Daniel Start

Preliminary Matters

Application for part-private hearing

1. Ms Bernard-Stevenson, on behalf of the HCPC, made an application for any issues relating to the private life of the witness Service User D in relation to her health to be heard in private. She extended the application on behalf of the Registrant, should it be necessary to refer to similar matters in relation to him. The Registrant did not oppose the application.

2. The Panel sought advice from the Legal Assessor who advised that HCPC hearings are held in public in the interests of open justice and transparency. There is provision for the Panel to hold part or all of a hearing in private under Rule 10(1)(a) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”) if the Panel is satisfied that to do so is in the interests of justice or for the protection of the private life of the Registrant, the complainant, any person giving evidence, or any patient or client. Private life includes matters related to a person’s health. In relation to an application for privacy, the Panel should depart from the principle of a public hearing to the least possible extent.

3. The Panel approved the application and directed that any parts of the hearing relating to the private life of Service User D or that of the Registrant should be heard in private.

Application to amend the allegations

4. On day 4 of the hearing, Ms Bernard-Stevenson made an application to amend particulars 1 and 2 of the allegation. The amendment sought were to add the words shown in bold in the allegations as set out above. Ms Bernard-Stevenson submitted that these amendments would be fair to the HCPC and the Registrant. They would clarify the HCPC’s case and better reflect the evidence. The Registrant did not oppose the proposed amendments.

5. The Panel accepted the advice of the Legal Assessor who reminded the Panel that it was able to amend the particulars, but before doing so, should consider whether any prejudice or unfairness would be caused to the Registrant. The Panel considered the matter bearing in mind the HCPC’s overarching objective of public protection. It was satisfied that the amendments would better reflect the HCPC’s case and that there was no objection from the Registrant. The Panel considered that the amendments could be made without prejudice or injustice to the Registrant. The Panel was satisfied that it was fair and in the public interest that the amendments sought should be made.

Special Measures Directions

6. Directions for Special Measures in relation to Service User D’s evidence had been made at a preliminary hearing, as follows:

a. If the hearing proceeds in person, Service User D is to be permitted to give evidence from behind a screen in the hearing room.
b. If the hearing proceeds remotely, the Registrant is to attend by telephone only when Service User D gives evidence.
c. An Interpreter is to be provided to assist Service User D to give evidence at either type of hearing.

7. These special measures were in place at the hearing.

Background

8. Mr Daniel Start (‘the Registrant’) is a Registered Physiotherapist (RH97859). On 16 March 2022, a referral form was submitted by PH, Physiotherapy Regional Manager for the South of England within TP Health and Optima Health (“TP Health”).

9. The HCPC’s case was that the Registrant commenced employment with TP Health as an Occupational Health Physiotherapist based at the retail warehouse of a company client of TP Health (“the Client Company”). PH was the Registrant’s line manager.

10. In the referral form, PH stated that TP Health and Optima Health had initiated an internal investigation into the Registrant’s alleged conduct during an appointment with Service User D on 2 March 2022. Service User D had been referred for appointments by the Client Company’s occupational health service and had appointments with the Registrant in February and March 2022. PH stated in the referral form that Service User D claimed that on this date, whilst the Registrant was conducting a physiotherapy appointment, he touched her vagina. As a result of Service User D’s complaint, an internal investigation took place and the Registrant was suspended from his employment.

11. In the HCPC referral form, PH also raised concerns regarding the Registrant’s record keeping practice in relation to the records of the six service users referred to in Schedule A to the HCPC allegation.

12. On 21 December 2022, a panel of the HCPC’s Investigating Committee referred the Registrant’s case for a hearing by the Conduct and Competence Committee. A Preliminary Hearing took place on 18 January 2024.

Registrant’s response

13. The Registrant said that he admitted most of the facts in relation to Particular 1. The Registrant indicated that he took issue with the time period referred to in Particular 1 as he said that his record keeping was satisfactory in the initial period. The Registrant denied Particulars 2 and 3.

The HCPC’s evidence

Service User D

14. Service User D gave evidence to the Panel with the assistance of an interpreter. She confirmed her signed witness statement dated 9 July 2023. The following is a summary of her evidence.

15. Service User D was referred by her employer’s occupational health team for 10 sessions with a Physiotherapist as a result of lower back pain. Service User D attended appointments with the Registrant weekly, in a treatment room at her place of work. She said that she had attended four or five sessions and the Registrant told her that she would receive acupuncture and massage to treat her pain.

16. Service User D said that the times of the appointments were communicated to her by text message sent from the TP Health central number, i.e. not directly from the Registrant. Service User D produced screenshots of some of the text messages.

17. Service User D said that during the sessions, the conversation she had with the Registrant was general in nature. They were not friends and as far as she was concerned, their relationship was professional and in no way sexual in nature.

18. Service User D said that in sessions leading up to 2 March 2022, the Registrant had gradually began to massage areas such as her buttocks. She was not expecting these areas to be massaged. She said that in the session on 23 February 2022, the session prior to the incident date of 2 March 2022, the Registrant touched her vagina over her underwear. However, Service User D thought the contact may have been accidental, so she did not raise an issue about it.

19. Service User D said that she received a text message directly from the Registrant on 1 March 2022 stating that her next appointment was on 2 March. She produced a screenshot of this text message. Service User D said that she attended the appointment at 1300. When she entered the therapy room she was asked by the Registrant to undress down to her underwear and to lie on the massage table face down. She said there was a privacy screen and that she undressed behind this. The Registrant remained in the room while she undressed. Service User D confirmed she was not offered a chaperone by the Registrant, but thought she may have been made aware of the option by her employer.

20. Service User D said that during the treatment, the Registrant began by massaging her lower back and then moved to her buttocks, which he also massaged. Shortly after massaging her buttocks, the Registrant touched her vagina briefly over her underwear. Service User D said that she initially thought that this may have been accidental, as it had happened at the previous session on 23 February 2022. She said that since the Registrant used oil during the massage, she thought he may have accidentally slipped. However, Service User D said that this occurred three more times during the same session and she then thought that this had been done on purpose.

21. Service User D said that she felt very awkward in the session. She did not feel comfortable ending the session at the point where the Registrant touched her vagina and did not feel comfortable discussing it with him. When the Registrant had finished, she got her clothes, dressed and left. She did not say anything to the Registrant about what had happened. Before she left the Registrant said that he would contact her to arrange another appointment.

22. Service User D said that she did not accept another appointment with him and did not complete the advised total number of sessions. She said that following the appointment, she contacted an organisation which supports individuals with workplace sexual harassment issues to seek advice. They encouraged her to seek support from her manager. The following day, Service User D spoke to her line manager, SS, to report the incident. Service User D was asked to write a statement, which she produced in evidence.

23. Service User D said that after reporting the matter it was dealt with internally by the operational manager and the HR Department. She was asked to provide another statement and this was dictated into a typed document which Service User D also produced.

24. Service User D confirmed that following the incident, she did not have any further contact with the Registrant in person. She received a text message from the Registrant with another appointment, but she did not respond to this.

25. In response to questions, Service User D told the Panel that she had never met the Registrant before and had no interactions with him not related to the physiotherapy treatment.

26. On 1 March 2022, Mr Start himself sent a message saying there was an appointment on 2 March. She received it from a number she did not have in her contacts. It said he was Danny Start and that her next appointment would be 1 or 1.30. Service User D said that she found this strange because other previous messages had come from the Occupational Health number.

27. On 2 March 2022 when she attended the appointment with the Registrant he told her that they would do physiotherapy and acupuncture. He asked her to remove her clothing except her underwear. He asked her to lay down on the clinical bed and she put her head face down in the hole in the bed. Once she was laying down, he asked if she was ready and she confirmed that she was. He asked general questions about how she was feeling that day. He used his palms and started to massage from her neck down to her spine and her lower back. She didn’t know exactly what he used, but thought it must have been some type of oil on his hands. When he finished in the back area he started to go from her hips down to her thighs and shins and then went back to the area of her hips and that he did circular movements down to her thighs.

28. Service User D said that the Registrant massaged on the top of her thighs, on the side. In the area of the side of her “bum” and under her glutes, he did movements around by his hand and went inside side of her thighs to the area of her vagina. She told the Panel that he touched the outside area of her vagina without putting his fingers in the vagina. Sometimes he put his finger inside her underwear, less than 1cm away from her vagina, but not inside it.

29. Service User D was referred to her witness statement where she had said that the Registrant had touched her over her underwear. She said that was the first time. When asked how many times he put his fingers inside her underwear, she said in total there were four “circle” movements and the first time was over her clothing. One of the three or four times was inside her underwear.

30. Service User D confirmed that she was wearing knickers. When asked how he was able to access inside, she said because the movement of the Registrant’s hands was in cycles and very close to, and touching her underwear. In one of the movements, she felt his finger inside her underwear and he touched the skin of her vagina.

31. Service User D said that she felt very uncomfortable and didn’t know how to react or what to do because the Registrant knew her name. She was afraid to speak to him about what he had done. She was afraid he would continue to do more sexual movements and she wished to finish the session. By “sexual movement”, she said that, to be honest, she was afraid he would touch her vagina more and was afraid even of rape. Service User D said that she did not believe the actions were by mistake because it happened more than once.

32. Service User D said that in the previous session the action had been the same, but not so strongly. It was in the same area, but above the underwear. She thought then it may have been by mistake because he had oil on his hands and maybe his hand slipped and he touched close to her vagina. However, in the next session she did not believe it had been by mistake because it had happened not once but three or four times, with the third or fourth time under her underwear.

33. Service User D was asked why on the previous occasions when she felt the Registrant was massaging near to her vagina, she did not raise a concern with him. She said that this was because the first time she thought it had been a mistake and didn’t know how to handle it. She didn’t know if she would put him in a difficult position if he had done it by mistake. When asked why she attended further sessions if she had those concerns she said because it had happened only once on the previous occasion, she believed it may be by mistake. On 2 March, following the final incident, she stopped the therapy and told her manager that she did not want to continue because of the incident.

34. Service User D said that after the session, she left the therapy room, and that it was time for her work break. She didn’t know what to do or whether she should report what had happened to a friend or relative, or someone at her workplace like a manager. She was feeling guilty because during the sessions they had talked about where she came from and she thought that maybe the Registrant had taken the wrong message. Because she was worried and didn’t want the same thing to happen to anyone else, she thought she would find an organisation she could refer to anonymously and see what their advice was. The advice of the organisation she contacted, anonymously, was to report the matter to a supervisor and not to feel it was her fault.

35. Service User D was asked about the differences between her HCPC witness statement and the statement she made to her employer and later emails to the HCPC. Service User D said she could not understand what was different. If it was about hips or glutes, it was because of her English, i.e. maybe some words about part of the body were used differently, eg. buttock or hips. However, she felt that as regards the procedure of the appointments and where they took place, and the main accusation about sexual harassment was because he touched nearby her vagina with his fingers, was the same each time.

36. Service User D was asked how the incident had affected her and she said it made her feel guilty for a long period. When she continued to have pain in her back she was afraid to ask at work to go to Occupational Health again. The incident made her feel more afraid when she saw any male doctors.

37. In further questions, Service User D confirmed that the main issue was her lower back and waist and pain in legs. When asked if she was sent for the physiotherapy because of an injury due to the demands of her job, she said it was a continuous problem due to an accident at work and this became worse with heavy lifting.

38. Service User D was asked if she recalled if she told the Registrant she wanted to be taken off full duties. She did not recall this, but said she did say she could not do that job because of an accident in the workplace and that she was afraid it could happen again if she continued. She accepted that Registrant made it very clear he could not facilitate that request. He told her that he recommended she could do some tasks and said there would be a communication with her manager, but from his point of view that would be the recommendation he would make. It was put to her that she was annoyed when the Registrant said he could not put her on lighter duties and Service User D said that was not the case.

39. Service User D confirmed that she consented to the Registrant’s proposed treatment plan, which included an initial assessment and sessions of acupuncture, trigger point therapy and soft tissue massage. She said that a chaperone was discussed but she chose not to have one so that she could have treatment the same day. She was not sure if the question came from the Registrant or from Occupational Health. She thought it was the latter, but she was not sure. Service User D confirmed that following the first treatment session she felt an improvement in her symptoms.

40. In respect of the session on 2 March 2022, Service User D confirmed that she did not ask for a chaperone despite saying that he had touched her vagina at the previous session because she believed it had been by mistake.

41. Service User D said that the Registrant asked her to lower her trousers and raise her top before treatment. She was asked to remove her clothing but she could not recall if she removed it completely or if she “pulled it up”. She agreed that the Registrant asked her to use the blue paper roll to cover herself. She agreed that she was experiencing radiating pains in her legs and throughout her back and that the Registrant had explained he would work on loosening her glute muscles.

42. When asked if the Registrant performed trigger point therapy in this session she said no, because she remembered clearly the pain was mainly on lower back and waist and he massaged her in the lower back. The main massage was in the calves – it started in the back and went lower to the legs. The Registrant did stronger movements in her lower back area and then moved in the area of the glutes. She had mentioned there was pain there, but not as much as lower back but he stayed in glute area and massaged longer. The pain was outside the area of the glutes at the side of the thighs. There was no pain inside the glutes. The movements in the massage were “cycle” movements with his hands.

43. Service User D maintained her account that at the session on 2 March 2022 the Registrant did not only touch her vagina once with his finger but three or four times and during one of them she felt his finger inside her underwear “to her vagina”. She said that she did not mean inside the vagina, but next to it, outside the vagina. It was put to her that any touching in and around the area was for clinical reasons and she responded that she could understand the touching the glutes or hips, but not that there was any medical reason for touching the vagina area.

44. It was put to Service User D that she had given different statements because she was not really sure about what happened. She replied that she was sure of what happened except for the points she had said she could not recall. She said that sometimes in her accounts she had not put down correctly exactly what happened. It was put to her that the reason was that she was lying and that the Registrant did not touch her vagina at any stage and she responded “he touched me”.

45. In response to questions from the Panel, Service User D said that the appointment for physiotherapy took place while she was on a work shift. She was wearing her own clothing, not a uniform. She would wear comfy trousers and blouse. She confirmed that she wore “Brazilian style” knickers. She said that she could not recall if she moved them down or took them off.

46. She was asked if the Registrant talked to her during the treatment about what he was intending to do and then what he was actually doing as she was laying face down on the treatment bed. She said that before the first session he informed what he planned to do, but not in the final session.

47. Service User D said the acupuncture was to her back and palms. The trigger point therapy was in her waist or lower back and in her thighs, meaning the outside of the hip on the side. Where she had said “cycle movements”, she confirmed it meant moving from the middle to outside to the thighs in the gluteal area. It was a very light type of massage.

48. Regarding gifts, Service User D said that on one occasion she had given the Registrant some olives. This was done following a conversation when she told the Registrant that she came from a place famous for olives. The Registrant mentioned he liked olives. She said that her family produces olives and she thought it was polite to bring him some. She could not recall exactly when this was.

Evidence of PH

49. PH confirmed the truth of his HCPC witness statement dated 12 July 2023. The following is a summary of his evidence.

50. At the relevant time PH was the Physiotherapy Regional Manager for TP Health. He said that TP Health has now been subsumed into a larger company.

51. PH is an HCPC registered Physiotherapist. PH stated that in his role he was responsible for leading on contracts providing occupational health services to a number of organisations. He provided leadership for the Physiotherapists working on these contracts, ensuring high standards of care were maintained. His responsibilities were line management and auditing.

52. PH confirmed that TP Health Physiotherapists were not authorised to offer acupuncture. The company was not set up to provide such treatment and did not have the appropriate policies and procedures in place.

53. PH confirmed that he was the Registrant’s line manager and worked with him from the start of his employment on 6 September 2021 until he left on 1 April 2022. PH stated that on joining the company, the Registrant underwent a four-week induction programme which was intensive and intended to ensure that new Physiotherapists became familiar with TP Health’s processes as quickly as possible. PH referred to the information governance workbook which set out the general requirements for maintaining accurate records.

54. PH confirmed that the Registrant also attended MyOH training. This was the internal IT system which allowed clinicians to access all the notes and report templates and patient files into which completed versions would be added. PH produced the company’s Creating, Storing and Maintaining Records policy. He said that the policy covered creating and maintaining accurate and sufficiently detailed clinical notes in order that any colleague could pick up the records if required and continue the treatment. PH confirmed that the Registrant had completed the MyOH training but it was noted that he required some further training.

55. PH said that record keeping concerns were identified when he reviewed the Registrant’s files during audits as part of the ongoing supervision process. These were informal audits which identified training needs. PH stated that the main audits for the Physiotherapists were annual but where time constraints permitted, TP Health would check every assessment to ensure it met the client’s requirements.

56. PH produced reports of audits undertaken in relation to the Registrant’s clinical notes. He stated that the caseload would be gradually built up to seeing seven service users per day, which he stated, given the hour allowed for each session, provided a comfortable level of workload for the clinicians.

57. PH stated that the more concerning record keeping issues came to light when the Registrant’s work was reviewed prior to the disciplinary meeting relating to the complaint of Service User D in March 2022. PH confirmed that the clinical records of Service Users A, B, C, E, F and G contained a number of issues. He stated that in some of the Registrant’s clinical notes, sections had one-word answers which did not provide sufficient information.

58. PH confirmed that TP Health had a personalised system of record keeping designed especially for occupational health. The system was electronic. The clinicians could log in and access their relevant part of the system. Physiotherapists could input into case management, clinical history and the referral forms. The system provided templates for records which would be automatically generated when an appointment was booked and would be partly pre-populated with relevant client details. Some fields were mandatory to complete and the template would not move on unless the field was completed.

59. In relation to appointments, PH confirmed that the appointment allocated a total of 1 hour to undertake the service user assessment and complete the record. PH explained the importance of the records being up to date in order that the case could be progressed and also in order that other practitioners could take over a case if necessary. PH encouraged practitioners to complete every field on the template. The records required that subjective and objective assessments be completed for each service user.

60. PH referred to the records relating to service users A, B, C, E, F and G and identified area where the records were inadequate. He referred to the Standard Clinical Details section of the service user records. In this section that there is a free text box in which the clinician can write up a thorough and detailed history for the patient. PH said that when the Registrant filled in this section his notes often lacked the detail expected to provide a full assessment of an individual.

61. In relation to “Functional Capacity”, PH stated that this was an important part of the testing process and was the first indication of what might be wrong. As such, it was crucial to have sufficient detail in this section. PH stated that these tests were left blank on the assessments for service users B, C, E, F and G

62. In respect of “Social History”, PH stated that this section was left blank in all of the clinical notes for the six service users. In relation to “Mental Health and Psychological Assessment” sections, PH stated that the sections were expected to be minimal for a Physiotherapist compared to other professionals. PH stated that as this section was left blank, even where there was no concern for the patient, he was unable to say what should have been recorded there.

63. In respect of the “Physiotherapy Assessment” section, PH stated that this was the most important section of the report for the Registrant to complete. It asked if a physiotherapy assessment needed to be carried out. PH stated that the Registrant would have known that he should answer “yes” to this question, as this would have been covered in the training. When the answer “yes” is given on the system, this would open several other questions which were mandatory to answer. PH stated that the records for Service User A lacked sufficient detail, for example including only a few words in relation to a clinical assessment.

64. In the section “Psychosocial Barriers to Work”, PH stated that the Registrant should have completed this section. In relation to “Outcome and Onward Management of the case”, PH stated that the records of all six service users contained a number of issues. The Record Keeping Policy required that the notes be sufficiently detailed that another clinician would be able to pick up and continue with the case from the notes.

65. In respect of the “Consent” section, PH said that there were internal templates which were specifically designed to prompt responses and there were mandatory fields which must be filled out to ensure that the areas of concern are explored.

Service User D Incident

66. PH confirmed that Service User D was referred for treatment by their manager with a Musculo-skeletal condition. He produced the referral form. PH confirmed that the Registrant had scheduled appointments with Service User D on 2 and 23 February 2022.

67. PH stated that the Registrant was not due to be working or on site on 2 March 2022 when the incident alleged by Service User D took place. However, PH produced badge scan reports, in the form of Excel sheets, which confirmed that the Registrant was on the site on 2 March 2022.

68. PH confirmed that appointments were notified to service users by the administration team and confirmations were sent out to the service user and the physiotherapist by text or email. Physiotherapists would never be required to contact service users directly.

69. PH stated the treatment rooms were all set up with the same facilities and equipment. There was no changing area within the room, but screens could be provided.

70. PH stated that in the first session the Registrant should have made Service User D aware of the option to have a chaperone and that one should be requested on booking the appointment with head office. The Registrant should also have been mindful of the Chaperone Policy which advises that chaperones should be offered where a service user did not have English as a first language and might have difficulty understanding. PH said that in the case of Service User D he would have expected that a chaperone would be suggested due to the nature of the therapy being offered as it placed Service User D in a vulnerable position due to the power imbalance. PH noted that there was no record of whether as chaperone was offered in this instance. PH produced a copy of the company’s Chaperone Policy.

71. PH referred to the importance of obtaining consent and how this should be done at every stage of the process, for example by informing the service users what was going to happen at each stage.

72. PH stated that it was not the company’s policy to provide towels for reasons of infection control and hygiene. He would not advise the use of tissue paper as his would be inappropriate.

73. PH told the Panel that, as the treatment which Service User D required was in relation to the lower back area, there would not have been a clinical need to ask her to undress, especially in relation to any trousers or leggings. PH also stated it was excessive to request a top to be removed in its entirety unless a service user was reporting pain, stiffness or tightness in the mid back or neck area. In that case, the Physiotherapist would be required to document the subjective findings and record the consent and full understanding of the service user. PH stated, however, that there was no documentation to evidence this in Service User D’s clinical notes.

74. PH stated that in respect of treatment performed by the Registrant, there would have been no reason for the Registrant’s hands to be near service user’s groin area. Any touching of the service user’s vagina would not have been clinically justified.

75. PH also stated that the Registrant should not have provided acupuncture treatment for Service User D. As a company, TP Health was not set up or insured to provide acupuncture treatment, irrespective of whether or not the Registrant was trained to provide it.

76. PH referred to the investigation concerning Service User D’s complaint. He stated that as this was a serious allegation and quite detailed, the directors were involved from the outset and they supported PH. The investigation was carried out as soon as TP Health was made aware of the allegations and before the Registrant was due to work his next shift. At the investigation meeting which was held, the Clinical Director undertook the questioning. PH was present and made notes. PH said that the Registrant indicated a degree of admission to some aspects, in particular, receiving gifts and unauthorised clinic access. The company suspended the Registrant with immediate effect.

77. The Registrant put it to PH that he (the Registrant) offered his resignation after 3 weeks, in January 2022. PH did not recall this to be the case. The Registrant put it to PH that he had set up a new business and PH gave him more flexibility in relation to hours and coming and going from the warehouse. PH did not confirm the latter, as he said that the company would never have authorised that. He confirmed it would not be unusual for the company to offer incentives for clinicians to stay on.

78. PH was asked why he chose the six sets of clinical notes referred to in the allegation. He said the notes had been examined and these were below standard. When it was suggested that the Registrant had seen 300-400 patients in his six months and why these six records were raised, PH said that that was what the audit process was for.

79. PH confirmed that in the initial audit the pass level was 90% and so the 96% the Registrant obtained in his earlier audits was fine. In January 2022, the Registrant’s audits declined somewhat, and the Registrant suggested this was because he had resigned. PH accepted this could happen in practice, but it was for the clinician to maintain required standards.

80. In relation to Service User D, PH said that if sciatica was found it would be from top of back of leg down. But in respect of the groin area he could not find any clinical reason to remove clothing. He could not justify the lowering of, or removal of clothing below the area of the lower back area/sacrum. If it was necessary to work on that area it was his understanding the patient would be clothed. In relation to working on the piriformis, he had been taught that this would always be worked on through clothing. This was due past professional learning from complaints including of a sexual nature.

81. PH did not recall being asked by the Registrant about the lack of towels. He did not accept he would ever have suggested to the Registrant using the blue tissue paper roll as it was not company practice and he had never used this in his own practice.

82. The Registrant put it to PH that there had been no other complaints against him which he accepted.

83. In relation to the alleged timeframe of the six service user records referred to in the allegation, PH was asked if in the period of 6 September 2021 to March 2022, they were representative of the quality of the Registrant’s notes as a whole in that timeframe. PH stated it was not only those records and there could have been more. He had been asked to gather a few of them for the HCPC investigation.

84. Regarding the Registrant’s statement that he handed in his resignation after the first three weeks and he was offered flexibility to come and go from the site, PH said this would never have happened. This would have concerned the Directors, and this rule has been strict and in place for many years. It would have impacted on PHs own employment to have allowed this. PH also confirmed it was not the company’s policy to allow physiotherapists to work on site on their own work during clinic time.

85. Regarding the records of the sessions for Service User D on 22 February 2022 and 23 February 2022, PH confirmed that these would be retained on the system and were available. PH confirmed that no records for the “unofficial” session on 2 March 2022 had been found.

86. In relation to the presence of the Registrant on site when he was not authorised to be on 2 March 2023, PH was referred to the Badge Scan. This was an Excel sheet provided to the HCPC but certain fields were not accessible in the copy in the hearing bundle.

87. In relation to the findings in the interview of the Registrant, PH confirmed that the Teams interview call had been recorded and he wrote a note verbatim to the best of his ability. He confirmed his notes would be available in a typed Word document as he would have retained it. The interview note was written up on the day and fresh in his memory when he wrote up the investigation notes.

Further documents admitted in evidence

88. Following the evidence of PH, the Panel requested that the following documents, which PH had confirmed were available but which had not been included in the HCPC’s documents, should be obtained:
- The treatment records of Service User D for the sessions on 2 February 2022 and 23 February 2022;
- PH’s notes of the investigation meeting dated 11 March 2022;
- A copy of the Badge Scan Excel document already exhibited, but with all fields accessible to show the entries relating the Registrant’s presence on the site on 2 March 2022.

89. Enquiries were made and these documents were obtained. They were admitted by the consent of both parties, subject to an agreed redaction in the meeting notes.

Evidence of the Registrant

90. The Registrant made an affirmation and gave evidence. He submitted two written statements dated 11 and 12 April 2024. The Registrant confirmed he wished his statements to be adopted as his evidence in chief.

91. The Registrant’s statements were as follows:

Statement 1 – 11 April 2024

‘In response to the allegations made against me I have the following to say.
Allegation 1- Maintaining accurate & complete records.
Between 15 September 2021 and 8 March 2022 you did not maintain accurate and complete records (for one or more of) the service users in Schedule A in that you did not adequately complete (at least one of) the following sections (This allegation has been amended, as the original allegation, was incorrect)
I accept most of this. However, there are a number of reasons why my records were inadequate.
Of the six service users notes presented, it’s clear now, that some of these sections were sufficient. Also, that SUA’s notes were deemed acceptable. This is why the change in allegation one.
I will also add that of the 350+ service user’s I saw at TP Health, these six reports are not random or representative. They appear to be the worse ones I did, in my six months with TP Health. I admit they are generally poor & I apologise for this.
My clinical notes, I regret, declined once I resigned in January 2022. Something that PH states is common. Before this time however, my clinical notes were accurate & complete. (see audit results).
The reason for the decline in my clinical notes was that I was setting up a new hypnotherapy business. I was struggling to manage both of these jobs. I was very stressed & actually resigned after three weeks (October 2021) of this job with TP Health. I told my line manager (PH) I needed more time & flexibility to run my new business. So my manager then allowed me more freedom to come & go, from the [Client Company] warehouse. He also reduced my hours & gave me a pay rise.
PH did all he could, to persuade me to stay. He mentioned whilst under oath, that he was ‘excited I would get on well within the company’ & that I was a ‘fast learner’. I was doing a great job.
Clinical audit 90% required.
My clinical audit on September 29th shows 96%.
My clinical audit on Jan 17th 2022 shows 89%...
I was regularly achieving the required standard. And know in future that I must maintain this, or leave immediately.
This demonstrates I have the ability to maintain accurate & compete records... & my ‘Management reports’ were always impeccable. (‘Management reports’ were the official reports wrote up, that went to the employee’s manager).
Once I submitted my resignation, I started putting all my effort into the management reports & helping the service user’s...neglecting my clinical notes occasionally.
I deeply regret letting my standards drop, something I will never let happen again.
On reflection, I should of left this position in October 2021 & not been persuaded to stay. In future I would only take on a role like this, once I can fully commit to it. I greatly apologise for letting my standards lower once I resigned.’

Statement 2 – 12 April 2024

‘Allegation 2- I vehemently deny touching Service User D’s vagina. (This did not happen)
Allegation 3- There was nothing of a sexual nature. All touching was of a professional kind. I again vehemently deny this allegation.
Here is an outline of the three physiotherapy appointments
February 2nd Wednesday. – (1st appointment session)
Service User D came to see me due to lumbar pain, radiating into her right leg. They believed that the injury was due to the physical nature of the role they were performing whilst working in the [the company] warehouse.
We had an initial 30 minute subjective assessment. Here Service User D told me they wanted to be taken off full duties & onto lighter ones (restrictions in lifting). See PH witness statement.
TP Health made it difficult to move someone onto lighter duties. I believe this is due to [the Client Company] putting pressure on TP Health to keep their staff on full duties.
When I said it was not possible now to move her to lighter duties, I could see Service User D demeanour change... she looked disappointed & slightly annoyed.
As a physiotherapist I want to help people, so I did not enjoy upsetting people like this.
As I felt sorry for her, I offered to do acupuncture & manual therapy. This is something I did for a number of other SU/ patients. Partly because I felt guilty not moving them onto lighter duties. Something I often did in a previous Occupational Health role, a few years earlier.
We then spent 30 minutes doing the subjective assessment. I made notes to complete the management report later & to help me remember.
The objective assessment, ascertained there was pain originating from the lumbar spine L4-L5 region & the right piriformis gluteal muscle. These structures were likely causing impingement to the sciatic nerve. I believe this was why there was pain radiating into the right leg.
Also, tightness found in the right hip flexor & weakness in both hip abductor muscles.
I explained the treatment would consist of:

• 15 minutes acupuncture
• 5 minutes deep tissue massage/trigger pointing (low back/piriformis muscle, hip abductors)
• 2-3 minutes of muscle energy techniques.
• I also made a personalised home exercise plan for SERVICE USER D.
I mentioned I could arrange a chaperone, but this will delay today’s appointment. SERVICE USER D was happy to continue without a chaperone.
Service User D was pleased to be getting some immediate help & agreed to go ahead with this treatment plan.
Service User D was asked to go behind the partition & undress by lowering her trousers & pulling up her jumper. SERVICE USER D was then told to put blue roll around her waist & lay face down on the plinth & to tell me when she was ‘ready’.
I stayed in the room, but on other side of the partition. This procedure was repeated for all three sessions.
I then explained I was going to do acupuncture (which had already been discussed & agreed upon) & then inserted 12 needles. These were to lumbar spine, piriformis muscle (in the gluteals), hip abductor, right hamstring & right hand. These were left in for 15 minutes.
Then there was 5 minutes of deep tissue massage & trigger pointing. I used massage cream provided by TP Health. The areas treated were the piriformis muscle, hamstring tendons (origins; long head bicep-femoris & semitendious) hip abductors & low back.
During this time my hands may have been close, but never touching her vagina.
I then did 2-3 minutes of muscle energy techniques. These were mainly to the hip flexors.
This completed the hands on therapy for the session.
I then went back behind the partition whilst Service User D got dressed.
As a physiotherapist I am very conscious of the patient feeling comfortable & respecting their privacy & dignity (as per HCPC Standard 1).
We then sat down at the desk (her opposite me), whilst I rebooked her next appointment. Service User D said she already felt an improvement in her pain & was happy with the treatment provided & would like to rebook.
I then spent 15 minutes completing the management report.
February 23rd Wednesday- (2nd appointment)
We started with a 5 minute discussion on how she has been over the past week. This discussion was at the desk in therapy room. Again Service User D mentioned how she wanted to be moved to a different area within [the Client Company] warehouse. She wanted to be moved to lighter duties. Service User D was also unhappy as had been overlooked by [the Client Company] for a office/desk role. She felt this was because her English language skills were not sufficient.
I explained again that I was unable to relocate her to an Office role, as this was her manager’s responsibility. This disappointed Service User D.
Next SERVICE USER D demonstrated her physiotherapy exercises. As I wanted to check she was doing them correctly. I made a few minor adjustments to her technique.
Then the session followed, identically, as the 1st session did. (see above)
After the session, we both sat down at the desk & rebooked the third session. Service User D said her back pain was feeling much better & would like to rebook.
March 2nd Wednesday- (3rd appointment)
(I will add this appointment was arranged by mistake, as all her appointments were on a Wednesday)
Service user arrived with a small gift of olives for me. I happened to of mentioned that I liked olives & she kindly gave me this gift.
I believe the NHS guidance on accepting gifts, is for anything worth over £50 to be declared...or anything that may affect their professional judgment.
So, on that basis I do not believe the olives affected my professional judgement. As they were given on the third treatment & all three sessions, were identical.
Again, we discussed her progress since our last session, for about 5 minutes at the therapy room desk. I mentioned that I had resigned, so this may be the last therapy session Service User D gets. This seemed to annoy her, as she wanted the sessions to continue. I couldn’t guarantee the next physiotherapist would provide manual therapy.
Then the session continued the same as session 2.
Once finished, Service User D sat down at the desk opposite me for a few minutes. She wanted to be rebooked, but as I had resigned, there was no more available appointments. So, I said if I get a cancellation I would let her know.
A few days later when I’d had no cancellations, I texted her to say sorry, no appointments available & thank you for olives. This was common practise for me to contact patients occasionally, as I ran my own private practise.
Thank you for listening.’

92. In further questioning the Registrant told the Panel that he was first registered as a Physiotherapist in March 2011 and so had been registered for about 10 years at the time of the allegations. He said that he was aware of and understood the spirit of the HCPC Code and Standards and was bound by the principles, but these were not something he had studied a great deal since university. He understood that breaches could call into question his registration

93. The Registrant confirmed he provided occupational health services and treatment to employees of the Client Company at the warehouse. At the time he had been in employment for about 6 months. The company employees’ work was very physical so soft tissue conditions and back problems were common.

94. The Registrant confirmed that he understood he had a professional obligation to keep full and accurate records and that they should be completed promptly. It was put to him that the TP Health’s policy was that records should be sufficiently detailed to enable continuity of care. He agreed but said if he took over care he would always ensure he undertook his own assessments.

95. He said TP Health was mainly interested in the management reports which were audited. Auditing of the actual notes was less common. This was why his audit results were good. He did not agree that the audit also looked at treatment notes. He agreed that record-keeping and notes are very important.

96. The Registrant accepted his record-keeping was poor during this period. He regretted the standard of his clinic notes once he resigned in January 2022, but this did not extend back to September 2021. He accepted the notes exhibited to the allegation covered the period from September 2021. He said he was on probation from 15 September and it felt unfair to be criticised for the period while he was on probation as that is when he was training and being helped by PH.

97. The Registrant was referred to some examples from notes in the hearing bundle: The Registrant was referred to the record of Service User B dated 01.11.21. He accepted the Standard Clinical details section was not appropriately completed and that there were parts missing. In respect of the record of Service User G dated 08.03.22, the Physiotherapy Assessment section was completed as “No” with no additional detail. The Registrant said this was a very poor report and clearly unacceptable. He also accepted he had not recorded that consent was obtained and this was important but he always obtained consent verbally. He accepted he had not completed any of the ‘Introduction and Data Protection’ section on this record.

98. The Registrant accepted he had failed to meet the standards expected in the later audits and said this was because he had resigned by then. He said this was unforgivable and he should have done better. He felt that the conversation with PH about his audits when his scores were 89% and 79% was a five-minute conversation. He said the company’s main concerns were the management reports and that the employees and management didn’t complain. The Client Company was large and powerful and all that his employer was concerned with was keeping them happy. He accepted that the standard of his reports did drop. They were below the expected standard and he apologised for that. They were not up to scratch and they were not complete. He said he always had a long chat with the service users. He would take the time to properly listen to them and he accepted he did not document this in as much detail as other physios and he needed to look at this. He accepted he had not met the HCPC standards, but he felt that he had really helped people.

99. In relation to acupuncture, the Registrant accepted he should not have offered this to clients whilst employed by the company.

100. The Registrant accepted he had undergone the induction and training. He said the Chaperone Policy was not such a big thing in the company as had been suggested by PH. He said that the problem with the policy was that it slowed down appointments. He said there was not much emphasis on the policy in the company.

101. The Registrant accepted that there were specific shift times and if a therapist was not due to be on a shift, they should not be on site. He agreed that TP Health arranged client appointments by emailing or texting service users. It was not standard practice for clinicians to contact service users directly.

102. The Registrant accepted that the text message to Service User D regarding the appointment on 2 March 2022 was sent from his personal phone. He did not accept that this was inappropriate. He said that he runs his own practice and regularly messaged his private clients and that this was his standard practice. It was not something he did often and it had been two or three times whilst at the company.

103. The Registrant said that PH gave him dispensation to come and go from the warehouse building more freely, although PH’s evidence had been to the contrary.

104. The Registrant did not accept that there was a pattern, apparent from his evidence, demonstrating that he did not like to follow the company’s rules and that he cut corners.

105. It was put to the Registrant that it became apparent that Service User D did not speak English as her first language. He said she spoke it pretty well and this was why she had wanted a desk job at the client organisation. He said he did have a conversation with Service User D about offering a chaperone. He had suggested that Service User D might want a chaperone, but it might mean the appointment would be delayed and she said it should go ahead without one.

106. The Registrant agreed that Service User D’s reason for attending was primarily for low back pain. It was pain in L5 area and glutes radiating down her right leg. He said that the referral form was often quite brief and he would discover there was more to it. He agreed there was no pain in her groin area but there was in the piriformis muscle and glutes and the back of the leg. He accepted there was no reference to pain around the stomach area.

107. The Registrant accepted it would not be standard practice to ask a Service User with back pain to remove their top or trousers, but said that it was normal to ask them to lower their trousers and raise their top. He said acupuncture could not be administered through clothing, although he accepted that he should not have been offering acupuncture as it was not supported by TP Health. He then said that in order carry out trigger pointing you had to put your thumbs into skin. He said Service User D gave consent to lower her trousers and pull her top up and he would never pressure someone to do that if they didn’t want to. He would get consent. He often did treatment through clothes. He accepted that he had not documented consent but said that Service User D had said throughout that she had consented.

108. The Registrant accepted he had said he became quite friendly with Service User D. He agreed he had built up something of a rapport with her but said there was no “banter”. He said that she spoke very factually and was not the sort of person who joked too much. She was quite a professional person, friendly and nice. She was interested in getting a desk job. He said a lot of people thought he could help them get a desk job, but he could not.

109. The Registrant said that Service User D told him that where she grew up was famous for olives and that she had then brought a small gift, which he said was always nice. He did not accept that he enjoyed Service User D’s company.

110. The Registrant said on 23 February 2022 he asked Service User D to pull her top up and eventually to lower her trousers. He then asked her to lay on the table. He did ask her to use the blue roll to cover herself. He denied that whilst doing massage he moved closer and closer to her vagina area.

111. In relation to why there was no written record of the appointment of 2 March 2022, it was not because he didn’t want his superiors to find out he had treated her at all, but because he could not access the computer to record it.

112. The Registrant was referred to the note of the internal investigation provided by PH. He accepted it was a reasonably accurate summary. He accepted he had not said he could not access the computer but said that his employer would have known this.

113. In relation to the appointment of 2 March 2022 which he arranged by his personal mobile, he accepted he attended the site on a day when he was not scheduled to be there which was against company policy. He said his days were normally Monday and Wednesday but had been changed to Monday and Tuesday.

114. The Registrant denied that when massaging Service User D, he started to touch her inner thigh and then her vagina area over her underwear and then under her clothing. He said this didn’t happen and this was clear from her statement when she said her memory was fresher when she was interviewed and she didn’t say it then. The Registrant denied he had touched Service User D’s vagina area at all. He accepted he may have been a little closer than he would normally be to Service User D’s vagina. The Registrant agreed there was no clinical justification for touching the Service User’s vagina area and accepted that if this was done deliberately and with no clinical justification it possibly would be an act of a sexual nature. He denied he had acted to obtain sexual gratification.

115. The Registrant said that since the HCPC allegations started his career had been suspended and he had had to retrain as a hypnotherapist and a counsellor. The former had involved looking at himself and understand exactly how patient/ clients feel and that has helped him. He did not want to lose being a Physiotherapist and he would be happy to do any training or courses the Panel suggested. He said no-one had told him he should do courses now. He had not done any courses on record keeping. He had kept good records. He had been a physiotherapist for 10 years. He knew that he had let his standards slip because he had resigned and was running his own business. He accepted he had let the employer and the HCPC down. If he had had representation he was sure he would have been advised on that. The Registrant accepted that members of the public might be shocked and troubled to learn of these matters if found proved.

116. The Panel asked the Registrant further questions, including about the techniques and types of treatment he provided and in relation to the records of Service User D’s sessions. The Registrant accepted that he had not documented a number of matters, including any record of the treatment of Service User D on 2 March 2022.

117. The Registrant said that he could sense there was pressure from TP Health to keep people on full duties. He said that there was “100% conflict” between business and professional issues and this was part of why he had resigned. He felt guilty keeping people working and gave them more treatment. If he felt they genuinely needed the amendment, he would give it. In Service User D’s case there were medical reasons why she should be moved on to lighter duties. He said Service User D wanted to move to a whole different area with lighter duties permanently, or long term, and he told her he could not do that. He said that Service User D looked annoyed that he was not able to give her what she wanted. The report he gave said she should have a small adjustment and should have treatment.

Submissions on facts

Closing submissions

118. On behalf of the HCPC, Ms Bernard-Stevenson produced written submissions and made further oral submissions.

119. Ms Bernard-Stevenson reminded the Panel that the burden on proof was upon the HCPC and the standard of proof to be applied was the civil standard, the balance of probabilities.

120. Ms Bernard-Stevenson referred to the evidence which she said supported each of the factual allegations. In respect of the evidence of Service User D, Ms Bernard-Stevenson submitted that the witness had given clear and consistent evidence since the date of the incident on 2 March 2022. In her oral evidence she had made appropriate concessions, and she had no motive to fabricate or conceal evidence.

121. Ms Bernard-Stevenson set out the definitions of the terms relating to conduct which was “sexual in nature” and “sexually motivated” according to the relevant case law authorities. She submitted that the touching of the vagina, as a sexual organ, on multiple occasions and without clinical justification, was touching of a sexual nature. She submitted that the Panel could properly infer that the conduct was sexually motivated for the purpose of the sexual gratification, given that the touching involved a sexual organ, that there was no clinical justification, no consent and no plausible alternative explanation for the Registrant’s conduct.

122. The Registrant made closing submissions. He indicated points where he disagreed with the evidence of the HCPC’s witnesses. In relation to the witness PH, he maintained that PH was “100%” aware that he had resigned.

123. In respect of Particular 1, the Registrant said that he now felt that the amendment to the allegations made during the hearing was unjust, but said that it made the allegation less serious, which he hoped would be recognised later in the process. He disagreed with the time period alleged in relation to the record-keeping allegation, since at the beginning of his employment his reports were accurate and complete and he had obtained 96% in previous audits. He said that he had written over 350 reports and felt it was not representative for the HCPC to refer only to 6, which were probably the worst ones. He accepted he had done some things wrongly, such as giving acupuncture, record-keeping and working out of hours.

124. In respect of the evidence of Service User D, the Registrant submitted this was inconsistent and confused. She had described where she said she was touched in a number of ways, such as “near her vagina” and “by her vagina”. He said that her account had changed and become more elaborate at each stage. He submitted there were reasons why Service User might make a false allegation.

Decision on Facts

Legal advice

125. The Panel accepted the advice of the Legal Assessor. The Panel was advised that the standard of proof in HCPTS proceedings is the civil standard, the balance of probabilities. The burden of proof in respect of factual matters was upon the HCPC and it was not for the Registrant to prove his innocence.

126. The Panel was reminded that particular 3 alleged that the conduct alleged in particular 2 was either sexual in nature and/or sexually motivated. The Panel was advised that if it found the facts in particular 2 proved, it should then go on to consider whether it was satisfied on the balance of probabilities that that proven conduct was either sexual in nature and/or sexually motivated.

127. The question of sexual motivation required the Panel to consider the Registrant’s state of mind. The Panel was referred to the HCPTS Practice Note, “Making Decisions on a Registrant’s State of Mind”. In terms of the meaning of the phrase “sexually motivated” the Panel was referred to the guidance in the case of Basson v GMC [2018] EWHC 505 (Admin) and Basson v General Medical Council (2018) and Haris v GMC [2021] EWCA 763. In Basson, it was said that a sexual motive means that the conduct was done either in pursuit of sexual gratification or in pursuit of a future sexual relationship.

128. Consideration of sexual motivation required the Panel to consider the Registrant’s state of mind. It was also stated in the case of Basson that the state of a person’s mind is not a matter that can be proved by direct observation, but only by inference or deduction from the surrounding evidence. This was a balancing exercise in which the Panel should consider all the evidence and the circumstances, including the facts, the history, any alternative explanation offered by the Registrant and any evidence as to the Registrant’s character. The Panel must then, on the balance of probabilities, consider whether the sexual motive can reasonably be inferred from all the evidence.

129. In respect of whether conduct was “sexual in nature”, the Panel was referred the definition, set out in the Sexual Offences Act and the Practice Note which states:

130. “Panels will be assisted in considering the test for a criminal offence of a sexual assault, for instance when the conduct was an act which, whatever the circumstances, was sexual. For instance, this could include the deliberate touching of the complainant’s genitalia in circumstances where there was no clinical justification for it or an act that, because of its nature, may be sexual and, because of the circumstances, is sexual. An example of this might be where the Registrant sends a text message to a complainant which is capable of being read in different ways, one of which is sexual, and the circumstances suggest the Registrant intended it to be read in that way.”

131. In relation to the assessment of the witnesses’ evidence, the Panel was referred to the guidance in Suddock v Nursing and Midwifery Council [2015] where it was said:

132. “There are a number of reported cases in which rulings have been given about the dangers of a court or tribunal reaching decisions on the credibility of witnesses merely by reference to their demeanour. Experience has taught us that the way in which someone behaves, whilst giving evidence, is not a reliable indicator of whether he or she is telling the truth. Whilst demeanour is not an irrelevant factor for a court or tribunal to take into account, the way in which the witness’s evidence fits with any non-contentious evidence or agreed facts and with contemporaneous documents and the inherent probabilities or improbabilities of his or her account, both internally and with the evidence of others, are likely to be far more reliable indicators of where the truth lies. The decision-maker must, therefore, test the evidence against those yardsticks as far as possible before adding demeanour into the equation”.

133. The Panel was advised that it should take into account that the Registrant was of previous good character.

134. The Panel considered the factual allegations applying the legal advice given. The Panel took into account all the evidence it had received, both oral and documentary. It considered the parties’ submissions.

Particular 1

135. The Registrant had admitted in his written statements, and in his oral evidence, that the records of the service users referred to were not of the standard expected, but mainly in the period after he said that he had wanted to resign. He accepted that he had let his standards slip. He submitted that these records were not representative of the records of the 300 plus patients he had seen during his time at TP Health.

136. The Panel took account of his admission but noted his position was equivocal. The Panel therefore examined the records and considered the oral evidence it had heard with care before deciding if this particular was proved.

137. PH had told the Panel how the electronic clinical record keeping system at TP Health worked. He explained to the Panel the importance of Physiotherapists completing the notes accurately and in full. He described the training the Registrant was given when he started his employment with TP Health.

138. PH set out what each of the text boxes dealt with and he explained that certain of these text boxes, for example “Physiotherapy assessment”, “Functional assessment” and “Consent” would be of most relevance and significance for physiotherapists to complete. PH explained the deficiencies found in respect of each of the six sets of records referred to in the allegation. For example, he noted that in several examples, there were text boxes with a one-word entry or no entry at all.

139. The Panel found PH’s evidence to be clear and consistent. He had close familiarity with the record-keeping requirements as he monitored the clinical notes as part of his role at TP Health. The Panel accepted PH’s evidence. The Panel examined the notes. It took into account those admissions which the Registrant had made. The Panel was satisfied on the balance of probabilities that Particular 1 was proved.

Particular 2

On 2 March 2022 you touched Service User D’s vagina and/or surrounding area, over and/or under their underwear on one or more occasions during physiotherapy treatment.

140. The Panel considered all the evidence presented, documentary and oral. The Panel bore in mind that the Registrant denied this allegation. The Panel was mindful that the only direct witnesses to the events of 2 March 2022 were the Registrant and the witness, Service User D and it was therefore a situation of one word against the other. The Panel was therefore careful to look at the available documentation, including contemporaneous evidence, as well as the oral evidence.

141. The Panel noted that Service User D was referred to the Registrant in February 2022 for a course of physiotherapy treatment. It heard that Service User D had attended two appointments with the Registrant, arranged through the company’s normal processes, on 2 February and 23 February 2022. The Panel had sight of the text messages from the company administration to Service User D confirming these appointments. The Panel had sight of the clinical records which the Registrant had made in respect of the first two treatment sessions, albeit they were brief.

142. The third session took place on Wednesday 2 March 2022. The Panel heard evidence that this appointment was arranged by the Registrant outside of the normal TP Health procedure. As the Registrant accepted, he made this appointment directly with Service User D by a text message from his personal mobile phone sent on the previous day, 1 March 2022. Service User D produced a screen shot of the text message. The Panel heard from PH that appointments with service users were not arranged personally, directly by the therapists, but were arranged via the central administration.

143. Service User D made an anonymous call on the day of the alleged incident to an organisation which she said dealt with complaints about sexual harassment at work. The next day, 3 March 2022, she reported her concern to the company. The Panel had sight of the statements Service User D gave to her employer and to the HCPC.

144. The Registrant was not due to be on shift at the warehouse on 2 March 2022, but attended at the warehouse and saw Service User D. in his evidence, the Registrant told the Panel that because this was not an arranged appointment and because he was not on the site officially, he did not have access to the computer system and so could not complete the clinical notes. He indicated he made his own notes, but no longer had these. The position was, therefore, that there was no clinical or other record of the appointment on 2 March 2022. As far as the company was concerned, the Registrant was not on duty on that date and there was no official appointment for Service User D.

145. The Panel considered the evidence of Service User D. She gave evidence with the assistance of a Greek language interpreter. However, she also asked and answered questions in English and the Panel did not conclude that there was any significant difficulty overall in her giving clear evidence about what she said had taken place.

146. Service User D described in her statement that the Registrant undertook massage to her lower back and then moved to massage her buttocks. He then touched her vagina area. Service User D’s evidence was that this had happened at the previous session on 23 February 2022, but she had thought it may be accidental or due to his hands slipping because of the massage oil being slippery. However, this happened several times at the session on 2 March and Service User D’s perception was that the Registrant’s actions were deliberate. She told the Panel some of the occasions were touching of the area over her underwear. However, she also told the Panel that on one occasion, she felt the Registrant’s finger under her underwear and touching the skin in the area of her vagina, though not inside it.

147. The Panel considered that Service User D’s evidence in her initial reports and in her oral evidence at the hearing, given via the interpreter, was consistent in stating that the Registrant had touched her vagina. This was what she described from the very first complaint she made close to the date of the treatment, on 2 March 2022, and she was clear and consistent in her evidence at the hearing. The Panel was mindful that in oral evidence Service User D stated that the Registrant put his fingers under her underwear, as well as touching her over her underwear. This led to the amendment of Particular 2 during the hearing. The Registrant was critical, suggesting that Service User D had added to her complaint during her oral evidence. The Panel however noted that in her first written statement, Service User D had stated that the Registrant had “touched my vagina”. In her next, undated, statement to the company’s HR department, she stated she “felt his fingers to my vagina with his fingers”. In an email responding to questions from the HCPC dated 5 May 2022, she stated “he touched my vagina with his fingers”. In her evidence she said that he touched the area three or four times and on one of these the Registrant touched her vagina inside her underwear. She explained he did not put his finger inside her vagina, but next to it and she felt his finger on her skin.

148. The Registrant denied the allegation. The Panel noted that in his written statement he stated:

149. “Then there was 5 minutes of deep tissue massage & trigger pointing. I used massage cream provided by TP Health. The areas treated were the piriformis muscle, hamstring tendons (origins; long head bicep-femoris & semitendious) hip abductors & low back. …During this time my hands may have been close, but never touching her vagina”.

150. The Registrant therefore admitted putting his hands close to the area.

151. The Panel heard evidence from witness PH that there was no clinical justification for touching the area of a patient’s vagina area when giving treatment of the nature that Service User D required. He also stated that even if there had been clinical justification, he would expect to see a record of the clinical justification being explained to the patient and their consent recorded. Because this appointment was “unofficial” there was no such record.

152. The Registrant suggested in his oral evidence that Service User’s D’s motivation for making a complaint against him was related to retaliation for his not moving her to a desk-based role. The Panel found no evidence to support this contention. Service User D denied it. The Panel did not find this to be a credible contention by the Registrant.

153. The Panel found Service User D to be a consistent and credible witness. She was measured in her evidence, for example accepting that the treatment the Registrant had given in the first sessions resulted in some improvement and did not seek to embellish her account. She reported the matter very promptly after the incident on 2 March 2022.

154. It became clear in Service User D’s evidence that her account was that on one occasion, the Registrant had put his finger inside her underwear, rather than touching her over it. The Registrant submitted that she had given inconsistent accounts. However, the Panel noted that Service User D had clearly stated since her first statement, made very shortly after the alleged incident, that the Registrant had touched her vagina area.

155. The Panel found the Registrant to be less than consistent and reliable in his evidence. Further, the evidence showed that he was an individual who operated at times as if accepted rules did not apply to him, such as running his own new business in company time, coming onto the company site when not on shift claiming that he was free to come and go as he wished, providing acupuncture treatment when TP Health did not provide it and going outside company procedures to use his personal phone to arrange an “unofficial” appointment with Service User D.

156. Overall, the Panel preferred the evidence of Service User D and was satisfied on the balance of probabilities that the Registrant touched Service User D’s vagina and surrounding area over her underwear on one or more occasions, and under her underwear, touching her skin, on one occasion during the physiotherapy treatment on 2 March 2022.

157. The Panel found Particular 2 proved.

Particular 3

Your conduct in relation to particular 2 was sexual in nature and/or was sexually motivated.

158. In considering Particular 3, the Panel referred to the guidance in the HCPTS Practice Note, Making Decisions on a Registrant’s State of Mind.
“Sexual in nature”

159. The Panel was satisfied that the touching of the Service User D’s vagina and surrounding area, without clinical justification, self-evidently constituted the type of sexual conduct of the type referred to in the Practice Note, namely, it was “an act which was, whatever the circumstances, sexual. For instance, this could include the deliberate touching of the complainant’s genitalia in circumstances where there was no clinical justification for it.”

160. The Panel had concluded that this was deliberate touching and that there was no clinical justification for it. The Registrant denied that he had touched the area. He had not sought to claim that touching may have taken place, but was accidental, though he had accepted that during massage his hands were “close” to the area. The Registrant had not suggested that there was a clinical justification for touching this area of Service User D’s body.

161. Service User D had described not a single instance of touching, but three or four occasions during the session on 2 March 2022, including one instance of touching her skin inside her clothing. Service User D’s own perception was that the touching on 2 March 2022 was deliberate, having given the Registrant, effectively, the benefit of the doubt regarding the touching she experienced at the previous session on 23 February 2022.

162. The conduct involved the touching of a highly intimate area of a woman’s body and the Panel was satisfied that it was clearly behaviour which was sexual in nature.

Sexual motivation

163. The Panel next considered whether the conduct was sexually motivated. The Panel considered the test as set out in the cases of Basson v GMC [2018] EWHC 505 (Admin) and Haris v GMC [2021] EWCA 763. The Panel was required to consider whether the conduct was either in pursuit of sexual gratification, or of a future sexual relationship. As directed by the Practice Note, it was necessary for the Panel to consider all the circumstances and then come to a conclusion as to whether on the balance of probabilities the Registrant’s conduct was sexually motivated.

164. The Panel bore in mind that the Registrant denied the allegation and denied either form of sexual motivation. The Panel also bore in mind that he was of previous good character.

165. The Panel referred to the guidance in the Practice Note that: “The best evidence of a registrant’s motivation is their behaviour. If the conduct is overtly sexual in nature, the absence of a plausible, innocent explanation for the conduct will invariably result in a finding of sexual motivation”.

166. As already noted, the Panel concluded that the Registrant’s touching of the Service User in a highly intimate area of her body was of an overtly sexual nature, was deliberate and without clinical justification. The Panel did not consider that the Registrant had offered any plausible, innocent explanation: he denied the touching had taken place. Applying the Practice Note guidance, this led the Panel towards a conclusion that the conduct was sexually motivated. However, the Panel went on to consider the wider circumstances surrounding the session on 2 March 2022.

167. The Practice Note provides that the vulnerability of the patient and the Registrant’s awareness of it should be considered. The Panel had heard from PH that Service User D would be considered vulnerable because English was not her first language and this should have led to her being offered a chaperone. No chaperone was present, but Service User D did indicate she may have been offered one by the administration of TP Health. However, the Panel took into account that there was an element of vulnerability in relation to Service User D. In addition to the language issue, there was an imbalance of power between the Registrant as the healthcare professional and Service User D described how she felt unable to raise any concern about the Registrant’s actions with him.

168. In relation to the wider circumstances surrounding the session, the Panel had heard the session on 2 March 2022 was arranged personally and directly by the Registrant. It was not arranged in accordance with the company’s usual procedure for booking appointments with service users. The appointment was not logged on the company’s computer system and no clinical notes were entered by the Registrant. The result was that, as far as the Registrant’s employer was concerned, there was no official record of the appointment on 2 March 2022 being booked or having taken place.

169. The Panel had heard that the Registrant had gone into the Company warehouse on a day when he was not on duty and had no booked appointments. The Panel had not accepted his explanation that PH had given him permission to go in and out of the site as he chose. PH’s evidence was that this would not have been permitted by his employer and he had not authorised it.

170. The Panel concluded that the circumstances surrounding the appointment suggested a clandestine element. The Registrant had arranged an “unauthorised” session with the service user of which his employer was unaware, when he was not officially working on shift and of which there would be no record on the company’s systems. These circumstances, in the view of the Panel, suggested that the Registrant planned to see this service user alone and “unofficially” and provided a further indication of his motivation.

171. The Panel was also mindful of Service User D’s evidence that the Registrant first touched this area of her body at the preceding session on 23 February 2022. The Panel concluded this suggested an intention on the part of the Registrant to pursue a further opportunity with the Service User.

172. The Registrant had denied that any inappropriate sexual touching had taken place. The Panel considered his explanation for undertaking the session on 2 March 2022. The Registrant’s account was that he made the appointment with Service User D himself because that week, his working day had been changed from his usual Wednesday to the Tuesday. His case was that he was doing Service User D a favour by arranging to see her on the Tuesday. He told the Panel that he had been given permission by PH to go in and out of the site at will and that he had also gone in to collect acupuncture equipment. The Panel, however, did not find it credible that the Registrant would go out of his way to make this “unauthorised” appointment with Service User D, when he could have re-arranged it to see her on a different day when he was on duty. The Panel also noted that Service User D was the only patient whose appointment the Registrant re-arranged in this way. The Panel also found it implausible that, when there was no need to, the Registrant would come into the warehouse in his own time to see a single patient at a session for which he would not be paid because, as far as TP Health were concerned, there was no such appointment. The Panel did not accept the Registrant’s account.

173. Considering all the circumstances, the Panel was satisfied on the balance of probabilities that the overt sexual touching of Service User D by the Registrant was sexually motivated and was for the purpose of sexual gratification.

174. The Panel found Particular 3 proved, in that it found proved that the Registrant’s conduct in Particular 2 was both sexual in nature and sexually motivated.

Resumed hearing commencing on Wednesday 31 July 2024

175. The Panel handed down its decision in respect of the factual allegations, all of which it had found proved. The Panel adjourned the hearing to allow the Registrant time to read its written determination. At the end of that time, the Registrant met with the Legal Assessor and Ms Danti, representing the HCPC, in the presence of the Hearings Officer. The Registrant stated he had taken some legal advice and had decided not to participate in the remainder of hearing. He wished to submit a written statement which he asked the Panel to take into account at the next stage/s of the hearing. The Registrant then left the remote hearing link and did not participate further in the hearing.

Application to proceed in absence

176. The Panel received the statement from the Registrant dated 31 July 2024. In relation to his decision not to attend the rest of the hearing, the statement said:

“I have just managed to speak to a legal adviser on this matter & explained my situation. They have suggested I submit this letter to the panel now and leave the finer details down to the panel to decide. This is because being unrepresented is extremely detrimental to my cause.
Therefore, I unfortunately will not be attending the rest of this hearing and I hope a sensible outcome is arrived at.”

177. Ms Danti reminded the Panel of its discretion to proceed in the absence of the Registrant under Rule 11 of the HCPC (Conduct and Competence Committee) (Procedure) Rules. She referred the Panel to the HCPTS Practice Note on Proceeding in Absence of the Registrant. Ms Danti submitted that, given the Registrant’s attendance on the morning of this resumed hearing and his decision not to participate further, it was fair and in the public interest for the Panel to proceed with the hearing today.

178. The Panel took advice from the Legal Assessor and referred to the Practice Note. The Panel was satisfied that on 21 May 2024 the Registrant was served with notice that the hearing was to resume on 31 July 2024. He was present when this hearing commenced on the morning of 31 July 2024.

179. The Panel was satisfied that the Registrant had made a clear decision not to participate in the remainder of this hearing following, he said in his statement, his having taken legal advice. He had explained his reason for not wishing to take any further part. The Panel was not able to compel the Registrant to remain. The Panel was satisfied that he had voluntarily waived his right to be present. The Registrant had not requested an adjournment for any reason, including to obtain legal representation for this hearing. The Panel was satisfied an adjournment was not likely to secure his attendance on a future date. To the contrary, the Registrant had told the Panel this morning that he wished the case to be concluded as soon as possible.

180. The Panel was mindful that it had made serious findings of fact in this case and, the Registrant having voluntarily waived his right to attend, concluded it was in the public interest, and in the interests of the Registrant, that the hearing should proceed and be concluded during the current listing.

Submissions on misconduct and impairment of fitness to practise

The HCPC’s submissions

181. Ms Danti referred to the HCPTS Practice Note, Fitness to Practise Impairment, and to the reference in the HCPC Sanctions Guidance to allegations involving sexual misconduct. Ms Danti reminded the Panel of relevant considerations and case law in relation to the ground of misconduct and impairment of fitness to practise, including that these are matters for the Panel’s judgment.

182. In relation to misconduct, Ms Danti submitted that the following paragraphs of the HCPC’s Standards of Conduct, Performance and Ethics (2016) were relevant: Standards 1, 1.1, 2, 2.3, 10, 10.1 and 10.2 and from the Standard of Proficiency for Physiotherapists, Standards 2, 2.3, 10 and 10.1.

183. In respect of Particular 1, Ms Danti submitted that accurate record keeping is fundamental to basic physiotherapy practice. Records provide context and assist in the ongoing care and management of patients. The Registrant accepted that his records during January to March 2022 were poor. He said that the standard declined after he said he had tendered his resignation, but that did not provide an excuse. The breaches were serious and fell seriously below the standard expected and undermined public confidence. The seriousness may be heightened because there were multiple instances.

184. In respect of Particulars 2 and 3, Ms Danti reminded the Panel that Service User D was a female under the care of a male Physiotherapist. In addition, to the language issues, there was an imbalance of power. The service user described feeling unable to raise concerns with him. The Panel had found that the Registrant pursued a further opportunity to see Service User D and therefore knew he was behaving inappropriately and had exploited his professional position. Serious mental harm may have been caused. Service User D described feeling afraid of being raped and was likely to have lost trust in the profession.

185. Ms Danti submitted that this fell squarely in the guidance in the Sanctions Policy as indicative of a deep-seated attitudinal problem. The conduct fell seriously below proper standards expected of the profession and was heightened by inappropriate touching having occurred on multiple occasions and included conduct which was sexual in nature and sexually motivated. This was behaviour which should be found to amount to misconduct.

186. Ms Danti submitted that the Registrant had shown some insight and regret in relation to the record-keeping issues, but insight was still developing and fundamentally lacking. There was no evidence of reflection on the significance of record-keeping.

187. In relation to Particulars 2 and 3, the Registrant was entitled to deny the facts. However, there was no evidence of any reflection, remorse or recognition of potential harm caused although his submissions stated that he fully understood the seriousness and needed to address it. There was no reflection upon the damaging impact on Service User D and there was no acceptance of responsibility for what had happened.

188. In relation to remediation, the Registrant referred to making himself familiar with HCPC guidance and to having found two courses on records and leadership skills. He had not so far undertaken any training to address either issue. The courses did not appear to address professional boundaries.

189. There was no reflection on the seriousness of the attitudinal and behavioural issues and the Panel would need to consider if they were so serious that they are not capable of remediation. Ms Danti submitted there was a real risk of repetition of the conduct which would put the public at risk of serious harm

190. In relation to the public component of impairment, Ms Danti submitted that the first three indicators identified by Dame Janet Smith were engaged. This type of behaviour risked the public losing trust in the profession and not wishing to seek assistance. It brought the profession into disrepute. Public confidence would not be upheld if no finding was made in respect of the public component of impairment.

191. The HCPC’s submission was that the Registrant’s fitness to practise is currently impaired in respect of the personal and public components of current impairment.

The Registrant’s submissions

192. In the Registrant ’s absence, the Panel considered his statement dated 31 July 2024:

“Possible action for panel to take:
I hope the panel will take into consideration my previous good name. 12 years as a physiotherapist & only this complaint.
This case has been 2 years now, I have had plenty of time to reflect how in future I can prevent a situation like this occurring again. It has been an awful experience; one I will do all I can to prevent happening in the future.
Nothing like this has happened before.
My counsel (no longer involved) who was only present at the beginning, felt I was going to win this hearing. Being fluent in Greek she understood a lot more that was being said.
So, wait & see decision was advised…
Allegation 1-
What have I done to address this?
Only yesterday after talking with Angela did I know this would be asked of me.
Made myself familiar with the HCPC’s advice & guidance on Record keeping.
https://www.hcpc-uk.org/standards/meeting-our-standards/record-keeping/
Found two relevant courses.
Documentation & Record Keeping for Healthcare Professionals- Udemy
Leadership Skills in Balancing Time and Workload- Powered by Physiopedia
Learnt
Switch in my mindset. Prioritise record keeping. I know that once a person prioritises something, they start making it happen automatically.
I can now reflect on this situation. I feel very disappointed in myself in letting my standards drop & want to rectify this.
I have learnt from this experience, that I must prioritise my record keeping as much as much as I prioritise the patient. I realise now that I need to not focus all my time on energy on patient treatment. I will address this immediately & get the balance right between patient & record keeping.
Put my energy & time, 50:50, record keeping & patients.
Allegation 2 & 3-
Although I do not agree with the verdict today, I fully understand that these are serious allegations. I know I need to address all the issues concerned & strive hard to prevent anything like this happening in the future.
I have spent the last 2 years retraining as a hypnotherapist. Working closely with people to help them.
Impairment-
I believe I am safe to practise as of today.
What have I done to address this…

Over the last two years I have retrained as a hypnotherapist. This has involved many lengthy trainings & working closely with clients. These trainings have helped educate me further on patient care, client documentation & working in an environment where the patient feels safe & supported.
The training’ have also involved helping people recover from trauma, PTSD & severe anxiety. Understanding this area deeper has helped me gain more insight as a therapist.
I have also trained & now seeing clients for past life regression. I mention this as this is what I am passion about. Helping people understand themselves better.
I am regularly seeing hypnotherapy clients & believe my patient/client skills have benefited from this. I am much more aware now, to make clients feel at ease, safe & supported.
Sanctions-
I am truly very sorry. Sorry for my drop in keeping accurate records. Sorry for my errors that led to allegations 2 & 3. No chaperone…no documentation…being less professional. I will learn from this & be a better physiotherapist from this experience.
I am prepared to undertake any additional training courses deemed appropriate by panel/HCPC. I have found a couple myself.
The financial implications have been very detrimental to me & my family. ….
Further Training- So, first I am happy & prepared to undertake any training’s deemed necessary &/or appropriate. These may be to help maintain accurate records. Also, they may be in relation to allegation 2 & 3. Whatever training’s the panel or HCPC deem necessary, I will complete.
My counsel advised me to wait until the Panel had made their decision, before undertaking any training courses.
Supervision- I am prepared to return under supervision & no working alone. These conditions can remain for as long as the panel/HCPC wish so.
Restriction’s -Palliative care/End of life care- This is where I would like to work as a physiotherapist in the future. I have done training recently in this area and believe I can help a great deal. So, perhaps a restriction on limiting me to certain areas, such as this area?
Happy to comply with any conditions…hospital setting, patients not undressing, no working in MSK…?
Suspend- My big fear is being struck off. I am the first in my family to go to university & my family have been very proud of me becoming a physiotherapist…I am too, So, I would be devastated to lose my carer & also my identity.
I hope I am not suspended , but would accept this over the later.
Your sincerely….”

Panel decision on Ground and Impairment of Fitness to Practise

193. The Panel considered the evidence and submissions of both parties and accepted the advice of the Legal Assessor. The Panel was referred the Panel to the relevant legal authorities in respect of the issues of the ground of misconduct and current impairment of fitness to practise. The Panel was advised to refer to the HCPTS Practice Note, Fitness to Practise Impairment (November 2023). The Panel was reminded that findings of misconduct and current impairment do not necessarily follow because findings of fact have been made and that these are matters for its own judgment rather the application of the legal standard of proof.

Misconduct ground

194. The Panel first considered whether the Registrant ’s actions amounted to misconduct. The Panel was mindful that before making a finding of misconduct it must be satisfied that there had been a serious falling short of the HCPC’s Standards of Conduct, Performance and Ethics.

195. In relation to Particular 1, the Panel considered that maintaining accurate and complete clinical records is a basic requirement for a Physiotherapist. The Panel bore in mind the evidence of PH about the importance of the records for future therapists who might take over a service user’s care.

196. The Panel took into account the Registrant’s submission that the records referred to were a small proportion of the several hundred service users he had seen during his employment. The Panel however considered that failure to keep appropriate records could compromise care and put service users at risk of harm. The Panel noted that in some of the individual records there were several deficiencies. This was a pattern of poor record keeping.

197. The Registrant had accepted that his standard of record-keeping slipped once, on his case, he had handed in his notice and was focussing on developing his own private practice. This demonstrated a disregard of his professional obligations. The Panel was satisfied the failings in the Registrant’s record-keeping constituted a serious falling short of expected standards.

198. In respect of Particulars 2 and 3, the Panel had found that the Registrant touched a highly intimate area of Service User D’s body without clinical justification. The Panel had found the conduct to be sexual in nature and to be sexually motivated conduct undertaken with a view to obtaining sexual gratification. The touching had occurred more than once and the Panel had concluded that the Registrant had arranged a situation where he would see Service User D in an “unofficial” manner whereby there would be no record of the appointment and his employer would be unaware.

199. The Panel bore in mind that Service User D was vulnerable due to the imbalance of power in relation to the Registrant’s position as a healthcare professional and, to some degree, due to English not being her first language. The Registrant took advantage of his professional position and failed to adhere to appropriate professional boundaries. He caused Service User D to feel fearful that she might be raped, to feel unable to raise concerns with him and to feel reluctant to seek care from other male health professionals. The Panel concluded that these actions were very serious and fell far short of the standards expected of an HCPC registered Physiotherapist.

200. The Panel considered that the following paragraphs of the HCPC Conduct Performance and Ethics had been breached:

Standard 1 Promote and protect the interests of service users and carers
1.1 You must treat service users and carers as individuals, respecting their privacy and dignity
Maintain appropriate boundaries
1.7 You must keep your relationships with service users and carers professional.

Standard 2 Communicate appropriately and effectively
2.3 You must give service users and carers the information they want or need in a way they can understand.

Standard 9. Be honest and trustworthy
Personal and professional behaviour
9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

Standard 10. Keep records of your work
10.1 You must keep full, clear, and accurate records for everyone you care for, treat, or provide other services to.
10.2 You must complete all records promptly and as soon as possible after providing care, treatment or other services.
201. The Panel concluded that the following paragraphs of the HCPC Standards of Proficiency for Physiotherapists had been breached:

Standard 2: be able to practise within the legal and ethical boundaries of their profession
2.3 understand the need to respect and uphold the rights, dignity, values, and autonomy of service users including their role in the diagnostic and therapeutic process and in maintaining health and wellbeing
Standard 3: be able to maintain fitness to practise
3.1 understand the need to maintain high standards of personal and professional conduct
Standard 10: be able to maintain records appropriately
10.1 be able to keep accurate, comprehensive and comprehensible records in accordance with applicable legislation, protocols and guidelines
202. The Panel concluded that the Registrant’s conduct as proven in Particulars 1, 2 and 3 fell far below the standards expected and amounted to misconduct.

Impairment of fitness to practise

203. Having found misconduct proved, the Panel next considered whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct. The Panel kept at the forefront of its mind the HCPC’s overarching objective which is to protect the public by protecting, promoting and maintaining the health safety and well-being of the public; by promoting and maintaining public confidence in the professions it regulates; and by promoting and maintaining proper professional standards and conduct for members of the professions.

204. The Panel kept in mind that the question of impairment is a matter for its own judgement. The Panel had regard to the HCPTS Practice Note, Fitness to Practise Impairment, which confirms that the purpose of fitness to practise proceedings is not to punish a registrant for past acts or omissions, but to protect the public from those who are not fit to practise.

205. The Panel had regard to the conduct of the Registrant, the nature, circumstances and gravity of the findings and the critically important public policy issues, in particular the need to protect the public, to declare and uphold proper standards of behaviour and to maintain public confidence in the profession.

206. The Panel took into account the Registrant’s written statement. It noted that he has told the Panel he has never been the subject of a complaint before in his 12-year career He has expressed remorse and offered an apology, in particular in relation to the record-keeping failings, and a willingness to undertake training.

207. The Panel first considered the personal component of current impairment, that is, the current competence and behaviour of the Registrant. In respect of Particular 1, relating to record keeping failings, the Panel considered this issue is capable of being remedied. The Registrant has shown some developing insight. He has told the Panel he is disappointed that he let his standards slip and intends to prioritise his record-keeping in the future. He has identified some further training he intends to undertake. This, however, is at a late stage and despite his stated intentions, there is no evidence of actual steps taken by the Registrant to address this issue. The Panel also remained concerned that the Registrant has not fully reflected on the impact of his record-keeping failings on the care and treatment of service users and the wider impact on the profession.

208. In respect of Particulars 2 and 3, these concerned sexual and sexually motivated misconduct of a very serious nature. The Panel considered that there is an attitudinal aspect to this type of conduct which means it is difficult to remedy. The Panel took into account the statement submitted by the Registrant. The Panel was mindful throughout its consideration that the Registrant is not legally represented at this stage of the process. The Registrant did not agree with the factual findings of the Panel, which was his right. The Registrant told the Panel in his statement that in the last two years he has undertaken training to become a Hypnotherapist. However, this Panel has to look for evidence of remediation of the misconduct identified in this case. The Registrant has provided no evidence as to the detail or content of his Hypnotherapist training. There is no evidence before the Panel of any relevant training which would address the issues relating to professional boundaries and maintaining appropriate relationships with patients.

209. The Panel observed that in his earlier oral evidence, and in his recent statement, there is no indication that the Registrant has undertaken any meaningful reflection on the impact of his actions upon Service User D or on the Physiotherapy profession, or on public confidence in the profession. The Panel concluded from the Registrant’s statement that any limited insight he has shown is at a very early stage of development. In short, the type of misconduct found proved in Particulars 2 and 3 is difficult to remedy and the Registrant has not provided any evidence that he has taken actions to attempt to remedy it.

210. In all the circumstances, the Panel was far from reassured that there is no, or a low, risk of repetition of the Registrant repeating his misconduct in the future. The risk of harm of repetition of the record-keeping issues is that the care and treatment of service users could be compromised. If there was a repetition of sexual misconduct, the physical and mental health and safety of service users, many of whom are likely to have vulnerabilities, would be put at risk.

211. The Panel concluded that the Registrant’s fitness to practise is impaired in relation to the personal element of current impairment.

212. In relation to the public component of current impairment, the public would expect that Physiotherapists meet the HCPC’s standards in respect of the maintenance of accurate and complete records of treatment provided. If those standards are not met, patient care is potentially compromised and public confidence in the profession is undermined.

213. The findings of sexual misconduct towards a service user seriously undermine the confidence of the public in the Physiotherapist profession. Such conduct is likely to undermine the trust of members of the public and could affect their willingness to seek treatment from health professionals.

214. The Panel concluded that wider public confidence would be undermined in this case if a finding of current impairment were not made. The Panel determined that the Registrant ’s fitness to practise is currently impaired in respect of the public component.

215. The Panel considered that the four factors identified in the report of the Fifth Shipman Inquiry as indicating current impairment. The Panel concluded that that the Registrant has in the past, and is liable in the future, to represent a risk to patients and has brought the profession into disrepute. Specifically in relation to the sexual misconduct findings, the Registrant has breached a fundamental tenet of the profession by abusing his professional position and acting in a sexual and sexually motivated manner towards a service user under his care. In the absence of insight and remediation, there is a risk that such conduct is liable to be repeated in the future.

216. The Panel’s conclusion is that the Registrant ’s fitness to practise is currently impaired in respect of both the personal and public components of current impairment and that public confidence in the profession would be undermined if a finding of current impairment were not made in this case.

The HCPC’s submissions on Sanction

217. Ms Danti referred to the HCPC Sanctions Policy. Ms Danti highlighted the Panel’s findings in relation to facts, misconduct and impairment and submitted that, having regard to those findings, the Panel should conclude that this was a serious case according to the factors in the Sanctions Policy. Ms Danti drew the attention of the Panel to the sections in the Policy relating to Sexual Misconduct cases, Predatory Behaviour and Abuse of Professional position. She reminded the Panel of the purpose of sanctions in regulatory proceedings and of the appropriate approach when considering the issue of sanction.

218. Ms Danti set out the mitigating factors which the Panel may find present in this case, namely that the Registrant has worked for a number of years and has no previous fitness to practise history. Ms Danti reminded the Panel that it should take account of the Registrant’s statement of 31 July 2024 and the Google reviews he had submitted.

219. Ms Danti identified the aggravating factors present, with reference to the Panel’s findings, as breach of trust; repetition, as there was a pattern of inaccurate record keeping and also that the Registrant touched Service User D in a sexual manner on several occasions; risk of harm if there was repetition; lack of insight, remorse and apology and an overall absence of remediation. Ms Danti submitted that harm had been caused to Service User D. She had referred to feeling fearful that she might be raped and also the Registrant had her email address. Ms Danti submitted there was a risk of emotional and psychological harm to service users.

220. Ms Danti submitted that the findings involved abuse of the Registrant’s professional position, including predatory behaviour, which should be taken particularly seriously. The Registrant took advantage of his privileged position.

221. Ms Danti submitted that the appropriate sanction was a matter for the Panel. However, she addressed the factors identified in the Sanctions Policy relevant to each of the available sanctions. Ms Danti referred to paragraphs 76 and 77 of the Sanctions Policy which indicate that where a panel has found a registrant impaired by reason of sexual misconduct it is likely to impose a more serious sanction.

The Registrant’s submissions on sanction

222. The Registrant had made submissions on the issue of sanction in his written statement of 31 July 2024, as set out at paragraph 192, above. The Registrant also provided a number of Google reviews, stating:
“Below are a few of the Google reviews I have been given over the last year. I hope they demonstrate that I am a kind, caring, professional therapist, who works very hard to help people. These clients came for issues such as; anxiety, phobias, trauma, emotional issues.”

223. The Registrant expressed willingness to undertake training and/or comply with conditions upon his practice, or to work under supervision. He referred to the detrimental impact of the HCPC case upon his financial position and on his family.

Panel Decision on Sanction

224. The Panel took account of the submissions on behalf of the HCPC and those of the Registrant. The Panel accepted the advice of the Legal Assessor and referred to the HCPC Sanctions Policy.

225. In considering sanction, the Panel was mindful that a sanction is not intended to be punitive. However, a sanction may be necessary in the public interest and may have a punitive effect. The Panel bore in mind throughout that any sanction it may decide to impose must be proportionate, that is, it must only restrict the Registrant’s right to practise to the extent necessary to protect the public and the public interest.

226. The Panel was mindful throughout that the HCPC’s overriding objective is to protect the public. A panel must consider the risk the Registrant may pose in the future and determine what degree of public protection is required. The Panel must also give appropriate weight to the wider public interest, which includes the deterrent effect on other registrants, the reputation of the profession and public confidence in the regulatory process.

227. In this case the Panel had found that when the Registrant was treating a female Service User in his capacity as her Physiotherapist, he touched her on more than one occasion in the most highly intimate area of her body, her vagina. The Panel found this was conduct which was clearly sexual in nature. The Panel had also found that the conduct was sexually motivated, for the purpose of the Registrant obtaining sexual gratification. The Service User was vulnerable by virtue of the imbalance of power between a patient and their therapist and also due to English not being her first language. She described the impact the conduct had upon her. The Panel was in no doubt that the Registrant’s misconduct was of a very serious nature.

228. The Panel referred to the guidance in the HCPC Sanctions Policy concerning serious cases. The types of case referred to included cases involving sexual misconduct (paragraphs 76 and 77), predatory behaviour (paragraphs 71 and 72) and abuse of professional position (paragraphs 67-69). The Panel concluded that all of these issues were engaged in relation to its findings in this case. The Panel’s conclusion, applying the Sanctions Policy guidance, was that the Registrant’s case clearly fell into the category of serious cases.

229. Having concluded that this is a serious case, the Panel considered that the following aggravating factors were present:

a. Particulars 2 and 3 involved a breach of the trust which was a fundamental aspect of the relationship between the Registrant and Service User D. There was abuse of his privileged professional position as a registered healthcare professional.

b. The Registrant’s behaviour was predatory, in that the Panel had found that it was sexually motivated for the purpose of sexual gratification. It involved contacting Service User D directly and personally and making a plan to see her outside the accepted procedures of his employer.

c. There was a pattern of repeated behaviour in respect of the record-keeping issues. There was also repetition of the sexual touching.

d. There was limited evidence of insight, remorse or apology, particularly in relation to Particulars 2 and 3.

e. There was an absence of any meaningful attempt at remediation either in respect of the sexual misconduct issues or the record-keeping failings.

230. The Panel considered that the following mitigating factors were present:

a. The Registrant had no fitness to practise history over the course of a 12-year career as a Physiotherapist.

b. The Registrant had submitted several favourable Google reviews. The reviews spoke favourably of the reviewers’ experience of treatments with the Registrant. However, the Panel noted that the reviews appeared to relate to the Registrant’s Hypnotherapy practice. It was unlikely that the reviewers had any knowledge of the HCPC allegations or were aware that their reviews were being submitted to this Panel. The Panel therefore determined that it could give little weight to the reviews.

231. The Panel took these factors into account when considering sanction. The Panel concluded it could give limited weight to the mitigating factors and was mindful that mitigation is of considerably less significance in regulatory proceedings where protection of the public is the overarching consideration. The Panel concluded that the gravity of the aggravating factors in this case far outweighed the mitigating factors.

232. The Panel considered whether it was necessary to impose a sanction. The Panel had in mind that the allegations proved were serious and that its decision must uphold public trust and confidence in the profession. It considered the sanctions in ascending level of severity in order to ensure its approach was proportionate.

Mediation or No Action

233. The Panel concluded that in this case, neither mediation nor taking no action would be appropriate. The Panel determined that due to the gravity of its findings in this case a sanction was necessary in the public interest.

Caution Order

234. The Panel first considered the factors in the Sanctions Policy in relation to a Caution Order. It concluded that the issues in this case were not minor in nature. This was not an isolated matter, in that it concerned sexual misconduct towards a service user and also a range of record keeping failings over a period of time. Very limited insight had been shown by the Registrant and no meaningful remediation had been undertaken. The Panel had concluded that there remained a risk of repetition and that the Registrant continues to pose a risk of harm to service users and the public. The Panel concluded that a Caution Order was not sufficient or appropriate.

Conditions of Practice

235. The Panel next considered a Conditions of Practice Order. The Panel noted that the Registrant had indicated his willingness to accept conditions of practice. The Panel took the view that that it might have been possible to address the record-keeping issues by a Conditions of Practice order. However, the Panel concluded that it would be difficult to formulate conditions which would address the concerns arising from the Registrant’s sexual misconduct. His role as a Physiotherapist necessarily involves personal physical contact with service users under his care, some of whom may be vulnerable. The Panel considered that, for example, a condition requiring the Registrant to have a chaperone present at all consultations, was unlikely to be workable.

236. Most significantly, the Panel’s view was that conditions of practice would not reflect the gravity of the sexual misconduct findings in this case given the lack of insight and remediation demonstrated by the Registrant, nor would such an order address the concerns regarding the wider public interest.

237. Referring to paragraph 109 of the Sanctions Policy, the Panel was not satisfied that the Registrant’s conduct was minor, out of character, capable of remediation (the sexual misconduct) or that it was unlikely to be repeated. These factors indicated that a Conditions of Practice Order was not appropriate in this case.

Suspension

238. The Panel carefully considered whether an order of Suspension would be sufficient to address the public protection and public interest concerns in this case.

239. The Panel referred to paragraph 121 of the Sanctions Policy. The concerns represent serious breaches of the Standards of Conduct for Physiotherapists. The Registrant has shown only very minimal insight. The Panel did not consider the concerns were unlikely to be repeated. There has not been satisfactory evidence to suggest that the Registrant is likely to be able to resolve or remedy their failings.

240. The Panel concluded that a Suspension Order would not provide adequate protection to the public or the public interest nor would it maintain public confidence in the Physiotherapy profession.

Striking Off Order

241. The Panel concluded that the only appropriate and proportionate sanction in this case was a Striking Off Order. The allegations concerning Service User D were very serious. The Registrant had demonstrated minimal insight or attempt at remediation. Considering paragraph 131 of the Sanctions Policy, despite the assertions in his very recent statement of 31 July 2024, the Registrant had not demonstrated any real intent or efforts to remedy the misconduct. The Registrant remained a continuing risk to service users and the public. The sexual misconduct found proved at this hearing was fundamentally incompatible with registration as a health professional on the HCPC Register.

242. The Panel considered the proportionality of its decision. It took into account the Registrant’s submissions about the detrimental impact on his financial and family circumstances. However, the Panel concluded that any lesser sanction than a Striking Off Order would not address the issues of wider public interest and public confidence in the Physiotherapy profession and in the regulatory process. The Panel therefore concluded that these issues outweighed Registrant’s interests in this case.

243. The Panel directed that a Striking Off Order be made in respect of the Registrant, Mr Daniel Start.

That the Registrar is directed to strike the name of Daniel Start from the Register on the date this order comes into effect.

Right of Appeal

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.
Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

Application for an Interim Order:

1. The Panel first considered Ms Danti’s application to proceed in the Registrant’s absence. Ms Danti confirmed that the Notice of Hearing of 21 May 2024 gave the Registrant notice that an application for an interim order may be made in the event that the Panel made a substantive order.

2. Ms Danti submitted that the position regarding the Registrant’s attendance had not changed since her application to proceed in his absence at the beginning of this resumed hearing, on 31 July 2024. The Panel had determined to proceed in the Registrant’s absence following his decision to leave the hearing. Ms Danti made her current application in the same terms.

3. The Legal Assessor confirmed her earlier advice. The Panel noted that the Notice of Hearing for this resumed hearing, dated 21 May 2024, put the Registrant on notice that an application for an Interim Order may be made if the Panel imposed a sanction which removed, suspended, or restricted his right to practise. The position regarding the Registrant’s attendance had not changed since 31 July 2024 and the Panel was satisfied for the same reasons that it was in the public interest to proceed to hear the application in the Registrant’s absence.

4. Ms Danti made an application for an Interim Suspension Order for a period of 18 months to cover the appeal period. Her application was on the grounds that an interim order was required for the same reasons as the Panel had identified in its substantive decision to make a Striking Off Order. She submitted that this order was necessary for the protection of the public and was otherwise in the public interest.

5. The Panel accepted the advice of the Legal Assessor. It bore in mind that an interim order in these circumstances does not follow automatically because it has made a substantive order. The Panel must consider whether an interim order is required applying the test set out in Article 31(2) of the Health Professions Order 2001, and if it so decides, must act proportionately. This means balancing the public interest with the interests of the Registrant, and imposing the lowest order which will adequately protect the public.

6. The Panel was referred to the guidance in respect of immediate interim orders in the HCPTS Practice Note, Interim Orders (June 2022).

7. The Panel considered the issue of proportionality and balanced the interests of the Registrant with the public interest. The Panel concluded that, for the same reasons set out in its substantive decision, a Conditions of Practice Order would not be appropriate in the circumstances of this case. The Panel had determined to impose a substantive Striking Off Order and, given the gravity of the issues and the sanction imposed, the Panel considered it would be inconsistent not to impose an immediate interim suspension order.

8. The Panel therefore determined, for the same reasons as it gave for its decision to impose a substantive Striking Off Order, that an Interim Suspension Order was necessary in order to protect the public and was otherwise in the public interest.

9. The Panel concluded that the appropriate and proportionate duration of the Interim Suspension Order was 18 months, as the interim order would continue to be required pending the resolution of an appeal in the event of the Registrant giving notice of an appeal with the 28-day appeal period.

Interim Order:

The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. This order will expire, if no appeal is made against the Panel’s decision and Order, upon the expiry of the period during which such an appeal could be made, or, if an appeal is made against the Panel’s decision and Order, upon the final determination of that appeal, subject to a maximum period of 18 months.

 

History of Hearings for Daniel Start

Date	Panel	Hearing type	Outcomes / Status
31/07/2024	Conduct and Competence Committee	Final Hearing	Struck off
15/04/2024	Conduct and Competence Committee	Final Hearing	Adjourned part heard