Mr Judha David Samson Manuel
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As a registered Physiotherapist (PH65377) your fitness to practise is impaired by reason of a conviction. In that:
1. On 16 September 2021, you were convicted at Swansea Crown Court of the following offence:
• Touched a woman aged 16 or over and that touching was sexual when she did not consent and you did not reasonably believe that she was consenting, contrary to section 3 of the Sexual Offences Act 2003.
2. By reason of your conviction your fitness to practise is impaired.
2. The Registrant Judha David Samson Manuel (‘the Registrant’) is registered with the HCPC as a Physiotherapist. He was employed as a Clinical Lead Physiotherapist at Withybush Hospital, Haverfordwest, Pembrokeshire.
3. On 6 June 2018, Ms HA, Head of Physiotherapy at Hywel Da University Health Board (“the Board”) notified the HCPC of a concern about the Registrant.
4. On 19 December 2019, the HCPC was informed by the Crown Prosecution Service that a decision had been made to charge the Registrant with an offence of sexual assault.
5. On 16 September 2021, the Registrant appeared at Swansea Crown Court charged with one count of sexual assault contrary to Section 3 of the Sexual Offences Act 2003, to which he pleaded not guilty. The Registrant was convicted on indictment of the offence.
6. On 26 October 2021 the Registrant was sentenced at Swansea Crown Court by His Honour Judge Huw Rees to 12 months’ imprisonment. The sentence of imprisonment was not suspended. HHJ Rees further ordered that the Registrant should be placed on the Sex Offender register for a period of 10 years and that a Restraining Order for 10 years should be imposed.
7. The HCPC documents included a copy of the transcript of the sentencing hearing of 26.10.21. HHJ Huw Rees set out the circumstances of the offence as follows:
“That student was (name 1). Under the guise of taking part in an assessment, which in fact was entirely irrelevant for the placement, you sought to show (name 1) how to listen to her pulse from both the femoral valve and the mitral valve, using a stethoscope. During that sham procedure you took advantage of your position over her as a tutor over a student, by touching her abdomen and placing your stethoscope on her bare breast and in the area of her groin, during which part, you rested your fingers on the skin of her vagina.
It is necessary to have a rehearsal of the evidence that she gave because it amounts to something more than the summary that I have just mentioned. She said that you first stood next to the bed then sat on the bed and performed an abdominal assessment, feeling areas of her abdomen. She described you doing that in a very strokey, her word, manner. Holding your hand in various places.
She said, “he was being sensual in the way he touched me, gentle, provocative, it was on my abdomen, all over, on the side. This lasted, I was in a flap at the time, I am guessing for five or ten minutes. He asked me if I had heard of the mitral valve, I said I had not, I had not heard of it. He grabbed my tunic and bra, he lifted my tunic and bra. They were lifted to fully expose my breasts.”
She indicated just below the collar bone when she gave evidence. “He did not tell me or ask for my consent, if he had, I would not have given it. I did not want him to expose my breasts. He put the stethoscope to my ear and held it to where I should be listening on my heart. It was placed where the heart is. My breast was exposed for maybe two to three minutes. My bra did not need to be moved to place the stethoscope to where it was placed.”
“I think I said that I could not hear anything, this lead on to him asking if I had ever heard of the femoral pulse. I said I had not, and I also said I had varicose veins which would not be able to allow me to hear anything. I think I said that in an attempt to stall what was happening. He said, I am a professional we will be able to hear it do not worry. He went to grab the waistband on my trousers and gently pulled them down. I put my hand on my waistband to stop him from pulling my trousers down. I took the head of the stethoscope and put it where I understood the femoral pulse to be and I said I could not hear anything.”
“He put his hands down my trousers, one hand. My hand was on the waistband. He put my knickers to the side and moved it to the side. He had the stethoscope in between my vagina and legs and had his fingers resting on the skin of my vagina. His demeanour was excited, fumbly that is, stuttering with his words and being jittery. He was aroused and he was excited.”
Later she said, “I said I feel as if I have a hernia. I did that to bring the matter to a close really. As we finished, this was said as we walked towards the door, he said you would be a great candidate for my cardiac assessment, but you would have to have no clothes on at all for that.”
You did all this in a locked room which was used infrequently during daytime. To that extent, you planned what you were doing. This incident occurred on the last day of (name 1) placement. You may have harboured the hope that she would not return thereafter and have the occasion to raise a complaint against you, face to face, as it were.
On subsequent visits, which did occur seemingly unbeknown to you, (name 1) recalled that you appeared uncomfortable seeing her again. So, you were responsible for locking the door in order to be alone with a girl who is much younger than you, and in a totally different position, as far as status is concerned, within the hospital setting.
She was vulnerable because she looked up to you as someone in a position of some authority over her. In evidence she said that during the incident she felt panic stricken because she was with someone who had been kind, her word, kind to her. And she said this: “I thought he was learned and respected and who was I to challenge him in any way as a student nurse.”
At the end of the last statement, dated 1 February, she confirms that she now works as a registered nurse. Something that she feels proud of as an achievement. But she says the stress and upset of this incident and the case “has greatly jaded the last 20 months of my life.”
8. HHJ Huw Rees told the Registrant “You used your position and reputation to gain access to this student and you thereafter manipulated a situation in order to engage in a sexual assault for your obvious sexual gratification which as described by her and as which I have recounted when she said you were aroused and excited.”
9. In sentencing, HHJ Huw Rees described the offence as a substantial breach of trust. He referred to the Registrant’s previous good character and his excellent work record as a well-regarded physiotherapist and that he is a family man. He took account of the delay in bringing the case, but also the fact that the Registrant had pleaded not guilty. HHJ Rees referred as an aggravating factor to “the specific targeting of a particularly vulnerable victim” and the location of the offence, during the working day in a hospital where the victim was on placement as a student who was under his supervision.
Response of the Registrant to the allegation
10. The Registrant indicated that he accepted that he had been convicted of the offence by the criminal court, but he maintained his denial of the offence. The Panel determined to treat the allegation as denied.
The HCPC’s case
11. On behalf of the HCPC, Mr Keating set out the background facts in the case. Mr Keating relied upon the documentary evidence in the hearing bundle, in particular the Certificate of Conviction from Swansea Crown Court and the transcript of the sentencing remarks of HHJ Huw Rees.
12. Mr Keating referred to the terms of Rule 10(1)(d) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”) which provides that a certificate of conviction shall be admissible as proof of the conviction and the facts upon which it was based.
13. Mr Keating referred to the authority in the case of Achina v GPhC  EWHC 415 (Admin), which confirmed that sentencing remarks are part of the case which a panel should treat as amounting to conclusive proof of what has occurred.
14. It was the HCPC’s case that the facts were proved by the documentary evidence and that that the statutory ground of conviction under Article 22(1)(a)(iii) was established.
15. In relation to current impairment Mr Keating provided written submissions on behalf of the HCPC and addressed the Panel. He said that the HCPC’s position was that the Registrant’s fitness to practise is currently impaired in respect of both the personal and public components of impairment and that all three elements of the public interest are engaged by the Registrant’s conviction in this case. He referred to the serious nature of the criminal offence of which the Registrant had been convicted, referring to the sentencing remarks of HHJ Rees.
16. Mr Keating reminded the Panel that given his continued denial of the offence, the Registrant has been unable to demonstrate any remediation, remorse or insight and therefore there is a continuing risk of harm to the public.
17. Mr Keating reminded the Panel that in respect of the sentence in this matter, the Registrant remains on licence and that he will remain on the Sex Offenders register until October 2031. Mr Keating referred to the authority in the case of CRHP v GDC & Fleischmann  EWHC 87 Admin that a practitioner who has not completed their criminal sentence should not usually be allowed to return to practice without restriction.
18. Mr Keating asked the Panel to conclude that the Registrant’s fitness to practise is impaired in respect of both the personal and public components of current impairment.
The Registrant’s case
19. The Registrant affirmed and gave oral evidence. He had indicated that he understood that he had been convicted of the offence by the Crown Court at Swansea and that the Panel would approach the matter on that basis. However, the Registrant said that he denied the offence throughout the criminal proceedings and still maintains that he should not have been found guilty. He said he had not had the finances to appeal.
20. The Registrant told the Panel that he qualified as a Physiotherapist in 1999 and had been registered with the HCPC since 2004. Throughout his career he had been involved in teaching and training and had worked with female staff and therapists. He explained to the Panel how the student nurse (identified in the papers as “Person 1”) came to do her placement on Ward 3, a surgical ward. Person 1 undertook her placement on 19 April 2018. The Registrant said that he gave her an induction and introduced her to colleagues and patients in ICU. The Registrant said that he was looking after three patients and Person 1 spent time observing and learning. Person 1 asked later if she could observe the endoscopy procedure which had been discussed for one patient and consent was obtained for this. The Registrant saw Person 1 again after his lunch break when she thanked him and said she had found the placement very useful. The Registrant signed the placement documentation for Person 1 and she left the ward. Person 1 put a positive comment about her placement on her Facebook page. The Registrant saw her on one further occasion in Ward 4 when she said “hello” and thanked him for the placement again. Person 1 was at this time working a shift as a bank healthcare assistant.
21. The Registrant said that he never left the ICU on the day of the offence. He referred to the anaesthetic rest room where Person 1 stated that the offence took place as having a security lock and being kept locked. He said there was a seminar room next door where on the day in question there were 7 people in a seminar and the walls were thin. No one in the room heard any adverse incident on that day.
22. The Registrant said that he was first interviewed by the police in June 2018. He referred to concerns he had about the police investigation. He said he was never provided with documentation and CCTV footage was not looked at. He believed it was unfair that witnesses were not asked to give witness statements until three years later. He referred to the delay in bringing the case to trial.
23. The Registrant said he had no previous convictions or complaints against him after twenty years in practice. He did not understand how he could have been charged and convicted of this offence. He maintained a complete denial that any incident as described by Person 1 had taken place.
24. In response to questions from Mr Keating in cross-examination, the Registrant confirmed the fact of his conviction and his sentence from the criminal court. He was asked if he accepted that a physiotherapist who had been convicted of such an offence would not be fit to practise, that a person who was on the Sex Offender register was not to practise and could put members of the public at risk and that this could undermine public confidence in the Physiotherapy profession and in the HCPC as its regulator. The Registrant replied that he did “according to the law”, but not in his personal opinion in his circumstances.
25. The Registrant called three witnesses to give oral evidence. (The Panel agreed to hear the witnesses at the impairment stage, after agreement from Mr Keating and advice from the Legal Assessor, as a matter of fairness to the Registrant and to ensure it considered all evidence relevant to current impairment, but it resolved to treat with caution at this stage any evidence which was primarily evidence relating to good character).
Witnesses for the Registrant
26. Dr A worked with the Registrant from 2017-2018 when she was a Surgical Trainee on the ITU. She said that she had always found the Registrant to be professional and to have complete integrity in his attitude to patients and colleagues. She was aware of the Registrant’s criminal conviction. She had no personal knowledge of the incident concerning Person 1. She confirmed the details the Registrant put to her about the location and security of the anaesthetic rest room. She never witnessed the Registrant make any patient or colleague uncomfortable or behave inappropriately towards them. She herself had acted as a mock patient for the Registrant and had had no concerns. She had never heard any negative comments regarding the Registrant and on the contrary, comments to her were that the Registrant was a very valued member of staff. NA confirmed that she was aware of the Registrant’s criminal conviction.
27. DC had joined the Health Board in 2008. He worked with the Registrant from that time onwards and quite closely in the later period. He said in his experience the Registrant was professional and courteous to colleagues and patients. He had never witnessed any inappropriate behaviour by the Registrant. He was not aware of any complaints about the Registrant and said that often patients asked about the Registrant and spoke of the excellent treatment he had provided. DC also confirmed the Registrant’s description of the unit and the anaesthetic rest room.
28. DC stated that on 19 April 2018 he was in the seminar room with seven other people. He did not hear the Registrant in the rest room next door and was not aware of any incident taking place.
29. DC confirmed that he was aware of the Registrant’s criminal conviction.
30. FB is a Registered Nurse. She had known the Registrant since 2008, initially when she was a cleaner, then as a healthcare assistant and she had worked with him on Ward 3 once she qualified as a nurse in 2013.
31. FB agreed with the Registrant’s descriptions of the location of rooms on the ward, the rest room, which she agreed was kept locked, and the seminar room.
32. FB confirmed that she had never been made aware of any complaints or concerns about the Registrant. She had always found him professional, caring, kind and respectful to colleagues and patients.
The Registrant’s submissions on current impairment
33. The Registrant referred to his good character prior to the conviction and since. The Registrant said he has always loved his profession. He referred to the support he has received from his family and friends and said he has tried to move forward since his conviction.
34. The Registrant told the Panel he believed he had been a victim of a miscarriage of justice. He referred to the unfairness of the investigation and the delay. He referred to the article from Cardiff University dated 9.01.19 which referred to research indicating that “non-white defendants are more likely to be jailed in Wales”. The Registrant said he felt that he had been unfairly treated in comparison to Person 1, who unlike him, had not been suspended or unable to continue her studies during the investigation.
35. The Registrant referred to the large number of written testimonials in his document bundle, including a number from former colleagues at Withybush Hospital. He told the Panel that these attested to his professional behaviour as a Physiotherapist and trainer and none were aware of any complaint about his conduct.
36. The Registrant said that he had continued to undertake work for the Board from home from May 2019 to December 2019 when he was charged. He continued to study for his Masters and undertook online CPD after that and also studied Professional Business Management and Project Management while he was in prison.
37. The Registrant asked the Panel not to find that his fitness to practise is impaired, but accepted it was a matter for the Panel to determine.
38. In reaching its decisions, the Panel considered all the evidence it had heard and read. It considered the submissions of the Registrant and Mr Keating for the HCPC. The Panel accepted the advice of the Legal Assessor and referred to the HCPTS Practice Notes, Conviction and Caution Allegations and Fitness to Practise Impairment.
Decision on facts
39. The Panel considered whether the facts were proved according to the civil standard of proof, that is the balance of probabilities, and proceeded on the basis that the burden of proving the facts rests upon the HCPC throughout.
40. The Panel had sight of a copy of the Certificate of Conviction from Swansea Crown Court dated 24 March 2022, which confirmed details of the Registrant’s conviction on 16 September 2021 and sentencing on 26 October 2021.
41. The Panel accepted the Certificate as proof of the conviction and of the findings of fact upon it was based, as provided for by Rule 10(1)(d) of the Rules. The Panel was satisfied that the facts of particular 1 were proved.
42. In addition to the Certificate of Conviction, the HCPC relied upon the transcript of the sentencing remarks of HHJ Rees. The Panel noted the case of Achina v GPhC  EWHC 415 (Admin), as referred to by Mr Keating, which confirmed that sentencing remarks are part of the case that a panel should treat as amounting to conclusive proof of what has occurred.
Decision on statutory ground
43. Having found the fact of the conviction proved, the Panel found the alleged statutory ground under Article 22(1)(a)(iii) proved.
Decision on impairment of fitness to practise
44. The Panel next considered whether the Registrant’s fitness to practise is currently impaired by his criminal conviction. The Panel received and accepted the advice of the Legal Assessor and carefully considered the submissions of the parties.
45. The Panel was aware that the question of impairment is a matter for its own judgement. In reaching its decision, the Panel had regard to the conduct of the Registrant, the nature, circumstances and gravity of the findings and the critically important public policy issues, in particular the need to maintain public confidence in the profession as well as declaring and upholding the proper standards of conduct and behaviour which the public expects.
46. In considering the matter, the Panel considered that the criminal offence of which the Registrant has been convicted is an extremely serious one. The Panel bore in mind that the Registrant pleaded not guilty to the offence and still maintains his denial of the offence and claims that he should not have been convicted. The Panel noted however that the Registrant had legal representation at his trial. He was convicted by the jury in the Crown Court. An immediate custodial sentence of one year was imposed by HHJ Rees. There has been no appeal.
47. The Panel noted that the seriousness of the circumstances of the offence was evident from the sentencing remarks of HHJ Rees: the offence involved a young student nurse who was undertaking training with the Registrant. HHJ Rees set out the Registrant’s actions during the assault in detail. Person 1 was vulnerable and the Registrant’s actions were a deliberate, planned course of action. The offence took place in the ward environment. This was a serious abuse of the Registrant’s professional position as a Physiotherapist and a trainer.
48. The Panel noted that HHJ Rees told the Registrant “You used your position and reputation to gain access to this student and you thereafter manipulated a situation in order to engage in a sexual assault for your obvious sexual gratification which as described by her and as which I have recounted when she said you were aroused and excited.” He referred to the impact which Person A described the incident as having had on her.
49. In sentencing, HHJ Rees described the offence as a substantial breach of trust. He referred to the Registrant’s previous good character and his excellent work record as a well-regarded physiotherapist and that he is a family man. He took account of the delay in bringing the case, but also the fact that the Registrant had pleaded not guilty. HHJ Rees referred as an aggravating factor to “the specific targeting of a particularly vulnerable victim” and the location of the offence, during the working day in a hospital where the victim was on placement as a student who was under his supervision.
50. In relation to the personal component of impairment, the Panel took into account the evidence of the Registrant as to his efforts to maintain his professional competence throughout these events by continued study and continuing professional development. There has in fact been no criticism in this case of the Registrant’s clinical care of patients. He was able to present evidence in form of written testimonials and evidence from witnesses which attested to this. These however had little impact for the Panel in relation to the findings of the court in relation to this offence and the issue of current impairment.
51. However, given that the Registrant continues not to accept that he committed the offence, he has not provided any evidence of attempts to remedy his past behaviour or to reflect upon it. He has not shown any remorse. The Panel noted his final submissions where he referred only to the impact of these events on him and showed no understanding or reflection of the impact upon Person 1 of coming forward with a complaint against a respected professional in a position of authority over her, or of going through the process of the criminal proceedings.
52. In the light of his continuing denial, the Registrant has not demonstrated that he has any insight into his past conduct or the impact of his criminal conviction upon Person 1, his profession, his former employer or the HCPC as his regulator. In all the circumstances the Panel could not be satisfied there was no, or a low, risk of repetition in the future.
53. Considering the four factors identified by Dame Janet Smith in The Shipman Inquiry as indicating current impairment, the Panel concluded that the Registrant’s actions posed a risk of direct harm to patients. His criminal conviction for this sexual offence has brought the profession into disrepute. He has breached a fundamental tenet of the profession, the requirement to be honest and trustworthy. The Panel further considered that the Registrant has acted in such a way that his integrity can no longer be relied upon.
54. The Panel therefore concluded that the Registrant’s fitness to practise is impaired in respect of the personal component.
55. In relation to the public component of current impairment, a criminal conviction for a serious sexual offence against a vulnerable young woman which involves an abuse of professional position as a Physiotherapist and as an HCPC registrant undermines public confidence in the profession and in the HCPC as its regulator.
56. The Panel acknowledged that in cross-examination by Mr Keating, the Registrant agreed that it would undermine public confidence in the profession and in the HCPC as its regulator if members of the public were aware that a Physiotherapist who held a conviction of this nature were not found to be currently impaired. However, he did not consider this applied to him because he did not accept he should have been convicted.
57. The Panel also bore in mind the guidance from the Fleischmann case and was mindful that the Registrant remains on licence and will be subject to the Sexual Offenders registration requirement and a Restraining Order for 10 years.
58. The Panel concluded that wider public confidence would be undermined in this case if a finding of current impairment were not made.
59. The Panel concluded that the Registrant’s fitness to practise is also impaired in respect of the public component of impairment.
Application to proceed in the absence of the Registrant
60. On the morning of the third day of the hearing, 14 September 2022, the Registrant was not in attendance. The Panel had sight of an email from the Registrant sent to the Hearing Officer at 10.40pm on Tuesday 13 September 2022, in which the Registrant stated:
“Due to sudden illness in the family which requires hospital admission I will not be able to participate in tomorrow’s hearing. Happy to accept the outcome by email. Please convey my apologies to the panel. I would like to take this opportunity to thank you for your help through out this hearing. Thank you and kind regards.
61. Mr Keating applied for the Panel to proceed in the Registrant’s absence. He reminded the Panel that it could be satisfied there had been good service of the Notice of Hearing dated 29 July 2022 and that, of course, the Registrant had attended and participated in the hearing over the previous two days. Mr Keating submitted that an adjournment of today’s hearing would serve no useful purpose. He submitted that the Panel should proceed with the hearing today in the public interest.
62. The Panel took advice from the Legal Assessor. The Panel was satisfied there had been good service of the notice of hearing dated 29 July 2022 upon the Registrant. The Panel was mindful that it should exercise its discretion to proceed in absence with the utmost care and caution and with the fairness of the proceedings at the forefront of its mind. This includes the prime importance of fairness to the Registrant, but also fairness to the HCPC. The Panel referred to the guidance in the HCPTS Practice Note, Proceeding in Absence.
63. The Panel bore in mind the Registrant’s attendance and participation during the previous two days of the hearing. Before adjourning on the previous evening, the Panel informed the parties of its decision that the Registrant’s fitness to practise is currently impaired and informed the Registrant that today the Panel would proceed to consider the issue of sanction and would hear submissions from the Registrant.
64. The Panel noted that the Registrant has not asked for an adjournment. He has said in his email of 13 September 2022 that he is happy to accept the outcome of the hearing by email. The Panel took the view that he has waived his right to attend today. The Panel took into account the public interest in proceeding and concluding this matter. It was satisfied that an adjournment would serve no useful purpose in the circumstances.
65. The Panel was also mindful that it had heard extensive evidence from the Registrant at the earlier stages of the hearing and had heard evidence from his witnesses. The Panel resolved that it would take this evidence into account in considering sanction and was satisfied that this would mitigate any prejudice which might be caused to the Registrant by proceeding in his absence. The Panel was satisfied it was fair and in the public interest to proceed with the hearing today.
The HCPC’s submissions on sanction
66. Mr Keating provided written submissions and addressed the Panel. He reminded the Panel that the primary purpose of a sanction is to protect the public. This necessitated consideration of the risk posed by the Registrant, the deterrent effect of a sanction on other registrants and the issue of maintaining public confidence in the profession and in the regulatory process.
67. Mr Keating referred the Panel to a number of the applicable sections of the HCPC’s Sanctions Policy and referred to relevant case law authorities, including the guidance from the case of Fleischmann.
68. Whilst the HCPC did not make a submission as to which sanction should be applied in this case, Mr Keating submitted that the conviction in this case was serious and engaged many of the aggravating factors identified in the Sanctions Policy. In relation to mitigation, he accepted that the Registrant had produced strong character evidence, but the Panel may consider this was tempered by his lack of recognition of his failings.
Panel Decision on Sanction
69. The Panel carefully considered the submissions on behalf of the HCPC and those of the Registrant. The Panel accepted the advice of the Legal Assessor and referred to the HCPC Sanctions Policy in reaching its decision on sanction.
70. The Panel was mindful that a sanction is not intended to be punitive, although it may have that effect. The Panel must consider the risk the Registrant may pose in the future and determine what degree of public protection is required. The Panel must also give appropriate weight to the wider public interest which includes the deterrent effect on other registrants, the reputation of the profession and public confidence in the regulatory process.
71. The Panel considered aggravating and mitigating factors present in this case, referring to the HCPC Sanctions Policy:
Breach of trust and abuse of professional position - the offence took place in a healthcare workplace against the complainant who was a junior colleague in relation to whom the Registrant was in a position of authority as a senior Physiotherapy practitioner. He took advantage of his professional position to carry out the assault on the pretext of providing training to the complainant. This was a substantial abuse of the Registrant’s professional position and a breach of trust;
Lack of insight, remorse or apology and lack of remediation - as a result of not accepting the finding of the criminal court, the Registrant has not been able to reflect on the incident or attempt remediation. He has not shown any remorse for the impact of these events upon the complainant, his colleagues or his profession;
Risk of harm to the public – the Panel has found that there is a risk of repetition in this case in the light of the Registrant’s lack of insight;
Predatory behaviour - the Registrant’s behaviour was predatory in nature, in that he took advantage of the student nurse who was identified by the sentencing judge as vulnerable;
Sexual misconduct and criminal conviction - the nature of the criminal conviction concerned a serious sexual assault which resulted in a custodial sentence;
Sex offender - this reflects the case of CRHC v GDC and Fleischmann  EWHC 87 (Admin) where the Court held at  that: … as a general principle, where a practitioner has been convicted of a serious criminal offence or offences he should not be permitted to resume his practice until he has satisfactorily completed his sentence. The Panel bore in mind that the Registrant remains on licence and will be subject to the Sex Offender registration requirement until October 2031 and to a Restraining Order for 10 years.
72. The Panel took into account that the Registrant had produced supportive testimonials from a large number of colleagues as to his professional competence and conduct towards colleagues and patients. Three witnesses had come to the hearing to give evidence on his behalf. The Panel acknowledged the significance of this evidence, but overall concluded that it did not impact upon the gravity of the incident which is the subject of the criminal conviction. Further, none of the Registrant’s witnesses were involved in or present at the incident itself.
73. The Panel bore in mind, as indicated in the Sanctions Policy, that matters of mitigation are likely to be of considerably less significance in regulatory proceedings, where the overarching concern is the protection of the public, than to a court imposing retributive justice. In this case, the Panel concluded that the aggravating factors significantly outweigh the mitigation.
74. In considering sanction in this case, the Panel took into account the authority referred to in the submission of Mr Keating from the case of Arunachalam v GMC  EWHC 758 (Admin). This indicated that sexual misconduct cases are inherently serious and may well lead to “erasure” even for a first-time offender. Mr Justice Kerr stated:
‘[Sexual misconduct cases] are inherently serious, such that they may well lead to erasure, even for a first-time offender with a good clinical record. Often, maintaining public confidence in the profession and upholding high standards of behaviour by stamping out unacceptable behaviour of this kind will require erasure in a sexual misconduct case. Where the victim is a colleague rather than a patient, severe sanctions in such cases are generally necessary, in addition, to protect and uphold the dignity of workers in the profession and to protect their freedom to work without being molested.’
‘In the criminal law, where personal mitigation counts for more than in this disciplinary jurisdiction, the law encourages judges to give offenders a second chance by imposing alternatives to immediate custody, such as a suspended sentence or a community penalty. Justice is tempered with mercy. That is more difficult in this jurisdiction because the nature of the sanction is not punitive but protective of the profession and the public. To justify the second chance, it has to be weighed not just against the risk that giving it may create more victims should he fail to take it. It also has to be weighed against the risk that public confidence in the profession will be undermined.’
75. Taking all these factors into account, the Panel considered whether it was necessary to impose a sanction. The Panel had in mind that the conviction proved was serious and that its decision must uphold public trust and confidence in the profession. The Panel concluded that in this case, neither mediation nor taking no action would be appropriate. The Panel concluded that a sanction was necessary in the public interest.
76. The Panel considered the sanctions available to it in ascending order of severity. The Panel first considered the factors in the Sanctions Policy in relation to a Caution Order. It concluded that the issue in this case is not minor in nature. The Registrant has not provided the Panel with any information showing remorse, insight or attempts to address his offending behaviour. The Panel could not be reassured that there is not a risk of repetition in the future. The Panel concluded that a Caution was not appropriate in this case.
77. The Registrant asked the Panel to consider imposing a Conditions of Practice Order. The Panel was not satisfied that conditions would address the seriousness of the issues or the wider public interest concerns. The Panel did not consider that a conditions of practice order would maintain public confidence in the profession or in the HCPC as its regulator.
78. The Panel carefully considered whether a period of suspension would be the proportionate and appropriate sanction, applying the factors in the Sanctions Policy. The breach of standards in this case was serious. The Registrant had not demonstrated any insight. The Panel could not have confidence that the conduct was unlikely to be repeated or, given his continued denial of the offence, that the Registrant was likely to seek to remedy his failings.
79. The Panel concluded that the factors indicating a Striking Off order were present. The case involved a serious criminal conviction involving sexual conduct. There was a lack of insight and any indication of willingness to resolve the issues on the part of the Registrant. The Panel concluded that only a Striking Off order would be sufficient to protect the public, public confidence in the profession and in the regulatory process and to declare and uphold proper standards of conduct in the Physiotherapy profession.
ORDER: The Registrar is directed to strike the name of Mr Judha David Samson Manuel from the Register on the date this Order comes into effect
Application for an Interim Order:
- On behalf of the HCPC Mr Keating applied for the Panel to proceed in absence to consider his application for an immediate interim order. The Panel considered his application and consulted the Legal Assessor.
- The Panel had made a decision at the beginning of the day, 14 September 2022, to proceed with the substantive hearing in the Registrant’s absence. The circumstances had not changed and the Panel again noted the terms of the Registrant’s email stating that he would not be present today.
- The Panel noted additionally that the Notice of Hearing dated 29 July 2022 informed the Registrant that if the Panel found the case against him to be well founded and imposed a sanction removing, suspending or restricting his right to practise, it may decide to impose an interim order with immediate effect to cover the period of possible appeal. The Registrant was therefore on notice of this application. The Panel determined to proceed in his absence.
- Mr Keating made an application for an Interim Suspension Order to cover the appeal period, on the ground that it was necessary for the protection of the public and was otherwise in the public interest.
- The Panel accepted the advice of the Legal Assessor. It bore in mind that an interim order in these circumstances is discretionary. The Panel must consider whether an interim order is required, applying the test set out in Article 31(2) of the Health Professions Order 2001, and if it so decides, must act proportionately. This means balancing the public interest with the interests of the Registrant, and imposing the lowest order which will adequately protect the public.
- The Panel was referred to the guidance in respect of immediate interim orders in the Sanctions Policy and the HCPTS Practice Note, Interim Orders.
- The Panel considered the issue of proportionality and balanced the interests of the Registrant with the public interest. The Panel had determined to impose a substantive Striking Off Order in this case. Given the gravity of its findings and the sanction imposed, the Panel considered it would be inconsistent not to impose an immediate interim order of suspension to address the residual risk and public interest issues.
- The Panel considered whether interim conditions of practice would be appropriate, but concluded that conditions which would address the Panel’s concerns could not be formulated.
- Accordingly, the Panel determined that an interim order of suspension was necessary to protect the public and in the wider public interest.
- The Panel concluded that the appropriate and proportionate duration of the interim suspension order was 18 months. The interim order would continue to be required pending the resolution of an appeal in the event of the Registrant giving notice of an appeal with the 28-day period.
The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. This order will expire: if no appeal is made against the Panel’s decision and Order, upon the expiry of the period during which such an appeal could be made; or, if an appeal is made against the Panel’s decision and Order, upon the final determination of that appeal, subject to a maximum period of 18 months.
History of Hearings for Mr Judha David Samson Manuel
|Date||Panel||Hearing type||Outcomes / Status|
|12/09/2022||Conduct and Competence Committee||Final Hearing||Struck off|