the call. According to that note, SUD claimed that she had attended for an assessment for pain in her hip and outside leg, and after some discussion about the pain she was experiencing and exercises that would help, the Registrant started to press around the region of her hip and stomach, asked her to lower her trousers, continued to press along the area of her knicker line and towards her thighs, and then put his hand inside her knickers and moved his hand towards her vagina. SUD also reported her complaint to the police on 21 July 2014.

68. On 21 July 2014, LH was informed by GD, who had just returned from annual leave, that other complaints had been received by the Trust from SUG and SUE.

69. SUG had complained on 26 June 2014 regarding an assessment which took place on 23 June 2014 for back pain. According to GD’s note of the conversation, SUG had asked if it was normal for the front of her chest to be examined when she had back pain.

70. SUE had complained on 11 July 2014 regarding an assessment which took place on 24 June 2014. According to GD’s note of the conversation, SUG had complained that the assessment had been “a bit intrusive”.

71. Following receipt of these complaints, LH was asked by the police to send a survey to all the Registrant’s former patients, which included the question: “do you feel that you have been treated with dignity and respect?”. This was sent out on 8 October 2014. SUB and SUC responded.

72. LH telephoned SUC on 3 December 2014. According to the note of the conversation, SUC stated that the Registrant had been “playing with himself” in the course of her appointment with him.

73. LH telephoned SUB on 16 January 2015. According to the note of the conversation, SUB stated that she had attended for an assessment of her knee but had been asked to take her trousers off and had been subjected to an unnecessary examination involving repeated prodding of her pubic bone.

74. Criminal proceedings were instituted and the Registrant’s court appearance led to a publication in a local paper which described the fact that a physiotherapist from Upton Park Hospital had been charged with sexual assault. The Trust decided to inform each of the Registrant’s patients that the Registrant had been charged with sexual assault, and on 19 February 2015 a letter was sent out accordingly. Following this, six further service users contacted the Trust: SUA, SUF, SUK, SUJ, SUH and SUI.

75. LH spoke with SUA on the telephone. According to the note of the conversation, SUA complained that she had attended for pain in her neck and shoulders but the Registrant had put his hands inside her bra and felt around her breast and then felt down her body, and put his hands inside her pants.

76. LH spoke with SUF on the telephone. According to the note of the conversation, SUF complained that she had attended on two occasions because she was suffering from pain between her shoulder blades. On the first occasion the Registrant had asked her to take her lower clothing off and had massaged her front. He then massaged down her body, down her legs, worked his way back up her body, and then lingered between her legs and moved his hand inwards and upwards towards her clitoris. On the second occasion the Registrant again massaged down her legs, and then massaged between her legs and toward her vagina.

77. LH spoke with SUJ on the telephone. According to the note of the conversation, SUJ complained that she was receiving treatment for her knee but the Registrant massaged up into her groin under her skirt.

78. LH spoke with SUK on the telephone. According to the note of the conversation, SUK complained that she had attended for pain in her ankle but the Registrant had asked her to take off her trousers and had touched her in her private area between her legs. He had worked up to the top of her legs, put his hands on her crotch, and pushed down deep into the area on the right side of her private parts. On a second visit, he had asked her to bend her knees and open her legs and put his hands very close to her private areas and “massaged the muscles”.

79. JW, LH’s manager, spoke with SUH on the telephone, but JW did not provide a note of the conversation. SUH was later interviewed by the police and complained of inappropriate touching of the area between her vagina and her leg.

80. JW also spoke with SUI on the telephone, but did not provide a note of the conversation.

81. The Registrant appeared before Reading Crown Court in February 2016 and was tried on charges of sexual assault relating to SUA, SUB, SUC, SUD, SUE, SUF, SUG, SUH, SUI, SUJ, and SUK. He was acquitted on all counts.

82. Following the Registrant’s acquittal, the Registrant was brought before his regulator, the HCPC, on the current allegation.

83. The HCPC called Service Users A, C, D, F, H, and J as witnesses in the case. Service Users A, C, D, F, and J were permitted to give evidence with the use of a screen, and SUH gave evidence by means of videolink. The HCPC also relied on the witness statements of Service Users B, E, G, I, and K. The HCPC also relied on expert evidence provided by KS and on the live evidence provided by LH, together with the witness statements of GD and RR.

84. The Registrant gave evidence. He produced typed copies of the handwritten Clinical Records which had been included in the HCPC’s exhibits bundle, which had been compiled by him contemporaneously when examining each Service User. He was not in a position to produce typed copies in relation to Service User H because the original Clinical Records had not been produced by the HCPC in that instance. He also relied on expert evidence which was provided by an expert witness called on his behalf, MH. He produced a number of testimonials.

Evidence provided by SUA

85. SUA gave evidence before the Panel. She said that she had suffered from whiplash since 2013 and suffered pain in her lower back which caused shooting pain down her legs and caused pain in her groin. She also experienced pain on the top of her shoulders and to the left of her left breast towards her armpit. She said that she received treatment from the Registrant on two occasions, 4 July 2014 and 17 July 2014.

86. She said that on the first occasion she had no concerns, as the Registrant discussed her problem and the exercises she could do, and that he felt her back from the top to bottom and felt her spine, which is where the problem was.

87. She said that on the second occasion she was wearing a bra and a white vest top with another top over it. She said that the Registrant asked her to remove her outer top. He then looked at her back briefly. She could not remember whether he touched her back or not. He asked her to do some exercises whilst questioning her about the pain to her front. She was asked to carry out an exercise to build her lower back up, by building an arch in her back and then relaxing down. She said he moved down to her pelvic area and asked for permission to lower her underwear, which she gave. She was not offered a towel or anything else to cover herself. He then lowered the top of her knickers and pressed around the pelvic area with one hand using the tips of his fingers. He asked her throughout whether this was “OK”. She marked on a Body Map where he had pressed. The pressure applied was just enough to enable her to explain how much it hurt. The touching was just below the knicker line, half way between hip and legs, in the pelvic area, which she clarified as being on the top of the groin. He touched both hips. She said that he explained that there could be knots that may not have been addressed and that may have been causing pain.

88. She said she was then asked to sit on the bed. The Registrant felt around her chest area and asked whether she minded if he put his hand in her bra so that she could tell him where it hurt when he pressed. He was standing behind her at the time. She said that he started by pressing the top of her left breast and then went around the breast, brushing past her nipple, in a clockwise direction, using the fingertips of one hand to press the breast tissue. His hand was inside her bra. She couldn’t remember how hard he was pressing, but it wasn’t very hard; it was hard enough to ascertain where the pain was. The pain was across her chest and the left side of her breast. He then moved his hand over and felt the top of her right breast, on the breast tissue. She said the pain was mostly on the left side of the left breast, and not the right breast. He lowered her bra straps and said he would rub down the side of her top left breast and into her arm pit to release the knots. She said the pain she was experiencing on the side of her left breast was horrendous. He then strapped her back with plaster strapping to support her shoulders and to assist her posture.

89. She said that at no stage was she offered a towel.

90. She said that at the end of the appointment the Registrant told her that he could provide her with private treatment should she wish to take that up. She said she declined the offer because she could not afford it and was receiving NHS treatment.

91. After the appointment, she discussed what the Registrant had done with her work colleagues because she felt it was “odd” and she was uncomfortable that he had touched her breast and nipple in the way he had.

92. SUA said that she believed the treatment she had received had helped the pain to the left of her left breast towards her left armpit.

93. She was asked about the telephone conversation with LH, which recorded her reporting that he brushed past the nipple but did not touch it. In her oral evidence she stated that the Registrant brushed past her nipple with a slight touch.

94. She said that this event had impacted on her life, in that she did not return to the NHS for physiotherapy treatment after the block of sessions came to an end.

95. In cross-examination, it was suggested that the Registrant touched her and asked her to carry out a variety of movements. SUA said she remembered some, but not others. She referred to the passage of time.

96. She agreed that it was not until she received the letter from the Trust that she also questioned the touching of her hip and pelvic area. It was put to her that the Registrant did not put his hand inside her bra but only put it under her strap. She disagreed and said he put his hand inside her bra and was feeling her breast. It was put to her that he did not touch all the way round her breast. She disagreed and said that he did. She agreed that she was told to continue with home exercises.

97. SUA said that she had subsequent appointments with female physiotherapists, but despite having the same pain under her left arm no examination of this nature was undertaken.

Evidence provided by SUB

98. SUB did not give evidence before the Panel. She made a police witness statement, dated 2 February 2015, which was placed before the Panel, and gave evidence before the Crown Court, which was summarised in the Judge’s Summing-Up, a copy of which was also made available for the Panel.

99. In her police witness statement, SUB said that she was a personal trainer who had attended a physiotherapy appointment with the Registrant in July 2014 because she had pain in her right knee.

100. She said that “to begin with” her appointment seemed “very normal”. She explained to the Registrant what injury she had, and he asked her to do certain things, such as standing on one leg and pulling her trousers up from the ankle so that he could see her knee. She said that she then lay down on the bed, whereupon the Registrant “began to touch my pubic bone”. She said he did this “a few times but did not stay up there for long”. She said that this initial stage lasted about ten minutes, whereupon the Registrant said he would need to strap the knee up. At this point she asked if she needed to remove her trousers, to which the Registrant replied that she did, and therefore she asked for a towel as she did not feel comfortable sitting in her underwear. She said that the Registrant told her that he had no towels. She said he left in order to get some tape, but did not bring back a towel, which SUB found strange. She said she therefore removed the pillow from beneath her head and put this between her legs as she felt so uncomfortable. The Registrant then began to strap her right leg up, starting at the ankle and moving up to the knee. She said he “then continued and moved the straps up in the middle of my leg to my pubic bone”. She said that at this point she had to move the pillow and slide her underwear to one side for him to finish the strapping. She said that she felt this was very strange as she had never had strapping in this form before. She said “whilst he was at my pubic bone he began to touch it again at which point I asked if this was absolutely necessary” to which he “just responded does it hurt” and did not answer her question. She said she found this extremely strange and uncomfortable. She said that she then pulled her trousers up and the Registrant handed her a piece of paper with his name on it to book another appointment. She said that there was no conversation about future exercises.

Evidence provided by SUC

101. SUC gave evidence before the Panel. She said that she attended Upton Park on 24 June 2014 because she suffered from a bad back which was causing pain in her knee. This was her second appointment with the Registrant. SUC said that in the first appointment the Registrant asked questions and conducted various tests. The second appointment took place in a cubicle with curtains around it. SUC remembered that, after receiving treatment from the Registrant, she was lying down on her back on a bed that was higher than usual and her head was at the height of the Registrant’s waist. The Registrant was discussing post-treatment exercises. Almost immediately she became aware that his left arm was moving. She said that his hands were in his crotch area, although she did not in fact see them as she did not like to look. His left arm, which was the arm furthest away from her, was moving constantly, non-stop, and was shaking, and his hand was moving up and down very fast. She formed the opinion that he was masturbating. He was standing to her left-hand side, facing the bed, side on to her. He was talking, and was staring straight ahead rather than making eye contact. He then left very abruptly and almost ran out of the cubicle without discussing the next appointment, or saying goodbye.

102. She was asked whether he may have been scratching, to which she replied that “it went on too long for that”. She said that she had to attend a further appointment with him due to the pain that she was suffering and she needed to attend this final appointment to qualify for further investigations to be undertaken.

103. She told the Panel that this event had had an impact on her in that she had lost faith in professionals and had chosen not to seek further treatment from the hospital.

104. In cross-examination, she said that the Registrant had been talking to her about what she should do but she had blanked off what he was saying and therefore could not say whether he had been discussing exercises. She said that she could not see his hands and that she did not know one hundred percent whether he was masturbating. She accepted that at the Crown Court she had agreed that her suspicion may have been misplaced. It was put to her that at the end of the session the Registrant mentioned a future consultation, but she denied that this had occurred and said that she would have remembered if he had suggested this as she “couldn’t get out of there quick enough”. It was put to her that he did not leave in a rush, which she disputed.

105. She accepted that she had learnt, in the course of the telephone conversation with LH, that there had been another complaint, although she was not provided with any details of it.

Evidence provided by SUD

106. SUD gave evidence before the Panel. She said that she attended an appointment with the Registrant on 9 July 2014, which took place in a cubicle with blue curtains around it. She said that the Registrant introduced himself but she had difficulty understanding him. She did not recall him wearing a badge with his name on it. She said that she told the Registrant that she had been diagnosed with fibromyalgia and that she was experiencing pain which was in her lower back and down the outside of her right thigh, but mainly in her right buttock. She told the Panel that her memory was poor.

107. She said there was no explanation at the start of the examination about which parts of the body the Registrant intended to touch. He said that he intended to do one thing at a time and that he would focus on her right leg. She said that the Registrant asked her to stand up and to bend as far as she could backwards, forwards and sideways. He then asked her to lie on the bed on her back. She was not asked to lie on her front at any stage. She said he started to use his hand to touch down the side of her right leg to see where the pain was. He focused on her legs and asked her to raise each leg while he was pressing down on her feet. He asked her whether she had problems with her bladder and her bowels and whether she had pain in her pelvic area.

108. She told the Panel that she was asked to lower her leggings, which she did, although no explanation was given as to why she was required to do so. She was not offered a towel to cover herself.

109. SUD said that the Registrant pressed his hand on her lower tummy area over her knickers and asked if it hurt, to which she replied that it did. He continued to press and to ask whether it hurt, to which she answered “yes”. She marked this on a Body Map as “LS” for “Lower Stomach”. She said he then pressed the tips of his fingers into her groin. She marked the Body Map with “GA” for “Groin Area”. He then put his hand into the left-hand leg of her knickers. She marked where he entered as “X1” on the Body Map. He did not say what he was going to do or why this was necessary. She said that he moved his hand further underneath her knickers and touched her on her vagina. She marked this as “X2” on the Body Map. She did not know how many fingers he used. He pushed and asked whether it hurt there. She replied “no, it hurts here” and pointed to the left-hand side of her stomach. He then moved his hand away and said he would print off her exercise sheet.

110. SUD said that she could not believe this had happened to her and that she felt shocked, dirty, and unclean.

111. SUD said she told her daughter the next day about what had happened, and then telephoned Upton Park Hospital on 18 July 2014, after which she spoke to LH. She informed the police on 21 July 2014.

112. SUD said that her whole life had been broken from this experience and that she had therapy every week.

113. In cross-examination, SUD said that despite her poor memory she had a good recollection of what had happened to her at this appointment. She said, “I know what he did to me, I feel it every day”. She said that the Registrant asked her to raise her legs and flex her feet and said that those were the exercises that he wanted her to do at home. She said he explained why he wanted her to do those exercises. She disputed the suggestion that he had explained why he was going to apply pressure before doing so; she said he just touched her and said, “does it hurt here”. She said that when he pressed her groin area he started on her right-hand side, but moved round to stand by her left-hand side when he asked her to pull her trousers down and started pressing on her left-hand side. She said that he pressed the creased area at the top of the leg, which she described as the groin area, “GA”. She disagreed with the suggestion put to her that he had not put his hand inside her knickers at any stage or touched her vagina. She denied the suggestion that he had offered her a towel. She denied the suggestion that he had touched her buttock. She said that when she spoke with LH she was sure that she did mention that he touched her vagina.

Evidence provided by SUE

114. SUE did not give evidence before the Panel. She gave a police statement, dated 2 October 2014, which was placed before the Panel, and gave evidence before the Crown Court, which was summarised in the Judge’s Summing-Up, a copy of which was also made available for the Panel.

115. In her police statement dated 2 October 2014, SUE said that she attended Upton Park Hospital for a physiotherapy appointment with the Registrant on 24 June 2014. She was seen in a room which contained about eight different assessment areas, each conducted within a curtained area. She said that the Registrant asked her what the problem was and she explained about her back pain. He then went through a checklist of things, such as whether she had any allergies. She said that she explained about her back pain by showing him, with actions, exactly where she was experiencing the pain. She said she placed her right hand on the right-hand side of her lower back and moved it downwards all the way along the outside of her right leg, down to the ankle.

116. She said the Registrant asked her to stand and face the curtain. He then stood behind her and started to press both the left- and right-hand sides of her lower back with his fingers and thumbs and asked her where the pain was. She replied that the pain was on her right-hand side, all the way down the outside of her right leg. He then moved his hand down the outside of her right leg in the area she described, asking if there was pain in that area as he did so. He then asked her to sit down on the bed. She said he then checked the sensitivity of both her legs by moving his hands down them, with the flat parts of the inside of his fingers in a rubbing motion. He asked which leg was the most sensitive and she replied that the left leg was more sensitive than the right. She said he had a white stick with a piece of circular, hard black rubber on the end and that he gently hit her knees and ankles with it, explaining that he was checking her knees. He then asked her to lie down on the bed on her back.

117. The Registrant then asked her to lift both her legs up and down separately. He paid more attention to her right leg. She said he started to touch her stomach and asked her if there was any pain. She said he was touching both sides of her core. She told him there was no pain. He then moved downwards a little, to the middle of the top of each leg, and pressed. He again asked if there was any pain.

118. She said he started to move his hand down her right-hand side towards her groin, pressing with the tips of three fingers as he went along. He asked whether there was any pain, to which she replied that there was not. She said that he did this without informing her that he was going to touch her in that area, which made her feel uncomfortable. She said that she told him that there was no pain in that area and that the pain was on her back side. She said that by that comment she had meant that the pain was on the side of her lower back. She said he continued to press on the groin area itself, by which she meant her pubic area. She said, “I would say at the very closest, he was 1cm from my vagina”. She said that she was now extremely unhappy and was wondering why he was doing this. She said he was pressing from the middle of the top of her leg down to 1cm from her vagina, repeatedly, for about two minutes. She said that whilst he was doing that she told him that the pain was not there. She said that she told him this two or three times. She said that she was wearing underwear and shorts made from a thin material at the time and that all of the touching was on top of her clothing.

119. She said that the Registrant then asked her to sit up on the bed. He asked her if she could do some exercises. She said that because of what had happened, and because she was feeling unhappy, she was not in the mood to participate with exercises. She said he started to lift up his own legs and asked her whether she could do that. He continued to show her exercises for about one to three minutes. He told her that she could do these exercises at home. He then left the assessment room, saying that he was going to fetch something. He returned with a plaster which he put on the right-hand side of her lower back, which took him between one and two minutes to apply. He then said that her session was finished.

120. SUE said that approximately two weeks later, she phoned the physiotherapy centre to arrange another appointment. She said she told the receptionist that she was not comfortable being seen by the Registrant and asked to be seen by a female physiotherapist instead.

Evidence provided by SUF

121. SUF gave oral evidence before the Panel. She said that she was assessed by the Registrant on two occasions and that on each occasion she had her three-year old daughter with her, and the assessment took place within a curtained compartment.

122. She said that on the first occasion she explained to the Registrant that she had injured herself three years earlier and that her muscles tended to seize up down the right-hand side of her back, and concentrated just under the shoulder blade.

123. She said that initially she was standing up when he examined her. The Registrant told her to take off her top and explained that he was going to examine her back. He then looked at her back and asked her to do certain exercises, including arm extensions. He asked her to lie on the bed on her back. She thought this was strange, as in the past she had been asked to lie on her front so that her back could be examined.

124. She said that the Registrant began to press up and down her body, both on the right- and left-hand side, across her chest, and down to her pelvis. She said he started at the top right-hand corner of her shoulder, went down her right arm and right leg, and then back up inside her right leg.

125. She said that she was asked to take off her tracksuit bottoms, which she did. She did not think that the Registrant explained why she needed to do this. She said she was not offered a towel to cover herself.

126. She said the Registrant started to check the inside of her thighs from the bottom upwards, and when he got to the top of her thigh his left little finger was at the very top of her thigh. Initially she described this area as her “vagina”, but she then qualified that as “the very top of my thigh … my thighs are quite big so they are kind of touching together, there’s no space there so there was no room to move”. She said his finger was outside the knicker line. She said that initially she thought it was a mistake. She said she felt uncomfortable but didn’t think anything untoward was going on. She said the contact was made at the side of her vagina. She said the Registrant asked if she had pain there and she replied, “no”.

127. SUF said that she attended a second appointment about a week later. She said he asked her to take off her top, which she did. She said she explained to him that her pain was concentrated in her back. She also had a pain in her stomach but that was because she had been vomiting, which she explained to him. She said that the session began by doing exercises, initially whilst lying on her tummy, but the Registrant then asked her to lie on her back.

128. She said that he then began, as he had done previously, checking down from her chest towards her pelvis.

129. She said that he asked her to remove her leggings. She asked whether that was absolutely necessary. He responded by putting both hands up, palms forwards, as if to say “no, you don’t have to”.

130. She said that as before, he went down her thighs over her leggings and back towards her pelvis. Then, as he got to her pelvis, without any warning he pulled her leggings down to her knees. She said she could not see or feel how he had been able to do this. She was lying flat on the bed. She did not say anything and nor did he.

131. She said he then pressed the inside of her thighs and when he reached the top of the thigh he started to put pressure on top of her vagina over her knickers. She marked this area on a Body Map, Exhibit 4C. She said this pressure was applied with both hands, one in front of the other, and that the tips of his fingers were on top of her vagina, causing a pushing sensation which was not gentle but not hard. It was applied over the top of her knickers.

132. She said he kept asking whether it felt OK. She did not answer at any stage. She said he moved across her underwear until he was on top of her clitoris.

133. She said he then moved into her underwear via the leg-hole on the right-hand side and then did the same thing again – one hand in front of the other, applying the same pressure, but this time inside her underwear. She said he gave her no warning that he was going to do that and did not ask permission. He did not ask her anything except whether it “felt OK”.

134. She said that when she received the letter from the police, she contacted LH. She could not remember whether LH mentioned that other complaints had been made.

135. She explained how this had affected her. She now had to be accompanied when going to the doctor and she didn’t like people touching her. She had not gone to a physiotherapy appointment for some two years.

136. In cross-examination regarding the first visit, SUF said that she had complained of a pain in the front of her chest and abdominal area and also, she thought, the hip. She said that during the visit the Registrant asked her to lie on her tummy and then put pressure on her back in various places, before asking her to lie on her back. She said that when she was lying face forward she was asked to hold her arms out to see whether one arm dropped more than the other one. She did not recall any other examination when she had been on her front. She confirmed that when he worked his way up her leg and touched the top of her thigh, he was on the outside of her knicker line and did not actually touch her vagina. It was suggested to her that the Registrant offered her a towel to cover herself with, but she denied this.

137. In cross-examination in relation to the second visit, it was put to her that she had pulled her leggings down herself, which she denied. She said that she told LH that the Registrant pulled them down. It was put to her that the Registrant did not touch her vagina or her clitoris, which she disputed. It was put to her that she did not tell LH that her vagina had been touched, which she disputed. It was put to her that the Registrant offered her a towel, which she disputed.
 
Evidence provided by SUG

138. SUG did not give evidence before the Panel. She participated in a police interview on 3 September 2014, the transcript of which was placed before the Panel, and gave evidence before the Crown Court, which was summarised in the Judge’s Summing-Up, a copy of which was also made available for the Panel.

139. In her interview she said that she had been suffering from a bad back for about ten years and so attended a physiotherapy appointment on 23 June 2014. She said that the appointment took place in a cubicle with curtains drawn around it. The Registrant introduced himself and asked her to explain the problems she was having with her back, which she did. She was sitting on the bed as she did so.

140. SUG said that the Registrant asked if she would remove her top. She was wearing a blouse with a vest top underneath it and a bra, and she took off her blouse. She said he got up and went round and started checking and prodding her back, at the top, where the problem was. She thought he was standing a bit too close to her because his body was pressed into her. She said he then went round to her front and started to show her exercises to do to eliminate the pressure on her back. She said he then started examining her front area with both of his hands and, “he started examining it and he was getting his hands and he was going like does it hurt there … And he was going down a bit to the cleavage area and I … Like I thought this ain’t right and then he was moving all around examining all around my boobs, all under all around here all this area and he kept on really pushing and kept on saying all the time does that hurt … And it seems to go on for ages … And then in the end … I said yes because I just wanted him to stop, get off that area and then at one point his … arm pressed went on my right nipple area so I just didn’t feel that was right … he wasn’t focusing on my back he was focusing on my chest. So I just wanted to get out of there at that point and he was showing me other techniques and stuff and I wasn’t listening … ”. She said she was then asked to lie on the bed, face down, whilst he tried to manipulate her back. She said that she was then asked to sit up and the Registrant taped her back. She said that before she left the Registrant said that he would see her again; however, she did not want to be seen by him again.

141. She said that she felt, “just like being violated … just being no respect for me … as a person … just felt like a … play thing yeah like a toy … like nothing”.
 
Evidence provided by SUH

142. SUH gave evidence before the Panel via videolink.

143. She said that she had been experiencing pain in her lower back. She attended an assessment with the Registrant, who asked her to show him where the pain was, which she did, and he made notes and asked questions, although she could not now recall what they were.

144. She said that she was wearing loose-fitting tracksuit bottoms which he asked her to remove. He did not explain why. When she took them off he did not offer her anything to cover herself with. She said he asked her to lie on the bed, which she did, on her back. He did not ask her to lie on her front, and at no point did he feel or touch her back. She said that he started with her feet and moved up her leg, and, without warning, with one hand, he went into the area between the top of her legs and her vaginal area. She had marked the area on a Body Map in the course of the criminal proceedings. She said that he used the fingers of his hand, applying a pressure that was quite light, and that she flinched. She said that her husband was sitting on a chair at the head of the bed, holding her hand at the time. The Registrant asked whether there was any pain there. She said “no”. She said he did not explain the treatment he was providing. There was some discussion between them but she could not recall what this was as she had blocked it out.

145. She said that the incident had affected her a great deal, in that she now did not trust people and has not returned for any physiotherapy. She does not look at her body in the same way and her confidence has been knocked.

146. In cross-examination, she said that at the time of the criminal trial she did not remember a lot of what had happened, but that she remembers a lot more now than she did then. She accepted that the Registrant explained that he was going to ask her to do some movements to see where the pain was. She agreed that he asked her to bend her legs up to her chest and move her legs from side to side, and touched her skin, and asked her whether she could feel anything or whether she was numb. It was suggested that she just remembered that he asked her to put her legs in the air one at a time. She replied that he asked her to put her right leg, but not her left leg, in the air. It was suggested that he palpated around her hip joint and thigh, but she could not remember the hip palpation. It was also suggested that he did this on her lower back, but she denied that. She said that she could not remember the Registrant giving an explanation for asking her to take her tracksuit bottoms off.

147. She said that the Registrant moved from her feet to her head, starting at her ankle, but did not get as far as her thighs. She said that at that point she became concerned and blanked out what was happening. She was asked why she was concerned, as he had not even reached her thighs, to which she said that she was wondering why he was touching her leg when it did not hurt; it was her back that was hurting. It was suggested that she blanked everything out after that, to which she said, “after he touched me in the place he had, yes. I felt it and know where he touched me”.

148. She was taken to the description that she provided in her police interview, when she was asked how close to her vagina he had been, to which she had replied, “to me it felt close … I can’t really say in centimetres … I would say he wasn’t that far from it … not right on top of it, just a bit before”. It was put to her in cross-examination that she was not sure how close he was to her vagina but that he had not got as far as her thigh, to which she agreed. She said that he touched the inside of her thigh, but she did not know how far this was from her vagina. He definitely did not touch her vagina. She said that she could not recall him offering her a towel or anything to cover herself. She did recall that he gave her home exercises to do.

149. In re-examination, she said that from what she could now recall, his fingers were relatively close to her knicker line, although she did not recall him touching her knicker line. She marked the area on a Body Map. She was taken to a section of her police interview in which she described the area where she was touched as, “Where the woman’s I suppose vaginal section is … I s’pose between your vagina and a bit of your leg”. In her oral evidence she described the Registrant as having touched her between her vagina and a bit of her leg. She said that was the area that she had intended to show on the Body Map. On further questioning she confirmed that she had marked what she meant by her upper thigh, not her pubic bone.

Evidence provided by SUI

150. SUI did not give evidence before the Panel. She made a police witness statement, dated 1 April 2015, which was placed before the Panel, and gave evidence before the Crown Court, which was summarised in the Judge’s Summing-Up, a copy of which was also made available for the Panel.

151. SUI said that she attended Upton Park Hospital in June or July 2014, as she needed physiotherapy treatment to an injury on her right shoulder blade. She said that the session began with her sitting in a chair opposite the Registrant, who was marking her injury on a diagram on his clipboard. She said that he spoke about connecting muscles and used terminology which she did not understand. She said that she was wearing a loose top which she had thought would be ideal as the physiotherapist could treat her without the need to remove it. However, the Registrant asked her to remove her top, which she did. She said the session began with stretches and the Registrant was checking movement in her shoulder, and he felt her shoulder blade and back, massaging these areas. He said that she had tension in her right shoulder. She said he then prodded that area before massaging it again.

152. She said the Registrant then asked her to lie down on the bed and to relax, explaining that she also had tension in her chest muscles, which he described as being linked and connected to her back. He said that they were weak because of this. She said he started prodding her chest and was discussing muscle tenderness, whilst circling around the front of her chest and then travelling downwards. She said that he was using two fingers whilst he did this. She said that he continued to work on her chest and that, when he got to her right breast, he massaged it inside her bra. She said that he did this in a circular motion for what felt like two to three minutes. She said that she immediately tensed up at that point and looked at the Registrant, and that it became very uncomfortable. She said that she could not make eye contact with him. She said that he was looking down with what she described as a freezing smile on his face. She said that she looked away and then, after a short period of time, she looked at him again and noticed that he still had the same facial expression and was looking over her at the curtain behind her, rather than at the area he was treating. She said that whilst he was touching her breast he was muttering something to himself about how tense her muscles were. She said that he was crouched down with one knee on the floor and one knee up, with his left hand on his leg, and was massaging only with his right hand. She said that she felt very uncomfortable and that it felt as though this went on for a long time. She said she wanted it to stop. She said that throughout the process, the Registrant kept reiterating that the muscles were connected. She said that at no point did she give permission to massage her breasts or go inside her bra, and that the Registrant had not asked for permission to do so. She said that when he went up the side of her breast and massaged it, he was about an inch away from the nipple.

153. SUI said that after a few minutes of the treatment to her breast she said to him, “I think that should be fine now,” at which point the Registrant stopped on that area and told her to turn round. He then did some massages on her back and cracked her back. He then taped her shoulder blade, saying that it was to keep the posture correct.

154. After the appointment he told her to rebook an appointment with him and to do a few exercises. She said that as soon as she left the hospital she texted her cousin and a friend, saying that she had just had physiotherapy and that the physiotherapist, “touched my boob … I feel violated”.

155. SUI said that when she phoned Upton Park Hospital to make another appointment, she asked to see a female physiotherapist. She said that when she returned to the hospital for this appointment she felt very uncomfortable and was, “almost hiding as I did not want to see the male again”.

Evidence provided by SUJ

156. SUJ gave evidence before the Panel. She told the Panel that she was a GP. She said she had a problem with her left knee. She had two appointments with the Registrant.

157. In her first appointment she was asked to lie down and do some knee exercises. She remembers doing squats. She said that the Registrant did not communicate with her or explain the treatment he was giving in any sense; for example, he strapped her knee but did not explain why. She left thinking he had a bad bedside manner and that she wasn’t sure what she was meant to be doing.

158. She said that on the second appointment she wore a short, loose-fitting dress. She was asked to lie down on the couch and the Registrant pulled her dress up, exposing her underwear, without asking her permission. She said that he did not say anything and did not offer a towel or anything to cover herself. He then examined her hip area near her groin. She indicated the area on a Body Map. She said he probed that area with both his fingertips. She could not remember whether it was with both hands or one. He used medium pressure. He didn’t say anything. She found it awkward.

159. In cross-examination, it was put to her that in the first appointment the Registrant told her he was going to treat her, which would involve touching, and asked if that was okay, and checked her range of movement by pushing and pulling on her knee, and that he explained why he was doing those things. She said that she could not remember.

160. It was put to her that the Registrant gave her treatment and advice in the course of the second appointment, such as manipulating her knee and telling her to do squat movements, and said that she had poor muscle strength on her left-hand side, to which she replied that she could not recall whether or not the Registrant had done this. She agreed that he had given her home exercises.

161. She said that it would have been possible for her dress to have fallen back of its own accord but stated this is not what had happened.

162. In re-examination, she said that she genuinely couldn’t remember whether the Registrant explained that he would be palpating her groin.
163. She said that the essence of her complaint was that the Registrant’s communication was poor.

Evidence provided by SUK

164. SUK did not give evidence before the Panel. She made a police witness statement, which was placed before the Panel, and gave evidence before the Crown Court, which was summarised in the Judge’s Summing-Up, a copy of which was also made available for the Panel.

165. SUK said that she attended Upton Park Hospital on 20 June 2014 because she required physiotherapy on her left ankle, which she had badly strained. She said that at that appointment she talked through the problems she had with her ankle, and the Registrant tested the movement in it and checked the bottom of her legs. She said the appointment lasted about half an hour and the Registrant did not have much of an opportunity to do any work on her ankle, as it was the initial appointment. She said that he asked her at the end of the appointment to wear leggings in future rather than the jeans she was wearing on that occasion. He then gave her some exercises to do before she left.

166. On 8 July 2015 SUK returned for a second appointment. She said that this began by the Registrant asking her how her ankle was and whether she had been doing the exercises he had given her. He then asked her to lie down on her back on the couch. He told her that as she had walked in he had noticed that her posture was not right and that this could have something to do with the injury. He said that because of this he was going to do some work at the top of her legs, as the muscles were all connected and this would release tension in her ankle. She was asked to lie back with her legs apart.

167. The Registrant then began to push her muscles on the inside of her leg toward the groin area. She said that this hurt on her left leg and that the Registrant said that he could feel that this was tight. He continued to do this and she felt the pressure being released, before he went further up her leg to her pubic area, saying how the muscle was attached up there. She said that as he was doing this he was pushing inwards on her pubic area and brushed past the front of her vagina. She said that he continued to work on the middle of her legs and kept pushing from the top of her groin area into her pubic area, very close to her private area. She said that as he was doing this he was not talking to her, which she found strange as physiotherapists she had used in the past tended to chat whilst they were treating her. She said that the Registrant had his back to her at times when he was treating the area. She said that he did not at any point concentrate on her ankle whilst carrying out the treatment. She said that he did all the treatment over her leggings. She said that she felt very uncomfortable when she left, and mentioned what had happened to her husband.

Expert Evidence

168. Both parties called expert evidence. The HCPC relied on the evidence provided by KS and the Registrant relied on the evidence provided by MH. A joint expert report was provided. In relation to a number of areas, the experts were in agreement.

169. The expert evidence relevant to each Particular is set out within the body of the Panel’s decision on facts. At no stage did the Panel reach a finding which involved disagreeing with the opinion of either expert.

Evidence provided by the Registrant

170. The Registrant provided the Panel with a witness statement which formed the basis for his evidence in chief.

171. In his witness statement the Registrant explained that he had trained as a physiotherapist at The Tamil Nadu Dr MGR Medical University (‘Dr MGR’) in Chennai, India. He graduated in 2003 with a first class honours Bachelor of Physiotherapy degree. He was then employed between February 2003 and September 2003 as a physiotherapist in the Chennai Orthopaedic Centre, treating predominantly orthopaedic and musculoskeletal conditions.

172. In September 2003 he moved to the UK, where he completed a Master’s degree in Physiotherapy at Queen Margaret University College in Edinburgh, graduating in December 2004. He registered with the HCPC, and in June 2005 started his first job in the UK as an Occupational Health physiotherapist, treating employees in a car manufacturing company. The conditions he treated were predominantly musculoskeletal, orthopaedic, repetitive strain injuries, and peripheral nerve injuries. In April 2007, he was appointed as a senior physiotherapist in a similar role, and in 2011 he became a Centre Manager. From July 2013 to October 2013, he worked on a fixed-term contract in the musculoskeletal outpatients department of Rotherham Hospital as a Band 6 Physiotherapist. In October 2013, he moved on to work for Corby NHS Trust, but resigned in November 2013 because he was getting married in India. He returned to the UK in December 2013 and started working as a Band 6 locum physiotherapist in Clacton-on-Sea Hospital until March 2014, when he ended his contract. In March 2014, he commenced work as a Band 6 locum physiotherapist at Upton Park Hospital, Berkshire NHS Trust, in Slough.

173. The Registrant stated that he had been unaware of any complaints about his work at Slough and had not been the subject to any disciplinary action until he was suspended from work without pay on 18 July 2014 as a result of the current allegations.

174. He said that in March 2014, the hospital went through a re-organisation, as a result of which his caseload was increased. By July 2014, he was the only physiotherapist locum still working in the outpatients department.

175. The Registrant denied the allegations. In trying to comprehend how the complaints could have come about, he said that on reflection his communication skills may have been wanting and he may have missed non-verbal cues. He also accepted that he had not been sensitive enough to the patients’ feelings. He said that he lacked experience working within the NHS and that, even though he had numerous years of experience in musculoskeletal physiotherapy, most of it had been in an industrial, non-hospital setting. The majority of his clients had been male.

176. He explained his assessment methodology. He said that he would first undertake a subjective examination, followed by an objective examination, which involved asking the patient to undertake movements which he would observe. He would then move the patient passively to see whether there was a true restriction or restriction due to pain. He would then ask the patient to move, but would resist their movements in the affected area in order to assess strength and power and to assess what was wrong. If the patient presented with a nerve root symptom, he would check for sensation by assessing the dermatomes and myotomes in order to check the muscle strength. He would then move to special tests to help pinpoint the problem. Following that, he would undertake palpation to see if there was swelling, spasm, increased tone, increase in temperature, or if there were any muscle knots or trigger points. He would usually palpate along the length of the muscle. He said that if a test was normal on assessment he would not necessarily record it.

177. He said that once he had gained a clinical impression, he would then go through his treatment plan and provide patients with exercises to undertake.

178. He said that he believed that most of the time he would explain what he was going to do to the patient before doing it, but accepted that he may not have explained his treatment as well as he should have or established that the patients had understood what he had said.

179. In oral evidence to the Panel, he said that whilst he had learnt from his training in India that patient dignity had to be maintained, he had not received any specific training relating to dignity, communication, or non-verbal cues. He said that none of the Service Users in the case had indicated to him that they had felt unhappy in any way, nor had they indicated that they did not want him to carry on with the treatment he was providing. In cross-examination he agreed that maintaining a patient’s dignity is fundamental, and did not require a “class” in order to understand it.

180. He said that the process of gaining consent from a patient had differed from place to place in the course of his career. At his previous places of work there had been forms available for the patient to read prior to the examination, explaining to them what was going to happen in the session and asking them to sign if they were content. However, at Upton Park Hospital there had been no such system; instead he had been expected to explain to the patient why they were there and what he was going to be doing with them after they had already entered the room, at which point he would ask whether they were happy to continue and, if they were, he would tick the relevant box at the top of the Clinical Record. If there were not happy he would not continue. He said that after he had completed that procedure there was nothing else he was expected to do by way of obtaining informed consent from a patient.

181. In relation to the provision of towels, he said that towels were usually available in the department but that these had not always been made available in the cubicle: “…more than two or three times this happened at least”. He said that if towels were available he would “… get a towel for each of the patients – when it’s required”; for example, “… if you ask a patient to undress certain area”. In cross-examination he agreed that if a patient was asked to undress a towel should be offered, and the patient should not have to wait to be asked. He said that he had not thought to offer a blue paper towel to cover the patient in the absence of towels. He said that he had informed his local manager that there were occasions when there was a shortage of towels. He was asked whether he could have considered using a Service User’s item of clothing if a towel was not available, to which he said “I possibly could have, yes. I didn’t think at the time”. He said that there had been more than two or three occasions when towels had been unavailable. He said, “There were more than nine or ten cubicles – there were that many physios – so they would usually run out … When there was a lack of towels we would inform the technician”.

182. In relation to the issue of home exercises, he said that he gave these “without fail”. He confirmed that he always provided his patients with details of home exercises before they left. Sometimes he provided them with a printed sheet, but sometimes the computer was not available to print off a sheet. He provided details of how he would explain and demonstrate to Service Users the home exercises he wanted them to perform, and how he would also provide them with an exercise sheet.

183. He agreed that muscle length should be tested prior to palpation. He agreed that functional testing does not differentiate between strength, range, and muscle length. He agreed that palpation proximate to intimate areas should be carried out in a careful and controlled manner. He agreed that palpation should be conducted distal to proximal and that this was his practice. He said that it was not his practice to ask a patient to hold their breast to avoid contact with the breast or nipple when palpating in the chest area. He agreed that contact with intimate areas should not be a regular occurrence. He agreed that if accidental contact is made, an apology should be made immediately. He agreed that assessment should start with symptomatic areas first.

184. In the course of Panel questioning, the Registrant said that his UK Masters course had been research-based and had not included any clinical placements. He said he did not receive any clinical supervision while he worked as a locum at Upton Park Hospital.

185. He was asked whether he was aware of having accidentally touched anyone in an intimate area during treatment, to which he replied, “No, as far as I’m aware, I haven’t. If I did, I would have apologised”. He was asked whether he could provide an explanation as to why so many Service Users had made allegations in such a short period of time, to which he replied that the only possible reason he could think of was misinterpretation or a lack of explanation on his part, or, as one Service User had commented, as a result of his lack of good bedside manner. He also mentioned they may have come forward a result of the “strongly worded” letter they had received from the Trust.

186. The Registrant explained that he had only ever asked for a chaperone once, due to language barriers. He said that as a result of these allegations he now understood the need for good communication.

187. In relation to Particular 1, SUA, the Registrant said in his witness statement that he did not touch SUA’s breast or nipple, nor touch underneath her bra; however, he did palpate the top of the chest area and underneath the straps of SUA’s bra in order to palpate the pectoralis muscle. He did not lower SUA’s underwear. His Clinical Records recorded that he palpated the iliopsoas muscle, and in order to do that he may have had to go underneath the top of SUA’s pants. He thought he explained the treatment at the time, although in hindsight he may not have done so sufficiently, to the patient’s expectation or understanding. He did not recall whether he provided SUA with a towel. He said that on some occasions when he was treating patients at the Trust there were no towels available in the cubicle or in the towel storage areas. He said that it was his standard practice to check the neck, and that his Clinical Records suggested that he had done this. He said that if SUA had a back problem he would have checked this. He said that the Trust allocated 20 minutes to assess patients, which was not necessarily long enough to make all the necessary notes. He said that his assessment of the lumbar spine could be seen in his Clinical Records. He accepted that he hadn’t recorded an examination of the thoracic spine, but said that his Clinical Records recorded that he had palpated the cervical and thoracic spine on 4 July 2014, a previous appointment. His assessment of the neck had led him to make a note of “upper crossed syndrome”, a postural condition resulting from imbalanced muscular activity of opposing muscle groups where one group of muscles is overactive and the other underactive.

188. In oral evidence before the Panel, the Registrant said that he did not remember touching underneath SUA’s bra but that accidental touching of a patient’s nipple is a possibility, “depending on the position you are palpating”. He agreed that it would not have been necessary to palpate under SUA’s bra, except possibly the straps.

189. In cross-examination he denied touching SUA’s breast, denied touching her nipple, and denied putting his hand inside her bra other than under the strap. He agreed that the likelihood of a physiotherapist’s hand going inside the cup of a bra and touching a patient’s nipple accidentally was non-existent. He said that nothing he had done could be mistaken for having his hand inside the cup of the bra. He said there had been no need to touch the breast tissue in order to palpate the pectoral muscles. He said that touching the breast tissue would not have been clinically justified. He said that he had never touched a patient’s nipple before. He denied telling SUA that she had knots from whiplash. When the following passage from the police interview record was put to the Registrant, he said that he had not given a clear answer due to the stress of the situation:

Question: “Did you ask her to put your hand into her bra?”
Registrant: “Sorry?”
Question: “Did you ask to put your hand into her bra?”
Registrant: “I mean, I don’t remember, but the thing is like it’s – I – I palpate the muscle there in the…”
Question: “So you didn’t put your hands down her bra?”
Registrant: “I mean, like, as far as I remember”.

190. He agreed that muscle length testing of the pectoral muscles had not been completed prior to palpation, but stated that muscle length testing is not a substitute for palpation.

191. He said that he could not remember whether he had palpated over the pants or underneath. He said that he palpated the iliopsoas and adductor longus, which was the “closest I’d have gone [to the pubic area]”. He said that he palpated the iliopsoas because it is one of the main muscles that gets tight or overactive and is one of the muscles that causes back pain. He said that he palpated the adductor longus because it plays a major role in hip biomechanics and, “as a general rule, you check a joint above and below for any problems”. In cross-examination, he disagreed that he had lowered SUA’s underwear. He accepted that palpation can take place through underwear, unless it is “thick”. He said that palpation may take place over or under the underwear. In Panel questioning he said that he did not usually palpate under the pants of female patients. He could not remember whether there were circumstances in which he had palpated under the pants of female patients in the past.

192. He took the Panel to his Clinical Record for SUA, which stated “Rx: explained to patient about the problem and Rx plan”. In the course of cross-examination regarding the issue of consent, the Registrant agreed that a patient cannot give informed consent if the explanation given is erroneous.

193. He denied being sexually aroused or acting with sexual motivation. He denied offering to treat SUA privately at home. In Panel questioning he said that he mentioned to SUA that his wife was pregnant. He said he discussed with SUA that he wanted to set up in private practice. He again denied offering SUA treatment at home but claimed he would have said, “If you know anybody who needs physio, let me know”.

194. He said that he did not assess the thoracic spine because he did not consider it to be a priority at the time. He checked the lumbar spine, including neurological testing, special tests, and functional testing. In cross-examination he agreed that his first port of call should have been re-assessment of the cervical spine; he said this was recorded in the Clinical Records. He claimed that he had conducted a proper assessment in order to find the source of the problem.

195. In relation to Particular 2, SUB, the Registrant said in his witness statement that he touched SUB’s upper legs in close proximity to her pubic area, but this had been clinically justified. He accepted that he did not in fact provide SUB with a towel to cover herself, but this was because there had been none available in the storage area. He believed at the time that he had obtained consent for the examination from SUB, but in hindsight he was not sure. He explained again that at the top of the assessment form there was a check box to tick for consent and this had been ticked. He said that he palpated the adductor muscles in SUB’s inner thigh for assessment purposes. He did not recall SUB questioning him about the necessity of the tape to the inner thighs. The tape was applied in order to reduce tension in the adductor muscles because the muscles were overactive. Before applying the tape, he explained that the thigh muscles were tense and overactive and that he would be applying the tape to reduce the tension. It was his normal practice to explain this to his patients and he believed he had done so to SUB. His Clinical Records recorded that he provided SUB with a home exercise program. He denied that he had not carried out or recorded a sufficient examination of Service User B’s knee. He referred to his Clinical Records, which recorded that he had examined the patello-femoral joint as well as other structures of the knee. He had checked the hip and knee range of motion and conducted manual muscle testing. He had also undertaken functional testing to test the quadriceps and the hamstrings, which formed the bulk of the musculature of the knee. He had recorded right increased hip flexion and increased hip adduction and internal rotation. He said that his application of tape to Service User B’s leg had been with clinical justification, in that it had been his impression that SUB’s knee problem was due to biomechanical issues resulting from poor muscle activity, and in order to inhibit the increased activity of certain muscle groups and to facilitate the correction of biomechanics it had been necessary to apply taping.

196. In oral evidence to the Panel, the Registrant said, “I probably may have been closer [to SUB’s pubic area] to palpate adductor longus and iliopsoas … it’s not quite the pubic area but … ”. He said he palpated the adductor longus because of its role in the biomechanics of the hip. In cross-examination he denied touching the area marked on the Body Map and agreed that touching this area would not be clinically justified. He said that the closest he got to the pubic area was palpation of the adductor longus muscle. He said that nothing he did could have been mistaken for touching the pubic area.

197. He said that he would have offered a towel if there was one. He said that from what he could read of his notes in the Clinical Record, he did go and look for a towel but there were none available. He said he made sure that there were some more towels arranged and then came back. He said that despite SUB having a pillow between her legs in the absence of a towel, he did not realise that she was uncomfortable.

198. He said, in relation to SUB’s evidence that she asked “Is that absolutely necessary?”, that “that definitely didn’t happen”. He said in Panel questioning that there was no difference in the approach he would have taken for gaining consent if he was going to touch in an intimate area such as the groin. He would have said, “Is it okay for me to palpate on your … inner thigh?”.

199. He pointed to a passage in his Clinical Record: “Rx: explained to patient about the problem and Rx plan”. He said that he always gave exercises to patients.

200. He denied acting for sexual gratification or with sexual motivation.

201. He agreed that when under time pressure it made sense to focus on the symptomatic areas before less local areas. He said that he noted what was wrong but did not make a note of all his testing. He said he examined the gluteus maximus through hip extension testing. He said that he had taped the foot in order to correct foot deviation and taped the hip adductor muscles to inhibit overactivity. He said that strapping had been clinically justified to inhibit muscle activity.

202. In relation to Particular 3, SUC, in his witness statement the Registrant denied touching his own groin in the presence of SUC. He denied not carrying out or recording an adequate assessment or examination of SUC’s knee pain. He said he checked her muscle power but did not record checking her sensation, partly because of the subjective history, which had given him the impression that the SUC was suffering with arthritis of the knee. He said it was his standard practise to check sensation for anything with radiculopathy symptoms. His Clinical Records revealed that he had undertaken a “slump test” and a “straight leg raise”. Those tests would have indicated whether the nerve root was involved, as in radiculopathy. His Clinical Records suggested that he had not reached a clear diagnosis. He had recorded mild stiffness in knee flexion on the right-hand side which he had observed following passive testing. He had recorded the right knee tenderness and spasm in the muscle. He said he usually palpated to check temperature, pain, and tenderness. He believed he had checked the temperature of SUC’s right quadriceps but could see from the Clinical Records that he had not recorded it. He had undertaken passive testing of the whole knee but had not tested the patellofemoral joint.

203. In his oral evidence to the Panel, he stated that he may have been scratching his groin. When it was pointed out to him in cross-examination that a minute was a long time to have been scratching himself, he said he may have been looking at his phone. He maintained his evidence that he had carried out an adequate assessment of SUC’s knee. He added that he had prioritised SUC’s back during this appointment as SUC had reported her knee was much better, which he accepted he had not mentioned in his witness statement. He denied that his actions were sexually motivated.

204. In relation to Particular 4, SUD, in his witness statement the Registrant denied touching SUD's vagina and/or in close proximity of her vagina. He accepted that he may have touched close to SUD's groin area, but said that this was with clinical reasoning/justification. He had palpated the iliopsoas muscle but could not remember whether he had palpated underneath SUD’s underwear or over it in order to do so. He could not recall whether he had provided SUD with a towel to cover herself. He thought that he had sought consent for the assessment and treatment to take place prior to the assessment, although, as with other patients, he now realised that he may not have ensured that she understood his explanation. He said he did conduct and record a full neurological examination. He said that his Clinical Records revealed that the “straight leg raise” test had been undertaken, together with testing of the dermatomes, myotomes, and reflexes. He said that SUD told him that she had a bladder problem for which she was being treated, and that pain below the knee was not by itself a “red flag”. His notes recorded general global tenderness in both lower limbs and in brackets he had written “ITB”, which stood for “iliotibial band”. He said he would have touched SUD’s inner thigh in order to undertake his assessment, but he denied touching her vagina. He said that in his view the groin area is the area just before the vagina where the thigh ends. It was likely therefore that he would have touched this area in his examination.

205. In cross-examination he said that he had treated one other patient with a diagnosis of fibromyalgia prior to SUD. He said that he touched SUD on the “bottom” to assess piriformis. He did not remember whether he asked SUD to lie face-down. He agreed there had been a need to limit assessment due to a 7/10 pain score. He agreed that there was no gait assessment.

206. He denied touching SUD at ‘X1’, as marked by SUD on the Body Map. He accepted that such touching would not have been clinically justified. He said that nothing he did could have been mistaken for touching at ‘X1’.

207. He accepted that he touched the area marked by SUD as ‘GA’ on the Body Map, but not the area marked ‘LS’. He said that he touched at ‘GA’ to palpate “the sorest place”. He said he would have touched the groin area to palpate the hip adductor muscles. He said it was routine for him to check these muscles in patients with back pain, hip pain, or a knee problem. In cross-examination he said that he touched the point ‘GA’ in order to palpate the iliopsoas. He confirmed that palpation of the iliopsoas was not recorded in the Clinical Records. He agreed that assessment of the lumbar spine should have been a priority and explained that the reason this was not completed was due to a lapse in his knowledge.

208. In cross-examination it was suggested that there was an inconsistency between the answer he had given LH when she asked whether he had put his hands in SUD pants, namely “No, no, I would not do that”, and the answer he gave in his police interview when asked why he put his hands in her pants, to which he had answered, “the muscle is in there”. He did not accept that these remarks were inconsistent. He said he had been “telling what I do” and that any differences were due to the fact that he could not remember.

209. He said he could not remember whether he gave SUD any warning before putting his hand into her pants, but that he did ask permission to palpate the muscle. He said that in the course of his communication with LH he told her that he had asked SUD “if it’s okay for me to palpate directly over the skin”, and that he had palpated after permission had been obtained. He denied using the term “underneath” when speaking to LH. He said that he told LH that he may have asked SUD to pull down her pants. In Panel questioning, he said that he was still uncertain whether he had palpated over the pants or directly on the skin.

210. He repeated his general evidence regarding the obtaining of consent. He said his usual practise was to explain to the patient why they were there and what he was going to be doing with them, and to ask them whether they were happy to continue. If they were, he would tick the relevant box on the Clinical Record. He would not ask any further questions regarding consent in the course of the appointment.

211. He repeated his general evidence regarding the use of towels. He said that there were usually towels available in the department but that these had not always been made available in the cubicle.

212. He denied sexual motivation.

213. He said that it had been necessary to conduct a neurological assessment including sensation, strength, and reflexes, and that a neurological assessment had been recorded. He said there was nothing missing “according to my knowledge”. He said that he did not consider the bladder problem to be a “red flag” in this case. He disagreed that bilateral symptoms are necessarily a “red flag” for cord pathology.

214. In relation to Particular 5, SUE, in his witness statement the Registrant denied touching in close proximity to SUE’s vagina. He said that the closest that he would have come to her vagina was the top of the hip area, which he would have touched to check the iliopsoas muscle. In his Clinical Records he had recorded that he had palpated the iliopsoas and that it was tender. He believed that he had obtained fully informed consent.

215. In his oral evidence the Registrant stated that the closest he got to the vagina was just below the hip bone, “just merely inside there, more towards the inner side of the prominent hip bone”. He said that he touched her in that area to check the muscle. In cross-examination he confirmed that nothing he had done could have been mistaken for touching SUE’s pubic area. He agreed he had not recorded anything on the notes about palpation, or about the adductor longus muscle. He said he could not remember the appointment. He did not agree that if something was not recorded it meant that it did not happen. He disagreed that there was no clinical justification for touching SUE’s iliopsoas. He denied the suggestion made by SUE that he had touched her within 1cm of her vagina. He denied that his behaviour had been sexually motivated.

216. In relation to Particular 6, SUF, in his witness statement in relation to the first appointment with SUF on 28 May 2014 the Registrant denied touching SUF’s vagina or in close proximity to her vagina. He said that the closest that he would have come to her vagina was the top of the hip area, which he would have touched to check the iliopsoas muscle. He said that his Clinical Records did not record that he touched SUF’s inner thighs. It was possible that he may have done so to check the adductor muscles. He checked the muscles around the lower abdomen and hip, such as the iliopsoas and adductor muscles, because SUF had reported cramping pain in the abdominal area. He could not recall whether he provided SUF with a towel. He believed that he had explained his assessment and treatment to SUF, but now realised that it was possible that she didn’t fully understand his explanation.

217. In relation to the second appointment with SUF on 18 June 2014, the Registrant said in his witness statement that he had not touched SUF’s clitoris, nor had he touched in close proximity to her vagina. He said that the closest that he would have come to SUF’s vagina was to touch the top of the hip area, which he would have done to check the iliopsoas muscle. He did not recall touching SUF underneath her underwear. He did not pull down her leggings without her consent. He could not recall whether he provided SUF with a towel. He said that so far as he was concerned he explained his actions to SUF, but now realised that it was possible that he had not been fully understood.

218. In oral evidence before the Panel, in the course of cross-examination, the Registrant clarified that he could not remember whether or not he offered a towel. When challenged that he had not covered SUF up to preserve her modesty, he said, “I could have … I mean, as I said, I wasn’t mindful of that situation”. He agreed that if he had not offered SUF a towel in those circumstances he would not have been preserving the patient’s modesty. He denied that he had deliberately left SUF in her underwear.

219. When it was put to him in cross-examination that the joint expert view was that palpation of the groin into the lower leg was neither relevant nor justified in the circumstances, he confirmed that it was his evidence that nothing he did could have been mistaken for touching SUF on or near to the mons pubis. He agreed that if he had done so this would have been without clinical justification. He agreed he had not recorded anything in the Clinical Record regarding palpation of the adductor longus muscle. He said he could not remember the appointment, but did not agree that if he had not recorded something this meant that it had not happened. He disagreed with the suggestion that there had been no clinical justification for touching SUF’s iliopsoas. He denied, in relation to the second appointment, pulling down SUF’s leggings or putting his hands under her underwear. He denied that his behaviour had been sexually motivated.

220. In relation to Particular 7, SUG, the Registrant said in his witness statement that he did not touch SUG’s nipple, breast, or breast area, but could see in his Clinical Records that he palpated the pectoralis minor and major area, which was close to the breast tissue, in order to check if there was any increased muscle tension, spasm, or pain in those muscles. Before commencing he asked SUG for her permission. He said he told her what she was there for and asked whether it was acceptable to assess her. He explained that this was the normal consent process before starting treatment, and that thereafter there was implied consent. He said that if you asked for consent for each and every step the whole session would consist of asking for consent. He denied that his behaviour had been sexually motivated.

221. In his oral evidence in relation to SUG, the Registrant described how he would have touched near the breast area at the top of the chest area, along the armpit, in order to palpate the pectoralis major and minor, because SUG had reported symptoms of postural dysfunction.

222. In relation to Particular 8, SUH, in his witness statement the Registrant denied touching SUH’s vagina. He said that the Clinical Records had not been provided in relation to this Service User, and that without them he could not say whether or not he had had cause to touch SUH in close proximity of her vaginal area. He could not recall whether he provided SUH with a towel. He again said he usually explained what he was about to do before conducting an examination, although he was unsure how well patients understood what he had said. He said that he conducted a thorough examination on all his patients and that it would therefore have been unusual for him not to have done so on this occasion, but as there were no Clinical Records for SUH it was difficult for him to demonstrate what he had or had not done. He said that in relation to all patients he explained and demonstrated any post-treatment exercises that were suggested, but without the relevant notes it was difficult for him to say what was discussed about post-treatment exercises in this instance. At the end of any session with a patient he would, if further treatment was needed, obtain an appointment sheet to arrange the next session. He denied that his behaviour had been sexually motivated.

223. In oral evidence the Registrant maintained his stance that he could recall little of the appointment as the Clinical Records were not available.

224. In relation to Particular 9, SUI, in his witness statement the Registrant denied touching SUI’s breast, but could see from his Clinical Records that he palpated the pectoralis minor in order to check whether there was any increased muscle tension, spasm, or pain in that muscle. Before commencing, he had asked SUI whether it was okay to palpate in this area. He said it would have been his normal practice to palpate the pectoralis major as well. He said that in order to palpate he would not have needed to touch the breast or breast area, but it was possible that he needed to go underneath SUI’s bra straps (but not the bra itself). He obtained the usual consent before starting the session. He could not recall whether he provided SUI with a towel. He denied that his behaviour had been sexually motivated.

225. In relation to Particular 10, SUJ, in his witness statement the Registrant said that his Clinical Records showed that he palpated SUJ’s hip adductor. He said that he would have done this in light of his findings when SUJ was squatting, which showed that her technique was poor, which prompted him to palpate the muscles for any tension. He denied pulling up SUJ’s dress. He said that in the course of doing tests to check the ligaments, such as bending and rotating the knee, her dress might have moved up of its own accord. He did not recall whether he provided SUJ with a towel. As far as he was aware he did explain the assessment, but in hindsight he realised this may not have been enough for the patient to understand. He explained that during an assessment he would be focussing on the next appropriate test and was under constant time pressure, and this may explain why he did not explain fully. He denied that his behaviour had been sexually motivated.

226. In giving evidence to the Panel, the Registrant acknowledged, in cross-examination, that SUJ may be right in alleging that he did not provide a proper explanation of his assessment/ treatment. He could not recall the extent of the explanation he had given to SUJ, but acknowledged that his explanation “was not adequate”. He did not claim that SUJ had been lying about her underwear being exposed, but maintained his position that his actions had not been deliberate and that the exposure of her underwear may have occurred accidentally during the course of the examination. He said that he didn’t consider it necessary for SUJ to be offered a towel and acknowledged that this was probably “not sensible … if I was sensible enough I would have thought about it”.

227. In relation to Particular 11, SUK, in his witness statement the Registrant denied touching SUK in her groin area without clinical justification/reasoning. He could see from his Clinical Records that he palpated the hip adductor muscles. He said that although SUK said that she had sprained her ankle, his diagnosis was “tibialis posterior tendon problem”. In order to go to the root cause of the problem he had looked at structures above the ankle and palpated the hip adductor muscles along with other muscle groups. He said that his assessment was based on looking at the biomechanics of the whole lower limb and not just of the local area. He said that where there were biomechanical problems involved he would explain to the patient why he was undertaking treatment and what he was doing. He believed that he had explained, although he accepted in hindsight that it may not have been fully understood. He denied that his behaviour had been sexually motivated.

228. In oral evidence the Registrant maintained his stance. He stated that he palpated SUK’s groin as part of his examination of the adductor longus muscle, which he considered to be clinically justified as he recognised a biomechanical problem which required a full assessment, and as part of that assessment he needed to palpate the adductor longus muscle, which is located in the groin. He agreed there was no clinical justification for touching SUK’s vagina.

Legal Advice at the Fact Finding Stage

229. The Panel accepted the advice of the Legal Assessor that:

• the HCPC must prove each of the allegations of fact on the balance of probabilities. In the case of Re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563 it was said that, in assessing the balance of probabilities, the more serious the allegation the less likely it is that the event occurred, and hence the stronger should be the evidence before a court concludes that the allegation is established on the balance of probabilities;
• the use of screens by Service Users in the giving of evidence should not prejudice the Panel’s view of the Registrant;
• the evidence of Service Users B, E, G, I, and K was hearsay evidence which had not been tested by means of questioning, and the Panel should therefore consider with care what weight to attach to it. Section 4(1) of the Civil Evidence Act 1995 states that in estimating the weight (if any) to be given to hearsay evidence in civil proceedings, the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence. Section 4(2) states that regard may be had, in particular, to: (a) whether it would have been reasonable and practicable for the witness to have been called to give evidence; (b) whether the original statement was made contemporaneously with the occurrence of the matters stated; (c) [not applicable]; (d) whether any person involved had any motive to conceal or misrepresent matters; (e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose; and
(f) whether the circumstances in which the evidence was adduced as hearsay were such as to suggest an attempt to prevent proper evaluation of its weight. The Panel should now revisit the conclusions it reached in relation to those points in its earlier decision at the half time submissions stage of the proceedings, in light of the Registrant’s evidence, to explore whether his evidence had altered its views in any way, and having done so, decide what weight to attach to this evidence;
• the Panel should take into account the delay in bringing this case, which may have had an effect on the memories of witnesses;
• the Panel was not bound by either expert’s opinion, but if it rejected evidence put forward by either expert it should give reasons for doing so.
• the Panel was entitled to take into account the fact of the Registrant’s acquittal; however, in so doing it should remember that the standard of proof in criminal proceedings is higher than regulatory proceedings;
• A definition of ‘sexual’ is set out in section 78 of the Sexual Offences Act 2003 as follows:
“… activity is sexual if a reasonable person would consider that (a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or (b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual”. The meaning of the term “sexual motivation” had been analysed in the case of Arunkalaivanan v General Medical Council [2014] EWHC 873, which stated that a finding of sexual motivation is based on the inference to be drawn from the primary facts as found by the Panel and the surrounding circumstances. The case of Basson v GMC [2018] EWHC 505 defined “sexual motive” as conduct done either in pursuit of sexual gratification or in pursuit of a future sexual relationship;
• the Panel should consider the case in relation to each of the 11 Service Users separately. However, this was subject to one important exception. In certain circumstances, evidence of touching, and sexually motivated touching, in relation to one Service User was capable of supporting the HCPC’s case on others. The Registrant denied deliberately touching any intimate area of any Service User without adequate clinical reasoning or justification, and denied any sexually motivated behaviour. The HCPC disputed this, and relied on similarities in the Registrant’s behaviour as described by groups of the Service Users, which, they argued, amount to patterns of behaviour. They pointed to inappropriate touching of the pelvic area in relation to Service Users B, D, E, F, H, J, and K, and inappropriate touching of the breast area in relation to Service Users A, G, and I. The HCPC argued that the fact that six women had complained about inappropriate touching of their pelvic area, and three women about the inappropriate touching of their breasts, was suggestive of a pattern of behaviour exhibited by the Registrant. The HCPC suggested that these similar, but otherwise unconnected, complaints made about the Registrant’s behaviour made it more likely that each of the complaints was true. They argued therefore that the evidence of each member of a group of complainants was capable of lending support to others within the group. If, but only if, the Panel concluded that the complaints made by the Service Users were truly independent of one another, it would be open to the Panel to treat the evidence of a complainant as supportive of the other in the sense just described, because the closer the similarities between the complainants the less likely it was that they could be explained away as coincidence. It was for the Panel to decide the degree to which the evidence of one woman assisted the assessment of the evidence of the others. It may lend powerful support. It may not. It was for the Panel to make that judgment;
• in relation to three of the service users - SUD, SUE, and SUG – the available evidence suggested that the complaints were made independently both of one another and of any other Service User. Therefore there was advantage in starting with consideration of one those three Service Users, perhaps SUD, who had been called to give evidence, whereas the others had not;
• the Panel heard that the Registrant was of good character and had no adverse findings against his name. This, firstly, supported his credibility, which should be taken into account when deciding whether to believe his evidence, and, secondly, may mean that he was less likely than otherwise might be the case to have acted in the way alleged.
 
Decision on Facts

Assessment of Service Users

230. The Panel analysed the evidence provided by each Service User who gave evidence to the Panel, namely Service Users A, C, D, F, H, and J. The Panel noticed a reluctance in relation to each of these Service Users to revisit the events. They all appeared traumatised and to take no pleasure in relaying their position to the Panel; on the contrary, it appeared that they had found their task very difficult. The Panel concluded, in relation to each of these Service Users, that they had engaged in these proceedings out of a sense of duty, to protect other women in the future. They had attended to give evidence even though they had already done so in criminal proceedings when the Registrant had been acquitted.

231. The Panel acknowledged that there was some inconsistency between the detail of the evidence given by these Service Users in their witness statements, their evidence at the criminal trial, and their evidence before this Panel. However the Panel concluded that this was not surprising given the time that had elapsed between these events.

232. The Panel found each Service User who had been called to give evidence to be credible.

233. In relation to all 11 Service Users in the case, the Defence had sought to rely on inconsistencies which had resulted from attempts made by these Service Users to describe where they had been touched by means of a Body Map, outlined on a piece of paper. The Panel concluded that this approach was, by its nature, difficult, and that for accuracy the diagram would need to be three dimensional. The Service Users used terms such as “vagina”, “groin”, “pubic bone”, and “clitoris” to describe their intimate area, and said that the Registrant had touched between their legs, or so close to that area as to make them feel that the touching was inappropriate. Two Service Users, SUA and SUI, described the Registrant putting his hand inside their bras and touching their breasts. SUG described the Registrant touching all over her breast, including her nipple. The Panel regarded these descriptions to be of greater use than reference to the 2D Body Maps.

234. In considering the evidence provided by all 11 Service Users in the case, the Panel again approached its task by considering each Service User separately. Having done so, the Panel concluded that each of the Service Users had provided evidence that was credible. In each case the Panel took account of the fact that the Service User had indicated that the Registrant’s touching had been inappropriate and deliberate, had said that she felt unable to say anything to him at the time, had frozen, had put trust in the Registrant as a professional, and had spoken to others immediately after the appointment because of their concern. This applied both to the witnesses who had given evidence and to those who had not.

235. SUA had immediately spoken to her friend and colleagues at work about how the Registrant had touched her “boobs” and she now no longer trusted professionals.

236. SUB had spoken with two other physiotherapists to find out what they thought about the Registrant’s treatment of her, saying that he had touched her in an intimate pubic area on two occasions, until she had asked him whether that was absolutely necessary, at which point he stopped.

237. SUC had said that she felt embarrassed about what had happened and wanted to put the experience behind her. She had lost faith in professionals after she thought that the Registrant had been masturbating in her presence.

238. SUD had a strong and consistent memory of the Registrant’s hand inside her knickers, and said she felt shocked, dirty, unclean, and violated, her whole life had been broken, and she had required therapy to deal with it. She said she told her husband immediately and her daughter the following day about how the appointment had made her feel. She said she didn’t say anything at the time because she couldn’t believe it had happened.

239. SUE said she felt extremely unhappy during the examination, and felt violated, felt that dignity had been taken from her, and felt very sad. She said that immediately after the session she asked herself why it had happened. She told the next physiotherapist she saw about her previous appointment.

240. SUF said she had intended to complain after being sent the survey, but didn’t call the police as she didn’t think anyone would believe her. She said that when she read the letter of 28 February 2014 she began to shake because she felt she could have prevented what had happened to other women. She said that she had frozen as the Registrant had pulled her leggings down to her knees, and had wanted the Registrant to stop, but the right words wouldn’t come. She said she immediately told her daughter what had happened and also spoke to a number of other people, including her GP. She said she now had to be accompanied when visiting her doctor, and had made no further physiotherapy appointments despite further injury.

241. SUG said in her statement that she felt vulnerable and traumatised and returned to the hospital to complain to a manager.

242. SUH said that she could no longer trust a physiotherapist and her self-esteem, self-image, and confidence had been knocked. She said she was not able to trust people touching her body. She said she hadn’t complained because she wasn’t sure if she would be believed. She said that it had been playing on her mind ever since, and that it had made her very nervy, and that she now finds it hard to trust male physiotherapists and always asks to be seen by a female.

243. SUI said she felt violated and taken advantage of. She said she texted a cousin and friend immediately after she left hospital and told them she felt violated. She requested female physiotherapists in the future, and almost hid herself at her next appointment as did not want to see the Registrant again. She said the female physiotherapist she saw later had kept telling her to relax as she couldn’t get the previous appointment out of her head.

244. SUJ, as a highly-qualified health professional herself, said she considered the Registrant’s behaviour to be inappropriate, and this was compounded by the Registrant’s poor communication skills. She called a friend immediately after the appointment and told her partner that she felt let down by the physiotherapy department. She chose not to return for more physiotherapy as she had lost faith in the department and felt awkward.

245. SUK spoke to her husband as soon as she got home. She said she felt the physiotherapy methods had not been right, felt in shock after the treatment, and decided not to see the Registrant again.

246. The Panel understood that the burden of proof rested with the HCPC, and reached each decision of fact on that basis. However, it took account of the fact that no evidence of any ulterior motive on the part of the Service Users had been suggested by the Defence, nor had any evidence been found by the Panel based on the material before it to suggest that any Service User may have deliberately fabricated evidence against the Registrant. Furthermore, none of the Service Users had known one another before they made their complaint and there was no evidence of collusion between them. It had been suggested on behalf of the Registrant that one possible reason why these Service Users had made their allegations was because they had been influenced by the 8 October 2014 Survey and/or the 19 February 2015 letter which had been sent out to Service Users by the Trust. However, the Panel noted that SUD had complained of her own volition, as had SUE and SUG, and that their complaints all pre-dated both the sending of the survey and the letter. By the time SUD made her complaint on 18 July 2014, SUE and SUG had already made verbal complaints on 11 July 2014 and 26 June 2014 respectively. Furthermore, the Survey was a standard document designed to elicit patient satisfaction with an NHS physiotherapy service; there was nothing to suggest that the Trust was seeking to encourage patient complaints against the Registrant. SUB and SUC contacted the Trust as a result of the Survey. The 19 February 2015 letter was more explicit, in that it specified that the Registrant had been charged with sexual assault. It post-dated a newspaper article that had been published following the Registrant’s first appearance in court, as a result of which the Trust considered that it had a duty of care to notify the Registrant’s patients of the allegation. It was Service Users A, F, J, H, I, and K who came forward after receiving that letter. The Panel concluded from this that in relation to five Service Users – Service Users B, C, D, E, and G – there had been no realistic possibility of contamination. Of those, SUC and SUD had given live evidence before the Panel.

Assessment of LH

247. LH was the Service Lead who conducted the Investigation. She had little direct involvement with the Department. The Panel concluded that she had a good recollection of the events she was involved with. She was balanced and fair in relation to the Registrant. She was credible and professional.

Assessment of the Registrant

248. The Panel noted that the Registrant was very composed and confident when he gave evidence.

249. The Panel noted some inconsistencies when the Registrant gave his evidence, but also appreciated that a long time had passed since the events allegedly occurred and made allowances for this.

250. The Panel concluded that the Registrant displayed an arrogant indifference to the impact of his contact with the Service Users. The Panel was of the opinion that, given his experience as a physiotherapist, he displayed very little compassion for them. He was dismissive of their complaints and he surmised that they came forward to complain solely as a result of a “strongly worded letter” sent by the Trust.

251. The Panel assessed the Registrant as being, technically, a highly knowledgeable physiotherapist.

252. The Panel found it surprising, given his experience, that the Registrant demonstrated so little understanding of the need to maintain the dignity of patients by offering a towel or similar item with which to cover themselves during examination.

253. In relation to the important features of the Registrant’s evidence, the Panel did not accept what he said and found him to be an unreliable witness.

Approach taken by the Panel

254. The Panel approached its deliberations by first considering the evidence of Service Users who alleged touching of the groin area, and then moved on to consider the evidence of those who alleged touching of the breast area.

255. In relation to the alleged touching of the groin area, the Panel began by considering Particular 4, Service User D, because SUD had come forward before either the 8 October 2014 Survey or the 19 February 2015 letter had been sent out. The Panel then took its findings in relation to SUD into account when deciding the allegations relating to Service Users B, E, F, H, J, and K.

256. In relation to the alleged touching of the breast area, the Panel first considered SUG, because SUG had come forward before either the 8 October 2014 Survey or the 19 February 2015 letter had been sent out. The Panel then took its findings in relation to SUG into account when deciding the allegations relating to Service Users A and I.

257. Throughout its deliberations the Panel took into account the Registrant’s previous good character, as advised by the Legal Assessor.
Particular 4 – SUD

258. In considering Sub-Particular 4(a), the Panel took account of the Body Map, on which SUD had marked “X1” and “X2”.

259. The Registrant had accepted that any touching in the area marked as “X1” and “X2” on the Body Maps would not be clinically justified.

260. In evidence to the Panel, SUD said, “it’s quite hard to show on an actual picture where he touched me because it’s underneath”. In her police statement dated 4 August 2014, she said ‘he placed his fingers over the top of the lips of my vagina”. While this description does not describe anatomically touching the vagina, the Panel concluded that SUD was describing the touching of her labia. This was therefore ‘in close proximity of the vagina’.

261. Both experts agreed that, even if it had been clinically justified to palpate the adductor muscles, it had not been clinically justified to make contact with SUD’s pubic crest or any other intimate area.

262. The Registrant did not accept that he touched SUD’s vagina or in close proximity to her vagina.

263. The Panel preferred the evidence of SUD to that of the Registrant. SUD had been consistent in her evidence to the police, to the Crown Court, and to the Panel that the Registrant had touched her in close proximity to her vagina. The Panel took into account the Registrant’s previous good character, but concluded that he was misleading the Panel when he said that he had not touched SUD in this way.

264. The Panel concluded that the Registrant touched SUD in close proximity to her vagina without adequate clinical reasoning/justification.

265. Accordingly, the Panel found this Sub-Particular proved.

266. In considering Sub-Particular 4(b), the Panel took account of SUD’s evidence that the Registrant had touched her groin. She had marked the relevant Body Map with the initials “GA” for “Groin Area”.

267. The Registrant’s evidence was that he had been touching this area because he had been palpating the iliopsoas and hip adductor muscles. He accepted that he had been palpating in the groin area.

268. The Registrant accepted that palpation of the lumbar spine should have been prioritised. He said that he either had a lapse of knowledge or didn’t think of it at the time. He agreed that he had not palpated the lumbar spine.

269. The Panel concluded that there was evidence, provided by the Clinical Records made by the Registrant at the time of the examination on 9 July 2014, that the Registrant did assess active range of movement in the lumbar spine.

270. However, both experts agreed that palpation of the lumbar spine should have been prioritised over palpation of the hip adductor muscles at this appointment, and that palpation of the lumbar spine had not been recorded. They agreed that palpation of the hip adductor muscles would involve touching the groin area.

271. The Panel concluded, as was accepted by all, that the Registrant did touch SUD in the groin area. The Registrant accepted that he did not palpate the lumbar spine. He asserted that he had palpated the hip adductor muscles. The Panel accepted that the marking “GA” was the area of the hip adductor palpation. However, the Panel accepted the experts’ opinion that palpation of the lumbar spine should have been prioritised over the hip adductor muscles at this appointment. The fact that this was not done led the Panel to conclude that the Registrant touched SUD’s groin area without adequate clinical reasoning/justification.

272. On that basis, the Panel found this Sub-Particular proved.

273. In considering Sub-Particular 4(c), the Panel concluded that SUD had been consistent in her evidence to the police, to the Crown Court, and to the Panel that the Registrant put his fingers underneath her underwear, through the leg of her knickers. She said he moved his hand further underneath her knickers and touched her on her vagina.

274. Both experts, and the Registrant, agreed that there is never any justification for going underneath a patient’s underwear through the leg-hole of a patient’s knickers.

275. The Registrant denied doing this.

276. The Panel preferred the evidence of SUD and concluded that the Registrant did touch SUD underneath her underwear without adequate clinical reasoning/justification.

277. Accordingly, the Panel found this Sub-Particular proved.

278. In considering Sub-Particular 4(d), the Panel concluded that SUD had been consistent in her evidence to the police and to the Panel that the Registrant did not offer her a towel.

279. The experts agreed that all patients should be offered a towel or an alternative means of covering themselves when clothing is removed, particularly when examining intimate areas.

280. The Registrant did not recall whether he offered SUD a towel but accepted that he may not have done so, saying that he sometimes ran out of towels. LH told the Panel that, when consulting with other staff, they could not recall having a difficulty finding towels. GD’s evidence in her statement to the HCPC was that there was rarely a shortage of towels. She said that if towels did run out, staff would go and collect more. She stated that it was not often that they ran out, and that over the past 25 years they had run out of towels once every three months or so.

281. The Panel considered it to be a deliberate act on the part of the Registrant to choose not to give SUD a towel when she was in a very vulnerable position and in a state of undress, despite a towel being available.

282. The Panel noted the consistency of evidence, which it took to be a pattern of behaviour adopted by the Registrant when he was with the Service Users in this case. This act took place on seven occasions over a three-month period, and the Panel preferred the evidence of LH, over that of the Registrant, that there was rarely a shortage of towels.

283. On that basis, the Panel found this Sub-Particular proved.

284. In considering Sub-Particular 4(e), the Panel took into account the Clinical Records which documented a tick in the box entitled “Informed Consent”.

285. The Panel concluded that, whilst the Registrant had given some explanation in order to gain consent for treatment, as demonstrated in the Clinical Records, it was apparent from the evidence provided by SUD that she did not consent to inappropriate touching by the Registrant.

286. Given the Panel’s findings in relation to inappropriate touching and the fact that SUD had not agreed to be touched inappropriately, the Panel concluded that the Registrant did not seek SUD’s consent to perform treatment.

287. On that basis, the Panel found this Sub-Particular proved.

288. In considering Sub-Particular 4(f), the Panel considered the issue of sexual motivation in accordance with the case of Arunkalaivanan vs GMC [2014] EWHC 873. In this instance, the Panel concluded that the primary facts were: (i) the Registrant put his hand inside SUD’s knickers and touched her in close proximity of an intimate area, namely her vagina; (ii) the Registrant did not have consent to touch SUD in this way; and (iii) this was not a case of inadvertent or accidental touching – it was a deliberate act. The surrounding circumstances were: (i) SUD attended an appointment with a professional and put her trust in him; (ii) SUD was in a position of vulnerability, meaning that there was an imbalance of power between the Registrant and SUD; and (iii) the Registrant did not provide any means by which SUD could preserve her modesty. From these primary facts and surrounding circumstances, the Panel inferred that the Registrant’s actions described at Sub-Particulars 4(a) to 4(c) were sexually motivated.

289. Accordingly, the Panel found this Sub-Particular proved.

290. In considering Sub-Particular 4(g), the Panel took into account that it was accepted by both parties that a full neurological examination did not take place. The question for the Panel to determine was whether SUD required a full neurological examination. The experts differed on this point. There was evidence that some form of neurological examination had taken place. The Registrant had explained that as there were no positive findings from this examination, he had not considered it necessary to go any further, particularly as SUD was already under the management of her GP for her bladder problems.

291. In those circumstances, the Panel concluded that this Sub-Particular could not be proved to the requisite standard and found this Sub-Particular not proved.

Particular 5 – SUE

292. The Panel did not hear live evidence from SUE. Her evidence was presented to the Panel in the form of a police statement.

293. Following her appointment with the Registrant, SUE asked to be seen by a female physiotherapist.

294. SUE reported to her female physiotherapist that she was concerned about her appointment with the Registrant and that his assessment had been “intrusive”. Her concerns were not fully explored at that time.

295. The Panel noted that SUE did not mention that the Registrant had touched her vagina until she made her police statement.

296. In considering Sub-Particular 5(a), SUE said in her statement that the Registrant touched her, “at the very closest, one centimetre away from my vagina. I was now extremely unhappy”. She stated that this touching took place repeatedly for “around two minutes”.

297. Both experts agreed that there was no justification for touching in this area. They also agreed there was no justification for examination in SUE’s groin area at all, given that SUE had a lumbar spine problem; that is, a back problem. They agreed that the first area that should have been palpated was SUE’s back. This was supported by the appointment that subsequently took place with a female physiotherapist, who examined SUE’s back and concluded that SUE had a lumbar spine dysfunction and treated her accordingly.

298. There was no evidence in the Clinical Records to suggest that palpation of the lumbar spine took place.

299. SUE’s evidence was that her back was not touched and that the Registrant went straight to palpation of her groin.

300. The Registrant told the Panel that he may have palpated the lumbar spine and that if nothing abnormal had been detected, he would not have made any entry in the notes.

301. The Panel preferred the evidence of SUE and determined that SUE’s back was not palpated, and that the Registrant went straight for an examination in an intimate area, in close proximity to the vagina. In so concluding, the Panel took into account the evidence provided by SUE in its entirety. The Panel also took into account its finding in relation to SUD, namely that the Registrant had touched SUD’s vagina and/or in close proximity of her vagina without clinical reasoning/justification, which the Panel now regarded as a pattern of behaviour on the Registrant’s part.

302. On that basis, the Panel found this Sub-Particular proved.

303. In considering Sub-Particular 5(b), the Panel took into account the Clinical Records which documented a tick in the box entitled “Informed Consent”.

304. The Panel concluded that, whilst the Registrant had given some explanation in order to gain consent for treatment, as demonstrated in the Clinical Records, it was apparent from the evidence provided by SUE that she did not consent to inappropriate touching by the Registrant.

305. Given the Panel’s findings in relation to inappropriate touching and the fact that SUE had not agreed to be touched inappropriately, the Panel concluded that the Registrant did not seek SUE’s consent to perform treatment.

306. On that basis, the Panel found this Sub-Particular proved.

307. In considering Sub-Particular 5(c), the Panel considered the issue of sexual motivation in accordance with the case of Arunkalaivanan vs GMC [2014] EWHC 873. In this instance, the Panel concluded that the primary facts were: (i) the Registrant did not seek consent to touch SUE in close proximity of an intimate area, namely her vagina; (ii) the Registrant touched SUE “within one centimetre of” her vagina for “around two minutes”; and (iii) this was not a case of inadvertent or accidental touching – it was a deliberate act. The surrounding circumstances were: (i) SUE attended an appointment with a professional and put her trust in him; and (ii) SUE was in a position of vulnerability, meaning that there was an imbalance of power between the Registrant and SUE. From these primary facts and surrounding circumstances, the Panel inferred that the Registrant’s actions described at Sub-Particular 5(a) were sexually motivated. In so concluding, the Panel took into account its finding of sexual motivation in relation to SUD.

308. On that basis, the Panel found this Sub-Particular proved.

Particular 6 – SUF

309. In considering Sub-Particular 6(a)(i) and the events of 28 May 2014, the Panel noted that SUF did not allege that the Registrant touched her vagina, but she did say that he touched her in close proximity to it.

310. SUF said she felt uncomfortable at this appointment but was prepared to return for a second appointment two weeks later because she thought he may have made a mistake. At this second appointment she wore clothing which she hoped she would not need to remove.

311. The markings on the Body Maps provided by SUF were consistent with the oral evidence she provided.

312. The Registrant’s account was that he needed to palpate the iliopsoas. However, the relevant marking on the Body Map indicated that the area touched by the Registrant was close to the vagina and it was not suggested that this was an area that would be palpated to examine the iliopsoas. The defence expert, MH, said that palpation in the area marked on the Body Map would not be clinically justified. He demonstrated to the Panel how an examination that was clinically justified would not be as near to the vagina as the mark on the Body Map made by SUF and described by her in evidence.

313. The Panel noted there were some minor inconsistencies in the evidence of SUF, but concluded that, overall, the evidence she gave was consistent and clear, including the evidence she provided with regard to the discomfort caused to her by the Registrant touching her in this intimate area.

314. SUF said that whilst she wondered at the time whether the Registrant’s actions could have been a mistake on his part, she later realised that this could not have been the case because he did the same thing on a second occasion.

315. The Panel accepted the evidence provided by SUF in its entirety. It did not accept the Registrant’s account. The Panel also took into account its finding in relation to SUD and SUE, namely that the Registrant had touched SUD’s and SUE’s vaginas and/or in close proximity of their vaginas without clinical reasoning/justification, which the Panel now regarded as a pattern of behaviour on the Registrant’s part.

316. On that basis, the Panel found this Sub-Particular proved.

317. In considering Sub-Particular 6(a)(ii), the Panel accepted that there may be occasions where it would be clinically justified to palpate the adductor muscles of the inner thigh. However, both experts agreed that there was no clinical justification/reasoning for touching SUF on her inner thigh in the circumstances of this case.

318. The Panel accepted the evidence provided by SUF as credible. The Panel did not accept the Registrant’s evidence. It took into account the findings reached by the Panel in relation to SUD and SUE.

319. Accordingly, the Panel found this Sub-Particular proved.

320. In considering Sub-Particular 6(a)(iii), the Panel took into account the evidence of SUF that she was examined in her underwear and was not offered a towel.

321. The Registrant said that there were occasions when towels were not available and did not recall whether this was one such occasion.

322. The Panel considered it to be a deliberate act on the part of the Registrant to choose not to give SUF a towel when she was in a very vulnerable position and in a state of undress, despite a towel being available.

323. The Panel noted the consistency of evidence, which it took to be a pattern of behaviour adopted by the Registrant when he was with the Service Users in this case. This deliberate act took place on seven occasions over a three-month period and the Panel preferred the evidence of LH, over that of the Registrant, that there was rarely a shortage of towels.

324. On that basis, the Panel found this Sub-Particular proved.

325. In considering Sub-Particular 6(a)(iv), the Panel concluded that whilst the Registrant had given some explanation to SUF about what was to take place in the course of the appointment, as demonstrated by a tick in the consent box on the Clinical Records, it was apparent from the evidence provided by SUF that she did not consent to inappropriate touching by the Registrant.

326. Given the Panel’s findings in relation to inappropriate touching and the fact that SUF had not agreed to be touched inappropriately, the Panel concluded that the Registrant did not adequately explain the treatment he would be performing on SUF.

327. Accordingly, the Panel found this Sub-Particular proved.

328. In considering Sub-Particular 6(a)(v), the Panel had concluded that there was no clinical justification for touching SUF in close proximity to her vagina. No explicit consent had been sought by the Registrant for touching SUF in an intimate area, and no explanation had been provided as to why the Registrant deliberately touched SUF in an intimate area. The surrounding circumstances were: (i) SUF attended an appointment with a professional and put her trust in him; (ii) SUF was in a position of vulnerability, meaning that there was an imbalance of power between the Registrant and SUF; and (iii) the Registrant did not provide any means by which SUF could preserve her modesty. From these primary facts and surrounding circumstances, the Panel inferred that the Registrant’s actions described at Sub-Particulars 6(a)(i) to (ii) were sexually motivated. In so concluding, the Panel took into account its finding of sexual motivation in relation to SUD and SUE.

329. Accordingly, the Panel found this Sub-Particular proved.

330. In considering Sub-Particular 6(b)(i) and the events of 18 June 2014, the Panel concluded that the evidence provided by SUF in her statement to police, in her evidence before the Crown Court as summarised by the Judge’s Summing-Up, and in her evidence to the Panel, had consistently been that the Registrant touched her clitoris.

331. It was agreed by all parties that there was no clinical justification for touching in this intimate area.

332. The Registrant denied touching in this area.

333. The Panel found the evidence of SUF to be credible and did not accept the Registrant’s evidence. It took into account its findings in relation to SUD and SUE.

334. On that basis, the Panel found this Sub-Particular proved.

335. In considering Sub-Particular 6(b)(ii), the Panel concluded that the evidence provided by SUF in her statement to police, in her evidence before the Crown Court as summarised by the Judge’s Summing-Up, and in her evidence to the Panel, had consistently been that the Registrant touched her in close proximity to her vagina.

336. It was agreed by all parties that there was no clinical justification for touching in this intimate area.

337. The Registrant denied touching SUF in close proximity to her vagina without her consent.

338. The Panel found the evidence of SUF to be credible and did not accept the Registrant’s evidence. It took into account its findings in relation to SUD and SUE.

339. Accordingly, the Panel found this Sub-Particular proved.

340. In considering Sub-Particular 6(b)(iii), the Panel concluded that SUF had consistently said, in her statement to the police and to the Panel, that the Registrant touched her inside her underwear. In her police statement dated 3 March 2015, she said, “… before I knew it again went down my thigh and inside my underwear doing the same thing again. He kept asking if I was ok but I could not speak or respond … ”.

341. It was agreed by all parties that there was no clinical justification for touching SUF inside her underwear.

342. The Registrant denied touching in this area.

343. The Panel found the evidence of SUF to be credible and did not accept the Registrant’s evidence.

344. Accordingly, the Panel found this Sub-Particular proved.

345. In considering Sub-Particular 6(b)(iv), the Panel concluded that SUF had been consistent in her statement to police, in her evidence at the Crown Court, and in her evidence to the Panel that the Registrant pulled down her leggings. Her evidence to the police was that, despite asking the Registrant if it was absolutely necessary to pull down her leggings, he then proceeded to pull them down himself, without her consent. She said “Once he pulled my leggings down I froze completely and did not say a word to him ... ”.

346. The Registrant denied pulling down SUF’s leggings without her consent.

347. The Panel found the evidence of SUF to be credible and did not accept the Registrant’s evidence.

348. Accordingly, the Panel found this Sub-Particular proved.

349. In considering Sub-Particular 6(b)(v), the Panel concluded that SUF had been consistent in her statement to the HCPC and in her evidence to the Panel that she was examined in her underwear and was not offered a towel.

350. The Registrant said that there were occasions when towels were not available and did not recall whether this was one such occasion.

351. The Panel considered it to be a deliberate act on the part of the Registrant to choose not to give SUF a towel when she was in a very vulnerable position and in a state of undress, despite a towel being available.

352. The Panel noted the consistency of evidence, which it took to be a pattern of behaviour adopted by the Registrant when he was with the Service Users in this case. This deliberate act took place on seven occasions over a three-month period and the Panel preferred the evidence of LH, over that of the Registrant, that there was rarely a shortage of towels.

353. On that basis, the Panel found this Sub-Particular proved.

354. In considering Sub-Particular 6(b)(vi), the Panel concluded that whilst the Registrant had given some explanation to SUF about what was to take place in the course of the appointment, as demonstrated by a tick in the consent box on the Clinical Records, it was apparent from the evidence provided by SUF that she did not consent to inappropriate touching by the Registrant.

355. Given the Panel’s findings in relation to inappropriate touching and the fact that SUF had not agreed to be touched inappropriately, the Panel concluded that the Registrant did not adequately explain the treatment he would be performing on SUF.

356. Accordingly, the Panel found this Sub-Particular proved.

357. In considering Sub-Particular 6(b)(vii), the Panel had concluded that there was no clinical justification for touching SUF’s clitoris, or in close proximity to her vagina, or underneath her underwear. It was agreed by all parties that there was no justification for the Registrant to touch SUF in an intimate area, underneath or inside her underwear. No explicit consent had been sought by the Registrant for touching SUF in an intimate area. The Registrant had not suggested that an explanation could be provided for touching SUF in an intimate area, underneath or inside her underwear; to the contrary, he had denied doing any such thing, and the Panel had disbelieved his evidence. The surrounding circumstances were: (i) SUF attended an appointment with a professional and put her trust in him; (ii) SUF was in a position of vulnerability, meaning that there was an imbalance of power between the Registrant and SUF; and (iii) the Registrant did not provide any means by which SUF could preserve her modesty.

358. On that basis, the Panel surmised that his actions were sexually motivated. In so concluding, the Panel took into account its finding of sexual motivation in relation to SUD and SUE.

359. On that basis, the Panel found this Sub-Particular proved.
Particular 8 – SUH

360. In considering Sub-Particular 8(a), the Panel took into account the evidence provided by SUH via videolink. There were no Clinical Records available with regard to this Particular, although it was likely that they had existed as SUH did recall the Registrant making notes.

361. SUH had come forward following the 19 February 2015 letter sent out by the Trust informing patients of the allegation of sexual assault.

362. The Panel concluded that SUH appeared to have some difficulty recalling specific details about her appointment with the Registrant.

363. She gave an account to the police, when it appeared that she was extremely distressed, detailing how she felt after being touched in a place “that’s obviously not made me feel comfortable … everything’s a bit of a block out . Because my body’s frozen. My heart’s going probably at about a hundred miles an hour. I’m feeling a bit nervous cos I’m thinking ‘what on earth has just happened? But I don’t wanna cause a scene … ”. Later in her police interview she described her legs going to “jelly” after the examination.

364. SUH told the Panel that the Registrant did not touch her vagina but touched the section between the vagina and the top of her leg. She demonstrated to the Panel, by means of the Body Map, the area she was touched.

365. SUH did not continue with physiotherapy following this appointment.

366. SUH explained that she was shocked that the Registrant went so high up her leg. She gave a number of different descriptions as to exactly where she was touched by the Registrant. It was clear to the Panel that SUH believed that she had been touched inappropriately close to her vagina.

367. The Registrant gave evidence that he needed to palpate the adductor longus muscle.

368. The experts were unable to give a clear opinion on this because of the lack of Clinical Records.

369. The Panel accepted the account of SUH that she was touched in close proximity to her vaginal area and that this made her feel very uncomfortable.

370. The Panel took into account the similarity in the description of how the Registrant touched SUH with the account of SUF. While SUH struggled to clearly articulate her experience to the Panel, it was apparent that it had had a significant impact upon her. It was also consistent with a pattern of behaviour as illustrated in the Panel’s findings with regard to SUD, SUE, and SUF.

371. The Registrant had stated that the examination and assessment of the adductor longus was clinically justified and there were no Clinical Records to suggest to the contrary. The Panel accepted that palpation of the adductor longus may have been necessary, but the touching as described so consistently by SUH was inappropriate and made her feel uncomfortable.

372. In those circumstances, the Panel determined this Sub-Particular was proved.

373. In considering Sub-Particular 8(b), the Panel took into account the evidence of SUH that she was examined in her underwear and was not offered a towel.

374. The Registrant said that there were occasions when towels were not available and did not recall whether this was one such occasion.

375. The Panel considered it to be a deliberate act on the part of the Registrant to choose not to give SUH a towel when she was in a very vulnerable position and in a state of undress, despite a towel being available.

376. The Panel noted the consistency of evidence, which it took to be a pattern of behaviour adopted by the Registrant when he was with the Service Users in this case. This deliberate act took place on seven occasions over a three-month period and the Panel preferred the evidence of LH, over that of the Registrant, that there was rarely a shortage of towels.

377. On that basis, the Panel found this Sub-Particular proved.

378. In considering Sub-Particular 8(c), the Panel accepted SUH’s evidence that the Registrant did not provide an explanation for touching her in close proximity to her vaginal area. It had been submitted by the Defence that there were a number of inconsistencies in SUH’s evidence which suggested that her recall of the appointment details was poor. However, the Panel concluded that, whilst there were no Clinical Records available, it was apparent from her evidence that SUH was very upset by the examination that took place, which suggested to the Panel that any explanation that may or may not have been given by the Registrant to SUH about the assessment he was undertaking had been inadequate.

379. Accordingly, the Panel found this Sub-Particular proved.

380. In considering Sub-Particular 8(d), the Panel weighed in the Registrant’s favour the fact that the Clinical Records were not available, together with the lack of clarity in SUH’s account regarding whether or not there had been an examination of the lumbar spine.

381. On that basis, it found this Sub-Particular not proved.

382. In considering Sub-Particular 8(e), the Panel weighed in the Registrant’s favour the fact that the Clinical Records were not available, together with the lack of clarity in SUH’s account regarding whether or not the Registrant had informed her of post-treatment exercises.

383. On that basis, it found this Sub-Particular not proved.

384. In considering Sub-Particular 8(f), the Panel considered the issue of sexual motivation. In this instance, the Panel concluded that the primary facts were: i) the Registrant did not seek consent to touch SUH in close proximity to an intimate area, namely her vagina; ii) the Registrant touched SUH “just below the vaginal area… rough time of about two to three minutes”; and iii) this was not a case of accidental or inadvertent touching – it was a deliberate act. The surrounding circumstances were: i) SUH attended an appointment with a professional and put her trust in him; and ii) SUH was in a position of vulnerability, meaning there was an imbalance of power between the Registrant and SUH. From these primary facts and the surrounding circumstances, the Panel inferred the Registrant’s actions described at Sub-Particular 8(a) were sexually motivated. In so concluding, the Panel took into account its findings of sexual motivation in relation to SUD, SUE, and SUF.

385. On that basis, the Panel found this Sub-Particular proved.

Particular 2 – SUB

386. The Panel acknowledged that the evidence provided by SUB was hearsay in that, whilst she made a police statement and gave evidence before the Crown Court, she did not give evidence before the Panel.

387. SUB completed the Survey sent out by the Trust on 8 October 2014, in which she strongly disagreed with the question relating to dignity and respect and purportedly commented that, “there was an unnecessary examination and strange touching and it was the most unpleasant and unnecessary … ”.

388. LH phoned SUB when she received the completed Survey and asked her to describe what had happened.

389. The Panel concluded that, whilst the evidence provided by LH in relation to what SUB told her was hearsay, there was consistency between the complaint made by SUB as related by LH, the statement SUB gave to the police, and the evidence SUB gave to the Crown Court.

390. In considering Sub-Particular 2(a), the Panel took into account the evidence of SUB that the Registrant had touched her pubic bone. It also took into account the evidence of the Registrant, who accepted that touching the pubic mound would not be acceptable in these circumstances but denied that he had done so.

391. The clinical justification element of the particular was considered in-depth by the expert witnesses in the case. The Registrant’s expert agreed with the HCPC expert that there was no clinical justification in the context of this appointment for the Registrant to have touched the area that had been annotated by SUB on the Body Map in the course of the Crown Court proceedings.

392. In any event, both experts agreed that there was no justification for palpating the anterior aspect of the pubic bone.

393. The Panel noted the experts’ opinions that the full range of anticipated routine examinations of the presenting knee problem did not appear to have taken place before the Registrant chose to examine intimate areas.

394. The Panel noted the consistency in evidence provided by SUB to LH, the police, and the Crown Court, and preferred SUB’s account to that of the Registrant. It found that the Registrant did touch SUB in the pubic area.

395. The Panel accepted the opinion of the experts that there had been no clinical justification for the Registrant to touch SUB in the pubic area.

396. The Panel took into account the evidence provided by SUB in its entirety. The Panel also took into account its finding in relation to SUD, SUE, SUF, and SUH, namely that the Registrant had touched SUD’s, SUE’s, SUF’s, and SUH’s pubic area, which the Panel now regarded as a pattern of behaviour on the Registrant’s part.

397. Accordingly, the Panel found this Sub-Particular proved.

398. In considering Sub-Particular 2(b), the Panel took into account the evidence of SUB that the Registrant had touched SUB’s upper legs, in close proximity to her pubic area. It also took into account the evidence of the Registrant, who accepted that he had touched SUB’s upper legs in close proximity to her pubic area but that this had been clinically justified.

399. The clinical justification element of the particular had been considered in-depth by the expert witnesses in the case. The Registrant’s expert had agreed with the HCPC expert that there was no clinical justification to touch the area annotated on the Body Map in the context of this appointment. The Panel determined that, whilst there may have been clinical justification for touching the upper leg (for example, when examining the adductor longus muscle), it had been the opinion of both experts that the anticipated routine examinations of the presenting knee problem did not appear to have taken place before the Registrant chose to examine intimate areas.

400. The Panel noted the consistency of evidence provided by SUB to LH, the police, and the Crown Court, and preferred SUB’s account to that of the Registrant. The Panel found that the Registrant did touch SUB’s upper legs, in close proximity to her pubic area.

401. The Panel accepted the opinion of the experts that there was no clinical justification for the Registrant to touch SUB’s upper legs in close proximity to the pubic area.

402. The Panel took into account the evidence provided by SUB in its entirety. The Panel also took into account its finding in relation to SUD, SUE, SUF, and SUH, namely that the Registrant had touched SUD’s, SUE’s, SUF’s, and SUH’s pubic area, which the Panel now regarded as a pattern of behaviour on the Registrant’s part.

403. Accordingly, the Panel found this Sub-Particular proved.

404. In considering Sub-Particular 2(c), the Panel concluded that SUB had been clear in her evidence to the police that she was examined in her underwear and was not offered a towel. She went into some detail on this point, both in her police statement and to LH, and described moving a pillow between her legs as she “felt so uncomfortable”. She also explained that she had been poorly prepared for such an examination and had been wearing “inappropriate” underwear.

405. The Registrant said that there were occasions when towels were not available and did not recall whether this was one such occasion.

406. The Panel considered it to be a deliberate act on the part of the Registrant to choose not to give SUB a towel when she was in a very vulnerable position and in a state of undress, despite a towel being available.

407. The Panel noted the consistency of evidence, which it took to be a pattern of behaviour adopted by the Registrant when he was with the Service Users in this case. This deliberate act took place on seven occasions over a three-month period and the Panel preferred the evidence of LH, over that of the Registrant, that there was rarely a shortage of towels.

408. On that basis, the Panel found this Sub-Particular proved.

409. In considering Sub-Particular 2(d), the Panel noted that the consent box in the Clinical Records had been ticked.

410. SUB stated in her police statement that, as the Registrant was taping her leg, right up to the pubic bone, she asked the Registrant if this was absolutely necessary, to which the Registrant responded “Does it hurt?”.

411. In his Summing-Up for the Crown Court, the Judge summarised the evidence, saying that SUB had asked the Registrant “is this necessary” and the Registrant had provided no reply.

412. The Summing-Up records the Registrant as having said, “I always thought I explained clearly, but looking back maybe on reflection, I’ve not explained good”.

413. In cross-examination before the Panel, the Registrant conceded that he probably would not have explained properly.

414. The Panel noted the consistency in the evidence provided by SUB, which suggested that SUB had not received any explanation for the treatment being provided by the Registrant, and therefore that the Registrant did not obtain SUB’s fully informed consent to perform the treatment.

415. Accordingly, the Panel found this Sub-Particular proved.

416. In considering Sub-Particular 2(e), as stated in the Panel’s determination with regard to

2(d), it was apparent to the Panel that the Registrant did not provide SUB with information regarding the necessity of the assessment/treatment when asked.
417. Accordingly, the Panel found this Sub-Particular proved.

418. In considering Sub-Particular 2(f), the Panel noted that SUB stated in her police statement that no conversation took place with the Registrant about exercise: “he just handed me a piece of paper”.

419. The Panel balanced this against the Registrant’s evidence that he always gave exercises to patients, as supported by the Clinical Records which stated “Given HEP” (home exercise programme).

420. SUB did not give evidence before the Panel. The Registrant had given evidence which was supported by the Clinical Records in this instance. On the basis of this evidence, the Panel was not satisfied on the balance of probabilities that the Registrant had not informed SUB of post-treatment exercises.

421. The Panel therefore found this Sub-Particular not proved.

422. In considering Sub-Particular 2(g), having established that there was no clinical justification for having touched SUB in her pubic area, or on her upper legs in close proximity to her pubic area, the Panel considered whether the Registrant’s actions had been misjudged or whether they had been sexually motivated. The Panel determined that the surrounding circumstances were: (i) SUB attended an appointment with a professional and put her trust in him; (ii) SUB was in a position of vulnerability, meaning that there was an imbalance of power between the Registrant and SUB; and (iii) the Registrant did not provide any means by which SUB could preserve her modesty. In the context of these findings, together with its findings of sexual motivation in relation to SUD, SUE, SUF, and SUH, the Panel concluded that the Registrant’s actions in this case were sexually motivated.

423. Accordingly, the Panel found this Sub-Particular proved.

424. In considering Sub-Particular 2(h), both experts had said that a series of exercises and tests should have been undertaken by the Registrant.

425. The Clinical Records noted that some testing and palpation of the knee had taken place.

426. The Panel noted the experts’ opinions that the full range of anticipated routine examinations of the presenting knee problem did not appear to have taken place. However, it was apparent to the Panel that some examination of the knee had taken place, and that the experts who gave evidence to the Panel and those in the Crown Court proceedings were at odds as to whether the tests carried out were “sufficient”.

427. The Panel therefore determined that it could not be proved to the requisite standard that the Registrant did not carry out and/or record a sufficient examination of SUB’s knee.

428. Accordingly, the Panel found this Sub-Particular not proved.

429. In considering Sub-Particular 2(i), the Panel noted that the allegation was solely whether strapping had been applied to SUB’s leg without clinical justification. The wording of the allegation made no reference to the positioning of the tape.

430. The experts were not in agreement as to whether taping was appropriate. They also had differing views regarding the positioning of the tape.

431. The Registrant recorded the use of taping in his Clinical Records and explained to the Panel his reasons for so doing.

432. The Panel took into account the Registrant’s evidence, together with the disagreement between the experts in this case, and determined that it could not be proved on the balance of probabilities that the application of the taping had not been clinically justified.

433. Accordingly, the Panel found this Sub-Particular not proved.

Particular 10 – SUJ

434. SUJ gave evidence to the Panel and was, herself, a highly qualified health professional.

435. In considering Sub-Particular 10(a), the Panel noted that in her police statement SUJ said that, prior to her appointment with the Registrant, she had had a physiotherapy appointment with a different physiotherapist who had given her a full explanation of what she, the physiotherapist, was doing and why. However in relation to her appointment with the Registrant, SUJ stated that, “He strapped my knee up but the strange thing was that he did not communicate with me. He did not say why he did anything or why he was strapping my knee”.

436. The Registrant told the Panel that it was his normal practice to explain the proposed treatment in order to gain consent. However, he acknowledged in cross-examination that perhaps he had not been explaining things as well as he could have done.

437. The Panel preferred the evidence of SUJ.

438. Accordingly, the Panel found this Sub-Particular proved.

439. In considering Sub-Particular 10(b)(i), SUJ’s evidence was that the Registrant had touched her in the groin area. The Registrant had said that he had palpated her hip adductor. The Panel accepted that palpation of the hip adductor muscles would require some touching in the groin area.

440. The Panel noted a variance between the evidence provided by the Registrant regarding the clinical justification for touching SUJ and the expert evidence called on behalf of the Defence. The variance concerned the need to touch the groin in order to palpate the rectus femoris muscle. Both experts agreed that there would be some justification for palpation in the area shown on the Body Map annotated by SUJ, but only if muscle length testing had first taken place. However, the Registrant had made no reference, either in his evidence or in his Clinical Record of examination, to muscle length testing having taken place.

441. On that basis, the Panel determined that there was no clinical justification for the Registrant to touch SUJ in her groin area because muscle length testing had not taken place.

442. The Panel took into account the evidence provided by SUJ in its entirety. The Panel also took into account its finding in relation to SUD, SUE, SUF, SUH, and SUB, namely that the Registrant had touched SUD’s, SUE’s, SUF’s, SUH’s, and SUB’s pubic area, which the Panel now regarded as a pattern of behaviour on the Registrant’s part.

443. Accordingly, it found this Sub-Particular proved.

444. In considering Sub-Particular 10(b)(ii), the Panel compared the Registrant’s suggestion in evidence that SUJ’s dress moved up her leg of its own accord during the examination with SUJ’s account in her statement to the police that, “He then pulled my dress up, almost like my underwear was completely exposed … what surprised me was that I had no idea he was going to do that.”

445. SUJ denied that the Registrant had asked permission or given her any warning that he was going to pull up her dress.

446. In cross-examination SUJ acknowledged that it would have been possible for her dress to have fallen back of its own accord, but stated this is not what had happened.

447. The Panel concluded that SUJ had been consistent in her evidence and was a reliable and credible witness. The Panel preferred the account of SUJ to the account provided by the Registrant.

448. The Panel therefore found this Sub-Particular proved.

449. In considering Sub-Particular 10(b)(iii), SUJ was consistent in her evidence to the Panel and in her written police statement that she was not offered a towel.

450. The Registrant said that there were occasions when towels were not available and did not recall whether this was one such occasion.

451. The Panel considered it to be a deliberate act on the part of the Registrant to choose not to give SUJ a towel when she was in a very vulnerable position with her underwear exposed, despite a towel being available.

452. The Panel noted the consistency of evidence, which it took to be a pattern of behaviour adopted by the Registrant when he was with the Service Users in this case. This deliberate act took place on seven occasions over a three-month period and the Panel preferred the evidence of LH, over that of the Registrant, that there was rarely a shortage of towels.

453. On that basis, the Panel found this Sub-Particular proved.

454. In considering Sub-Particular 10(b)(iv), the Panel concluded that, whilst the Registrant had given some explanation to SUJ about what was to take place in the course of the appointment, as demonstrated by a tick in the consent box on the Clinical Records, it was apparent from the evidence provided by SUJ that she did not consent to inappropriate touching by the Registrant.

455. Given the Panel’s findings in relation to inappropriate touching and the fact that SUJ had not agreed to be touched inappropriately, the Panel concluded that the Registrant did not adequately explain the treatment he would be performing on SUJ.

456. Accordingly, the Panel found this Sub-Particular proved.

457. In considering Sub-Particular 10b(v), the Panel had concluded that the Registrant had exposed SUJ’s underwear and conducted an examination in the groin area that was not clinically justified, without explanation. The Panel determined that the surrounding circumstances were: (i) SUJ attended an appointment with a professional and put her trust in him; (ii) SUJ was in a position of vulnerability, meaning that there was an imbalance of power between the Registrant and SUJ; and (iii) the Registrant did not provide any means by which SUJ could preserve her modesty. This, together with the Panel’s findings of touching the groin area with sexual motivation in relation to SUD, SUE, SUF, SUH, and SUB, led the Panel to be satisfied, on the balance of probabilities, that the Registrant’s actions in this instance were also sexually motivated.

458. Accordingly, the Panel found this Sub-Particular proved.

Particular 11 – SUK

459. In considering Sub-Particular 11(a), the Panel acknowledged that the evidence provided by SUK was hearsay in that, whilst she had given evidence before the Crown Court, she did not give evidence before the Panel. However, the Panel concluded that there was consistency between the oral complaint she made to LH, her statement to the police, and the evidence she gave to the Crown Court.

460. SUK did not complain until she received the letter of 19 February 2015 sent by the Trust informing Service Users that the Registrant was facing charges of sexual assault. In her police statement, SUK stated, “After reading the letter it confirmed in my head what I had been thinking about the treatment”.

461. In her police statement, SUK said, “I was asked to lie back with my legs apart and [the Registrant] began to push the muscles on the inside of my leg toward the groin area … He went further up my leg to my pubic area … as he was doing this he was pushing inwards on my pubic area and brushed past the front of my vagina … ”.

462. This evidence was confirmed by the Body Map markings SUK made in the course of the Crown Court proceedings.

463. The Registrant’s evidence was that he palpated the hip adductor muscles.

464. SUK had presented with an ankle injury. The experts agreed that there was no clinical justification, with such an injury, for the Registrant to touch SUK in the groin area, and that there was no likelihood that any touching of this area could be accidental.

465. The Panel found the evidence of SUK to be both credible and reliable and took into account the similarity between SUK’s evidence and that of SUJ and SUD.

466. The Panel took into account the evidence provided by SUK in its entirety. The Panel also took into account its finding in relation to SUD, SUE, SUF, SUH, SUB, and SUJ, namely that the Registrant had touched SUD’s, SUE’s, SUF’s, SUH’s, SUB’s, and SUJ’s pubic area, which the Panel now regarded as a pattern of behaviour on the Registrant’s part.

467. Accordingly, the Panel found this Sub-Particular proved.

468. In considering Sub-Particular 11(b), the Panel bore in mind the agreed evidence of both experts that the Registrant’s clinical focus should have been on SUK’s ankle.

469. The Clinical Record revealed that the Registrant noted SUK’s posture as she entered the examination area. The Registrant said he concluded that the ankle complaint was secondary to the postural issue.

470. Both the experts agreed that further examination should have taken place before the Registrant reached this conclusion.

471. On that basis, the Panel determined that this Sub-Particular was proved.

472. In considering Sub-Particular 11(c), the Panel concluded that while the Registrant had given some explanation to SUK about what was to take place in the course of the appointment, as demonstrated by a tick in the consent box on the Clinical Records, it was apparent from the evidence provided by SUK that she did not consent to inappropriate touching by the Registrant.

473. Given the Panel’s findings in relation to inappropriate touching and the fact that SUK had not agreed to be touched inappropriately, the Panel concluded that the Registrant did not adequately explain the treatment he would be performing on SUK.

474. Accordingly, the Panel found this Sub-Particular proved.

475. In considering Sub-Particular 11(d), the Panel had concluded that the Registrant had focused on an alternative area of assessment and treatment unrelated to the ankle injury, namely SUK’s groin, without adequate clinical justification. The Panel determined that the surrounding circumstances were: (i) SUK attended an appointment with a professional and put her trust in him; and (ii) SUK was in a position of vulnerability, meaning that there was an imbalance of power between the Registrant and SUK. This, together with the Panel’s earlier findings of sexual motivation in relation to touching the groin area of SUD, SUE, SUF, SUH, SUB, and SUJ, proved, on the balance of probabilities, that the Registrant’s actions were sexually motivated.

476. Accordingly, the Panel found this Sub-Particular proved.

Particular 7 – SUG

477. SUG was one of the initial complainants, who came forward independently to the Trust to complain about the Registrant’s treatment prior to the sending of the Survey of 8 October 2014 or the letter of 19 February 2015. SUG contacted GD, the Registrant’s manager, on 26 June 2014 to discuss the treatment she had received from the Registrant four days previously. GD documented the discussion in the patient notes and completed a Complaints Log. GD later made a police statement in which she specified what SUG had said to her in her initial complaint. She said that SUG asked her whether it was normal to have her breast touched when her health problem related to her back. GD responded by saying that, “even though her pain is at the back we would sometimes palpate the front of the chest on the ribs as part of a normal assessment.”

478. After making her complaint to GD, SUG was sent a letter from the Trust saying that the police wanted to speak to her, in response to which she phoned the Trust and reportedly said that she was unhappy with the assessment and knew it was wrong. She mentioned that she had already made a complaint and that she was happy to help the police. This resulted in a police interview a couple of days later. She then gave evidence before the Crown Court, when she annotated a Body Map to illustrate where the Registrant had touched her. She did not give evidence before the Panel.

479. The Panel acknowledged that SUG’s evidence was hearsay evidence. However, the Panel concluded that there was consistency between her complaint to GD, her police interview, and the evidence she gave to the Crown Court.

480. In relation to Sub-Particular 7(a), SUG described in great detail how the Registrant touched her breast and breast area. She described how he asked her to remove her top. She described in her interview to the police that she was wearing a blouse, which she removed, under which was a vest top with little straps. She described how the Registrant touched her:
“… he was going down a bit to the cleavage area and I was just sitting there … thought this ain’t right and then he was moving all around examining all around my boobs, all under all around here all this area and he kept on really pushing and kept on saying all the time does that hurt, does that hurt and that seemed to go on for ages.”

481. The Registrant claimed that he was palpating the pectoralis minor and major area in order to check whether there was muscle tension, spasm, or pain.

482. The experts agreed that there was no clinical justification to palpate SUG’s breast in the area SUG had indicated on the Body Map. In response to questioning about examination of the pectoral muscles, it was agreed that breast tissue does not need to be touched in order to palpate the pectoral muscles.

483. The Panel accepted that the Complaint Log completed by GD made no specific mention of breast or nipple. However, in the patient records, referring to the complaint, GD recorded SUG’s query about whether it was normal to be examined around the breast area when her problem related to back pain.

484. The Panel concluded that SUG’s evidence was extremely detailed, consistent, and compelling. She described how she questioned the treatment she had received immediately afterwards, she discussed it with her friends, and made a complaint to the Trust a couple of days later. The details in her interview to the police were extensive and were consistent with the evidence documented in the Summing-Up of the Crown Court proceedings. The Panel concluded that, whilst certain peripheral details of the examination were not consistent with the Clinical Records, SUG stated that she had “blocked it out of my memory … ”. Nevertheless, the evidence provided by SUG going to the heart of this allegation was consistent throughout.

485. The Panel determined that the Registrant touched SUG’s breasts and breast area and that, in accordance with the expert opinion, there was no clinical justification for this.

486. The Panel therefore found this Sub-Particular proved.

487. In relation to Sub-Particular 7(b), SUG stated in her police interview, “he was like at one point he was this close to my nipple area then the other arm brushed past my nipple and at that point I thought I’ve just got to get out of here”. SUG also stated, “… and then at one point his arm pressed went on my right nipple area so I just didn’t feel that it was right and I didn’t feel comfortable with the whole situation and when he was doing it I thought I am gonna check his breathing to see if he is getting excited about this cos I knew it wasn’t right … ”.

488. Later in the police interview SUG was asked whether there was any chance the Registrant’s touching of her nipple may have been accidental, to which she replied, “No because not the way he was examining my chest no way … ”.

489. Both experts, and the Registrant, were in agreement that it was not clinically justified to touch the nipple.

490. The Registrant denied touching SUG’s nipple.

491. The Panel concluded that SUG’s evidence was consistent and preferred it to that of the Registrant.

492. On that basis, the Panel found this Sub-Particular proved.

493. In considering Sub-Particular 7(c), the Panel took into account the Clinical Records, which documented a tick in the box entitled “Informed Consent”.

494. The Panel concluded that, whilst the Registrant had given some explanation in order to gain consent for treatment, as demonstrated in the Clinical Records, it was apparent from the evidence provided by SUG that she did not consent to inappropriate touching by the Registrant.

495. Given the Panel’s findings in relation to inappropriate touching and the fact that SUG had not agreed to be touched inappropriately, the Panel concluded that the Registrant did not seek SUG’s consent to perform treatment.

496. On that basis, the Panel found this Sub-Particular proved.

497. In relation to Sub-Particular 7(d), SUG, in her police statement, commented that she thought the Registrant was “getting a kick” out of what he was doing, and she thought it was “disgusting”. When asked how she felt, SUG said she felt “just like being violated … no respect for me”; she felt “like a toy, like nothing”. She also mentioned that “what he did was wrong … you don’t go for a physio appointment for your back and get your chest area examined like that and I just think it’s an abuse of power”.

498. The Panel had found that the Registrant had touched SUG on her breasts and nipple without clinical reasoning or justification. The Panel determined that the surrounding circumstances were: (i) SUG attended an appointment with a professional and put her trust in him; and (ii) SUG was in a position of vulnerability, meaning that there was an imbalance of power between the Registrant and SUG. In those circumstances, the Panel concluded that the only possible motivation for his having touched these intimate areas was sexual.

499. The Panel therefore found this Sub-Particular proved.

Particular 9 – SUI

500. SUI contacted the Trust when she received the letter of 19 February 2015 stating that the Registrant had been charged with sexual assault. SUI made a police statement and gave evidence at the Crown Court, where she marked a Body Map to show where the Registrant had touched her. She did not give evidence before the Panel.

501. In relation to Sub-Particular 9(a), the Panel concluded that SUI was consistent in her statement to the police and in her evidence to the Crown Court about how the Registrant had touched her.

502. The experts agreed that there was no clinical justification to palpate SUI’s breast in the area SUI identified on the Body Map. The experts agreed that breast tissue did not need to be touched in order to palpate the pectoral muscles. The experts also agreed that there was no clinical justification for the Registrant to have touched SUI’s breast or breast area in the circumstances.

503. The Registrant stated that he did not touch SUI’s breast but did palpate the pectoralis minor in order to check if there was any increased muscle tension, spasm, or pain.

504. The Panel preferred the evidence of SUI, in conjunction with the expert evidence. On the basis of this evidence, together with the Panel’s determination that the Registrant had similarly touched SUG’s breasts without adequate clinical reasoning/justification, which it regarded as a pattern of behaviour, the Panel determined that the Registrant did touch SUI’s breast and that this was without clinical justification.

505. The Panel therefore found this Sub-Particular proved.

506. In considering Sub-Particular 9(b), the Panel took into account the Clinical Records, which documented a tick in the box entitled “Informed Consent”.

507. The Panel concluded that, whilst the Registrant had given some explanation in order to gain consent for treatment, as demonstrated in the Clinical Records, it was apparent from the evidence provided by SUI that she did not consent to inappropriate touching by the Registrant.

508. Given the Panel’s findings in relation to inappropriate touching and the fact that SUI had not agreed to be touched inappropriately, the Panel concluded that the Registrant did not seek SUI’s consent to perform treatment.

509. On that basis, the Panel found this Sub-Particular proved.

510. In relation to Sub-Particular 9(c), there was no evidence to indicate whether or not a towel had been provided to SUI to cover herself, as there was no mention of the absence or presence of a towel in her statement.

511. On that basis, the Panel found this Sub-Particular not proved.

512. In relation to Sub-Particular 9(d), SUI, in her police statement, commented that the Trust letter “brought back memories of the treatment which I had tried to put to the back of my mind of feeling violated and taken advantage of … ”. She stated that immediately after the appointment she texted her cousin, saying, “He touched my boob … I feel violated”.

513. The Panel had found that the Registrant had touched SUI on the breast and that there had been no clinical justification for doing so. The Registrant had not sought consent to touch SUI on her breast, and no explanation had been provided as to why he touched her in this area; to the contrary, he denied any such touching. The Panel determined that the surrounding circumstances were: (i) SUI attended an appointment with a professional and put her trust in him; and (ii) SUI was in a position of vulnerability, meaning that there was an imbalance of power between the Registrant and SUI. On that basis, together with its findings of sexual motivation in relation to SUG, the Panel determined that the Registrant’s actions had been sexually motivated.

514. The Panel therefore found this Sub-Particular proved.

Particular 1 – SUA

515. SUA had been referred for physiotherapy after having a number of car accidents. She presented with pain in her shoulders, upper back, left arm, and across her chest. She had two appointments with the Registrant. She had no complaint about the first. After the second, she spoke to a friend and colleagues at work about her experience. She told them that, “he touched my boobs”. They advised her that the Registrant must have touched her in this manner for medical reasons.

516. SUA contacted the Trust after she received the letter of 19 February 2015 informing patients that the Registrant had been charged with sexual assault, as she felt that the treatment she had received was “strange”. SUA spoke with LH and then made a statement to the police. SUA gave evidence before the Crown Court and gave evidence before the Panel.

517. In considering Sub-Particular 1(a), the Panel took account of SUA’s police statement, in which she stated that the Registrant touched her breasts. She said, “he started by pressing the top of my left breast and then went around the breast … he then felt the top of my right breast and informed me they were tense, this particular part of the treatment lasted about five minutes and was concentrated on the breasts’.

518. The Registrant denied touching SUA’s breasts. He said he palpated the pectoral muscles at the top of the chest area.

519. The Defence sought to rely on inconsistency between SUA’s police statement and the evidence she gave before the Crown Court. In her police statement she said that she was touched on the “top of my right breast”. At the Crown Court trial she suggested it was her “left breast areas first” and then said “he didn’t go round the right breast”.

520. In her evidence to the Panel, SUA clearly described how the Registrant touched her breasts. The Panel noted that she had been consistent in her evidence that the Registrant had asked her “do you mind if I put my hand inside your bra so that when I’m pressing you can tell me where it hurts”. The Panel considered whether there had been an inconsistency in her evidence regarding the right and left breast, and took into account her oral evidence before the Panel when she explained that the breast she circled on the Body Map at the Crown Court had been the incorrect one, and that she had made this mistake because she became confused between left and right in seeking to compare her body with its visual representation on the Body Map before her. She provided a further annotation on a Body Map for the benefit of the Panel, on which she circled the left breast.

521. The experts’ opinion was that it was not clinically justified to touch the breast tissue and there was no clinical justification for touching the area annotated on the Body Map within the circled left breast. They also agreed that where there is justification for palpation of the pectoral muscles, the muscles should be length tested prior to palpation, which had not occurred here.

522. The Panel considered that SUA’s evidence before the Panel was consistent with that of her police statement. She had told the Panel “… the actual breast, his hand was inside my bra feeling my breast”.

523. The Panel preferred the evidence of SUA to that of the Registrant.

524. On the basis of this evidence, together with the Panel’s determination that the Registrant had similarly touched SUG’s and SUI’s breasts without adequate clinical reasoning/justification, which it regarded as a pattern of behaviour, the Panel determined that the Registrant did touch SUA’s breast, and that this was without clinical justification.

525. On the basis of all of the evidence, the Panel found this Sub-Particular proved.

526. In considering Sub-Particular 1(b), the Panel took into account SUA’s evidence before the Crown Court that “he went around the left breast then brushed past the nipple”. In her police statement she stated that he “… went round the breast whilst brushing past my nipple”. In LH’s telephone note, LH recorded SUA as reporting that the Registrant felt around the nipple but did not touch the nipple. SUA told the Panel that, “it was just a slight touch as he brushed past”.

527. The Registrant told the Panel that he had never made accidental contact with any intimate area and, had he done so, he would have apologised.

528. While the Registrant denied having touched SUA’s nipple, the experts and the Registrant agreed that it would not be clinically justified to have touched SUA’s nipple.

529. The Panel took into account the inconsistency between what SUA was alleged to have said to LH in the course of the phone call with her, and the evidence SUA gave to the Panel, to the police, and to the Crown Court.

530. The Panel determined that the inconsistencies were of a lesser weight than the consistencies in the evidence that SUA had given in her police interview, her evidence before the Crown Court, and her evidence before the Panel. The Panel concluded that the Registrant had touched SUA’s nipple without adequate clinical reasoning/justification.

531. The Panel therefore found this Sub-Particular proved.

532. In considering Sub-Particular 1(c), the Panel took account of SUA’s police interview, in which she recalled that the Registrant said, “do you mind if I put my hand inside your bra… ”. In her oral evidence to the Panel SUA said, “His hand was inside my bra feeling my breast”.

533. The Registrant denied having touched SUA underneath her bra. Both experts and the Registrant agreed that it was not clinically justified to have touched SUA underneath her bra.

534. SUA described the Registrant putting his hand inside (underneath) her bra and differentiated between this action and that of the Registrant lowering her bra straps, which the experts agreed may be clinically justified. In light of the specific and credible evidence provided by SUA, the Panel concluded that the Registrant touched SUA underneath her bra without adequate clinical reasoning/justification.

535. The Panel therefore found this Sub-Particular proved.

536. In considering Sub-Particular 1(d), the Panel took into account the Body Map on which SUA had circled an area of the groin. In her Crown Court evidence, SUA referred to her lower abdomen. In her evidence to the Panel, SUA described how the Registrant “went down as far as my pelvic area”. In her statement to the police, she stated, “… he went down as low as my pelvic area and lowered the top of my underwear and pressed around my pelvic area … ”. Both experts agreed that there was clinical justification for palpation in the pelvic area. Much of the evidence in relation to this Sub-Particular centred around the use of the terminology relating to the pelvic area, which should be distinguished from the pubic area.

537. The Panel therefore found this Sub-Particular not proved.

538. In considering Sub-Particular 1(e), the Panel concluded that, whilst the Registrant had given some explanation to SUA about what was to take place in the course of the appointment, as demonstrated by a tick in the consent box on the Clinical Records, it was apparent from the evidence provided by SUA that she did not consent to inappropriate touching by the Registrant.

539. Given the Panel’s findings in relation to inappropriate touching and the fact that SUA had not agreed to be touched inappropriately, the Panel concluded that the Registrant did not adequately explain the treatment he would be performing on SUA.

540. Accordingly, the Panel found this Sub-Particular proved.

541. In considering Sub-Particular 1(f), the Panel took account of the evidence provided by SUA that she was not offered a towel.

542. The Registrant said that there were occasions when towels were not available and did not recall whether this was one such occasion.

543. The Panel considered it to be a deliberate act on the part of the Registrant to choose not to give SUA a towel when she was in a very vulnerable position and in a state of undress, despite a towel being available.

544. The Panel noted the consistency of evidence, which it took to be a pattern of behaviour adopted by the Registrant when he was with the Service Users in this case. This deliberate act took place on seven occasions over a three-month period and the Panel preferred the evidence of LH, over that of the Registrant, that there was rarely a shortage of towels.

545. On that basis, the Panel found this Sub-Particular proved.

546. In considering Sub-Particular 1(g), the Panel noted that in SUA’s police statement and in evidence to the Panel, she said that the Registrant asked her if she wanted treatment at home as he did home visits, which she declined. In her telephone note LH confirmed that SUA said that the Registrant offered to see her at home privately. The Registrant’s evidence to the Panel was that he was intending to set up his own business and was enquiring whether SUA knew of anyone who needed physiotherapy.

547. It was agreed by all parties that there was no clinical justification for the Registrant to have touched SUA’s breast or nipple inside her bra. No explanation had been provided as to why the Registrant touched SUA in an intimate area, underneath her bra. The surrounding circumstances were: (i) SUA attended an appointment with a professional and put her trust in him; (ii) SUA was in a position of vulnerability, meaning that there was an imbalance of power between the Registrant and SUA; and (iii) the Registrant did not provide any means by which SUA could preserve her modesty. In addition, the Panel was of the view that the Registrant had made reference to treating SUA at home. On the basis of the primary facts and the surrounding circumstances, together with its findings of sexual motivation in relation to SUI and SUG, the Panel determined that the Registrant’s actions as proved in Sub-Particulars 1(a) – 1(c) were sexually motivated.

548. The Panel therefore found this Sub-Particular proved.

549. In considering Sub-Particular 1(h), the Panel took into consideration the experts’ opinions and the Clinical Record. The experts’ joint report did not clearly differentiate between the assessment appointment and this, a follow up appointment. The Panel made no issue of the Registrant’s use of the abbreviation “WNL” (within normal limits) and considered this abbreviation to be as valid as that of “NAD” (nothing abnormal detected). Both experts considered the thoracic spine active range of movement to be missing. The Registrant claimed this was not required. Both experts were of the view that there should have been palpation of the cervical spine as part of the re-assessment, it having been assessed by the Registrant at the initial appointment on 4 July 2014. The Registrant appeared to have re-assessed SUA’s active range of movement of the neck and recorded the movements that were restricted. Palpation of the cervical spine was not evident in the records on 17 July 2014. The Registrant examined SUA’s thoracic and lumbar spine on 17 July 2014 but the Panel would expect to have seen an assessment of the active range of movement, with regards to rotation, of the thoracic spine. The Panel considered that any omissions by the Registrant were fairly minor, and therefore considered the examination/recording to be sufficient.

550. The Panel therefore found this Sub-Particular in its entirety not proved.

Particular 3 – SUC

551. In considering Sub-Particular 3(a), the Panel compared the oral evidence given by SUC with the evidence provided in her police statement dated 16 December 2014, and the summary of her evidence provided in the Crown Court Summing-Up. The Panel concluded that SUC’s evidence had been consistent. SUC told the Panel that, “… I became aware that [the Registrant’s] hands were placed in his crotch area … and his hands were moving. Well – as far as I can remember, his left hand was moving, constantly and he didn’t, you know, just non-stop”.

552. The Registrant said by way of explanation that he “could have been scratching” and agreed, on the basis of etiquette, that he should not have been doing this, but said “it was a natural thing”. He gave no other explanation to the Panel as to why he may have been touching himself in the groin area for so long in front of SUC. When asked why his hands were below the level of the plinth on which SUC lay, the Registrant said that he may have been checking his phone.

553. The Panel accepted the evidence of SUC and determined that the Registrant did repeatedly touch his groin area whilst in her presence.

554. Accordingly, the Panel found this Sub-Particular proved.

555. In considering Sub-Particular 3(b), the Panel took into account the words of SUC in her police statement, where she stated, “I would describe what he was doing with his hands as masturbating with them, moving up and down”. In her evidence before the Panel, SUC described the Registrant running out from the curtain: “… it was so sudden, it was just like ‘whoomph’ and he was gone and I’m just laying there thinking well is that it? You know, can I get up?”.

556. The Registrant had given no adequate explanation to the Panel as to why he had needed to touch his groin area in the presence of SUC for so long. In light of this, and in the context of other allegations found proved with regards to sexually motivated behaviour, the Panel concluded that the Registrant’s actions were sexually motivated.

557. Accordingly, the Panel found this Sub-Particular proved.

558. In considering Sub-Particular 3(c), the Panel first considered whether an assessment of SUC’s knee had been necessary. The Panel concluded that it would have been good practise for the Registrant to have assessed SUC’s knee at the appointment on 24 June 2014 because he had, on his initial assessment, found impairment in SUC’s right knee, which was the reason for her initial referral. The Registrant claimed that SUC had told him that her knee was now better and that she now had pain in her lower back, and he therefore prioritised the assessment of her presenting condition at this appointment rather than assessing her original complaint. The Registrant accepted that SUC’s knee was not examined. He claimed that it had not been necessary to do so as a full assessment had taken place at a previous appointment.

559. Both experts agreed that an objective re-assessment of SUC’s knee should have taken place before proceeding to any examination of a different area.

560. The Panel determined therefore that an assessment of SUC’s knee was required but did not take place.

561. On that basis, the Panel found this Sub-Particular proved.

Resumed hearing: 24 September 2019

562. At the close of the fact-finding stage, the Panel went into private session and made their decision on the facts. The determination was conveyed to the parties in July 2019 and the hearing was resumed on 24 September 2019. Neither the Registrant nor his representative were in attendance.

Service

563. The Panel was provided with documentation which showed that Notice of the resumed hearing commencing 24 September 2019 had been sent to the Registrant’s registered address on 14 June 2019 by first class post. The Panel accepted the advice of the Legal Assessor and was satisfied that service had been effected in accordance with Rules 3 and 6.

Proceeding in absence

564. Ms Sheridan, on behalf of the HCPC, applied for the Panel to proceed in the absence of the Registrant. She reminded the Panel that the resumed hearing date had been announced in open hearing at the close of the last hearing date, in the presence of both the Registrant and his legal representative. She informed the Panel that the Registrant had not corresponded or engaged with the HCPC since then. On 29 August 2019, the HCPC had received correspondence from the Registrant’s legal representatives to say that they were no longer instructed and that all further correspondence should be sent directly to the Registrant. Since then, the Notice of Hearing had been sent to the Registrant by post to his registered address and also by email. Ms Sheridan said that she had spoken to the HCPC Case Manager, who had confirmed that the Registrant had not responded or sent in any further documentation. Ms Sheridan submitted that the Registrant’s absence was voluntary and deliberate and that the hearing should proceed without him.

565. The Panel took into account the HCPTS Practice Note entitled “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor, who reminded the Panel of the guidance given in the cases of R v Jones [2003] 1 AC 1, Tait v The Royal College of Veterinary Surgeons [2003] UKPC 34, and GMC v Adeogba [2016] EWCA Civ 162, and advised that the discretion to proceed in the absence of a registrant should be exercised with the utmost care and caution.

566. The Panel concluded, from the fact that the resumed hearing date had been announced on the last occasion, together with the fact that rules of service had been complied with, that the Registrant’s absence from the resumed hearing was deliberate and voluntary. He had not requested an adjournment and there was no indication that an adjournment would secure his attendance at a future date. The Panel took into account the potential disadvantage to him if the hearing were to proceed in his absence. However, the Panel was satisfied that it was in the public interest to proceed expeditiously.

567. Accordingly, having balanced the relevant factors, the Panel decided to proceed in the absence of the Registrant.

Decision on Grounds

568. Ms Sheridan submitted that the findings of the Panel, which had included deliberate, sexually motivated behaviour, amounted to misconduct.
569. The Panel accepted the advice of the Legal Assessor, who advised the Panel that in considering misconduct the Panel should ask whether, in its judgement, the Registrant’s behaviour, as found proved, had fallen seriously below the standards required of a physiotherapist in the circumstances, and whether it would be regarded as deplorable by fellow practitioners. She took the Panel to the cases of Roylance v General Medical Council No 2 [2001] 1 AC 311 and Nandi v GMC [2004] EWHC 2317. She advised that if the Panel found that the Registrant was able to meet the relevant standards, yet failed to meet them due to acting recklessly or deliberately, this would amount to misconduct rather than lack of competence. The Panel was aware that the issues of both misconduct and lack of competence were matters for the Panel’s professional judgement.

570. The Panel had concluded at the fact-finding stage that the Registrant was a highly knowledgeable physiotherapist. This was clearly not a case in which the Registrant had been incapable of reaching the standards expected of him. The Panel concluded that a finding of lack of competence was inappropriate in the circumstances of this case.

571. However, the Panel concluded that the Registrant’s sexually motivated behaviour, both in relation to each individual Particular, and cumulatively, amounted to misconduct. His conduct had been deliberate. It had extended to 11 Service Users and had formed a pattern of behaviour. The Panel agreed with Ms Sheridan’s submission that members of the profession would describe the Registrant’s conduct as deplorable, predatory, and a clear breach of the trust placed in him by his patients, his employer, and his Regulator, and had fallen well below the standards of a physiotherapist.

572. In reaching its conclusion, the Panel reminded itself that the Registrant’s actions had had a significant and lasting impact on each service user. SUD said she had been left feeling shocked, violated, and that her “whole life had been broken”, requiring her to undertake therapy. SUF had said that she could no longer visit a medical professional when unaccompanied. SUH had not returned for further physiotherapy due to her loss of confidence. SUC had described how her trust in medical professionals had been wholly undermined. SUJ had described feeling let down by the physiotherapy department. SUA had not returned to the NHS for any further physiotherapy treatment. In relation to the service users whose evidence had been read rather than given in oral evidence, SUB had sought advice from other physiotherapists in light of her experience, and Service Users E, G, I, and K all described feeling violated.

573. In reaching its decision, the Panel found the following HCPC Standards of Conduct, Performance and Ethics (2012) had been breached:

• Standard 1: You must act in the best interests of service users;
• Standard 3: You must keep high standards of personal conduct;
• Standard 7: You must communicate properly and effectively with service users and other practitioners;
• Standard 9: You must get informed consent to provide care or services (so far as possible).

574. The Panel also concluded that the following HCPC’s Standards of Proficiency for Physiotherapists (2013) had been breached:

• Standard 2: be able to practise within the legal and ethical boundaries of their profession
• Standard 3: be able to maintain fitness to practise
• Standard 5: be aware of the impact of culture, equality and diversity on practice
• Standard 8: be able to communicate effectively

Decision on Impairment

575. The Panel accepted the advice of the Legal Assessor, who set out the criteria in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Paula Grant [2011] EWHC 927, and encouraged the Panel to ask whether the Registrant:

• Has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

• Has in the past and/or is liable in the future to bring the profession into disrepute; and/or

• Has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession.
576. The Legal Assessor reminded the Panel to question, in accordance with the case of Cohen v General Medical Council [2008] EWHC 581, whether the Registrant’s conduct is easily remediable, whether it has been remedied, and whether it is highly unlikely to be repeated, and in so doing, to examine whether or not he has demonstrated insight into his past behaviour. She also advised the Panel to consider the critical public interest issues set out in the cases of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Paula Grant [2011] EWHC 927 and Yeong –v- GMC [2009] EWHC 1923. She urged the Panel to consider the Practice Note provided by the HCPTS entitled “Finding that Fitness to Practise is ‘Impaired’”.

577. The Panel took into account the submissions made by Ms Sheridan, who submitted that the Registrant had not provided any evidence of remediation or insight and that his fitness to practise is impaired.

578. The Panel accepted that the Registrant is a man of hitherto good character. However, he had continued to deny the allegations of sexually motivated behaviour throughout the hearing and had not attended to provide any evidence of remediation, insight, or remorse. The Panel concluded that there was a total lack of evidence of remediation, insight, or remorse and that there is a high risk that the Registrant will repeat his misconduct. The Panel concluded that the Registrant’s fitness to practise is impaired under the personal component.

579. The Panel further concluded that the Registrant’s fitness to practise is impaired under the public component. The seriousness of the misconduct and, in particular, the Registrant’s sexually motivated behaviour, led the Panel to conclude that the need to declare and uphold proper standards of behaviour and to maintain confidence in the profession and its regulator required a finding of impairment in this case. The nature and number of incidents of sexually motivated behaviour which had been found proved by the Panel meant that public confidence and trust in the profession, together with the upholding of standards, would be gravely diminished if no finding of impairment were to be made in the circumstances.

580. The Panel concluded that the Registrant presented a risk to service users, had brought the profession into disrepute, and had breached the fundamental tenets of the profession.

581. Accordingly, the Panel found the Registrant’s fitness to practise to be currently impaired.

Decision on Sanction

582. Ms Sheridan submitted that the Registrant’s actions had involved predatory behaviour and a clear breach of trust in relation to 11 female patients. She took the Panel to the HCPC Sanctions Policy, and in particular the paragraphs dealing with breach of trust, predatory behaviour, and sexual misconduct.

583. The Panel accepted the advice of the Legal Assessor, who urged the Panel to consider the range of available sanctions in ascending order of seriousness, starting with the option of taking no action. She advised the Panel to consider any aggravating and mitigating factors in the case. She advised that the purpose of sanction is not to be punitive, but is to protect the public, maintain public confidence in the profession, and declare and uphold proper standards of conduct and behaviour. She advised the Panel to act proportionately, balancing the interests of the Registrant with those of the public. She directed the Panel to the HCPC Sanctions Policy, and to the case of Arunachalam v General Medical Council [2018] EWHC 758, in particular to paragraph 34 of the judgement, where it was said that: “Sexual misconduct is self-evidently always serious and often likely to lead to erasure, even for a first time offender”.

584. The Panel considered that the Registrant’s behaviour was mitigated by his previous good character, combined with the testimonials that had been submitted on his behalf.

585. The Panel considered that his misconduct was aggravated by the following features:

• the behaviour had been sexually motivated;
•
the Registrant had embarked on a deliberate course of conduct;

• 11 service users had been targeted;

• psychological harm had been incurred by many of them;

• the behavior had been predatory;

• there had been a clear breach of trust;

• the Registrant had demonstrated no remediation, remorse, or insight into his sexually motivated behaviour.

586. The Panel concluded that, in view of the seriousness of the case, to take no further action or to impose a Caution Order would be insufficient to protect the public or the wider public interest.

587. The Panel also concluded that a Conditions of Practice Order would be insufficient and inappropriate in the light of the nature of the sexually motivated behaviour, which was by its nature difficult to remediate, combined with the Registrant’s lack of insight.

588. The Panel considered a Suspension Order. The Panel took into account the Registrant’s previous good character. However, the Panel had concluded in its findings on impairment that the risk that the Registrant would repeat his misconduct was high. There was no evidence of remediation, insight, or remorse, and sexually motivated behaviour is by its nature difficult to remediate. The Registrant’s predatory behaviour had involved an abuse of trust in relation to numerous service users. In light of these factors, the Panel concluded that a Suspension Order would be insufficient to protect the public or uphold standards of behaviour and maintain confidence in the profession and its regulator.

589. In all the circumstances, the Panel concluded that a Striking Off Order was the only sufficient, proportionate, and appropriate sanction to impose. The Registrant had continued to deny sexually motivated behaviour which had amounted to a deliberate course of action in relation to 11 women whilst working as a physiotherapist. He had shown no remediation, remorse, or insight into his behaviour. It was the judgement of the Panel that he remains a high risk to the public, and only a Striking Off Order was sufficient to protect the public from him. Furthermore, a Striking Off Order was required to declare and uphold proper standards of behaviour and to maintain confidence in the profession and its regulator.

 

 

 

 

 

Order

That the Registrar is directed to strike the name of Mr Thirunavukkarasu Selvaraj from the Register on the date this order comes into effect.

Interim Order

600. Following the announcement of the sanction and the Registrant’s right of appeal, Ms Sheridan applied for an Interim Suspension Order.

Proceeding in absence

601. The Panel was satisfied that it was appropriate to consider the HCPC’s application for an interim order in the absence of the Registrant, because he had been informed by the Notice of Hearing sent to him that such an application might be made.

The application

602. The Panel was satisfied that the risk of repetition is significant, and the harm that could result were there to be a repetition could be serious. Accordingly, the Panel was satisfied that it is appropriate to direct that the Registrant’s registration be suspended on an interim basis to cover the period of any possible appeal. The interim order is required for protection of the public and is in the wider public interest. The Panel concluded that the appropriate length of the Interim Suspension Order should be 18 months, as it would be required pending the resolution of any appeal made by the Registrant.

603. The Panel therefore 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; or (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.

History of Hearings for Mr Thirunavukkarasu Selvaraj

Date	Panel	Hearing type	Outcomes / Status
24/09/2019	Conduct and Competence Committee	Final Hearing	Struck off