Mr Andrea Franchini

Profession: Physiotherapist

Registration Number: PH105028

Interim Order: Imposed on 02 Feb 2017

Hearing Type: Other

Date and Time of hearing: 10:00 18/10/2021 End: 17:00 19/10/2021

Location: This hearing will take place virtually

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

Whilst registered as a Physiotherapist:

1. On or around 10 August 2016 during an appointment with Service User A you:

a) Not proved

b) Did not cover Service User A’s breasts

c) Did not obtain informed consent in that you did not fully explain your actions to Service User A

d) Massaged and/or touched around Service User A’s breasts

e) Massaged and/or touched down between the middle of Service User A’s breasts

f) Massaged and/or touched under Service User A’s breasts on the rib cage

g) Massaged and/or touched Service User A’s breasts

h) Touched Service User A’s nipples with your forearms and/or upper wrists

i) Not proved

j) Rubbed up and down Service User A’s arms

k) Not proved

2. On or around 31 May 2016 during an appointment with Service User B you:

a) Did not obtain informed consent in that you did not fully explain your actions to Service User B

b) Touched and / or massaged Service User B’s breast

c) Put your hand inside Service User B’s bra

d) Pressed your chest up against Service User B’s back and / or shoulder

e) You breathed onto Service User B’s neck and / or down her chest

3. Your actions at paragraphs 1 and/or 2 were without clinical justification

4. Not proved

5. The matters set out in paragraphs 1 - 4 constitute misconduct.

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

Finding

Preliminary Matters

1.The Panel has been convened to decide the issue of sanction in this case. As the circumstances in which the Panel is dealing with this matter are somewhat unusual, a brief chronology of the HCPC’s proceedings against the Registrant will be given.

  • On 13 April 2018 a panel of the Investigating Committee determined that there was a case to answer in relation to the allegation that is set out above.
  • The final hearing of the allegation took place on various dates in July 2019. The final hearing panel found some of the facts to be proven, others not proven. That panel also found that some, but not all, of the facts it found to be proven amounted to misconduct. A finding of impairment of fitness to practise was made and a sanction imposed.
  • The Professional Standards Authority For Health and Social Care (“PSA”) appealed to the High Court against various aspects of the final hearing panel’s determination. Both the HCPC and the Registrant were Respondents to that appeal.
  • By a Consent Order dated 8 September 2020 all parties to the PSA appeal agreed that the final hearing panel’s decision should be quashed in the respects that will be more particularly described below. Save with regard to sanction, the quashed decisions were replaced by agreed findings. So far as sanction is concerned, it was agreed that the matter should be remitted to be decided by a differently constituted panel of the Conduct and Competence Committee. The present Panel is that differently constituted body. It should be made clear that the documents provided for the purposes of the present decision have been redacted to ensure that the Panel has not been informed of the sanction that was imposed by the final hearing panel.

2. The present Panel accepts that it is ordinarily the case that a determination will be free-standing in the sense that a panel’s determination will not incorporate other decisions or determinations. However, in the unusual circumstances of the present case the Panel considers that clarity will be ensured by both the High Court Consent Order dated 8 September 2020 and the decision of the final hearing panel (both redacted so far as sanction is concerned) being appended to this determination.

Background

3. The Registrant is a registered Physiotherapist. At the time of the events included in the allegation he was working at the Great Health Clinic (“the Clinic”) in Islington.

4. Service User B attended the Clinic in relation to a thumb injury sustained following a bicycle accident. She first saw the Registrant at the Clinic on or about 20 May 2016, and no complaint was made about that session. Service User B returned to the Clinic and again saw the Registrant on 31 May 2016, when it was alleged that the events described in particulars 2(a) to (e) took place. By particular 3 it was alleged that the particular 2(a) to (e) actions were without clinical justification, and by particular 4 it was alleged that they were sexually motivated.

5. In relation to the contentions advanced by particulars 2(a) to (e), the final hearing panel found them all to be proven. So far as those actions being without clinical justification (i.e. particular 3) was concerned, it found that only those in 2(a) to (c) inclusive were done without clinical justification. With regard to particulars 2(d) and 2(e) the final hearing panel found (in paragraph 90 of its determination) that the technique was clinically justified. The final hearing panel also found particular 4 (sexual motivation) to be not proven with regard to the proven particulars relating to Service User B.

6. Before outlining the allegation and findings with regard to Service User A, the Panel should explain that none of the decisions on facts of the final hearing panel in relation to Service User B that have just been described were disturbed by the PSA appeal.

7. Service User A attended the Clinic on 10 August 2016 and was seen by the Registrant. The HCPC maintained that the actions alleged in particulars 1(a) to (k) inclusive occurred on that occasion. It was also alleged with regard to Service User A that the actions were not clinically justified (particular 3) and that they were sexually motivated (particular 4).

8. The final hearing panel found particulars 1(b), 1(c), 1(d), 1(e), 1(f),1(g), 1(h), 1(j) and 1(k) to be proven. It found particulars 1(a) and 1(i) to be not proven. When it turned to consider whether those particulars it had found to be proven had been actions without clinical justification, the final hearing panel found particular 3 to be proven with regard to particulars 1(b), 1(c), 1(g), 1(h) and 1(j), but not in relation to the other actions it had found to have occurred (namely, 1(d), 1(e), 1(f), 1(j) and 1(k). It also found that it had not been proven that the Registrant had been sexually motivated with regard to his actions with regard to Service User A (particular 4).

9. When it addressed the statutory ground of misconduct, the final hearing panel decided that misconduct was established only in relation to particulars 1(b), 1(c), 1(g) and 2(a). The final hearing panel’s view that misconduct was not made out in relation to particulars 1(d), 1(e), 1(f), 1(h), 1(j), 2(b), 2(c), 2(d) and 2(e) and those elements of particular 3 which it had found proved, was challenged by the PSA in the appeal. By consent, that finding was quashed and substituted with a finding that misconduct was made out in relation to them (clauses 1(a) and 2 respectively of the Consent Order).

10. Another aspect of the final hearing panel’s decision that was quashed were the findings relating to the risk of repetition. The final hearing panel’s findings that the risk of repetition of inappropriate touching and failure to obtain informed consent were low and were replaced by findings that the risk of repetition of inappropriate touching and failure to obtain informed consent is present (clauses 1(b) and 3 of the Consent Order).

11. In summary, the starting point of the present Panel’s decision on sanction was to accept the following:

  • With regard to Service User A, that the actions alleged by particulars 1(b), 1(c), 1(d), 1(e), 1(f), 1(h), 1(j) and 1(k) took place, and that there was no clinical justification for 1(b), 1(c), 1(g), 1(h) and 1(j).
  • With regard to Service User B, that the actions alleged by particulars 2(a), 2(b) and 2(c) took place, and that there was no clinical justification for any of them.
  • That misconduct was established on the wider basis that has been stated in paragraph 9 above.
  • That the risk of inappropriate touching and failure to obtain informed consent is present.
  • That it was not proven that the Registrant had been sexually motivated in acting as he did.

The HCPC’s submissions on sanction

12. The Presenting Officer commenced his submission by making it clear that the HCPC did not urge the Panel to apply any particular sanction. He did, however, make submissions on the proper approach to the issue of sanction and urged the Panel to pay close attention to the HCPC’s Sanctions Guidance and to the elements of the Consent Order which changed the basis upon which the issue of sanction should be determined. As an aggravating factor relevant to that consideration, the Presenting Officer reminded the present Panel of paragraph 117 of the final hearing panel’s determination where it was stated that both Service User A and Service User B had been upset by the Registrant’s actions when he had treated them, and that the on-going distress was apparent when they gave evidence some three years after the treatments. The same paragraph of the original determination also referred to the fact that the Registrant had not demonstrated that he understood the impact of his poor technique on the two service users.

Submissions on sanction made on behalf of the Registrant

13. In relation to the submissions that were made on behalf of the Registrant, it is important to record the fact that at the outset of the present hearing Ms Price made it clear that it was not intended that the present Panel should receive any oral or documentary evidence that post-dated the final hearing that concluded on 29 July 2019. The only document received by the Panel that had been created after the conclusion of the final hearing was Ms Price’s written submissions dated 17 May 2021.

14. Ms Price reminded the Panel of elements of the original decision that had not been disturbed by the PSA appeal, in particular:

  • The final hearing panel’s view that the Registrant was an enthusiastic practitioner who was committed to his profession, and of his previous good character.
  • The Registrant’s CV, the relevant courses he had undertaken and the reflective piece he had produced.
  • The very positive evidence that was produced at the original hearing from a large number of witnesses, including his supervisor, work colleagues and patients, four of whom attended the final hearing.
  • That sexual motivation had not been made out.

15. Ms Price also submitted that it would be appropriate for the present Panel to have regard to the fact that before the final hearing the Registrant had been subject to an interim order for a period of over two years which included a chaperoning requirement. She further submitted that although the present Panel had not been informed of what sanction had been imposed at the conclusion of the final hearing in July 2019, it was a relevant consideration for the Panel to take into account that the Registrant had been subject to a sanction for a period of over a year from 28 days after the conclusion of the final hearing on 29 July 2019 until the sanction decision was quashed in the autumn of 2020.

16. Ms Price concluded her submissions by urging the Panel to impose no more severe sanction than a caution order.

Decision on Sanction

17. The Panel approached the issue of sanction by accepting that a sanction is not to be imposed with the intention of punishing a registrant against whom findings have been made. Rather, any sanction imposed should be the least restrictive outcome consistent with the need to protect the public, to maintain a proper degree of confidence in the registered profession and to declare and uphold proper professional standards. The first question to be answered is whether the circumstances of any particular case require the imposition of any sanction. If they do, then the available sanctions must be considered in an ascending order of gravity. As the finding in the present case is one of misconduct, the entire sanction range up to and including striking off is available.

18. The Panel commenced by considering the factors that could fairly be described as aggravating and those that could properly be taken into account in favour of the Registrant.

19. In the judgement of the Panel, the on-going distress felt by the two service users concerned was an aggravating factor, as was the lack of understanding of the impact of his actions on the part of the Registrant and the present risk of repetition substituted by the Consent Order.

20. In favour of the Registrant were the references and testimonials he produced, although the Panel was alive to the need to remember that though they were positive, they were subject to the original panel’s finding that his fitness to practise was impaired and the on-going risk of repetition substituted by the Consent Order. The Panel also accepted that it could properly consider the fact that there had been a pre-final hearing interim order that had been complied with and that the Registrant had already been subject to a sanction following the conclusion of the final hearing.

21. The Panel also had very much in mind that sexual motivation had not been established. However, it is important to record that inappropriate touching, even when it is not done for an improper motive but because of inadequate communication and failure to explain, can be very distressing for service users, as the reactions of the two service users in this case only serve to demonstrate.

22. It was agreed by the parties, and endorsed by the Legal Assessor, that the task for the present Panel was to decide on what sanction is required at the present time, October 2021. In reaching that decision the Panel was aware that findings made in 2019 and the substituted decisions ordered by the High Court in 2020 were to be accepted. In this regard the fact that the Panel received no information about the Registrant’s activities since the final hearing was relevant to the extent that it was found that there was a lack of understanding on his part and a present risk of repetition. There was no current information on which the Panel could conclude that there had been further progress made by the Registrant. The Panel considered the information provided by the Registrant at the 2019 final hearing both orally and in his “Clinic Reflections”. The Panel was concerned that his reflections showed little appreciation of the distress caused to Service User A and Service User B, and concentrated more on physiotherapy practice rather than addressing his poor communication and apparent lack of empathy.

23. Applying these various factors to the first question of whether any sanction is required, the Panel came to the clear conclusion that a sanction is required. The circumstances are too serious properly to result in no further action.

24. The Panel then considered whether a caution order would be appropriate, and in that context considered paragraph 101 of the Sanctions Guidance. The conclusion of the Panel was that it was not possible to bring the present case within the suggested factors in paragraph 101 for the following reasons:

  • It might be argued that the issue was limited as there were two incidents that occurred in a short period of time. However, the issue could not be described as relatively minor in nature.
  • Consistent with the terms of the Consent Order, it could not be said that the risk of repetition is low.
  • It is fair to record that the Registrant has shown some insight, but in the judgement of the Panel it could not be said to be “good” for the reasons explained in paragraph 22 above.
  • Some steps have been taken towards remediation, but for the reasons explained in the same paragraph, the assumption made by the Panel is that remediation has not been fully achieved.

25. The Panel therefore rejected a caution order as an appropriate disposal and next considered conditions of practice.

26. When the Panel considered the factors suggested in paragraph 106 of the Sanctions Guidance, it concluded that it could properly be said that they were met in the present case. In particular:

  • Although the Registrant’s insight is not complete, at the same time it is not wholly lacking.
  • The deficiencies identified by this case are capable of being remedied.
  • There are no persistent or general failings which would prevent the Registrant from remediating.
  • Conditions can be formulated that are appropriate, proportionate, realistic and verifiable.
  • The Panel is confident that as an honest and committed professional, the Registrant will comply with conditions imposed on his registration.
  • With appropriate information provided to it, a reviewing panel will be able to determine whether the conditions have been met, and, importantly, whether the risk of repetition has been addressed.
  • The Registrant does not pose a risk of harm by being in restricted practice.

27. The Panel tested the last of these factors (“the registrant does not pose a risk of harm by being in restricted practice”) by considering whether the circumstances of the present case require the imposition of a suspension order. The conclusion of the Panel was that a suspension order is not required in order to provide the degree of protection the public is entitled to expect. That being so, a suspension order would be unfair and disproportionate.

28. As to the Conditions to be imposed by the Conditions of Practice Order, the Panel does not propose to set them out verbatim in the body of this determination as they appear in the Order below. However, it is necessary to explain why they are both necessary and sufficient. Conditions 8, 9 and 10 are standard conditions. Condition 8 requires the Registrant to inform the HCPC of the name of any employer. Condition 9 requires notification of any disciplinary proceedings, and condition 10 requires various parties to be informed of the existence of the Order. Conditions 1 to 7 inclusive are all designed to ensure that the Registrant prepares and completes in conjunction with a supervisor a Professional Development Plan to address the shortcomings in the three identified areas (namely, reflective practice, communication with patients and the obtaining of informed consent). Condition 7 requires the Registrant to prepare periodic reflective pieces. The Conditions require the Registrant to submit information to be made available to a reviewing Panel when the Conditions of Practice Order is reviewed.

29. It has already been stated that the Panel does not have any information about the Registrant’s professional activities since the final hearing concluded, and that includes the present time. Accordingly, the conditions are prefaced by the words, “To the extent that you undertake professional work for which your HCPC registration is required”. In the view of the Panel, with the focus provided by the Professional Development Plan, the Registrant should be able to address his remaining shortcomings within 12 months, and that is the reason for the duration of the Order imposed. However, if it proves to be the case that the conditions will not be applicable for some time, there is clearly a prospect that the conditions will be renewed on a review of the Order imposed today.

Order

Order: The Registrar is directed to annotate the HCPC Register to show that for a period of 12 months from the date this Order takes effect (“the Operative Date”), you, Andrea Franchini, must comply with the following Conditions of Practice:

To the extent that you undertake professional work for which your HCPC registration is required:

(1) You must place yourself and remain under the supervision of a supervisor (who can, but need not, be a workplace supervisor) who is a Physiotherapist registered by the HCPC, and you must supply details of your supervisor to the HCPC within 21 days. Without prejudice to the specific requirements of paragraphs 2 and 4 of this Order below, you must attend upon that supervisor as required and follow their advice and recommendations.

(2) You must work with your supervisor to formulate a Personal Development Plan (“PDP”) designed to address your deficiencies in the following areas of your practice:

(i) reflective practice;
(ii) communication with patients;
(iii) obtaining of informed consent.

(3) Within three months of the commencement of your work with your supervisor to formulate a PDP you must forward a copy of the PDP to the HCPC.

(4) You must meet with your supervisor on a monthly basis to consider your progress towards achieving the aims set out in your PDP.

(5) Three months after the forwarding to the HCPC of a copy of your PDP, you must request your supervisor to provide a written report on your progress towards achieving the aims set out in your PDP, and thereafter you must request such reports every three months. You must forward copies of the written reports to the HCPC as when they are received by you from your supervisor.

(6) You must allow your supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your PDP.

(7) You must maintain a reflective practice profile detailing occasions of, when and how you have used your communication skills to aid in the delivery of the effective physiotherapy treatments given particular focus in relation to informed consent and patient reassurance. You must provide a copy of that profile to the HCPC on a three-monthly basis.

(8) In relation to any professional activities undertaken by you for which your HCPC registration is required, you must promptly inform the HCPC of any employer by whom you are employed or details of any self-employed work you undertake. If the details change at any time while this Order is in force you must notify the HCPC forthwith of such change.

(9) You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

(10) You must inform the following parties that your registration is subject to these conditions:

(i) any organisation or person employing or contracting with you to undertake professional work;
(ii) any agency you are registered with or apply to be registered with (at the time of application); and,
(iii) any prospective employer (at the time of your application).

Notes

Interim Order

After the Panel handed down its decision on sanction the parties were told that they would have time to consider the written determination. At that stage the Panel expected that an application would be made by the HCPC for an Interim Conditions of Practice Order to cover the appeal period. The Panel was subsequently told of a matter of which they had previously been unaware, namely that the Registrant is subject to an Interim Suspension Order in connection with another matter. In circumstances where the Registrant is subject to an Interim Suspension Order in connection with another allegation, the HCPC has taken the view that it would not be appropriate to apply for an Interim Conditions of Practice Order to cover the appeal period in the present proceedings. Having received the advice of the Legal Assessor, the Panel agrees that it would not be appropriate for there to be at one and the same time contradictory interim orders. For that reason, the Panel considers that the HCPC’s stance is correct. The Panel would wish to add however, that if the Interim Suspension Order is revoked but the substantive Conditions of Practice Order has not come into force, then the HCPC can make an application for an Interim Conditions of Practice Order in the present proceedings.

Hearing History

History of Hearings for Mr Andrea Franchini

Date Panel Hearing type Outcomes / Status
28/02/2022 Conduct and Competence Committee Final Hearing Adjourned part heard
16/02/2022 Conduct and Competence Committee Interim Order Review Interim Suspension
17/11/2021 Conduct and Competence Committee Interim Order Review Interim Suspension
18/10/2021 Conduct and Competence Committee Other Conditions of Practice
26/08/2021 Conduct and Competence Committee Interim Order Review Interim Suspension
01/06/2021 Investigating Committee Interim Order Review Interim Suspension
27/05/2021 Conduct and Competence Committee Final Hearing Adjourned
18/12/2020 Conduct and Competence Committee Interim Order Review Interim Suspension
25/09/2020 Conduct and Competence Committee Interim Order Review Interim Suspension
02/07/2020 Conduct and Competence Committee Interim Order Review Interim Suspension