HCPTS |

Profession: Physiotherapist

Registration Number: PH94946

Interim Order: Imposed on 26 Jul 2024

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 26/07/2024 End: 17:00 26/07/2024

Location: Virtual via video conference

Panel: Conduct and Competence Committee

Outcome: Struck off

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 Physiotherapist (PH94946):

On 29 April 2022, you acted in a sexual manner towards Colleague A in that:

a. You took your penis out of your trousers and placed Colleague A's hand on your penis without their consent; and/or

b. You touched Colleague A's penis over their trousers without their consent; and/or

c. You prevented Colleague A from leaving the toilet cubicle; and/or

d. You said to Colleague A:

i. "You are actually really fit" or words to that effect; and/or

ii. "I never noticed how hot you are before" or words to that effect; and/or

iii. "I've had my eyes on you since you first started" or words to that effect; and/or

iv. "I will give you money to rim me and for me to rim you, and for you to suck me off and vice versa" or words to that effect; and/or

v. "I want you to be my sex slave outside of work" or words to that effect.

On 30 April 2022 you asked Colleague A to keep the incident on 29 April 2022 to themselves.

On 28 July 2022, you said to Colleague A "shall we pick up where we left off" or words to that effect.

Your conduct in relation to particulars 1 and 3 was sexually motivated.

The matters set out in particulars 1, 2, 3 and 4 above constitute misconduct.

By reason of the matters set out above, your fitness to practise is impaired by reason of misconduct

Finding

Preliminary Matters

Service

1. The Registrant attended the hearing and was represented. The Panel was provided with a copy of the Notice of Hearing served on the Registrant dated 17 January 2024.

Proceeding in private

2. Ms Mosley, on behalf of the HCPC, submitted that the Panel should move into private session when considering matters relating to the health of any participant in the hearing. Ms Renou, on behalf of the Registrant, supported the application.

3. The Legal Assessor reminded the Panel of Rule 10(1)(a) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”) to the effect that, by default, the hearing should be conducted in public but that the Panel had a discretion to sit in private where the interests of justice or protection of the private life of a participant outweighed the general rule.

4. The Panel decided to allow the application and to sit in private when considering the health of any participant. The parties were directed to let the Panel know when evidence would touch on such matters. A private and a redacted public version of the determination would therefore be produced in due course.

Background

5. The Registrant is a Band 7 Physiotherapist registered with the HCPC. At the relevant times he was employed by Manchester University NHS Foundation Trust (“the Trust”). He commenced employment with the Trust in 2013 and at the time of the Allegation was based at the Manchester Royal Infirmary (“the Hospital”).

6. On 17 February 2023, the HCPC received a referral from the Trust concerning the Registrant. It was reported in the referral that the Registrant had been suspended from his duties due to an allegation of sexual harassment and unwanted sexual advances towards a colleague (“Colleague A”), who was at that time a Rehabilitation Assistant.

7. It was alleged that during a work ‘night out’ on Trust property on 29 April 2022, the Registrant had sexually harassed and assaulted Colleague A. It was also alleged that the Registrant had attempted to persuade Colleague A not to speak out about the incident by sending a text message on 30 April 2022 and in a verbal conversation on 03 May 2022. It was further alleged that, on 28 July 2022, at another work ‘night out’ the Registrant had made a suggestion to Colleague A of continuing their interaction.

Evidence

8. The Panel was provided with a redacted hearing bundle of 387 pages, together with the Registrant’s witness statement of 16 pages and the Registrant’s bundle of 35 pages.

9. The Panel heard oral evidence from: Colleague A; LP, at the time a Band 6 Locum Occupational Therapist with the Trust; AF, a Band 6 Rotational Occupational Therapist; and AW, Deputy Director of Nursing, who acted as investigator for the Trust. The Registrant gave evidence on his own behalf and provided a number of character testimonial statements. The Panel accepted the latter statements in evidence at the factual stage of the hearing, following the agreement of the parties.

Submissions and Legal Advice

10. Ms Mosley provided written submissions as to the facts which she considered the Panel should find proved. She submitted that the witnesses called by the HCPC had been clear and consistent. Ms Mosley submitted that the Panel could find all the facts in the Allegation proved.

11. Ms Renou also provided written submissions on the evidence at the facts stage. She submitted that there were material inconsistencies in Colleague A’s evidence and that LP, though an honest witness, was mistaken. Ms Renou submitted that the factual Particulars 1 to 4 should not be found proved.

12. The Legal Assessor reminded the Panel that the burden of proving the facts in the Allegation lay on the HCPC. The Registrant did not have a burden of proof to show he was innocent of the Allegation.

13. The Legal Assessor advised the Panel as to the judgements concerning witness evidence from the cases of R (Dutta) v GMC [2020] EWHC 1974 (Admin) and Byrne v GMC [2021] EWHC 2237 (Admin). In the former, he advised, the court had warned about the danger of over-reliance on witness demeanour in giving evidence. In the latter, the court stated that in cases of conflicting oral accounts, there may be inconsistency and confusion in some of the detail. Nevertheless, it was the Panel’s task to consider whether the core allegations were true.

14. The Legal Assessor advised the Panel as to the correct approach to interpret the phrase ‘sexual manner’ in Particular 1. He referred the Panel to the case of GMC v Haris [2021] EWCA Civ 763, in which the court had stated that where it is alleged that behaviour is sexual, the best evidence of sexual motivation can be the behaviour itself. It may be appropriate to draw an irresistible inference when the only way it could be perceived is as overtly sexual and in the absence of other plausible innocent explanations. Whether any inference was drawn was a matter for the Panel to determine.

15. In regard to Particular 4, which alleged ‘sexual motivation’ in relation to Particulars 1 and 3, the Legal Assessor drew the Panel’s attention to the case of GMC v Basson [2018] EWHC 5050, in which the court stated that the meaning of ‘sexual motivation’ was that the Registrant had acted either (a) for sexual gratification or (b) in pursuit of a future sexual relationship.

16. The Legal Assessor also advised the Panel that in Basson, the court had stated that a person’s motive or state of mind was a matter to be proved by evidence, as a matter of inference from the surrounding evidence.

Decision on Facts

17. In its deliberations, the Panel bore well in mind that the burden of proof of the facts rested on the HCPC. The Registrant had no burden of proof in relation to the Allegation. The standard which the Panel applied in deciding whether the facts were proved was the ‘balance of probabilities’, by which it was meant that the Panel may take a fact as proved if it considered that it was more likely than not that the fact occurred.

Particular 1(a) – Proved

1. On 29 April 2022, you acted in a sexual manner towards Colleague A in that:

a. You took your penis out of your trousers and placed Colleague A’s hand on your penis without their consent;

18. The Panel considered from the evidence presented that the following facts were not in dispute in the case. At the relevant time, the Registrant was a Band 7 Physiotherapist and Colleague A was a Band 3 Rehabilitation Assistant. Although Colleague A was not in the Registrant’s ‘patch’ (or team) at the time, the Registrant had been responsible for Colleague A’s induction to the Hospital, where they both worked.

19. The Registrant had worked at the Hospital since approximately 2015. Colleague A had latterly joined the Hospital, moving to the area for these purposes, and had been in the Manchester area for about three months by April 2019.

20. Staff at the Hospital were in the habit of socialising in their teams after work and frequenting ‘The Social’, a bar on the Hospital campus. The bar had an internal drinking space, an external seating area, and a toilet area which was internal to the building on an upper floor, reached by a flight of stairs behind a door from the internal bar.

21. The stairs from the bar gave onto a small landing at the top, from which the male and female toilets were accessible, with a further door leading to a function room. The male toilet itself was a small room containing a single cubicle, two urinals, and a sink.

22. On the evening of 29 April 2022, the Registrant and his colleagues were present in the bar at The Social. LP was present with the Registrant. Later, Colleague A joined with another group.

23. It was not in dispute that at a point, Colleague A and the Registrant had a conversation at the bar counter and, sometime after this, both had been present together in the cubicle of the male toilet. It was not in dispute that the Registrant had subsequently approached LP and told her that he had “kissed” Colleague A in the toilet and was upset.

24. The evidence otherwise was very much in dispute. It was a matter of dispute in what order Colleague A and the Registrant came to be in the toilet, what had taken place in the cubicle, and what had been said by the Registrant to Colleague A. Colleague A’s account of the events in the toilet cubicle was denied by the Registrant.

25. Colleague A’s evidence was that he had been invited by the Registrant to go to the toilet with him. Whilst there, he had engaged in a consensual kiss. However, he said that when turning to leave, the Registrant had behaved towards him in the manner alleged in Particulars 1(a) and 1(b).

26. The Registrant’s account was that he had gone to the toilet alone. He had encountered Colleague A already in the toilet, using the single cubicle with an open door. The Registrant had used one of the urinals. Whilst doing so, he had heard Colleague A laugh. When he queried this, he said, Colleague A had said “I’ve always wanted to kiss you”. The Registrant said he entered the cubicle and they kissed twice, consensually. Nothing else of note occurred. The Registrant said that he regretted the kiss because he had a partner and was concerned in case the partner found out.

27. The Panel was mindful of legal advice, based on Dutta, not to rely too heavily on witness demeanour but to seek to compare oral evidence with contemporaneous documents. It had also in mind the advice, based on Byrne, that there are occasions where it simply has two contradicting oral accounts and has to make a decision as to what occurred.

28. The Panel considered that the exchange of WhatsApp messages exhibited between the Registrant and LP and between the Registrant and Colleague A was important evidence. The exchanges were dated between 30 April 2022 and 03 May 2022, very shortly after the incident.

29. The earliest exchange was between the Registrant and LP, with the Registrant suggesting he would contact Colleague A. He asked LP for Colleague A’s number, saying “well nothing happened bad other than x2 kisses”.

30. The Registrant mentioned concern over a perceived risk of losing his partner having kissed Colleague A, and intending to apologise to Colleague A and asking him “please can we keep it to ourselves”. The Registrant sent a WhatsApp message to Colleague A to that effect on 30 April 2022.

31. Colleague A did not immediately reply. On 02 May 2022, at 11:40 Colleague A messaged: “I’m not gonna tell people at work, but I think what you did on Friday in hindsight was massively inappropriate. I didn’t mind fooling around or whatever in the toilet but afterwards what you were asking/proposing me to do for you in exchange for money was really not on and has made me feel uncomfortable.”

32. The Registrant responded at 15:11: “[Colleague A] sorry I just saw this. First of all I genuinely do not remember this. That’s not me disputing or arguing with u about it. If I in any way made u uncomfortable I can only genuinely apologise. I really did not mean it to be the way.”

33. The Panel noted that Colleague A had made reference to “fooling around”, which could mean kissing or something more. However, there had also been reference in the WhatsApp to something being done in exchange for money. The Registrant’s WhatsApp response to Colleague A did not take issue with the ‘in exchange for money’ allegation. The Registrant, in oral evidence, explained this as not wanting to aggravate the situation.

34. It was apparent in the WhatsApp texts with LP that she had noted the reference to money. It had been her evidence to the Panel that she had raised this issue with the Registrant in their later lunch meeting. LP said that the Registrant had told her he would not have made an offer of money and did not think that this was what Colleague A meant in his message.

35. The Panel took into account that it was AF’s oral evidence that Colleague A had told her, on 03 May 2022 (corrected from 02 May in her witness statement), that the Registrant had said, “he would pay [Colleague A] to carry out sexual acts”. In oral evidence, AF stated that Colleague A had also complained of ‘sexual activity’ in the toilet, although this was omitted from her written statement.

36. The Panel took into account that Colleague A’s evidence was that he had consented to an initial kiss. He said that in the alleged physical encounter he had felt “dirty” and like he “had no control” and “like he was disassociating”. He said he had felt conflicted afterwards about the events.

37. The Panel took into account the evidence given by AF that Colleague A had reacted visibly to something the Registrant said to him later, on 28 July 2022, in the Yes Bar. She stated that Colleague A had said the Registrant suggested ‘picking up’ from before, albeit there was some conflict in the evidence as to whether she had heard this or Colleague A had told her the words said.

38. The Panel also took into account the handwritten notes recorded by LP dated 06 February 2023, following her supervision of Colleague A. LP was clear in her note and her evidence that Colleague A had been resistant to working in the team under the Registrant. Colleague A had not spontaneously referred to events but had told LP on questioning about the events being more than “just a drunken kiss” and mentioned “all the vulgar things that happened + were said after”.

39. The Panel also had LP’s handwritten note of a meeting with MR, the Therapy Service Manager, at which Colleague A had made allegations that the Registrant had offered to “pay you to be my work slave” and other comments, and had asked Colleague A to “wank him off” and “had his penis out jerking himself off with his own hand”. LP reported that Colleague A later gave further details to herself alone, in which Colleague A mentioned that he had touched the Registrant’s penis and that the Registrant had been groping Colleague A. The Panel noted that the comments made to MR and LP differed in the exact detail from the allegations.

40. The Panel had been provided with copies of Colleague A’s statement to the Trust investigation and his interview by AW and noted that his complaint as to the actions by the Registrant had been consistently maintained.

41. The Panel took into account the Registrant’s evidence that he denied anything other than two consensual kisses had occurred in the toilet. It also took into account that it had evidence the Registrant was of ‘good character’ and it had received legal advice that this had relevance to the Registrant’s credibility as a witness and also his propensity to act as alleged.

42. The Registrant had consistently denied the Allegation, the full detail of which had only been put to him in the disciplinary investigation. The Panel bore in mind that, although he had provided an account, the Registrant bore no burden of disproving the Allegation.

43. The Panel bore in mind also, however, that previous good character was not a defence in itself but a factor to be weighed in the balance. The Panel weighed the Registrant’s good character with the evidence that he had been drunk at the time of the events, which might have affected his recollection and behaviour.

44. The Panel considered that there was clear evidence of the Registrant expressing attraction towards Colleague A on 29 April 2022. LP gave evidence that the Registrant had said to her about Colleague A on 29 April 2022, “he is so sexy”, “he is so fit”, “the things I would do to him”. This was consistent with Colleague A’s evidence that the Registrant had made similar comments. LP stated that the comments had been frequently made by the Registrant on 29 April 2022. The Registrant had been equivocal in his evidence about comments he would make, agreeing that he would discuss men’s appearance but not make sexual comments, but also saying that he would be very open in discussion with LP.

45. The Panel considered that LP was a fair and balanced witness who gave credible evidence. Although she had been Colleague A’s supervisor for a period, it was clear that she had been a close friend of the Registrant for a significant period.

46. LP had said, when querying with the Registrant at their lunch meeting whether the Registrant had offered money for sexual favours, that the Registrant had said he “could not remember”, although also “I wouldn’t have done that. I don’t think that’s what it is”. LP’s evidence was to the effect that the Registrant was telling her he did not recall what had occurred. The Registrant’s evidence to the Panel was that he had very specific recollection (he described as “poignant”), but the Panel considered that this conflicted with LP’s evidence.

47. The Panel took into account that previous good character also has relevance as to whether the Registrant would act as alleged. However, it noted the evidence from LP of the Registrant’s expressed attraction for Colleague A and the undoubted evidence that they had been in the toilet cubicle together.

48. The Panel noted that, when the Registrant had met with Colleague A on 03 May 2022, he had not taken the opportunity to directly raise with Colleague A the suggestion in the WhatsApp messages regarding offering payment for sexual services. The Registrant explained this as not wanting to aggravate the situation, but the Panel found this surprising and not credible as a reason.

49. The Registrant had said he was concerned initially for his partner not to find out. However, his own evidence was that he had told his partner about the kissing on the afternoon of 30 April 2022. The Registrant later in his oral evidence explained his desire to suppress discussion as not wanting to embarrass his partner by the incident becoming workplace gossip.

50. The Panel took into account that no evidence had been provided to corroborate Colleague A’s evidence that they had walked together towards the stairs leading up to the toilets. However, it considered that in the circumstances of the presence of groups of persons drinking in The Social on a night out, the lack of supporting evidence on this point did not significantly undermine Colleague A’s account.

51. The Panel considered that there was evidence that Colleague A had been troubled by what had occurred in the cubicle on 29 April 2022. His response on 30 April 2022 had made early reference to “fooling around” and also to the ‘in exchange for money’ offer. The Panel noted that Colleague A had made some report on 03 May 2022 to AF. He had reacted to the Registrant’s comment on 28 July 2022 and had given further explanation on 06 February and 09 February 2023.

52. Having considered the available documents, in particular the WhatsApp messages, and having heard Colleague A give evidence, the Panel found his oral evidence credible. Bearing in mind the judgement in Byrne, the Panel did not consider that any confusion or inconsistency to which it had been directed by Ms Renou undermined Colleague A’s evidence materially.

53. The Panel did not consider that a delay in disclosure of the full details of the events undermined Colleague A’s account. It took into account that Colleague A said he had been surprised by what had occurred, had “frozen”, and had been troubled by his own reactions afterwards, which appeared consistent with his version of the events. The Panel considered it reasonable that Colleague A would take into account the difference in seniority between himself and the Registrant when deciding whether to make a disclosure.

54. The Panel noted that there was some difference in detail of the accounts provided over the touching of the Registrant’s penis and precisely when it was reported to others. However, the Panel balanced this with accepting the sensitive nature of the disclosure. It accepted that the difference in language in LP’s statement between her note and the witness statement (where the latter referred to “masturbating”) might have arisen in the drafting of the statement.

55. The Panel accepted Colleague A’s evidence as to the events in the toilet cubicle on 29 April 2022. It followed that the Panel rejected the Registrant’s account. The Panel considered that the Registrant’s account that only two consensual kisses occurred did not explain or sit consistently with Colleague A’s reaction afterward and, in particular, the WhatsApp exchanges.

56. The Panel found that the Registrant had taken Colleague A’s hand and placed it on the Registrant’s penis, as alleged in Particular 1(a). The Panel next considered whether these matters had occurred without Colleague A’s consent, which the HCPC also had to prove.

57. The Panel was assisted by a dictionary definition of consent as “an agreement or concurrence” (Chambers’ Dictionary) and also the Sexual Offences Act 2003, s74, as “For the purposes of this part, a person consents if he or she agrees by choice and has the freedom and capacity to make that choice”.

58. The Panel accepted Colleague A’s evidence that the Registrant had taken Colleague A’s hand and placed it on the Registrant’s penis. The Panel accepted Colleague A’s evidence that he had frozen and become passive at this stage. The Panel noted that there had been no words or other indication of consent and was satisfied that the Registrant had moved Colleague A’s hand onto his penis.

59. The Panel concluded that Colleague A had given no express consent, nor could any indication that he was consenting be reasonably inferred from his remaining passive. It did not consider that the Registrant could reasonably have taken anything done by Colleague A to have indicated his consent. The Panel was satisfied that the Registrant’s acts had been done without Colleague A’s consent.

60. The Panel considered whether these acts found proved also satisfied the stem of Particular 1, i.e. whether the Registrant had acted in a ‘sexual manner’ towards Colleague A.

61. The Panel accepted the legal advice, based on Haris, that it may consider acts were obviously sexual or be led to draw that inference from all the circumstances. It considered that the actions set out in Particular 1(a) were obviously sexual. It found that the Registrant had acted in a sexual manner towards Colleague A.

62. The Panel found Particular 1(a) proved.

Particular 1(b) – Proved

b. You touched Colleague A’s penis over their trousers without their consent;

63. The Panel, having accepted Colleague A’s evidence and account as set out above, also accepted that the Registrant had touched Colleague A’s penis over his trousers.

64. The Panel took into account that Colleague A had frozen and been passive. The Panel noted that there had been no words or other indication of consent and the Registrant’s placing of his hand onto Colleague A’s penis over his trousers had been entirely the Registrant’s deliberate action. The Panel was satisfied that this had been done without Colleague A’s consent.

65. As in the case of Particular 1(a), the Panel considered that the touching was obviously sexual, and the Registrant had acted towards Colleague A in a sexual manner.

66. The Panel found Particular 1(b) proved.

Particular 1(c) – Not Proved

c. You prevented Colleague A from leaving the toilet cubicle; and/or

67. The Panel had accepted Colleague A’s account of what had occurred in the toilet cubicle on 29 April 2022, which had led it to find Particulars 1(a) and 1(b) proved. In accepting Colleague A’s account, the Panel also accepted that Colleague A entered the cubicle voluntarily and behind the Registrant.

68. The Panel found that, although the door was locked from the inside, it did not have evidence on which it could be satisfied how the door had become locked or by whom.

69. Colleague A’s evidence was that after the initial kiss, he had turned to leave the cubicle but the Registrant had turned him back. He described this in oral evidence as “not forceful but guiding me back facing him”. Colleague A described himself as becoming passive after this point. He did not describe any further attempt by himself to leave the cubicle until, he said, both left together.

70. Having considered the evidence, the Panel was not satisfied that the Registrant had prevented Colleague A from leaving the cubicle. He had done no more than turn Colleague A back to face him, following which the Registrant had acted as found in respect of Particulars 1(a) and 1(b). The Panel was not satisfied that the Registrant had prevented Colleague A leaving the toilet cubicle.

71. The Panel found Particular 1(c) not proved.

Particular 1(d) – Proved

d. You said to Colleague A:

i. “You are actually really fit” or words to that effect; and/or

ii. “I never noticed how hot you are before” or words to that effect; and/or

iii. “I’ve had my eyes on you since you first started” or words to that effect; and/or

iv. “I will give you money to rim me and for me to rim you, and for you to suck me off and vice versa” or words to that effect; and/or

v. “I want you to be my sex slave outside of work” or words to that effect.

72. Colleague A’s evidence was that the words “you are actually really fit” and “I never noticed how hot you are before” or words to that effect had been said to him by the Registrant while they were in the bar area at The Social.

73. The Panel considered that Colleague A’s evidence was supported by the evidence of LP, who said that at the beginning of the night the Registrant made comments to her about Colleague A, including “he is so sexy” and “he is so fit”. LP confirmed in her oral evidence that the comments she had heard were made three to four times during the evening. She said that the Registrant appeared to be in a drunken state at the time. The Panel noted that under cross-examination, Colleague A was consistently firm in his evidence that the words were said.

74. Colleague A’s account was that the words “I’ve had eyes on you since you first started” had been said in the cubicle by the Registrant. The Panel considered that this was consistent with the Registrant being attracted to Colleague A. It was also consistent with the Panel’s findings that the Registrant had done the acts alleged in Particulars 1(a) and 1(b) and had been initiating the actions. It was consistent with the Panel’s rejection of the Registrant’s account that only kissing had occurred, encouraged by comments made by Colleague A.

75. The Panel had accepted Colleague A’s account of the events which took place in the cubicle. It considered that the words which it was alleged the Registrant said to Colleague A were consistent with him being attracted to Colleague A and this was supported by LP’s evidence. It was also consistent with the Registrant having made approaches to Colleague A and inviting Colleague A to go to the toilet with him. The Panel considered that it was also consistent with evidence that the Registrant had been drunk at the time, which was likely to have lowered his inhibitions.

76. The Registrant described himself as drunk on the evening, but not so drunk that he would not remember things. He said that bits of the evening stood out but parts were absolutely “poignant”. He agreed that it was common in the team to discuss men’s appearance and attractiveness, but he denied having said the words alleged by Colleague A, which were of a sexual nature, as he did not discuss things like that with LP. However, the Panel considered that the Registrant’s evidence of his good recollection conflicted with LP’s evidence that the Registrant tended to forget things when he was drunk and had been drunk on that evening.

77. The Panel took into account that, in his interview in the Trust investigation, Colleague A stated that the words “I’ve had eyes on you since you first started” were said at a later stage than in the toilet cubicle. However, in his written statement to the Trust and in his evidence to the Panel, he said that the Registrant said them in the cubicle. The issue for the Panel was whether the Registrant had said those words. The Panel took into account that Colleague A had frequently stated that the words were said and it did not find that this inconsistency materially undermined Colleague A’s account.

78. The Panel considered Colleague A to be a credible witness and it accepted his account. The Panel found that the Registrant had spoken the words in sub-particulars 1(d)(i), 1(d)(ii), and 1(d)(iii) to Colleague A.

79. The Panel also found that these words amounted to the Registrant acting in a ‘sexual manner’ towards Colleague A. In the case of sub-particulars 1(d)(i) and 1(d)(ii), they were said as a lead up to the invitation to the toilet cubicle and, in the case of sub-particular 1(d)(iii), during a sexual encounter.

80. In regard to the words in sub-particulars 1(d)(iv) and 1(d)(v), the Panel took into account the WhatsApp exchanges. In particular, the message from Colleague A on 30 April 2022 at 08:57 had made reference to an offer of exchange of money for Colleague A to do something for the Registrant.

81. The Registrant denied having made these statements. He stated that this was not his character or interest and he would never pay for sex, as this was unacceptable.

82. The Panel took into account, however, that Colleague A had sent the WhatsApp message the next day referring to the offer. He had made a disclosure to LP on 06 February 2023 and to MR and LP on 09 February 2023. LP gave evidence as to the apparent effect on Colleague A. The Panel noted that LP’s evidence was that, when the Registrant had discussed the WhatsApp texts with her, in her view the Registrant had been uncertain whether he recalled what had occurred on 29 April 2022.

83. The Panel noted that, in his reply to Colleague A, the Registrant did not seek to directly challenge the serious allegations in relation to the offer. He did not raise it directly when meeting with Colleague A on 03 May 2022. It took into account the Registrant’s explanation that he had not wanted to aggravate matters and had given Colleague A a chance to raise any matters. However, it noted that a very serious allegation had gone unchallenged.

84. The Panel took into account the Registrant’s good character in relation to his denial of the words and his propensity to have said such words. However, it balanced this with the evidence that the Registrant had been drunk on 29 April 2022 and that it had found the Registrant to have acted physically as described by Colleague A. The Panel considered that it was consistent with the overall findings that the Registrant had been keen not to challenge the allegations and, as Colleague A had stated in evidence, appeared keen to “sweep it under the carpet”.

85. Colleague A maintained his account of the words said when cross-examined. The Panel found Colleague A to be credible in his account. The Panel concluded that on the balance of probabilities, the Registrant had said the words alleged.

86. The Panel considered that the words said in sub-particulars 1(d)(iv) and 1(d)(v) were obviously sexual, and the Registrant had acted towards Colleague A in a sexual manner.

87. The Panel found Particular 1(d) proved in respect of sub-particulars 1(d)(i) to 1(d)(v) inclusive.

Particular 2 – Proved

2. On 30 April 2022 you asked Colleague A to keep the incident on 29 April 2022 to themselves.

88. It was submitted on behalf of the Registrant that when he contacted Colleague A on 30 April 2022, he was only asking Colleague A to keep their kisses to themselves. It was submitted that “the incident” referred to the conduct alleged in Particular 1, which the Registrant had denied took place.

89. The Panel had found proved as fact the allegations set out in Particulars 1(a), 1(b), and 1(d)(i) to (v) inclusive. It considered this set of facts as the ‘incident’ on 29 April 2022, for the purposes of Particular 2.

90. The Panel had been provided with the WhatsApp exchange between the Registrant and Colleague A. In the exchange timed at 08:57 on 30 April 2022, the Registrant had stated: “Hi pal how are u? Hope u had a good night. Just wanted to apologise for last night, please can we keep it to ourselves?”

91. The Panel had clear evidence from this WhatsApp of a request being made by the Registrant to Colleague A. It had found the facts proved as in Particulars 1(a), 1(b), and 1(d)(i) to (v) inclusive. The Panel also concluded that the Registrant had been referring to those matters when he made the request and to more than just the kissing. In the view of the Panel, the Registrant wanted to keep all those matters from his partner and his work colleagues.

92. The Panel found Particular 2 proved.

Particular 3 – Proved

3. On 28 July 2022, you said to Colleague A “shall we pick up where we left off” or words to that effect

93. Colleague A set out in his witness statement that the Registrant had stated to him “shall we pick up where we left off” in the Yes Bar on 28 July 2022. Colleague A stated in oral evidence that he felt at the time this was a clear reference to the events of 29 April 2022.

94. The Registrant admitted being in the Yes Bar on 28 July 2022 with others present, including Colleague A and AF. He admitted speaking to Colleague A, but said he only exchanged pleasantries. He denied the words alleged, and also that Colleague A had responded “No. F*** Off”. The Registrant had no reason to offer as to why Colleague A might look distressed following their verbal exchange.

95. The Panel took into account that AF gave evidence she had witnessed Colleague A “visibly uncomfortable” immediately after the Registrant leaned over and said something to Colleague A when seated at a table in the bar. She also gave evidence that Colleague A had told her later that same evening at the bar that the Registrant said to Colleague A “should we pick up where we left off”.

96. The Panel noted the inconsistency in Colleague A’s oral evidence that the Registrant had spoken loud enough for AF to hear. In his statement to the Trust investigation, Colleague A had put that AF had heard the Registrant. In oral evidence Colleague A stated that AF had pulled him aside and asked if the Registrant had said “what she thought”. However, in his witness statement, Colleague A had stated “AF asked me what the Registrant said to me”.

97. The Panel did not consider this inconsistency significantly undermined the evidence supporting the Allegation. The Panel considered Colleague A to be a credible witness. There was also consistent evidence from AF and Colleague A of Colleague A being upset by words said by the Registrant and discussing the comments at the bar. Although there was inconsistency as to whether AF had heard the actual words, it was clear that she had witnessed a concerning exchange and had queried this with Colleague A.

98. The Panel was satisfied that the Registrant said to Colleague A words to the effect of “shall we pick up where we left off” on 28 July 2022.

99. The Panel found Particular 3 proved.

Particular 4 – Proved

4. Your conduct in relation to particulars 1 and 3 was sexually motivated.

100. The Panel next considered whether, adopting the definition of ‘sexual motivation’ in Basson, the facts found proved in Particulars 1 and 3 had been carried out either (a) for sexual gratification or (b) in pursuit of a future sexual relationship.

101. The Panel concluded that the acts in Particulars 1(a) and 1(b), by their nature, had clearly been done for the Registrant’s sexual gratification and were therefore sexually motivated. In relation to the words in sub-particulars 1(d)(i), 1(d)(ii) and 1(d)(iii), the Panel concluded that the Registrant was in pursuit of a future sexual relationship with Colleague A, as was apparent from the events at the time. In the case of the words spoken in sub-particulars 1(d)(iv) and 1(d)(v), the Registrant had made a clear offer and invitation to engage in a future sexual relationship. The Panel concluded that each of these statements had been sexually motivated.

102. In respect of Particular 3, the Panel considered that the words to the effect of “shall we pick up where we left off” had been a clear invitation to re-engage in the kind of acts set out in Particulars 1(a) and 1(b). The Panel was satisfied that the Registrant had thereby been in pursuit of a future sexual relationship and therefore the statement had been sexually motivated.

103. The Panel found Particular 4 proved in respect of Particulars 1 and 3.

The Resumed Hearing

104. On 9 April 2024, the Panel handed down its decision on the facts.

105. At the resumed hearing on 15 July 2024, the Panel proceeded to consider the question of statutory ground (misconduct) and if misconduct were established, then the issue of current impairment of fitness to practise.

Statutory Ground

106. On behalf of the Registrant Ms Renou informed the Panel that statutory misconduct was not contested.

107. Ms Mosley submitted that the facts so far as proved, established statutory misconduct. They constituted a serious departure from professional standards, in particular Standard 9.1 of the HCPC’s Standards of conduct, performance and ethics, which states, ‘You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.’ The Registrant’s conduct had, she submitted, brought the profession into disrepute.

108. The Panel has 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 professional conduct that fell short of what was proper in the circumstances and if the conduct was sufficiently serious: see Roylance v GMC [2000] 1 AC 311, Nandi v GMC [2004] EWHC 2317 (Admin) and R (Remedy UK Ltd.) v GMC [2010] EWHC 1245 (Admin) at [37]. The relevant principles were explained by Auld LJ in GMC v Meadow [2007] QB 462, where he stated, - ‘[200] …. As Lord Clyde might have encapsulated his discussion of the matter in Roylance .., it must be linked to the practice of medicine or conduct that otherwise brings the profession into disrepute, and it must be serious. As to seriousness, Collins J, in Nandi v General Medical Council [2004] EWHC (Admin), rightly emphasised, at paragraph 31 of his judgment, the need to give it proper weight, observing that in other contexts it has been referred to as 'conduct which would be regarded as deplorable by fellow practitioners'".

109. The facts proved consisted of grossly inappropriate, predatory behaviour and an abuse of the Registrant’s senior position in relation to Colleague A, a junior colleague. The conduct included touching Colleague A sexually without their consent, offering them money for sex, subsequently asking them to keep the incident to themselves in an attempt to cover up what had happened and then approaching Colleague A again for the same sexual purposes nearly three months later. [Redacted].

110. The conduct found proved constituted a failure to comply with Standard 9.1 and in this regard the Panel also refers to its conclusions in relation to the case of Beckwith v Solicitors Regulatory Authority [2020] EWHC 3231 (Admin) later in this determination. The Panel considered that the Registrant’s conduct crossed the line from private behaviour into conduct that did not justify public trust and confidence in the Registrant as a professional practitioner or in the profession, contrary to Standard 9.1. The Panel also considers that the Registrant breached Standard 6.2 which provides that, “you must not do anything, … , which could put the health or safety of a, … , colleague at unacceptable risk.” The Registrant has brought the profession into disrepute by his actions.

111. For all those reasons, the Registrant’s conduct amounted to professional misconduct that was deplorable, serious and constituted statutory misconduct. The Panel so concluded with respect to the facts found proved under particulars 1 (i.e. excluding sub-paragraph c)), 2, 3 and 4 of the Allegation.

Current impairment

112. Further documentary evidence was placed before the Panel on behalf of the Registrant. Those documents included a reflective statement dated 11 July 2024 signed by the Registrant, further testimonials and a summary of Continuing Professional Development undertaken by the Registrant between January 2023 and May 2024. Those documents were in addition to the testimonial evidence and other documents also relevant to this stage of the hearing that had been placed before the Panel on behalf of the Registrant at the first stage.

113. The Registrant gave oral evidence on the issue of current impairment and the Panel heard oral testimonial evidence on his behalf from Ms. RS, a Band 7 Occupational Therapist employed at the Hospital, whose written testimonial was in the further bundle.

114. The Registrant’s oral evidence included the following matters. He explained to the Panel that he had been suspended by the Trust between February 2023 and August 2023 when he had started work again within the Trust as a Band 7 Physiotherapist, redeployed to North Manchester General hospital (‘North Manchester General’) to the Critical Care team where he had worked until May 2024, when an interim suspension order had been imposed on his registration with the HCPC. He had been working at North Manchester General with eight members of staff, undertaking a leadership role albeit not as a team leader. In addition to his patient caseload, the Registrant had been supporting junior members of staff (from Bands 2, 3, 4, 5 and 6) through teaching both mandatory and additional, carrying out supervision sessions and supporting those junior colleagues in response to their requests for assistance concerning more complex and unpredictable patients.

115. When he was reinstated in his role at North Manchester General, he reflected on his relationships with colleagues and made and acted on a decision not to attend “work nights out” and not to drink with his colleagues socially. The Registrant had found other ways to bond with his colleagues and be an effective team member in order to build a positive workplace culture. He had stopped drinking alcohol completely in February 2024 and had drunk none since.

116. He accepted that his personal and professional life had been too intertwined in 2022 and this was not appropriate for a Band 7 member of staff. He said that alcohol had blurred his decision-making on 29 April 2022 and there was no way he would go into a cubicle with a colleague if he had not been drinking. In relation to that night out, the Registrant told the Panel, “I shouldn’t have been there.”

117. [Redacted]

118. The Registrant said that he had tried to think about matters from Colleague A’s perspective and could only imagine how difficult things had been for him. The Registrant told the Panel that he never set out to hurt anyone and “hopes that [Colleague A] is doing okay ..” and the Registrant said that he “can’t say how sorry [he is] that he has had to go through this process.” The Registrant also said he had reflected on the disparity in seniority between himself and Colleague A and knew that he should have been setting an example.

119. The Registrant said that apart from this one matter, there had been no formal or informal professional issues concerning him in his 14 years of practice. He said that he absolutely loved his job, which meant everything to him and he referred to the very positive feedback about his work that he had received. He told the Panel that he was truly sorry for what had happened and said that it would never happen again. The Registrant acknowledged that he appreciated the seriousness of the sexual misconduct allegations that had been found proved against him by the Panel.

120. Ms Mosley asked the Registrant what the impact of his conduct would be on the profession as a whole if a member of the public were told of the circumstances of this case. He said that they would be disappointed. However, he hoped that they would see that he had apologised and had taken positive steps to ensure that the events of 29 April 2022 “never ever happen again.”

121. In her evidence to the Panel, Ms RS attested to her time working with the Registrant at the Hospital from 2018, in the same team. She knew him well, both personally and professionally, and had been on many social nights out with the Registrant. She was aware of the Panel’s findings of fact in this case. She could not believe that he had done those things which she said were totally out of character and could only presume that this was “an isolated incident.”

122. In her submissions, Ms Mosley referred to the ‘personal component’ and ‘public component’ of fitness to practise impairment, as set out and explained in the HCPTS’s Practice Note, Fitness to Practise Impairment, November 2023. Ms Mosley put forward a number of considerations based on the facts and circumstances of this case. She submitted that the Registrant’s fitness to practise is currently impaired on the basis of both the personal component and the public component.

123. For the Registrant, Ms Renou referred to both components of impairment and to the considerations set out in that Practice Note. She submitted that the Registrant has demonstrated insight and there is no more than a low risk of repetition of the conduct found proved. She submitted that in all the circumstances, the wider public interest does not require a finding of impaired fitness to practise by reference to the public component. Ms Renou referred to Beckwith v Solicitors Regulatory Authority [2020] EWHC 3231 (Admin) at [54] to show that although misconduct can arise from a professional’s private life, it can only do so where the private life realistically touches on their professional practice. In order to find impairment, the behaviour must have a sufficient connection to the confidence in the profession of some kind. The connection has to be such that it would undermine confidence in the profession. She submitted that the Registrant’s fitness to practise is not currently impaired with respect to either the personal or public component.

124. In making its decisions on statutory ground and current impairment, the Panel has taken into account its findings of fact, the evidence so far as relevant at this stage, all the submissions made to it and has directed itself in accordance with further advice given by the Legal Assessor.

125. The Panel’s conclusions on the issue of current impairment are as follows. In considering whether or not the Registrant’s fitness to practise is currently impaired, the Panel first examined the ‘personal component’ of impairment as explained in the Practice Note, Fitness to Practise Impairment.

126. The key questions which need to be answered with respect to the personal component are the following: -

• are the acts or omissions which led to the allegation remediable?

• has the Registrant taken remedial action?

• are those acts or omissions likely to be repeated?

127. The type of behaviour that constituted the misconduct involved impulsive and predatory sexual behaviour by the Registrant [Redacted]. The Panel considers that this type of misconduct involves behavioural issues that by their nature are very difficult to remediate.

128. The Panel accepted Ms Renou’s submission that it would be wrong to equate the Registrant’s maintenance of his innocence with lack of insight. The Panel has also borne in mind on this point the guidance given by Morris J. in Sayer v General Osteopathic Council [2021] EWHC 370 (Admin) at [25] and by Mostyn J. in Towuaghantse v GMC [2021] EWHC 681 (Admin) at [61] - [74]. Ms Mosley did not suggest on behalf of the HCPC that the Registrant had lied or attempted to mislead the Panel in the evidence he gave at the fact-finding stage. The Panel accepted that the Registrant had not done so.

129. The Registrant has shown a degree of insight and taken some meaningful remedial action. The Panel took into account all the matters advanced on his behalf by Ms Renou and arising from the evidence before the Panel. Those matters included [Redacted] and his stepping back and reflecting on the inappropriateness of how he, as a senior practitioner, had interacted with work colleagues both generally, and on that night in particular.

130. [Redacted].

131. The positive steps taken by the Registrant [Redacted] the changes he has made to the manner in which he conducts relationships, both professional and social, with fellow colleagues in particular. Ms Renou also referred to the Registrant’s acceptance that the facts found proved amounted to misconduct and the Panel has taken that matter into account.

132. The Panel was particularly mindful of the apologies that the Registrant had expressed both to Colleague A and to the Panel and also the Registrant’s acknowledgement of the anguish caused to Colleague A. It also took into account the Continuing Professional Development he had undertaken, albeit noting that most of it had been mandatory. The Registrant provided a written list of the professional development that he had undertaken in 2023/2024. Out of 30 entries, the Registrant identified the Manchester Foundation Trust (MFT) safeguarding level 3 in February of 2024 and an MFT civility training session in March of 2024 as being relevant. The Panel considered that the professional development undertaken by the Registrant to have been very limited in the circumstances.

133. Therefore, the Panel concluded that the Registrant has taken some remedial action.

134. The Panel next asked itself whether or not the misconduct is likely to be repeated.

135. The Panel considered, as it has found, that the Registrant’s sexually motivated behaviour had not been based on a single night out and there had been further sexually motivated behaviour on his part towards Colleague A on 28 July 2022. This indicated to the Panel that the behavioural issues underlying the misconduct were more deep-seated than behaviour associated with a single night out.

136. Further, the Registrant’s attempt to resume his predatory sexual conduct on 28 July 2022 indicated no insight at all at that stage; quite the opposite. The Registrant’s communication with Colleague A on 30 April 2022 was in substance an attempt, as the Panel considers it to have been, to silence Colleague A, which was also indicative of a lack of insight on the part of the Registrant. Therefore, the Panel does not agree with Ms Renou’s submission that the events on the three occasions were in substance ‘a single incident’.

137. [Redacted]

138. [Redacted]

139. In all the circumstances, the Panel does not consider that the remedial steps taken by the Registrant to address [Redacted], meaningful as they are, are sufficient to give the Panel the necessary assurance [Redacted]. [Redacted].

140. The Panel accepts that there were no further complaints of inappropriate conduct on the part of the Registrant in the period of just over two years before an interim suspension order was placed on his registration. It has also borne in mind all the testimonial ‘character’ evidence in his favour and his otherwise clear practice record over a period of the Registrant’s 14 years of professional practice.

141. The Panel has kept in mind the assurances given by the Registrant in his oral evidence to the Panel that his inappropriate behaviour would not happen again as well as such insight and remediation as the Registrant has shown.

142. However, the Panel has concluded that the Registrant’s insight is not adequately developed, and the steps taken by the Registrant not been sufficient to remediate conduct that involves serious behavioural issues that are so difficult to remediate.

143. In so concluding the Panel did not consider the earlier consensual sexual encounter between the Registrant and another work colleague to have been of any assistance in its deliberations.

144. For the reasons it has given, the Panel has rejected Ms Renou’s submission that the risk of repetition is low. The Panel has concluded that in all the circumstances a repetition of the misconduct is likely.

145. The Panel was also satisfied that in view of the effect of the Registrant’s misconduct on Colleague A in particular, there would be a real risk of harm to professional colleagues were the misconduct to be repeated. Furthermore, the effect of the misconduct on Colleague A was not only to contribute to [Redacted] but also deterred him from undertaking his rotation into the Registrant’s team. In those circumstances, any repetition of the misconduct has the potential indirectly to compromise service delivery to patients.

146. Therefore, the Panel has decided that the Registrant’s fitness to practise is impaired by reference to the personal component.

147. The Panel next considered the public component, and in particular the need to maintain public confidence in the profession and to declare and uphold standards of conduct among members of the profession.

148. The key question to be answered here is, given the nature of the allegation and the facts found proved, would public confidence in the profession be undermined if there were to be no finding of impairment?

149. The Panel bore in mind Ms Renou’s submissions in relation to Beckwith at [54] and also considered to similar effect Gleeson v Social Work England [2024] EWHC 3 (Admin) at [103] - [105]. Paragraph [54] of the court’s judgment in Beckwith stated, -

‘…. But Principle 2 or Principle 6 may reach into private life only when conduct that is part of a person's private life realistically touches on her practise of the profession (Principle 2) or the standing of the profession (Principle 6). Any such conduct must be qualitatively relevant. … In this way, the required fair balance is properly struck between the right to respect to private life and the public interest in the regulation of the solicitor's profession. ...’

At paragraph [104] of the judgment in Gleeson, there was also reference to Beckwith at [43] of the judgment of the court, which stated, -

‘There is a qualitative distinction between conduct that does or may tend to undermine public trust in the solicitor's profession and conduct that would be generally regarded as wrong, inappropriate or even for the person concerned, disgraceful. Whether that line between personal opprobrium on the one hand and harm to the standing of the person as a provider of legal services or harm to the profession per se on the other hand has been crossed, will be a matter of assessment for the Tribunal from case to case.’

150. The events of 29 April 2022 and 28 July 2022 took place at social gatherings of several professional colleagues. Those that took place on 29 April 2022 occurred at a bar located on the Trust’s property. The Panel refers to its earlier conclusions that the misconduct included grossly inappropriate, predatory behaviour and an abuse of the Registrant’s senior position in relation to Colleague A, a junior colleague. The misconduct included sexually touching them without consent, offering that person money for sex, subsequently asking them to keep the incident to themselves to cover up what had happened and then approaching them nearly three months later for the same sexual purposes. In those circumstances, the Panel considered that the Registrant’s misconduct touched on professional practice and had crossed the line from conduct in his private life alone so as to harm both his standing as a member of the profession and harm public trust in the profession as a whole.

151. The Panel accepts that in order to decide whether public confidence in the profession requires a finding of impairment, it is necessary to bear in mind all the circumstances as they appear today before the Panel. Those include the Registrant’s otherwise unblemished fitness to practise record over many years and all the steps he has taken to ensure that the misconduct is never repeated, as well as all the other matters in his favour.

152. However, the relevant circumstances also include the nature and seriousness of the misconduct, as well as the Panel’s conclusions that the Registrant’s conduct has brought the profession into disrepute and that a repetition of his misconduct is likely, with the real risk of harm to colleagues if it did reoccur and the resulting potential to compromise service delivery, to the detriment of patients. A repetition of the misconduct would bring the profession into yet further disrepute.

153. In view of the nature of the allegation and the facts found proved and all the circumstances of the case, the Panel has concluded that public confidence in the profession would be undermined if no finding of impairment were made. A finding of impairment is required to maintain public confidence in the profession and to declare and uphold proper professional standards of conduct.

154. Accordingly, the Panel has decided that the Registrant’s fitness to practise is also impaired by reference to the public component.

155. Therefore, the Panel has decided that the Registrant’s fitness to practise is currently impaired.

Decision on Sanction

156. The Panel received written submissions from the advocates on the issue of sanction and heard further, oral, submissions from Ms Renou. Following these submissions, and after retiring to deliberate, the Panel was provided with a further character reference from Ms Allison Keegan, an Advanced Critical Care Practitioner at North Manchester General. Apart from this testimonial, the Panel had received no further evidence at this stage.

157. Ms Mosley confirmed that there were no other fitness to practise findings against the Registrant. She referred to the HCPC’s Sanctions Policy, March 2019 (‘the Sanctions Policy’). Ms Mosley’s submissions included the following. She referred to the purposes of sanctions and also invited the Panel to consider each available sanction in ascending order of seriousness. She identified aspects of the case that aggravated and mitigated the misconduct.

158. Ms Mosley submitted that whilst the Sanctions Policy specifically addresses situations involving the abuse of professional position between a registrant and service user, this would apply equally between a registrant and a colleague, especially a junior colleague. She submitted that the relationship between colleagues is based on trust, confidence and professionalism. Whilst registrants should endeavour to have positive relationships with colleagues, it is essential that they remain aware of the imbalance of power between different professions and take care not to abuse their position of power.

159. Ms Mosley referred to paragraphs 76 and 77 of the Sanctions Policy, to the effect that sexual misconduct is a very serious matter which has a significant impact on the public and public confidence in the profession. Due to the gravity of these types of cases, where a panel finds a registrant impaired because of sexual misconduct, it is likely to impose a more serious sanction. Where it deviates from this approach, it should provide clear reasoning. Ms Mosley did not advocate any particular sanction. She submitted that the primary function of a sanction is to protect the public and the Panel ought to impose a just and proportionate sanction in accordance with the Policy.

160. Ms Renou’s submissions included the following. She too drew the Panel’s attention to the purposes of sanctions and to what she submitted was the ‘overriding consideration of proportionality.’ She drew attention to parts of the Sanctions Policy that addressed serious cases, and paragraph 77 in particular. Ms Renou referred to passages from the judgment in Arunachalam v GMC [2018] EWHC 758 (Admin); at [59] where Kerr J. stated, “Where the victim is a colleague rather than a patient, severe sanctions in such cases are generally necessary, in addition, to protect and uphold the dignity of workers in the profession and to protect their freedom to work without being molested. The victims are usually women.” Ms Renou also referred to [79] where Kerr J went on to observe that, “In our system of justice, the law jealously guards the rights of women workers to protection against predatory, ignorant men who feel entitled to prey on female colleagues in the way that this [Registrant] did; but our system is not so inflexible that every transgression of this kind must be met with erasure. This appellant’s conduct was not at the very bottom of the scale; it was very serious, but it was not anywhere near the top of that scale.” Ms Renou pointed out that in Arunachalam Kerr J. substituted a sanction of erasure with one of suspension.

161. Ms Renou submitted that the mitigating features are significant and that the Panel should place weight on them so as to reduce the severity of the sanction. She reminded the Panel of the Registrant’s good character and the fact that there had been no complaints since the allegations had first come to light. Ms Renou set out in detail under the headings of ‘insight’, ‘apology’ and ‘remediation’ the matters that weighed in the Registrant’s favour. She also identified one further item of CPD that had been referred to by the Registrant in his written evidence, namely ‘October 2023 Presented IST to team on Behaviour Traits ...’.

162. In her oral submissions, Ms Renou emphasised how the Registrant had reframed his relationship with alcohol. Although the period of abstinence from alcohol had started as recently as five months ago, it was important to bear in mind that the abstinence was part of the reflection and overall body of work undertaken by the Registrant from when the allegations first surfaced, with the assistance given to him by his family in particular. Ms Renou spoke of the Registrant’s reflections on what she referred to as “team culture” and the work he had done to reset his relationship with colleagues.

163. Ms Renou also stressed the apologies that the Registrant had made to Colleague A, referring to the Registrant’s written reflections in particular. These showed, she submitted, that the Registrant understood the stress that the process must have caused to Colleague A. The apologies were genuine, she submitted. The Registrant had reflected on his text to Colleague A of 30 April 2022, in which he had asked Colleague A to keep the incident to themselves. He had also reflected on his meeting with Colleague A soon after, which had been at the Registrant’s request. The Registrant had recognised that this conduct was self - serving and that it had impacted on Colleague A. He had apologised for that too.

164. It was submitted by Ms Renou that the risk of repetition is being managed and mitigated by the steps taken by the Registrant to address his alcohol use and, she emphasised, by how he has engaged with his colleagues. She stated that the Registrant’s clinical ability and competence had never been questioned by the HCPC and pointed to the evidence that he is an exemplary, hardworking member of staff who places patients first. In his role at the Hospital he had been a team leader, completed inductions, supervised staff members and provided clinical advice to junior colleagues. The Registrant was the recipient of several nominations for ‘star’ awards due to dedication and high standards of patient care.

165. Since returning to his Band 7 role at North Manchester General, the Registrant had integrated well into his new team to become a respected and trustworthy member of staff. Ms RS spoke of him as a dedicated Physiotherapist. Ms Renou referred to the testimonial evidence of Rachel England, a Therapy Services Manager at North Manchester General who has known the Registrant professionally since August 2023 and became his Service Manager in January 2024. Ms Renou referred to Ms England’s commendations of the Registrant’s professionalism, his courtesy and other matters in his favour.

166. Ms Renou submitted that a sanction can be imposed that reflects the serious nature of the case, striking the right balance of proportionality and such a sanction is less than a striking off order. The Registrant is acutely aware of the seriousness of the facts that the Panel has found proved. He has spoken passionately in evidence about his commitment to his patients and what his job means to him personally. He has committed his life to working in the NHS and the profession since qualifying in 2010. The Panel was also invited to consider the impact on the public of removing such a high calibre Physiotherapist from the register. In this case, the Registrant poses no risk to patients or the public generally, Ms Renou submitted.

167. Ms Renou explained how a period of suspension would adequately address any risk of repetition of the misconduct. In all the circumstances, public confidence in the profession could be met by a sanction that falls below striking the Registrant off the register, namely by a period of suspension. That sanction struck the necessary balance between all the relevant considerations and was the only proportionate sanction.

168. The Panel has taken into account its findings in the case to this stage, all the evidence so far as relevant to the issue of sanction and has directed itself in accordance with the advice of the Legal Assessor on the issue of sanction.

169. The Sanctions Policy identifies the purposes of sanctions as follows: -

‘10. The primary function of any sanction is to protect the public. The considerations in this regard include:

• any risks the registrant might pose to those who use or need their services;

• the deterrent effect on other registrants;

• public confidence in the profession concerned; and

• public confidence in the regulatory process.

11. Sanctions are not intended to punish registrants, but instead ensure the public is protected. Inevitably, a sanction may be punitive in effect, but should not be imposed simply for that purpose.’

170. Another aspect of the public interest is where a registrant can provide a useful public service to society as a competent practitioner: Bijl v GMC [2001] UKPC 42.

171. The requirements of proportionality must be met by a panel in its decision-making. The relevant parts of the Sanctions Policy include the following guidance, -

‘20. In making proportionate decisions on sanction, panels need to strike a balance between the competing interests of the registrant and the HCPC’s overriding objective to protect the public (see paragraph 10). Therefore, decisions should deal with the concerns raised, but be fair, just and reasonable.

21. Sanctions are not intended to be punitive. Panels should only take the minimum action necessary to ensure the public is protected. …

23. In deciding whether a substantive sanction is proportionate, panels may wish to take into account any interim order and its effect on the registrant.

24. Panels should however be mindful that the criteria panels use when considering whether to impose a substantive sanction on a registrant’s practice is entirely different from the test for considering whether to impose an interim order, and that a panel making an interim order makes no findings of fact.’

172. In assessing the seriousness of the misconduct for the purposes of the issue of sanction, the Panel is called on to take into account and appropriately weigh the mitigating and aggravating features of the misconduct: paragraphs 25-28, 43 and 44 of the Sanctions Policy.

173. The Sanctions Policy makes clear that matters of mitigation are likely to be of considerably less significance in regulatory proceedings, where the overarching concern is the protection of the public, than to a court imposing retributive justice: paragraph 25. The Legal Assessor also advised the Panel to similar effect, referring to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512, 518 and 519.

174. The Panel considered the following to be the mitigating factors in the case: -

• The Registrant has no other regulatory findings against him and is otherwise of good character.

• There has been no repetition of the misconduct and there have been no further complaints against the Registrant;

• The Registrant has shown a degree of insight into the misconduct.

• The Registrant has shown remorse towards Colleague A, which the Panel accepts is genuine.

• The Registrant has undertaken some remedial action.

175. The Panel addresses those factors in more detail in the later passages of this decision. However, at this stage, the Panel has also concluded that Ms Renou’s submissions did not persuade it that there would be no risk of repetition of the misconduct, or that such risk would be lower than the Panel assessed it to be at the impairment stage of this hearing.

176. The Panel considered the matters set out below as factors that aggravated the Registrant’s sexual misconduct, namely: -.

177. the misconduct constituted an abuse of power on the part of the Registrant, who occupied a senior position, towards a junior colleague;

• the misconduct was predatory in nature;

• the Registrant attempted to cover up his misconduct;

• despite being aware that Colleague A considered his behaviour to be inappropriate and that it had made Colleague A feel uncomfortable, the Registrant attempted to repeat his actions three months later. (see further below)

178. The Panel proceeded to consider the potential sanctions in ascending order of seriousness.

179. The misconduct was far too serious to justify ‘no action’ on the Registrant’s registration. Some action was also required to address the risk of a repetition of the misconduct.

180. Mediation would not address the grounds of the impairment. A caution would neither reflect the seriousness of the misconduct, nor the risk of its repetition. The misconduct is not ‘isolated, limited or relatively minor in nature’, nor is there a low risk of repetition: see paragraph 102 of the Sanctions Policy.

181. Conditions of Practice are less likely to be appropriate in more serious cases, such as sexual misconduct and abuse of professional position: paragraph 108 of the Sanctions Policy. There may be circumstances in which a panel considers it appropriate to impose a conditions of practice order in more serious cases. However, it should only do so when it is satisfied that the registrant’s conduct was minor, out of character, capable of remediation and unlikely to be repeated: paragraph 109. Moreover, any conditions would have to be workable and in view of the nature of the misconduct, conditions would be unworkable.

182.The Panel refers to its findings on misconduct, current impairment and as to the seriousness of the misconduct as set out below. In the circumstances, conditions of practice would not sufficiently address the seriousness of the misconduct and the Panel does not have the confidence that conditions of practice, even if workable, could address the risk of repetition of the misconduct. Therefore, conditions of practice are not appropriate in this case.

183. The Panel next considered a period of suspension. The Sanctions Policy states the following with respect to suspension: -

‘121. 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; and

• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.’

184. In deciding whether or not a sanction of suspension (up to the maximum period of 12 months) would be a sufficient and proportionate response to the impairment, the Panel also considered whether the circumstances required a striking off order, or whether such an order would be disproportionate. The Panel bore in mind the relevant passages from the judgment in Arunachalam including those referred to by Ms Renou. In doing so, the Panel has given particular consideration to where the misconduct lies on the scale of seriousness, as well as the proper weight to be given to the mitigating factors and all other relevant matters.

185. The Panel took into account those parts of the Sanctions Policy concerned with striking off orders. It noted that such an order would be a long-term sanction. Article 33(2) of the Health Professions Order 2001 (as amended) provides that, unless new evidence comes to light, a person may not apply for restoration to the Register within five years of the date of a striking off order being made, and panels do not have the power to vary that restriction: paragraph 128. The Sanctions Policy states that: -

‘130. A striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving (this list is not exhaustive) –

• …

• abuse of professional position, including vulnerability (see paragraphs 67–75);

• sexual misconduct (see paragraphs 76–77);

• …

131. A striking off order 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. In particular where the registrant:

• lacks insight;

• continues to repeat the misconduct or, where a registrant has been suspended for two years continuously, fails to address a lack of competence; or

• is unwilling to resolve matters.’

186. In assessing the seriousness of misconduct, the Sanctions Policy states (paragraph 76) that sexual misconduct is a very serious matter which has a significant impact on the public and public confidence in the profession. It includes, but is not limited to, sexual harassment, sexual assault, and any other conduct of a sexual nature that is without consent, or has the effect of threatening or intimidating someone, including a professional colleague. In view of the gravity of these types of cases, where a panel finds a registrant’s fitness to practise impaired because of sexual misconduct, it is likely to impose a more serious sanction. Where it deviates from this approach, a panel should provide clear reasoning: paragraph 77.

187. The Panel accepts Ms Mosley’s submission that the considerations in relevant passages of the Sanctions Policy concerned with abuse of professional position are also capable of applying to conduct towards professional colleagues. Thus, where a registrant is found to have abused their professional status, this is highly likely to reduce the public’s trust in them and their profession. The greater the alleged abuse of trust, the more serious the panel should consider the concerns: paragraph 68. An abuse of professional position may include the pursuit of an inappropriate relationship: paragraph 69.

188. The Panel acknowledged that the misconduct took place during a previously unblemished career of some 12 years and there have been no complaints against the Registrant since.

189. The Registrant has recognised the seriousness of the Panel’s findings of fact. He recognised that his actions fell short of the standards expected of a registered professional and showed some understanding of the impact of this on the reputation of the profession. Generally, the Panel considers his insight to be developing. At this stage too, the Panel has not held to the Registrant’s disadvantage the fact that he contested the HCPC’s factual case and continues to believe in the truth of his recollection of events. He has recognised his issues with alcohol and taken serious steps to address them most obviously by choosing to abstain from alcohol and having done so for five months. That abstinence was the product of hard work and reflection on the Registrant’s part that he undertook once the allegations surfaced in early 2023, seeking help from his family and partner and his father in particular.

190. The Registrant has undertaken counselling to address his anxiety and the trauma that he referred to in evidence. The Registrant took further significant measures, resetting his professional relationships. He carried out some relevant CPD even though it was somewhat limited. He has apologised to Colleague A and shown genuine remorse.

191. The Panel also has in mind the evidence of the Registrant’s professional capabilities and the public interest in his ability to make a contribution as a very competent practitioner, both to patients and in guiding colleagues on professional matters as a senior practitioner. Ms Keegan described him as “a brilliant physiotherapist”. There is also no doubt that the Registrant is extremely keen to resume his career, to which he is dedicated.

192. A period of suspension would also allow the Registrant to embed further his insight and remedial action, and if suspended, the risk of repetition would be contained, while allowing the Registrant an opportunity to take further steps to remediate his misconduct. Furthermore, he has been subjected to a period of interim suspension, since May 2024.

193. In weighing the significance of the mitigating factors, it is also necessary to give a full consideration of the gravity of the misconduct.

194. At the relevant time the Registrant was employed as a Band 7 Physiotherapist. Colleague A was employed as a Band 3 Rehabilitation Assistant. Accordingly, there was an unequal balance of power between them. The Registrant was a longstanding and well-regarded member of the team, having worked at the Trust for seven years. By contrast, Colleague A was relatively new to the organisation, having joined two months earlier as a junior member of staff. The Registrant knew this. He had participated in Colleague A’s induction within the Trust. Colleague A was 22 years old and the Registrant was 33.

195. The Registrant’s sexual conduct toward Colleague A on the night of 29 April 2022 was both predatory and an abuse of his professional position. The Registrant abused that professional status to pursue a future sexual relationship with his junior colleague, telling him that (or words to the effect that) he had had his eyes on him “since [he] first started,” that he was “really fit”, offering him money for sex and asking him to be his “sex slave outside work”. Released from his inhibitions by alcohol that night, the Registrant took his penis out of his trousers and placed Colleague A's hand on his penis without their consent and touched Colleague A's penis over their trousers, again without their consent.

196. The Registrant then made matters worse by asking Colleague A the next day to keep the incident to themselves. The Registrant must have known that Colleague A was unlikely to report the sexual abuse when the Registrant had asked him not to. This was a further abuse of his professional position on the part of the Registrant.

197. The Registrant knew that his conduct had been most unwelcome in view of the WhatsApp messages he had exchanged with Colleague A. Yet, on 28 July 2022 the Registrant attempted to renew his unwanted sexual conduct towards Colleague A in pursuit of a future sexual relationship.

198. The Registrant’s misconduct had an adverse effect on Colleague A’s mental health, contributing to their taking time away from work. It also led to Colleague A being unwilling to undertake his rotation onto the Registrant’s team, to the potential detriment of service delivery.

199. In order to assess the overall gravity of the misconduct, the Panel has placed into the balance all the mitigating factors and other considerations that weigh in favour of the Registrant.

200. The insight, remediation and remorse shown by the Registrant are clearly matters of some weight in his favour, as is his otherwise good character. The Panel acknowledged the fact that a period of 12 months suspension would provide an opportunity for the Registrant to develop further insight and carry out further remediation so as to render a repetition of the misconduct unlikely.

201. The Panel has also borne in mind the public interest in the Registrant’s potentially being able to return to work after a period of suspension, as a competent and valuable practitioner.

202. A striking off order would also be very severe in its likely effect on the Registrant, depriving him of his chosen livelihood for a period of at least five years.

203. The Panel also kept in mind that a suspension order may well be appropriate where the concerns represent a serious breach of the Standards of conduct, performance and ethics (paragraph 121 of the Sanctions Policy).

204. However, the Registrant abused his professional position to indulge in very serious sexual misconduct towards a junior colleague. This included revolting behaviour to which the Registrant subjected that colleague, who had not consented to it and which had profoundly upset him and contributed to a period of sickness. By abusing his professional position in that way, the Registrant obtained sexual gratification and pursued what he hoped to be a future sexual relationship, and which was completely inappropriate.

205. Had this been misconduct confined to ‘a moment of madness’ on one night in an otherwise unblemished career, the Panel could well have seen, in the circumstances of the case, the potential adequacy of a period of suspension as being a sufficient sanction.

206. However, the misconduct was not only extremely serious but had further grave aspects to it. The first of these was the Registrant’s further abuse of his professional position by attempting to silence Colleague A in order to cover up his actions. This was followed by an attempt by the Registrant to re-engage with the same junior colleague nearly three months later to pursue what he knew to be an unwelcome sexual relationship. Finally, the misconduct had a serious adverse effect on that junior colleague.

207. The HCPC’s Standards of conduct, performance and ethics require registrants to ensure that their conduct justifies the public’s trust in them and their profession (Standard 9.1). The Registrant’s sustained and extremely grave misconduct was a most serious violation of that fundamental principle of registered practice. In all the circumstances, the Registrant’s sexual misconduct was very near the top of the scale of seriousness (see Arunachalam at [79]).

208. The Panel has concluded that despite the mitigating factors and all the other matters in favour of the Registrant in this case and the adverse effects on him if a striking off order were imposed, the nature and gravity of the misconduct are such that a sanction of suspension would not be sufficient to maintain public confidence either in the profession or in the regulatory process. Members of the public, aware of all the circumstances of this case, would be very concerned to learn that despite what he had done, the Registrant might be able to return to registered practice after a period of suspension, even the maximum of 12 months.

209. Further, such is the seriousness of the misconduct that the necessary deterrent effect would not be achieved by an order of suspension. Such a sanction would not be sufficient to protect and uphold the necessary standards of conduct (both Standard 9.1 and also 6.2) among registered Physiotherapists, so as to preserve the dignity of the profession and the freedom to work of colleagues without being molested.

210. Therefore, the Panel has decided that a striking off order is necessary and would not be disproportionate in the circumstances.

211. For all those reasons, the Panel has decided that a striking off order should be imposed on the Registrant’s registration.

Interim Order

Application

212. Ms Mosley applied on behalf of the HCPC for an interim suspension order of 18 months. She made that application on two of the statutory grounds under Article 31(1), (2) Health Professions Order 2001 as amended (‘the 2001 Order’), as being necessary for the protection of members of the public and otherwise in the public interest. Ms Renou stated that she had no observations to make in response. The Panel received advice from the Legal Assessor, which it has accepted.

Decision

213. The Panel has the power to impose an interim conditions of practice order or an interim suspension order for a maximum period of 18 months. The legislation has been drafted so that a direction for striking off does not take effect immediately, but 28 days after service of the order on the Registrant and if the Registrant appeals, until after disposal of the appeal: Article 29(10) of the 2001 Order.

214. The HCPC sought an interim order to cover the 28 day period before the suspension order comes into effect and the subsequent period if the Registrant were to appeal.

215. The Panel was mindful that it was not to proceed on the basis that the legislation had left a gap, that it was required to fill, as it were.

216. The Panel refers to its findings that a recurrence of the misconduct is likely and that the misconduct had contributed to a period of sickness for Colleague A.

217. In view of those findings and the nature and seriousness of the misconduct, the Panel was satisfied that there would be a real risk of harm to the health and safety of colleagues if an interim order were not imposed to cover the interim period.

218. Having concluded that a repetition of the misconduct was likely, the Panel also decided that the misconduct had been very near the top of the scale of seriousness. Despite all the mitigation and other factors in the Registrant’s favour, the panel had decided that a suspension order would not be sufficient to maintain public confidence in the profession or to uphold standards of professional conduct. It had also concluded that members of the public, aware of all the circumstances of the case, would be very concerned were they to learn that despite what he had done, the Registrant might be able to return to practice after a period of suspension, even the maximum period of 12 months. The Panel had concluded that a striking off order was the necessary and proportionate sanction.

219. Although those same members of the public would understand that the Registrant has a right to appeal, they would be most concerned if no interim order were considered necessary to maintain public confidence in the profession during the 28-day period before the striking off order took effect, and if the Registrant did appeal, during the period before disposal of the appeal. The Panel considered that there would be serious damage to public confidence in the profession if, having reached those conclusions, the Panel considered that no interim restriction were necessary on the Registrant’s ability to practice.

220. There must be good and sufficient reason to impose an interim order. The Panel has conducted a balancing exercise, balancing the need to protect the public and the wider public interest against the consequences that an interim order could have on the Registrant. The Panel noted the foreseeable adverse effects on the Registrant’s livelihood in particular. However, the Panel considered that an interim order would be proportionate to the risks identified by the Panel. It concluded that an interim order is required in order to contain the risks in this case both to members of the public and the wider public interest.

221. The Panel asked itself whether or not an interim conditions of practice order would suffice. However, interim conditions of practice would not be workable in view of the nature of the misconduct and would not adequately address either the risk of harm to members of the public or the risk of damage to public confidence in the profession.

222. The Panel has concluded that an interim suspension order is necessary in the circumstances of this case to protect members of the public and is otherwise in the public interest.

223. In view of the likely time for the disposal of any appeal, the Panel decided to impose an interim suspension order of 18 months.

Order

Order: The Registrar is directed to strike the name of Mr Colm Lynch off the register.

Notes

In view of the likely time for the disposal of any appeal, the Panel decided to impose an interim suspension order of 18 months.

Hearing History

History of Hearings for Colm Lynch

Date	Panel	Hearing type	Outcomes / Status
26/07/2024	Conduct and Competence Committee	Final Hearing	Struck off
15/07/2024	Conduct and Competence Committee	Final Hearing	Adjourned part heard
09/04/2024	Conduct and Competence Committee	Final Hearing	Adjourned part heard
04/03/2024	Conduct and Competence Committee	Final Hearing	Adjourned part heard