Mr James Fenwick

Profession: Physiotherapist

Registration Number: PH95429

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 01/06/2021 End: 17:00 04/06/2021

Location: This hearing will be held virtually via video conference

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

On 15 May 2019:


a. 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;

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

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

d. 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;

e. you asked Service User A ‘if the massage felt nice’, or words to that effect;

f. you recommended that Service User A should wear shorts for her next appointment, advising that this would help with the assessment of her gait, but also so you ‘could go deep on her’, or words to that effect;

g. you said to Service User A that she should come to her next appointment with “polished nails for James” or words to that effect.

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

2. Whilst providing treatment to Service User B’s right shoulder, you sat very close Service User B and did not respect her personal space.

3. Whilst carrying out the action in allegation 2 above, you asked Service User B the following inappropriate and/or personal questions;

a. what was she doing that night, or words to that effect;

b. did she have a boyfriend, or words to that effect.

5. In or around October 2017:

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

b. 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 asked 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 Matters

Special Measures and Privacy

1. Before this case started, unopposed applications were made for the use of special measures for the three complainants and for any mention of the family members of Service User A to be heard in private. These applications were granted.

Application to amend the Allegation


2. On 30 April 2020 a panel of the Investigating Committee of the HCPC determined that there was a case to answer in relation to five factual particulars which alleged sexually motivated conduct reported by four female service users.

3. Since that date, Kingsley Napley have undertaken a full investigation which included taking witness statements from three service users. Mr Lloyd applied to the Panel to amend the original allegation in order to reflect the evidence thus collated. These, he contended, were minor amendments and did not effect the substance of the original allegation. Due notice of this had been provided to the Registrant in an email from the HCPC dated 11 September 2020.

4. This unopposed application was granted by the Panel, which also allowed the correction of a typographical error in particular 6 to read “allegations 1,2,3 and 5” as opposed to “allegations 1,5,3 and 4” and the removal of the unnecessary word “asked” in particular 5b. The HCPC submitted they wished to offer no evidence in relation to particular 4.

Background

5. The Registrant is a self-employed physiotherapist, who has been working from his own practice (Redcar Physiotherapy) since 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 B and Service User D had also felt uncomfortable at appointments with James Fenwick, due to his alleged inappropriate comments and behaviour.


Decision on Facts

6. The Panel has considered all of the documentary evidence placed before it and has had regard to the testimony of the witnesses called by the HCPC and that of the Registrant himself. It has accepted the advice of the Legal Assessor.

7. The Panel has also paid due regard to the closing submissions from Mr Lloyd and Ms McCullough.

8. In relation to issues of fact, the Panel has reminded itself throughout that the burden of proof rests on the HCPC and that the applicable standard is the civil one.

9. The Panel heard from three live witnesses called by the HCPC.

• Service User A, a Community Mental Health Nurse employed by the Tees Esk and Wear Valley NHS Trust.
• Service User B, at the material time a Team Manager in the Adult Mental Health Team at the same NHS Trust.
• Service User D, a Community Psychiatric Nurse at the same NHS Trust.

10. In listening to their evidence, the Panel was conscious of the fact that, prior to the writing of their respective witness statements, all three complainants had had words with each other on the topic of their various experiences during treatment by the Registrant.

11. In this context, the Panel had in mind the advice provided by the Legal Assessor in relation to cross-admissibility of evidence and the concomitant danger of cross-contamination.

12. In the view of the Panel, all three complainants provided credible evidence. There is no suggestion that what they sought to do was anything other than to provide a truthful account of events. However, not all of the witnesses seemed to the Panel to have a wholly reliable recollection of some of the details.

13. The Registrant gave evidence, consistent with the contents of the undated written statement that he had provided to the HCPC before the case began. His tones were measured and he appeared to have a clear memory of most of the events in question. He denied all the allegations, some starkly, some in a more oblique way. In most regards the Panel found his denials in relation to particulars 1, 5 and 6 unpersuasive.

14. Additionally, a statement from the Registrant’s wife, a friend and a number of written references from other service users were produced by the Registrant and taken into account by the Panel.

15. Dealing with the particulars one by one, the Panel first addressed the evidence of Service User A, who was confident in most of her recollections, honest about matters she was unable to recall and displayed a consistency between the contents of her written witness statement and her oral testimony. She showed no evidence of malice towards the Registrant. She made a referral to the HCPC complaining about the Registrant’s behaviour only two days after the appointment in question.


Particular 1a

16. The Panel had no doubt that the expression “you’re looking in good condition” or words to that effect were used by the Registrant. In its view, this is an example of an inappropriate comment made by a man who was a careless user of language.

17. Particular Proved.

Particular 1b

18. Similarly, despite what the Registrant himself said on this subject, the Panel was satisfied, on the balance of probabilities, that the Registrant asked Service User A whether her three children were all planned, or words to that effect. Again, this was regarded by the Panel as being inappropriate and insensitive.

19. Particular proved.

Particular 1c

20. The words “I’ll go deep on you next week” followed by “working on those calves” or words to that effect were spoken by the Registrant, as part of the clinical discussion that he was conducting on Service User A in relation to the condition of her calves. This was another example of the Registrant’s cavalier approach to language. It was careless and inappropriate.

21. Particular proved.

Particular 1d

22. The same assessment of the Panel relates to the allegation in this particular. Again, these words were said as part and parcel of the clinical discussion about the condition of the Registrant’s calves.

23. Particular proved.

Particular 1e

24. The Panel accepted that the Registrant asked Service User A “if the massage felt nice” or words to that effect.

25. Particular proved.

Particular 1f

26. Weighing up the contrasting evidence in relation to this accusation, the Panel, on the balance of probabilities, decided that the words complained of were uttered by the Registrant.

27. Particular proved.

Particular 1g

28. The Registrant denied using the words “polished nails for James”. Service User A stated that these words were used by him in a joking manner. The Panel preferred the evidence of Service User A.

29. Particular proved.

Particular 1h

30. The Panel accepted the evidence of Service User A that throughout her appointment with the Registrant he made intense eye contact with her. In the view of the Panel, the Registrant’s hearing impairment and consequent need to study the service user’s mouth with care may have been relevant in this context.

31. Particular proved.

Particular 2, 3a and 3b

32. The Panel’s reasoning is the same in relation to its consideration of the above three particulars. Taking nothing away from its perception that Service User B was entirely honest in her evidence, it did not escape the Panel that her recollection of the relevant events in relation to these particulars was extremely patchy. The Panel noted that whilst Service User B’s recollection in her witness statement was that she had undergone 8 treatment sessions with the Registrant in around October – November 2016, her clinical records indicated that she had 6 treatment sessions between January – March 2015. This wasn’t altogether surprising since the alleged behaviour complained of took place about 6 ½ years ago. There was an inconsistency in an email Service User B sent to the HCPC and what she later put in her witness statement on the subject as to whether or not the Registrant’s body had ever touched her whilst administering treatment as described in particular 2. Furthermore, she was unable to remember many of the details of the treatment she received. The Registrant, in his evidence, denied the allegations contained within particulars 2 and 3. Overall, the Panel was unable to conclude that it was satisfied that any of these particulars had been proved to the requisite standard.


33. Particulars 2, 3a and 3b not proved.

Particular 5a

34. The Panel was particularly impressed by the evidence of Service User D in relation to this complaint. She was very firm in her contention that the Registrant made reference to her “exquisite quads”. This was in stark contrast to the version of events given by the Registrant in his testimony. The Panel preferred the evidence of Service User D and found this Particular proved.

35. Particular proved.

Particular 5b

36. Consistent with its approach and conclusion to the allegation contained within particular 5a, the Panel also found this particular proved.

Particular 6

37. In the knowledge that the allegations contained within this particular are serious, the Panel took special care in assessing the substance of the particulars above found proved for evidence of sexual motivation. There is no doubt, in the view of the Panel, that both Service User A and Service User D felt uncomfortable as a result of the inappropriate comments made by the Registrant during the course of his respective treatments of them. As has been commented above, the proved remarks made to Service User A could be attributable to the Registrant’s then practice of using careless and inappropriate language. The reference, for instance, to “nails” (particular 1g above) could be explained as an attempt by the Registrant to make a joke. The comment made at particular 1a appears to have been an inappropriate attempt by the Registrant to compliment Service User A on her successful weight loss. The comment made at particular 1b, whilst highly inappropriate and intrusive, also does not appear to have a sexual motive. The remarks contained within particulars 1c, d and f above were all uttered during the course of the clinical discussion with Service User A in relation to the condition of her calves. The request by the Registrant that Service User A should wear shorts at her next appointment (particular 1f) could be said to amount to sensible clinical advice. As has been referred to above, particular 1h (intense eye contact) could be explained by the uncontested evidence that the Registrant was suffering from a hearing impediment at the time. In sum, inappropriate though particulars 1a-1h inclusive were, these remarks and their related behaviour, in the view of the Panel, cannot be said to have be proved to have been sexually motivated.

38. Different considerations, however, apply to particulars 5a and 5b. The suggested position in particular 5b was one that Service User D considered might have been a prelude to a kiss. The “exquisite quads” remark (particular 5a) was entirely inappropriate and the Panel can find no plausible explanation for either of these matters except to conclude that they were both sexually motivated.

39. Particular 6 proved only in relation to allegation 5.

Decision on Ground

40. Mr Lloyd submitted that the facts found proved lead to an inevitable conclusion that there has been misconduct in this case.

41. Ms McCullough, in her response, accepted that this would be the likely conclusion that the Panel would draw from the facts it has found proved.

42. In the view of the Panel, the inappropriate comments and sexually motivated behaviour of the Registrant that have been found proved demonstrate a course of conduct that brings the profession of Physiotherapy into disrepute and that such conduct comes into the category of being serious. Thus, the decision of the Panel in relation to particular 7 is that the allegation of misconduct is well founded in relation to particulars 1,5 and 6.

43. There have been clear breaches of the following Standards of Conduct, Performance and Ethics:

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

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

2.1 You must be polite and considerate.

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

Decision on Impairment

44. Whether or not a Registrant’s fitness to practice is currently impaired is a question for determination by the Panel alone, after consideration of all the circumstances of the case. The Panel has paid due regard to the submissions of both parties and the HCPC’s practice note on ‘Finding that Fitness to Practice is Impaired’. It has also accepted the advice provided by the Legal Assessor.

45. The Panel views the Registrant’s failings as being remediable and is comforted by the recognition that he has taken a number of steps to remediate them. For instance, he has instituted changes in his practice (e.g. the provision of diagrams, a screening questionnaire and chaperone advice), recently taken a professional boundaries course and provided the Panel with a reflective piece.

46. These steps, however welcome, are not enough, in the view of the Panel, which is not persuaded that he has demonstrated sufficient insight into his inappropriate behaviour. The evidence showed that the Registrant did recognise at the time that Service User D had been uncomfortable following her treatment. On his own account he spoke to his partner and they agreed that Service User D should be treated by a female therapist. However he did little to examine the reasons behind this.

47. Thus far the Registrant has not shown the ability to fully reflect on his communication style and its effect on service users. As such his insight can be said to be partial and therefore there remains a risk of repetition of the conduct found proved.

48. Therefore the Panel has determined that the Registrant’s fitness to practice is currently impaired on personal component grounds.

49. In relation to the public component, the Panel has reminded itself of the emotional harm caused to Service Users A and D and their respective decisions not to attend further appointments with the Registrant as a result. The Panel noted that due to their experiences with the Registrant both Service User A and Service User D had decided that they no longer wished to be treated by male physiotherapists.

50. In these circumstances, the public would expect the repeated breaches of professional boundaries by the Registrant to be marked by a finding of impairment. Conscious that it has a duty to uphold professional standards and to maintain public confidence in the profession and uphold proper standards of conduct and behaviour, the Panel’s view is that trust in the profession would be undermined were this determination not to be made.

51. Accordingly, the Panel finds the Registrant’s fitness to practice to be currently impaired on personal and public grounds.

Decision on Sanction

52. In coming to its own independent decision on sanction the Panel paid careful regard to the submissions of both parties and the HCPC’s Sanctions Policy. It also noted the advice of the Legal Assessor that it should apply the principle of proportionality, weighing the interests of the public with those of the Registrant. The public interest includes not only the protection of service users but also the maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour.

53. The aggravating factors in this case are noted by the Panel to be as follows:

• The behaviour amounted to a breach of trust.
• The misconduct was of a repetitive nature (May 2019 in relation to Service User A and about October 2017 in relation to Service User D).
• The fact that the Registrant was a sole practitioner contributed to an environment that made the service users feel vulnerable, thus causing emotional harm to them.

54. Mitigating factors taken into account by the Panel were as follows:

• Until these matters came to light the Registrant had an unblemished record.
• The Registrant has fully engaged with the regulatory process.
• Directly and via his counsel, during the course of the case, the Registrant issued an apology for any discomfort his behaviour may have caused the service users.
• Some insight has been shown and there have been efforts made by the Registrant towards remediation.

55. Given the nature of the Registrant’s misconduct and the sexually motivated behaviour that has been proved in this case and the consequent potential to put service users at risk and to undermine the reputation of the profession, the Panel is of the view that is would not be sufficient to conclude this case by taking no action or by referring it for mediation. Neither course would serve to protect service users or maintain the standing of the profession.

56. The Panel then moved on to consider whether to conclude this case by imposing a Caution Order and noted that such a sanction is likely to be appropriate where the issue is isolated, there is a low risk of repetition and the Registrant has shown good insight and undertaken appropriate remediation. These criteria do not apply in this case because, amongst other reasons, the Panel’s view is that there still remains a risk of repetition and that the insight demonstrated so far is only partial.

57. Next, the Panel considered the possible imposition of a Conditions of Practice Order. In so doing, it had regard to the advice of the Legal Assessor that the conditions must be appropriate, measurable, workable and verifiable. In this context, the Panel had in mind paragraph 108 of the Sanctions Policy where it states that conditions are less likely to be appropriate, for example, in cases of sexual misconduct. Although the sexual misconduct in this case can be said to be towards the bottom of the scale of severity, nevertheless it cannot be said that it is “minor” (as referred to in paragraph 109 of the Sanctions Policy).

58. The Panel accepts that this final hearing has been a salutary experience for the Registrant and takes the view that, although there have been serious breaches here of the requisite standards, he has shown a degree of insight, has taken a number of steps to remediate his failings and there is evidence that he would be capable of reaching full remediation.

59. In all the circumstances, the Panel has determined that the appropriate and proportionate sanction to impose is one of a Suspension Order for a period of 6 months. In deciding this, the Panel had in mind the terms of paragraph 124 of the Sanctions Order which states that “short term suspensions can be appropriate… where further action is required to maintain public confidence in our professions.” Whilst the Panel did identify that a risk of repetition of the Registrant’s misconduct remains it was of the view that a period of 6 months suspension was sufficient for the Registrant to develop full insight and to remediate his failings.

60. The Panel considered the possibility of imposing a Striking Off Order, but considered that such a sanction would be disproportionate in this case given the nature of the misconduct, the steps already taken by the Registrant to remediate, the significant impact a Striking Off Order would have on the Registrant and the benefit to the public of allowing a competent practitioner the opportunity to return to practice in due course.

61. Whilst the Panel does not wish to fetter the decision making of any future panel in its view a future review Panel would be assisted by:
• The Registrant providing a written piece reflecting on the findings of this hearing;
• The Registrant attending a future 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.

Order

ORDER: The Registrar is directed to suspend the registration of Mr James Fenwick for a period of 6 months 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. On an application by Mr Lloyd, the Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001 for 18 months, the same being necessary to protect members of the public and being otherwise in the public interest. The Panel took note of Ms McCullough’s submissions with regard to the impact such an order would have upon the Registrant. However, to find otherwise would be inconsistent with the Panel’s announced findings in this case.

2. If no appeal is made against the Panel’s decision and order, this Interim Order will expire 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, this Interim Order will expire on the final determination of that appeal, subject to a maximum period of 18 months.

The Panel makes an Interim Suspension Order 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 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