Mr Andy Adigwe

Profession: Physiotherapist

Registration Number: PH95379

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 22/02/2021 End: 17:00 26/02/2021

Location: Virtual hearing - Video conference

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Whilst registered as a Physiotherapist and whilst working as a locum Physiotherapist with Ashford and St. Peter's Hospital NHS Foundation Trust, you:

1.    On or around 15 March 2017, during your examination of Patient A's wrist and/or elbow:

a)    asked Patient A how old she was and after she informed you of her age made inappropriate comments in that you said:

i.    that you were 'amazed' as she 'did not look that old', or words to that effect;

ii.    that she 'looked good for her age', or words to that effect. asked Patient A to touch her toes;

c)     touched Patient A's upper right arm in an inappropriate manner in that you;

i.    pinched and/or moved the flesh on the back of Patient A's upper right arm;

ii.    said "it is bingo wings, that's what this is, it is what they call this  on women. It's funny isn't it? Bingo wings"; or words to that effect;

iii.    laughed as you acted as described in 1 (c)(i) and 1 (c)(ii)

d)     sat down next to Patient A and placed her right forearm on your lap with her hand close to your groin;

e)  placed your right hand around Patient A's her wrist and with pressure, moved your hand up and down her wrist in an action which imitated masturbation;

f)     during and/or following the action described at 1 (e) you asked Patient A "how is this for you? How does it feel for you?"

2.    Your conduct at paragraphs 1 (a), (b), and (d) - (f) above was sexually motivated.

3.   The matters set out in particulars 1 (a) - (f) above constitute misconduct.

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

Finding

Preliminary Matters

Service

1. There was before the Panel a certificate that notice of hearing, dated 9 November 2020, had been sent to the Registrant by email on that date. The notice confirmed the date and time of the hearing and that it would be conducted virtually via video conference.

2. The Panel accepted the advice of the Legal Assessor and was satisfied that the notice had been properly served in accordance with the applicable rules.

Proceeding in absence

3. At the outset of today’s hearing, the HCPTS Hearings Officer received a telephone call from the Registrant in which he said that he would not be participating in the hearing but would send by email a statement to be put before the Panel. The Hearings Officer informed the Panel that despite her having reiterated to the Registrant that he could participate, he repeated that he did not intend to do so. The Registrant did not ask for the matter to be adjourned nor did he say that he would participate on a future date if it were adjourned.

4. Mr Millin applied under Rule 11 of the Conduct and Competence Rules 2003 for the hearing to proceed in the Registrant’s absence. He said that there had been no response from the Registrant to the notice of hearing other than the telephone call to the Hearings Officer on the morning the hearing was due to start, followed by an email and attachments.

5. In reaching its decision the Panel had regard to the HCPTS Practice Note ‘Proceeding in the absence of the Registrant’. It also took into account what the Registrant had said in the course of the telephone call. It accepted the advice of the Legal Assessor.

6. The Panel decided that it was reasonable and in the public interest to proceed with the hearing despite the absence of the Registrant, for the following reasons:

i)  The Registrant in his telephone call stated that he would not be participating.

ii)  The Registrant did not ask for an adjournment and there was nothing to indicate that he would participate at any future date if the matter were adjourned. The Panel therefore concluded that to adjourn the case would serve no useful purpose.

iii)  The Panel was satisfied that in these circumstances the Registrants non-participation was voluntary and a deliberate waver of his right to attend.

iv)  Although there is a potential disadvantage to the Registrant in being unable to give evidence or to make oral submissions, there is before the Panel a statement made by the Registrant dated 21 August 2017 in the course of a police investigation, and a statement sent by him today in which he makes some representations.

v)  The HCPC is ready to proceed and witnesses are warned for today and tomorrow.

vi)  The Panel was satisfied that in the light of the nature of the allegations, there is a strong public interest in ensuring that this final hearing proceeds without delay. The Panel concluded that this outweighed any potential disadvantage to the Registrant.

Background

7. The Registrant worked as a locum Band 6 Physiotherapist at St Peter’s Hospital NHS Foundation Trust (‘The Trust’) from December 2016 until May 2017, when his contract was terminated.

8. On 15 March 2017 Patient A attended a consultation with the Registrant for treatment following an injury to her elbow. It is alleged that during the consultation, the Registrant made to Patient A inappropriate remarks of a personal nature, touched her arm in an inappropriate manner, placed her forearm on his lap with her hand close to his groin and moved his hand on her wrist in a manner imitating masturbation, whilst making inappropriate remarks. She had subsequently attended a further consultation with the Registrant on 6th April 2017.

9. At an appointment with a Band 8A Upper Limb Extended Scope Practitioner PS on 8 May 2017, Patient A expressed concerns about the Registrant’s actions during her consultation with her.

10. On 10 May 2017, as a result of the concerns raised by Patient A, the Registrant’s contract was terminated by the Trust.

11. An investigation into the matters alleged was instituted by the Trust but despite a number of requests via the locum agency for the Registrant to engage with the investigation, he did not respond.

12. There was a police investigation into the matters alleged, in the course of which the Registrant made a statement in writing dated 21 August 2017 denying the allegation of sexual misconduct. No further police action was taken following the investigation.

Submissions

13. Mr Millin’s submissions were made orally and by way of his skeleton argument. He said that the factual allegation could be established from the evidence of Patient A who was the sole witness as to fact. He submitted that Particulars 1(d)-(f) were explicitly sexual and that Particulars 1(a)(i)(ii) and 1(b) could be considered sexual in the light of the circumstances, having regard to the words spoken by the Registrant. He further submitted that the surrounding circumstances were such that the inference could be drawn that the Registrant’s actions were in pursuit of his sexual gratification and were therefore sexually motivated.

The Registrant in his written statement denied the allegation, specifically that in Particular 1(d)-1(e). He described Patient A as being unstable and racially motivated in her allegations.

Evidence

14. There was before the Panel a bundle of documents prepared by the HCPC containing witness statements and exhibits. Also before the Panel were the Registrant’s statements dated 21 August 2017 and 22 February 2021.

15. Three witnesses were called on behalf of the HCPC:

i) RP was clinical lead for Physiotherapy and Occupational Therapy in Orthopaedics and Musculoskeletal services at the Trust. Patient A’s allegations were reported to her by PS, to whom Patient A had informed her concerns about the Registrant’s actions towards her. RP was not a witness to the facts but on 11 May 2017 had met with Patient A who described her concerns. On 10 May 2017 RP had terminated the Registrant’s contract with the Trust in the light of the concerns reported to her by PS.

The Panel found RP to be a truthful witness, whose evidence was consistent with her witness statement and her notes made at the time of her meeting with Patient A. Her evidence was not embellished and she said that her recollection was to some extent affected by the passage of time.

ii) Patient A; the Panel found her evidence to be clear and consistent with her statements made in the course of the Trust’s investigation and that of the police. She appeared to have the incidents in the forefront of her mind and described what she had recorded of the words spoken by the Registrant as verbatim. She did not embellish her account and was reluctant to speculate. In regard to the matters raised by the Registrant in his recent statement, she denied fabricating her allegations by reason of racial bias or annoyance with the Registrant as a result of disappointment with his clinical treatment. She denied also any mental health problems. Indeed, when giving her evidence, the Panel found Patient A to be calm, measured and focused. She said that despite her concerns at what had occurred at her first consultation with the Registrant, she did attend the second consultation with the Registrant on 6 April 2017 because she wanted her treatment to be effected without delay.  

iii) PS was a Band 8A Upper Limb Extended Scope Practitioner at the Trust and is now an Assistant Professor of Physiotherapy at Coventry University. He saw Patient A in consultation on 10 April 2017 at the Registrant’s request, on which occasion she raised some concerns in regard to her previous appointment with the Registrant, but gave no details. PS said that when he saw Patient A again on 8 May 2017 she described some of her concerns. In his evidence PS said that the actions and comments, the subject of the allegations, were not clinically appropriate. The Panel found PS to be clear, balanced and professional in his evidence which was consistent with his statement and given without embellishment. He was a wholly credible witness.  He gave evidence to the Panel that he felt the account given to him by Patient A to be entirely truthful.

Decision on Facts

16. In reaching its decision on the facts, the Panel considered all the evidence before it, both oral and documentary, together with the submissions of Mr Millin and the representations made by the Registrant in his statements. It accepted the advice of the Legal Assessor.

Particular 1(a)-(f) – Found Proved

17. Although Patient A was the sole witness as to facts the Panel was satisfied from her evidence that the Registrant effected the actions and made the comments alleged. Further, from the evidence of PS, the Panel was satisfied that the Registrant’s actions were not clinically justified and were therefore inappropriate; further that his comments too were inappropriate.

Particular 2 – Found Proved

18. The matters found proved under 1(a)-(b) were not inherently sexual. However, the Panel drew the inference from the Registrant’s comments and from the pattern of his conduct as proved under Particular 1(a)-(c), that his actions and comments were in pursuit of his sexual gratification and therefore sexually motivated. The Panel was satisfied that the matters set out in Particular 1(d)-(f), of their very nature, were inherently sexual and therefore sexually motivated.

19. In reaching these conclusions the Panel notes that allegation 1(c) is not explicitly alleged to be sexually motivated and is mindful of comments of Patient A in her evidence, which included that she considers his actions to be offensive, with the intention of establishing control and to humiliate her.  She said she that she regarded 1(d)-(f) to be sexual in nature.  In the Panel’s judgement Sub-Particular 1(c) is clearly linked to other aspects of his conduct of sexually inappropriate behaviour.

Decision on Grounds

20. In reaching its decision, the Panel considered all the evidence before it together with the submissions of Mr Millin. It had in mind the HCPC Practice Note ‘Finding that Fitness to Practise is Impaired’. It accepted the advice of the Legal Assessor.

21. In acting in the manner found proved, the Panel found that the Registrant was in breach of the following standards of the HCPC Standards of Conduct, Performance and Ethics:

1.1 You must treat service users (patients)… respecting their privacy and dignity.

1.7 You must keep your relationships with service users (patients) professional.

2.1 You must be polite and considerate.

22. The Panel therefore concluded that the conduct found proved under each Particular, and in totality, was clearly unworthy of a physiotherapist. It amounted to misconduct and that misconduct was particularly serious.

Decision on Impairment

23. In reaching this decision the Panel considered all the evidence and information before it together with the submissions of Mr Millin. It had in mind again the relevant Practice Note. It accepted the advice of the Legal Assessor. It found the test endorsed by Mrs Justice Cox in the case of Grant and the NMC, to be of assistance and the first three limbs of that test to be engaged.

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

2)    Has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or

3)    Has in the past and/or is liable in the future to breach one of the fundamental tenets of the medical profession;

24. These were serious acts of misconduct by a professional in a position of trust.

25.  The Registrant has demonstrated a total lack of insight into the effect which such conduct could have on a patient. Patient A in her evidence described the continuing effect that the Registrant’s actions have had upon her, particularly in regard to her confidence in professionals. She said that she is now reluctant to attend male professionals and that as a result of the comments made by the Registrant, she is embarrassed about aspects of her appearance.

26. The Panel has concluded that as a result of the nature of the Registrant’s misconduct and his lack of insight, it cannot be satisfied that misconduct of this nature would not be repeated putting patients at risk of harm.

27. The Panel further considered that the nature of the conduct found proved was such that it was liable to bring the profession of Physiotherapy into disrepute and indeed Patient A herself commented on the impact his conduct had had upon her willingness to see professionals in the future.

28. In acting as he did the Registrant has breached fundamental tenets of the profession which include maintaining professional boundaries and treating patients with dignity and respect.

29. In these circumstances, in regard to the Personal Component, the Panel has determined that the Registrant’s fitness to practise is currently impaired.

30. Furthermore, a finding of current impairment is also required in the wider public interest. This is necessary to declare and uphold proper professional standards. The public would expect a physiotherapist to act in accordance with these standards. Public confidence in the profession and in the HCPC as Regulator, would be undermined if a finding of impairment were not made.

Decision on Sanction

31. In reaching its decision the Panel considered all the information before it, including that provided by the Registrant, together with the submissions of Mr Millin and its own findings on impairment. It had regard to the HCPC Sanctions Policy. It accepted the advice of the Legal Assessor. It exercised the principle of proportionality at all times.

32. Mr Millin said that the HCPC was neutral in relation to sanction. However, he referred to the sanctions policy and emphasised that the purpose of a sanction is not to punish a registrant but to protect the public.

33. The Panel found these to be aggravating features:

  • The particularly serious nature of the misconduct, which involved sexual motivation.
  • Although the misconduct occurred on a single occasion it involved several sexually motivated actions.
  • The Registrant was in a position of trust while treating this patients.
  • The Registrant’s total lack of insight into the serious nature of sexually motivated misconduct by a physiotherapist towards his patient.
  • The lack of any apparent realisation of the effect that such misconduct could have on a patient and on the reputation of the profession.
  • The Registrant’s denigration of Patient A in contending that Patient A was racially biased, unstable and fabricating the allegations.

34. There have been no previous findings against the Registrant before this or any other HCPTS panel, but there are no mitigating features relevant to the misconduct found proved.

35. The Panel first considered whether to take no action, but the serious nature of the misconduct demands a sanction.

36. The Panel then considered Mediation or a Caution Order. However, the serious nature of the misconduct is such that neither would be sufficient to protect the public or to address public interest concerns.

37. The Panel next considered a Conditions of Practice Order, but there are no conditions which would be workable, appropriate or sufficient to protect the public in the light of the serious nature of the misconduct.

38. The Panel then considered a Suspension Order, but again such an order would be insufficient to address the serious nature of the misconduct. Furthermore, such a sanction would not be a sufficient deterrent to other physiotherapists.

39. The Panel therefore considered a Striking Off Order. It was aware that this is a sanction of last resort for serious matters. These include sexually motivated misconduct. The Panel referred to the Sanctions Policy where it states that such an 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 or to maintain public confidence in the profession and in the regulatory process.

40. This applies to the current circumstances and the Panel has therefore determined that the only proportionate and sufficient sanction is that of a Striking Off Order.

41. The Panel did consider the financial impact such an order would have on the Registrant but was satisfied that this was outweighed by the public interest.

Order

ORDER: The Registrar is directed to remove the name of Mr Andy Adigwe from the Register from the date this Order comes into effect.

Notes

Right of Appeal

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you.  The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

Interim Order

1. Mr Millin applied for an Interim Order on the grounds that it is necessary for the protection of the public and is otherwise in the public interest. He submitted that the Order should be for the maximum period of 18 months to cover the 28 day appeal period and the time that might be required to conclude any appeal. Mr Millin submitted that the Panel should hear this application despite the continued absence of the Registrant.

2. The Panel was satisfied that the Registrant had been made aware that in the event of a sanction being imposed it would be likely that an application for an Interim Order would be made. It has therefore concluded that the Registrant’s continued absence is voluntary. It has decided that no injustice would arise to the Registrant and that it is in the interests of justice that this application should proceed in his absence.

The Panel makes an Interim Suspension under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. 

This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

Hearing History

History of Hearings for Mr Andy Adigwe

Date Panel Hearing type Outcomes / Status
22/02/2021 Conduct and Competence Committee Final Hearing Struck off