1. The Panel was satisfied that the Registrant had been properly served with Notice of Hearing in accordance with the Rules by letter dated 19 October 2019.
2. Mr Foxsmith made an application for the hearing to proceed in the absence of the Registrant under Rule 11. The Panel was informed that the Registrant had applied for an adjournment of the hearing on the grounds that he was unfit to attend by reason of his health.
3. The Panel was provided with a bundle of documents relating to the Registrant’s application for an adjournment from which the Panel derived the following background information:
• The substantive hearing was first listed for hearing before a panel of the Conduct and Competence Committee on 8 July 2019. The Registrant did not attend that hearing and the Presenting Officer, Mr Foxsmith, made an application to proceed in the Registrant’s absence. He advised the panel that on 24 June 2019 the Registrant had submitted an application to adjourn the hearing on the grounds of ill health, which was supported by a generic certificate from the Registrant’s General Practitioner stating that the Registrant was “too ill to attend Tribunal hearing”. That application had been refused by the HCPTS on 5 July 2019. Mr Foxsmith advised the panel that the Registrant had not responded to the HCPC’s email asking if he could participate in the hearing in any other way such as by telephone or video link. He further advised that counsel appointed by the HCPC had been unable to make contact with the Registrant. In the absence of any further information, the panel decided to proceed in the Registrant’s absence
• On the morning of day four of that hearing (11 July 2019), the panel was provided by the HCPC with a letter from the Registrant’s General Practitioner dated 10 July 2019, which provided significantly more medical information in support of the adjournment application. The panel was advised that the Registrant had emailed a letter to the HCPC on 8 July 2019 expressing concern that he had only been notified of the decision to refuse his adjournment application on Friday 5 July 2019 despite the fact that he had complied with the requirements set out in the HCPTS Practice Note on Postponement and Adjournment of Proceedings and was then advised that the earliest urgent GP appointment he could access was on 11 July 2019. The panel was concerned that it was not made aware of the correspondence received by the HCPC from the Registrant on 8 July 2019 until 11 July 2019. The panel was of the view that, had it had sight of the Registrant’s letter on the morning of 9 July 2019, it would have reconsidered its decision to
proceed in the Registrant’s absence. In addition, the panel considered that the letter from the Registrant’s GP dated 10 July 2019 provided further evidence in support of an adjournment application and met the requirements set out in case law.
• The panel considered that it would create potential injustice to the Registrant to proceed with the hearing and therefore decided to recuse itself.
4. The Registrant was notified by the HCPC of the new hearing date in October 2019. By email dated 30 December 2019 the Registrant notified the HCPC that he would be unable to attend the hearing due to health reasons and advised that he would forward further medical evidence in due course. Following a reminder by the HCPC, on 9 January 2020 the Registrant emailed a letter from his GP dated 19 December 2019 to the HCPC in support of his application for an adjournment. The Registrant’s application for an adjournment and the GP letter dated 19 December 2019 were put before the Panel Chair to consider on 13 January 2020. By email dated 14 January 2020, at the request of the Panel Chair, the HCPC asked the Registrant to provide further information in support of his application for an adjournment, in particular:
• Details of his current work as a physiotherapist
• With regard to his health, evidence of a diagnosis, if any, and a prognosis; copies of his GP’s medical notes between July 2019 and the present time; details of his medication since July 2019
• Evidence of any contact he had had with any mental health practitioners since July 2019
• Information about his efforts to secure psychological therapies (and, if so, what sort) since July 2019.
5. By return email dated 14 January 2020 the Registrant advised the HCPC that, following the request from the Panel Chair, he had requested the medical notes but had been advised that this could take between one and two weeks to be actioned.
6. In a follow up email on 15 January 2020, the Registrant advised that, as a result of some preliminary contact with the Mental Health Team, it had been mentioned to him that he “suffered from XXXX and needed treatment”. He also sent independent confirmation from a colleague that he was currently working three full days and two half days per week seeing on average five to eight patients per day.
7. By email dated 16 January 2020 the HCPC, at the request of the Panel Chair, asked the Registrant to respond to some further questions:
• In relation to his current medication
• To explain whether the HCPC’s proposals that he could attend by videolink/telephone plus availability of breaks, would assist him to attend the hearing
• To explain why he had not made efforts to secure assistance other than via his GP or other NHS avenues since he began to feel so unwell
• The Registrant was reminded that the HCPC had instructed a special advocate to act on his behalf in asking any questions of the HCPC witnesses
8. By return email to the HCPC dated 16 January 2020 the Registrant stated that special measures would not address his issues or enable him to participate in the hearing.
9. On 16 January 2020 the Panel Chair refused the Registrant’s application for an adjournment and gave her written decision.
10. By emailed letter dated 20 January 2020 the Registrant responded to the decision to refuse his application for adjournment, in which he stated that:
• He had good reasons to believe that the letter dated 19 December 2019 would be sufficient medical evidence to support his application for an adjournment
• It was always his intention to make his application for an adjournment and to provide supporting medical evidence in a timely manner. However, for reasons beyond his control, he was unable to provide the GP letter to the HCPC until 9 January 2020
• He wished to renew his application for an adjournment before the full Panel
11. The Panel considered very carefully the Registrant’s application for an adjournment.
12. The Panel noted that the letter from the GP dated 19 December 2019 to a large extent replicated the information contained in the GP letter dated 10 July 2019 and provided very little additional information. The only other independent medical evidence related to the fact that the Registrant had been prescribed medication for his condition since July 2019 and that the dosage had been increased in December 2019.
13. The Panel was referred to and took into account the dicta of Norris J in the case of Levy v Ellis-Carr  EWHC 63, as approved in subsequent cases by the Court of Appeal, as to what might reasonably be required of medical evidence in support of an application to adjourn a hearing.
14. In the Panel’s judgement, the GP letter dated 19 December 2019 fell short of demonstrating that the Registrant was unable to attend and participate in the hearing, in particular:
• The letter provided no details of the GP’s familiarity with the Registrant’s condition or of recent consultations
• It did not identify the nature of the Registrant’s medical condition
• It did not identify the features of the condition that would prevent the Registrant from participating in the hearing
• It did not provide a recent prognosis
• There was no basis for concluding that it provided an independent opinion after a proper examination that the Registrant was unable to participate in the hearing as a Physiotherapist despite his health concerns.
15. In conclusion, the Registrant had failed to satisfy the Panel that he had adequate grounds for his failure to attend the hearing.
16. With regard to the application by Mr Foxsmith in support of his application to proceed with the hearing in the absence of the Registrant, the Panel also took into account the HCPTS Practice Note on Proceeding in Absence of a Registrant and accepted the advice of the Legal Assessor. The Panel took into account all the circumstances and, in particular, the following matters:
• The allegations in this case date back to 2008/2009 and there is a public interest in the proceedings being determined without further delay
• Three witnesses are available to give evidence, two of whom are vulnerable witnesses
• The hearing of this case has already been adjourned once and there is a risk that, if it is adjourned again, the two vulnerable witnesses might be reluctant to attend again
• The HCPC has taken all reasonable steps to contact the Registrant and has appointed counsel to conduct the cross-examination of the HCPC witnesses and has offered him other means of participating in the hearing
• The Registrant had provided no independent medical evidence regarding his condition
• The Registrant was currently able to work three full days and two half days per week.
17. In all the circumstances, the Panel decided that it was in the interests of justice to proceed with the hearing in the absence of the Registrant.
18. The Registrant is a self-employed physiotherapist at his own physiotherapy practice.
19. On 17 October 2013 Patient A, a former service user treated by the Registrant, made a referral to the HCPC in respect of the Registrant’s conduct during treatment sessions. She stated that she had been treated by the Registrant for lower back pain dating from 23 September 2013. She alleged that over the course of the physiotherapy sessions, the Registrant became progressively emboldened in his behaviour and the treatment she received gradually involved an increased focus on her genital area. Patient A also alleged that her state of undress increased with each session. The treatment allegedly included inappropriate touching of her vagina and, in the final session on 14 October 2013, the Registrant allegedly massaged her exposed genitals which moved the wall of her vagina and inserted acupuncture needles in the very bottom of her labia. Patient A also informed the HCPC that she had been interviewed by Humberside Police in relation to her allegations.
20. The police investigated Patient A’s allegations and in due course the Registrant was charged with offences of sexual assault.
21. Following reports of the criminal case in local newspapers, Patient B also came forward to the police in about April 2016. She raised concerns about the treatment which she had received from the Registrant in 2008/2009, in which she alleged that he had removed her underwear during treatment, exposing her genitalia.
22. The police obtained expert evidence reports from Leah Macauley to advise on the appropriateness, or otherwise, of the Registrant’s treatment of Patient A and Patient B.
23. The criminal trial took place at the Crown Court between 20 February 2017 and 8 March 2017, when the Registrant was acquitted,
24. Following the outcome of the criminal proceedings, the HCPC carried out its own investigation, resulting in the current proceedings.
The evidence in the case
25. The HCPC provided the Panel with a bundle of documents, including the statements and exhibits of Patient A, Patient B and the expert witness reports of Leah Macauley. The bundle also included the statements obtained by the police from Patients A and B, the records of police interviews with the Registrant and extracts from the transcript of the criminal proceedings in the Crown Court.
26. The first witness to give evidence was Patient A. The Panel found her evidence to be clear and entirely credible. She gave a vivid and detailed account of the treatment that she had received from the Registrant. The Panel noted that Patient A had first given a written account to the HCPC on 17 October 2013 within three days of the final treatment session with the Registrant. Her evidence to the Panel was entirely consistent with her earlier accounts to the HCPC, to the police and at the Crown Court. The Panel accepted the evidence of Patient A in its entirety.
27. Patient B gave her evidence to the Panel by video link. Notwithstanding the passage of time since her treatment by the Registrant, the Panel found that she had a very clear and detailed recollection of her treatment by the Registrant. She stated that she attended a number of sessions where she had no concerns about his treatment. She stated that he was the best physiotherapist that she had had. She said he appeared to be very knowledgeable and was good at explaining things. However, at the last session, at which he had removed her knickers for no apparent reason and exposed her genitalia, she had felt violated. She had immediately told her husband and her best friend what had happened to her. She stated that she was so traumatised that for years afterwards she had not sought any further treatment despite suffering from chronic back pain. She had felt too embarrassed and traumatised to make an official complaint until she discovered from a newspaper report that other women had suffered similar treatment, which was the subject of criminal charges against him.
28. The Panel was of the view that Patient B’s delay in coming forward as a witness was understandable and credible. The Panel accepted the evidence of Patient B in its entirety.
29. Ms Macauley gave expert evidence, which was clear and detailed. Her evidence was balanced and she readily acknowledged where she considered the Registrant’s treatment to have been appropriate. She had given due consideration to the Registrant’s reliance on a particular text book and was able to give informed answers to the Panel’s questions in that regard. The Panel accepted her evidence.
30. The Panel had due regard to the evidence given by the Registrant when interviewed by the police and in the course of his trial at the Crown Court.
Burden and standard of proof
31. The Panel was mindful that the burden of proof was on the HCPC and that the civil standard of proof applied, so the particulars of the allegation must be proved on the balance of probabilities.
32. The Panel took into account submissions of Mr Foxsmith on behalf of the HCPC. The Panel accepted the advice of the Legal Assessor.
33. When considering what facts, if any, were proved, the Panel drew no adverse inference against the Registrant by reason of his non-attendance and simply considered the available evidence before it.
The Panel’s findings of fact
On or around 23 September 2013, during an appointment with Patient A, you:
a. Lowered Patient A’s underwear and/or asked Patient A to lower her underwear to below her buttocks, exposing Patient A’s genitals. - Proved
b.Touched Patient A’s exposed genitals. - Proved
34. With regard to particular 1a, Patient A gave evidence that she had first attended the Registrant for treatment for lower back pain on 23 September 2013. In the course of treatment, he asked whether he could lower her trousers and underwear so as to get to the muscles in her bottom where he performed acupuncture and massage. He gradually lowered her underwear, so that by the end of the session, when he was working on muscles in her groin, her underwear was lowered to an inch or so below her bottom. As she lay on her front, he moved his fingers so that they were working the muscle in her groin and her vagina was exposed.
35. The Registrant when interviewed about this session did not deny that he had lowered Patient A’s underwear in this way and that her genitals might have been exposed but claimed that this was clinically justified. He stated that if he had touched her exposed genitals, such touching was accidental.
36. In effect Patient A’s account was uncontested and accordingly particulars 1a and 1b were proved.
On or around 2 October 2013, during an appointment with Patient A, you:
a. Lowered Patient A’s underwear and/or asked Patient A to lower her underwear to below her buttocks, exposing Patient A’s genitals. - Proved
b. Touched Patient A’s exposed genitals. 6 - Proved
c. Moved Patient A’s underwear to one side, exposing her genitals. - Proved
37. Patient A gave evidence that at this session the Registrant massaged her back for a very limited time and then attended to her bottom. With her permission, he lowered her underwear, which he continually lowered until it was down below her bottom. Whilst she was on her front, he inserted needles into her groin brushing his hand over her naked vagina. By the end of the session, Patient A was lying on her back and the Registrant was massaging her with one hand on the pubic area of her vagina. On inserting needles into her groin, his hand touched her naked vagina. The Registrant moved her knickers to one side exposing her genitals and inserted needles in her groin.
38. The Registrant’s response when interviewed was that the lowering of Patient A’s underwear was clinically justified and any touching of her vagina was inadvertent.
39. The Panel found particulars 2a, 2b and 2c proved.
On or around 14 October 2013, during an appointment with Patient A, you:
a. Lowered Patient A’s underwear and/or asked Patient A to lower her underwear to her knee level, exposing Patient A’s genitals. - Proved
b. Touched Patient A’s exposed genitals. - Proved
c. Massaged Patient A’s exposed genitals. - Proved
40. Patient A gave evidence that she told the Registrant at the outset of this session that she her back pain had almost completely resolved and it was understood that this would be her last session. She said that, as at the previous sessions, the Registrant lowered her knickers by degrees, so that they ended up at her knee level and her genitals were exposed. His hand brushed against her naked vagina. At one point, when Patient A was lying face down, he started rubbing her groin close to the side of the opening to her vagina. He started vigorously massaging and her vagina wall was moving. She could hear the opening and closing of her vagina, as the room was so silent. After massaging her thighs, he then asked her to turn on her back. Her knickers were still down and her genitals were exposed and he massaged her pubic area. He encouraged her to open her legs, so he could get to the area he said he needed to work on, which she did. She said he placed a needle “at the bottom of my labia where it meets my groin on the left hand side”.
41. The Panel accepted Patient A’s evidence and found particulars 3a, 3b and 3c proved.
On or around 2 October 2013 and/or 14 October 2013 you performed Pectineus and/or Rectus Abdominus trigger point needling on Patient A without clinical justification. - Proved
42. Patient A gave evidence as to the fact that the Registrant performed this treatment, which was not disputed as a fact by the Registrant.
43. In the expert opinion of Ms Macauley this treatment was not clinically justified.
44. The Panel accepted Ms Macauley’s evidence and found particular 4 proved,
In or around 2008 and/or 2009, during an appointment with Patient B, whilst Patient B was laid on her back, you lifted Patient B’s trousers and underwear away from her body exposing her pubic region. - Proved
45. Patient B gave evidence in support of this particular. She stated that she had suffered from chronic back pain over a number of years and had previously undergone physiotherapy treatment from a number of practitioners. At her first session with the Registrant, after taking her history, he got her to lie down on the treatment bed. For no apparent reason, he lifted her trousers and underwear up, exposing her pubic region to his gaze.
46. The Panel noted that Patient B’s evidence in relation to this incident had been consistent throughout. The Registrant had denied that he did what is alleged at Particular 5. The Panel accepted her evidence and found particular 5 proved.
In or around 2008 and/or 2009, during an appointment with Patient B, removed Patient B’s underwear and/or asked Patient B to remove her underwear. - Proved
47. Patient B gave evidence that, at her final treatment session with the Registrant, when Patient B was on her front, he had tapped her knickers and said “can these come off?” There was no-one else in room. The door was closed. She said yes. He removed them completely. She said that she froze, feeling that what he had done was completely inappropriate. He asked her to change position. The Registrant asked “Do you trust me?” To which she replied “No, I don’t think I do”. She asked for her knickers back and he gave them to her. She told the Panel that she felt absolutely violated, embarrassed and “freaked out”.
48. She told her husband who was waiting for her in a car outside. She telephoned her best friend. The following day she spoke to a family friend who was an osteopath. She told the Panel that she did not seek any help for her back pain for years after this incident as she was so traumatised and had suffered by not seeking help. She said that she had not reported the incident to the police because she felt embarrassed and stupid that she had let it happen. When eventually she did report it to the police, she did so after seeing a report in a local newspaper that other women had complained of being victims of similar treatment by the Registrant. She explained that the passage of time made it feel less embarrassing to come forward and the fact that she was not the only one. Also her GP had told her that she should report the matter.
49. The Registrant had denied the fact alleged at Particular 6 took place, however, the Panel accepted Patient B’s evidence and found particular 6 proved.
Between October 2013 and December 2013 you retrospectively altered Patient A’s clinical records. - Proved
50. The Panel was provided with copies of the Registrant’s initial records for his treatment of Patient A which contained no notes regarding treatment, The Registrant was subsequently asked by the police to forward his clinical records for Patient A. When he did so, they contained detailed treatment notes. The Registrant admitted that he had altered Patient A’s records retrospectively. Accordingly, particular 7 is found proved.
Your actions at particulars 1, 2, 3, 5 and 6 were sexually motivated. - Proved
51. The Panel accepted the expert evidence of Ms Macauley that none of the actions by the Registrant described in these particulars was clinically justified and that, if the factual particulars were proved, he had contravened professional boundaries. In particular, she stated that there was no justification for the Registrant to expose the genitals of either Patient A or Patient B and that that by following proper procedures – for instance, by providing the patients with towels - there should have been no risk of his touching their naked genitalia.
52. The Panel noted that the Registrant had offered Patient A a chaperone during the course of a treatment session. This was after commencing treatment, when her underwear had already been removed. However, as confirmed by Ms Macauley, this offer should have been made after the Registrant had explained what the treatment would involve and before such treatment commenced.
53. The Panel noted the evidence of Patient A that the Registrant’s conduct had been inappropriate incrementally, as if he were testing the water to see how much he could get away with.
54. In relation to Patient B, the Panel took into account that the Registrant had completely removed her underwear and there was no chaperone in the room. Patient B stated that after her knickers were removed, the Registrant then went and opened the door to the treatment room and told the receptionist she could go home. Patient B said this left her feeling very vulnerable. Furthermore, Patient B stated that when she was face down with no underwear on, he asked her to move and it was at that point that she asked for her knickers back and he said “do you trust me” (or words to that effect). She said “no I don’t think I do” and the Registrant ended the session.
55. The Panel accepted the expert evidence of Ms Macauley that none of the actions by the Registrant described in Particulars 5 and 6 were clinically justified.
56. The Panel was satisfied on the evidence that the Registrant’s actions at particulars 1, 2, 3, 5 and 6 were sexually motivated. Accordingly, particular 8 is found proved.
Your actions at particular 7 were dishonest. - Proved
57. The Panel noted the Registrant’s explanation that he had been too busy to write up his clinical notes for Patient A at the time and had therefore written them up retrospectively when asked by the police to provide his records. However, the Panel found that the notes themselves did not provide a true account of the treatment which the Registrant had provided to Patient A and were deliberately misleading.
58. The Panel was satisfied that the Registrant’s actions were thereby dishonest and accordingly found Particular 9 proved.
59. The Panel went on to consider whether the facts found proved or any of them, amounted to misconduct or, alternatively in the case of particular 4, lack of competence.
60. The Panel was mindful that the question whether the proven facts constituted misconduct or lack of competence are matters for the Panel’s professional judgement, there being no standard or burden of proof.
61. In relation to particulars 1, 2 , 3, 4, 7, 8 and 9 in relation to Patient A, which occurred in 2013, the Panel found the Registrant to have been in breach of the following standards of HCPC Standards of Conduct, Performance and Ethics (2012):
• Standard 1: You must act in the best interests of service users
• Standard 3: You must keep high standards of personal conduct and work within the limits of your knowledge and skills
• Standard 13: You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession
62. In relation to particulars 5 and 6 and 8 in relation to Patient B, which occurred in 2008/2009, the Panel found the proven facts to be in breach of similar standards contained in HCPC Standards of Conduct, Performance and Ethics (2003), namely Standards 1, 3, 13 and 16.
63. The Panel considered that the Registrant’s conduct as a whole amounted to extremely serious breaches of the trusts that his patients had placed in him. It considered that the evidence as a whole suggested that he was fully aware of his patients’ trust in him and that he intentionally exploited the position of power this placed him in, in order to seek and gratify his sexual wishes.
64. Patient A said he seemed to explain to her in detail the reasons for what he was doing, seeking to reassure her and convince her that it was appropriate. He repeatedly said words of encouragement to her, which further served to reinforce his control of events. He went out of his way incrementally to obtain and confirm her consent to his conduct all the while abusing the trust she had placed in him. He used his skills and knowledge as a physiotherapist to do so. The Panel considered that he knew very well what he ought to be doing to preserve his patients’ dignity. For example, in his third session with Patient A, he provided her with a towel, but he incrementally lowered it along with her underwear until she was exposed.
65. His conduct with Patient B in removing her underwear altogether before asking her whether she trusted him was a clear abuse, in the Panel’s considered view of his position of trust as a health professional.
66. The Panel found each of these particulars to constitute misconduct and that such misconduct was extremely serious.
67. It follows that the Panel’s finding in relation to Particular 4 is that the conduct proved in that particular did not amount to lack of competence but to misconduct.
Decision on impairment
68. The Panel took into account the submissions of Mr Foxsmith. The Panel had regard to the HCPTS Practice Note on Finding that Fitness to Practise is Impaired and accepted the advice of the Legal Assessor.
69. In determining whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct, the Panel took into account both the “personal” and “public” components of impairment. The “personal” component relates to the Registrant’s own practice as a physiotherapist, including any evidence of insight and remorse and efforts towards remediation. The “public” component includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession and the Regulator.
70. With regard to the “personal” component of impairment, the Panel noted that the Registrant had denied any wrongdoing. He had shown no remorse or insight. The Registrant’s retrospective and dishonest altering of clinical records indicated a lack of probity on his part and an intention to conceal his wrong doing.
71. There was no evidence before the Panel that the Registrant had remediated his practice.
72. In the Panel’s judgement, there was a significant risk of repetition by the Registrant of his misconduct and, if permitted to practise without restriction, he would pose a continuing risk of serious harm to female patients. Accordingly, the Panel found the Registrant’s fitness to practise to be impaired having regard to the “personal” component.
73. The Panel also found the “public” component of impairment to be satisfied in this case. A member of the public, knowing of the Registrant’s sexually motivated misconduct towards female patients and his dishonest alteration of clinical records, would undoubtedly expect some restriction to be placed on his registration. Public confidence in the profession and in the regulator would be undermined if there were no finding of impairment.
Decision on sanction
74. The Panel’s decision on facts, statutory grounds and impairment was emailed to the Registrant at the close of the hearing on 22 January 2020. By the same email, the HCPC provided the Registrant with a copy of the Sanctions Policy and invited the Registrant to make submissions in relation to sanction. In response, by email dated 23 January 2020, the Registrant sent the following:
Ever wondered why a jury of 12 consisting of 7 women and 5 men unanimously reached the opposite but right and just decision as yourselves a panel of 3?
No not because of a different standard of proof but because they were presented with all the facts and evidence rather than a strongly redacted version of events which you relied on. Furthermore the trial was at least fair as I was allowed to present my case and witnesses were cross examined. I will give but one example but there are so many. Patient B alleges that her GP an independent witness told her to report her story. The police obtained a statement from him very shortly after this alleged conversation had taken place. He denied in it that such a conversation ever took place. This statement exist (sic) and is an undeniable fact. I could go on but that would mean I would have to relive it all and in my present state of mind that is not advisable.
This has been a complete miscarriage of justice. I am surprised why you want my response cause you clearly did not want to hear from me. By the way XXXX [medication] is a used for XXX [health condition] (sic). You did ask for my medication but why do that if you are unable to interpret it correctly.
That is all I would like to say on the matter at this stage.
Mr L Houtsnee”
75. The Panel took into account the above response from the Registrant and the submissions of Mr Foxsmith.
76. The Panel was guided by the HCPC’s Sanctions Policy and accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of a sanction is not to punish the Registrant but to protect the public and the wider public interest in upholding proper standards and maintaining the reputation of the profession. The Panel applied the principle of proportionality, balancing the interests of the Registrant with those of the public, and considered the available sanctions in ascending order.
77. By way of mitigation, the Panel took into account the evidence of Patients A and B that they considered the Registrant to be a very experienced and skilled physiotherapist. Indeed, Patient B described the Registrant as the best physiotherapist she had encountered.
78. The aggravating factors in this case are that:
• The proven facts involve serious breaches of trust and professional boundaries
• The facts found proved in respect of the Registrant’s behaviour when dealing with Patients A and B, separated by a passage of approximately five years, indicate a recurring pattern of sexual misconduct towards female patients
• The Registrant took advantage of, and abused, his professional status and the trust placed in him by Patients A and B to gratify his sexual wishes
• Patient B stated, and the Panel accepted, that she had been so traumatised by the Registrant’s sexual misconduct that her confidence in physiotherapists had been undermined to the extent that she had felt unable to seek treatment for her chronic back pain for many years after her final session with the Registrant and had thereby been caused suffering
• The Registrant has shown no remorse for his misconduct nor insight into the consequences of his misconduct for his patients nor indeed the consequences for the reputation of and confidence in his profession.
79. The Panel considered that the case is too serious for the Panel to take no further action.
80. Mediation is not relevant.
81. A Caution Order would not be effective to address the risk of repetition and the consequent risk to patients nor would it reflect the seriousness of the Registrant’s misconduct and dishonesty.
82. The Panel next considered whether it would appropriate to impose a Conditions of Practice Order upon the Registrant’s registration. It took account of the evidence before it regarding the Registrant’s attitude to the use of a chaperone. In particular, it noted the evidence of Ms Macauley (set out at paragraph 52 above) that an offer of a chaperone should be made after explaining the treatment proposed and prior to the commencement of such treatment; and the witness evidence of Patient A to the effect that he asked her whether she would like a chaperone after the treatment had already begun. Given the evidence before it, the Panel concluded that it could not be satisfied that the Registrant would abide by any conditions it might impose regarding the use of chaperones. In any case, the Panel considered that, taking into account the seriousness of the misconduct it has found in this case, repeated in relation to two female patients, a Conditions of Practice Order would not satisfy the public protection and public interest concerns which are raised.
83. The Panel considered whether to impose a Suspension Order but, in light of its conclusion as to the attitudinal nature of the Registrant’s misconduct, and the ongoing risk to female patients, the Panel decided that a Suspension Order would not be appropriate.
84. The Panel took account of paragraphs 76 and 77 of the HCPC’s Sanctions Policy which states as follows;
76. Sexual misconduct is a very serious matter which has a significant impact on the public and public confidence in the profession. It includes, but is not limited to, sexual harassment, sexual assault, and any other conduct of a sexual nature that
is without consent, or has the effect of threatening or intimidating someone. The misconduct can be directed towards:
• service users, carers and family members;
• colleagues; and
• members of the public.
77. Because of the gravity of these types of cases, where a panel finds a registrant impaired because of sexual misconduct, it is likely to impose a more serious sanction. Where it deviates from this approach, it should provide clear reasoning”.
85. The Panel also took account of paragraphs 130 and 131 of the HCPC’s Sanctions Policy which provides the following guidance in relation to Striking Off Orders:
“A Striking Off Order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:
• Lacks insight
• Continues to repeat the misconduct
• Is unwilling to resolve matters
86. In the Panel’s judgement all the indicative criteria for a Striking Off Order are present in this case.
87. Whilst the Panel took full account of the financial and other hardship to the Registrant, the need to protect the public and the wider public interest must take priority over the Registrant’s interests. The Panel concluded that the appropriate sanction is a Striking Off Order.