Mr James Fenwick

Profession: Physiotherapist

Registration Number: PH95429

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 02/12/2021 End: 17:00 02/12/2021

Location: This hearing is being held remotely via video conference.

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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

 

Allegation

As a registered Physiotherapist (PH95429) your fitness to practise is impaired by reason of misconduct. In that:

 

1. On 15 May 2019:

 

  1. You told Service User A that it looked like she had succeeded in losing weight, adding “You’re looking in good condition”, or words to that effect;

  2. You asked Service User A whether her three children were all planned, or words to that effect;

  3. Whilst massaging Service User A’s feet you said “I’ll go deep on you next week” then paused whilst looking at Service User A, then added the following “working on those calves”, or words to that effect;

  4. You made the following statement “I want to get on top of you”, you paused and then added the following, “in top of your pain”, or words to that effect;

  5. You asked Service User A “if the massage felt nice”, or words to that effect;

  6. You recommended that Service User A should wear shorts for her next appointment, advising that this would help with the assessmenet of her gait, but also so you “could go deep on her”, or words to that effect;

  7. You said to Service User A that she should come to her next appopintment with “polished nails for James” or words to that effect;

  8. You made intense eye contact throughout your appointment with Service User A, whilst making the statements set out in allegations 1a to 1g.

 

2. [NOT PROVED]

 

3. [NOT PROVED]

 

 

5. In or around October 2017:

 

  1. You commented that Service User D had “exquisite quads”, or words to that effect;

  2. At the end of the appointment, you stood over Service User D whilst she was lying down with your hands on each side of her head in a suggestive position making Service User D feel uncomfortable.

 

6. Your conduct in relation to allegations 1,2,3 and/or 5 was sexually motivated.

 

7. The matters set out in allegations 1, 2, 3, 5 and 6 above constitutes misconduct.

 

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

Finding

Preliminary issues

 

1. Ms Sampson informed the Panel that paragraph 54 of the decision of the panel at the substantive hearing dated 4 June 2021 erroneously recorded that the Registrant had an unblemished character as a practitioner. In fact, the Registrant was subject to HCPC proceedings in relation to an allegation of a similar nature in 2017 which resulted in a finding of fact in relation to a single particular but not misconduct. The panel at the final hearing in June 2021 in relation to the current proceedings was made aware of the previous proceedings in 2017 and made their decision in the light of that knowledge.

 

Background

 

2. The Registrant is a self-employed physiotherapist, who worked from his own practice (Redcar Physiotherapy) from 2012. The HCPC received a referral on 17 May 2019 in relation to his conduct during an appointment on 15 May 2019. The complainant, Service User A, accused him of making inappropriate comments during the appointment. When Service User A discussed her experience with work colleagues, it came to light that Service User D had also felt uncomfortable at an appointment with the Registrant due to his inappropriate comments and behaviour. The referral to the HCPC resulted in these proceedings.

 

3. The substantive hearing took place before a panel of the Conduct and Competence Committee on 1 to 4 June 2021.

 

4. The panel found the facts proved in respect of those particulars of allegation set out above. The Registrant’s fitness to practise was found to be impaired by reason of his misconduct, having regard to both personal and public interest considerations.

 

5. The panel imposed a Suspension Order for a period of 6 months.

 

6. The panel at the substantive hearing advised the Registrant that a future reviewing panel might be assisted by the following:

  • The Registrant providing a written piece reflecting on the findings of the substantive hearing;

  • The Registrant attending the review hearing;

  • The Registrant providing testimonials with regard to any paid or unpaid work he has undertaken;

  • Evidence of any CPD undertaken by the Registrant.

 

Decision
 
7. The Panel today was provided by the HCPC with a bundle of documents including the decision of the panel at the substantive hearing.
 
8. In addition, the Panel received from the Registrant a bundle of documents containing the following:
 

  • A reflective statement;

  • A witness statement detailing what he has done during the period of his suspension by way of attending relevant courses relating to professional conduct and how he would conduct himself towards service users in the event that he is able to return to practice as a physiotherapist;

  • Certificates of training undertaken in Professional Boundaries, Managing Lone Workers, Safeguarding Designated Person.
     

9. The Panel heard oral evidence from the Registrant in which he elaborated on his witness statement and reflective statement and answered questions from Ms Sampson and the Panel. Whilst accepting the findings of the panel at the final hearing that his misconduct had been sexually motivated, on being questioned further by the Panel, the Registrant characterised his communications with the service users as “banter’ and “too familiar”.
 

10. On behalf of the HCPC, Ms Sampson acknowledged that the Registrant had shown evidence of remorse, insight and remediation in relation to the concerns identified at the substantive hearing. Ms Sampson accepted that the Registrant had demonstrated in his evidence and supporting documents that he had acted appropriately on the recommendations of the panel at the substantive hearing in preparation for today’s review hearing. However, she asked the Panel to consider whether the Registrant had yet achieved full insight into the fact that his misconduct had been identified as sexually motivated, the seriousness of that finding and the negative impact of such misconduct on female service users.
 

11. In summary, Ms Sampson on behalf of the HCPC adopted a neutral stance as to whether the Registrant’s fitness to practise remains impaired. She submitted that, if the Panel considered that his fitness to practise remained impaired, it might consider the imposition of a short Conditions of Practice Order.
 

12. Mr Jolliffe submitted that the Registrant’s fitness to practise is no longer impaired and asked the Panel to revoke the Suspension Order with immediate effect.
 

13. The Panel took into account the HCPTS Practice Note “Review of Article 30 Sanction Orders” and accepted the advice of the Legal Assessor.
 

14. The Panel acknowledged that the Registrant had reflected upon the findings of the substantive hearing during his period of suspension and had responded appropriately to the recommendations of the panel at the substantive hearing as to the steps which he needed to take prior to this review. However, the Panel considered that the Registrant had not yet gained full insight into the serious nature of the findings against him, as demonstrated by his characterising his sexually motivated conduct and communications with female service users as “banter” and being “over familiar”. In the absence of the Registrant having achieved full insight into the seriousness of his misconduct, the Panel considered that there was a risk of repetition and that accordingly his fitness to practise remains impaired in relation to both the personal and public interest components.
 

15. The Panel went on to consider what sanction, if any, to impose on the expiry of the current Suspension Order. The Panel took into account the submissions of Ms Sampson for the HCPC and Mr Jolliffe for the Registrant. The Panel was mindful of the HCPC’s Indicative Sanctions Policy and accepted the advice of the Legal Assessor.
 

16. The Panel accepted the submission by Ms Sampson that the appropriate and proportionate sanction would be a short Conditions of Practice Order. This would permit the Registrant to return to practice whilst providing suitable safeguards to female patients pending a further review of the development of his insight and full remediation of his practice.
 

17. The Panel decided to impose a Conditions of Practice Order for a period of 6 months in the following terms:
 

  1. Within one month of the commencement of this order, you must enroll and participate with a private physiotherapy practitioners clinical interest group that is recognized by the Chartered Society of Physiotherapy and provide evidence of your enrolment and participation to the HCPC.

  2. Within one month of the commencement of this order you must provide the HCPC with a copy of your current revised and updated risk assessment and screening policy.

  3. Not later than 14 days before the next review of this order, you must provide the HCPC with a record of all the female service users whom you have treated since the commencement of this order together with signed consent forms that they have been offered the opportunity of being accompanied at appointments by a chaperone either of their own choosing or provided by your practice.

  4. Prior to the next review hearing, you must provide a further written piece on your understanding of why your conduct was deemed by the panel at the final hearing to be sexually motivated and the negative impact of that conduct on the service users and the profession at large.

 

18.  A future reviewing panel might be assisted by the following:

 

  • Your attendance at the hearing;

  • Evidence of up to date CPD;

  • Testimonials as to your character and conduct as a physiotherapist.

Order

Order: On the expiry of the Suspension order, the Registrar is directed to annotate the Register to show that, for a period of 6 months from the date this Order comes into effect, you, Mr James Fenwick, must comply with the following conditions of practice:

1. Within one month of the commencement of this order you must enroll and participate with a private physiotherapy practitioners clinical interest group and provide evidence of your enrolment to the HCPC.

 

2. Within one month of the commencement of this order you must provide the HCPC with a copy of your current revised and updated risk assessment and screening policy.     

 

3. Not later than 14 days before the next review of this order, you must provide the HCPC with a record of all the female service users you have treated since the commencement of this order together with written signed evidence that they have been offered the opportunity to be accompanied by a chaperone either of their own choosing or provided by your practice.   

 

4. You must provide a further written piece on your understanding of why your conduct was deemed by the panel at the final hearing to be sexually motivated and the negative impact of that conduct on the service users and on the profession at large.

Notes

The Order imposed today will apply from 2 January 2022.
This Order will be reviewed again before its expiry on 2 July 2022.

Hearing History

History of Hearings for Mr James Fenwick

Date Panel Hearing type Outcomes / Status
31/05/2022 Conduct and Competence Committee Review Hearing Hearing has not yet been held
02/12/2021 Conduct and Competence Committee Review Hearing Conditions of Practice
01/06/2021 Conduct and Competence Committee Final Hearing Suspended