David Woodhouse

Preliminary Matters

Application to amend particulars

1. The Panel heard an application made by Ms O’Connor, representing the HCPC, to amend the wording of particulars.

2. The proposed amendments were as follows:

1. On or around 10 June 2020 you demonstrated rude and aggressive behaviour in that:

a) You were rude and aggressive to Colleague A over the phone.

b) You were threatening to Colleague B in the office.

2. Between approximately 23 March 2020 and 6 April 2020, you did not follow the Trust’s Infection Prevention Policy in that:

a) You drank hot drinks in the ward when this was not allowed.

b) You wore dirty shoes in the ward when it had just been cleaned.

c) You left the ward without washing your hands.

3. On or around 11 July 2018 On dates unknown between 1 January 2018 and 1 August 2018 you did not communicate and/or conduct yourself professionally demonstrated inappropriate behaviour with colleagues Colleague C, in that:

a) You made sexual comments said to Colleague C about to another colleague that she by saying a member of staff had “a great rack” or words to that effect.

b) You took a colleague’s Colleague C’s hand and pulled it towards your stomach after having lifted up your top.

c) You said “long hair, boobs, do I care” or words to that effect when discussing a patient with Colleague C.

4. On or around 12 July 2018 you were overheard by Colleague D on the phone to a patient’s relative, pretending to sneeze and callinged them a “fucking wanker” or words to that effect.

5. In or around 2018 On or around 13 June 2019 you did not move a patient in accordance with Trust Policy in that you asked the patient to put her hands on your shoulders and then lifted her up by her pelvis.

6. Between 15 April 2019 25 July 2018 and 1 March 2021 you did not inform the HCPC of your suspension from duty and/or that you had a restriction placed on your practice and/or that you were dismissed by your employer because of concerns about your conduct.

7. Your actions at particular 6 were dishonest.

8. The matters listed in particulars 1 to 7 constitute misconduct.

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

3. Ms O’Connor submitted that the amendments would reflect the case more accurately to the Registrant and would make the case clearer. She outlined the details of each amendment sought and made submissions on correcting the location (Particular 1b), more accuracy on the date range (Particular 2), narrower date range and specificity on colleague involved (Particular 3), removing unnecessary words (Particular 4), specific date (Particular 5), and expanding the date range for accuracy (Particular 6).

4. Ms O’Connor added that the proposed amendments were relatively minor, do not change the actual case, and would not cause any injustice as the Registrant had been aware of these prior to the hearing; with the initial changes proposed to him on 30 May 2021 and the latest changes proposed by correspondence dated 8 March 2023.

5. The Registrant did not challenge the application but did comment the allegations are from events some time ago and the timeline is a little confusing. However, he stated if the dates are now being narrowed down, then he would accept these and provide his views on the allegations in due course.

6. The Panel accepted the advice of the Legal Assessor.

7. The Panel noted that the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (‘The Rules’) were silent on amendments in such circumstances; the key question was one of fairness.

8. The Panel was of the view that the proposed amendments were in the interest of justice and would also assist in making the particulars more focussed. The amendments were minor and the changes were proportional to the issues to be considered. The Registrant had confirmed he had been notified of the amendments in advance, had a passive response and no concerns were raised.

9. The Panel was satisfied that there would be no prejudice to the Registrant and no injustice would be caused to either party by the proposed amendments being allowed.

10. The Panel acceded to the application and allowed the amendments.

Background

11. The Registrant was initially working as a Band 6 Occupational Therapist at the Wolverhampton NHS Trust (‘the Trust’).

12. The first set of concerns raised constitute Particulars 3 and 4 of the Allegation.

a. On dates unknown between 1 January 2018 and 1 August 2018, the Registrant allegedly made various comments and acted inappropriately towards Colleague C; including commenting about another colleague having “a great rack”, taking Colleague C’s hand and pulling it towards his stomach after having lifted his top up, and commenting “long hair, boobs, do I care” when discussing a patient.

b. Additionally, on or around 12 July 2018, the Registrant was alleged to be overheard by Colleague D as he was on the phone to a patient’s relative and called them a “fucking wanker”.

13. The Registrant was initially suspended by the Trust on 25 July 2018 to allow an initial fact-finding process to take place. As a result of this initial fact-finding process, the Trust offered to conclude the matter through the Fair Blame Process of the Trust’s Disciplinary Policy. This was a process which enabled allegations to be investigated and concluded swiftly. The Registrant did not accept the outcome offered via this process, thus the matter proceeded to a full investigation.

14. JW was appointed as the Investigating Officer and the Registrant was notified that he was suspended on 20 September 2018.

15. The second set of concerns raised constitute Particular 5 of the Allegation. The Registrant was a Band 5 Occupational Therapist at this time. On or around 13 June 2019, the Registrant is alleged to have moved a patient not in accordance with the Trust Policy as he asked the patient to put her hands on his shoulders and then lifted her up by her pelvis. AN was appointed as the Investigating Officer for this concern in June 2019.

16. The third set of concerns raised constitutes Particulars 1 and 2 of the Allegation.

a. During the COVID pandemic, between approximately 23 March 2020 and 6 April 2020, the Registrant is alleged to have not followed the Trust’s Infection Prevention Policy by drinking hot drinks on the ward when this was not allowed, wearing dirty shoes in the ward when it had just been cleaned, and leaving the ward without washing his hands.

b. Additionally, on or around 10 June 2020, the Registrant is alleged to have been rude and aggressive to Colleague A (his line manager) over the phone, and threatening to Colleague B.

17. KE was appointed as the Investigating Officer for this concern in June 2020. On 18 June 2020, the Registrant’s duties were restricted whilst the investigation took place. He was restricted to non-clinical duties only.

18. A disciplinary hearing took place on 8 and 20 October 2020. The outcome of that hearing resulted in the termination of the Registrant’s employment at the Trust.

19. The Registrant is alleged to have failed to inform the HCPC of his suspension from duty (from 25 July 2018 after Particulars 3 and 4), restrictions on his practice (from 18 June 2020 after Particulars 1 and 2), or of his subsequent dismissal from the Trust.

20. On 9 December 2020, the Trust referred the Registrant to the HCPC. The Trust referral form included the concerns which make up Particulars 1 and 2, along with concerns that he had not notified the HCPC of the proceedings.

21. There was an appeal hearing at the Trust which took place on 23 February 2021. Prior to this, the HCPC contacted the Registrant about the referral. The Registrant responded to the HCPC by email on 17 January 2021, stating that he was appealing in part and that he was not currently working as an Occupational Therapist.

The Hearing

22. The Registrant made admissions to Particulars 3 b) and 6. The Panel accepted Ms O’Connor’s submissions that admissions are not proof and the HCPC still need to prove their factual particulars.

23. The Panel heard live evidence from the following witnesses called on behalf of the HCPC:

a) Witness 1: Investigating Officer (KE);

b) Witness 2: Eyewitness / Colleague A (PB);

c) Witness 3: Eyewitness / Colleague B (MW);

d) Witness 4: Eyewitness (NP);

e) Witness 5: Investigating Officer (JW);

f) Witness 6: Eyewitness / Colleague D (LK);

g) Witness 7: Investigating Officer (AN).

24. The Panel also accepted the written statement of the HCPC Registration Manager (AM) and the Production Statement of a Senior Paralegal, (SL) with Kingsley Napley LLP into evidence.

25. The Panel also heard live evidence from the Registrant himself.

Decision on Facts

26. Before making any findings on the facts, the Panel heard and accepted the advice of the Legal Assessor. In reaching its decisions on the disputed facts, the Panel took into account all the oral and documentary evidence in this case together with the submissions made by Ms O’Connor and the Registrant. The Panel has read the bundles from the HCPC, as well as the bundle from the Registrant.

27. In reaching its decision on the facts, the Panel has borne in mind that the burden of proof rests on the HCPC and it is for the HCPC to prove the Allegation irrespective of any admissions made by the Registrant. The standard of proof is that applicable to civil proceedings, namely the balance of probabilities.

28. It has approached the assessment of reliability and credibility carefully and has followed the guidance in R ( Dutta) v GMC [2020] and Khan v GMC [2021]. It notes that it is an error to place overreliance on the demeanour of a witness and that reliance on the confident demeanour of a witness is a discredited method of judicial decision making.

29. The Panel has carefully considered the evidence in the round, giving appropriate weight to the documentary evidence. The Panel also considered the oral evidence of the seven live witnesses for the HCPC, the written statements of AM and SL for the HCPC and the live evidence from the Registrant.

30. In relation to dishonesty, the Panel bore in mind the two-part test in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017], namely the subjective test of ascertaining the Registrant’s actual state of knowledge or belief, followed by an objective assessment of whether the Registrant is dishonest.

31. The Panel acknowledged that the Registrant has no previous fitness to practice history.

Particular 1 a) – Not Proved

As a registered Occupational Therapist your fitness to practise is impaired by reason of misconduct. In that:

1. On or around 10 June 2020 you demonstrated rude and aggressive behaviour in that:

a) You were rude and aggressive to Colleague A over the phone.

32. Ms O’Connor relied on the live evidence of Colleague A, who was the Registrant’s line manager at the relevant time. Colleague A stated that the Registrant raised his voice and Colleague B’s evidence was that she was present with Colleague A in the office at the time of the call and heard the Registrant shouting. Ms O’Connor also relied on the Raising a Concern at Work form completed by Colleague A in which she stated this to be “rude and aggressive” behaviour by the Registrant.

33. She highlighted the email statements within the bundle of AM and KD who confirmed the Registrant’s attempts to return the calls. She submitted that neither AM nor KD commented on the Registrant raising his voice to Colleague A as they were never asked this. Ms O’Connor accepted the Registrant may have been under stress with his workload and additionally having a presentation to deliver. She also accepted that he may have been aggrieved by Colleague A’s assertion that he had not attempted to contact her. However, she submitted this did not justify the alleged behaviour.

34. The Registrant explained that it had been a busy day where he was covering multiple wards and neither Colleague A nor B were allowed on to the wards due to personal circumstances. He outlined the efforts he made to return the calls and the pressures of the imminent presentation that he had to deliver. He challenged there being any evidence of his call being threatening. He relied upon AM and KD giving evidence in their email statements of the call and both confirming several attempts to return the call were made by the Registrant. His evidence was that they were within “ear-shot” of him making the call and neither stated he had been rude. He also added that he did wish to apologise but Colleague A was dismissive of him after that day and he described her behaviour towards him as “passive aggressive”.

35. The Panel accepted that the Registrant was busy. He gave a lot of details on the specific wards he was covering and the multiple discharges that were taking place. This was consistent with his earlier evidence in the investigation. The Registrant’s account has been consistent throughout that he did make several attempts to call-back after he was bleeped, which was further confirmed by the email statements of AM and KD.

36. In Colleague A’s oral evidence, she said that the Registrant had raised his voice, was abrupt with her and was “cutting”. In oral evidence, she was unable to clarify how he had been aggressive to her. Colleague B’s live evidence was inconsistent with Colleague A, in that Colleague B described hearing shouting and being shocked by this. Colleague A stated she was “shook up”, but this was contradicted by Colleague B’s confirmation that Colleague A was very calm after the call and neither discussed the call immediately after it ended.

37. The Panel noted that the Registrant had attempted to call back various times so it is understandable that he may well have been abrupt and frustrated. There was insufficient evidence of whether the Registrant had been aggressive to Colleague A. The Panel also noted that no immediate action was taken by Colleague A, his line manager, and thus it was unlikely to have been an aggressive call. The Panel did not consider a raised voice is conclusive of rudeness or aggression. The Panel placed reliance on AM and KD’s evidence where there was no mention of any aggression.

38. On the balance of probabilities, the Panel was not satisfied that Particular 1 a) was proved.

Particular 1 b) – Not Proved

As a registered Occupational Therapist your fitness to practise is impaired by reason of misconduct. In that:

1. On or around 10 June 2020 you demonstrated rude and aggressive behaviour in that:

b) You were threatening to Colleague B.

39. Ms O’Connor relied on the live evidence of Colleague B who described being in a corridor to get some water whilst waiting for the presentation to start, when the Registrant entered and was jabbing his finger towards her. Colleague B’s evidence was the Registrant stated, “Don’t you start – I’m up to here and on number ten, keep her away from me”. Colleague B described the body language, stated she felt like he was going to attack her and said that his behaviour was threatening. Ms O’Connor submitted the comment itself confirms the Registrant’s anger, as opposed to mere frustration or agitation. She also relied on the Registrant’s explanation of the comment in the Trust investigation as “a bit of a warning” and his clarification in live evidence that the intonation in his voice would have meant to back off. She submitted Colleague B had worked there 24 years and stated she had never seen anyone as angry as this, which resulted in her being anxious to come into work the following day.

40. The Registrant acknowledged during the hearing that Colleague B had perceived his actions as threatening and apologised to Colleague B. Whilst he accepted he had been “short” with Colleague B, he denied he had been aggressive, threatening or throwing his arms around. He submitted Colleague B had embellished and had read too much into it. He admitted he did point his finger as he does gesticulate, but denied jabbing his finger.

41. The Panel appreciated that people’s perceptions of threatening behaviour may vary. Colleague B considered that the Registrant’s behaviour was threatening and this manifested itself in the volume of the Registrant’s voice, his facial expression, annoyed body language and “bulging eyes”. She also stated that he was jabbing his finger, but accepted he never came close to her. The Panel does not dispute how she felt. She was clearly upset by it and the Registrant did apologise to her in the hearing.

42. The Panel did not consider the Registrant was threatening to Colleague B. The Panel accepted the Registrant’s evidence and account that he was angry and stressed. The Registrant acknowledged that he can be “serious looking and abrupt” at times. The physical manifestation may well be perceived to be threatening behaviour. The Registrant accepted he normally does gesticulate, which was observed by the Panel in the hearing. There was no evidence that there had been any stabbing finger gestures made close to Colleague B. The words or actions by the Registrant were not directed at her and the evidence was clear that his comments related to Colleague A. The Panel concluded that the intended meaning of his words was that he needed some time to calm down and focus on the presentation. Thus the Panel concluded that there was no verbal or physical threat to Colleague B.

43. On the balance of probabilities, the Panel was not satisfied that Particular 1 b) was proved.

Particular 2 a) – Proved

2. Between approximately 23 March 2020 and 6 April 2020, you did not follow the Trust’s Infection Prevention Policy in that:

a) You drank hot drinks in the ward when this was not allowed.

44. Ms O’Connor relied on the evidence of NP, the matron at the time who confirmed that hot drinks were never allowed on the ward, especially during the pandemic. NP described seeing the Registrant drinking coffee next to the nurse’s station and she challenged him on this. Ms O’Connor submitted that NP only saw this once but relied on her oral evidence that she had received two or three reports from the ward sisters of him doing the same at the beginning of the pandemic. She also relied on NP’s explanation on why hot drinks, even with covers, created an infection risk in ward areas and that hot drinks were not allowed. She stated the hydration stations were for cold drinks only.

45. The Registrant stated he had been abroad and upon returning to the hospital, no one knew what they were doing due to the pandemic and the introduction of various COVID measures. He admitted consuming the hot drink, but stated it was covered and consumed whilst he was in the doorway of a store cupboard where drinks were allowed. He denied this constituted the ward, and stated others had consumed drinks in there, including coffee. He could not recall the existence of any posters stating that hot drinks were not allowed on the wards.

46. The Panel accepted NP’s live evidence that there was an internal policy in place and posters were put up in the hospital. The Registrant did not dispute the policy being in place and had emphasised in his explanation that he had not drunk on the ward itself. The Panel’s view was that any area beyond the entrance to the ward would all be part of the ward. The Panel accepts that NP undertook audits in line with the Infection Prevention Policy as part of her role and after receiving reports of this having occurred in the past. The Registrant did admit to having the hot drink and the Panel noted he changed his practice after this so that he had hot drinks off the ward.

47. On the balance of probabilities, the Panel was satisfied that Particular 2 a) was proved.

Particular 2 b) – Not Proved

2. Between approximately 23 March 2020 and 6 April 2020, you did not follow the Trust’s Infection Prevention Policy in that:

b) You wore dirty shoes in the ward when it had just been cleaned.

48. Ms O’Connor relied on NP’s evidence that a member of housekeeping had reported to her that she was mopping the floor when the Registrant walked in wearing “muddy” shoes, which was raised with him by the same housekeeping member but he had laughed at her. Ms O’Connor submitted that whilst NP had not seen this, she would invite the Panel to conclude that NP’s reporting of the housekeeping member being upset would be consistent with the account given. Ms O’Connor also relied on NP’s account that another senior sister had seen the Registrant wearing dirty shoes some weeks prior.

49. The Registrant’s evidence was that there was no possibility of mud on his shoes as he changed his shoes in the staff changing room and he had shoes dedicated for his job. He stated he would go on access visits outside the hospital wearing his work shoes. On this occasion he did go on an access visit, but it was a dry day and his shoes could not have become muddy or dirty. In any event, he stated that he wiped his shoes on the hospital entrance mat as usual. He accepts seeing a black mark on the floor but denies this was mud. He believed this was likely to be his shoes reacting to the cleaning solution on the mopped floor. He offered his apology to the housekeeping member if she had perceived him to be dismissive, but he submitted he had not been rude and had no such intention as his reaction to her was an attempt to make light of being scolded.

50. The evidence from the housekeeping member is hearsay evidence, as it was a conversation reported by NP. Therefore, the Panel put little weight on this untested account and it was not corroborated by another form of evidence. It was the sole evidence on which the Particular is based and the Panel deemed this to be insufficient evidence to be satisfied on the Allegation.

51. There is no dispute that there was some form of marking on the floor and the Panel accepted the Registrant’s live evidence that this was a black mark. It was also accepted that the Registrant changed his shoes into his work shoes for his job when starting his shifts. If a floor is being mopped, then walking on such a floor even with fairly clean shoes would still leave markings. There was no evidence presented on how the Registrant’s shoes could have become dirty.

52. On the balance of probabilities, the Panel was not satisfied that Particular 2 b) was proved.

Particular 2 c) – Proved

2. Between approximately 23 March 2020 and 6 April 2020, you did not follow the Trust’s Infection Prevention Policy in that:

c) You left the ward without washing your hands.

53. Ms O’Connor relied on NP’s evidence of observing the Registrant walk out of a clinical ward without washing or gelling his hands, before entering the staff room to take a slice of cake using his hands. NP did state that she then raised this with the Registrant, who stated he had forgotten to wash his hands. She stated that even after this the Registrant did not go to wash or gel his hands. She also described the annual training, that included the method of cleaning your hands, and the numerous posters in the Trust about hand washing. NP also confirmed the existence of the Infection Prevention Policy and the Hand Hygiene Policy on the Trust intranet. Ms O’Connor highlighted that the Hand Hygiene Policy within the bundle stated hands must be decontaminated before and after each work shift or work break, and before eating, drinking or handling food.

54. The Registrant’s evidence was that he could not recall this incident or exchange with NP, but stated that he does usually wash and gel his hands, including when coming in and out of bays across four wards. He stated that no one else had approached him about this, he could not recall this incident and so he would accept NP’s observation. He confirmed receiving training on Infection Prevention.

55. The Panel noted the Trust’s policies and the requirement to wash hands. Whilst the Registrant could not recall the incident or the exchange, NP gave live evidence which was specific about observing the Registrant on a particular date. The Panel accepted the direct live evidence of NP who had stated the Registrant failed to wash or gel his hands before leaving the ward and then took a slice of cake. This evidence was not disputed by the Registrant.

56. On the balance of probabilities, the Panel was satisfied that Particular 2 c) was proved.

Particular 3 a) - Proved

3. On dates unknown between 1 January 2018 and 1 August 2018 you did not communicate and/or conduct yourself professionally with Colleague C, in that:

a) You said to Colleague C about another colleague that she had “a great rack” or words to that effect.

57. Ms O’Connor submitted that Colleague C had been interviewed as part of the Trust investigation, but had left the Trust in 2019 with no forwarding details to assist the HCPC. She submitted Colleague C’s evidence can be relied upon as the interview notes were signed and had some comments written on them by her. She also submitted her evidence could be accepted as the Registrant admitted the substance of this Particular.

58. Ms O’Connor relied on interview notes with the Registrant; the Registrant regretted saying it and apologised for the embarrassment caused. Whilst the Registrant recalls that the comment was made about and directed to Colleague C, Ms O’Connor submitted that Colleague C had been clear in both her Raising a Concern at Work form and in her interview that the comment related to another colleague.

59. The Registrant submitted that the comment was wrong and unprofessional, he was being foolish and he used to banter with Colleague C, but had overstepped the mark. The Registrant accepted causing her embarrassment, accepted he failed to treat her with dignity and submitted this could never happen again. He stated that he happened to meet her a couple of months later in a supermarket, had apologised, she accepted his apology and had stated she did not mean for it to go that far.

60. The Panel carefully considered this Particular. The Panel noted Colleague C’s evidence that these words were directed to a work colleague and that she had been consistent in her evidence on this point in both the Raising a Concern at Work form and her interview. The Registrant did admit using the words "a great rack" while speaking with Colleague C, which is the substance of the Particular, but he says he used the words about her. The Panel concluded that the words were said by the Registrant in a conversation with Colleague C. Whether the words were directed at Colleague C or another colleague, it remains a highly inappropriate and personal comment. The Panel noted the conflicting evidence and took the view that the substance of the conduct being alleged was about the actual comment made, irrespective of who it was about. It is more likely than not that this was a misunderstanding between the Registrant and Colleague C, which the Panel cannot, nor needs to, resolve.

61. On the balance of probabilities, the Panel was satisfied that Particular 3 a) was proved.

Particular 3 b) - Proved

3. On dates unknown between 1 January 2018 and 1 August 2018 you did not communicate and/or conduct yourself professionally with Colleague C, in that:

b) You took Colleague C’s hand and pulled it towards your stomach after having lifted up your top.

62. Ms O’Connor relied on interview notes with the Registrant, in which the Registrant accepted pulling Colleague C’s arm towards himself but denied any physical contact or intention to have contact with his body.

63. The Registrant, in live evidence, admitted to this Particular and stated he would not have let Colleague C’s hand touch his body and was winding her up.

64. The Panel concluded the evidence was clear on this Particular with the Registrant admitting this. Although Colleague C’s evidence is hearsay, the Panel was able to place weight on this given she had signed the interview notes and had taken care in checking this as she did make amendments to it.

65. On the balance of probabilities, the Panel was satisfied that Particular 3 b) was proved.

Particular 3 c) - Proved

3. On dates unknown between 1 January 2018 and 1 August 2018 you did not communicate and/or conduct yourself professionally with Colleague C, in that:

c) You said “long hair, boobs, do I care” or words to that effect when discussing a patient with Colleague C.

66. Ms O’Connor relied on interview notes with the Registrant; in which the Registrant recalled making the comment, could not recall the context, denied it was aimed at anyone, accepted it was a poor comment and offered no excuse for it. She submitted that “or words to that effect” meant the Panel was able to find this proved even if the “do I care” words were found not to have been used.

67. The Registrant admitted the comment, save for the “do I care” part, as he stated he does care about his patients. He accepted the comment was not appropriate and apologised for it. In live evidence, he accepted all three particulars were inappropriate behaviour. In relation to accepting the full wording in the interview, the Registrant stated this to be an inaccuracy.

68. The Panel noted the Registrant denied stating “do I care” within this comment and accepted his evidence that he cares about patients. The Panel noted the Registrant had accepted the substance of the Particular. It did not require every word to be said as the Particular is framed to include “or words to that effect”. As the rest of the words were admitted, the substance of the Particular was established.

69. On the balance of probabilities, the Panel was satisfied that Particular 3 c) was proved.

Particular 4 - Proved

4. On or around 12 July 2018 you were overheard by Colleague D on the phone to a patient’s relative calling them a “fucking wanker” or words to that effect.

70. Ms O’Connor relied on the live evidence of Colleague D and submitted he was clear in his evidence that he was sat close to the Registrant, heard him on the phone to a patient’s relative and had seen the Registrant becoming exasperated. She also submitted that he gave clear evidence that he saw the Registrant move his head away from the handset, make the comment in a loud voice (louder than the level he was previously speaking) and disguising the comment as a sneeze. She also submitted that Colleague D had been frank in not being able to recall what happened before and after the comment, including whether the Registrant returned to the call after the comment.

71. Ms O’Connor submitted that the phone call was still active as the handset remained in the Registrant’s hand and that the comment related to the patient’s relative on the phone. Ms O’Connor also relied on the anonymous Raising a Concern at Work form reporting the same incident by another colleague.

72. The Registrant admitted using the words alleged and accepted that he still had the phone in his hand. However, he denied making the comment on the phone to the patient’s relative and stated he held the handset away to ensure the patient’s relative did not hear the comment. The Registrant stated his behaviour was inexcusable and he could not justify the comment.

73. The Panel noted Colleague D’s evidence was clear, as was the evidence from the Registrant in relation to this Particular. The Registrant was still engaged in the phone call as the handset had not been replaced, albeit the comment was not directed to the patient’s relative as it was disguised. The Panel accepted the Registrant’s admission.

74. On the balance of probabilities, the Panel was satisfied that Particular 4) was proved.

Particular 5 - Proved

5. On or around 13 June 2019 you did not move a patient in accordance with Trust Policy in that you asked the patient to put her hands on your shoulders and then lifted her up by her pelvis.

75. Ms O’Connor relied on the hearsay evidence of two staff members who witnessed the alleged conduct; a Band 6 Physiotherapist (‘AR1’) and a Student Practitioner (‘AR2’), neither of whom could be cross examined. However, she submitted their accounts could be accepted as they were both present at the time and their accounts were largely consistent.

76. In her unsigned Trust interview minutes, AR1 described the events involving the patient, who had Cerebral Palsy. A block had been placed on the floor next to the bed to reduce the bed height, due to the patient’s short stature. The patient was facilitated to sit at the edge of the bed; the patient was leaning heavily to the right side. AR1 described this would normally be done in stages, with the patient’s pelvis held and guided by the therapist. She stated that she was supporting the patient from behind with AR2 observing. AR1 stated in the interview that without giving them an opportunity to say anything, the Registrant asked the patient to put her hands on his shoulders and lifted her from her pelvis. AR1 further stated that while he was trying to force the patient into the chair on his own, she asked him to stop and when she came around she saw that the patient’s foot was caught in the block and bruised. AR2 had described the same incident via an email, albeit that the foot injury occurred due to contact with the side of the bed as opposed to the box, as alleged by AR1.

77. Ms O’Connor informed the Panel that the patient was not called to give evidence, as the Registrant had admitted in the Trust investigation that he failed to follow the guidelines. Ms O’Connor relied on the ‘Patient Moving and Handling Initial Training Pack’ and the Trust document headed ‘Controversial Techniques’. She submitted that the patient did not have the required independent sitting balance required, the manoeuvre was done without consultation and there were multiple lifts before AR1 asked the Registrant to stop. She accepted that there was a differing account between AR1 and AR2 on how the injury occurred.

78. The Registrant described how he had counted the patient in before commencing the transfer, she did get stuck and he asked for AR2 to assist but she was unable to do this successfully. He thus put his hands under the patient’s ischial tuberosities and gave her a small lift to get her over the end of the slide board into her chair, after which the patient tilted the chair back into position herself.

79. The Registrant submitted this was done with the patient’s consent in line with patient-centred care. He also stated that this was in compliance with the HCPC standards of working in partnership with service users by involving them in decisions of their care and treatment. He described the patient as an expert in her own condition, a person who held a prominent disability rights position and who knew what she wanted. She expressly did not want to use the hoist and had agreed to the slideboard transfer. He relied upon PB’s evidence in her interview minutes where she described the patient as “extremely difficult…she likes to do things the way she wants to do them…she would not change her ways for anything”. He also relied on PB’s evidence in relation to the ‘No Lifting’ policy, as she stated that these circumstances have to be considered. He submitted that he made a judgement call.

80. In relation to the damage to the patient’s foot, the Registrant highlighted the inconsistencies in explanation by AR1 and AR2, concluded that the box was unlikely to have been the cause of her injury due to her small stature. He stated that he heard no sound or reaction from the patient at the time of the incident. He accepted seeing some discolouration and stated that he may well have caused the harm but was unsure how it may have occurred.

81. The Panel noted the Registrant’s evidence that the patient achieved independent sitting balance, but this was opposed by the evidence of both AR1 and AR2. Their evidence was unsigned and hearsay, hence little weight could be attributed to this, especially given the inconsistencies between both of them.

82. The Panel also noted the Registrant’s admissions; in his Trust interview notes he accepted that there was a ‘No Lift’ policy and stated the patient needed a half-inch lift to move from the last part of the sliding board onto the chair. In his signed response to the Trust investigation, the Registrant admitted the lift, albeit he described this as a small discretionary lift, and apologised for not adhering to the manual handling policy.

83. The Panel accepted the evidence of AN in that the breach of the Trust policy was serious as the Registrant could have injured himself as well as the patient. The Panel did not accept that there was adequate risk assessment, or communication by the Registrant based on the Registrant’s live evidence and his admission that his communication with AR1 and AR2 “could have been better”. The evidence of both AR1 and AR2 was consistent on this point. There was harm done to the patient as evidenced by the bruise and the patient had to be hoisted back into bed.

84. On the balance of probabilities, the Panel was satisfied that Particular 5 was proved.

Particular 6 - Proved

6. Between 25 July 2018 and 1 March 2021 you did not inform the HCPC of your suspension from duty and/or that you had a restriction placed on your practice and/or that you were dismissed by your employer because of concerns about your conduct.

85. Ms O’Connor relied upon the documentary evidence including the notification to the Registrant of his suspension on 25 July 2018, meeting notes evidencing the Registrant had been informed a full investigation would be undertaken and a further suspension confirmation letter dated 20 September 2018. She also relied on investigation minutes of the 18 June 2020 meeting where the Registrant was informed of restrictions on his duties, which was then confirmed to him in the letter of 23 June 2020. In relation to the termination of his employment, she relied on the appeal outcome letter of 1 March 2021, where the Registrant was informed of the Disciplinary Hearing outcome.

86. Ms O’Connor relied on the written statement of AM, the Registration Manager for the HCPC who stated that the Registrant had renewed his registration, but had failed to declare the suspension, restrictions on practice or his dismissal. She also relied on the Registrant’s admission.

87. The Registrant’s evidence was that it never crossed his mind to inform the HCPC, he was naïve in not being aware of his obligation to report and he had not omitted this wilfully. He stated that a Trust manager (RL) had confirmed she would be updating the HCPC. He did recall, on renewal of his registration, having trouble accessing the website and trying to ring the HCPC for assistance, but described the task of renewing his registration as “paying the fees”.

88. The Panel accepted the Registrant’s admission to this Particular and noted that the time period was over 2 years, during which he did not inform the HCPC as required.

89. On the balance of probabilities, the Panel was satisfied that Particular 6 was proved.

Particular 7 – Not Proved

7. Your actions at particular 6 were dishonest.

90. Ms O’Connor submitted that in relation to the subjective test, the Registrant would be reminded of his duty to make the declaration when completing his registration renewal as the process included a question on whether there were any changes to his good character. She submitted that this should have served as a reminder, even if the Trust notification and investigations did not lead him to consider notifying the regulator. Ms O’Connor submitted that the Registrant was aware he should have made the declaration and deliberately failed to do so to prevent the HCPC knowing about the issues. In regards to the objective test, she submitted that ordinary decent people would consider the conduct to be dishonest.

91. The Registrant had admitted to failing to notify the HCPC and thought the Trust informing them (via RL) would mean the HCPC would be immediately involved. He offered a formal apology to the HCPC. He stated he never intended to be dishonest.

92. The Panel considered that the Registrant has been consistent in his evidence that he was unaware of his duty to inform the HCPC and that he then relied upon the Trust manager (RL) confirming that she would update the HCPC. The Panel noted that there was no evidence of any communication by the Trust or his union representative to the Registrant to inform him to also contact the HCPC. The Panel accepted that he was not aware of his obligation. The reminders for the Registrant to renew his registration and the completed declaration were not provided in evidence. However, the Panel accepted the Registrant’s evidence that he did not read the associated information on the website when completing the renewals. Whilst this was deemed to be careless and reflective of a relaxed attitude, it was not dishonest as there was no evidence of intent. The Registrant did state in live evidence that he had now read the wording and was aware of his obligation, which the Panel found persuasive.

93. On the balance of probabilities, the Panel was not satisfied that Particular 7 was proved.

Decision on Grounds

HCPC’s submissions

94. In her written submissions, Ms O’Connor stated that the Registrant had breached the HCPC Standards of Conduct, Performance and Ethics, dated January 2016. She relied upon the following standards:

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

• 2.1 – You must be polite and considerate.

• 6.1 – You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.

• 6.2 – You must not do anything, or allow someone else to do anything, which could put the health or safety of a service, user, carer or colleague at unacceptable risk.

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

• 9.5 – You must tell us as soon as possible if…you have had any restriction placed on your practice, or been suspended or dismissed by an employer, because of concerns about your conduct or competence

95. Ms O’Connor additionally relied upon the HCPC Standards of Proficiency for Occupational Therapists, and specifically the following:

• Standard 2 - be able to practise within the legal and ethical boundaries of their profession.

• Standard 3 - be able to maintain fitness to practise.

• Standard 8 - be able to communicate effectively.

• Standard 9 - be able to work appropriately with others.

• Standard 15 - understand the need to establish and maintain a safe practice environment.

96. The rest of the submissions are covered below.

Registrant’s submissions

97. The Registrant made oral submissions at the hearing in relation to misconduct and these are covered below.

Misconduct

98. The Panel approached its decision on misconduct by considering the proven Particulars of the Allegation.

99. The Panel accepted the advice of the Legal Assessor.

100. The Panel considered whether the Registrant had fallen short in his conduct, by way of “omission or commission of the standards of conduct expected” and noted that this must be “serious” by reference to conduct that fellow practitioners would find deplorable. It considered any conduct against the relevant objective professional standards.

101. The Panel found misconduct and a breach of the relevant standards.

Misconduct – Particulars 2 a) and 2 c) – Not Proven

2. Between approximately 23 March 2020 and 6 April 2020, you did not follow the Trust’s Infection Prevention Policy in that:

a) You drank hot drinks in the ward when this was not allowed.

c) You left the ward without washing your hands.

102. Ms O’Connor submitted that the COVID time period was relevant when assessing the seriousness of the conduct and that the Infection Prevention Policy was there to keep service users and their visitors safe by minimising the risk of an infection spreading. She submitted that the Registrant by his actions had increased this risk to colleagues, service users and the public.

103. The Registrant submitted that if anyone considered his drinking in that particular area (Particular 2 a) was serious then all staff with water bottles on the ward would also be culpable. He argued this was not serious and no harm was done. In relation to not washing his hands (Particular 2 c), the Registrant submitted that at the time he was not going to handle any more patients as he had left the ward and it was a single incident.

104. The Panel considered that the Infection Prevention Policy not being followed at the time of heightened COVID times is a serious matter, but the evidence before the Panel was that both were single incidents. These had not been addressed with the Registrant by way of training or a management referral. Taking either individually or together, neither Particular 2 a), nor 2 c) were found to amount to serious misconduct.

Misconduct – Particulars 3 a), 3 b) and 3 c) - Proved

3. On dates unknown between 1 January 2018 and 1 August 2018 you did not communicate and/or conduct yourself professionally with Colleague C, in that:

a) You said to Colleague C about another colleague that she had “a great rack” or words to that effect.

b) You took Colleague C’s hand and pulled it towards your stomach after having lifted up your top.

c) You said “long hair, boobs, do I care” or words to that effect when discussing a patient with Colleague C.

105. Ms O’Connor submitted that each of these Particulars were “egregious” behaviour; comments about a colleague’s breasts (Particular 3 a), pulling a female’s hand without permission towards a bare stomach (Particular 3 b) and referring to breasts when discussing patients (Particular 3 c). She noted the references to “laddish” behaviour and “banter”, but stated that there is no place for this in a healthcare environment. Ms O’Connor submitted that if a member of the public were to become aware of such conduct, then this would undermine the confidence in the profession as well as in the Registrant. She also submitted that working relationships had been impacted, with Colleague C reporting she felt uncomfortable.

106. The Registrant accepted that he had been unprofessional and explained he had apologised to Colleague C. He submitted that there had been no physical contact between Colleague C’s hand and his body and no intention that it should. The Registrant submitted that Colleague C had not stated that she had been harmed by his behaviour or comments. He did state that he was appalled by his own behaviour and that it would not be repeated.

107. The Panel concluded such behaviour is insensitive and unacceptable, in the context of a workplace where professionalism is required. These were inappropriate comments and actions. It involved invading Colleague C’s personal space. The Panel was of the view that this conduct would certainly be considered deplorable by other fellow practitioners and this was serious misconduct.

Misconduct – Particular 4 - Proved

4. On or around 12 July 2018 you were overheard by Colleague D on the phone to a patient’s relative calling them a “fucking wanker” or words to that effect.

108. Ms O’Connor submitted that whilst the patient’s relative may have made the Registrant feel frustrated or stressed, the conduct was unacceptable. She argued that there was a risk that the relative may have overheard the comment, even if the handset was held away from the Registrant’s mouth. If this was heard by the relative or a member of the public, she submitted that they would be appalled.

109. The Registrant submitted that at the time he was stressed and had not intended for the patient’s relative to hear the comment, but accepted nevertheless that the language was unprofessional. He accepted the potential damage if the comment had been heard by the patient’s relative.

110. The Panel’s view was that such conduct is never acceptable. In evidence, LK had confirmed other members of staff were within earshot and reacted. Albeit that LK could not recall patients being within earshot of the comment, there was potential for this given that it took place on a ward. The Panel concluded that such conduct amounts to serious misconduct.

Misconduct – Particular 5 - proved

5. On or around 13 June 2019 you did not move a patient in accordance with Trust Policy in that you asked the patient to put her hands on your shoulders and then lifted her up by her pelvis.

111. Ms O’Connor submitted that whilst the patient did not wish to use the hoist and had a fixed idea on her own capability, the incident occurred in the hospital and as a registered practitioner the Registrant was obliged to follow the Trust’s policy and had no valid reason not to follow it. She added that the prohibition on lifting was to protect everyone including the patient, who ended up sustaining a minor injury.

112. The Registrant stated that he did not believe that this was serious as the patient never raised any complaint. He submitted he had not performed one of the four lifts that were shown within the document on ‘Controversial Techniques’. He further submitted that he had undertaken a risk assessment; the Physiotherapist was involved and the issue with moving the patient was resolved. He failed to see how he endangered the patient and disputed that this would amount to serious misconduct.

113. The Panel noted that PB did not consider the injury to be serious, but nevertheless an injury was caused. The Registrant had performed the lift despite being aware that there was a ‘No Lift’ policy. The Panel understood the motivation to allow the patient to be as independent as possible and noted the Registrant’s comment that this patient was a known advocate for disability rights.

114. However, as became clear during the transfer, the patient did not have the required independent sitting balance and therefore there was no sound clinical reasoning for carrying out a lift. The patient’s wishes have to be considered alongside the risk of harm to patients and colleagues. Fellow colleagues would find it troubling that the well known guidelines were being ignored even though the height of the lift was small. Therefore the Panel concluded that this manoeuvre constituted serious misconduct.

Misconduct – Particular 6 - Proved

6. Between 25 July 2018 and 1 March 2021 you did not inform the HCPC of your suspension from duty and/or that you had a restriction placed on your practice and/or that you were dismissed by your employer because of concerns about your conduct.

115. Ms O’Connor submitted that the failure occurred over a lengthy period, during which the Registrant underwent three investigations, was suspended, had restrictions put on his practice and was then dismissed. She stated that the Trust did not refer the Registrant to the HCPC until December 2020 and if they had not done so then the HCPC would still not be aware of the concerns. She submitted that the duty in Standard 9.5 exists so that the HCPC is aware of concerns relating to conduct and can effectively discharge its function to protect the public.

116. The Registrant submitted that he was not aware of the need to report at the time. He submitted that he had worked in a variety of roles since and had been trusted with patients in specialist Occupational Therapist roles. He denied the lack of reporting caused any harm and submitted that no patients had been put at risk.

117. The Panel considered that the lack of reporting to the HCPC was misconduct. The Panel was concerned that it never occurred to the Registrant to keep his regulator updated. Other practitioners and colleagues would expect such matters to be reported to the HCPC. The Panel therefore found this amounts to serious misconduct.

Conclusion

118. In the Panel’s judgement, the Registrant’s behaviour fell seriously below the standards expected of an Occupational Therapist. It has found that the Registrant failed to uphold his professional standards in fundamental areas.

119. The conduct involved breaches of the HCPC Standards of Conduct Performance and Ethics and the Standards of Proficiency for Occupational Therapists. The Panel accepted Ms O’Connor’s submissions that there had been breaches of these standards.

Decision on Impairment

120. In light of the findings of fact and the decision on grounds (misconduct), the Panel reconvened to deal with the next stage, namely Impairment.

121. The HCPC had no further documents or witnesses for the Panel to consider. Submissions were provided by Mr Smart, who had taken over as representing the HCPC.

122. The Panel had sight of the Registrant’s bundle, which was prepared for the Impairment stage and contained his reflections on various matters. The Panel also heard oral evidence from the Registrant in relation to Impairment.

123. Mr Smart reminded the Panel of its findings in relation to Particulars 3 to 6. He submitted that despite the 41 page bundle from the Registrant for the impairment stage, the relevant issues had not been dealt with despite the passage of time. Mr Smart submitted that there were attitudinal issues demonstrating a lack of professionalism, thus there was a risk of repetition. He acknowledged Particulars 3 - 6 could be remedied but submitted that the Registrant had shown a lack of understanding of the causes and consequences of his actions. He submitted that the failure to maintain professional boundaries would result in impairment on the public component and that failing to find the Registrant’s behaviour as impaired would be an endorsement of his actions.

124. The Registrant provided oral evidence. He accepted the Panel’s findings, stated he was ashamed and added there was no excuse for his behaviour. He dealt with Particulars 3 to 6 in turn and provided his insight on each. The Registrant stated he had a 22 year unblemished professional career and offered his assurance to the Panel that such behaviour and attitude will not be demonstrated again.

125. Ms Smart made an application to redact the names mentioned in the Registrant’s oral evidence, namely the complainant (Colleague C) and the witness (Colleague D). The Registrant had no views on this. The Panel accepted the advice of the Legal Assessor. The Panel determined that the starting point is the ‘open justice principle’ and concluded that redacting the names would help conceal identities of the complainant and the witness. This application was granted.

126. The Panel took into account the submissions of Mr Smart and the Registrant. The Panel accepted the advice of the Legal Assessor.

127. The Panel has approached its decision on impairment by looking at the situation as it is today. It has had regard to the HCPTS Practice Note “Fitness to Practise Impairment”.

128. The Panel’s primary objective is the protection of the public, the maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour.

129. In reaching a decision on impairment, the Panel has considered all of the evidence and the submissions and has exercised its’ own judgment on impairment.

130. Whilst there is no statutory definition of impairment, the Panel was assisted by the guidance provided by Dame Janet Smith in the Fifth Shipman Report, as adopted by the High Court in CHRE v NMC & Grant[2011]. In particular, the Panel considered whether its findings of fact showed that the Registrant’s fitness to practise is impaired in that she:

a. Has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

b. Has in the past brought and/or is liable in the future to bring the … profession into disrepute; and/or

c. Has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the … profession.

131. The Panel accepted that the Registrant was of previous good character with no previous regulatory findings against him.

132. The Panel noted that, in oral evidence, the Registrant stated that there had been no subsequent disciplinary matters and he referred to positive client feedback forms. There was a supporting reference from a colleague emailed to the Registrant on 17 March 2023. The Panel noted that there were no references/testimonials from colleagues aware of the outcome of the fact finding stage.

133. In determining whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct, the Panel took into account both the ‘personal’ and ‘public’ components of impairment referred to in the case of Grant. The ‘personal’ component relates to the Registrant’s own practice as an Occupational Therapist, including any evidence of insight and remorse, as well as any efforts made towards remediation (whether it is remediable, whether the Registrant has taken remedial action and if there is a risk of repetition). The ‘public’ component includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession and the Regulator.

‘Personal’ component of impairment

134. With regard to the ‘personal’ component of impairment, the Panel took account of the oral evidence from the Registrant and Mr Smart’s submissions. The Panel agreed with Mr Smart that the conduct was remediable. The Panel then considered each Particular in turn.

Particular 3

135. The Panel accepted that the Registrant had reflected and expressed remorse for the “mistreatment of one of my colleagues…”. The Panel accepted that the Registrant had demonstrated sufficient insight into why his behaviour was inappropriate and the potential consequences of his behaviour. The Registrant accepted that his comments were derogatory, lacked respect, such comments objectify women and he was disappointed in his own conduct. He accepted that Colleague C was offended, as evidenced by her complaint, and he stated that his comment could have caused emotional harm. He stated that his behaviour could cause issues in working with the same colleague in the future and other colleagues would also form an adverse impression of him. He reminded the Panel that he had encountered Colleague C in the supermarket and he had apologised. He stated that the public would form an impression on his behaviour and this could adversely affect the public’s perception of the profession.

136. The Panel was satisfied that the Registrant had taken action to address this and the risk of repetition was low. The Registrant detailed the research undertaken on most Saturdays, including on the HCPC guidelines, the ‘#MeToo’ movement, the Equality Act 2010 and various training related to equality, diversity and inclusion. He believed he was now more aware of the issues. He had demonstrated his awareness and change of attitude. The Panel also noted that there had been no other complaints received in the 5 years since the incident.

Particular 4

137. The Panel accepted that the Registrant had insight into the unacceptability of his behaviour, even if faced with a difficult conversation with a relative. The Registrant accepted that his comment was rude, derogatory and offensive. He stated his reaction had been “wholly wrong” and offensive. Despite the comment being said away from the phone, he accepted it was inappropriate and stated his anger had got the better of him on that occasion. He explained he had been covering for a colleague, the caller was very difficult and that the Registrant should have taken some time before discussing further. He expressed concern about the poor example he was setting to junior colleagues. He also provided details on the range of harm if a member of public had heard the comment. He agreed that Colleague D was right to report this as it was unprofessional and brought the profession into disrepute.

138. The Panel concluded that the risk of repetition was low given the steps put in place. The Registrant stated he wished to avoid such pressure again and had reduced himself to working a 4 day week in order to reduce his stress levels. He believed this would assist in avoiding such a situation from recurring as he would not be communicating whilst stressed. If faced with such a difficult situation again, the Registrant stated he would apologise, say he would call back in 10 minutes, have some time out and try to obtain more information.

Particular 5

139. The Panel concluded that the Registrant had reflected on this in appropriate detail and understood the importance of patient safety. The Registrant’s stance of self-justification in March had altered. The Registrant regretted harming the patient and stated he had gone over it in his mind but was unable to identify when the harm was caused during the lift. He accepted that his communication with other colleagues at that time had been poor. The Registrant provided details of the many different types of manual handling transfers he had undertaken regularly. He stated that his role involved maintaining patient safety, and that patient safety was ensured by adopting the correct manual handling technique. He noted that the importance of adherence to policies is linked to the public having confidence in the profession. He also stated the manual handling policy was for the safety of the patient, as well as himself. He also accepted following a good technique was crucial and part of the job.

140. The Panel concluded the risk of repetition was low. The Registrant stated he had researched guidelines on manual handling, had undertaken mandatory manual handling training, joined the Royal College of Occupational Therapists and discussed slideboard and manual handling with professional colleagues. He stated that he intended to complete manual handling training as part of the induction for the new role too. His training was accepted as being up to date, as evidenced by his appraisal, which the Panel inferred was from December 2022, or early 2023, as the document was undated but did refer to the coming year’s objectives as 2023. He had stated that he had undertaken much manual handling without any incidence or complaint over the last few years. He also outlined his thought process before manual handling, discussions with colleagues and the importance of risk assessments as well as contingency planning. He stated he wished to adhere to policies and accepted these must be taken seriously.

Particular 6

141. The Registrant stated that he had assumed that the manager would inform the regulator and that he had no intention to withhold information from the HCPC. The Panel noted that there had been no dishonesty finding in relation to this Particular. The Registrant accepted responsibility, acknowledged that he should have reported this to the HCPC and accepted the role of the regulator is to protect the public. By failing to report, the Registrant accepted the harm caused by way of loss of trust in the regulatory process.

142. Overall, the Panel considered that the Registrant had come a long way, even from the March 2023 hearing, and had made an effort to develop himself. The Panel concluded that there was sufficient insight, he had taken responsibility and the Registrant had apologised. The risk of repetition did not disappear, but the Panel was satisfied this was now low. Since the conduct in relation to Particulars 3 - 6 had occurred, there had been no other incidents concerning the Registrant.

143. The Panel therefore found the Registrant’s fitness to practise is not impaired having regard to the ‘personal’ component.

‘Public’ component of impairment

144. With regard to the ‘public’ component of impairment, there were no concerns in relation to protecting service users due to the Registrant’s remediation. However, the Panel considered that a finding of current impairment is necessary to uphold professional standards and to maintain public confidence in the profession. The Registrant had been found to have acted inappropriately in his comments and actions towards a female colleague. During a telephone call, the Registrant made rude remarks in front of colleagues about a patient’s relative that could have been overheard by the caller. He failed to follow the Trust’s Manual Handling policy in relation to ‘no lifting’, which resulted in actual patient harm. Finally, the Registrant failed to inform his regulator of his suspension and subsequent dismissal by his employer. Such behaviour was wholly unacceptable.

145. Even though some years have passed since the misconduct found, the Panel was concerned that the wrong message would be sent to the profession and to the public if a finding of impairment was not made. Additionally, it would also undermine the public’s confidence in the regulatory process.

146. Accordingly, the Panel found that the Registrant’s fitness to practise is impaired having regard to the ‘public’ component of impairment.

Decision on Sanction

147. The Panel heard submissions from Mr Smart on behalf of the HCPC. He submitted that, as no personal impairment had been found, the relevant considerations for the sanction will be deterring other registrants and for public confidence purposes. In terms of aggravating factors, he submitted that a service user had suffered some harm, albeit minor, and that there were several allegations. He further submitted that there was a pattern of behaviour, but acknowledged the mitigating factors as being that the Registrant had not been found to be impaired on the ‘personal’ component and a period of time had elapsed without further incidence. Mr Smart did not seek any particular sanction and left it as a matter for the Panel’s discretion.

148. The Registrant acknowledged he had not been found impaired on the ‘personal’ component and accepted the reasons for being found impaired on the ‘public’ component. He submitted that his role is public facing and there would be others within earshot who could hear his comments. He did not consider that imposing No Order would be appropriate. However, he did submit that a Caution Order was appropriate as it was an isolated incident in the backdrop of the onset of the COVID pandemic where many colleagues were off sick and he was stressed at having to cover multiple wards. He submitted that his conduct had not been repeated in his working or private life, there was a low risk of repetition and relatively minor harm was involved.

149. The Registrant reminded the Panel of its finding in relation to his insight, the apologies offered and his efforts at remediation. He submitted that he understood the seriousness of the matter and the need to uphold standards. He also added that he would not be without scrutiny in his new role as he would be supervised and working in a ‘closed community’. Finally, he submitted that any restrictions would make it hard for him to practise as an Occupational Therapist as it would be easier for employers to hire someone who is without restrictions.

150. The Panel accepted the advice of the Legal Assessor and has reached its decision on sanction by following the guidance in the HCPC Sanctions Policy.

151. The Panel has had regard to all the evidence presented. It reminded itself that a sanction is not intended to be punitive although it may have a punitive effect. The Panel bore in mind the principles of fairness and proportionality and that a sanction must be reasonable and the least restrictive possible.

152. The primary function of any sanction is to address public safety from the perspective of the risk which the Registrant may pose to patients and to the wider public interest; namely the deterrent effect on other registrants, the reputation of the profession and public confidence in the regulatory process.

153. The Panel applied the principle of proportionality, balancing the interests of the Registrant with those of the public, and considered the available sanctions in ascending order.

154. The Panel began its deliberations on sanction by considering the mitigating factors. The Registrant had not been found to be impaired on the ‘personal’ component and the Panel had found the Registrant had displayed genuine insight, remorse and had apologised. The Panel had also concluded that the risk of repetition was low. The Panel concluded that a period of time had elapsed without incidence. The Panel had found that the Registrant had remediated his misconduct and it relied upon its earlier decision at the impairment stage. The Panel considered the Registrant’s comments about the impact of the pandemic, but did not accept that this had any bearing on Particulars 3 - 5 of the Allegation as these occurred outside of this period.

155. The Panel next considered aggravating factors and considered there was a breach of trust with service users in relation to Particular 4 involving a patient’s relative and in relation to his remark in Particular 3(c) and in relation to the banned ‘Lift’ referred to in Particular 5. The Panel did not consider this to be a pattern of behaviour as the behaviour had not been repeated outside the period in question and the Panel had found a low risk of repetition. The Panel did accept that a service user had been harmed.

156. The Panel next considered the sanctions in ascending order of gravity.

157. It has found that it would not be appropriate to impose No Order because of the serious nature of the Allegation found, as well as the ‘public’ component of the impairment found by the Panel.

158. A Caution Order was deemed to be appropriate by the Panel. The Panel started with considering the Sanctions Policy:

“101. A caution order is likely to be an appropriate sanction for cases in which:

• the issue is isolated, limited, or relatively minor in nature;

• there is a low risk of repetition;

• the registrant has shown good insight; and

• the registrant has undertaken appropriate remediation.”

159. Although sufficiently serious to amount to misconduct, the Registrant’s failings were not at the most serious end of misconduct and were thus relatively minor in nature. The Panel noted that the misconduct took place between 2018 – 2021 and there had been no other misconduct in the Registrant’s lengthy career.

160. The Panel bore in mind its finding in relation to the Registrant having insight, remorse, apologising, having remediated and there being a low risk of repetition. Accordingly, the Panel determined that paragraph 101 of the Sanction Policy applied squarely to these circumstances.

161. The Panel did consider the length of the Caution Order and did bear in mind paragraphs 103 - 104 of the Sanctions Policy. The Panel concluded that the duration of the Order should be 2 years in order to achieve the aim of public confidence in the profession and it was felt that any lesser period would not achieve this. The 2 year period was therefore appropriate and proportionate.

162. The Panel did consider a Conditions of Practice Order. However, this was not an appropriate sanction given the Panel’s finding that the Registrant had insight, had remedied his misconduct and there were no persistent failings. Given its conclusion on the Conditions of Practice Order, the Panel concluded that a Suspension was certainly inappropriate and would be disproportionate.

163. The 2 Year Caution Order was the appropriate and proportionate sanction. It would reinforce the fundamental requirement for registrants to follow policy and treat service users, colleagues and their regulator with respect. It would serve to have a deterrent effect on other registrants as well as instil public confidence in the profession and regulatory process.

 

 

ORDER: The Registrar is directed to annotate the Register entry of Mr David Woodhouse with a Caution which is to remain on the Register for a period of 2 years from the date this order comes into effect.

No notes available

History of Hearings for David Woodhouse

Date	Panel	Hearing type	Outcomes / Status
19/03/2024	Investigating Committee	Interim Order Application	Interim Suspension
21/08/2023	Conduct and Competence Committee	Final Hearing	Caution
14/03/2023	Conduct and Competence Committee	Final Hearing	Adjourned part heard