Mr Aman Kumar

Profession: Physiotherapist

Registration Number: PH110658

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 14/05/2021 End: 17:00 21/05/2021

Location: Virtual hearing, videoconference

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

1. On 20 February 2018 during a treatment session with Patient A you:

a) Did not maintain professional boundaries and/or communicate appropriately with Patient A, in that you:

i) Said to Patient A “because you have been so nice to me we can do a full back massage to help” or words to that effect;

ii) Provided a full back massage to Patient A and did not explain to Patient A your reasons and/or clinical justification for doing so;

iii) Asked and/or allowed Patient A to remove her top and unhook her bra strap when this was not necessary for the treatment being provided;

iv) Said to Patient A “don’t take this the wrong way but you have a really nice body” or words to that effect;

v) Failed to leave the room or turn away to allow Patient A to get undressed and/or dressed in private;

vi) Said to Patient A “can you do me a favour?” or words to the effect and then made a flashing gesture indicating to Patient A that you wanted her to show you her breasts.

b. Did not explain to Patient A that she could have a chaperone present during the treatment session.

c. Performed a back massage on Patient A when this was not clinically justified.

d. Did not explain in your notes the reason for treating Patient A’s back.

2. Your actions at 1(a) (i)-(vi) and/or 1(b) and/or 1c were sexually motivated.

3. The matters set out in paragraphs 1 and 2 constitute misconduct.

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

Finding

Preliminary matters

Service

1. The Registrant did not appear and he was not represented. The Panel accepted the advice of the Legal Assessor on the matter of service. It was satisfied that Notice of the hearing had been served on the Registrant at his registered email address on 15 January 2021. He has had no recent contact or engagement with the HCPC.

Proceeding in absence

2. On behalf of the HCPC, Mr Lloyd applied for the hearing to proceed in the absence of the Registrant on the basis that he had been notified of the time, date, and virtual mode of the hearing at his registered email address. Mr Lloyd submitted that the Registrant had waived his right to appear and that it was in the public interest for the hearing to proceed expeditiously.

3. Having considered the HCPTS Practice Note on “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor on the case of GMC v Adeogba [2016] EWCA Civ 162 (“the fair, economical, expeditious and efficient disposal of allegations against medical practitioners is of real importance”), the Panel was satisfied that the Registrant had received reasonable notice of today’s hearing and had waived his right to appear. The Registrant had not applied for an adjournment. There was no indication that he would attend at a later date if today’s hearing were to be adjourned. The alleged incident occurred over three years ago, so the Panel took account of the effect of further delay on Patient A’s recollection. The Panel further noted the overriding public interest in dealing with matters in a timely manner. In balancing the Registrant’s interest and the public interest, the Panel determined that the hearing should proceed in the absence of the Registrant. The Panel was mindful of its duty to ensure a fair hearing and to protect the Registrant’s interests by testing the evidence and by having regard to his version of events in his written statement and his oral account when interviewed during his company’s internal investigation in February 2018. The Panel took steps to ensure that no adverse inference was to be drawn from his absence from this hearing.

Amendment of Allegation

4. Mr Lloyd applied to amend Particular 1 in order to add two further allegations to the effect that the Registrant performed a back massage that was not clinically justified and that the Registrant had failed to record the reasons for the back massage in his clinical notes, and to allege that this conduct was sexually motivated. The amendments followed a review of the evidence after receipt of the report dated 7 September 2019 of the HCPC’s expert witness, Mr Adam Smith-Connor. Notice of the amendments had been sent to the Registrant 16 months earlier in January 2020.

5. The Panel accepted the advice of the Legal Assessor that an amendment of the Allegation may be made at any time if it can be done without injustice to the Registrant. The Panel noted that it was good practice for the HCPC to review the particulars of the allegation after an assessment of expert evidence that was received at a later stage. The Panel therefore determined that the amendments could be made without injustice and that they were appropriate in this case.

Background

6. This is a brief outline background to the incident. There are more detailed summaries of the evidence of each witness below.

7. Aman Kumar (the Registrant) is a registered Physiotherapist. He was employed as a Band A Junior Physiotherapist in the Yorkshire and Lincolnshire region for a company now known as Ascenti, which provides physiotherapy services. He started his employment on 30 May 2017 and passed his probationary period on 30 November 2017. There were no disciplinary or capability sanctions on his file.

8. It is alleged that during a treatment session with Patient A on 20 February 2018, the Registrant failed to maintain professional boundaries towards the female patient by commenting on her having a nice body, offering and performing a full back massage when it was not clinically appropriate, and then by inviting her to expose her breasts.

9. On 1 March 2018, the Registrant’s employer referred the Registrant to the HCPC. He co-operated with the employer’s internal investigation and gave his account, in which he admitted that he might have used language that was overfamiliar, but he denied any sexual misconduct. The Registrant was practising in the UK on a work visa at the time of the incident and investigation. He has since returned to India.

The Evidence

10. The evidence of the witnesses is summarised in more detail below. The summaries combine their written and oral evidence.

Patient A

11. Patient A made a written statement for these proceedings on 8 February 2020 and gave oral evidence at the hearing on 14 May 2021. She was involved in a road traffic accident on 1 December 2017 and sustained a muscle injury to her left shoulder. She was referred by her motor insurance company for physiotherapy by The Integrated Care Clinics (TICCS), the company now known as Ascenti, at the Exercise4less gym near her home. The treatment room was situated next to the gym. There was a desk in the corner with a computer and two chairs and a treatment bed in the middle of the room. She had four weekly physiotherapy sessions. The Registrant treated her on three occasions.

12. In the first two sessions, the Registrant focused on Patient A’s left shoulder only. In the third and final session with the Registrant on 20 February 2018, he began by massaging her left shoulder as usual, then said words to the effect of, “Because you have been so nice to me, I can do a full back massage to help”. She was wearing a vest and had pulled the strap down to allow the Registrant to treat her left shoulder. Following his suggestion of a full back massage, she took her vest off, unhooked but did not remove her bra, and lay down on her front. Patient A thought that she probably asked if she should then remove her vest and bra for the back massage and that the Registrant said yes. He did not leave the room to give her any privacy. He turned away and washed his hands and got treatment products ready while she removed these items of clothing. There were no screens or curtains.

13. As he massaged Patient A’s back, the Registrant commented on the size of her bottom and said that she had a nice body. She did not respond to his comments. He did not leave the room after the massage to afford her any privacy when she dressed. She struggled to fasten her bra because of the shoulder injury. The Registrant then said, “Can I ask a favour?”, then said, “No, don’t worry”. Patient A asked him what the favour was and he gestured for her to lift her top to show her breasts. She refused and said that her boyfriend would kill her or similar words. He then discharged her from his care. Patient A was not offered a chaperone at any point.

14. Patient A decided to complain because she regarded the Registrant’s behaviour towards her as unacceptable. She wrote an email to TICCS on 21 February 2018 in which she stated, “He completed the massage on my shoulder and then said to me ‘because you have been so nice to me, we can do a full back massage to help’…I agreed as I felt he was recommending it would help. Obviously, being a full back massage, I had to remove my top and unhook my bra which I was fine with as I was laid down. However, he then passed comment on my body by saying ‘Don’t take this the wrong way but you have a really nice body’ and I am not one to take offence however I feel this was inappropriate to say the least. After the massage, I stood up to dress myself to which he said, ‘can you do me a favour’ so I replied ‘yes’ and he then changed his mind and said ‘okay it doesn’t matter but I will tell you what I was going to ask’, so I waited and he hinted at me showing my breasts which obviously is extremely inappropriate and I am shocked and embarrassed that somebody in a position of trust would even suggest such a thing”.

15. Patient A was distressed by the incident and has not felt able to disclose what happened to her boyfriend for fear of upsetting him. She requested that a female Physiotherapist treat her for physiotherapy sessions at the same gym two years later in 2020.

16. When giving oral evidence at the hearing on 14 May 2021, Patient A confirmed that the purpose of the appointment on 20 February 2018 was to treat her shoulder and not her back. The Registrant had turned away from her when she unfastened her bra in order to wash his hands and to write notes at his desk. He had not held up a towel to give her more privacy. His comments about her body had made her feel awkward and she responded only with an embarrassed giggle. She demonstrated his gesture to expose her breasts by showing how he indicated raising and crossing her arms as if to lift her top. The treatment room was next to the gym but it was relatively quiet on that morning. The treadmills and exercise cycles faced away from the door. She was asked about the Registrant’s case that he had not massaged her lower back, but she maintained that he had massaged her whole back area, including the lower back just above her waistband. She perceived that his conduct towards her was sexually motivated.

Evidence of the Investigation and the Registrant’s version of events

17. Patient A’s complaint was investigated by SP, a deputy Human Resources Manager at File Dynamics Ltd providing services to Ascenti (formerly known as TICCS). He made a written statement dated 8 July 2019. The Registrant had commenced employment with the company on 30 May 2017 and left on 20 April 2018.

18. SP’s colleague, YA, spoke to Patient A on 26 February 2018 and made a record of their conversation. Patient A gave her account and said that she had wondered why it was necessary to massage her lower back for a shoulder injury but that she followed his guidance. She had felt in a vulnerable position when he made the comment about her having a nice body during the massage. She alleged the Registrant had looked directly at her breasts when he made the ‘flashing’ gesture.

19. The Registrant signed a written statement on 23 February 2018 in which he stated that he started the treatment session at 13:30 on 20 February 2018 by asking a few routine questions and Patient A replied that there was aching or pain around the neck and shoulder area. This was their third treatment session and no need for a chaperone had been identified. He said there was a notice in the waiting area which reminded clients that a chaperone service was available. He said he informed Patient A that he would work around the areas of pain by doing soft tissue mobilisations. He found that there were tender areas on palpation and his professional opinion was that a back massage would be beneficial. He admitted that he told Patient A that she had been nice to him and that a back massage would help. He intended this as a compliment because she had been following his treatment advice and home exercise programmes.

20. The Registrant said he had used the term ‘back massage’ to mean that he was going to massage or mobilise the soft tissue on the whole length of the trapezius (muscle at the top of the shoulder between the shoulder and neck) and the rhomboids (muscle between the shoulder blades) and thoracic paraspinals. He stated that Patient A was fine with exposing her back and lying face down on the couch for that. He said that whilst she undressed, he faced away from her. He said he could not step out of the room because that would have exposed her to the gym area. He made conversation with her during the massage and accepted that he said she had a nice body. He said he prefaced the comment by saying, “Don’t take this the wrong way” to reassure her. He accepted with hindsight that he should not have made the comment but said that he meant nothing by it.

21. He said that he was writing his treatment notes when Patient A was getting dressed so he did not look at her. He said she was taking a long time and having trouble fastening her bra because of her long nails, so he turned towards her and asked if he could help. She indicated towards the bra strap so he helped her to fasten it. He denied making any comment or gesture in relation to Patient A showing him her breasts. He thought that she might have misunderstood or misinterpreted matters.

22. The Registrant’s treatment notes for the 20 February 2018 session record that he performed deep soft tissue massage (DSTM) on Patient A. The body part treated was noted as “UFT, cx and tx paraspinals” on the anterior shoulder, rhomboids, upper trapezius, and scalene complex and that Patient A consented to the treatment. No specific reason for performing the back massage was recorded in the notes.

23. SP conducted an interview with the Registrant by telephone on 7 March 2018. In summary, the Registrant said the following:

• He did not conduct the initial assessment but Patient A had trigger points around the cervical paraspinals area and the shoulder area which presented as restrictions to her shoulder mobility and stiffness and soreness in that area. His treatment was therefore directed towards increasing her shoulder mobility.

• He admitted making a comment to Patient A about her being “nice” to him so he would give her a full back massage. He used the term ‘back massage’ as a layman’s term for a soft tissue mobilisation of the trapezius muscle. His reference to her being nice to him was meant as a compliment for her having adhered to the treatment regime and home exercises. He intended no offence and considered that such a remark could be appropriate where there is a good rapport with the patient.

• He made a clinical judgment that the back massage was necessary because there were areas that were tender in palpation over the thoracic paraspinal area and trapezius musculature.

• He maintained that the massage covered the upper and middle back but not the lower back area.

• He admitted telling her that she had a nice body. He said he meant this as a compliment but that this was wrong on his part and he accepted it was a mistake to say this. He said, “I know it is something which I shouldn’t have done” and that, “it was something that a person would not like to hear when they’re with a physio…”.

• He maintained he had faced away from Patient A when she was changing and explained he did not want to step out of the room because the door opened onto the gym, and there were no curtains that he could have used.

• He denied saying anything about Patient A doing him a favour or gesturing at her to show her breasts to him. He said he assisted her in fastening her bra because she had very long nails.

24. As part of the investigation, SP interviewed the Registrant’s regional manager, RH, in relation to the allegation on 9 March 2018. RH told SP that a Physiotherapist should maintain a better professional standard than that in the Registrant’s admitted comment of, “because you have been so nice to me, we can do a full back massage”. RH did not consider it necessary to treat the lower back (lumbar spine), although a Physiotherapist has discretion to treat outside the immediate area of pain. Poor back posture may affect the shoulder. His opinion was that only the minimum amount of clothing should be removed at all times, although clothing might be removed if a massage were justified. Unfastening a bra strap may be justified but RH would usually expect a chaperone to be present for that. RH considered that the Registrant’s conduct had otherwise been exceptional and he had on occasions exceeded what was expected of a Band A Physiotherapist.

Mr Adam Smith-Connor

25. Mr Adam Smith-Connor BSc, a Chartered Physiotherapist specialising in musculoskeletal injuries and whiplash with 25 years’ experience working for the NHS, the Armed Forces, and in private practice, prepared a report dated 7 September 2019 for the HCPC. He reviewed the treatment notes and other documents in this case.

26. Mr Smith-Connor noted that the Registrant massaged Patient A’s upper back area on 18 February 2018 and considered that an upper back massage may be clinically appropriate where there is muscle tightness. He noted that trigger points in the upper shoulder (trapezius) can affect the shoulder joint. He noted, however, that Patient A had reported she was 90% better, that she had a full range of movement in her shoulder, and the pain was only very mild. He would therefore have expected her to be discharged on 18 February 2018 and it was not clear to him why the Registrant arranged another appointment two days later on 20 February 2018 when each previous session had been a week apart. This was not clinically appropriate or justified in his view. No reason was recorded as to why treatment then switched from treatment of the shoulder to the whole back or spine. He further noted that treatment was given to the cervical and thoracic paravertebral muscles, which have no attachment to the shoulder complex. There was no clinical note to explain this change in treatment when Patient A reported no pain and had full range of movement of the shoulder. Mr Smith-Connor therefore considered it clinically inappropriate to perform any back massage in these circumstances.

27. Mr Smith-Connor regarded the comment, “because you have been so nice to me, we can do a full back massage to help” or words to that effect to be completely inappropriate and to fall well below the expected standards of a Physiotherapist. He found the Registrant’s explanation that this was a compliment for completing home exercises to be unconvincing, because treatment should be clinically justifiable. It is not a reward to the patient for being ‘nice’. In his opinion, the comment appeared to breach professional boundaries and move from the professional realm to the personal.

28. There was no evidence of a clinical explanation (or otherwise) for the back massage being given to Patient A. The Registrant should have explained why he was doing so and recorded his reasons in the notes.

29. If treating the upper back (rhomboids and trapezius muscle) it may have been appropriate to remove clothing, including asking Patient A to remove her vest top and unhook her bra whilst lying face down, but a minimum amount of clothing should be removed.

30. The comment to the effect of “don’t take this the wrong way but you have a really nice body’ was completely inappropriate in Mr Smith-Connor’s view and was a clear breach of professional boundaries that was well below the expected standards of a Physiotherapist. The preamble of “don’t take this the wrong way” suggested to Mr Smith-Connor that the Registrant was aware that this comment breached a professional boundary.

31. A male Physiotherapist should normally step out of the room when a female patient removes clothing, in order to preserve her dignity and to protect against allegations of misconduct. Mr Smith-Connor expressed scepticism about the Registrant’s case that he did not want to expose Patient A to those in the gym. That would not be necessary if she were clothed when he stepped out of the door and instructed to lie face down. It would also be possible to open a door by just enough to squeeze through the gap. When dressing, in these particular clinical circumstances the Registrant ought to have offered to fasten Patient A’s bra strap for her.

32. Mr Smith-Connor agreed that it was reasonable in normal circumstances for a male Physiotherapist to assume that a female patient did not require a chaperone if she had not been uncomfortable in previous sessions with him.

Decision on Facts

33. Mr Lloyd submitted that the Registrant’s actions, many of which were admitted, clearly breached professional boundaries and that the facts, if proved, led to an irresistible inference that his actions were sexually motivated.

34. The Panel accepted the advice of the Legal Assessor that the burden of proof was on the HCPC and that it should apply the civil standard of proof. The Registrant was not under any obligation to disprove the HCPC case. The Panel had in mind that it was entitled to accept or reject expert evidence but that there should be good reasons for rejecting such evidence (Lawrence v GMC [2012] EWHC 464 (Admin)).

35. The Panel found that Patient A was a credible witness who was measured and balanced in her responses to questions. Her answers in oral evidence were consistent with the complaint that she had made by email in 2018. There was no evidence to undermine her version of events, which the Registrant had substantially accepted when the matter was investigated. The only disputes were as to the extent of the back massage and whether he had made any gesture about showing her breasts at the end of the treatment session.

36. SP provided relevant background and a helpful and detailed summary of the Registrant’s response to the allegations. Mr Smith-Connor assisted the Panel with his expert report. The Panel accepted his expert opinion that there was no need for a treatment session on the relevant date and his view as to the propriety of the Registrant’s actions in the circumstances.

37. The Panel had regard to the Registrant’s statement in response to the incident and his answers when interviewed about this matter by his employer in 2018. The Panel ensured that his case was put to Patient A and to Mr Smith-Connor. The Panel drew no adverse inference from the Registrant’s failure to attend this hearing when deciding if the case had been proved to the required standard, but noted that his absence inevitably meant that his own account had not been tested by cross-examination.

Particular 1a)

38. The Panel considered Particular 1a), namely that the Registrant did not maintain professional boundaries and/or communicate appropriately with Patient A during a treatment session on 20 February 2018 in respect of the alleged elements i) to vi).

Particular 1a) i)

i. Said to Patient A “because you have been so nice to me, we can do a full back massage to help” or words to that effect;

39. The Panel noted that the Registrant admitted saying words to this effect and noted his explanation that this was intended as a compliment for Patient A’s previous compliance with his advice on home treatment and exercise. The Panel, however, regarded this comment as far too familiar in the context of a professional relationship and preferred Mr Smith-Connor’s evidence that a back massage should be given only because it is clinically necessary and not as a reward for an exercise regime.

40. The Panel found, for the reasons stated above, that the Registrant’s comment breached professional boundaries and that it was not an appropriate form of communication. The Panel therefore determined that Particular 1a) i) was proved to the required standard.

Particular 1a) ii)

ii. Provided a full back massage to Patient A and did not explain to Patient A your reasons and/or clinical justification for doing so;

41. The Panel noted that the Registrant stated in his interview in 2018 that the massage was confined to the upper and middle back areas which affected movement of the shoulder joint. The Panel, however, accepted the evidence of Patient A that the massage had extended down to her lower back and waistband area. This full back massage was clinically unnecessary for the treatment of her left shoulder and the Registrant had given no explanation or clinical justification to her for performing such a massage. The Panel noted furthermore that there was no clinical requirement for any massage because Patient A had recovered sufficiently from her shoulder injury by 18 February 2020. There was no need for the Registrant to arrange another treatment session on 20 February or to perform a back massage at all.

42. The Panel found, for the reasons stated above, that the Registrant’s actions and omissions breached professional boundaries. The Panel therefore determined that Particular 1a) ii) was proved to the required standard.

Particular 1a) iii)

iii. Asked and/or allowed Patient A to remove her top and unhook her bra strap when this was not necessary for the treatment being provided;

43. There was no dispute that Patient A had removed her top and unhooked her bra strap. She thought that she probably asked if she should do so, although it might have been the Registrant who asked her to. The Panel noted the Registrant’s case that it was necessary for Patient A to remove upper body clothing because he was using oils and because his treatment extended to the middle area of her back insofar as it affected the shoulder joint. The Panel was therefore satisfied that the Registrant asked or allowed Patient A to remove her top and unhook her bra. The Panel noted Mr Smith-Connor’s evidence that only the minimum amount of clothing should be removed for treatment. Whilst the removal of the top and the unhooking of the bra might be justified in some clinical circumstances, the Panel found that a full back massage was neither necessary nor justified on clinical grounds because Patient A had already recovered sufficiently from her left shoulder injury.

44. The Panel found, for the reasons stated above, that the Registrant’s conduct in asking or allowing Patient A to remove her clothing breached professional boundaries. The Panel therefore determined that Particular 1a) iii) was proved to the required standard.

Particular 1a) iv)

iv. Said to Patient A “don’t take this the wrong way but you have a really nice body” or words to that effect;

45. The Panel noted that the Registrant admitted making comments to this effect and his admission in his interview that he should not have said those words, although he intended them only as a compliment without any ulterior purpose. The Panel had regard to Mr Smith-Connor’s expert opinion that such a personal comment was a clear and obvious breach of professional boundaries and that it was completely inappropriate.

46. The Panel found, for the reasons stated above, that the Registrant’s comment breached professional boundaries and that it was not an appropriate form of communication. The Panel therefore determined that Particular 1a) iv) was proved to the required standard.

Particular 1a) v)

v. Failed to leave the room or turn away to allow Patient A to get undressed and/or dressed in private;

47. The Panel had regard to the expert evidence that the best practice when a patient is dressing or undressing is for the Physiotherapist to leave the room in order to preserve the patient’s dignity and privacy and to prevent later suggestions of sexual misconduct. The Panel noted the Registrant’s explanation that he turned away to write his notes and wash his hands and that opening the door to the gym would have exposed Patient A to others. The Panel did not accept that the Registrant could not have opened the door sufficiently to slide out of the room, as suggested by Mr Smith-Connor, and did not accept that opening the door slightly would have exposed Patient A to people exercising in the gym. The Panel accepted Patient A’s evidence that there were relatively few people in the gym and that those on the treadmills and exercise bikes were facing away from the door with a sideways view at best. The Panel also accepted Mr Smith-Connor’s evidence that the Registrant could have mitigated this situation by simply fastening Patient A’s bra strap for her when she was lying down.

48. The Panel found, for the reasons stated above, that the Registrant’s omission to afford his patient greater privacy or dignity breached professional boundaries. The Panel therefore determined that Particular 1a) v) was proved to the required standard.

Particular 1a) vi)

vi. Said to Patient A “can you do me a favour?” or words to the effect and then made a flashing gesture indicating to Patient A that you wanted her to show you her breasts.

49. The Panel noted that the Registrant denied he had made any such comment or gesture. The Panel took account of his general good character and work record in deciding whether he had made any such comment or whether he was the kind of man who would say or do such a thing, albeit that his denial was untested under cross-examination. The Panel noted that Patient A made this allegation by making a written complaint within a day of the incident, that her oral evidence was consistent with her original complaint, and that she had demonstrated how the Registrant had made the gesture by the movement of his arms as if to encourage her to lift her top. There was no reason why Patient A would invent such an allegation or embellish her account in this way and the Panel found her evidence credible and convincing. The words and the gesture were obviously inappropriate and unprofessional.

50. The Panel found, for the reasons stated above, that the Registrant’s comment and gesture breached professional boundaries and that it was not an appropriate form of communication. The Panel therefore determined that Particular 1a) vi) was proved to the required standard.

Particular 1b)

b) Did not explain to Patient A that she could have a chaperone present during the treatment session.

51. There was no dispute as to the fact that the Registrant did not explain to Patient A that she could have a chaperone present. The Registrant stated that there was a notice in the waiting area which informed patients as to their right to request a chaperone but he did not regard it as necessary in the circumstances. The Panel also had regard to Mr Smith-Connor’s view that a chaperone may not be required in normal circumstances, assuming the treatment was necessary. There being no dispute as to the Registrant not explaining to Patient A that she could have a chaperone present, the Panel found Particular 1b) proved as a fact to the required standard.

Particular 1c)

c) Performed a back massage on Patient A when this was not clinically justified.

52. The Panel had regard to Mr Smith-Connor’s examination of the Registrant’s notes of the previous treatment session on 18 February 2020, which recorded that Patient A had reported that she was 90% better, that she had a full range of movement in her shoulder, and the pain was only very mild. Mr Smith-Connor would therefore have expected her to be discharged on 18 February 2018 and it was not clear why the Registrant arranged another appointment two days later on 20 February 2018 when each previous session had been a week apart. The Panel accepted Mr Smith-Connor’s opinion that the back massage was neither clinically appropriate nor justified on that basis. The Panel therefore determined that Particular 1c) was proved to the required standard.

Particular 1d)

d) Did not explain in your notes the reason for treating Patient A’s back.

53. The Registrant had noted the fact he had performed a back massage but he made no note of the reason or justification for such treatment. There was no clinical note to explain the need for this treatment when Patient A had reported no pain and had full range of movement of the shoulder at her previous treatment session. There being no such record, the Panel therefore determined that Particular 1d) was proved to the required standard.

Particular 2

2. Your actions at 1(a) (i)-(vi), 1(b) and/or 1c were sexually motivated.

54. Mr Lloyd submitted that the facts, if proved, founded an irresistible inference that the Registrant’s actions were sexually motivated. The Panel noted that the Registrant had denied any such motivation when questioned about this treatment session in 2018.

55. The Panel had regard to the definition of ‘sexually motivated’ in Basson v GMC [2018] EWHC 505, in which Mostyn J stated that a sexual motive may be inferred from conduct that was done either in pursuit of sexual gratification or in pursuit of a sexual relationship. In making such a finding, the Panel should have regard to inference or deduction from the surrounding circumstances and the evidence as a whole.

56. The Panel approached this issue by considering the proven particulars of the Allegation at 1a) i-vi), 1b), and 1c) as a whole. All the Panel’s factual findings related to a single treatment session in which the Registrant had made sexually suggestive and inappropriate comments about Patient A’s body (Particular 1a) iv)) and had invited her to expose her breasts (Particular 1a) vi)). The Panel had further found that the entire treatment session, including the full back massage, was clinically unnecessary and that no reasons were recorded for performing a full back massage which extended to the waistline and which involved Patient A removing her top and her bra. The Panel found there was therefore an irresistible inference that the Registrant had wanted to touch and view Patient A’s upper body by giving her a full back massage when there was no clinical need for this or for any treatment session. He had afforded Patient A little or no privacy for changing her clothing and offered her no chaperone. The Panel therefore determined that the Registrant’s conduct in relation to particulars 1a) i-vi), 1b), 1c) and 1d) was done in pursuit of his own sexual gratification and that it was sexually motivated.

Decision on Grounds

57. Mr Lloyd reminded the Panel that misconduct must be found to be serious and invited the Panel to have regard to the relevant applicable Standards 1, 2, 9, and 10 in the HCPC Standards of Conduct, Performance and Ethics (January 2016).

58. The Panel accepted the advice of the Legal Assessor and had in mind that misconduct must be sufficiently serious to be regarded as conduct going to fitness to practise and that fellow practitioners would regard such conduct as deplorable in the circumstances. The Panel had regard to the definition of misconduct in Roylance v GMC [2011] 1 AC 311. Misconduct is, “some act or omission which falls short of what is proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances.”

59. The Panel also had regard to the guidance on the meaning of misconduct that was set out in Remedy UK Ltd v General Medical Council [2010] EWHC 1245 (Admin), in which misconduct was defined as, “sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practise”.

60. The Panel, having found that the Registrant’s acts and omissions were sexually motivated and in clear breach of professional boundaries, considered that it followed inevitably that his conduct was far below the required professional standards for a Physiotherapist. The Panel therefore made a finding of misconduct in relation to all aspects of the Registrant’s conduct towards Patient A at the treatment session on 20 February 2018. The Registrant’s suggestive comments and gestures in relation to Patient A’s body, his performance of an unnecessary full back massage that required Patient A to remove clothing without privacy, and his omission to explain or record the reasons, amounted to a single course of conduct towards a patient that was intended for the Registrant’s own sexual gratification rather than her health or welfare. The Panel noted that Patient A had been very distressed by the incident and had felt unable to tell others.

61. The Panel found in particular that the Registrant’s conduct as a whole breached the following HCPC Standards of Conduct, Performance and Ethics (January 2016)

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

10.1  You must keep full, clear, and accurate records for everyone you care for, treat and provide services to

Decision on Impairment

62. Mr Lloyd submitted that impairment was a matter for the Panel’s judgment in light of their findings on misconduct. He reminded the Panel that a finding of impairment may be required in order to uphold professional standards and to maintain public confidence in the profession and the Regulator.

63. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note on “Fitness to Practise Impairment”. The Panel reminded itself that not every finding of misconduct will lead to a finding of current impairment.

64. The Panel considered the personal component, namely whether the Registrant presented a risk to patients and whether he had demonstrated any or sufficient insight and remedied his misconduct. Whilst the Panel drew no adverse inference from the Registrant’s absence from the hearing, his failure to engage with the HCPC was such that there was no evidence of insight or remorse and nothing to suggest he has learned his lesson or that his misconduct would not be repeated. The Panel therefore found that there remained a risk that his misconduct could be repeated and that there is a continuing risk of harm to patients. The Panel therefore determined that his current fitness to practise remains impaired on personal grounds.

65. The Panel then turned to consider the public interest component in relation to impairment and had regard to Cohen v GMC [2008] EWHC 581: “the need to protect the individual and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect…and that the public interest includes, amongst other things, the protection of service users and the maintenance of public confidence in the profession.”

66. The Panel’s finding of misconduct related to the Registrant’s sexually motivated actions towards a patient. The Panel concluded that he had therefore breached a fundamental tenet of his profession by so acting and that such misconduct inevitably brings his profession into disrepute. The Panel therefore determined that public confidence in the profession and the regulatory process would be damaged if no finding of current impairment were made in relation to this Registrant. The Panel considered that a reasonably informed member of the public with knowledge of the facts of this case and the Panel’s findings would expect a finding of current impairment to be made on public interest grounds. A finding of impairment was also necessary to uphold professional standards in this case.

67. The Panel therefore concluded that the Registrant’s fitness to practise is impaired with regard to both the personal and public components.

Decision on Sanction

68. Mr Lloyd reminded the Panel of the principles to be applied when deciding on the appropriate sanction and referred the Panel to the sections of the HCPC Sanctions Policy that deal with cases of breach of trust, abuse of professional position, and sexual misconduct.

69. The Panel had regard to the Sanctions Policy (as revised in March 2019) and accepted the advice of the Legal Assessor. The Panel had in mind that the purpose of a sanction is to protect the public and not to punish the Registrant.

70. The Panel determined that the following aggravating factors were present:

• Breach of trust;
• Abuse of professional position;
• Sexual misconduct;
• The harm and continuing distress caused to Patient A;
• The absence of an expression of remorse or insight to the Registrant’s Regulator.

71. The Panel identified the following mitigating factors:

• There were no other complaints or concerns in relation to the Registrant’s practice;
• His work record was described as exceptional;
• This was a single incident that might have been remediable;
• The nature of the touching was not of the gravest kind;
• He had accepted in his interview that his comments were inappropriate.

72. In determining the appropriate sanction, the Panel had regard to paragraph 47 of the Sanctions Policy in relation to breach of trust: “Where there has been a breach of trust, panels are likely to impose more serious sanctions, and should provide clear reasons if they choose not to do so”.

73. In relation to abuse of a professional position, the Panel had regard to paragraph 71: “A registrant’s behaviour should be considered predatory where they are seen to take advantage of others, motivated by a desire to establish a sexual or otherwise inappropriate relationship with a service user or carer. The panel should take predatory behaviour particularly seriously, as there will be a significant risk to the targeted service user or carer”.

74. In relation to cases involving sexual misconduct, the Panel noted that paragraph 76 states: “Sexual misconduct is a very serious matter, which has a significant impact on the public and public confidence in the profession”.

75. Paragraph 77 states: “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”.

76. The Panel then considered the available sanctions with reference to the guidance in the Sanctions Policy. In making its decision, the Panel had regard to the principle of proportionality in determining the appropriate sanction and its duty to impose the least restrictive sanction that was necessary.

77. The findings of sexual misconduct and other aggravating factors were too serious to make no order.

78. The Panel then considered whether to impose a Caution Order but decided that it was also inappropriate in this case, because sexual misconduct of this nature requires a more serious sanction and there was no evidence of insight or remediation by the Registrant. The Panel further determined that a lesser sanction of this kind would undermine public confidence in the Regulator in view of the facts of this case.

The Panel then considered whether a Conditions of Practice Order was appropriate or workable but concluded that the absence of any information about the Registrant’s current circumstances or employment, and the absence of evidence of insight, made such an order impossible to formulate. Furthermore, a Conditions of Practice Order requires engagement on the part of the Registrant, but he has ceased to engage with the HCPC in this case. The Panel concluded that there remains a risk of repetition of the misconduct in the absence of insight or remediation. The Registrant could have attempted to address the attitudinal concerns in this case before this hearing, but he has not done so. The Panel therefore determined that such an order would not meet the gravity of the misconduct or address the absence of insight or maintain public confidence in the profession and the Regulator.

79. The Panel then considered whether a Suspension Order was appropriate after considering the guidance at paragraph 121 of the Sanctions Policy. The Panel’s findings in this case represent a serious breach of professional standards, abuse of trust, and sexual misconduct, all of which require a more serious sanction as a matter of principle. Had there been evidence of insight, remediation, or engagement, the Panel would have been prepared to consider imposing a Suspension Order in this case, but there was no evidence in this case that would have enabled the Panel to take that course.

80. The Panel also had regard to Parkinson v NMC [2010] EWHC 1898 (Admin) in which it was stated that a practitioner who does not appear either personally or by solicitor or counsel to demonstrate remorse, accept their misconduct, and undertake that there will be no repetition effectively forfeits the small chance of persuading a panel to adopt a more lenient or merciful outcome and to suspend rather than to direct removal from the Register. Whilst that case concerned dishonesty, the Panel found that the principle expressed by Mitting J was of equal application to this serious case.

81. The Panel was mindful that a Striking Off Order is a sanction of last resort for serious, persistent, deliberate, or reckless acts. The Panel furthermore accepted that the misconduct in this case related to a single incident, but it noted that this incident has had a continuing impact on Patient A’s mental health. It was also a serious instance of sexual misconduct and the abuse of a professional position for which a more severe sanction of this kind may be necessary (paragraph 130 of the Sanctions Policy) where there is no evidence of insight, engagement, or remediation.

82. The Panel therefore determined that a Striking Off Order was the appropriate and proportionate sanction in order to protect the public and to reflect the gravity of the misconduct. The Panel further concluded that this order was necessary to uphold professional standards and maintain public confidence in the Regulator and the profession. A member of the public with a full appreciation and knowledge of the particular facts of this case would understand why the Panel had determined this was the appropriate sanction.

Order

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

Notes

Interim Order

1. Mr Lloyd applied for an Interim Suspension Order to cover the appeal period. The Panel accepted the advice of the Legal Assessor and concluded that there was a continuing risk of repetition of misconduct in the absence of evidence of remorse, insight, or remediation. The Panel therefore determined that an Interim Suspension Order of 18 months’ duration to cover any appeal period was necessary to protect service users and that such an order was otherwise in the public interest.

2. The Panel therefore 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 Aman Kumar

Date Panel Hearing type Outcomes / Status
14/05/2021 Conduct and Competence Committee Final Hearing Struck off