Gareth J Florida-James

Preliminary matter

Service

1. The Panel has seen an unredacted revised notice of hearing email dated 15 January 2024 sent by the HCPTS to the Registrant at his registered email address. The email was also sent to the Registrant’s legal representative, Mr Godric Jolliffe of the Chartered Society of Physiotherapy. The email sets out the date and time of this hearing and that it is to be conducted remotely by video conference. The Panel has also seen Microsoft Outlook delivery receipts dated 15 January 2024 which confirm that the revised notice of hearing email was sent to the Registrant at his registered email address and to Mr Jolliffe on that date. Mr Jolliffe responded by email dated 2 April 2024, confirming that neither he nor the Registrant would be attending the hearing on 8 April 2024.

2. The Panel has received and accepted legal advice. The Panel is satisfied that the Registrant has been served with notice of the date, time, and the place (i.e., via video conference) of the hearing. On the basis of the documents it has seen, the Panel is satisfied that there has been good service in this case.
Proceeding the absence of the Registrant

3. Ms Bass applied for the hearing to proceed in the Registrant’s absence. She submitted that all reasonable steps had been taken to notify the Registrant of the hearing. Ms Bass submitted that the Registrant had voluntarily waived his right to attend and referred the Panel to Mr Jolliffe’s email of 2 April 2024 in which he had made it clear that the Registrant did not intend to attend the hearing or have any legal representation at it, and that he was content for the hearing to proceed in his absence.

4. The Panel has considered whether to proceed in the absence of the Registrant with care. The Panel has received and accepted legal advice and it has had in mind the guidance set out in the HCPTS Practice Note on “Proceeding in the Absence of the Registrant”. The Panel has balanced fairness to the Registrant with the interests of the HCPC and the wider public interest and is mindful of the need to protect the public.

5. The Panel is satisfied that all reasonable steps have been taken to notify the Registrant of this hearing. The email of 15 January 2024 clearly sets out the date, time, and nature of this hearing and that it is to be conducted virtually.

6. The Panel notes that the Registrant’s legal representative, Mr Jolliffe has responded to that email, indicating that:

“The Registrant intends no disrespect to the Panel but as he does not object to the HCPC’s application he will not be attending the hearing or be represented. He has seen the HCPC’s papers for the hearing.
The Registrant is content for the HCPC’s application to be considered by the Panel in his absence provided this email is considered by the Panel”.

7. The Panel has concluded that the Registrant has made a deliberate decision to not attend and that he has therefore voluntarily waived his right to attend. The Panel is satisfied that if the matter were to be adjourned, the Registrant would not attend at a later date.

8. The Panel does not consider that there is any disadvantage to the Registrant by not being present and participating in the hearing. If the application is granted, his name will be voluntarily removed from the Register which is what he wants. If the application is not granted, the matter will be relisted before an entirely different panel at a final hearing which the Registrant can attend if he chooses to do so, and at which there will be no reference to his having admitted the Allegation for the purposes of this hearing.

9. In these circumstances, the Panel decided that it was right and proper, and in the interests of justice, to proceed with this hearing in the Registrant’s absence.
Conducting the hearing in private

10. Ms Bass applies for part of the hearing to be conducted in private in order to protect the private life of the Registrant. Ms Bass informed the Panel that while she would not be referring to any matters regarding the Registrant’s health, there were references to this in the papers. She submitted that in the event that the Panel wanted to refer to the Registrant’s health either during the hearing or in its determination, then to protect his private life, those parts should be conducted in private.

11. The Panel has considered Ms Bass’s submissions. It has also had regard to the HCPTS Practice Note on Conducting Hearings in Private, and it has received and accepted legal advice. The Panel is aware that these proceedings should be conducted in public unless there is a compelling reason for either the whole or part of the hearing to be held in private.

12. With regard to the Registrant’s health, the Panel agrees with Ms Bass that if there is any reference to the Registrant’s health, this should be heard in private in order to protect his private life.

Background

13. The Registrant is a registered Physiotherapist. He had worked at Sussex MSK Partnership (“Sussex MSK”) since 2009.

14. On 18 May 2020, the HCPC received a referral from Sussex MSK regarding concerns around the Registrant sending inappropriate messages (by email, electronic notes, text, and WhatsApp) to female members of staff. Sussex MSK investigated the matter internally and the Registrant accepted that his behaviour towards 7 Colleagues (A to G) was inappropriate.

15. The Registrant was also a director of Head2Toe Clinic Limited (“Head2Toe”) from 2008 where he worked as a senior Physiotherapist.

16. On 11 March 2022, the HCPC received a referral from Mr Robert Bowden (a director and equal shareholder in the Head2Toe), regarding concerns around the Registrant sending inappropriate messages to a service user by email.

17. On 25 January 2022, a panel of the Investigating Committee (“ICP”) found that there was a case for the Registrant to answer in respect of the concerns referred to the HCPC by Sussex MSK in proceedings under reference FTP78381. The panel referred an Allegation to the Conduct and Competence Committee which is now reflected in Particulars 1 and 2 of the Allegation.

18. On 12 January 2023, the ICP found that there was a case for the Registrant to answer in respect of the concerns referred to the HCPC by Head2Toe in proceedings under reference FTP86449. The panel referred an Allegation to the Conduct and Competence Committee which is now reflected in Particular 3 of the Allegation.

19. The HCPC instructed Capsticks LLP (“Capsticks”) to investigate the two referrals and to prepare the matters for final hearing. As part of its investigation, Capsticks interviewed and obtained signed witness statements from:
• Service User A
• RSB (from Head2Toe)
• MB (from Head2Toe)
• SY (from Sussex MSK).

20. On 8 January 2024, at a preliminary hearing, a panel of the Conduct and Competence Committee agreed to join the two fitness to practise proceedings (FTP78381 and FTP86449) and approved the joinder Allegation, as set out above.

21. The Registrant first applied for a consensual disposal by voluntary removal on 30 March 2022 using a form in which he stated:

“I have decided that I no longer wish to practise as a physiotherapist as I believe that this will improve my health and wellbeing. This is a big decision as I have only worked as a physiotherapist since graduating in 1997.
I have not practised since 14 March 2022.
The only location I have practised in since 2020 is at my own private practice: Head2Toe Physiotherapy in Crawley.
On 29 March 2022 my business partners and I entered into an agreement for me to end my involvement in Head2Toe”.

22. The Registrant’s wish to be removed from the Register could not be progressed at that time as the concerns referred to the HCPC by Head2Toe had not yet been considered by a panel of the Investigating Committee. These were considered on 12 January 2023.

23. On 12 January 2024, the Registrant signed a voluntary removal agreement which was also signed, on 25 January 2024, by the HCPC.

Submissions

24. Ms Bass relied on a skeleton argument dated 29 February 2024 and submitted that the matter was suitable for disposal by consent in the terms set out in the signed Voluntary Removal Agreement (“VRA”) and invited the Panel to approve the proposed agreement. Ms Bass expanded on her skeleton argument in oral submissions.

25. Ms Bass indicated that in relation to the concerns referred by MSK, the Registrant had admitted sending the various inappropriate messages to colleagues when the matter had been internally investigated by SY. He was remorseful but could not explain why he had sent the messages. According to SY, the messages had caused some upset amongst those colleagues to whom they had been sent. Ms Bass explained that there were some potential evidential difficulties in that five of the seven colleagues had asked to remain anonymous, but the HCPC did have copies of the messages sent to Colleagues B, D and F, and the Registrant had admitted that he had sent them.

26. Ms Bass referred the Panel to the concern raised by the Head2Toe referral and submitted that whilst the messages to Service User A might on its own appear to be relatively benign if considered in isolation, they might appear differently when considered together with the referral from MSK. However, Ms Bass did remind the Panel that Service User A had made it clear that the Registrant had not been unprofessional or said anything inappropriate to her during her treatment.

27. Ms Bass indicated that the HCPC relies on the signed admissions made by the Registrant on both 30 March 2022 and 12 January 2024. She submitted that in admitting the substance of the allegation against him and that his fitness to practise is impaired, the Registrant had demonstrated insight. Ms Bass stated that in relation to both the MSK and Head2Toe matters, the Registrant had expressed remorse.

28. Ms Bass submitted that pursuant to the terms of the VRA, the Registrant would no longer be able to practise in a role that requires his registration, and this would eliminate any outstanding risk he posed to services users and the wider public as a result of his current and admitted impairment. Ms Bass submitted that the public would be adequately protected by a VRA, as this is equivalent to a strike-off order, and that resolving the case through a VRA would be proportionate. The Registrant would not be able to apply for readmission to the Register before five years from the date of his removal from the Register.

29. Ms Bass informed the Panel that the Registrant had changed career and was no longer practising as a Physiotherapist. Ms Bass submitted that disposal by way of voluntary removal would be an appropriate way of disposing of the matter in the circumstances, as it would be both in the Registrant’s interest and in the public interest to be concluded on an expedited basis. Ms Bass submitted that to dispose of the matter by way of consent would not be detrimental to the wider public interest.

30. In relation to the Head2Toe referral, Ms Bass raised a number of matters that had been in the documents considered by ICP on 12 January 2023 but had not resulted in any allegation being referred to this Committee:

a) An alleged similar inappropriate message sent by the Registrant to a service user in 2020;

b) Alleged dishonesty in that the Registrant had told his fellow directors that he had left the NHS whereas he had been dismissed;

c) Alleged dishonesty in the Registrant not referring himself to the HCPC in relation to the alleged inappropriate messages sent to a service user in 2020.

31. Ms Bass submitted that as these matters had been before the ICP, they had been properly considered and had not resulted in any allegations. In relation to the alleged dishonesty regarding dismissal by the NHS, Ms Bass indicated that there was no Head2Toe policy which required a director of the company to make such a disclosure. In relation to the alleged inappropriate message to a service user in 2020, Ms Bass indicated that as the Registrant had not been either suspended or dismissed, it was not relevant that he did not self-refer at that time.

32. Ms Bass also submitted that a panel of the Conduct and Competence Committee had reviewed both referrals when deciding on whether or not to grant an application for joinder. That panel had not indicated that further allegations should be drafted in respect of these other matters.

33. Ms Bass submitted that nothing would be gained by not granting the application for a voluntary removal and referring the matter for a full substantive hearing. She referred the Panel to the inconvenience for witnesses and the additional cost to the HCPC that this would entail in order to effectively achieve the same result as the proposed VRA. Ms Bass also reminded the Panel that if it granted the VRA, its determination would be published on the HCPTS website.

34. Ms Bass invited the Panel to approve that application, submitting that the proposed VRA secured the appropriate level of public protection and would not be detrimental to the wider public interest.

Decision on application

35. In reaching its decision, the Panel has considered with care the bundle of documents placed before it. This bundle numbers some 430 pages. The bundle includes documents which have been considered by the two panels of the Investigating Committee who had decided there was a case to answer and had referred the original allegations to this Committee. The bundle also includes correspondence between the parties concerning the proposed VRA, and also various documents signed by the Registrant relating to it. The Panel has also considered Ms Bass’s submissions and had in mind that the Registrant does not object to the application for a VRA. Indeed, it is what he wants.

36. The Panel has received and accepted legal advice.

37. The Panel is aware that it must scrutinise with care the reasons given by the HCPC for its decision to apply for approval to dispose of this case by way of a Consent Order, in this case a VRA. The Panel has considered the terms of the Consent Order.

38. The Panel is aware that it is not part of its role to make any findings of fact, but it must inquire into the matter to satisfy itself that the proposed disposal of this case is appropriate in all the circumstances. The Panel has had in mind the HCPC’s overarching objective to protect the public. It knows that it should only approve this case being resolved by consent if it judges that the proposed Consent Order secures an appropriate level of public protection and would not be detrimental to the wider public interest.

39. The Panel has reminded itself that it should follow the guidance given in the HCPTS Practice Note on “Disposal of Cases by Consent” which sets out that it should satisfy itself that the HCPC:
• has provided a clear, appropriately detailed, and objectively justified explanation within its supporting skeleton argument of why the matter is suitable to disposal by consent on the terms set out in the draft Consent Order; and
• has made clear to the Registrant concerned that co-operation and participation in the consent process will not automatically lead to a Consent Order being approved.

40. The Panel is satisfied that viewed objectively, the HCPC’s explanation for concluding that this matter could be concluded by way of a Consent Order, is justified. The Panel notes that the Registrant has made full admissions in relation to his misconduct. He has accepted that his fitness to practise is impaired. The Registrant has also co-operated with the HCPC’s investigation. He has signed an agreement which has the equivalent effect of a striking off order and so he will not be able to be readmitted to the register for a period of at least 5 years. Were the Registrant to apply for re-admission, the current allegation against him can form part of the HCPC’s decision. The Panel has concluded that the public protection requirement will be satisfied by voluntary removal in this case.

41. The Panel is also satisfied that the proposed Consent Order is not detrimental to the wider public interest. The proposed Consent Order will maintain public confidence in the Physiotherapy profession and in its regulator. The Panel considers that a reasonable and informed person will be reassured to know that the concerns raised in this case have been admitted by the Registrant who has also acknowledged that his fitness to practise is impaired.

42. In reaching this conclusion, the Panel notes the other matters which Ms Bass referred to and which do not form part of the Allegation set out above and is satisfied that these have been properly considered both by the ICP and a panel of this Committee.

43. The Panel is also satisfied that the Registrant is aware that this Panel could decline to approve the application for a consensual disposal and set the case down for a full, contested hearing. The Registrant confirmed in the Consensual Disposal Request Pro-forma dated 30 March 2022 that he had read the HCPC Practice Note on “Disposal of Cases by Consent” where this is explained,

“If a Panel is content to do so, it may conclude a case on an expedited basis, upon the terms of the draft Consent Order and supporting skeleton argument put before it by the HCPC. Equally, it may reject that proposal and set the case down for a full substantive hearing”.

44. The Panel is satisfied that the HCPC has made it clear to the Registrant that co-operation and participation in the consent process will not automatically lead to a Consent Order being approved.

45. In all these circumstances, the Panel has decided to grant the HCPC’s application and to approve the Consent Order in this case and make a Voluntary Removal Order.

The Registrar is directed to remove the name of Mr Gareth Florida-James from the register.

No notes available

History of Hearings for Gareth J Florida-James