Alicia Jess (Hing)
Profession: Occupational therapist
Registration Number: OT67323
Hearing Type: Final Hearing
Date and Time of hearing: 10:00 07/12/2023
End:
17:00 12/12/2023
Location:
Via Video Conference
Panel: Conduct and Competence Committee
Outcome: Caution
Please note that the decision can take up to 5 working days to be uploaded onto the HCPTS website. Please contact one of our Hearings Team Managers via tsteam@hcpts-uk.org or +44 (0)808 164 3084 if you require any further information.
Allegation
As a registered Occupational Therapist your fitness to practise is impaired by reason of misconduct. In that:
1. In December 2018, you failed to maintain professional boundaries with Patient A in that you:
a) Sent Patient A a friend request on Facebook;
b) Gave Patient A your personal mobile phone number.
2. You inappropriately sent Patient A a picture of you dressed in gym wear on:
a. 21 December 2018
b. 23 December 2018
c. 5 January 2019
d. 7 January 2019
e. 7 February 2019
3. In or around January 2019, you sent inappropriate WhatsApp messages to Patient A stating:
a) “I feel like such a bad human being, because I should definitely not fancy my patients” & genuinely feel bad cause I know you clearly just have a flirty personality! I shouldn’t think anything of it, but I do kinda fancy you” or words to that effect.
b) “Also thought my a** looked pretty good” or words to that effect.
c) “Also you haven’t agreed with my a**” or words to that effect.
d) “was about to offer you a demo of how good my a**e actually looks” or words to that effect.
e) “Wanna bang doe?” or words to that effect.
4. You did not inform the HCPC that you had been suspended by your employer on 04 November 2019
5. Your actions at particulars 1, 2 and/or 3 were sexually motivated.
6. The matters set out in particular 4 were dishonest.
7. The matters set out in particulars 1- 6 above constitute misconduct.
8. By reason of your misconduct, your fitness to practise is impaired.
Finding
Preliminary Matters
Conduct of Parts of the Hearing in Private
1. On behalf of the Registrant, Mr Short applied for parts of the hearing to be conducted in private in view of the matters concerning the health and other aspects of the Registrant’s private life that would arise from the evidence. Mr Mullen stated on behalf of the HCPC that he did not oppose the application and the Legal Assessor advised that the application should be granted under rule 10(1), HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 as amended, in view of the guidance given in the HCPTS’s Practice Note, Conducting Hearings in Private (March 2017). The Panel accepted that advice and directed that the relevant parts of the hearing be conducted in private.
Amendment
2. Mr Mullen applied to amend the Allegation. He submitted that the proposed amendments were not so significant as to require them to be considered by the Investigating Committee, the Registrant had been given ample notice of them and there was no injustice to the Registrant in allowing the amendments to be made. For the Registrant, Mr Short stated that there were no objections to the amendments. The Panel received advice from the Legal Assessor, which it accepted. He advised that that there would be no injustice to the Registrant in allowing them.
3. The Panel accepted that advice and granted the application. Many of the amendments clarified the Allegation. Some of the amendments proposed did add to the Allegation but all the communications, including those in the Allegation in amended and unamended form, arose out of the electronic communications that were in the documents before the Panel. There would be no injustice to the Registrant in allowing the amendments.
4. The stem of the allegation in its amended form did not capture the facts alleged in Particular 6. This appears to have been a drafting oversight. The Panel raised this with the parties before handing down its decision on the facts. Neither party opposed the making of a further amendment reamending the stem in order to capture Particular 6, in the form that appears in the Allegation as set out above.
Decision on Facts
Background
5. The following represents the uncontroversial background to this case. The Registrant was employed by Buckinghamshire Healthcare NHS Trust (‘the Trust’) as an Occupational Therapist between September 2015 and December 2019.
6. In November 2018, Patient A was admitted to the National Spinal Injury Centre (‘NSIC’) within Stoke Mandeville Hospital (‘the Hospital’). The Registrant was Patient A’s Occupational Therapist, though he initially saw the Registrant’s student clinically. The Registrant started to work with Patient A as his Occupational Therapist at the beginning of December 2018, until 4 January 2019 when she took up a position in the Intensive Care Unit at the Hospital as a Band 6 Occupational Therapist. She had been a Band 5 Occupational Therapist until that point. Patient A was discharged from the NSIC in or around March 2019.
7. In September 2019, during an appointment with the outpatient service at the Hospital, Patient A disclosed to a psychologist that while he had been a patient at the NSIC he and the Registrant had exchanged messages on social media that included sexual content. He alleged that this had been initiated by the Registrant and was unwanted on his part.
8. The Registrant was suspended from her duties on 4 November 2019 and in a letter sent to and received by her dated 7 November 2019 the Registrant was notified that an investigation into her conduct was to be carried out and reminded her to notify the HCPC of her suspension.
9. The investigation resulted in a disciplinary hearing that took place on 24 April 2020 and an outcome letter dated 30 April 2020 was delivered to the Registrant, which reminded her to notify the HCPC retrospectively about her suspension. On or about 8 July 2020 the Occupational Therapy Department at the Hospital made a referral to the HCPC concerning the Registrant.
Evidence, submissions and legal advice
10. The Panel heard oral evidence on behalf of the HCPC from the following witnesses, -
• Katriona Kennedy, The Trust’s Head of Nursing for Integrated Elderly and Community Care, who conducted the investigation;
• Patient A;
• James Watkins, a Case Manager employed by the HCPC in its fitness to practise department;
• Adam Mawson, a Registrations Manager employed by the HCPC.
11. The Registrant also gave oral evidence. No other witnesses were called on her behalf.
12. The HCPC and the Registrant each relied on documents that were before the Panel.
13. The Panel heard submissions from Mr Mullen and from Mr Short, all of which it has taken into account. The Panel received advice from the Legal Assessor, which it has accepted.
14. The burden of proof as to the facts alleged lies with the HCPC, and the Panel has considered the particulars of the allegation against the civil standard of proof, that is to say, the balance of probabilities.
Stem of the Allegation / ‘As a registered Occupational Therapist (OT67323), whilst employed by Buckinghamshire Healthcare NHS Trust ….’
15. The events with which Particulars 1 – 5 and 7 – 9 of the Allegation are concerned are alleged to have occurred during a period when the Registrant was employed by the Trust as a registered Occupational Therapist. Those events are alleged to have taken place between 20 December 2018 and May 2019. As set out above, the Registrant left her employment with the Trust in December 2019. Particular 6 refers to a time when she was no longer employed by the Trust but was still a registered Occupational Therapist.
Particulars 1 – 6 of the Allegation / Introduction
16. The Registrant admitted the Particulars 1 – 6 inclusive of the Allegation, including each sub-particular. There was no issue between the parties that each of the images and word or text messages in question were sent by the Registrant to Patient A.
17. Those communications appeared from the documents before the Panel. The word or text communications were contained in records of Facebook messages, the ‘chatlog’, i.e. record, of the WhatsApp exchanges between the Registrant and Patient A and also appeared on copy images of text messages sent by phone and photographs and from a video of the Registrant that she took of herself and sent to the Registrant over WhatsApp. Those photographs and the video-still constituted the ‘pictures’ referred to in Particular 2 of the Allegation.
18. In the circumstances, the Panel found each of the particulars and sub-particulars numbered 1-6 proved. The Panel’s findings are recorded below by reference to each of those particulars.
‘1. You had communication with Patient A on Facebook in that you:
a) On or around 18 December 2018, you sent Patient A a friend request on Facebook;
b) On 20 December 2018 you sent Patient A your personal mobile phone number on Facebook.’
19. The Panel was satisfied that on 18 December 2018 the Registrant sent Patient A a friend request on Facebook and that on 20 December 2018 she sent him her personal mobile phone number on Facebook. Therefore, Particular 1 of the Allegation has been proved in its entirety.
‘2. You sent Patient A pictures of yourself dressed in gym wear on:’
a. 21 December 2018
b. 23 December 2018
c. 5 January 2019
d. 7 January 2019
e. 7 February 2019.’
20. The Panel has seen printouts of messages containing photographic images and the still video image of the Registrant dressed in gym wear, bearing each of the dates specified in sub-particulars a. – e. One such picture was sent on 7 January 2019. Two pictures were sent on 23 December 2018, on 5 January (one was the video-still) and 7 February 2019. On 21 December 2018 the Registrant sent Patient A three photographs of herself, again dressed in gym wear. Therefore, this particular of the Allegation has been proved in its entirety.
‘3. you sent WhatsApp messages to Patient A in that:
a) On 20 December 2018 you sent him a message stating “lack of enthusiasm doesn’t get n00ds” or words to that effect;
b) On 21 December 2018 you sent him messages stating:
i) “I feel like such a bad human being, because I should definitely not fancy my patients” or words to that effect;
ii) “genuinely feel bad cause I know you clearly just have a flirty personality! I shouldn’t think anything of it, but I do kinda fancy you” or words to that effect and
iii) “make it sound like I’m doing something seedy. Like texting a patient who is in bed a few yards from me. Especially one I’d definitely want to flirt with if I wasn’t their therapist” or words to that effect.
c) On 2 January 2019 you sent him messages stating:
i) “just jealous because you want my body” or words to that effect.
ii) “was about to offer you a demo of how good my arse actually looks” or words to that effect.
d) On 5 January 2019 you sent him messages stating:
i) “Also thought my ass looked pretty good” or words to that effect.
ii) “Also you haven’t agreed with my ass” or words to that effect.
e) On 16 January 2019 you sent him messages stating:
i) “Wanna bang doe?” or words to that effect and
ii) “you look HOT in your pics btw” or words to that effect.’
21. The Panel has seen the records of the word messages to which each of these particulars refers. With one exception, those contain the actual words quoted in each sub-particular, as opposed to ‘… words to that effect’ as charged in the relevant sub-particulars.
22. The exception concerns sub-particular c)i). The actual words of the message were, ‘Just jealous cause you waaaaant maaaaa boooddddyyy.’ The Panel also notes that the three sentences identified in Particular 3 b) iii) were in fact sent by the Registrant as three messages very soon one after the other, in the order set out in that sub- particular.
23. Therefore, the Panel has found Particulars 3 a) – e) proved as follows, -
23.1 as to each of sub-particulars 3 a), b) i), ii), iii), c) ii), d i) and ii) and e i) and ii), the Registrant used the exact words specified in those sub-particulars;
23.2 as to sub-particular 3 c) i), the Registrant used words to the effect specified in that sub-particular.
f) On 12 January 2019 you sent him messages in which you spoke about another patient using unprofessional language.’
24. The chatlog of WhatsApp messages showed that the following messages were sent by the Registrant to Patient A on 12 January 2019;
‘I saw a morbidly obese bilateral amputee with a grade 4 sacral sore... plus various other sores in his fat folds. He was literally like a human blob. … I felt really bad but OMG. It took four of us to roll him, and he was just... revolting .. He had stumps for knees ..’
25. The Registrant admitted this sub-particular. These messages were highly derogatory of a patient in the care of the Trust. The language the Registrant used was plainly unprofessional. Therefore, this sub-particular of the allegation has been found proved.
‘4. On 14 February 2019 you send Patient A the Instagram handle/details of your Burlesque dancing page.’
26. The chatlog of WhatsApp messages records that on 14 February 2019, the Registrant was communicating with the Registrant about Instagram and informed him that she had ‘a new page for my burlesque’, which she explained in evidence to be a form of dance. The record contains a redacted reference to a message from the Registrant redacted with the words ‘Instagram handle’. The Registrant admitted that she had sent that information to Patient A on 14 February 2019. Therefore, this particular of the Allegation has been found proved.
‘5. Between December 2018 and May 2019, you disclosed details about your personal life to Patient A in that you provided him with information about:
a) Your romantic and/or sexual relationship(s);
b) Your father’s health; and
c) your mental health.’
27. The chatlog of WhatsApp messages and the records of photographs sent by WhatsApp contained numerous communications from the Registrant to Patient A containing details in each of these areas concerning the Registrant’s private life.
28. So far as 5 a) is concerned, the Registrant disclosed to Patient A details of previous romantic and sexual relationships. Therefore, this sub particular is proved.
29. As to her father’s private life (5b), the Registrant disclosed to Patient A extensive details about her father’s medical condition and circumstances.
30. The Registrant also disclosed extensive details.
31. Therefore, the Panel has found this particular of the allegation to be proved in relation to each of sub-particulars a), b) and c).
‘6. On 31 July 2020 you sent Patient A a text message in which you said he had “destroyed my life and career” or words to that effect.’
32. The Registrant also admitted this particular. The documents before the Panel included a screenshot of a text message sent from the Registrant’s phone, bearing the date of 31 July 2020. The message included the words, -
‘Just thought you should know that you have completely and utterly destroyed not only my career, but my life too.….’
33. Accordingly, the Panel has found this particular of the allegation proved, because the Registrant sent Patient A a text message on 31 July 2020 to the effect that he had destroyed her life and career.
‘7. You did not inform the HCPC that you had been suspended by your employer on 04 November 2019.’
34. The Panel accepted the evidence of Mr Watkins and Mr Mawson that the HCPC received no notification at any time from the Registrant that she had been suspended by the Trust on 4 November 2020. The Registrant admitted that she had not notified the HCPC. Her admission was accompanied by an explanation she gave to the Panel. The Registrant’s position as to why she did not notify the HCPC is set out and considered below, in the Panel’s decision on the allegation of dishonesty charged under Particular 9.
35. Therefore, Particular 7 of the Allegation has been found proved.
The Charges of Sexual Motivation and Dishonesty / Introduction
36. The issues between the parties concerned Particulars 8 and 9, which respectively charged sexual motivation with respect to the sending of the messages at Particulars 1, 2, 3 (a) – (e) and (4), and dishonesty in relation to the Registrant’s non-disclosure of her suspension to the HCPC under Particular 7.
37. The Panel has considered each of Particulars 8 and 9 separately. It has taken into account extracts from the case law referred to by the Legal Assessor in applying the balance of probabilities standard to these serious charges. Those were citations from (among others) Bank St Petersburg PJSC & Anr v Arkhangelsky [2020] EWCA Civ. 408 at [114] - [119] in the judgment of Males LJ, referring to In re B (Children) [2008] UKHL 35 and the speech of Lord Hoffman where he referred to a well-known passage from the judgment of Lord Nicholls in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563.
38. Although the Registrant was assumed to be of good character for the purposes of the allegations in Particulars 8 and 9, the Panel took into account the Registrant’s oral evidence and the relevant testimonial evidence as to her good character in assessing her credibility as a witness on the issues of dishonesty and sexual motivation and on the further issue of propensity, i.e. whether it was likely that she would have acted as alleged. What weight to give this evidence was a matter for the Panel entirely. See Donkin v Law Society [2007] EWHC 414 (Admin) at [24]-[25].
‘8. Your actions at particulars 1, 2, 3 (a) – (e) and 4 were sexually motivated.’
39. The facts alleged under Particulars 1, 2, 3 (a) – (e) and 4 have been admitted and found proved.
40. The Panel directed itself in accordance with the advice from the Legal Assessor that included the following matters. A sexual motive is present where the conduct occurred either in pursuit of sexual gratification or a future sexual relationship: Basson v GMC [2018] EWHC 505 (Admin) at [14]. As Mostyn J pointed out in Basson at [17] the state of a person's mind is not something that can be proved by direct observation but can only be proved by inference or deduction from the surrounding evidence.
41. It is not only physical contact (consensual or not) that may be sexually motivated. Communications may be sexually motivated: PSA v HCPC & Yong [2021] EWHC 52 (Admin) [93]-[97]. In Haris v GMC [2021] EWCA Civ 763, the Court of Appeal placed particular importance on assessing the nature of a registrant’s behaviour (whether it was overtly sexual) and whether or not there was a plausible innocent explanation for any such sexual behaviour: at [37] and [57] in the judgment of Lady Justice Andrews. The Panel has also borne in mind the guidance on the question of sexual motivation set out in the HCPTS’s Practice Note entitled, Making Decisions on a Registrant’s State of Mind (November 2022).
42. Mr Mullen’s case was that most if not all of the conduct was in pursuit of a sexual relationship with Patient A and that aspects of it were in pursuit of sexual gratification. The Registrant’s case was explained by her in some detail and may be summarised by her position that she sent none of the messages in pursuit of a sexual relationship or for sexual gratification. Many of the messages were sent with a view to seek from Patient A what she referred to as ‘validation’. She said in her evidence “my intent… was not to try and gain any kind of sexual gratification… it was more … a validation, completely inappropriate... – seeking validation.” The Registrant also said, in answer to Panel questions, “…I just wanted someone to tell me that I deserved those things. I wasn’t trying to obtain them from anybody, …” Some messages were also sent because the Registrant and Patient A had a shared interest in working out at the gym. And other messages were what she described as a joke or ‘banter’. The Registrant’s position was that none of the messages were sexually motivated, therefore.
43. In deciding the issue of sexual motivation, the Panel has considered all the relevant oral and documentary evidence. Particular 8 of the Allegation requires findings to be made in respect of each of the communications found proved under Particulars 1, 2, 3 (a) – (e) and 4. The Panel has made its findings accordingly and these are set out below with accompanying reasons.
Was there sexual motivation with regards to Particular 1?
44. Particular 1a) The first of the two sub-particulars is concerned with the friend request sent on Facebook on 18 December 2019. The circumstances were that the message was sent shortly before the Registrant was due to leave the unit, to transfer to ICU. The message itself concluded, ‘… Be good to keep in touch after I’ve left.’ The Panel did not consider that the message was any more than that, and in particular was not sent in pursuit of a sexual relationship or was not otherwise sexually motivated. They got on well and the Registrant wanted to keep in touch.
45. Particular 1b) The Panel has concluded that the Registrant’s motivation in asking for Patient A’s phone number on 20 December 2018 (sub-particular (b)) was no different. She wanted to keep in touch. The sending of the message was not sexually motivated.
46. With regard to the sending of the communications found proved under Particular 1, the Panel concluded that neither was sexually motivated.
Was there sexual motivation with regards to Particular 2?
47. This particular relates to photographs and the video-still sent by the Registrant to Patient A by WhatsApp between 21 December 2018 and 7 February 2019.
48. The Registrant and Patient A had a shared interest in working out at the gym, as shown by the WhatsApp text messages in which they discussed their working out at the gym, techniques used, weight loss, and the benefits of working out on bodily appearance.
49. Particular 2a). The three photographs were sent on 21 December 2018 show the Registrant in gym-wear in a gym. Although the Registrant refers to her looks with reference to one of the photographs, none of the poses are sexual and the surrounding text exchanges refer to types of gym activity. The Panel therefore concluded that the sending of those images was not sexually motivated.
50. Particular 2b. The two photographs sent on 23 December 2019 also show the Registrant in gym-wear, one taken in the gym, another in a room that does not appear to be part of a gym. One of these shows her on her back pushing up as part of a gym exercise, with the top of her chest (but not cleavage) exposed. The accompanying text message stated, ‘Doing wide press with my glute bank which hurts so bad.’ The other image showed her bare midriff. Neither image was sexual in nature. Both images were sent in the context of a text conversation about gym working out. The Panel therefore concluded that the sending of those images was not sexually motivated.
51. Particular 2c. On 5 January 2019 the Registrant sent a photograph and the video-still. Each showed her in gym-wear at the gym. Neither image was sexual. The surrounding text messaging was on the subject of work - outs and the positive physical effects of the work. The video still showed the Registrant standing up, holding a piece of gym equipment. The accompanying message stated, ‘Also, thought my ass looked pretty good. And before you tell me my arms are too high, it’s the angle of the camera tilted upwards.’ The Panel has concluded that the reference by the Registrant to her ‘ass’ reflected her sense of satisfaction from an improvement to her bodily appearance. It is likely that the Registrant was seeking approval or validation from the Registrant, but this was not sexual in the context of a photograph that was not sexual in content. The Panel therefore concluded that the sending of those images was not sexually motivated.
52. Particular 2d. The photograph sent on 7 January 2019 shows the Registrant in long-sleeved gym-wear in what appears to be a public toilet or bathroom, showing the side of a partially exposed midriff reflected in a mirror, sent with the caption, ‘Want another cream cake, fatty?!’ It was a single photograph, which was not overtly sexual, sent about half an hour after a matter-of-fact conversation between the Registrant and Patient A about the lymphedema in his leg. In view of the context of the prior conversation, the Panel found that the sending of this image was not sexually motivated.
53. Particular 2e. The two images sent on 7 February 2019 were very similar. Each showed a close-up of the Registrant in gym wear. Both showed the top of her cleavage and her midriff. The surrounding text messages show that the Registrant informed Patient A that she ‘had just bought a shit ton of clothes’ and when asked by Patient A what she had purchased, the Registrant stated, ‘Gym stuff’. The next two communications were the two photographs. In view of that context to the photographs, the Panel has concluded that the sending of these images by the Registrant was not sexually motivated.
54. The Panel took into account Patient A’s evidence about what he thought about the messages and that he had felt uncomfortable. The Panel considered nevertheless that in view of their content and the context in which they were sent, none of the images were sent with a sexual motivation.
55. The Panel has concluded that none of the images found proved under Particular 2 was sent with a sexual motivation, for the reasons set out above.
Was there sexual motivation with regards to Particulars 3 (a) – (e)?
56. Particular 3 a) On 20 December 2018, the Registrant sent Patient A a message stating, ‘lack of enthusiasm doesn’t get n00ds’.
57. That message was sent in the context of the following text conversation shown by the chatlog, -
‘[20/12/2018, 20:28:39] Alicia: Messages and calls are end-to-end encrypted. No one outside of this chat, not even WhatsApp, can read or listen to them.
[20/12/2018, 20:28:39] Fine
[20/12/2018, 20:29:21] Alicia: Ha so much enthusiasm
[20/12/2018, 20:46:20] Oh yeah
[20/12/2018, 20:46:24] All the enthusiasm
[20/12/2018, 20:46:28] Feel like a zombie
[20/12/2018, 20:46:29] Alicia:
[20/12/2018, 20:46:44] Alicia: Well enthusiasm doesn’t get n00ds.
[20/12/2018, 20:48:16] Alicia: I mean, lack of
[20/12/2018, 20:50:24] I’m confused
…
[20/12/2018, 20:50:38] Alicia: It’s ok
[20/12/2018, 20:51:08] Alicia: Just having a moral and ethical dilemma [20/12/2018, 20:52:41] Well I’ll make it a bit easier and say hold off on them for now
[20/12/2018, 20:53:42] Alicia: Hahahah. I was definitely not going to actually send you any
[20/12/2018, 20:57:00] Sure you weren’t
….’
58. The Panel considers that the message about ‘ .. n00ds’ was overtly sexual. The Registrant’s evidence was that this was mere banter, no more than a joke. Asked in questions from the Panel to explain the nature of the ‘ethical dilemma’ to which she was referring, the Registrant said that she could not recall, but assumed that it referred to giving out her phone number.
59. The Panel considered it unlikely that the dilemma concerned the giving out of the phone number, which the Registrant had already done.
60. The message about ‘n00ds’ was sent less than 20 minutes after the start of their encrypted chat, was overtly sexual and the Registrant’s position that it was only a joke does not explain why she was suffering an ‘ethical dilemma’, which was (in context) plainly not related to something outside the conversation that was taking place. The Panel noted the Registrant’s position that she was not actually going to sending any pictures. Even assuming this to have been the case, the Panel has concluded that in the circumstances the message, ‘lack of enthusiasm doesn’t get n00ds’ was sexually motivated, sent by the Registrant in pursuit of sexual gratification. The Panel has concluded that the sending of this message was sexually motivated.
61. Particulars 3 b) i) and ii) These two messages were sent a little over an hour from each other and appeared in two conversations that were at least related, if not part of one conversation. The messages appeared as follows, -
‘[21/12/2018, 16:41:21] Alicia: I feel like such a bad human being. Because I should definitely not fancy my patients! Haaaaa (emphasis supplied)
[21/12/2018, 16:42:29] Nothing bad about it
[21/12/2018, 16:42:39] Just not very professional
[21/12/2018, 16:45:54] Alicia: I know... I feel bad
[21/12/2018, 16:46:02] Alicia: It’s really bad.
[21/12/2018, 17:44:45] Alicia: Genuinely feel bad cause I know you clearly just have a flirty personality! I shouldn’t think anything of it, but I do kinda fancy you... (emphasis supplied)
[21/12/2018, 17:49:48] I do just have a really loose random personality. But like to put it blunt I guess I just don’t feel the same. I really like you but just not in that way really
[21/12/2018, 17:50:01] I’ll still be the same person like I always am
[21/12/2018, 18:05:59] Alicia: Yeah I know totally cool.
[21/12/2018, 18:08:50] Alicia: Guessed that anyway, just nice to get on with someone at work.
[21/12/2018, 19:04:01] I know but we’ll still get along.’
62. The Panel considered that the message at Particular 3 b) i) was overtly sexual, using the words ‘fancy my patients’, i.e. Patient A. This is not banter, because the Registrant is clearly being honest about her sexual feelings for Patient A, acknowledging that it is unprofessional to be saying so and that she felt ‘very bad’. The Panel accepted that the Registrant was expressing a need for validation, but in messaging Patient A and telling him that she fancied him, the Panel has concluded that the Registrant was seeking sexual gratification.
63. The message at Particular 3 b) ii) was also overtly sexual in content, especially the words ‘… I do kinda fancy you.’ Patient A plainly took it to be an honest disclosure on the part of the Registrant, that was meant to be taken seriously. He made it clear that he did not feel the same way about the Registrant. The Panel accepted that the Registrant was again expressing a need for validation, but in messaging Patient A by telling him that she fancied him, the Registrant was seeking sexual gratification. This message was therefore sent in pursuit of sexual gratification and accordingly, was sexually motivated.
64. Particular 3 b) iii) These three messages were sent at 09:07 and 09:08 hours, just over seven hours before the message under Particular 3 b) i). The Registrant was plainly flirting with Patient A, even though she disclaims any flirting. The Registrant was sending Patient A a message that she found him sexually attractive. Even though the Panel is prepared to accept that the Registrant needed validation or approval, this flirting was sexually motivated, done in pursuit of sexual gratification.
65. Particular 3 c) i) and ii) These two messages were sent less than three minutes apart. They were both part of conversations that were light-hearted innuendo. Neither was serious and each was meant as a joke, as indicated by the wordplay in the words, ‘Just jealous cause you waaaaant maaaaa boooddddyyy.’ Therefore, the Panel concluded, neither message was sexually motivated.
66. Particular 3 d) i). This message accompanied the still video image sent on 5 January 2019. For the reasons given with respect to Particular 2 c), therefore, the sending of this message was not sexually motivated. In summary, the Panel concluded that the message was gym-related only.
67. Particular 3 d) ii) This message was sent about ten minutes after the message under Particular 3 d) i). The Panel has concluded that the message was gym-related only and not sexually motivated.
68. Particular 3 e) i). The words ‘Wanna bang doe?’ are overtly sexual. The Registrant’s position was that the words were lighthearted and referred to the title of a song and a related meme. The Registrant produced images from the Internet that showed those words to be a song title and there was evidence of a related meme. The dates shown on the documents and pictures from the Internet corroborated her evidence as to when the song was written. She said she thought that the Registrant would understand the reference, because they were about the same age.
69. It is important to set the message in context. In the early evening on 16 January 2019, the Registrant and Patient A were talking about Tinder, the dating App. The following exchanges took place: -
‘[16/01/2019, 18:39:30] Alicia: You look HOT in your pics btw
[16/01/2019, 18:54:25] A super like?
[16/01/2019, 18:54:28] I don’t even have tinder
[16/01/2019, 18:54:31] How did that happen
[16/01/2019, 18:54:33] Lmao
[16/01/2019, 18:54:37] Alicia: Yep [16/01/2019, 18:55:01] You haven’t even seen my new haircut
[16/01/2019, 18:55:07] Been too busy in ITU
[16/01/2019, 18:55:38] Alicia: Wanna bang doe?
[16/01/2019, 21:43:49] Apparently I had to make a new tinder account anyway lol
[16/01/2019, 21:45:19] Alicia: Damn
[16/01/2019, 21:45:29] Alicia: Didn’t answer my question though
[16/01/2019, 21:45:43] НеT
[16/01/2019, 21:45:52] Alicia: Damn
[16/01/2019, 22:19:31] :)
[16/01/2019, 22:19:39] Where would we even do it
[16/01/2019, 22:23:40] Alicia: Don’t know
[16/01/2019, 22:23:41] Alicia: Don’t care
[16/01/2019, 22:23:48] Alicia: Just need something
[16/01/2019, 22:40:14] Alicia: Anything
[17/01/2019, 07:00:32] Listen I’m sure you’re really wanting it but I’m not the person
[17/01/2019, 07:00:49] Alicia: I know
[17/01/2019, 07:00:58] I can’t just jump into sex like unused to
[17/01/2019, 07:01:00] I used
[17/01/2019, 07:30:15] Alicia: I know
[17/01/2019, 08:42:10] How’s your new job anyway
[17/01/2019, 10:11:35] Alicia: It’s good yes
[17/01/2019, 11:48:36] Alicia: By the way, I meant anything just like... I miss cuddles and having my hand held. Just miss that human contact
[17/01/2019, 13:42:47] Alicia: I really want to run away
……….’
70. In paragraph 22 of his witness statement, Patient A stated, -
‘I told her that I did not have a Tinder account. I said she had not seen my new haircut as she had been too busy in ICU. She responded with 'wanna bang doe?' ... I understood this to mean that she was asking if I wanted to have sex with her. I ignored it and made a comment about making a new Tinder account for myself. Alicia … responded to say that I had not answered her question. I would like to add in the conversation where she asked me to have sex I replied with "HeT" which is no in Russian. We both knew a few Russian words and in the moment I just used it as it was quite a serious question. I asked where we would even do it. She said she did not know or care but just needed something. I told her that I was sure she really wanted it but I was not the person.’
71. The Panel accepted that evidence. Nowhere in the exchanges that have been quoted above or in other exchanges relating to this conversation does the Registrant say that her mention of ‘Wanna bang doe?’ was a reference, lighthearted or otherwise, to the song of that name or the meme. To the contrary, she pressed Patient A for an answer, and told him that she ‘just need[ed] something.’ She was being serious. As she put it, she ‘miss[ed] cuddles and having my hand held. Just miss that human contact.’ Patient A understood the request to refer to a genuine desire for sex.
72. In those circumstances, the Panel has concluded that the Registrant’s sending of the message ‘Wanna bang doe?’ was sexually motivated. It was sent in pursuit of sexual gratification, albeit based on the Registrant’s need for validation or approval. Therefore, the sending of the message under Particular 3 e) i) was sexually motivated.
73. Particular 3 e) ii). The message, ‘You look HOT in your pics btw’ was sent as a result of Patient A appearing on the Registrant’s Tinder app. She messaged him, ‘went on tinder first time in weeks… guess who popped up first in my queue as a super like ;)’. In context, the Panel considered that the Registrant was wanting to give Patient A a boost to his self-esteem and that she did so in a lighthearted manner. The Panel was not satisfied that the sending of this particular message was sexually motivated.
Was there sexual motivation with regards to Particular 4?
74. The message by which the Registrant sent Patient A the Instagram handle of her burlesque dancing page was part of a discussion about the Registrant’s interest in that dance. The Panel noted that the message was sent on Valentine’s Day. However, it was not satisfied that the sending of this message was sexually motivated. The Registrant wanted Patient A to follow the Instagram handle she had set up for her burlesque dancing, and no more.
75. Conclusions on Particular 8. Therefore, in view of the findings set out above, the Panel found the Registrant’s actions to have been sexually motivated in respect of the facts found proved under Particulars 3 a), b) i), b) ii), b) iii) and e) i), but not proved in relation to Particulars 1, 2, 3 c) i), c) ii), d) i), d) ii), e) ii) and 4.
‘9. The matters set out in particular 7 were dishonest.’
76. The facts alleged under Particular 7 have been admitted and found proved.
77. The Panel approached the meaning of dishonesty in accordance with Ivey v Genting [2017] UKSC 67 at [74] where Lord Hughes stated –
‘…. When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.’
78. The Panel also took into account the HCPTS’s Guidance Note, Making Decisions on a Registrant’s State of Mind, November 2022, section 3 of which relates to dishonesty.
79. Therefore, the Panel first asked itself: what was the actual state of the Registrant’s knowledge or belief as to the facts?
80. The Registrant accepted that when she was suspended by the Trust, she was aware of Standard 9.5 of the HCPC’s Standards of Conduct, Performance and Ethics that stated, -
‘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.’
81. In a written statement the Registrant prepared for this hearing that formed part of her evidence, she stated, -
‘22 … During the Buckinghamshire Healthcare investigation, I was asked if I had informed HCPC. I explained that I had not informed the HCPC, as I had not fully read the suspension letter given that this sudden suspension was incredibly emotionally challenging for me and believed that Buckinghamshire Healthcare Trust would be informing HCPC once the case had been completed. I agreed at the hearing that I would inform HCPC of the outcome. I looked at the HCPC website and could not find a contact telephone number at that time (at the height of the COVID-19 pandemic). I drafted an email and struggled to find the correct address to send it to.
23. At the time of the hearing, I had applied to join the fire service, and was considering withdrawing my HCPC registration and not returning to work as an OT as I had been so emotionally exhausted by the proceedings and being unemployed for 4 months amidst a global pandemic, took its toll on my mental health. I started my fire service training soon after and I was actively looking for and applying for jobs as a care worker/support worker to go alongside my fire service role. Regrettably, as I was considering not returning to OT employment, I had forgotten to find the correct email contact and send this information to the HCPC.
24. When I applied to work at The Dean Neurological Centre, I sent off my CV for a[n] HCA role. I was then informed that there was an OT vacancy and asked if I would consider interviewing for this - which I decided to do. Within a few days (10 I think) of applying I was in post. I had told my new employer that I had gone through the investigation with Buckinghamshire Healthcare and had had a reference provided by HR for my new role - it was at this point I recalled that I had not informed HCPC and was intending to do this, however I received notification of the fitness to practice [sic] concern the day after I started my new role. The complaint was put in at a time when I was not working as an OT, nor had I applied for this role. …’
25. I can see how this could appear to be a fabrication, but I can only express that this is the honest truth. Between training for a new job/ applying for jobs outside of OT it is something that I had entirely forgotten. I completely appreciate that this appears as though I have intentionally set out to deceive HCPC and be dishonest, but I stand by my previous statement as this is the truth, and I will not admit to something that I do not believe to be true. …’
82. The Trust’s letter of 7 November 2019 reminded the Registrant of her obligation to report her suspension to the HCPC in view of Standard 9.5. However, in view of the contents of her written statement and her oral evidence, the Registrant’s position was that she had not read the letter properly, she was unwell at the time, and she thought that the Trust would be informing the HCPC of the position once the investigation had concluded.
83. The Trust’s letter of 30 April 2020 notifying the Registrant of the outcome of the disciplinary process contained the following words, -
‘…. [I/we] strongly recommend that you contact the HCPC retrospectively to inform them of your suspension as you were obliged and advised to do.’
84. Although the Registrant had left her employment with the Trust in December 2019, she engaged with its investigation and attended the disciplinary hearing that took place on 24 April 2020. The Registrant told the Panel that she had been informed by the Trust that the outcome of the disciplinary proceedings was that had she remained employed by the Trust, she would have been given a written warning.
85. The Registrant explained in her oral evidence that within days or on the same day that she received the letter of 30 April 2020, she looked on the HCPC’s website for a phone number but could not find one; the website stated that the phone lines had been suspended. She looked for an email address on the website but could not find one in all the information that had been placed on it in relation to COVID-19. She did not look at the website on any subsequent or other occasion. However, she said that she no longer had the draft email as she had changed computers since then.
86. The new job to which the Registrant had referred in her written statement was as a Senior Occupational Therapist employed by Ramsay Healthcare (‘Ramsay’) at the Dean Neurological Centre, Gloucester. The Registrant worked in that post from July 2020 until February 2023, when she took employment as a Senior Occupational Therapist with Inspire Neurocare in Worcester.
87. The Registrant’s evidence was that she did disclose the Trust’s disciplinary proceedings against her when she was interviewed for the role as an Occupational Therapist and that she had said at the interview that she needed to inform the HCPC. She told the Panel that she was offered the role a few hours after the interview. It was seven to ten days later that she began work in that role.
88. The Registrant’s evidence was that she received notification of the Trust’s referral to the HCPC on the second day of her employment, by email from the HCPC. She stated that she then notified her new employer of the HCPC’s investigation.
89. The documentary evidence provided by the Registrant included a statement dated February 2021 from her line manager at Ramsay, which stated –
‘Alicia was transparent about her employment history prior to commencement of her post within Ramsay. This information was imparted to the Neuro Unit Director …, Head of Clinical Services .. and Human Resources Co-ordinator ….. As there were no issues referring to previous incidents or investigations on the Health and Care Professions Register, and Alicia had been open and honest about her history, it was appropriate for her employment to proceed.’
90. In an email dated 21 June 2022, the Neuro (Services) Unit Director who was referred to in that statement, stated –
‘… Alicia … informed us at the time of her recruitment and selection process for employment with us about the allegations she was being investigated for. She has also maintained updates with her line manager as the HCPC progressed with their procedures.’
91. In answer to questions from Mr Mullen, the Registrant accepted that the interval of seven to ten days before she started in her new role as an Occupational Therapist there was time to have reported matters to the HCPC.
92. Speaking of the obligation to self-refer, the Registrant’s evidence was that she had naively thought that the requirement of disclosure was simple; and she had not appreciated the gravity of the matter. She had not intended to deceive the HCPC and had not been dishonest.
93. The Panel placed weight on the Registrant’s disclosures to Ramsay that were corroborated on behalf of that organisation. The subsequent disclosure of the referral to the HCPC so soon after she had started in the post was also a matter in her favour when considering whether or not the Registrant had been motivated to conceal the suspension from the HCPC.
94. The difficulties that the Registrant said she found in locating a phone number for the HCPC following receipt of the Trust’s letter of 30 April 2020 were in some measure corroborated by Mr Adam Mawson, HCPC Registrations Manager, whose evidence was that there may have been a period of a few weeks before the necessary phone lines were set up at the HCPC as this was in the early days of the COVID-19 pandemic.
95. In all the circumstances, the Panel has accepted the Registrant’s explanation as to why she did not report her suspension to the HCPC on or soon after 4 November 2019. The Panel also accepts that the Registrant subsequently lost sight of the need to inform the HCPC as she had lost interest in working as an Occupational Therapist in the period after her suspension. The Panel has concluded that the Registrant had genuinely intended to inform the HCPC of the suspension following receipt of the letter of 30 April 2020 and that she had made some, albeit inadequate, attempts to contact the HCPC to do so, which she could have done by email and later, by phone.
96. It is clear that there was no reason why the Registrant could not have informed the HCPC of the suspension in the seven-to-ten-day period before she took up her employment with Ramsay. Why did she not do so?
97. The Panel has concluded that the answer to that question is likely to have been bound up with the Registrant’s flawed understanding at the time of the role of the HCPC. She believed that her full cooperation with the Trust in their investigation was what mattered, and the Trust would inform the HCPC of the outcome. The Panel accepted her evidence that, ‘I hadn’t really anticipated there would be more of a process to it’. It was clear from her evidence that she now understands that the HCPC’s role as regulator is to protect patients and the wider public interest and that notifying the HCPC of her suspension had been important in that context. However, the Panel accepts that she did not realise at the material times how important it was to notify the HCPC of her suspension and accepts that in her mind she had made what she had thought to be the key disclosure, to Ramsay, her employer at that time, in her interview.
98. In those circumstances, the Panel concluded that the Registrant simply forgot to notify the HCPC in the period before she started work with Ramsay.
99. In summary, therefore, the Panel finds that in not disclosing her suspension to the HCPC, the Registrant made a series of mistakes as a result of what was poor judgment and insufficient diligence on her part. However, the non-disclosure of her suspension was, as the Panel has concluded, neither designed nor calculated by the Registrant to deceive the HCPC by keeping it unaware of the suspension.
100. The Panel has accepted all the Registrant’s evidence that has been set out in the paragraphs above in relation to Particular 9 as to her knowledge or belief of the material facts at the time.
101. Such being the Panel’s findings as to the actual state of the Registrant’s knowledge or belief of the facts, was the Registrant’s non-disclosure of her suspension on 4 November 2019 dishonest by applying the (objective) standards of ordinary decent people? The Panel has concluded that in the circumstances, it was not dishonest by those standards.
102. Accordingly, the Panel has concluded that matters found proved under Particular 7 were not dishonest and that Particular 9 has therefore been found not proved.
Decision on Grounds
103. Mr Mullen submitted that the facts proved established the statutory ground of misconduct. He referred to particular parts of the HCPC’s written Standards of Conduct, Performance and Ethics (‘the Standards of Conduct, etc’) and to the HCPC’s Standards of Proficiency for Occupational Therapists (‘the Standards of Proficiency’) in force at the time (together, ‘the Standards’). He also made submissions by reference to the written policies of the Trust. In sum, he submitted that the facts proved showed that the Registrant had not complied with her obligations under the Standards and the policies in question and that her failures to do so were serious and amounted to misconduct.
104. Mr Short accepted that the statutory ground of misconduct had been established.
105. The Panel directed itself in accordance with the advice from the Legal Assessor. In summary, the facts proved will amount to the statutory ground of misconduct if they establish conduct that fell short of what would have been proper in the circumstances, including the requirements of rules and standards ordinarily required to be followed and if, in context, the conduct was sufficiently serious: see Roylance v GMC [2000] 1 AC 311 and Nandi v GMC [2004] EWHC 2317 (Admin). In making its decision, the Panel has concentrated on the Standards, because these set professional requirements that applied to the profession as a whole, as opposed to the contractual arrangements that may have been in place between the Registrant and her former employer.
106. The Panel considered the requirements of the Standards in view of the facts proved and concluded that in a number of respects the Registrant had failed to comply with them and that her non-compliance was serious.
107. The relevant requirements of the Standards of Conduct, etc were the following: -
1.1 You must treat service users and carers as individuals, respecting their privacy and dignity.
1.7 You must keep your relationships with service users and carers professional.
2.7 You must use all forms of communication appropriately and responsibly, including social media and networking websites.
5.1 You must treat information about service users as confidential.
108. The relevant requirements of Standards of Proficiency were the following:
2.2 Understand the need to act in the best interests of service users at all times;
2.6 Recognise that relationships with service users should be based on mutual respect and trust, and be able to maintain high standards of care even in situations of personal incompatibility;
2.9 Be able to exercise a professional duty of care;
3.1 Understand the need to maintain high standards of personal and professional conduct;
8.3 Understand the need to build and sustain professional relationships as both an independent practitioner and collaboratively as a member of a team.
109. The Panel considered that the following facts proved constituted failures to comply with the Standards, amounting to serious misconduct: -
109.1 Particulars 3 a), 3 b) i), ii) and iii) and e i) by reference to 8 (sexual motivation) – Standards of Conduct, paragraphs 1.7, 2.7; Standards of Proficiency paragraphs 2.2, 2.6, 2.9, 3.1 and 8.3. Each of these crossings of professional boundaries was a sexually motivated act towards a vulnerable patient who had suffered life-changing injuries;
109.2 Particular 3 f) – paragraphs 1.1 and 5.1 of the Standards of Conduct, etc. The messages concerning the particular patient represented a gross violation of their dignity, a gross invasion of their privacy and a no less serious failure to respect the confidentiality of information relating to that patient;
109.3 Particular 5 a), 5 b) and 5 c) – paragraph 1.1 of the Standards of Conduct, etc and paragraphs 2.9 and 3.1 of the Standards of Proficiency. There was no therapeutic justification for sharing any of this personal information with Patient A.
109.4 Particular 6 – paragraphs 1.1 and 2.7 of the Standards of Conduct and paragraph 2.6 of the Standards of Proficiency. This message was an irresponsible and inappropriate text communication, which was disrespectful of Patient A and wrongly blamed him for having made an entirely proper complaint about the Registrant’s conduct.
110. Therefore, the Panel has concluded that the facts proved under the particulars referred to in paragraph 109 above (each) amounted to the statutory ground of misconduct.
111. The Panel did not consider that all the facts proved amounted to statutory misconduct even where there had been non-compliance with the Standards.
111.1 As to Particular 1, the Panel found that the sending of a friend request on Facebook and providing a personal mobile phone number did not amount to misconduct in the context of this case. The environment in which the Registrant was working was unique and had a more informal culture than other wards. The Registrant’s role involved building longer-term therapeutic relationships with patients, many of whom stayed in the ward for lengthy periods of time as a result of their injuries. Communicating by phone and on social media was not unusual and was commonplace within the department. Patient A had accepted the friend request and used phone message communication as a means of communicating about his recovery during his stay at the unit.
111.2 The conduct proved under particulars 2, 3 c), 3 d) was ill-advised and inappropriate but not sufficiently serious to amount to misconduct, being centred on a shared interest in gym-related matters. The conduct proved under Particular 3 e ii) was designed to give Patient A encouragement in his rehabilitation and as such did not cross the threshold of seriousness. The conduct proved under Particular 4 was a friendly sharing of benign information, and that sharing was not sexually motivated.
112. As to Particular 7, the failure to notify the HCPC of the suspension was not deliberate. There had been steps taken by the Registrant to contact the HCPC, but these had been hampered by the changed arrangements for communication with the HCPC that had been put in place in the early weeks of COVID. The Registrant subsequently made what she believed to be the important disclosures (to her new employer) but she did not sufficiently appreciate at the time the importance of notifying the HCPC. In all those circumstances, the failure to notify the HCPC of the suspension did not amount to serious misconduct.
Decision on Impairment
113. The Panel heard submissions from Mr Mullen and Mr Short on the issue of current impairment. Mr Mullen submitted that the Registrant’s fitness to practise is currently impaired by reference to both the personal and public components of impairment. He stated that the acts in question were remediable, but it was for the Panel to assess the evidence relied on by the Registrant in deciding whether or not the remediation was adequate. He submitted that the nature of the misconduct meant that there was always a risk of repetition as sexually motivated misconduct could by its nature occur outside a work setting. He also submitted that in view of the seriousness of the misconduct, a finding of impairment was in any event necessary to uphold public confidence in the profession and to declare and uphold proper professional standards.
114. Mr Short submitted that it was unlikely that the Registrant would repeat her misconduct in view of the insight she had shown, the passage of time and the testimonials of fellow healthcare professionals at the Registrant’s current practice. She was now a “risk-free OT” as he put it. Mr Short made no specific submissions on matters concerning the wider public interest.
115. The Panel received advice from the Legal Assessor, which it has accepted. He referred the Panel to the HCPTS’s Practice Note, ‘Fitness to Practise Impairment,’ November 2023 and to the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin) at [65]-[76] in the judgment of Cox J.
116. The Panel first considered the ‘personal component’ of impairment. This addresses the current professional behaviour of a registrant and a number of related considerations, in particular whether or not there is a likelihood of a repetition of the misconduct.
117. The acts of misconduct in this case are by their nature capable of remediation. The Panel considered the following observations made by the Registrant in particular, as set out in her written statement that formed part of her evidence at the first stage of the hearing, -
’12. This case was of misplaced friendship, support and friendly, reciprocated ‘banter’, the same way I would communicate with any of my friends. However, reading back I can entirely see how this can be misinterpreted, and why Patient A may have felt that my actions, comments and conversation were sexually motivated, and I can only extend my most sincere apologies for this.
……….
26. The second thing I would like to address in this statement, is probably the most important. My own personal circumstances aside, I am not the person at the heart of this investigation. That person is Patient A. Patient A looked to me to provide professional care and support at probably the most difficult period of his life, when he was admitted to hospital with a life changing injury. He looked to me to support and promote his wellbeing and quality of life and provide him with the best possible level of rehabilitation, and I let him down. I did not fulfil my role, or responsibility and the way I behaved was unprofessional, disrespectful and completely unacceptable. I whole-heartedly and sincerely apologise to Patient A for this complete lapse in my professional judgement and can only hope that this has not had any lasting impact on him.
27. How I behaved was wrong, and I categorically should never have continued any form of relationship outside of the professional one as OT and patient. Patient A was vulnerable, and I took advantage of that for my own personal gain (to seek comfort and support in a time of poor mental health). Something that I now see was incredibly misplaced and am I am deeply regretful for. I hope that despite this, Patient A’s rehabilitation journey was successful, and there was not a negative impact on him and that he continues to live a happy, healthy and prosperous life in the wake of his spinal cord injury. I hope that this process brings him a sense of peace, and that he is able to move forwards with his life, with this behind him. I am conscious that the length of time this has taken to reach the point of this hearing, has likely had a significant impact on Patient A and I know that my apology may have little bearing on this, but I do hope that he is able to obtain some sense of relief from this coming to an end.
28. I want to directly address the message I sent in July 2020, when I received notification of this complaint. I believed my contact was blocked by Patient A, as it had been for some time, and I deeply regret sending that message, but I did not believe it would ever be delivered to him, and at the time, in a state of emotional distress, I felt that I needed to write down how I felt and send it into the void, as a form of catharsis. This is something I had previously done with my ex-partner, knowing my contact was blocked, as a coping mechanism, to say what I felt I needed to say, to get it out in the open instead of in my head, something that had been suggested to me by friends previously.
29. I can only apologise for slipping back into that behaviour, which I also now see was completely unacceptable and is not a healthy coping mechanism and something I have not done since. I am sorry if this caused Patient A any distress and again, I know my words of apology cannot change what has happened, but I hope that Patient A can take some comfort in my recognition of my errors and move forward positively from this.
30. In summation, I would like to apologise for my actions and I am aware of the potential impact they have had, and hope all parties can move forwards from this hearing, in whichever direction the panel deems appropriate. I hope that the panel can see how hard I have worked, and the reflection and development I have undertaken in order to be where I am today in my career…………………….’
118. There is one further aspect of the misconduct upon which the Registrant has reflected. In her oral evidence, she was asked by Mr Short about the disrespectful messages about another patient that she had sent to Patient A. In answer, the Registrant stated as follows: -
“[Patient A] was asking about ITU, it was my early days of ITU, I had seen some quite distressing things. That was sort of my way of coping with dealing with that new environment. It was completely unprofessional, not something I had ever done before, you know, or … would ever do again, and actually reading that back, I’m quite disgusted at what I said because that’s not what I meant. I meant, I mean I wouldn’t mean that about somebody. I’m actually quite horrified that I said that, but as I said, I was in a difficult place. It was my way of coping.”
119. The Panel accepted that the Registrant’s oral and written evidence as set out above was honest and sincere. The Registrant’s apology to Patient A was both fulsome and sincere, as was her insight into the unacceptable nature of her comments regarding the other patient. The Panel returns to the wider question of insight below.
120. The Panel has also borne in mind the remedial action taken by the Registrant in minimising the risk of any repetition of the misconduct. Her statement described in detail her position at the time of the misconduct. She described the considerable work she had done since to improve her wellbeing, as follows: -
…reflective workbooks and peer communications I have had, I have finally accepted my position…, and that what I went through was real, and been able to start to unpick and process my emotions… I have also worked very hard… on setting healthy boundaries within all areas of my life, something which I previously struggled with.’
121. The Panel noted that since the events that led to the misconduct, the Registrant has become a Band 7 practitioner, with outstanding references testifying to her professional competence and reliability, given by senior colleagues at Inspire Neurocare for whom she has continued to work since February 2023. In a written testimonial dated 10 August 2023, her Line Manager (and Therapy Lead) noted that the Registrant had disclosed in 2022 the fitness to practise concerns raised by the HCPC in this case. The reference set out at length the quality of the Registrant’s work in her role as a Senior Occupational Therapist, dealing with her substantial caseload in the field of neuro-rehabilitation. The testimonial concluded that the Registrant was ‘reliable and honest’ and that, ‘[i]n the past 7 months, I have seen no evidence to suggest that Alicia poses any risk to patients, nor have I had any concerns raised about her since her commencement in this role.’
122. The Occupational Therapist and Therapy Development Manager at Inspire Neurocare gave a written reference dated 8 August 2023 to similar effect, stating that the Registrant ‘has maintained professional relationships with residents, families and staff and I have had no reason to question her professional [manner].’
123. In her pursuit of professional excellence, the Registrant has also recently embarked on a part-time postgraduate MSC course in Advanced Clinical Practice at Plymouth University, with the support of Inspire Neurocare.
124. In all the circumstances, the Panel has concluded that the Registrant has demonstrated excellent insight into the behaviour that resulted in the findings of misconduct against her. She has accepted that her conduct fell below professional standards, she has understood how and why it occurred and the consequences for the person affected by it, namely Patient A. The Registrant has also undertaken effective action to address the causes of that behaviour with a view to ensuring that it never happens again. The Panel has decided that in view of these conclusions and in the light of all the evidence, it is very unlikely that the Registrant would repeat her misconduct. Therefore, her fitness to practise is not impaired by reference to the ‘personal component’.
125. However, the Panel has to consider whether or not the Registrant’s fitness to practise is currently impaired by reference to the wider public interest, i.e. the ‘public component’. One factor in making that assessment is whether or not a registrant continues to pose a risk to service users. In the light of its conclusions on the personal component, the Panel has concluded that the Registrant poses no such risk.
126. The other two elements of the public component are maintaining professional standards and public confidence in the profession of Occupational Therapy.
127. The Registrant engaged in sexually motivated conduct towards Patient A (albeit not in pursuit of a sexual relationship) on several days over a period of nearly 4 weeks. He was a vulnerable patient in her care. She also shared personal information of a distressing nature that left Patient A feeling anxious, burdened and concerned. The Registrant subsequently contacted Patient A and blamed him for having made an entirely proper complaint about the Registrant’s conduct.
128. By engaging in this behaviour, the Registrant breached fundamental tenets of the profession and has brought the profession into disrepute.
129. The Panel was impressed by the Registrant’s openness and by the completeness of the remediation and insight she has shown into her misconduct. As indicated, it is unlikely that she will repeat the acts of misconduct. The Panel has also borne in mind that the Registrant has undergone the rigours of the fitness to practise process. Nonetheless, having brought the profession into disrepute as set out in the previous two paragraphs of this determination, the Panel has decided that the Registrant’s fitness to practise is impaired by reference to the public component. In the circumstances, a finding of impaired fitness to practise is necessary in order to declare and uphold professional standards and also to maintain public confidence in the profession.
130. Therefore, the Panel has concluded that the Registrant’s fitness to practise is currently impaired.
Decision on Sanction
131. The Panel heard submissions from Mr Mullen and from Mr Short on the issue of sanction. Mr Mullen stated that the HCPC sought no particular sanction. Mr Mullen drew the attention of the Panel to various parts of the written HCPC Sanctions Policy, March 2019 concerning the seriousness of the misconduct that he said were relevant to this case.
132. Mr Short referred to what he described as the “unique and mitigating circumstances” of the case, that a repetition of the misconduct was unlikely and that it was in the public interest for the Registrant to be able to continue to practise. He relied on a written ‘financial impact statement’ that showed the likely effect on the Registrant of a suspension or striking off order. In all the circumstances, he submitted that a caution order would be the appropriate outcome.
133. The Panel received further advice from the Legal Assessor, which it has accepted.
134. The Panel has borne in mind that this is a case where repetition of the misconduct is very unlikely and the issue of sanction therefore turns on the question of what, if any, action is needed as a sanction in order to promote and maintain public confidence in the profession and to declare and uphold proper professional standards and conduct for members of the profession.
135. The Panel first considered the gravity of the misconduct. The Panel refers to its conclusions in paragraph 127 and 128 and has borne in mind these considerations on the issue of sanction as well as its findings of misconduct.
136. The Panel also considered the following aspects of the misconduct to be relevant to its seriousness and that these aggravated the misconduct. They were as follows:-
136.1 both the sexually motivated misconduct and the sharing of personal information by the Registrant constituted a breach of the relationship of trust between Patient A and the Registrant as his treating Occupational Therapist;
136.2 that conduct amounted to the abuse of professional position; its misuse to advance the Registrant’s personal interests, and as regards the sharing of personal information, to the detriment of Patient A;
136.3 Patient A was vulnerable not only because of the imbalance of power between him and the Registrant but also because he was both physically and mentally vulnerable, being at an early stage of his rehabilitation from life-changing injuries;
136.4 Some harm was caused to Patient A by the Registrant’s unprofessional sharing of distressing personal information. As set out in paragraph 127 above, he felt anxious, burdened and concerned a result. However, the Panel was not informed of any longer-term damage to Patient A’s rehabilitation as a result of the Registrant’s misconduct.
137. The Panel considered that there were strong mitigating factors in this case.
138. The first of these consisted of the circumstances in which the misconduct took place.
139. These two sets of circumstances in particular left the Registrant in a state, which adversely affected her ability to work as an Occupational Therapist. She mistakenly sought that validation by engaging in a wholly inappropriate personal relationship with Patient A, well outside professional boundaries.
140. The Registrant has been able to recover her professional equilibrium and through insight and practical steps of remediation set out in the earlier parts of this determination has reached a position where a repetition of the misconduct is now very unlikely. She has become a thoroughly reliable practitioner, as evidenced by the several professional testimonials in her favour.
141. The Registrant has apologised to Patient A and shown deep remorse for her conduct towards him. She also made wide-ranging admissions to the matters alleged against her at the outset of this hearing.
142. The Registrant has demonstrated that she is now able protect her mental health if faced with difficult personal circumstances so as not to allow such difficulties to affect her work. Her GP’s notes show an appointment and record that the Registrant had taken two weeks off work and that the Registrant had told the GP that, “I work in a challenging neuro rehab unit as a healthcare professional. I do not feel I am able to return to work at this time.”
143. Further mitigation in favour of the Registrant is that she has an otherwise unblemished career both before and after the events that gave rise to the misconduct.
144. The Panel proceeded to consider what, if any, sanction would be necessary in the circumstances of this case.
145. The Panel first considered whether ‘no action’ would be a suitable response to the finding of current impairment.
146. Even though it is unlikely that the misconduct would be repeated, the Panel decided that to conclude this case by taking ‘no action’ would not reflect the seriousness of the misconduct.
147. The Panel recognised the rigours of the regulatory process on the Registrant. The Panel also acknowledges the potential impact of the findings of misconduct and current impairment on the Registrant. However, to take no action in this case does not sufficiently meet the demands of the wider public interest, in view of the seriousness of the misconduct, despite the mitigating circumstances. A sanction is necessary to maintain public confidence in the profession and to declare and uphold professional standards.
148. The Panel next considered the possibility of a Caution Order, which may be imposed for a period between one and five years. The Sanctions Policy states the following in relation to the sanction of a caution, -
‘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.
102. A caution order should be considered in cases where the nature of the allegations mean that meaningful practice restrictions cannot be imposed, but a suspension of practice order would be disproportionate. In these cases, panels should provide a clear explanation of why it has chosen a non-restrictive sanction, even though the panel may have found there to be a risk of repetition (albeit low).’
149. Conditions of Practice would not be appropriate, this not being a case where conditional registration would address the nature of the concerns. As to the factors in paragraph 101 of the Sanctions Policy, there is a low risk of repetition, the Registrant has shown good insight and has undertaken appropriate remediation.
150. Although the misconduct was isolated, its seriousness cannot be overlooked for the purposes of deciding whether a caution order would be a sufficient sanction. The misconduct was not ‘minor in nature’ as set out in paragraph 102 of the Sanctions Policy.
151. In giving due weight to the seriousness of the misconduct, the Panel has also asked itself whether a sanction of Suspension would be disproportionate, as required by paragraph 102 of the Sanctions Policy.
152. Paragraph 121 of the Sanctions Policy states, -
‘A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:
• the concerns represent a serious breach of the Standards of conduct, performance and ethics;
• the registrant has insight;
• the issues are unlikely to be repeated; an
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.’
153. Paragraphs 123 and 124 of the Sanctions Policy give further guidance, as to short periods of suspension.
154. The concerns in this case did represent serious breaches of the Standards of Conduct, etc (and of the Standards of Proficiency). The misconduct caused harm to public confidence in the profession. This was sufficiently serious to require a finding of impaired fitness to practise in order to declare and uphold standards of professional conduct and to maintain public confidence in the profession.
155. The most serious aspect of the misconduct was the sexually motivated behaviour towards Patient A. However, that sexually motivated conduct was not at the most serious end of the range. There was no intention to pursue a sexual relationship and no predatory conduct on the part of the Registrant.
156. Other aspects of the misconduct were serious, particularly the sharing of distressing personal information with Patient A, though also the Registrant’s misplaced (though unintentional) messaging of Patient A to blame him for his entirely proper complaint. There was further serious misconduct by reason of the Registrant’s unacceptable description of another patient based on their confidential information.
157. Although the misconduct was not minor and did include breaches of fundamental tenets of the profession, the Panel has weighed the context of the misconduct, and also what the Registrant has done since it took place. The Panel also considers that the misconduct was ‘relatively limited’ in nature: see paragraph 102 of the Sanctions Policy. The circumstances in which the Registrant found herself in late 2018 and the first part of 2019 were well beyond the normal. The Registrant was unaware at the time that her need for personal validation had led her into an unacceptable crossing of professional boundaries and other seriously unprofessional behaviour in what were unique and extremely distressing circumstances. She has since wholeheartedly apologised for her behaviour. She has also recognised the triggers that caused much of her behaviour and has dealt with them through counselling, reflection and further training. Although the Registrant’s sharing of personal information left Patient A feeling anxious, burdened and concerned, the Panel heard of no longer-term harm caused to him.
158. The large part of the Registrant’s misconduct constituted a breach of trust, an abuse of her professional position and concerned a very vulnerable patient. However, none of her misconduct was deliberate and, as indicated, the Registrant did not appreciate at the time that she had let her professional standards deteriorate, due to the extraordinary circumstances in which she found herself.
159. The misconduct is highly unlikely to be repeated in view of the Registrant’s insight and remediation. The Panel notes other aspects of paragraph 121 of the Sanctions Policy. This is not a case where the Registrant requires further time to be able to resolve or remedy her failings. The Registrant has already resolved and remedied them. She has continued to work with no incidents and with managers who are fully aware of the allegations and the regulatory proceedings. Her manager and colleagues have no concerns and are very supportive of her continuing to practise.
160. A Caution Order would appear on the public register as a mark against the Registrant as a practitioner, for the information of potential future employers or others who may wish to know about the Registrant’s status as a registered Occupational Therapist. A Caution Order may also be taken into account if a further allegation is made against the Registrant.
161. Although the reputation of the profession as a whole is more important than the interests of any individual practitioner, that does not warrant the imposition of a sanction that would be disproportionate. In considering the suitability of a suspension, the Panel has also taken into account the very delicate financial circumstances of the Registrant, rendered the more so by the loan she has taken out to fund her MSC course in Advanced Practice.
162. Another aspect of the public interest that the Panel has borne in mind at this stage is if a registrant can provide a useful public service to society as a competent practitioner: see Bijl v GMC [2001] UKPC 42. That is so in this case, and the consequence of a suspension order of any period would be to deprive the public of the services of the Registrant, a (now) outstanding practitioner who is committed to her career and advancing her professional skills.
163. In view of all the circumstances of the case, the Panel has asked itself whether the imposition of a Caution Order would sufficiently promote and maintain public confidence in the profession and declare and uphold proper professional standards and conduct among members of the profession; or whether a Suspension Order is necessary to do so.
164. The Panel has concluded that the seriousness of the misconduct in context does not need to be marked by a Suspension Order. Members of the public aware of all the circumstances of this case would be satisfied that the Panel has marked the Registrant’s behaviour by findings of misconduct and impaired fitness to practise and has shown its disapproval of her conduct with a Caution Order. A Suspension Order would be disproportionate to the seriousness of the wrongdoing in context, would also risk unnecessary adverse personal consequences for the Registrant and deprive members of the public of the services of a competent and useful practitioner.
165. The Panel has decided that a Caution Order of 12 months is sufficient in the circumstances of this case to mark its seriousness.
Order
Order: the Registrar is directed to annotate the Register with a Caution Order of 12 months on the registration of Ms Alicia Jess.
Notes
No notes available
Hearing History
History of Hearings for Alicia Jess (Hing)
| Date | Panel | Hearing type | Outcomes / Status |
|---|---|---|---|
| 07/12/2023 | Conduct and Competence Committee | Final Hearing | Caution |
| 12/10/2023 | Conduct and Competence Committee | Final Hearing | Adjourned part heard |
| 11/09/2023 | Conduct and Competence Committee | Final Hearing | Adjourned part heard |