Mr Keith D Littlebury

Preliminary matters

Offering No Evidence on Particular 2(c)

1. Ms King, on behalf of the HCPC, submitted that the HCPC wished to discontinue Particular 2(c) on the grounds that Patient A, the witness dealing with that issue, had not referred to it in her evidence at the criminal court hearing and, therefore, there was insufficient evidence before the Panel to demonstrate a realistic prospect of proving that matter. Mr Buxton, on behalf of the Registrant, did not oppose the application.

2. In reaching its decision, the Panel accepted the Legal Assessor’s advice and referred to the HCPTS Practice Note on “Discontinuance of Proceedings”. The Panel accepted that Patient A had not referred to this matter during the Registrant’s criminal trial and, therefore, there was insufficient evidence before it to demonstrate a realistic prospect of proving Particular 2(c). The Panel also noted that there were other Particulars founded in alleged sexual motivation. Thus, in the Panel’s judgement, the alleged mischief sought within the Allegation would be preserved and the public interest would continue to be upheld if the Panel was to find Particular 2(c) not proved.

3. Therefore, for these reasons, the Panel determined that the application was granted and that Particular 2(c) was found as not proved.

Proceeding in private

4. The Panel noted the application from both Ms King and Mr Buxton seeking some parts of the hearing to be heard in private, due to the confidential nature of the information about Patient A and Patient B. The Panel accepted the Legal Assessor’s advice and noted the HCPTS Practice Note on “Conducting Hearings in Private”. In light of some of the information about Patient A and Patient B, the Panel determined to hear those parts of the evidence in private, so as to preserve the private and family life of Patient A and Patient B, including information confidential to them, in accordance with Rule 10(1)(a) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules).

Background

5. The Registrant is a registered Physiotherapist. He was referred to the HCPC on 21 August 2017 by his then-employer, Battersea Health Care Community Interest Company (‘BHCCIC’).

6. The BHCCIC referred the Registrant in respect of a complaint made by a female service user (Patient A) who alleged that, on 7 June 2017, the Registrant had touched her underwear without her consent and commented on her underwear in a way that was inappropriate. Patient A also alleged that the Registrant had touched her in an inappropriate manner during another appointment on 14 August 2017 and that he had said words which were inappropriate.

7. On 15 November 2017, the HCPC received a further complaint relating to a second service user, Patient B, arising from an appointment she had with the Registrant on 21 April 2017. Patient B alleged that the Registrant had inappropriately looked at an intimate part of her body without her consent during an examination.

8. The concerns in respect of Patient A resulted in a criminal trial at Kingston-upon-Thames Crown Court in May 2019. The Registrant was acquitted. The Police confirmed to the HCPC that no further action had been taken with respect to the matter involving Patient B.

9. The Panel received evidence from the following HCPC witnesses:

· Patient A, by way of: (i) her email statement to BHCCIC dated 14 August 2017; (ii) her telephone interview with the BHCCIC on 17 August 2017 and as set out in the BHCCIC’s referral to the HCPC dated 21 August 2017; (iii) Patient A’s written statement to Police dated 5 September 2017; (iv) Patient A’s oral evidence at Kingston Crown Court on 20 May 2019; (v) and (vi) Patient A’s written witness statements to the HCPC dated 14 April 2020 and 18 May 2020; and (vii) her oral evidence in this hearing;

· Patient B, by way of: (i) her email to the BHCCIC dated 17 November 2017; (ii) Patient B’s written witness statement to the Police dated 3 December 2017; (iii) her written witness statement to the HCPC dated 29 April 2020; and (iv) her oral evidence at this hearing.

· Dr Tim Edbrooke, the HCPC’s expert Physiotherapist, by way of: (i) his written expert report dated 18 May 2020; and (ii) his oral evidence at this hearing.

10. The Panel also noted the written HCPC witness statement of LM, solicitor at Kingsley Napley, dated 28 January 2021, with respect to the efforts made to obtain documentation for the hearing.

11. The Panel also heard evidence from the Registrant, by way of: (i) his statement to the BHCCIC dated 16 August 2017; (ii) an undated document relating to a conversation between the Registrant and Dr TC, Clinical Lead for Mental Health and Children’s Services and Chair of the Clinical Quality Review Group (CQRG) for St George’s Hospital Trust; (iii) a record of the Registrant’s interview by the BHCCIC dated 25 August 2017; (iv) the Police interview of the Registrant about Patient A’s allegations dated 8 September 2017; (v) the Police interview of the Registrant about Patient B’s allegation dated 10 January 2018; (vi) the Registrant’s oral evidence at his trial at Kingston Crown Court on 21 May 2019; (vii) his undated witness statement prepared for this hearing; and (viii) his oral evidence at this hearing.

12. The Panel also took into consideration the Registrant’s exhibit bundle, consisting of the records of his care given to Patient A and Patient B, his invitation to a Professional Boundaries Course on 1, 2 and 3 November 2017 at the Clinic for Professional Boundaries in London, and the said Clinic’s brochure.

Decision on Facts

13. In reaching its decisions on the facts, the Panel noted the written and oral submissions of Ms King and Mr Buxton. It accepted the Legal Assessor’s advice. The Panel also considered the documentation from the HCPC and the Registrant and the oral evidence. The Panel also paid regard to the HCPTS Practice Note on “Opinion Evidence, Experts and Assessors”.

14. The Panel found, in relation to each Particular, as follows:

Particular 1(a) – Proved

1) On 7 June 2017 at the Bolingbroke Medical Centre and in relation to Patient A, you;

a) did not offer Patient A any form of cover up during the consultation;

15. The Panel accepted the Registrant’s admission of this Particular and noted that it accorded with the written and oral evidence of Patient A.

Particular 1(b) – Proved

b) made an inappropriate comment regarding Patient A's underwear;

16. The Panel noted that Patient A had stated in her oral and written evidence that the Registrant made reference to the tag of the underwear she was wearing (a thong) being bigger than the actual fabric of the thong, or words to that effect. Patient A stated that it had been an “off the cuff” statement by the Registrant. The Panel accepted this and also noted that the expert, Mr Edbrooke, had stated that such a comment, even made in a flippant or casual way by a professional person, would not be appropriate, especially as the Panel accepted that by that time Patient A had been feeling embarrassed in her “skimpy” underwear. Furthermore, the Panel noted that the Registrant had accepted in his oral evidence that Patient A had been wearing a thong and had probably felt embarrassed about her choice of underwear for the consultation. Therefore, for these reasons, the Panel concluded that the Registrant’s comment was wholly inappropriate.

Particular 1(c) – Proved

c) touched Person A's underwear and/or underwear tag without her consent.

17. The Panel noted that Patient A had stated in her written and oral evidence that she had not given permission for the Registrant to tuck the thong tag into the thong and that she had reacted by tucking it in herself after he had started to do so. The Panel also noted that the Registrant had stated he tucked in the tag himself after saying to Patient A that it was in the way and that he was going to move it. The Registrant explained to the Panel in his oral evidence that the tag had obstructed his ability to reach the area of her lower back that he had wished to examine. The Panel concluded that it was more likely than not, as this action was a swift action on the Registrant’s part, that the Registrant started to move the tag and that the action was completed by Patient A, as stated by Patient A in her oral evidence. The Panel accepted as credible, in that brief time span, that Patient A did not consider the Registrant had explained this sufficiently in verbal form so that she could give her consent to him moving the tag, and thus she completed the manoeuvre of moving the tag into the thong herself.

Particular 2(a) – Proved

2) On 14 August 2017 at the Bolingbroke Medical Centre and in relation to Patient A, you;

a) did not offer Patient A any form of cover up during the consultation;

18. The Panel accepted the Registrant’s admission of this Particular and noted that it accorded with the written and oral evidence of Patient A.

Particular 2(b) – Proved

b) made an inappropriate comment regarding Patient A's buttocks;

19. The Panel noted the actual words which Patient A stated had been used by the Registrant. In her verbal interview with the Registrant’s employer (the BHCCIC) on 14 August 2017, as set out in the BHCCIC’s referral document to the HCPC dated 21 August 2017, Patient A stated that the Registrant said, “Isn’t that a firm arse you have”. In her Police interview of 5 September 2017, Patient A stated that the Registrant said the words, “Pwoar, what a nice tight arse”. In her evidence in the criminal proceedings, Patient A stated that the Registrant stated, “Corr [?] that’s a nice tight arse” and agreed with the description in cross-examination in the criminal proceedings that the Registrant had stated, “Whoa, that’s a nice tight arse”. In her oral evidence before the Panel, Patient A stated that she was “certain” that the Registrant had said the words, “Pwoar, what a nice tight arse”, as, when he did, she had felt “numb” and was not sure she “had heard right”.

20. The Panel also noted that Patient A, on being cross-examined in the Crown Court, stated that the words he used (“Whoa, you have a tight arse”) were not something she would ever forget.

21. The Panel also noted that Patient A had retracted that the Registrant said those words, or similar, in an email she sent to the BHCCIC dated 14 August 2017, a few hours after her second appointment with the Registrant. In that email, she stated that she could not be sure if he had used the word “arse” or “bum” when on the couch, “and him touching it and commenting that it was tight. I believe it was arse he used but I can’t be sure”.

22. The Panel also took into consideration that the Registrant stated he would not use the word “arse” and that he had said to Patient A that her “bum” or “butt” was nice and tight to encourage her that her musculature had improved. The Panel noted that the Registrant’s position as to what words he would, or might, have used had changed over time.

23. On the balance of probabilities, the Panel concluded that the weight of evidence favoured Patient A’s version of what the Registrant had said to her at this time, which was “Pwoar…”, or “Corr…”, or “Whoa…” “…that’s a nice tight arse” or “…you have a tight arse”. In the Panel’s judgement, Patient A had been consistent about the nature of the comment and the certainty she had expressed that she would not forget it. The Panel accepted Patient A’s regret expressed in her oral evidence to the Panel that she had sabotaged her position in the 14 August 2017 email (“I really shot myself in the foot with that email”). The Panel also accepted that Patient A was reluctant to be involved in a Police investigation and had sent the email to try and avoid this by downplaying the concerns. At all other times, the Panel concluded, Patient A had been sufficiently consistent in her version of what the Registrant had said to her so as to meet the standard of proof.

Particular 2(c) – Not Proved

c) inappropriately cupped Patient A’s buttock with your hand whilst she was on the couch;

24. The Panel determined that this Particular was not proved for the reasons set out in its preliminary decision on this matter.

Particular 2(d) – Proved

d) touched Patient A's right buttock with your hand without her consent.

25. The Panel noted the Registrant’s admission of this Particular. The Panel accepted the Registrant’s admission that he had tapped Patient A twice on her right buttock with his hand and had not obtained her consent for this, and that this physical touching of her right buttock by the Registrant with his hand and without her consent was also set out in Patient A’s written and oral evidence.

26. However, the Panel also noted that the context and detail of the touching action by the Registrant was set out in Patient A’s evidence in her telephone interview with the BHCCIC on 14 August 2017, her Police interview dated 5 September 2017, her Crown Court evidence on 20 May 2019, her HCPC witness statement dated 14 April 2020, and her oral evidence before this Panel.

Particular 3(a) – Proved

3) You did not make adequate records of your examination and/or testing of Patient A in respect of the consultations on:

a) 7 June 2017; and/or

27. The Panel accepted the expert evidence of Mr Edbrooke that there was insufficient detail in the Registrant’s records of his examination and testing of Patient A in respect of the 7 June 2017 consultation. This related to recording examination movements, both active and passive, and neurological tests carried out. The Registrant agreed in his oral evidence that he had not been in the habit of recording these findings as they showed no abnormality and their absence would have been obvious to any future treating practitioner that the patient had no abnormality in those respects.

28. Mr Edbrooke stated in his report and in his oral evidence that there was nothing written in the records to demonstrate that the Registrant had performed testing movements so as to provide a baseline from which either the Registrant or other Physiotherapists or medical practitioners could gauge the normal parameters of the patient’s movements. He gave an example of the absence of a record that Patient A’s spine had been examined by the Registrant, despite his record that she had “postural back pain”. In Mr Edbrooke’s opinion, the Registrant’s habit of recording only abnormalities would create deficiencies in the information on the patient for future practitioners and, thus, there would be a loss of continuity of the clinical picture.

29. The Panel concluded that the Registrant’s practice amounted to recording by omission and that, as Mr Edbrooke had stated and the Panel accepted, this was not adequate recording as it created a lack of continuity of the clinical picture of the patient.

Particular 3(b) – Proved

b) 14 August 2017.

30. The Panel accepted the expert evidence of Mr Edbrooke that there was insufficient detail in the Registrant’s records of his examination and testing of Patient A in respect of the 14 August 2017 consultation. This related to recording examination movements, both active and passive, and neurological tests carried out. The Registrant agreed in his oral evidence that he had not been in the habit of recording these findings as they showed no abnormality and their absence would have been obvious to any future treating practitioner that the patient had no abnormality in those respects.

31. Mr Edbrooke stated in his report and in his oral evidence that there was nothing written in the records to demonstrate that the Registrant had performed testing movements so as to provide a platform from which either the Registrant or other Physiotherapists or medical practitioners could gauge the normal parameters of the patient’s movements. In Mr Edbrooke’s opinion, the Registrant’s habit of recording only abnormalities would create deficiencies in the information on the patient for future practitioners and, thus, there would be a loss of continuity of the clinical picture.

32. The Panel concluded that the Registrant’s practice amounted to recording by omission and that, as Mr Edbrooke had stated and the Panel accepted, this was not adequate recording as it created a lack of continuity of the clinical picture of the patient.

Particular 4 – Proved

4) On 21 April 2017 at the Bolingbroke Medical Centre and in relation to Patient B, you pulled back Patient B's underwear band and looked at her buttocks without her consent and/or without providing an explanation for doing so.

33. The Panel noted that Patient B stated in her written and oral evidence that the Registrant had pulled on the waistband of her skirt and then her knickers, and that when he pulled at her knicker waistband she was shocked and became angry that he was doing so without asking her. She stated that she had “tutted” loud enough for the Registrant to hear and had an angry demeanour, walking out without saying goodbye at the end of the consultation. The Panel also noted that Patient B stated in her oral and written evidence that she thought he had looked down into her knickers because she felt the Registrant’s breath on her neck, as he was standing behind her, but she was not in a position to visually confirm this.

34. The Panel noted that Patient B was adamant she had not had any previous consultation with the Registrant, yet her records were clear that she had been seen by him on 17 February 2017.

35. The Panel took into consideration that the Registrant stated in his oral and written evidence that he had pulled at the waistband of Patient B’s skirt and knickers to obtain access to her Posterior Superior Iliac Spine (PSIS) area so as to continue his examination of her. He stated that he told her this was what he was going to do and that he had to repeat the action on several occasions as the waistbands kept slipping up. In cross-examination, the Registrant stated he had obtained Patient B’s consent on the first occasion and, “maybe one of the other times” but, “not every time I touched her waistband as she would have expected it by then”.

36. In the Panel’s judgement, on the balance of probabilities, the evidence of Patient B was sufficiently consistent and clear about what had taken place on 21 April 2017 as to meet the requirements of the standard of proof, despite not remembering the previous consultation. In the Panel’s judgement, Patient B’s oral evidence was robust and open and the Panel found her a compelling witness for the events of 21 April 2017.

37. The Panel concluded that the Registrant had been examining Patient B to reach her PSIS and, as he stated, had pulled her waistband of her skirt and her knickers to have better access to her PSIS and, in so doing, had looked at her buttocks, which the Panel found would have been inevitable within the legitimate examination he was conducting, and as stated by Mr Edbrooke.

38. The Panel concluded that the incident unfolded over just one attempt by the Registrant to pull out Patient B’s waistband of her skirt and knickers to perform the PSIS examination and not over several attempts, as he stated in oral evidence. The Panel also concluded that the Registrant was inconsistent about when he had attempted to obtain Patient B’s consent, saying variously in oral evidence that it was when he had asked her to put her t-shirt into her bra and, on another occasion in oral evidence, that it was when he had commenced the first of several attempts to perform the PSIS examination.

39. The Panel concluded that the Registrant did not wait for Patient B’s consent for him to pull her waistband. In Patient B’s witness statement she said, “he did not say anything when he did this; I would have expected him to ask ‘is this okay?’ beforehand, which he did not”. There was no reason for Patient B to react as she did if she had given her consent and, as she informed the Panel, if the Registrant had been previously professional in his treatment of her. Hence, in the Panel’s judgement, her “shock”, as she stated, when the Registrant pulled on her knicker waistband. After the Registrant had pulled out the waistband, the Panel accepted that Patient B had reacted angrily and that the Registrant had failed to pick up her verbal and non-verbal signals.

Particular 5(a) – Proved

5) You did not make adequate records of your examination and/or testing of Patient B in respect of the consultations on:

a) 17 February 2017; and/or

40. The Panel accepted the written evidence of Mr Edbrooke that the Registrant’s records of his examination of Patient B’s lumbar spine, hip, and knee on 17 February 2017, whilst fuller than those of Patient A, were not adequate, in that the Registrant had failed to specify the patient’s movements for each joint, their range, and limitation. The Panel noted that Mr Edbrooke retracted the concession he had made in cross-examination that the Registrant’s records had been adequate when taken to his report, which set out the inadequacies of the Registrant’s record of his examination of Patient B on 17 February 2017. The Panel found Mr Edbrooke’s written report to be well considered.

Particular 5(b) – Proved

b) 21 April 2017

41. The Panel accepted the written evidence of Mr Edbrooke that the Registrant’s records of his examination of Patient B on 21 April 2017, whilst fuller than those of Patient A, were not adequate, in that the Registrant had failed to specify the patient’s specific movements when examining Patient B’s lumbar spine and hip. The Panel noted that Mr Edbrooke retracted the concession he had made in cross-examination that the Registrant’s records had been adequate when taken to his report, which set out the inadequacies of the Registrant’s record of his examination of Patient B on 21 April 2017. The Panel found Mr Edbrooke’s written report to be well considered.

Particular 6

6) Your actions as described at paragraphs 1(a) and/or 1(b) and/or 1(c) and/or 2(a) and/or 2(b) and/or 2(c) and/or 2(d) and/or 4 above were sexually motivated.

42. In relation to Particular 6, the Panel examined the evidence critically and in detail. It also noted that the Registrant denied any sexual conduct/motivation.
Particular 6) in relation to 1(a) – Not Proved

43. The Panel found that the Registrant had not offered Patient A any form of cover up during the consultation of 7 June 2017. The Panel noted that the Registrant had stated in his oral and written evidence that this was his custom, as a covering could interfere with his clinical examinations. This was endorsed by Mr Edbrooke in his expert opinion. The Panel accepted this as a feasible and realistic alternative explanation to that of a sexual motivation for that action.

Particular 6) in relation to 1(b) – Not Proved

44. The Panel found that the Registrant had made reference to the tag of the underwear that Patient A was wearing (a thong) being bigger than the actual fabric of the thong, or words to that effect. Patient A stated that it had been an “off the cuff” statement by the Registrant. The Panel concluded that, whilst it was a wholly inappropriate comment for the Registrant to make to Patient A, there was no evidence that it was made in anything other than a flippant, careless, and/or casual way and, therefore, it was not sexually motivated.

Particular 6) in relation to 1(c) – Not Proved

45. The Panel found that the Registrant had touched the tag of Patient A’s thong and did so without her consent. However, the Panel also found that he did so in order to conduct his clinical examination of that area of Patient A’s body and that the tag would have obstructed his examination. This was endorsed as a reasonable and necessary action by Mr Edbrooke in his written and oral expert evidence. Therefore, the Panel concluded that this was a feasible and realistic alternative explanation to that of a sexual motivation for that action by the Registrant.

Particular 6) in relation to 2(a) – Not Proved

46. The Panel noted that the Registrant had not offered Patient A any form of cover up during the consultation of 14 August 2017. The Panel noted that the Registrant had stated in his oral and written evidence that this was his custom, as a covering could interfere with his clinical examinations. This was endorsed by Mr Edbrooke in his expert opinion. The Panel accepted this as a feasible and realistic alternative explanation to that of a sexual motivation.
Particular 6) in relation to 2(b) – Proved

47. The Panel found that the Registrant said words to the effect of “Pwoar…” or “Corr…” or “Whoa…” “…what a nice tight arse” to Patient A. The Panel considered carefully any alternative realistic and/or feasible reason for the Registrant to have used that form of words to Patient A at that time other than sexually. The Panel could not reconcile the Registrant’s explanation that he was simply remarking on the improvement in Patient A’s musculature with the connotation of the words he said, especially as he prefaced them with the exclamation “Pwoar…” or “Corr…” or “Whoa…”. In the Panel’s determination, there could be no other conclusion than that the Registrant’s words were sexual.

Particular 6) in relation to 2(c) – Not Proved

48. The Panel had determined that this Particular was not proved for the reasons set out in its preliminary decision on this matter.

Particular 6) in relation to 2(d) – Proved

49. The Panel found that the Registrant had touched Patient A’s right buttock with his hand without her consent.

50. The Panel noted that in Patient A’s verbal telephone interview with the BHCCIC on 14 August 2017, set out in the BHCCIC’s referral document to the HCPC dated 21 August 2017, she stated that the Registrant had asked her to put her clothes on and when she bent over to pick up her trousers he, “slapped one side of her bum before she could get her trousers up”. She also stated to the BHCCIC that he had done this after his comment, “Oh, isn’t that a firm arse you have” and she had felt, “very uncomfortable” at that stage, “as she was exposed with only her underwear on”.

51. The Panel further noted that in her Police interview on 5 September 2017, Patient A stated that at the end of the consultation she had stood a “comfortable” distance away from the Registrant. She stated, “…I covered my breasts with my hands because I was wearing a bra with no top and felt uncomfortable. He was saying I need to keep up the exercise and that he wanted to see me again in a couple of weeks to see how I was getting on. I asked if I can get dressed, he said that I could. I was standing up and turned to pick up my clothes which was on a chair behind me, he came up behind me and touched my right butt cheek with his hand, it was not a squeeze but more of a pat”.

52. The Panel further noted that, in the Crown Court hearing on 20 May 2019, Patient A stated that after the Registrant stated the words, “Whoa, you have a tight arse”, she said, “I was stick (sic) of being stood in my underwear, I asked to – if I could get dressed so I turned and he pushed my bum as I turned to pick up my clothes”.

53. The Panel also noted that in Patient A’s witness statement for the HCPC dated 14 April 2020, she stated as follows: “I asked him if I could get dressed and he said that I could. As I turned to pick up my clothes from a chair behind me, he came up behind me and touched my right butt cheek with his hand. lt was more of a pat than a squeeze”.

54. In Patient A’s oral evidence in examination in chief before the Panel, she said about this incident that she was two (2) metres away from him as she wanted to get out of the room, and he came up behind her “to reach me” and that was when he tapped her bottom without asking her or explaining why.

55. In cross-examination before the Panel, Patient A stated that the exercises she had done for the Registrant were performed away from the couch and desk and that she had placed her clothes on a chair. She agreed with questions put to her that the Registrant had been observing her posture to one side of her and that he pressed his thumb into her back at the very end of the consultation to see if her pelvis was aligned to her spine, and that was when he “double tapped” her on the right side of her buttock to indicate that was the end of the appointment saying the words, “That’s fine, you can get dressed now.” Patient A also agreed with further questions put to her that the Registrant’s last words to her were to, “keep up with the exercises. I am going to refer you for physiotherapy and you will hear about an appointment”. It was also put to her that the Registrant then stood up and she stated, “…potentially. That’s what he said, the last thing.”

56. The Panel concluded that the overwhelming evidence given by Patient A, at times when the accounts she had given were much closer in time to the incident, were consistent and clear. In the Panel’s determination, the evidence she had given indicated that the Registrant had to physically move a distance within the room to pat her bottom. When contextualised with the sexual comment he had made at a time relatively recently before that action, the Panel could only conclude that his action in patting her bottom was sexual. The Panel, when weighing Patient A’s evidence overall with the Registrant’s evidence on this incident, preferred that of Patient A as being more credible, consistent, and likely. The Panel could not find any alternative credible reason for the Registrant to tap Patient A’s bottom, and so soon after making a sexual comment about her bottom, other than for a sexual reason.

Particular 6) in relation to 4) – Not Proved

57. The Panel noted that Patient B stated in her oral evidence to the Panel that she did not think the Registrant’s action of looking down into her knickers at her buttocks was sexual. The Panel also noted that Patient B had been facing with her back to the Registrant at that time and, therefore, could not state with any degree of probability that he was acting in a sexual manner. Furthermore, the Panel took into consideration that Patient B said that she had not seen him look down into her knickers at her buttocks.

58. The Panel concluded that the Registrant had been examining Patient B to reach her PSIS and, as he stated, had pulled at the waistband of her skirt and knickers to have better access to her PSIS and, in so doing, had looked at her buttocks, which the Panel found would have been inevitable within the legitimate examination he was conducting and as stated by Mr Edbrooke.

59. Therefore, for these reasons, the Panel was not satisfied that the Registrant’s actions in regard to this particular were sexual and/or sexually motivated.

Decision on Grounds

60. In reaching its decision, the Panel took into consideration the written and oral submissions of Ms King and Mr Buxton and the HCPC Standards of Conduct, Performance and Ethics (the Standards) and the Standards of Proficiency for Physiotherapists (the Proficiency Standards). The Panel accepted the Legal Assessor’s advice.

61. The Panel firstly concluded that the facts found proved in Particulars 5(a) and 5(b) did not amount to misconduct if taken in isolation. The Panel accepted Mr Edbrooke’s evidence on Patient B’s records, and noted that he described them as less than adequate but not falling below the standards expected of a professional.

62. With regard to the remaining facts found proved, the Panel concluded that these acts demonstrated that the Registrant’s conduct was highly insensitive to his patients’ needs, that he lacked any empathy to notice when they were either not consenting to him touching them or feeling very uncomfortable or angry, and that he had no genuine insight into the consequences of his actions. The Panel noted that the Registrant had caused considerable distress to the two patients affected by his actions and comments.

63. The Panel concluded that the Registrant’s indifferent and insensitive conduct towards Patient A on both the occasions he saw her, and his sexual conduct towards her on 21 August 2017, placed this at the most serious end of the spectrum of gravity. The Panel also determined that this case demonstrated the Registrant’s communication skills were severely lacking.

64. In the Panel’s judgement, the facts found proved demonstrate that the Registrant’s actions and comments amounted to a serious falling below the standards expected of a Physiotherapist and his actions and comments directly breached the trust of the two patients. The Panel concluded that the Registrant’s actions and comments severely undermined the trust that any patient is entitled to hold in a healthcare professional. In the Panel’s judgement, the Registrant acted in such a way that fell far short of what would be proper in the circumstances, and was deplorable conduct which brought the profession into disrepute.

65. In taking the facts found proved in the round, the Panel concluded that the Registrant had breached several fundamental principles of the profession by failing to treat service users with dignity and respect, by failing to obtain consent from Patient A and Patient B, and by failing to record appropriately during his consultations with Patient A and Patient B.

66. The Panel concluded that the Registrant, by his actions and comments, breached the following Standards:

1 Promote and protect the interests of service users and carers

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

1.2 You must work in partnership with service users and carers, involving them, where appropriate, in decisions about the care, treatment or other services to be provided.

1.3 You must encourage and help service users, where appropriate, to maintain their own health and well-being, and support them so they can make informed decisions.

1.4 You must make sure that you have consent from service users or other appropriate authority before you provide care, treatment or other services.

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

2 Communicate appropriately and effectively

2.1 You must be polite and considerate.

2.2 You must listen to service users and carers and take account of their needs and wishes.

2.3 You must give service users and carers the information they want or need, in a way they can understand.

9 Be … trustworthy

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

10 Keep records of your work

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

67. The Panel also concluded that the Registrant breached the following Proficiency Standards:

2 be able to practise within the legal and ethical boundaries of their profession

2.1 understand the need to act in the best interests of service users at all times

2.2 understand what is required of them by the Health and Care Professions Council

2.3 understand the need to respect and uphold the rights, dignity, values, and autonomy of service users including their role in the diagnostic and therapeutic process and in maintaining health and wellbeing

2.4 recognise that relationships with service users should be based on mutual respect and trust, and be able to maintain high standards of care even in situations of personal incompatibility

2.5 know about current legislation applicable to the work of their profession

2.6 understand the importance of and be able to obtain informed consent

2.7 be able to exercise a professional duty of care

3 be able to maintain fitness to practise

3.1 understand the need to maintain high standards of personal and professional conduct

5 be aware of the impact of culture, equality and diversity on practice

5.2 be able to recognise the need to identify and take account of the physical, psychological, social and cultural needs of individuals and communities

8 be able to communicate effectively

8.1 be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, colleagues and others

8.3 understand how communication skills affect assessment and engagement of service users and how the means of communication should be modified to address and take account of factors such as age, capacity, learning ability and physical ability

8.5 be aware of the characteristics and consequences of verbal and non-verbal communication and how this can be affected by factors such as age, culture, ethnicity, gender, socio-economic status and spiritual or religious beliefs

10 be able to maintain records appropriately

10.1 be able to keep accurate, comprehensive and comprehensible records in accordance with applicable legislation, protocols and guidelines

68. For these reasons, the Panel determined that (save for Particulars 5(a) and 5(b)) the facts found proved, taken as a whole, amounted to misconduct.

Decision on Impairment

69. In reaching its decision, the Panel took into consideration the written and oral submissions of Ms King and Mr Buxton and the HCPTS Practice Note on “Fitness to Practise Impairment”. The Panel accepted the Legal Assessor’s advice.

70. The Panel concluded that the Registrant’s misconduct was founded on his indifference and insensitivity towards Patient A’s and Patient B’s best interests. He disregarded their right to dignity and respect as females and as patients.

71. In the Panel’s judgement, whilst the Registrant’s actions were remediable in principle, the sexual misconduct would be harder to remediate fully and successfully, especially without him currently being in Physiotherapy practice. The Panel noted the Registrant’s long career as a Physiotherapist and that he has not had any previous findings before the HCPC or any other regulator. He had also attended a three-day course on professional boundaries in November 2017. The Panel also noted that the Registrant had not been in Physiotherapy practice since these events took place and was now a teacher abroad. When asked by the Panel in oral evidence about how he would avoid these issues occurring in the future, the Panel noted that the Registrant was unable to relate how he could transfer any remediation skills he might gain into his present position and to his adult students.

72. In the Panel’s judgement, this demonstrated the Registrant’s continuing inability to recognise and accept his professional failings and inappropriate behaviour, and only served to give the Panel considerable concern that he would be likely to repeat the misconduct in the future, to the detriment of any future patients if he were to return to Physiotherapy of his own volition.

73. The Panel also noted the way in which the Registrant expressed his remorse. The Panel found his approach to this to be identical to his approach to Patient A and Patient B; it was aimed towards himself and not towards his patients, with a lack of empathy and understanding of the patients’ positions on those days. In the Panel’s opinion, by seeking to blame the modern-day culture of everybody needing to find others to blame for what had happened to them, the Registrant was casting blame elsewhere and refusing to take responsibility for his actions and comments. In the Panel’s judgement, the Registrant expressed this without genuinely understanding the position that he had put his two patients in on those days and without true remorse.

74. Therefore, for these reasons, the Panel concluded that the Registrant had limited insight and was at considerable risk of repeating his misconduct. The Panel concluded that, therefore, the public would be at considerable risk of harm if the Registrant were to be declared not impaired and fit to practise.

75. Furthermore, in the Panel’s judgement and for the same reasons, the public would be shocked and concerned if the Registrant was to be found not impaired and therefore fit to practise. The misconduct related to findings of sexual conduct regarding Patient A and inappropriate behaviour towards both Patient A and Patient B. The conduct found proved demonstrated an attitude in the Registrant, both at the time and in this hearing, that would not give any confidence to an informed member of the public that such misconduct would not take place again in the future.

76. Thus, for these reasons, the Panel determined that the Registrant’s fitness to practise is impaired on the grounds of public protection and in the public interest.

Resumed hearing

77. The case resumed on Monday 6 September 2021. There were some changes in the persons present, namely a change of Presenting Officer, who was Mr James Lloyd, a change of Hearings’ Officer and a different Legal Assessor (as detailed above). All other persons present remained the same.

Sanction

78. In reaching its decision on sanction, the Panel took into account the submissions made by Mr Lloyd and those made by Mr Buxton, together with all the written evidence and all matters of personal mitigation. The Panel also referred to the guidance issued by the Council in its Indicative Sanctions Policy (“ISP”). The Panel had in mind that the purpose of sanctions was not to punish the Registrant, but to protect the public, maintain public confidence in the profession and maintain proper standards of conduct and performance. The Panel was also cognisant of the need to ensure that any sanction is proportionate. The Panel accepted the advice of the Legal Assessor.

79. The Panel considered the aggravating factors in this case to be:

• an indifference and insensitivity towards Patient A’s and Patient B’s best interests
• a disregard for Patient A’s and Patient B’s right to dignity and respect
• that Patient A was a particularly vulnerable patient
• the long-term impact of his behaviour on both patients
• a gross breach of trust and abuse of the power imbalance that exists between a physiotherapist and patient
• there were serious breaches across a range of fundamental and professional principles and standards
• limited insight and a lack of genuine remorse, suggestive of underlying attitudinal issues

80. The Panel considered the following mitigating factors:

• this is the first time that the Registrant has been subject to proceedings before the HCPC
• attendance on a relevant course

81. The Panel approached the ladder of sanction, beginning with the least restrictive sanction. In light of the seriousness of the conduct, the Panel did not consider this was an appropriate case to take no further action or consider mediation, since neither would protect the public from the risks identified by the Panel or reflect the seriousness of the misconduct.

82. The Panel then considered whether to caution the Registrant. However, the Panel was firmly of the view that such a sanction would not reflect the seriousness of the misconduct in this case. The Registrant breached professional boundaries with a vulnerable patient and the Panel found that his behaviour was, amongst other things, sexually motivated. He also failed to obtain proper consent in relation to both Patient A and Patient B or to treat them with dignity and respect and he failed to keep proper records. The Panel has already concluded that there is a risk of such behaviour being repeated given the limited insight shown by the Registrant and the lack of evidence of effective remediation. A caution, therefore, would not protect the public from any such risk. The Panel was also of the view that public confidence in the profession, and the HCPC as its regulator, would be undermined if such behaviour were dealt with by way of a caution.

83. The Panel next considered whether to place conditions on the Registrant’s registration. The ISP states that before imposing conditions a Panel should be satisfied that:
• the issues which the conditions seek to address are capable of correction;
• there is no persistent or general failure which would prevent the registrant from doing so;
• appropriate, realistic and verifiable conditions can be formulated;
• the registrant can be expected to comply with them; and
• a reviewing Panel will be able to determine whether those conditions have or are being met.

84. The Panel also noted from the ISP that conditions will rarely be effective unless the Registrant is genuinely committed to resolving the issues they seek to address and can be trusted to make a determined effort to do so. Therefore, conditions of practice are unlikely to be suitable in cases:
• where the registrant lacks insight or denies any wrongdoing;
• where there are serious or persistent overall failings; or
• which involve dishonesty, breach of trust or the abuse of service users.

85. The Panel considered that ordinarily some of the failures in this case, such as the record keeping failures, could be addressed by conditions. However, acting in a sexually motivated way towards a patient is not something easily addressed by way of conditions, particularly given the Registrant is not currently in physiotherapy practice. Furthermore, the Registrant lacks insight and denied that any of his actions were sexually motivated, so it could not be known if he was really committed to resolve the issues the conditions would seek to address or could be trusted to make a determined effort to do so. The Panel was also cognisant of its observation at the impairment stage, namely that, “When asked by the Panel in oral evidence about how he would avoid these issues occurring in the future, the Panel noted that the Registrant was unable to relate how he could transfer any remediation skills he might gain into his present position and to his adult students.” And that, “In the Panel’s judgement, this demonstrated the Registrant’s continuing inability to recognise and accept his professional failings and inappropriate behaviour, and only served to give the Panel considerable concern that he would be likely to repeat the misconduct in the future, to the detriment of any future patients if he were to return to Physiotherapy of his own volition.”

86. The Panel also considered the Registrant’s remorse to be lacking in that he sought to blame the modern-day culture of everybody needing to find others to blame for what had happened to them. By doing so the Registrant was casting blame elsewhere and refusing to take responsibility for his actions and comments. This demonstrated not only a lack of remorse but also a lack on insight into the seriousness of his behaviour. Accordingly, even if it had been possible to formulate conditions, the Panel did not consider that a Conditions of Practise Order would adequately reflect the seriousness of the Registrant’s misconduct in this case.

87. The Panel next considered whether to make a Suspension Order. The ISP states that, “Suspension should be considered where the allegation is of a serious nature but unlikely to be repeated and, thus, striking off is not merited.” The Panel reminded itself of its earlier findings of limited insight, sexually motivated behaviour, lack of consent, the abuse of a position of trust of a vulnerable patient and the real risk, in the Panel’s view, of repetition. The Panel has also concluded at the impairment stage that the public would be at considerable risk of harm if the Registrant were to be declared not impaired and fit to practise. Although a Suspension Order would provide protection to the public for its duration, the Panel was not satisfied that it would be sufficient to maintain public confidence in the profession or the regulatory process, or to send a clear message to the profession at large that such behaviour would not be tolerated. The Panel also noted that the Registrant did not provide any reflection on the findings made by the Panel at the facts, misconduct and impairment stage of the proceedings. In all these circumstances, the Panel considered that a Suspension Order would not be a sufficient sanction in the circumstances of this case.

88. The Panel therefore looked at the guidance in the ISP on making a Striking Off Order in order to decide whether such an Order would be appropriate. The guidance states that, “Striking off is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust such as, sexual abuse, dishonesty or persistent failure.” It goes on to observe that “Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. A Registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate.” The Panel finds that this case is characterised by denial, a gross abuse of trust, sexually motivated acts, limited insight and no genuine remorse.

89. The ISG goes on to suggest that a Striking Off Order may be appropriate where the nature and gravity of the allegation are such that any lesser sanction would lack deterrent effect or undermine confidence in the profession. The Panel’s earlier finding in relation to the consideration of a Suspension Order identified that a lesser sanction would indeed be insufficient to represent these wider public interest issues in the specific circumstances of this case.

90. A Physiotherapist often works autonomously and must be trusted to work transparently, collaboratively, to maintain professional boundaries and not act in a sexualised way, abusing the position of trust they are in and the power imbalance they have over all patients, but particularly vulnerable patients. Furthermore, they must keep accurate and appropriate records. A failure to do so puts patient care at risk and makes it extremely difficult for other health care professionals, who might be involved in the care of those patients to know what treatment has been provided and the efficaciousness of that treatment. The Panel has found that the Registrant failed to act in the best interests of Patient A and Patient B in many different respects and decided that there continues to be a risk that he would do so in the future.

91. The Panel concluded that, in light of the seriousness of the misconduct, the limited insight and effective remediation and the underlying attitudinal issues revealed in his evidence, leaving a real risk that the behaviour would be repeated, the only appropriate sanction in this case was to make a Striking Off Order. The Panel took into account the impact this would have upon the Registrant, but concluded that the need to protect the public outweighed his interests and that no other sanction would adequately protect the public and the public interest in maintaining standards within the profession.

92. Accordingly, the Panel makes a Striking Off Order and directs the Registrar to erase Mr Littlebury’s name from the Register.

Order: The Panel decided to strike the Registrant’s name from the HCPC Register.

Interim Order:

1.The Panel heard submissions from Mr Lloyd on the need for an Interim Order to cover the period during which an appeal may be made and, if one is made, whilst that appeal is in progress. Mr Buxton, on behalf of the Registrant, did not oppose the making of such an order. The Panel heard and accepted the advice of the Legal Assessor.

2. The Panel has found that the Registrant breached professional boundaries with a particularly vulnerable patient and the Panel found that his behaviour was, amongst other things, sexually motivated. He also failed to obtain proper consent in relation to both Patient A and Patient B and failed to keep proper records. The Panel has already concluded that the Registrant represents a continuing risk to the public because there remains a concern that he would repeat the behaviour in the absence of any evidence to the contrary, particularly given his limited insight and remediation. The Panel therefore concluded that an Interim Order was necessary to protect the public from the risks it had identified to cover the 28 day appeal period, or the time taken to conduct any appeal, in the event that one is made.

3. The Panel is also of the view that, given the nature and seriousness of the misconduct in this case, public confidence in the regulatory process would be undermined if the Registrant were allowed to remain in practice on an unrestricted basis during any appeal period. The Panel therefore determined that an Interim Order is otherwise in the public interest.

4. The Panel first considered whether a Conditions of Practice Order would be sufficient. However, for the same reasons as dealt with at the sanction stage, the Panel concluded that conditions would not be appropriate or proportionate in this case.

5. The Panel therefore decided to make an Interim Suspension Order for 18 months, 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) or upon the final determination of any appeal, subject to a maximum period of 18 months.

6. That concludes this hearing for today.

History of Hearings for Mr Keith D Littlebury