Simon Best

Preliminary Matters

Applications to amend the charges

1. Ms Luscombe made an application to amend a number of the Particulars. The Registrant had been put on notice of the proposed amendments in a letter dated 5 October 2022. She submitted that the proposed amendments did not change the substance of the allegation against the Registrant, but merely ensured that the allegation better reflected the evidence available.

 

2. The proposed amendments are set out above.

 

3. Mr Pataky did not object to the proposed amendments.

 

4. The Panel accepted the advice of the Legal Assessor and carefully considered the HCPC’s application to amend the Particulars. The Panel concluded, after reviewing each of the proposed amendments, that it would agree to the Particulars being amended for the following reasons:

a. the Registrant had been provided with significant notice of the HCPC’s intention to amend the Allegation, having been put on notice on 5 October 2022, approximately five months before the commencement of the substantive hearing;

b. the Registrant has not objected to the proposed amendments; and

c. the proposed amendments do not materially widen the scope of the allegation, but merely seek to better reflect the available evidence.

 

5. The Panel concluded that the proposed amendments of the paragraphs did not materially affect the nature or seriousness of the allegation. In all the circumstances, there was no likelihood of unfairness or injustice to the Registrant. The Panel therefore agreed to the proposed amendments.

 

Application to hear part of the hearing in private

6. The Panel heard that matters relating to the Registrant’s health may be referred to during the course of the hearing. Ms Luscombe submitted that it was appropriate that those parts of the hearing be held in private. Mr Pataky supported the application.

 

7. The Panel accepted the Legal Assessor’s advice and it noted Rule 10(1)(a) of the Rules whereby matters relating to the private life of the Registrant, the complainant, any person giving evidence or of any patient or client should be heard in private. The Panel therefore agreed that those parts of the hearing where reference was to be made to the Registrant’s health or private life should be heard in private.

Background

8. Simon Best (“the Registrant”) is a registered Occupational Therapist who was employed by Rhondda Cynon Taf Council (“the Council”) from 24 May 2018 to 10 November 2020.

 

9. On 4 May 2020, the Registrant made a self-referral to the HCPC, stating that he had been placed on special measures in his work and was not currently carrying out his normal role.

 

10. On 28 May 2020, the Registrant’s employer, the Council made a referral, stating that the Council were investigating allegations that the Registrant had conducted a sexual relationship with a Service User of the department, and he had then harassed that Service User after the relationship had ended.

 

11. The Registrant first met Service User A in his professional capacity on 3 October 2019 when he was sent by the Council to assess Service User A’s housing needs. Service User A was being considered for an adapted property by a local housing association who requested that an Occupational Therapist assess whether the available house would meet her needs.

 

12. On 2 March 2020, Service User A contacted the Council and made a complaint about the Registrant she stated that, having met the Registrant in a professional capacity, he entered into a sexual relationship with her. She also reported that he had sent her numerous unsolicited emails. A Council investigation subsequently took place. Service User A also reported the matter to the police.

 

13. At the outset of the hearing, the Registrant admitted Particular 3 and the underlying facts of Particular 4 of the Allegation. At the conclusion of the Council’s case, Mr Pataky informed the Panel that the Registrant now wished to admit Particular 4 in its entirety.

Submission of no case to answer

14. At the conclusion of the Council’s case, Mr Pataky made a submission of no case to answer in respect of Particular 2b.

The Registrant’s submissions

15. He submitted that the Panel can hear the application under its general powers under Rule 10(4) of the Rules that there is no case to answer. He referred to the HCPTS’s Practice Note on making half time submissions and the test in Galbraith set out below.

 

16. He invited the Panel to consider the precise wording of the allegation. He submitted that the wording of the allegation placed all the communication between the relevant dates as repeated and unsolicited. The Particular does not particularise what communications form part of the allegation but that all the communications were unsolicited.

 

17. He referred the Panel to the exhibited series of emails, which refer to a 6-day period between 10 and 16 February 2020. During that time, the evidence suggested that Service User A initiated communication and responded to emails. He accepted that she did ask the Registrant to stop contacting her on a number of occasions.

 

18. He asked the Panel to consider the use of the term ‘unsolicited’, for example, as meaning ‘not asked for’ or not wanted. However, what was alleged is that the communications were neither asked for nor wanted. He submitted that the communications stretched that definition given the frequent contact between the Registrant and Service User A.

 

19. He submitted that there was implicit consent to continue the communications, in that Service User A and the Registrant largely engaged in a dialogue, albeit highly strained at times. It was open to Service User A to stop her communications, but she nevertheless engaged in the dialogue. He therefore submitted the evidence received did not meet the threshold for the Galbraith

 

20. He submitted that the evidence was tenuous and inconsistent. There was evidence that the emails were solicited by Service User A, and he reminded the Panel that Service User A confirmed in her evidence that she continued to contact and message the Registrant. She had initiated email contact and had responded to his emails.

 

21. Mr Pataky specifically referred to an email sent by the Registrant to Service User A on 10 February 2020 which referred to them having recent sexual contact. This, he submitted, suggested ongoing contact and that the communications were solicited. Mr Pataky submitted that Service User A accepted that she had sent the Registrant a valentine’s day card.

 

22. He therefore submitted that the evidence was inconsistent and, taken at its highest, there was insufficient evidence to find the allegation proved.

The HCPC’s submissions

23. In response, Ms Luscombe submitted that so far as the first limb of the Galbraith test was concerned, the submission was ill conceived. She referred to the countless emails that suggested that Service User A wanted the communications to stop. She made particular reference to a number of emails, including an email timed at 10.49 am on 15 February 2020 which stated:

 

“Done done done done done done done done done done done , got that will no longer be responding OVER”.

 

24. So far as the first limb of the Galbraith test was concerned, Ms Luscombe submitted that it was clear from several emails that Service User A did not want the Registrant to contact her. Whilst it was accepted that Service User A did respond to many emails, it was submitted that Service User A stated that she did so to tell the Registrant not to contact her.

 

25. As for the second limb of the Galbraith test, she submitted that if the Panel takes the view that the allegation turns on the credibility of Service User A, then it was a matter for a later stage.

 

26. She submitted that Service User A’s evidence was neither tenuous nor inconsistent. She submitted that it was consistent with the witness evidence of Ms Rogers, that she had made it clear she had told the Registrant not to contact her. However, she continued to engage with the Registrant because she was concerned he may harm himself.

 

27. Ms Luscombe also reminded the Panel that Service User A went to the Police in an attempt to stop him contacting her, which confirmed that she did not want further contact from the Registrant. She also submitted that the allegation did not require that all contact should have been unsolicited.

 

28. Ms Luscombe addressed the Panel on breach of professional boundaries. She accepted that the Council’s computerised case file was closed on 2 January 2020 but there was still an underlying professional relationship between the Registrant and Service User A.

The Panel’s decision

29. In considering these submissions, the Panel heard and accepted the advice of the Legal Assessor. It has applied to the regulatory nature of these proceedings, the test as set out in the case of Galbraith, namely:

 

(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.... There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.

 

30. Having considered the first limb of the Galbraith test, the Panel was satisfied having considered the content of the various emails referred to by Ms Luscombe that there was some evidence upon which a properly directed Panel could find the facts of this Particular proved. By way of example, the Panel noted the contents of Service User A’s email to the Registrant timed at 23.13 on 11 February 2020 in which she wrote:

 

“Right last time before I speak to the police , I don’t want to be with you , I don't want to marry you , I need you to accept that we are over , no valentines, no nothing , this has now become very concerning as you will not leave me alone , my daughter or my friends, my children are now scared of you as am I , because this is now consuming your life , legally this is now an harassment order . Please leave us alone .”

 

31. The Panel also noted that her request for the Registrant to stop communicating with her culminated in her reporting the matter to the Police.

 

32. So far as the second limb of Galbraith was concerned, the Panel was mindful that the evidence disclosed that there was ongoing conduct between the Registrant and Service User A over the relevant period. Whilst such evidence is inconsistent with the Service User A’s requests to cease communication, the Panel nevertheless concluded that its determination as to whether the relevant communications were unsolicited and in breach of professional boundaries was dependent on an assessment of the credibility and reliability of both Service User A’s evidence and that of the Registrant. That assessment should properly be considered when making its finding of facts. It did not consider that the evidence was so inherently tenuous or inconsistent that the second limb of Galbraith was met.

 

33. The Panel therefore concluded that there was sufficient evidence upon which a properly directed panel could find the underlying facts proved.

 

34. In the event that any such panel concluded that there was sufficient evidence to find the underlying facts proved, it was open to such a panel to find that the Registrant’s conduct amounted to a breach of professional boundaries.

 

35. The Panel therefore refuses the Registrant’s application and finds that there is a case to answer in relation to Particular 2b.

Decision on Facts

Live evidence heard

36. The Panel heard live evidence from three witnesses, all of whom gave evidence by video link:

 

• Ms Ceri Kibble, Senior HR Officer at Rhondda Cynon Taf Council (“the Council”), an Investigating Officer;
• Ms Christine Rogers, who at the relevant time was a Service Manager for the Council;
• Service User A.

 

37. The Panel has also had sight of a number of documentary exhibits which included, but was not limited to:

 

• Witness statement of Ceri Kibble dated 12 August 2021;
• Witness statements of Christine Rogers dated 14 September 2021 and 11 November 2022;
• Witness statement of Service User A dated 9 June 2022;
• Witness statement of Ms Melissa Joseph of Kingsley Napley LLP;
• Referral form dated 28 May 2020;
• Service User A’s occupational therapy records;
• Various disciplinary hearing notes;
• Various supervision records;
• Various correspondence and emails from the Registrant to Service User A;
• Uniquis order history;
• Audit history of Service User A’s files;
• Copy case recording policy; and
• Police report dated 28 May 2021.

 

38. The Panel also heard oral evidence from the Registrant and his mother. It also considered the documentation provided by the Registrant which included:

 

• A background statement from the Registrant’s mother;
• The Registrant’s response to the allegations;
• Screenshots of phone records;
• A number of character references; and
• Copy of a report from the Registrant’s GP.

Panel’s Approach

39. The Panel was mindful that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything and the individual paragraphs of the Allegation could only be found proved if the Panel was satisfied that the case was proved on the balance of probabilities.

 

40. In reaching its decision, the Panel took into account the oral evidence received, together with all the documentary evidence as well as the oral submissions made by Ms Luscombe and Mr Pataky. The Panel also accepted the advice of the Legal Assessor which is a matter of record.

 

Particular 1

41. The Panel found the facts of Particular 1 proved for the following reasons.

 

42. Following a complaint being made to the Council by Service User A, Ms Kibble undertook an investigation. Ms Kibble informed the Panel of the background facts in that on 16 September 2019, a request came in on behalf of Service User A, who wanted to be assessed for equipment or adaptations to help her daily living. Both Ms Kibble and Ms Rogers confirmed that on 3 October 2019, the Registrant and Cliona Saunders, another OT, conducted an initial visit to Service User A and completed an Adaptations and Community Equipment (ACE) assessment. Ms Kibble stated that the Registrant took Service User A’s medical history which included a medical diagnosis of bipolar, previous spinal fusion and discectomy. She was also due to have an operation on her Sacroiliac Joint that connects the spine to the hip and reported issues with the grip in her right arm, which may have spontaneous paralysis. Additionally, she also reported difficulties with transferring on and off the toilet, negotiating stairs and accessing her bath facilities.

 

43. She stated that, on this basis, Service User A would have been classified as physically vulnerable with a diagnosis of bipolar and that the Registrant would have been aware of this. She produced a copy of the ACE assessment. The Panel noted that the assessment from 15 October 2019 recorded that Service User A was “currently unable to access her bathing facility due to her medical issues with her back, she has had spinal fusion and discectomy of vertebrae in T12 (thorasic) and L3/4 (lumbar). She also reports difficulty transferring off the toilet downstairs and sometimes negotiation on the stairs due to only have a left side ascending hand rail. [Service User A] reports to have spontaneous paralysis in her right hand at times which effects her grip.”

 

44. Ms Rogers confirmed that following the Registrant’s initial visit to Service User A’s home, he visited her again when a full assessment was carried out. He identified that Service User A experienced both mental health and physical difficulties as a result of which, the Registrant recommended adaptations to Service User’s home.

 

45. In relation to whether Service User A was vulnerable, the Panel has had regard to Ms Roger’s observations that Service User A was a vulnerable person in need of services. Service User A had a medical diagnosis of bipolar disorder, and Ms Rogers gave details of Service User A’s significant health issues.

 

46. The Registrant stated that, with hindsight, he recognised that Service User A was vulnerable, but he did not recognise her vulnerability at the time because of his own health issues. As a result, it was his case that he did not know at the relevant time that Service User A was vulnerable. Mr Pataky submitted on his behalf that it was not alleged in the alternative that the Registrant ‘should have known’ she was vulnerable.

 

47. The Panel has also had regard to the Registrant’s exhibited job description and person specification in which the ACE team’s aim is “to be able to respond rapidly to the needs of vulnerable adults”. The Panel therefore concluded that it was a proper inference to draw that, in being asked to assess Service User’s needs, he would have been aware of the possibility of her being vulnerable.

 

48. The Panel then noted the contents of the Registrant’s entry on Service User’s case records in respect of his home visit on 3 October. The entry stated:

 

“Adapted housing visit to clients home address carried out.

During the assessment it was clear that the client wasn't too keen on moving as her support network/children are all local, and [redacted] would take her out of her comfort zone. [Service User A] wasn't aware that we could potentially adapt her current property to meet her needs if her landlord agrees.

OT to give the client a ring back early next week to see if she has made a final decision, and spoken to the landlord to see if he would consider potentials [sic] adaptations.

Should the client decide to remain in her current home, then OT will return to carry out a full assessment and recommend works to meet her needs.

Simon Best SCOT.

 

49. The Panel concluded that it was a proper inference to draw from the Registrant’s entry that her personal circumstances and the possibility of adapting her property were discussed. A view about recommending works to meet her needs could then be made after a further assessment, once Service User A had made a decision whether or not to remain in her current home.

 

50. The Panel considered that the Registrant’s entry was consistent with Service User A’s evidence that Service User A discussed her health and personal circumstances with the Registrant for the purpose of an assessment.

 

51. In reaching its finding, the Panel considered the ordinary meaning of the word ‘vulnerable’ in referring to someone in need of special care, support, or protection because of age, disability, or risk of abuse or neglect. The Panel noted that the Registrant accepted, albeit with hindsight, that Service User A was vulnerable.

 

52. Notwithstanding that the Registrant might have had his own health issues at the time, the Panel concluded that, given the specific purpose of the visit and the contents of his notes entered on the case file after it, the Registrant had an understanding of Service User A’s needs given her circumstances. The Panel therefore concluded that the Registrant knew at the time of the consultation, during the consultation and/or after the consultation that Service User A was vulnerable.

 

53. The Panel therefore finds the facts of Particular 1 proved.

Particular 2a

54. The Panel found the facts of Particular 2a proved for the following reasons.

 

55. Service User A gave oral evidence that she entered into a sexual relationship with the Registrant. She stated that this started prior to the delivery of the bath step and bath board on 21 and 22 November 2019. As a matter of fact, it is accepted by the Registrant that he had a sexual relationship with Service User A. In his investigation interview, when asked whether he had had a sexual relationship with Service User A, he stated: “Yes it was a serious relationship and a bit of a whirlwind”.

 

56. The allegation is however denied on the basis that, at the relevant time, in reality, the Registrant was not undertaking any further services as an OT for Service User A. It was his case that his relationship with Service User A started at the end of November 2019 and that the relationship became sexual at around mid December 2019. He stated that, in effect, she was no longer a current service user as no further intervention was required by him as an OT. As such, and by reason of being a former service user, by having a sexual relationship with her, it was his case that he had not breached professional boundaries.

 

57. Ms Kibble stated, and the Registrant accepted, that on 18 November 2019 the Registrant had placed an order for a bath board for Service User A. He collected the item on 21 November 2019. He also placed an order for a bath step for Service User A on 21 November 2019 and collected it on 22 November 2019. These visits to the in-house collection stores were not recorded on the Registrant’s electronic calendar. She stated that the Registrant also collected these items himself rather than arranging delivery as per normal practice.

 

58. Ms Rogers addressed the issue as to whether Service User A was a service user at the time the Registrant had a sexual relationship with her. The Panel accepted her evidence as being credible and reliable in that she stated that a service user ceases to be a service user when all involvement in their case has stopped and the case is appropriately closed down. Therefore, while the case was still open to the Registrant, any phone calls that came through on the duty system regarding Service User A would go through to him. As a result, Service User A was still his Service User on 2 January 2020 and while he completed a retrospective case note on that date to close the case on 21 November 2019, he was still ordering equipment for her after this date, meaning she was still his Service User.

 

59. The Panel has borne in mind that the Registrant accessed Service User A’s file notes on 16 and 24 December in relation to establishing whether her Landlord had given approval for her property to be adapted. He stated in his disciplinary investigation that: “I decided to leave open until I received the SSD84 back as there were two requesting some work that she didn't want done. Hence why I checked the system twice in December to make sure Business Support hadn't uploaded the SSD84 before sending over to me. It seems a bit stupid now I should have just closed it and left it but that's what I did.”

 

60. In his evidence, the Registrant accepted that, on checking the case file on 16 and 24 December 2019, had the SSD84 forms been returned, scanned and forwarded to the grants team for payment, he would have intervened to request that the forms be disregarded. His concern, he stated, was to ensure that the relevant works would not be actioned. He accepted however, that if the Panel concluded that Service User A was a current service user at the time he started a sexual relationship with her, that his actions would amount to a breach of his obligation to maintain appropriate professional boundaries, However, in his view it did not amount to a breach if the Panel concluded that she was a former service user.

 

61. The Panel rejected the Registrant’s position that Service User A was no longer a current service user after the delivery of the bath step and bath board on 21 and 22 November 2019. It concluded that it was a proper conclusion to draw that at the time of accessing Service User A’s notes in December 2019, the Registrant was aware that further action may or may not have been required had the SSD84 forms been returned, scanned and forwarded to the grants team. Further intervention by the Registrant would have been needed as major adaptation works would no longer be required and the grants team would need to be informed accordingly. In addition, as a matter of fact, Service User A’s file was not marked as closed until 2 January 2020, albeit retrospectively, and any matters that may have arisen in the interim would still have been referred to the Registrant until such time as the case was closed.

 

62. The Panel was therefore satisfied that at the time the Registrant engaged in a sexual relationship with Service User A, whether based on the Registrant’s or Service User A’s timescales, she was a current service user.

 

63. The Panel then went on to consider whether the Registrant breached professional boundaries.

 

64. Ms Kibble accepted in her oral evidence that the Council did not have a specific written policy prohibiting relationships with Service Users. However, she stated that the Registrant had been issued with the Code of Professional Practice for Social Care Workers on appointment to his OT role. Section 5.4 of the Code states that workers must not form inappropriate personal relationships with individuals. Employees were also advised not to befriend Service Users on Facebook, so it would not have been appropriate to enter into a sexual relationship with a Service User. She also said that the HCPC Standards state that Registrants should maintain appropriate boundaries with Service Users.

 

65. Ms Kibble also exhibited the Council’s Social Media Policy document which stated:

 

"Staff members are strongly advised not to have contact through any personal social medium with any service users, unless they are family members.

Staff members must decline 'friend requests' from service users they receive in their personal social media accounts"

 

66. Ms Rogers stated that whilst the Council did not have a policy on this, the Registrant’s contract of employment stated that it was not permitted to enter into a relationship with a Service User. She relied upon the Registrant’s contract of employment which stated that:

 

“Where occupational standards and /or regulatory body requirements apply you are expected to comply with these on a continual basis.”

 

67. The Panel had regard to the HCPC Standards of conduct, performance and ethics noting standard 1.7 which states:

 

“Maintain appropriate boundaries

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

 

68. It has also had regard to the College of Occupational Therapists document entitled ‘Code of Ethics and Professional Conduct’, 2015 version. Paragraph 4.6 states:

 

“You should foster appropriate therapeutic relationships with your service users in a transparent, ethical and impartial way, centred on the needs and

choices of the service user and their family/carers..”

 

69. Paragraph 4.6.4 states:

 

“You should avoid entering into a close personal relationship with a current service user. You are responsible for maintaining an appropriate professional relationship. If there is a risk that the professional boundary may be broken, this should be disclosed and discussed with your manager. You should hand over therapy care for the service user to an appropriate professional colleague.”

 

70. Paragraph 4.6.5 states:

 

“In the case of relationships, sexual or otherwise, regardless of when the professional relationship may have started or ended, or however consensual it may have been, it will always be your responsibility to prove that you have not exploited the vulnerability of the service user and/or his or her carer, should concerns be raised.”

 

71. Having found that the Registrant started a sexual relationship with Service User A when she was a current service user, even on the Registrant’s timescale, the Panel concluded that the Registrant breached his obligation to maintain professional boundaries.

 

72. The Panel therefore finds the facts of Particular 2a proved.

Particular 2b

73. The Panel found the facts of Particular 2b proved for the following reasons.

 

74. The Panel first considered Mr Pataky’s submission that the word ‘between’ in the Particular should be interpreted as alleging that all the Registrant’s contact should have been unsolicited and that it should have continued throughout the entirety of the period referred to in the Particular.

 

75. Rejecting that submission, the Panel accepted the advice of the Legal Assessor, and applied the ordinary meaning of the word as “in a period separating 2 points in time”. The wording of the Particular did not allege that the conduct in question continued throughout a period of time nor did it allege that it occurred from one date until another. The Panel concluded that the Particular was capable of being proved if at some point during the period in question, the Registrant acted as alleged.

 

76. The Panel has had sight of a bundle of email correspondence from the Registrant to Service User A. The Panel recognised that the exhibited emails did not represent the entirety of the communications between the Registrant and Service User A. Furthermore, the Panel accepted that it is self-evident from much of the email correspondence, that Service User A initiated and consensually engaged in email correspondence with, and made phone calls to the Registrant. By way of example, evidence of ongoing contact is indicated by the Registrant’s email to Service User A times at 14.19 on 10 February 2020 which suggested that the Registrant and Service User A had slept together the previous Monday and Tuesday. The Panel also noted that the Service User A had sent the Registrant a Valentine’s message albeit on 22 February 2023.

 

77. Whilst the Panel accepted that there were times during the period between February 2020 and March 2020 when Service User A was willing to engage with the Registrant, the Panel has had regard to the fact that at times, Service User A requested the Registrant to stop communicating with her. The Panel has considered a number of emails between Service User A and the Registrant which include, but is not limited to:

 

10 February 2020 at 14.13: Service User A to the Registrant

Last time stop contacting me or I will call the police, we are over I'm not disconnected, I don't want to be with you at all, I've been talking this through with…for weeks, I only stayed with…because of…, I'll bag your stuff up and leave it outside my house let me know when ,”

 

10 February 2020 (time not noted): Registrant to Service User A

“I will, just hard Cos it’s breaks my heart. And I know you can’t just fall out of love ok.

Love you always - hope you realise how we worked as a team and get back in touch with me.

I will stop now, but can’t blame a man for trying when he found the one for him and thought it was the same back XX

X x sorry for all the messages, just fight or flight normal reaction to this sort of situation x x”

 

10 February 2020 at 14.22: Service User A to Registrant

“I do not want to be with you ffs, fine I'll bin your stuff, Bishop no's your married, stay away from me, you make me feel sick, I lied for, [Child 3] I don't love or want to be with you, my daughter doesn't like you, go away pathetic

 

10 February 2020 at 14.24: Registrant to Service User A

“Wow- such lies and hope you can see that

And so brutal - I didn’t deserve any of that.

Please don’t bin my brothers jumper just keep it safe.

You can’t fall out of love with someone like that, and she does like me

Always here for you and hope you get in touch”

 

10 February 2020 at 14.25: Service User A to Registrant

“I do not love you and now I don't like you, leave me and my kids alone, or I

will contact the police and your job , stay away”

 

10 February 2020 at 7.17pm: Registrant to Service User A

“really can’t see why you won’t speak to me in person. Surely you can see saying j make you feel sick is harsh”.

 

10 February 2020 at 7.21pm: Registrant to Service User A

“Even if you hate me for no reason, pls don’t ruin my job just Cos I love you and am trying to make things right.”

 

10 February 2020 at 19.29: Service User A to the Registrant

Seriously stop

 

10 February 2020 at 22.06: Registrant to Service User A

“Why did you give me that hug in the kitchen on sat and tell me you love me

and then just cut me off.

I know you are shutting your emotion off from me but please think about how this must make me feel.

You have bought me a touching valentines present and I don’t think you would have done that if you didn’t love me.

I am truly sorry I keep sending emails, but if you were in my shoes I think you would do the same as you wouldn’t want to lose me forever.”

 

11 February 2020 at 23.13: Service User A to the Registrant

Right last time before I speak to the police , I don’t want to be with you , I don’t want to marry you , I need you to accept that we are over , no valentines, no nothing , this has now become very concerning as you will not leave me alone , my daughter or my friends, my children are now scared of you as am I , because this is now consuming your life , legally this is now an harassment order . Please leave us alone .”

 

11 February 2020 at 11.15pm: Registrant to Service User A

All I asked for was a civil explanation calmly with me instead of the abuse I got. Which was anger and not Called for I haven’t asked for much just some human consideration to how you brutally ended it.

You cannot fall out of love that quick.

I’m not trying to scare anyone just really hurt and deserve an explanation with out abuse

 

11 February 2020 at 23.17: Service User A to the Registrant

I’m going to the police ,”

 

11 February 2020 at 23.29: Service User A to the Registrant

I haven’t loved you for ages , I’m not attracted to you , I don’t like you , do you not understand that by hounding us and my daughter you will never be in our lives again , the bombardment of messages, Simon I’m sorry your finding this hard , but I can’t force myself to be with you , weeks I’ve been wanting to part from you , but , and you put that pressure on me , that she had knowbody [sic], accept that I don’t want to marry you , or even be your friend now , I’m perfectly fine , I think you need to mention this to your therapist as it’s very worrying, but I am taking out an order to keep you from contacting us. If you break that then you will be charged , your call . I hope this is now closure for you .”

 

12 February 2020 at 13.14: Service User A to the Registrant

“I’m done ok , 68 emails in one day from you , 16 yesterday, and [Person 1] and after she asked you to leave her alone , your bombardment for three days has driven us all up the wall , I’ve had to change my number , not fair , your response has been so scary, let go , what you put us through, don’t you get it no chance after all that whatsoever, please let go it’s not happening. You made it worse your actions has caused so much stress , I will never take you back after all that never”.

 

12 February 2020 at 13.21: Registrant to Service User A

“You told me it was over and then said now I have no chance. No wonder I’m confused

I’m not gonna email anymore you’re rational is so out it’s beyond”.

 

14 February 2020 at 14.06: Service User A to Registrant

“Let’s move on now ok , it’s time to let go we can’t be , please

speak to the doctor about how your feeling , and everything your feeling ok”

 

14 February 2020 at 14.06: Registrant to Service User A

“Ring me you can’t end like this I need to see you”

 

14 February 2020 at 14.07: Service User A to the Registrant

“No please , let go now”

 

14 February 2020 at 14.11: Registrant to Service User A

“You owe me that much at least x”

 

14 February 2020 at 14.10: Registrant to Service User A

“Please let me see you.

Why you not putting kisses anymore.

You could still ring me x”

 

15 February 2020 at 10.49: Service User A to the Registrant

“Done done done done done done done done done done done , got that will no longer be responding OVER”

 

78. In his Investigation interview, the Registrant acknowledged that he should not have sent the various emails stating:

 

“I admit I shouldn't have sent the emails, I think you can understand when someone says that to you and you're fighting for someone you don't think they really mean it. [redacted] told me that I should've taken a step back and seen that she was emotionally abusing me and controlling me. I thought that she didn't mean it, she told me that she didn't mean any of it before.”

 

79. The Panel was mindful that not all the contact between the Registrant and Service User A was unsolicited. However, the Panel found that the Registrant persistently continued engaging with Service User A having been asked to cease contact with her and that that contact was unsolicited. This resulted in Service User A reporting the matter to the Police following which, he signed a written confirmation on 6 March 2020 that he will not contact Service User A or her children again.

 

80. The Panel accepted the consistent evidence of Service User A that the Registrant made repeated unsolicited contact (noting that some contact was not unsolicited) with Service User A between February 2020 and March 2020, which was consistent with the exhibited emails.

 

81. The Panel then considered whether by doing so, the Registrant had breached professional boundaries. In doing so, it recognised that by February 2020, the Registrant had ceased his professional involvement with Service User A and that Service User A’s case had been closed.

 

82. However, the Panel was mindful that whilst the Registrant and Service User A were in a relationship at this time, the Panel has found that this was a continuation of a relationship that had improperly started when Service User A was a current service user of the Council.

 

83. Clause 4.65 of the College of Occupational Therapists Code of Ethics and Professional Conduct referred to above envisages that relationships with service users may be called into question “regardless of when the professional relationship may have started or ended, or however consensual it may have been”.

 

84. The Panel was mindful that Service User A was a vulnerable adult and that there was a significant imbalance of power between the Registrant and her. Even on his own account, the Registrant engaged in a personal relationship with Service User A a matter of days after his direct involvement in supplying a bath step and bath board, and entered into a sexual relationship with her shortly after.

 

85. In all the circumstances, the Panel found that between February 2020 and March 2020, the Registrant made repeated unsolicited contact with Service User A and that by doing so, he breached professional boundaries.

 

86. It therefore found the facts of Particular 2b proved.

Particular 3

87. The Panel found the facts of Particular 3 proved for the following reasons.

 

88. Ms Kibble stated that the issue within the department was that the Registrant never informed anyone that he was in a relationship with Service User A. She reminded the Panel that the Registrant met Service User A on an initial client visit through his work.

 

89. Ms Rogers stated that the Registrant should have informed the Council about his relationship with Service User A immediately. That would have been the most appropriate and professional thing for him to do as social care professionals are not supposed to start relationships with service users. If the Registrant had done so, the Council would have assigned Service User A to another OT. She stated that the Council does not even allocate cases to people who see Service Users in a social capacity, as it would not be appropriate.

 

90. The Panel has also taken into account the Registrant’s admission of the alleged facts. It has also taken into account the Registrant’s admission in his investigation interview in which he stated he had: “started a relationship which I shouldn’t have done without discussing with my seniors first”. It has also taken into account the obligations imposed on Occupational Therapists to disclose and discuss professional boundary issues with a manger as set out in paragraph 4.6.4 of the College of Occupational Therapists Code of Ethics and Professional Conduct set out above.

 

91. The Panel therefore finds the facts of Particular 3 proved.

Particulars 4ai-4aiii and 4b

92. The Panel found the facts of Particulars 4ai, 4aii and 4aiii proved for the following reasons.

 

93. As a matter of fact, the Registrant admitted the underlying facts of Particulars 4ai, 4aii, 4aiii and 4b. Those admissions are consistent with the relevant records of the exhibited WCCIS which shows that the matters in question were not recorded.

 

94. In relation to Particular 4b, the Panel has also had sight of the exhibited closing note, closing Service User A’s case on 21 November 2019, the entry being made retrospectively on 2 January 2020. Apart from the delay in entering that note, the Panel also noted that the entry makes no reference to the equipment supplied by the Registrant to Service User A in November 2019.

 

95. Ms Kibble and Ms Rogers informed the Panel that the Registrant added a retrospective case note dated 21 November 2019 on 2 January 2020 stating that Service User A no longer wished the adaption to be carried out. Records showed that the Registrant accessed Service User A's record on the WCCIS system on 16 and 24 December 2019.

 

96. The matter for the Panel to therefore determine is whether the admitted underlying facts amount to the Registrant not keeping adequate records in relation to Service User A.

 

97. The Panel has had regard to the Council’s Case recording policy, which states at paragraph 3.2.8: “Records must be updated as soon as possible, preferably within a day of the event that they refer to.” It has also had regard to Standard 10.2 of the HCPC Standards of Conduct, Performance and Ethics (2016) which states that: ”You must complete all records promptly and as soon as possible after providing care, treatment or other services.”

 

98. The Panel has taken into account the fact that the Registrant had been on sick leave. However, it noted that the Registrant nevertheless had the opportunity to update the records when he accessed Service User A’s notes on 16 and 24 December 2019 and closed them at that point but he did not do so.

 

99. Timely record keeping is important so that, so far as possible, records accurately reflect the service user’s current position. The maintenance of accurate records is essential to ensure effective ongoing care and risk management for service users. By omitting the information alleged in Particulars 4a i-iii, and by unreasonably delaying in updating Service User A’s records, the Panel found the Registrant did not keep accurate records for Service User A.

 

100. The Panel has also taken into account the Registrant’s admission to Particular 4 in its entirety entered at the conclusion of the Council’s case.

 

101. The Panel therefore found the facts of Particulars 4a i-4a iii and 4b proved.

 

 

Statutory grounds

 

102. The Panel went on to consider whether the facts found proved in relation to the particulars, or any of them, amounted to misconduct.

 

103. The Panel was mindful that the question whether the proven facts constituted misconduct are matters for the Panel’s professional judgement, there being no burden or standard of proof at this stage.

 

104. The Registrant provided the Panel with a reflective statement in relation to to the Panel’s findings of fact and gave further oral evidence relevant to the issues of misconduct and impairment.

 

105. When cross-examined by Ms Collins, the Registrant acknowledged that he had been in serial breach of the HCPC’s Standards of Conduct, Performance and Ethics (2016) referred to below, that the proven particulars constituted misconduct and would be regarded as deplorable by fellow members of his profession.

 

106. Ms Collins provided the Panel with written submissions. The Registrant relied on his oral evidence without making any additional submissions.

 

107. The Panel took into account the evidence of the Registrant and the submissions of Ms Collins. The Panel accepted the advice of the Legal Assessor.

 

108. The Panel found the Registrant to have been in breach of the following standards of the HCPC Standards of Conduct, Performance and Ethics (2016):

 

• Standard 3: You must encourage and help service users, where appropriate, to maintain their own health and well-being, and support them so they can make informed decisions

 

• Standard 1.7: You must keep your relationships with service users … professional

 

• Standard 2.7: You must use all forms of communication appropriately and responsibly, including social media and networking websites

 

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

 

• Standard 9.4: You must declare issues that might create conflicts of interest and make sure that they do not influence your judgement

 

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

 

109. The Panel found that the following acts and omissions constituted misconduct on the part of the Registrant:

 

• engaging in a sexual relationship with Service User A, whom he knew to be physically and mentally vulnerable. The Panel considered his conduct in so doing to be a serious breach of professional boundaries (Standard 1.7) and one which could properly be described as “deplorable” by the standards of other members of the profession;

 

• his persistent messaging of Service User A when she had asked him to cease contacting her. This constituted inappropriate communication by the Registrant in breach of Standard 2.7 and a breach of professional boundaries in breach of Standard 1.7;

 

• his failure to inform his managers of the conflict of interests arising from his relationship with Service User A in breach of Standard 9.4;

 

• his failure to make proper records as set out in particular 4 in breach of Standard 10.1.

 

110. In addition, the Panel found each of the proven particulars, both individually and collectively, constituted breaches of Standard 9.1 and constituted serious misconduct.

 

Decision on impairment

111. The Registrant gave evidence that there were particular circumstances relating to his mental health and in his personal life at the relevant time which adversely affected his judgement and caused him to act out of character. He said that he had successfully addressed these issues: his mental health was no longer impaired, he had benefitted from counselling and he had achieved stability in his personal life. He stated that his misconduct in relation to Service User A was an isolated incident which would not be repeated. He relied on the fact that he had not previously been subject to regulatory proceedings and that he had practised as an Occupational Therapist for approximately two years since the date of the relevant incidents from January 2021 until March 2023 without any untoward incident. He referred to the CPD courses which he had undertaken in relation to professional boundaries and record keeping. He relied on the supportive testimonials provided by professional colleagues and character witnesses.

 

112. The written submissions of Ms Collins addressed the HCPC’s case that the Registrant’s fitness to practise remains impaired by reason of his misconduct in relation to both the “personal” and “public” components of impairment. The Registrant relied on his evidence without making additional submissions.

 

113. The Panel took into account the Registrant’s evidence and the submissions of Ms Collins on behalf of the HCPC. The Panel had regard to the HCPTS Practice Note on “Finding that Fitness to Practise is Impaired” and accepted the advice of the Legal Assessor.

 

114. 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. The “personal” component relates to the Registrant’s own practice as an Occupational Therapist, including any evidence of insight and remorse and efforts towards remediation. 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.

 

115. With regard to the “personal” component, the Panel noted that the Registrant had, even at the start of this hearing over several years after the events, denied the allegation that he had breached professional boundaries. Even in his reflective statement post-dating the Panel’s decision on facts, the Registrant suggested that professional boundaries were a “grey area”.

 

116. The Panel noted that the Registrant continued to attribute his misconduct to his allegedly impaired mental health at the relevant time and difficulties in his personal life. The Panel did not consider this to be an adequate explanation for his misconduct and appeared to be an attempt to displace personal responsibility to factors outside his control.

 

117. The Panel considered that the Registrant’s insight as to the consequences of his breach of professional boundaries primarily focused on the adverse consequences for himself and his family.

 

118. The Registrant was remorseful about the effect of his behaviour on himself but seemed to have thought little about the adverse effect of his behaviour on Service User A, whom he appeared to regard as, in part, responsible for what had happened. The Panel considered his behaviour towards her to have been uncaring, exploitative and focused on his needs rather than those of Service User A.

 

119. The Registrant claimed that the stability which he had since acquired in his mental health and his personal life made it very unlikely that there would be a repetition of such conduct in the future. In the Panel’s judgement, however, the Registrant’s misconduct was attitudinal and consequently there remained a risk that he might use his professional position to exploit vulnerable service users in the future.

 

120. With regard to the “public” component of impairment, the Panel was mindful of the need to maintain public confidence in the profession and to declare and uphold proper standards of conduct and behaviour. In considering whether the Registrant’s fitness to practise is currently impaired having regard to the “public” component, the Panel applied the test formulated by Dame Janet Smith in her Fifth Shipman Report and referred to by the High Court in Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Grant [2011] EWHC 927 (Admin), 76):

 

“Do our findings of fact in respect of …. misconduct …… show that her fitness to practise is impaired in the sense that she:

1. a) has in the past acted and/or is liable to act in the future so as to put a patient or patients at unwarranted risk of harm; and/or
2. b) has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or
3. c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession;”
4. The Panel found each of the above factors to be engaged in this case:

 

• The Registrant by breaching professional boundaries and having a sexual relationship with Service User A caused her emotional harm. The Panel was not confident that the Registrant would resist the temptation to breach professional boundaries in relation to service users in the future

 

• The Registrant’s misconduct was such as to bring his profession into disrepute and, given the risk of repetition, would be liable to do so in the future

 

• The Registrant breached fundamental tenets of his profession by engaging in a sexual relationship with Service User A and, in the Panel’s judgement, was liable to do so again.

 

122. The Panel found the “public” component of impairment to be satisfied in this case. A member of the public, knowing of the Registrant’s sexually motivated misconduct towards a female service user, his persistent and unwanted communication with her, his failure to record matters relevant to that relationship, and his failure to disclose his conflict of interest to his manager, would undoubtedly expect some restriction to be placed on his registration. Public confidence in the profession and in the Regulator would be undermined if there were no finding of impairment.

 

Decision on sanction

 

123. The Panel took into account the witten submissions of Ms Collins on behalf of the HCPC and the oral submissions of the Registrant.

 

124. The Panel was guided by the HCPC’s Sanctions Policy (2019) and accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of a sanction is not to punish the Registrant but to protect the public and the wider public interest in upholding proper standards, safeguarding the reputation of the profession and maintaining public confidence in the profession and the HCPC as its Regulator. 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.

 

125. By way of mitigation:

 

• the Registrant had some difficulties in his personal life and mental health at the time, which might have made him more susceptible to the temptation to transgress professional boundaries

 

• he has shown some remorse with regard to his behaviour

 

• he has provided the Panel with supportive testimonials from professional colleagues and character witnesses

 

• he has not previously been subject to regulatory proceedings and has practised as an Occupational Therapist for the past two years without further incident.

 

126. By way of aggravating factors:

 

• the Registrant engaged in a sexual relationship with Service User A at a time when she was still his patient and thereby abused his professional relationship to facilitate a sexual relationship

 

• the Registrant knew that Service User A was physically and mentally vulnerable at the start of the relationship and through the relationship exploited her vulnerability for his own sexual gratification

 

• the Registrant persisted in seeking to pursue his relationship with Service User when she asked him to desist

 

• The Registrant by his misconduct caused Service User A emotional harm

 

• The Registrant failed to disclose his relationship with Service User A and the resulting conflict of interest to his employer

 

• The Registrant sought to conceal his relationship with Service User A from his employer by failing to keep adequate records of the services provided to her.

 

127. The case is too serious for the Panel to take no further action.

 

128. A Caution Order would not reflect the seriousness of the Registrant’s misconduct or provide any protection to the public.

 

129. A Conditions of Practice Order would not be appropriate because the Panel could not formulate any conditions which would address the underlying concerns regarding the Registrant’s abuse of trust and exploitation of his professional position to pursue a sexual relationship with a service user whom he knew to be physically and mentally vulnerable.

 

130. The Panel considered whether to impose a Suspension Order but, in light of its conclusion as to the attitudinal nature of the Registrant’s misconduct, his lack of sufficient insight even years after the events, and the consequent risk of repetition, the Panel decided that a Suspension Order would not be appropriate.

 

131. The Sanctions Policy states that a striking off order is a sanction of last resort for serious persistent and deliberate acts including:

 

• Abuse of professional position, including vulnerability
• Sexual misconduct

 

and “is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process.”

 

132. In the Panel’s judgement the indicative criteria referred to above for a Striking Off Order are present in this case. The public is entitled to expect members of the profession to behave with decency and integrity, which qualities were conspicuously lacking in the Registrant’s conduct towards Service User A. In the Panel’s judgement, the Registrant’s misconduct was so serious as to be incompatible with his remaining on the Register.

 

133. Whilst the Panel took full account of the financial and other hardship to the Registrant, the need to protect the public and the wider public interest must take priority over the Registrant’s interests. The Panel concluded that the appropriate sanction is a Striking Off Order.

Order: That the Registrar is directed to strike the name of Mr Simon Best from the Register on the date this order comes into effect.

 

Right of Appeal:

You may appeal to the appropriate court against the decision of the Panel and the order it has made against you. In this case the appropriate court is the High Court in England and Wales.

Under Articles 29 and 38 of the Health and Social Work Professions Order 2001, an appeal must be made to the court not more than 28 days after the date when this notice is served on you. The Order made against you will not take effect until that appeal period has expired or, if you appeal during that period, until that appeal is disposed of or withdrawn.

 

Interim Order

1. Ms Collins on behalf of the HCPC made an application for an Interim Suspension Order for a period of 18 months to cover the appeal period or until any appeal lodged has been determined.

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

3. Given the Panel’s findings that the Registrant’s actions are fundamentally at variance with remaining on the Register and a Striking Off Order has been imposed, it would be inconsistent with that need for public protection and the wider public interest not to impose some form of interim order. The Panel, for the same reasons it identified above, came to the conclusion that it is impracticable and inappropriate to formulate interim conditions of practice in this instance.

4. The Panel therefore makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being in the public interest, having regard to the Panel’s findings of fact and determination as to impairment and sanction.

5. This Order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal. This Interim Suspension is for a period of 18 months.

History of Hearings for Simon Best

Date	Panel	Hearing type	Outcomes / Status
15/05/2023	Conduct and Competence Committee	Final Hearing	Struck off