Mr Shishir B Meshram

Preliminary matters

1. At the outset of the hearing, the Chair confirmed that the Panel had been provided with the following documentation:

i) Exhibit B1 – Hearing bundle consisting of 346 pages;

ii) Exhibit B2 – Service bundle consisting of 5 pages;

iii) Exhibit B3 – Registrant’s written statement 47 pages; and

iv) Exhibit B4 – HCPC Opening note consisting of 5 pages.

Application for parts of the hearing to be heard in private

2. Ms Collins, appearing on behalf of the HCPC, invited the Panel to conduct the parts of the hearing pertaining to the Registrant’s health in private. She submitted that conducting the parts of the hearing in private would protect the Registrant’s right to a private life.

3. Mr Meshram did not oppose Ms Collins’ application for parts of the hearing to be considered in private.

Panel Approach

4. The Panel accepted the Legal Assessor’s advice which had drawn its attention to Rule 10 of the Conduct and Competence Procedure Rules 2003 (hereafter ‘the Rules’). The Panel also had regard to the HCPTS Practice Note on ‘Conducting Hearings in Private’ and it had regard to the parties’ submissions. The Panel also carefully considered the public interest grounds in the case being heard in public.

Panel decisions in respect of privacy applications

5. Having considered Ms Collins’ application, the Panel was satisfied that the matters pertaining to the Registrant’s health should be heard in private to maintain the Registrant’s right to a private life. The Panel was satisfied, having considered the matter carefully, that the Registrant may suffer disproportionate damage if it did not hear the parts pertaining to his health in private.

6. The Panel therefore ordered that the matters concerning the Registrant’s health be conducted in private.

Application to amend the Allegation

7. Ms Collins made an application to amend the Allegation in respect of the following:

i) Particular 2(a)(iv) – to be deleted;

ii) Particular 6 – the word ‘motivated’ to be deleted;

iii) Particular 9 – to correct the spelling of the word ‘practise’; and

iv) Removal of the words ‘your fitness to practise is impaired by reason of misconduct and/or health in that’.

8. Ms Collins submitted that in respect of Particular 2(a)(iv), the HCPC offered no evidence in respect of this Particular because the evidence before the Panel, in the expert’s report, states that the lower leg was acceptable to be touched and that there could have been clinical justification for touching this part of the SU’s body.

9. Ms Collins further submitted, when referring to Particular 6, that the word ‘motivated’ ought to be removed so that the wording of the Particular just stated ‘sexual’. She stated that it was the view of the HCPC, that this brought the Allegation in line with the caselaw of Basson v GMC [2018] EWHC 505 (Admin) and GMC v RH [2020] EWHC 2518. Ms Collins drew the Panel’s attention to the fact that in these two cases, ‘sexual motivation’ was considered to be an act which was pursuant of a sexual relationship or performed for some sexual gratification. Whereas in the Registrant’s case, there is no evidence of either and that further, SU 3 stated that when she looked down at the trousers of the Registrant, she did not see an erection, so the HCPC case is that there is no evidence for the ‘sexual gratification’ aspect of the caselaw but there is evidence of it being ‘sexual’ alone. Ms Collins also submitted that by removing the word ‘motivated’, it would broaden the scope of the Particular, but that it more accurately reflected the misconduct of the Registrant.

10. In relation to Particular 9, Ms Collins stated that the amendment to the Particular was sort to correct a typographical error and in respect of the Stem of the Allegation, Ms Collins stated that the removal of the words ‘your fitness to practise is impaired by reason of your misconduct and/or health in that’ because this was already contained within Particulars 8 and 9 and it would prevent the Panel from having to determine fitness to practise prior to considering the Particulars within the Allegation.

11. Ms Collins also submitted that the Panel had an inherent power to make any amendments to the Allegation and she drew the HCPTS practice note titled ‘Case Management Directions and Preliminary Hearings’ to the Panel’s attention. She also highlighted to the Panel that the Registrant had been put on notice of the proposed amendments to the Allegation on 19 August 2022 and stated that he had not provided any comments in response to the HCPC.

12. The Registrant did not object to the proposed amendments to the Allegation.

Panel’s approach

13. The Panel accepted the advice of the Legal Assessor and it had regard to the parties’ submissions and to the documentation provided to it.

Panel decision

14. The Panel concluded, after reviewing each of the proposed amendments, that whilst one amendment amounted to a material change (Particular 6), it would agree to the Particulars being amended for the following reasons:

i. the Registrant had been provided with notice of the HCPC’s intention to amend the Allegation, having been put on notice in August 2022, six months before the commencement of the Substantive Hearing;

ii. the Registrant had not provided any objection to the proposed amendments;

iii. on the whole, the proposed amendments were to provide further clarification and better particularisation of the Allegation; and

iv. the proposed amendments did not heighten the seriousness of the Allegation and therefore there was no likelihood of injustice to the Registrant.

Admissions

15. After the Allegation was read into the record, the Registrant stated that he admitted Particular 2(a)(i) and (ii) in the respect that a massage was undertaken by him, but he denied that it was not in line with the SU’s presenting injury.

16. In respect of Particular 3, the Registrant stated that at the time he provided treatment to the SU, he was under the belief that he did have informed consent. However, having had the benefit of reading the SU’s witness statement, he now felt that there may have been a “gap in communication” which meant that informed consent may not have been obtained.

17. In respect of Particular 2, after receiving legal advice from the Legal Assessor, the Panel determined to treat the Registrant’s admission as an equivocal plea and therefore considered that it ought to be considered as a denial at this stage of the proceedings, albeit the Panel would have regard to the Registrant’s submissions to it when determining facts.

 

Background

18. The Registrant is registered with the HCPC as a Physiotherapist.

19. At the material time the Registrant was employed by Ascenti as a Band A1 Physiotherapist, in two centres in North East Essex, Crusader Surgery and Bannatyne Health Club.

20. It is alleged that the Registrant provided treatment to 3 SUs, which was not in line with their presenting injuries, inappropriate and sexual in nature. Further, the Registrant is alleged to have not obtained informed consent from the SUs for the treatment he provided. He is also alleged to have failed to maintain accurate records of the treatment provided to the SUs.

21. During Ascenti’s investigation, concerns were also raised about the Registrant’s health.

22. On 4 December 2020, Ascenti referred the Registrant to the HCPC.

Summary of evidence

23. The HCPC relied upon the evidence of five witnesses. The witnesses were as follows:

i) JB – Chief Governance and quality Officer at Ascenti;

ii) WH – Area Manager at Ascenti;

iii) SU 1 (SU 1);

iv) SU 3 (SU 3);

v) Jason Howard – Expert Witness; and

vi) RM – Legal Assistant at Kingsley Napley LLP.

24. The HCPC also relied upon the evidence contained within Bundles B1 and B2.

25. The Registrant also gave evidence to the Panel and relied upon the documentation contained within B3.

26. Given the nature of the Allegation, SU 1 and SU 3 were cross-examined by Special Counsel appointed by the HCPC.

Additional evidence

27. During the course of the hearing, the Registrant made a number of applications to adduce additional documents.

28. The accounts below are provided as a summary of each of the witnesses’ evidence to the Panel and are not a verbatim account of the evidence provided.

Witness JB

29. JB told the Panel that he was currently the Chief Governance and Quality Officer for Ascenti Health Ltd (‘Ascenti’) and that he had held the role for four and a half years. He informed the Panel that he was responsible for governance, safety, risk, compliance and quality, ensuring that the services offered by Ascenti were compliant with its regulatory, legal and internal policies. JB also told the Panel that whilst he was a qualified Physiotherapist, registered with the HCPC, he does not work in this role.

30. JB informed the Panel that the Registrant was a Band A1 Physiotherapist who started working for Ascenti on 8 October 2020. JB provided to the Panel a list of the mandatory training courses undertaken by the Registrant when he commenced working for Ascenti. JB accepted, in his witness statement and in his oral evidence, that he could see from Acenti’s training record for the Registrant, that the Registrant had not completed eleven of the twenty-one mandatory courses, one of which was a course called ‘Capacity, communication and consent’. JB told the Panel that he was unaware why the eleven courses were not undertaken and that this should have been “picked up” by the Area Manager, AY. However, JB also stated that the training course provided by Ascenti, should just have acted as a refresher on the subject matters undertaken on any physiotherapy degree course.

31. JB told the Panel that he had not met the Registrant personally.

32. JB also informed the Panel that following concerns being raised with Ascenti, an investigation was commenced to review the Registrant’s conduct in respect of three SUs (SUs 1, 2 and 3).

33. JB told the Panel that he could see from the investigation report, that the investigation into the Registrant’s conduct was commenced on 23 November 2020 and a Senior Management Panel (‘SMP’) was convened. JB told the Panel that his role was to co-ordinate the investigation and ensure that a fair procedure was followed.

34. JB also told the Panel that the SMP corresponded regularly, via email, and met on three occasions (24 November 2020, 26 November 2020 and 1 December 2020). A further meeting was held on 2 December 2020, which was also attended by the Registrant and the outcome of that meeting was that the finding of the investigation was conveyed to the Registrant.

35. JB stated that a witness statement was taken from the Registrant by AY as AY was the Registrant’s line manager at the time. JB also informed the Panel that a decision was taken to remove the Registrant from clinical practice on 24 November 2020. JB also informed the Panel that as part of the investigation a review was undertaken of the Registrant’s treatment notes in respect of the SUs 1, 2 and 3 and the audit of the Registrant’s records raised concerns, such that a more detailed look at the Registrant’s record keeping was undertaken. The review of the Registrant’s record keeping, raised concerns in respect of his lack of detail on which areas of a patient’s body that he was treating, the clinical reasoning for a treatment being provided and that there were clear discrepancies between when SU’s recalled treatment being provided and the Registrant’s treatment notes.

36. JB also told the Panel that contact was made, by staff at Ascenti, with SU’s 1, 2 and 3, but that SU 2 did not engage with Ascenti’s investigation. However, a telephone attendance note from the conversations with SU’s 1 and 3 was made and he exhibited these to the Panel.

Informed consent

37. In respect of informed consent, JB told the Panel that the complaints submitted by SU’s 1, 2 and 3, all raised concern regarding the Registrant’s understanding of informed consent and how it should be obtained. JB stated that informed consent involved a practitioner “explaining exactly” what a practitioner was going to do in respect of treatment, and the patient confirming that they understand and accepted the treatment proposed. JB also added that it must be clear to the practitioner that the patient has understood what has been explained to them.

38. JB informed the Panel that a patient’s consent should be recorded and it must be obtained prior to the assessment and treatment and the ‘tick box’ on the Ascenti software (called Greencliff) should be ‘ticked’. This, JB stated, confirmed that the patient had consented to treatment. JB also added however, that informed consent was a “dynamic process” and that by this, he meant that consent was not just obtained at the beginning of a treatment session, but rather it should be revised throughout the appointment and for every part of the treatment that is provided or administered. JB told the Panel that the patient consenting to the treatment at the start of the session would not be adequate. JB also informed the Panel that he would only expect key issues relating to informed consent to be recorded in the treatment notes, notably if it was refused or if another salient conversation took place between the practitioner and the patient.

39. JB told the Panel that the difficulty for the SMP was that discussions around consent would not necessarily be captured in the treatment notes, so a review of a patient’s notes would not necessarily resolve the apparent discrepancy, in terms of whether consent was provided, between the Registrant and each SU. However, JB also stated that he would have expected the Registrant to have recorded consent to provide treatment to each SU in the treatment notes.

40. JB also told the Panel that the understanding of informed consent was a basic competency covered on any physiotherapy degree course and that there was guidance on the issue of consent available to all staff at Ascenti, on Ascenti’s intranet system.

41. JB also gave evidence to the Panel that where there was a need for a Physiotherapist to treat an intimate area on a patient, for example the chest, buttocks or the thighs, then he would expect the practitioner to have a detailed conversation with the patient regarding consent and that he would expect a chaperone to be offered as well as offering for the patient to continue treatment with a practitioner of the same sex as the patient and that if one of these options was chosen by the patient, that this should also be noted.

SU 1

42. JB told the Panel that he could see from the patient notes that SU 1 required physiotherapy following a road traffic accident on 8 October 2020. JB stated that she attended for an initial assessment appointment with the Registrant on 6 November 2020 and a further appointment on 13 November 2020. JB stated that SU 1 submitted a complaint to the customer services team, at Ascenti, on 13 November 2020 but unfortunately, the telephone call had been logged as ‘low risk’ so the governance team did not receive notification of the complaint until 23 November 2020 when the incident was logged as ‘high risk’ and the SMP was convened to investigate it.

43. JB stated that when he was asked to comment on the clinical records of SU 1, made by the Registrant, he noted that the Registrant had assessed SU 1 on 06 November 2020 and had formed the clinical impression that she had a Whiplash Associated Disorder and a right rotator cuff injury. JB told the Panel that as a qualified physiotherapist, the Registrant was qualified, and in a position, to form this clinical impression. JB explained to the Panel that the rotator cuff is the group of muscles and tendons located at the top of the arm that hold the joint in place and enable the rotation of the shoulder joint. JB also told the Panel that on his review of the clinical notes for SU 1, it was not possible to ascertain how this diagnosis was reached as it did not appear from the treatment notes that the SU’s neck or rotator cuff were fully assessed. JB stated that this should have been recorded under the objective assessment section in the treatment notes.

44. In stating this, JB explained to the Panel that the objective assessment section of the treatment notes, is where the therapist records what they have observed through physical assessment. JB also told that Panel that in his view, the diagnosis reached by the Registrant was plausible and “sounded reasonable” given SU 1’s presenting injury. However, it was, in his view, not possible to follow the Registrant’s clinical reasoning based on the treatment notes which had been made by the Registrant.

45. JB told the Panel that he had formed this view because there was no evidence of tests having been recorded or undertaken in the treatment notes to determine muscle strength and there was no grading of the strength of the shoulder joint that might demonstrate weakness. Nor were there specific orthopaedic tests for the shoulder which should also, in his view, have been recorded in the notes. JB told the Panel, that overall, it was not possible to ascertain from the notes the Registrant’s reasoning behind listing some of these indicative factors.

46. JB told the Panel that during SU1’s second appointment with the Registrant, on 13 November 2020, the structures mentioned in the treatment notes were as follows: ‘supraspinatus; the teres minor; and the infraspinatus’. Which JB explained all formed part of the rotator cuff muscles in the shoulder and the pectorals which are the muscles at the front of the shoulder and at the top of the chest.

47. JB stated that he recalled that SU1’s account of the Registrant’s treatment of her was that the Registrant had massaged her breasts. JB also told the Panel that assuming that SU1’s account was correct, then the Registrant had not recorded providing treatment to this area and that he could see no clinical justification, with the SU’s presenting injury, to provide any treatment to this area of the SU’s body.

SU 2

48. In respect of SU 2, JB told the Panel that he could see from her treatment notes that she was being seen for treatment, following a road traffic accident which resulted in muscle tenderness in her shoulder, lower back and left gluteal (which he explained was in the left buttock). JB stated that SU 2 appeared to have “full range of movement” and that the initial assessment, he believed, had been undertaken by another physiotherapist and not by the Registrant.

49. JB told the Panel that SU 2 did not engage with Ascenti’s investigation, but he did recall there was a discrepancy between the SU’s account of the treatment administered by the Registrant and the treatment notes.

50. JB stated that he noted from the treatment notes, that the Registrant had recorded in the patient notes ‘Body part treated was as above’ and that this was not adequate record keeping as he explained to the Panel that it needed to be clear precisely which structures were treated. JB informed the Panel that the HCPC standards required that records be “full and accurate” and that in his view, writing ‘as above’ did not meet this requirement.

SU 3

51. In relation to SU 3, JB told the Panel that he could see from her treatment notes that she required Physiotherapy treatment following surgery needed to repair an ankle fracture. However, in the treatment section of the SU’s notes, the Registrant had recorded the treatment area as the ‘right calf’. JB stated that again, in his view, this was not adequate record keeping as the Registrant had not specifically stated what structures within the right calf were treated or at least given any indication as to the orientation of the treatment using directional terms and references to the different ‘planes of the body such as the anterior (front), posterior (back), or the lateral (away from the midline of the body), or the distal (furthest from the trunk), or the proximal (nearest the trunk), nor had he specifically stated which anatomical structures were being treated’.

52. JB also told the Panel that, in his view again, there was no clinical justification for why the Registrant carried out deep tissue massage on SU 3 and that overall, the treatment provided by the Registrant does not appear to be in line with how the SU was presenting.

53. JB also informed the Panel that from the treatment notes he could see that SU 3 had two further appointments with the Registrant on 11 and 18 November 2020 and that in both appointments, the Registrant has recorded that SU 3’s right calf, hamstring and right quads were treated. However, upon review, JB stated that he could find no objective finding or functional reason listed as to why treatment was administered in the manner it was.

Concern in respect of the Registrant’s anatomical knowledge

54. JB also told the Panel that to the best of his recollection, another issue in respect of the Registrant’s anatomical knowledge had been raised, in that when WH had been liaising with the Registrant regarding his witness statement, on Microsoft Teams, WH had some concerns about the Registrant’s understanding of where the pectoralis minor and subscapularis muscles were located on the body. JB stated that when WH asked him to demonstrate the location of these structures, the Registrant indicated an area approximately along the fifth rib, to the side of the chest, which is not where the muscle is located. JB stated that the Registrant, during his conversations with WH, did reportedly mention the pectoralis minor area, which would be more accurate to the area the Registrant pointed to, although this portion of the muscle wouldn’t be expected to be impacted by the seatbelt.

The Registrant’s health during the Ascenti investigation

55. [Redacted]

56. [Redacted]

57. In response to cross-examination from the Registrant, JB accepted that no one other than the Registrant and the SU’s had been present in the treatment rooms when treatment was provided by the Registrant. Further, he also accepted that other clinicians had also, on the face of the material before him and the Panel, appeared to have used the term ‘as above’ in the clinical notes for patients at Ascenti.

58. In response to questions from the Panel, JB confirmed that the Registrant had been employed as an entry level Physiotherapist. JB also stated that each appointment would usually consist of thirty minutes, but that it would not be impossible for a session to run for a longer period than this.

Application for special measures in respect of SU 1

59. Ms Collins made an application for special measures in respect of SU 1 giving her oral evidence to the Panel. She drew the Panel’s attention to 10A(e) of the Rules and submitted that in order to achieve SU 1’s best evidence the HCPC invited the Panel to order the Registrant to turn off his camera so that SU 1 would feel less “stressed”.

60. Mr Barlow, Special Counsel appointed to cross-examine SU 1 on the Registrant’s behalf, indicated, on the Registrant’s behalf, that the Registrant raised no objection to the special measures requested by the HCPC.

Panel’s approach and decision

61. The Panel had regard to the parties’ submissions and it accepted the advice of the Legal Assessor, which had drawn its attention to the HCPTS Practice Note titled ‘Special Measures’ and to Rule 10A 1(e).

62. Having considered the HCPC application, the Panel granted special measures and ordered the Registrant to mute his camera and microphone so that SU 1 would not be able to see or hear him whilst she gave her oral evidence to the Panel.

63. In determining to grant the application, the Panel formed the view that SU 1 could be considered to be ‘vulnerable’ within the meaning of Rule 10A. Further, the Panel also considered that the Allegation before it was serious and noted that it concerned alleged inappropriate sexual conduct and that by ordering the Registrant to mute his camera and microphone, this special measure would ensure that SU 1 was afforded with every opportunity to give her best evidence to it.

64. Additionally, the Panel also considered that there would be no prejudice to the Registrant. Mr Barlow had been appointed as Special Counsel to cross-examine SU 1 and he would be able to see and hear SU 1’s evidence. Mr Barlow, on the Registrant’s behalf, had not opposed the application and further, the Panel had agreed to the suggestion from the Legal Assessor, that the Registrant should be afforded with additional time, at the conclusion of SU 1’s cross-examination, to liaise with Mr Barlow, so that should the Registrant have further questions of her, then those questions could be discussed and put to her by Mr Barlow.

65. Consequently, having regard to all of the aforementioned, the Panel considered that it was in the interests of justice to order the Registrant to mute his camera and microphone and that he would suffer no prejudice if it ordered him to do so.

66. The Panel therefore directed the Registrant to mute his camera and microphone for the duration of SU 1’s evidence.

SU 1

67. SU 1 told the Panel that on 8 October 2020 she was involved in a car accident, which resulted in her being unable to raise her right arm and her insurance company referred her to a doctor, who in turn referred her to Ascenti physiotherapy. SU 1 told the Panel that she had four physiotherapy appointments, but only the first two were with the Registrant.

68. SU 1 also told the Panel that during her first appointment with the Registrant, on 6 November 2020, the Registrant called her into the treatment room. She said that in the treatment room there was a desk, two chairs and a treatment bed. She told the Panel that during this first session, the Registrant had told her that the first session was primarily an “assessment session” meaning that the Registrant would discuss her injury, examine her shoulder and decide how many sessions she would require in total.

69. SU 1 gave evidence to the Panel that the Registrant asked her about her injury and she showed him that she could only raise her right arm to a 90-degree angle due to pain and stiffness in her right shoulder. SU 1 told the Panel that she did not report any pain or discomfort in her chest, neck, or down the side of her abdomen. SU 1 also told the Panel that she could not recall specifically whether the Registrant asked for her permission specifically before he began touching her, but that she felt that her consent had been implied because she was always aware that he was going to have to touch and handle her shoulder in order to complete the assessment. SU 1 gave evidence to the Panel that throughout the physical part of the assessment she had remained seated on one of the chairs in the room.

70. SU 1 also told the Panel that the Registrant started the assessment by applying pressure around the back, front and side of her right shoulder including all around the very top of her right arm and on her shoulder blade. SU 1 stated that as the Registrant was pressing down on her body, he would ask if she was in pain and she confirmed at various points that there was a dull ache. Additionally, SU 1 told the Panel that this pressure was applied for about ten minutes and that he also lifted her arm to assess how restricted her movement was.

71. SU 1 also informed the Panel that the Registrant then continued to apply pressure to her right armpit, pressing down on her skin in the same way that he had done with her shoulder, but he then worked his way down to the side of her right breast. SU 1 told the Panel that the lowest his hand went, was just beneath her right breast. SU 1 told the Panel that she was wearing a ‘vest top and bra’ and that while the Registrant moved his hand down the side, applying pressure, his hand was tucked underneath her vest top and bra so that his hand was in direct contact with her skin on the side of her right breast. SU 1 told the Panel that she would estimate that the Registrant’s hand was two centimetres or so inside her bra and that she was not sure how long the Registrant was touching her breast, but that it was less than five minutes. SU 1 also told the Panel that whilst the Registrant had been doing this, he had been asking her whether there was any tenderness down her side and she had told him that there was not.

72. SU 1 also informed the Panel that she had not been uncomfortable during the appointment until he had placed his hand to the side of her breast, inside of her bra. She told the Panel that the Registrant had not given her any warning that he was going to make contact with her breast and at no point during the appointment had he told her where exactly he was going to touch her in order to complete the assessment. SU 1 told the Panel that she had mainly been surprised that the Registrant had done this to her and that she did not think she reacted in any way, but that at the time, she did consider whether it was appropriate treatment as the breast was far removed from her shoulder.

73. SU 1 told the Panel that the initial assessment ended after the Registrant had touched her breast and he informed her that she would require eight sessions of physiotherapy. She told the Panel that the Registrant booked in the next session with him whilst she was present in the room and he demonstrated some exercises that she could complete at home and that she repeated them to confirm she had understood and could complete them. SU 1 told the Panel that Ascenti had an “app” (meaning an online application) which could be accessed by patients when at home, so that they could follow the exercises and the Registrant had informed her that he would upload the exercises onto the “app”.

74. SU 1 told the Panel that after this initial assessment, it had crossed her mind again whether or not the Registrant had acted professionally. When she returned home, she discussed the incident with her mother, who said “if I thought it was not right, then it probably was not”. However, SU 1 later convinced herself that the Registrant was a professional and that he knew what he was doing and that she had been “overthinking things”. She also told the Panel that aside from the touching of the breast, she had no other concerns after the initial assessment.

SU 1’s second session on 13 November 2020

75. SU 1 told the Panel that she arrived for her second session with the Registrant and there was a short conversation at the start before the treatment began. SU 1 stated that the Registrant had asked her how she had been getting on with the at-home exercises and then informed her that he had only been able to secure six treatment sessions with her insurer, rather than the eight which he had suggested. SU 1 told the Panel that the Registrant then told her he wanted to get started on treatment straight away and asked her to lie face-down on the treatment bed.

76. SU 1 stated that the Registrant did not explain the treatment that he was going to administer and, aside from what had occurred during the initial assessment appointment, she had no idea what treatment would be provided to her.

77. SU 1 told the Panel that the Registrant started by massaging her injured right shoulder and that at this point she was fully clothed. She told the Panel that he used massage oil and was massaging up her right side of her back, the top of her right shoulder and around the top and side of her right arm. She informed the Panel that he used both hands to do this. SU 1 stated that she thought that he spent about fifteen minutes doing this. SU 1 also told the Panel that a few minutes into this treatment the Registrant asked her to unhook the straps of her bra and vest top from over the top of her shoulder so that they could be pulled down and loose around her upper arm. She stated that the Registrant had told her that this was so that he could “access” this area of her body. SU 1 told the Panel that she was happy to oblige because it did not make her feel any less covered and it made sense for him to get the straps out of the way.

78. SU 1 stated that the Registrant then asked her to turn over and that he stated that this was so that he could “get to the front”. SU 1 told the Panel that she rolled over so that she was lying on her back on the treatment bed. She explained to the Panel that she still felt comfortable at this stage because although the straps were down and off of her right shoulder, the vest top was still fully covering her chest so she did not feel exposed. SU 1 stated that the Registrant started to massage her right shoulder and upper right arm however, he then continued moving his hands lower and across so that he was massaging my chest between her neck and her breasts. She told the Panel that the Registrant then began moving across her chest and started massaging her uninjured left shoulder, which she found strange. SU 1 also informed the Panel that whilst she could not recall during which appointment it had occurred, during one of the appointments the Registrant had told her that her shoulders were “forward” and that he would also need to address this aspect of her posture, but stated that he did not elaborate any further.

79. SU 1 told the Panel that the Registrant then asked her if she could pull her top and bra down to her torso, using words to the effect of “are you able to pull them down?”. SU 1 explained to the Panel that at this stage the Registrant did not offer her anything to cover herself with and she informed him that she did not feel comfortable doing that and his response was to say that he may get massage oil on her bra and vest and she, in response to him, had told him that was fine.

80. SU 1 then stated that the Registrant, using both hands, moved to massaging her breasts. She explained to the Panel that both of his hands were underneath her bra and vest and that he made contact with both of her nipples when he did so and that he massaged her in this area for approximately fifteen to twenty minutes. SU 1 told the Panel that the Registrant did not warn her that he was going to do this, nor did he ask for her permission to do so. SU 1 told the Panel that she felt very uncomfortable and it occurred to her at this juncture, that what was happening was “not right”. SU 1 told the Panel that she thought the Registrant had sensed her discomfort because of her tense body and that he said words to the effect of “it’s always more awkward doing this on a woman because of where I have to touch”. SU 1 explained to the Panel that even though she felt uncomfortable she again convinced herself that the Registrant was doing nothing wrong.

81. SU 1 then informed the Panel that after about fifteen to twenty minutes of doing this the Registrant then asked her to move back to the chair and that he did not explain to her why he had wanted her to do this. She told the Panel that he again started massaging her injured right shoulder and arm and spent about five minutes on this area. She told the Panel that again his hands massaged along her chest and that he adopted the same massage technique that he had used previously. She said although her back was to the Registrant, she could feel his entire body on her back whilst he was massaging her. She told the Panel that again, whilst in this position, the Registrant again began massaging her breasts and that again both of his hands were underneath her bra and vest top and that both hands made full contact with both of her breasts. SU 1 told the Panel that she felt very uncomfortable at this point because the Registrant had his body against her back and because he said “this is a much better position for me”. SU 1 told the Panel that she did not feel that this comment was very clinical and it made her feel uncomfortable. SU 1 told the Panel that again he asked her to pull down her vest top and bra and he did not offer to leave the room nor did he offer to give her anything to cover herself with. SU 1 told the Panel that she again refused to do so. SU 1 told the Panel that the Registrant continued to massage her breasts and by this point she felt strongly that what was happening was wrong and that she couldn’t wait for the session to end.

82. SU 1 told the Panel that during neither the initial, or second appointment did the Registrant refer to any clinical diagram of the human body to explain treatment to her.

83. SU 1 also told the Panel that the second appointment was meant to last for thirty minutes, but that she recalled it had lasted longer, although she was not certain how long she had been in the treatment room. She also told the Panel that the Registrant did not inform her that the session was going to last longer than the anticipated thirty minutes. All she recalled was that during the session, the Registrant said “oh, my next patient has cancelled” and that he did not specifically state that he was going to extend her appointment.

84. SU 1 told the Panel that the second session ended in a similar fashion to the first. Namely, that the Registrant had given her some at-home exercises and booked in her next appointment with him. She also told the Panel that when she left the appointment, she felt horrible and that on the Monday following the appointment (Monday 13 November 2020) she telephoned Ascenti to speak with a customer service advisor. She told the Panel that she asked whether it would be normal to be massaged on the breasts, given that she had an injury to her right shoulder and the lady from customer services stated that she was not “medical” and therefore would get someone else to telephone her back. SU 1 confirmed that another Physiotherapist called her and asked her if she wanted to be seen again by the Registrant for her next appointment and she had declined.

85. SU 1 told the Panel that she had two further appointments at Ascenti, one on the 23 November 2020 and the other in January 2021, both appointments were conducted by female physiotherapists and neither had cause to touch her breasts. She also told the Panel that they did not “massage” her, rather they applied pressure to her shoulder and that their techniques were “different”. During the last appointment, this session was primarily a “discharge session” as there had been an improvement in her condition, given the passage of time between November and January.

86. During cross-examination from Mr Barlow, SU 1 conceded that she had been told about there being two separate issues which required treatment, by the Registrant. First the car-crash whiplash injury and secondly, the ‘forward’ shoulders. SU 1 also made concessions that she could not categorically rule out that the Registrant had shown her charts whilst in the treatment room and stated that she just did not recall him doing so.

JH – expert witness

87. Witness JH confirmed that the expert report provided, and included within the HCPC bundle (B1), was true to the best of his knowledge and belief. He also confirmed that he had, subsequent to providing his expert report, been provided with a copy of the Registrant’s bundle (B3) and that the contents of his report and his expert opinion remained unchanged, notwithstanding the contents of B3.

88. JH summarised his report to the Panel and in doing so, he opined the following views:

In respect of SU 1

i) there was a lack of detail to clinically assess and justify a specific treatment pathway;

ii) there were no specific tests undertaken to identify the cause for the ongoing symptoms;

iii) treatment rationale was missing and vague massage to an unspecified area is not an acceptable standard of practise;

iv) a treatment plan and consent were not identified;

v) the initial assessment and clinical representation and the treatment provided was not in keeping with the presenting condition;

vi) objective assessment was very weak and lacks detail (5 November 2020);

vii) treatment is non-specific and does not provide any useful clinical information on what is being treated or why;

viii) in respect of the session on 10 November 2020, ‘thoracic and cervical region’ does not provide any clinical meaning or direction;

ix) referring to a body part treated by using the term ‘as above’ does not provide a clear idea of what and why various structures are being treated and does not fit with the SU’s statements;

x) there was absolutely no clinical justification for the Registrant to massage the patient’s breasts;

xi) if it is found proved that the Registrant did this, then this conduct would fall significantly below that expected of a competent practitioner;

xii) treatment of the left shoulder was not in line with the presenting injury (right shoulder) and any clinical justification should be well documented, which it was not in this case;

xiii) if part of a SU’s clothing needed to be removed to enable treatment to be provided, then the SU should offer and have available other forms of cover to preserve the SU’s dignity. Further, a chaperone should be offered at all times when an intimate area needs exposing;

xiv) exposure of the shoulder area might have been necessary to allow access to apply certain treatments to that area and adopting difference techniques. However, any exposure should be respectful and carefully managed to ensure no embarrassment;

xv) the Registrant should have offered to leave the room when the Servicer User’s shoulder was being exposed; and

xvi) if it is found that the Registrant failed to maintain the SU’s dignity then this would fall far below the required standard of a practitioner.

In respect of SU 3

xvii) the initial assessment was undertaken by a different clinician and indicated a fracture to the right ankle which presented with ongoing ankle pain. The ankle and calf were subsequently treated by different therapists;

xviii) there was no indication of other areas needing or having treatment undertaken;

xix) not all of the treatment provided was in line with the presenting condition;

xx) there was no objective testing of the upper leg or hip;

xxi) there was no evidence or clinical rationale to massage the upper thigh and buttocks with the presenting condition;

xxii) previous clinicians had treated the lower limb;

xxiii) exposure of the buttock is not clinically justified and should be discussed with the patient to ensure consent;

xxiv) in accordance with the clinical notes and records, and considering the presenting condition, there was no clinical justification to massage areas outlined within the Allegation;

xxv) the Registrant should have provided clear explanation and reasoning behind the suggested treatment whilst completing clear documentation with sound clinical justification to justify his decision making;

xxvi) a chaperone should have been offered;

xxvii) the Registrant should have provided adequate cover to maintain the SU’s dignity;

xxviii) there was nothing to confirm that informed consent had been obtained from SU 1 or 3;

xxix) a finding that the Registrant did fail to obtain informed consent, would constitute a significant departure from the standards expected; and

xxx) in his opinion, there was a lack of consent obtained, by the Registrant, for SU’s 1, 2 and 3.

89. JH also opined the views that a lack of knowledge of anatomical structures represents a standard below that which is expected and that the Registrant’s records clearly demonstrated a lack of detail, clinical rationale and effectivity. JH also stated that the Registrant’s records showed significant gaps and a lack of rationale with regards to the treatment of specific structures. Further, JH told the Panel that a large amount of the required information was missing and there were minimal clinical records referring to relevant physiotherapy techniques or treatment modalities. JH stated that there appeared to be a large focus on deep tissue massage and often to areas not specifically related to the SUs presenting injuries. He also told the Panel that there would never be a reason to treat breast tissue as a physiotherapist.

90. In response to questions from the Registrant when putting his case to him in respect of Particular 5, JH accepted that the pectoralis minor, would have some ‘involvement’ with the fifth rib on a SU’s body.

91. He also accepted that ‘as above’ would be acceptable, if the Registrant had been told that it was an accepted term to use within his practice whilst working for Ascenti and that if the patient’s presenting condition had been outlined within the notes, there would be no point replicating this on each occasion the patient was seen. However, he also stated that the Registrant still maintained a clinical responsibility to write and keep appropriate notes to ensure that anybody can understand what you are treating and what your treatment direction and plan is.

92. JH also accepted that ‘general consent’ had been documented in respect of SU 1 and stated that his view was ‘in terms of consent and explicit consent, from a verbal perspective this is recorded in this case’.

93. JH also accepted, in respect of SU 3, that if the Registrant did offer a paper towel to SU 3 to cover her modesty, when her leggings were removed, then this would have been sufficient in the circumstances. JH also accepted that if SU 3 had informed the Registrant that she was having issues with squatting and/or her balance, then an assessment of the rest of her leg would have been clinically justified and that treatment of her thigh and ham strings may not have been inappropriate.

Application for special measures in respect of SU 3

94. Ms Collins made an application for special measures in respect of SU 3 giving her oral evidence to the Panel. She drew the Panel’s attention to 10A(e) of the Rules, and submitted that in order to achieve SU 3’s best evidence the HCPC invited the Panel to order the Registrant to turn off his camera so that SU 3 would “have the pressure taken off and reduce any possible trauma response”.

95. The Registrant raised no objection to the special measures requested by the HCPC.

Panel’s approach and decision

96. The Panel had regard to the parties’ submissions and it accepted the advice of the Legal Assessor, which had drawn its attention to the HCPTS Practice Note titled ‘Special Measures’ and to Rule 10A 1(e).

97. Having considered the HCPC application, the Panel granted special measures and ordered the Registrant to mute his camera and microphone whilst SU 3 gave her evidence to the Panel.

98. In determining to grant the application, the Panel formed the view that SU 3 could be considered to be ‘vulnerable’ within the meaning of Rule 10A. Further, the Panel considered, as it had when considered the application for SU 1, that the Allegation before it was serious and noted that it concerned alleged inappropriate sexual conduct and that by ordering the Registrant to mute his camera and microphone, this special measure would enable SU 3 to give her best evidence to it.

99. Additionally, the Panel again considered that there would be no prejudice to the Registrant. Mr Barlow had been appointed as Special Counsel to cross-examine SU 3 and the Registrant would be able to see and hear SU 3’s evidence. The Registrant had not opposed the application and further, the Panel had agreed to the same suggestion from the Legal Assessor, that the Registrant should be afforded with additional time, at the conclusion of SU 3’s cross-examination, to liaise with Mr Barlow, so that should the Registrant have further questions of the SU, then those questions could be discussed and put to her by Mr Barlow.

100. Consequently, having regard to all of the aforementioned, the Panel considered that it was in the interests of justice to order the Registrant to mute his camera and microphone and that he would suffer no prejudice if it ordered him to do so.

101. The Panel therefore directed the Registrant to mute his camera and microphone for the duration of SU 3’s evidence.

SU 3

102. SU 3 gave evidence to the Panel that in February 2020 she broke her right ankle whilst rock climbing and that in addition to the fracture, her doctors informed her that there was damage to the cartilage and the tendons between her ankle and calf. So, in March 2020, she underwent surgery and was then in a cast for approximately three months. SU 3 told the Panel that when she was discharged, she was informed that she would require physiotherapy as soon as she was able to walk again.

103. SU 3 told the Panel that via her employer, she had access to private healthcare and was able to book ten physiotherapy sessions. SU 3 stated that in total, she had approximately three or four physiotherapists for her treatment and that two of those had been provided by the Registrant.

104. SU 3 told the Panel that her first appointment was at the start of October 2020. Prior to her first appointment with the Registrant, SU 3 explained that she attended approximately four sessions. She stated that each of these sessions lasted approximately thirty minutes and each had followed the same structure. Each session would have five minutes at the beginning and at the end where the physiotherapist would discuss her progress and explain or demonstrate exercises that she should be doing at home and the remaining twenty minutes would be devoted to treatment. SU 3 told the Panel that the treatment consisted of massage and the application of pressure to specific points on the front, back or sides of her right calf depending on where she was feeling tension and the physiotherapists called this ‘pressure point work’.

105. SU 3 told the Panel that she wore leggings to all four appointments and had just “rolled the leggings up” to just above the knee on her right leg so that the physiotherapists could administer treatment.
The first session with the Registrant on 04 November 2020

106. SU 3 told the Panel that she arrived for an appointment on 04 November 2020 and the Registrant called her into the treatment room when he was ready for her. SU 3 told the Panel that the treatment bed was in the middle of the room and on the walls, there were posters of the human body showing the muscles and a few shelving units. She also told the Panel that there was lotion for massage and a roll of paper which was used to cover patients’ modesty.

107. SU 3 also told the Panel that as far as she could recall the first five minutes of the appointment were similar to the other sessions she had attended. She told the Registrant about her injury and recovery and gave him an account of what she had been working on with the other physiotherapists. She also told the Panel that she did not report any problems with her upper leg. SU 3 did tell the Panel that it was possible that in this session she told the Registrant that she wanted to return to her normal routine and discussed doing squats. However, she was certain that she did not mention to him any pain or discomfort in any part of her leg other than her right calf.

108. SU 3 told the Panel that she did recall that the Registrant informed her that “everything was connected” and that tightness in her calf could also be caused by tightness in her hamstring. She explained to the Panel that she believed that he gestured to a poster of a human body on the wall and that he said it would be prudent to work on some other muscles in her leg and at this point he asked her to remove her leggings so that he could treat the upper parts of her leg. SU 3 stated that she understood ‘work on’ to mean applying massage. SU 3 accepted that she did not recall the first session as well as the second session and that she did not recall the Registrant asking for her permission and that her instinct at the time had been to trust him as he was a professional.

109. SU 3 told the Panel that the Registrant left the room whilst she took off her leggings. However, because she had not had to remove them previously, she had not come prepared to remove her leggings and had been wearing “a thong as underwear”. SU 3 said that when the Registrant came back into the room, he instructed her to lay down on the bed and she stayed in this position for the entire session. SU 3 told the Panel that she felt very exposed and this caused her to feel significant discomfort. SU 3 explained to the Panel that she had been wearing a baggy jumper on her top half and she kept trying to pull it down to cover as much of her bottom as she could. She stated that she did not ask for anything to cover herself as she did not think this was an option as there was nothing in the room obvious which she could ask for. SU 3 told the Panel that the Registrant detected that she was not feeling comfortable and agreed to place some of the paper over her bottom. She told the Panel that it was only at the end of the session that she realised that the Registrant had only torn off one sheet of the “semi-translucent paper” roll and that the amount that it covered was inadequate. She explained to the Panel that the sides of her bottom had been exposed the entire time and she had felt exposed for the entire duration of the session.

110. SU 3 also gave evidence to the Panel that the session lasted for approximately thirty minutes. She also stated that allowing for the five minutes at the start of the session and at the end, she estimated that the Registrant spent five minutes working on her calf and fifteen minutes on her hamstring. SU 3 told the Panel that the massage on the calf was similar to that which she had experienced from other physiotherapists, but the massage on the hamstring had been between her knee and buttocks. SU 3 also told the panel that she could not state with any confidence that the Registrant massaged her inner thigh during the first session on 04 November 2020.

111. SU 3 also told the Panel that to the best of her recollection the Registrant did not ask for her consent during the first session. In response to “everything is connected”, SU 3 told the Panel that she may have said “okay” and the Registrant may have taken that as informed consent and she did not recall the Registrant “checking in with her” regarding any pain she was experiencing during the treatment.

112. SU 3 told the Panel that the first session ended in much the same way it had with the other physiotherapists in that she was given exercises to complete at home.

SU 3’s second session with the Registrant on 11 November 2020

113. SU 3 told the Panel that her recollection of the second appointment was much clearer than the first and she believed this to be because the second session was much more distressing. She explained to the Panel that owing to traffic, she was late arriving for her session by approximately 10 minutes.

114. Owing to the fact that she had removed her leggings the previous week, on this occasion SU 3 told the Panel that she had worn shorts type underwear, underneath her trousers.

115. At the start of the session, SU 3 told the Panel that the Registrant asked how everything had been going and then during this session he massaged her hamstrings on both legs. SU 3 told the Panel that no other physiotherapist had worked on her left leg. She also told the Panel that the Registrant massaged upwards from her knee to her upper and outer thighs and then also started working on her glutes. Again, she told the Panel that this was on both legs. SU 3 told the Panel that the Registrant worked on her “glutes” and that by using this term she meant the muscles in the centre and outside of her buttocks. SU 3 told the Panel that the Registrant’s hands were underneath her shorts and underwear so that his hands were directly touching her skin during the massage and that he pulled up the right side of her shorts, so that the whole of her buttock was exposed. SU 3 told the Panel that the Registrant did not warn her that he was going to do this, nor did he seek permission or request that she make an adjustment to her clothing herself. SU 3 told the Panel that she felt very uncomfortable.

116. SU 3 also told the Panel that the Registrant asked her to turn over and lay on her back and that she could confidently say that the Registrant just stood there whilst she did so. SU 3 stated that the Registrant then began by massaging her right quads and that by that, she meant the fronts of her thighs. She then told the Panel that the Registrant then got her to bend and raise her right knee, so that her knee was pointing to the ceiling and the sole of her foot was flat on the treatment bed. She also told the Panel that at this point her knee was against his torso and his arms were reaching down either side of her leg. SU 3 then told the Panel that it took the Registrant approximately three to five minutes to work down from her thigh to her inner thigh and that when he reached this position his fingers were no more than two inches from her vagina. SU 3 recalled to the Panel that she thought, at the time, “I do not know what I will do if he touches my vagina”.

117. SU 3 told the Panel that whilst she was in this position she looked down at the Registrant’s crotch and could see that he did not have an erection. She told the Panel that she did this because she felt like the treatment had been sexually motivated in some way, but that there was no sign of sexual gratification.

118. SU 3 told the Panel that the session ended in the usual way, the Registrant demonstrated some exercises and said that he would upload them to the ‘app’. SU 3 told the Panel that when she left the session she felt “weird” and “confused”.

119. SU 3 stated that after the session she reported the treatment session to Ascenti. She also told the Panel that after this session with the Registrant, she attended four more sessions with a female physiotherapist, and that in those sessions the female physiotherapist did not touch her above the knee.

120. During cross- examination by Mr Barlow, SU 3 accepted that she might have got the dates of her appointments mixed up and that when the Registrant asked her to remove her leggings, she may only have removed one leg, rather than the two previously indicated. She also accepted that she didn’t recall every single detail to “the fullest extent”.

121. SU 3 also conceded that when the Registrant had been referring her to the wall charts in the treatment room, that the Registrant had pointed out specific areas on the charts which related to her body and that she also understood what the proposed treatment was and how it was to be effected and that she also knew what the Registrant was going to do.

122. SU 3 also told the Panel during cross-examination that she could not recall if the Registrant left the room as it was all a bit “hazy”, but she accepted that it might also be a possibility and later she also accepted that the Registrant had left the room. She also accepted that only her “mid to distal hamstring” was exposed during the first appointment which she recalled with the Registrant. SU 3 also told the Panel that she accepted that the Registrant had asked her to wear shorts to the second appointment so that he could treat the hamstrings and calf and that she had agreed to do so. She also accepted that during the second session that she recalled that the Registrant had obtained initial consent from her and then once he had done so, he had commenced the session.

Application to amend the Allegation

123. At the conclusion of SU 3’s evidence, Ms Collins made another application to amend the Allegation. She stated that SU 3 had been confused about the dates of the appointments when she had actually seen the Registrant, stating in her witness statement that it had been on the 04 November 2020 and then the 11 November 2020, but that under cross-examination SU 3 had accepted her confusion and the fact that she may have seen the Registrant on three occasions, to include an appointment date on 18 November 2020. Consequently, Ms Collins, on behalf of the HCPC, was inviting the Panel to amend the date in the Allegation from the 11 November 2020 to 18 November 2020, in respect of Particulars 2 and 4. She submitted that the amendments would widen the scope of the Allegation, but that the Registrant’s underlying conduct remained the same.

124. Mr Meshram opposed the application to amend the Allegation. He submitted that the evidence had been contained within the Ascenti documentation, which had been in the possession of the HCPC for some considerable time and the Allegation should not be amended because the witness had changed her accounts. He submitted that it would not be fair to him to do so.

125. The Panel had regard to the parties’ submissions and it accepted the Legal Assessor’s advice which had drawn its attention to the case of PSA v HCPC & Doree [2017] EWCA Civ 319. Having done so, the Panel determined to grant the HCPC’s application to amend Particulars 2 and 4 of the Allegation. Whilst the Panel accepted the Registrant’s submission that the application was being made late during the course of the hearing, in the Panel’s view, amending the Allegation would not cause any detriment to the Registrant as the underlying misconduct remained the same and the proposed amendments would not increase the seriousness of the case faced by him. The Panel considered that a further amendment to the Allegation would not significantly alter the Registrant’s presentation of his case.

126. Conversely, the Panel considered that if it did not grant the HCPC’s application to amend, the particular would not reflect the evidence of SU 3. The Panel took into account that it should take reasonable steps to ensure that a case is properly presented, and the issue of under charging does not arise. The Panel considered the issue of fairness to the Registrant, but on balance, it determined that it would be in the Public’ s interest for the particular to reflect the evidence of SU 3. Consequently, for the aforementioned reasons the Panel granted the HCPC’s application.

Witness WH

127. Witness WH told the Panel that he is an area manager for Ascenti Physio Ltd and that he has held this role prior to 2020.

128. WH stated that the Registrant started working for ascent on 8 October 2020 and that he did not manage him directly as he was based in a different region to that which WH managed. WH explained that he only became involved in Ascenti’s investigation into the Registrant’s conduct because the Registrant’s manager, AY, was away on leave at the time. WH stated that he covered for AY and provided a wellbeing point of contact for the Registrant during Ascenti’s investigation.

129. WH told the Panel that he was not aware of the training that the Registrant had when he commenced working for Ascenti but he was aware that all new starters working for Ascenti received mandatory training.

130. WH stated that one role which was designated to him during the course of Ascenti’s investigation was to obtain statements from the Registrant in response to the complaints which had been raised. WH told the Panel that he was not certain of the first date of the meeting with the Registrant but he believed it to be on the day that the first complaint was received by Ascenti.

131. During the Microsoft Teams (‘Teams’) telephone call with the Registrant, WH told the Panel that he made the Registrant aware of SU 1’s complaint and asked him whether there was anything that the Registrant could think of which may have given rise to the concern being raised. WH told the Panel that he did not take minutes of this conversation, nor did he record it. However, his recollection of the meeting was recorded in an email, to the Ascenti SMP, and he believed that this was sent to the SMP on 24 November 2020 at 09.48am.

132. WH told the Panel that he had a subsequent Teams telephone call with the Registrant and he asked the Registrant to outline everything he could recall about the session. WH told the Panel that he could recall that the Registrant stated that he had not asked SU 1 to remove her bra or undo the straps at any point during the treatment session and that the Registrant also stated that he did not reach inside her bra whilst treating her.

133. WH also informed the Panel that the SMP asked him to explain a concern that WH had raised in his email to the SMP, in respect of the Registrant’s understanding of the location of the pectoralis minor (“pec minor”) and subscapularis muscles. WH explained to the Panel that he asked the Registrant to explain to him where he treated SU 1 and he said that he had treated her “pec minor”. WH told the Panel that the ‘pec minor’ is a muscle that connects near the shoulder joint and reaches down across the upper ribs. WH stated to the Panel that he asked the Registrant to demonstrate on his own body where the muscle could be found and he gestured towards his rib cage at a point on a woman which would be near to her breast.

134. WH also told the Panel that he asked the Registrant to explain the clinical justification for treating the ‘pec minor’ muscle and the Registrant told him that SU 1 was “hunched forward” and that the muscle described was “tight”. WH told the Panel in his evidence that the Registrant’s clinical reasoning did not make sense. Either, the Registrant had meant another muscle called the ‘serratus anterior’ in which case his clinical reasoning lacked rationale, or he had meant the ‘pec minor’ and his knowledge of where that muscle is located was inaccurate.

135. WH also told the Panel that the location of the ‘pec minor’ was basic anatomy and that he would expect junior physiotherapists to have this knowledge. WH also told the Panel that his main concern, arising from the complaint made by SU 1 was in respect of consent and in his view a much more basic competency. WH also told the Panel that during another Teams call, he asked the Registrant to explain his understanding of how to obtain informed consent and the Registrant also, in his opinion, lacked detailed knowledge in this regard.

136. WH also told the Panel that after reviewing the Registrant’s clinical notes for each of the SUs, that he had concerns regarding the objective and subjective questioning and also a more general lack of specificity in respect of the notes and the detailed contained therein.

137. [Redacted]

Application for additional documentation to be adduced

138. During the course of WH’s cross examination the Registrant sought permission from the Panel to adduce additional documentation into the proceedings.

139. Ms Collins did not oppose the application on behalf of the HCPC. She reminded the Panel that the Registrant was unrepresented during the proceedings and would therefore not have been familiar with the disclosure requirements in the case and on this basis, she did not oppose the Registrant's application.

140. The Panel had regard to the parties’ submissions and accepted the Legal Assessor’s advice, which had reminded it of its duty to ensure fairness in the proceedings and to have regard to the HCPTS Practice Note on unrepresented Registrant’s. Having done so, the Panel determined that it would allow the Registrant’s application to adduce new documentation into proceedings, noting in particular that the HCPC did not object to this course of action. In the Panel’s view, it would be materially unfair and potentially prejudicial to the presentation of the Registrant’s case if the documentation were not admitted into proceedings.

WH cross-examination

141. During the remainder of WH’s cross-examination, WH gave evidence to the Panel that not all of the information from Ascenti’s patient record keeping system ‘Greencliff’ had been produced to the expert and that the information before the Panel was a ‘cut and paste’ summary of the information held on the ‘Greencliff’ system.

HCPC Application to adduce further evidence

142. Ms Collins drew to the Panel’s attention that it had become apparent, during witness WH’s evidence that documents which were in the HCPC’s possession, were not sent to the expert for him to comment upon in his report, including submissions that the Registrant had made prior to the matter being referred by the Investigating Committee of the HCPC, for a Substantive Hearing. Ms Collins stated that she was not asking for these documents to be placed before the Panel, as they did not form part of the HCPC’s case. However, Ms Collins submitted to the Panel that she was making an application for the following documents, which were new documents not previously before the Panel, to be permitted to be adduced:

i) A bundle relating to SU 1 (25 pages);

ii) A bundle relating to SU 2 (32 pages);

iii) A bundle relating to SU 3 (34 pages);

iv) A production statement in respect of the above (2 pages);

v) A five page bundle in respect of email correspondence between the Kingsley Napley Solicitors LLP and Ascenti in relation to Kingsley Napley asking for documents to be disclosed to them dating between 24 and 27 February 2023; and

vi) A two-page document, relating to historic emails between Ascenti and Kingsley Napley.

143. Ms Collins informed the Panel that her application to adduce additional evidence was being made under Rule 10(1)(c) which states ‘At any hearing, the Committee may hear or receive evidence which would not be admissible in such proceedings, if it is satisfied that admission of that evidence is necessary in order to protect members of the public’.

144. Ms Collins submitted that it was at the Panel’s discretion as to whether to permit the HCPC to adduce new evidence but she drew the Panel’s attention to email correspondence from Kingsley Napley to Ascenti, highlighting that Kingsley Napley had previously requested all documentation from ‘Greencliff’ be sent to it and that it appeared, following witness evidence from WH, that this had not been the case. She further submitted, that upon becoming aware that there were additional outstanding SU’s records, Kingsley Napley obtained the further documentation and were now seeking to disclose it. Ms Collins submitted that whilst it was not the HCPC’s view that all of the documentation was pertinent to the issues to be determined by the Panel, it considered that the Panel should be provided with a full copy of the SU’s records so that the Panel could determine itself what it considered to be of relevance and what it felt was not relevant.

145. Ms Collins also stated that the HCPC’s additional obtained evidence did not undermine the experts report and that it did not contain valid clinical information which would be likely to change the experts report and for that reason, she submitted, it could go before the Panel.

146. Ms Collins also submitted to the Panel that the additional information sought and obtained was not being relied upon by the HCPC as part of its case, the application to adduce it was being made so as to allay any concerns that the Panel may have in respect of the contents of the material.

147. After clarification was sought by the Legal Assessor, Ms Collins informed the Panel that some of the documentation outlined above were previously in the possession of the HCPC. She informed the Panel that the documentation which was in the HCPC’s possession was as follows:

i) In relation to SU 1 – pages 22-25;

ii) In relation to SU 2 – pages 46-49 and 54-57; and

iii) In relation to SU 3 – pages 67 -73 and 81-88.

148. Further, Ms Collins, in response to Panel questions, confirmed that the documents listed in the paragraph above, were served on the Registrant as ‘unused material’ when disclosure was made by Kingsley Napley LLP, but also confirmed that they had not been served on the expert, nor did they form any conclusions within his report as the HCPC considered that they were not relevant to the matters to be determined by the expert.

149. The Registrant initially did not oppose the HCPC’s application for the additional documents to be adduced.

150. The Panel had regard to the parties’ submissions and it accepted the advice of the Legal Assessor who had drawn Rule 10(1)(c) to the Panel’s attention and to have regard to its overriding objective of public protection coupled with each party’s right to a fair hearing.

151. After the Legal Assessor had given legal advice to the Panel, the Registrant made submissions to the Panel that he opposed Ms Collins’ application for the additional material to be adduced into the proceedings. He submitted that the HCPC had been in possession of some of the documentation, in respect of that which formed part of the unused material bundle and had not sought to rely upon it in the two years whilst it had been, and remained, in its possession. He further submitted that the late nature of the application was prejudicial to him and would not permit him to have a fair hearing.

152. The Panel had regard to the parties’ submissions and it accepted the advice of the Legal Assessor. Having done so, the Panel determined to grant the HCPC application and allow the additional material to be admitted into proceedings. In the Panel’s view, notwithstanding the late nature of the application, some of the documentation had not been made available to the HCPC prior to the hearing commencing and therefore the HCPC was seeking to disclose material which the Panel may consider to be relevant to its decision making. Further, the Panel also considered that there would be no detriment to the Registrant if the documentation was included at this stage and the Panel also considered that it was in the wider public interest that all relevant documentation be placed before it, prior to it determining the facts in the case.

Two further applications for additional evidence to be admitted into proceedings

153. The Registrant made an application for four more documents to be admitted into proceedings: two emails, and then a nine-page document and a further twenty-eight-page document.

154. Ms Collins submitted that in respect of the two emails, she did not oppose the documentation being admitted and in respect of the other two documents (the nine page and the twenty-eight-page document), it was a joint application by the HCPC for those documents to be admitted into proceedings.

155. Ms Collins highlighted that the two emails were requests, from the Registrant to the HCPC. She further submitted that the nine-page document was the Registrant’s Investigating Committee representations and that the twenty-eight-page document was also relevant to the Registrant’s submissions to the Investigating Committee. Ms Collins also submitted that the Panel ought to consider the significance of each of the documents prior to admitting them into proceedings.

156. The Panel had regard to the parties’ submissions and it accepted the advice of the Legal Assessor. Having done so, the Panel determined that it was in the public interest for the documents to be admitted into proceedings and that it would be fair to both parties’ and that neither party would suffer any injustice if it did so.

Application to recall the expert witness

157. Following on from the joint application to adduce additional material, Ms Collins made an application to recall the expert witness so that the additional material admitted could be put to the expert witness for comment. Ms Collins further submitted that whilst it was the HCPC’s view that the additional material would not alter the expert’s opinion, Ms Collins accepted that she was not the expert in such matters and consequently, the additional material ought to be put to the expert for comment. She also submitted that it was in the public interest for the Panel to do so.

158. The Registrant opposed the application. He submitted that the witnesses’ evidence had been heard and that it was “too late” to now start recalling witnesses to fill gaps in the HCPC’s case. The Registrant submitted that all of the material should have been sent to the expert, prior to him writing his report and giving his evidence and that this would have been a fair approach.

159. The Panel had regard to the parties’ submissions and it had regard to the documentation before it. The Panel also accepted the Legal Assessor’s advice. Having done so, the Panel considered that it was fair and in the interests of justice to allow Ms Collins to recall the expert witness so that the additional documentation could be put to him. The Panel also considered that it was in the Registrant’s own interests that he be permitted to ask the expert any questions, in support of his case, that might be relevant to it. Consequently, the Panel directed that the expert witness be recalled.

160. As there was insufficient time left to conclude the hearing, the Panel adjourned the hearing and made the following directions:

DIRECTIONS

1. The HCPC to serve, within seven days, upon the expert witness the following:

i) additional SU material bundle – 100 pages;

ii) the Investigating Committee document bundle – 28 pages;

iii) the Registrant’s submissions to the Investigating Committee – 9 pages;

iv) the two emails relating to communication between the Registrant and the HCPC; and

v) the ‘special test’ document.

Reconvened hearing – 05 – 07 September 2023 and 11 - 13 September 2023

161. The Panel Chair confirmed that all parties in the proceedings remain the same, save for a change to the HCPC presenting officer; Mr Bridges appears on behalf of the HCPC and replaces Ms Collins.

162. The Panel Chair sought confirmation from the Presenting Officer that the aforementioned directions, issued by the Panel to the HCPC, prior to the Panel adjourning, were complied with on 3 March 2023. The Panel also confirmed with Mr Bridges that the expert witness responded to the HCPC on 6 March 2023 and that the expert’s response was served on the Registrant on 8 March 2023.

163. The Panel Chair also confirmed that the hearing was due to take place between 5 September 2023 and 5 – 7 September 2023 and resume again on Monday 11 September – 14 September 2023.

164. Mr Bridges informed the Panel that the expert witness was not available, to be recalled to give evidence, until the afternoon as he was on holiday and returning to the UK the same day. However, Mr Bridges submitted that he had become aware that the Registrant wished to make an application for an adjournment of part of the hearing which he submitted could be addressed by the Panel in the intervening period. The Panel invited submissions on the adjournment application from the Registrant.

165. The Registrant invited the Panel to adjourn two days of the hearing (Wednesday 5 September and Thursday 6 September 2023). He informed the Panel that he was a practising Hindu and that on these dates there was a Hindu Festival. The Registrant informed the Panel that on the date that hearing was relisted, it was not known to him that the religious festival would be on these dates and as soon as he had received an email from the Hearing’s Officer (Ms Sesay), regarding the upcoming hearing, he had notified her of his request to attend the festival. The Registrant told the Panel that as a practising Hindu the religious festival was part of his religious observance and he wanted to have an opportunity to engage in the festivities.

166. Mr Bridges, on behalf of the HCPC, submitted that although regrettable, the HCPC did not object to the application to adjourn the hearing, with it recommencing on 11 September 2023. Mr Bridges said that the HCPC was aware of the cultural and religious sensitivities of the Registrant’s application and although unfortunate that the Registrant did not put the HCPC, or the Panel, on notice of his application earlier, it raised no objection to it. Mr Bridges further submitted that if the Panel were to refuse the Registrant’s application for an adjournment, the HCPC would be likely to close its case, having recalled the expert that afternoon, and this would mean that the Panel would move to hear from the Registrant, who might not be present, owing to this festival. Mr Bridges stated that in his view, this would be a perverse course of action for the Panel to adopt in view of the fact that the Registrant was unrepresented in the proceedings, he had engaged throughout the February 2023 part of the hearing, he had attended today’s hearing and had indicated to the Panel that he would be available to attend on 11 September 2023.

167. The Panel accepted the advice of the Legal Assessor, who had drawn the Panel’s attention to the HCPTS Practice Note titled, ‘Postponement and Adjournment of Proceedings’ and to the case of CPS v Picton (2006) EWHC 1108.

168. The Panel considered the parties submissions to it and noted, in particular that the HCPC did not oppose the Registrant’s application for a two-day adjournment.

169. In determining to grant the Registrant’s application for a two-day adjournment, the Panel considered that it would be prejudicial to the Registrant. To refuse the application would effectively mean that the HCPC would close its case and then the Panel, without the Registrant being present to put forward his case, would move to determine facts. Given that the Registrant had: attended the previous hearing; had engaged throughout that hearing; and had attended this hearing expressing a desire to present his case to the Panel, the Panel considered that it was in the interests of justice that it should afford the Registrant with this opportunity.

170. Whilst the Panel shared the HCPC’s regret that the Registrant had not provided the HCPC, or the Panel, with earlier notification of his application, the Panel reminded itself that the Registrant was unrepresented in these proceedings and consequently, in its view, less familiar with the required processes for such applications.

171. Additionally, the Panel also considered that if it refused the application, it would place the Registrant in the untenable position of having to choose between his religious observances and presenting a defence to the very serious Allegation before the Panel, which the Panel considered may infringe on his Article 6 and Article 9 rights under the Human Rights Act 1998.

172. Consequently, the Panel determined to grant the Registrant’s application to adjourn the hearing on 6 and 7 September 2023 and reconvene on 11 September 2023.

Expert witness recalled

173. In response to questions from Mr Bridges, the expert witness confirmed that he had had sight of an email dated 6 March 2023 and that this email was precipitated by his receipt of additional documentation being furnished to him by the HCPC. The expert also confirmed that the bullets points outlined in his email, to the HCPC, broadly outlined that the new material had not changed the views opined by him at the previous hearing. The expert also outlined that, in his view, the Registrant should be afforded with some leniency in respect of his note keeping if the Registrant had been shown, by colleagues, how to write up his notes on the Greencliff system, However, he also stated that notwithstanding this view, the Registrant was still “ultimately responsible for his own notes”.

174. The expert also told the Panel that in terms of the clinical records he had viewed, he could not see any clinical reasoning for the treatment provided by the Registrant in respect of the SU 3’s glutes.

175. In response to questions from Mr Meshram, the expert told the Panel that if a patient, like SU 3, had indicated that they were having an issue with squatting, that this was to be expected somewhat after an ankle injury. He also stated that he would assess the squatting function, by undertaking load bearing exercises and he would assess the restriction of range when the knee was out “over the ankle”. He also told the Panel that if a patient had ongoing complaints at the time, then it would be clinically justified to assess the injury.

176. The expert also told the Panel that on palpation of any muscle, the practitioner performing the palpation should record and document whether a muscle was or was not tight. This is to document that the area has been checked and cleared and that any other practitioner providing treatment to that patient at a later time, would be able to see what has and had not, been undertaken and assessed previously.

177. The expert also told the Panel that if a patient presented with an acute injury, then, if you considered that it may cause the patient more pain, you may consider it as inappropriate to undertake certain types of stress testing to prevent further damage. The expert also stated that, for the reasons outlined previously and to alert a fellow practitioner to the potential for further harm being caused to a patient, that this decision should also be documented within the clinical notes.

178. At the conclusion of the expert’s evidence, the HCPC closed its case.

179. At the conclusion of the HCPC’s case the Legal Assessor alerted the parties and the Panel to the fact that the Registrant wished to give evidence, via videolink, from abroad (India) and that this position needed to be considered in light of the cases of Secretary of State for the Home Department and Agbabiaka [2021] UKUT 00286 (IAC) and Lateef v General Medical Council [2022] EWHC 2743 (Admin).

180. In order to assist the Panel in determining how to approach the point raised and to make best use of the adjourned days, the Panel directed that the HCPC comply with the following directions:

‘By no later than 4pm on Friday 8 September 2023, the HCPC should provide a document to the Panel, the Legal Assessor and the Registrant, outlining the following:

1. HCPC to confirm whether or not it accepts that Agbabiaka (2021) and Lateef v GMC [2022] applies in these proceedings currently before the Panel;

2. In the event that the HCPC accepts that Agbabiaka is applicable to the proceedings currently before the Panel, the HCPC is asked to clarify whether:

i. does it consider that it has fulfilled its obligation to notify the Registrant of Agbabiaka and of the Registrant’s need to obtain permission to give evidence from abroad, given that the Registrant is unrepresented in the proceedings;

ii. it accepts that it should have notified the Registrant in these proceedings, knowing that he is unrepresented and knowing or believing that he intended to give evidence from abroad (India – a country not on the FCDO list ) at the conclusion of the part heard hearing in February 2023;

iii. whether it is under an obligation and/or has taken a policy decision to pay the FCDO fee on his /others behalf (currently believed to be in the region of £150);

iv. whether legal advice has been received and/or any wider policy decisions have been made by the HCPC in respect of the points raised above.

3. In light of the aforementioned, what are the HCPC’s submissions to the Panel as to the Panel’s next steps and/or proceeding to hear the remainder of this case without the Registrant: having been notified of the aforementioned Agbabiaka requirements; knowing that the Registrant has not been afforded with an opportunity to seek the relevant FCDO permission(s); and knowing that the Registrant has not been afforded with an opportunity to take legal advice on this specific point should he wish to.

4. The HCPC’s submission as to next steps which should be adopted by the Panel.

181. At the conclusion of the hearing the Legal Assessor provided the parties and the Panel with the aforementioned cases to consider and digest, in addition to the following documents and links:

i. A briefing note published by the HCPC in respect of giving evidence abroad in Interim Order hearings;

ii. Presidential Guidance Note No 1 of 2022 from the Health, Education and Social Care Chamber, dated September 2022;

iii. Presidential Guidance Note No 1 of 2022 from the General Regulatory Chamber, dated 23 June 2022;

iv. Government website link to Foreign, Commonwealth & Development Office with guidance on taking and giving evidence by video link from abroad; and

v. Guidance published by ICAEW, dated 19 April 2022.

182. On 8 September 2023, the HCPC provided a response to the directions as follows:

‘We have not confirmed our position on whether we accept that Agbabiaka and Lateef v GMC applies to these proceedings. We are currently obtaining legal advice on this.

It is a matter for the panel to decide what their next steps should be. We as the panel to consider the following when making this decision:

• The HCPC’s duty to conclude matters expeditiously; and

• That any delays may be significant. An application to the FCDO could take eight weeks or longer and we would only be able to re-schedule this matter once permission had been granted.’

Reconvened hearing – 11 September 2023

183. At the outset of the proceedings the Chair confirmed that everyone had received and read the aforementioned documentation provided by the Legal Assessor and the parties and Panel confirmed that they had.

184. Mr Bridges informed the Panel that further to the HCPC response to the direction (dated 8 September 2023), he had no further instructions from the HCPC to provide to the Panel. However, in order to assist the Panel, Mr Bridges provided the following observations:

i. the Registrant is unrepresented, is residing in India and has done so prior to this matter commencing in February 2023 and he continues to do so;

ii. the Registrant expressed an intention to give oral evidence in his own defence and it is correct that this right should not be influenced by extraneous factors;

iii. the literature, guidance and caselaw appears clear that authority ought to be sought where a witness or a party wishes to give evidence to a court and the HCPC’s own document, outlining guidance on giving evidence from abroad in respect of Interim Orders, states that Agbabiaka applies and given this, it would be a nonsensical position for the HCPC to adopt to say that it applied for Interim Orders and not for substantive hearings; and

iv. if the Panel determine to proceed to hear the case without the appropriate permission being sought the Panel might want to ask itself whether there would be a question raised over the admissibility of that evidence in due course.

185. The Panel indicated, to Mr Bridges, that the response provided by the HCPC, in its view, was not overly helpful to it in determining how to approach the caselaw and issue raised and that the Panel had further questions of Mr Bridges, that it would like addressed. Mr Bridges indicated to the Panel that he would have to seek further instructions from the HCPC and it would therefore be helpful, to him, if the Panel’s questions could be formulated in a single document for him to pass to those instructing him, for response. The Panel agreed to this request and furnished a document outlining the following to the parties:

‘In asking the following questions, the Panel is seeking to obtain information which it considers may be critical to its decision making.

1. When did the HCPC first become aware that Mr Meshram:

a) was residing in India?

b) attending this hearing virtually?

c) would be unrepresented in these proceedings?

d) wished to give oral evidence to the Panel in the presentation of his case?

2. When did the HCPC first become aware of the cases of Agbabiaka 2021 and Lateef v GMC ?

3. In respect of the HCPC’s acquired knowledge (as referenced in question 2 above), what action(s) has the HCPC taken in respect of the case before the Panel? (HCPC v Mr Meshram)?

4. Did the HCPC notify Mr Meshram of the cases of Agbabiaka or Lateef v GMC at any point during the course of listing these proceedings?

5. Did the HCPC notify Mr Meshram of the cases of Agbabiaka or Lateef v GMC, or of the potential implications for the hearing, subsequent to the matter going part-heard in February 2023?

6. If the HCPC did notify Mr Meshram of the issue of giving evidence from abroad, can the HCPC provide the Panel with copies of any communication relating to this matter?

7. In the HCPC’s response to the Panel’s directions the HCPC indicates that legal advice has been sought by the HCPC, when was this legal advice sought?

8. When is it anticipated that the HCPC will publish a policy or position statement in respect of ‘giving evidence from abroad’?

9. In the HCPC’s response to the Panel’s directions the HCPC indicate that it has a duty to ‘conclude matters expeditiously’ and consider the effect of any delay in making an application to the FCDO. Does the HCPC accept that in addition to these factors, the Panel also has a duty to ensure fairness in the proceedings, amongst other factors including expediency and the effect of delay?

10. Further to the HCPC’s Briefing note titled ‘Giving evidence from abroad interim order hearings’, does the HCPC accept that Agbabiaka applies for Interim Orders?

In respect of the aforementioned questions, the Panel’s expectation is that the HCPC provides specific dates in response.’

186. Mr Bridges requested time to obtain instructions and indicated that he would require at least half a day. Having carefully considered the request, the Panel granted Mr Bridges with the time.

187. On Tuesday 12 September 2023, the Panel reconvened and Mr Bridges indicated that he was in possession of responses to the Panel’s questions which he conveyed to the Panel as follows (outlined in bold below):

1. When did the HCPC first become aware that Mr Meshram:

a) was residing in India? 18 October 2021

b) attending this hearing virtually? 23 August 2021

c) would be unrepresented in these proceedings? 09 August 2021

d) wished to give oral evidence to the Panel in the presentation of his case? This week.

2. When did the HCPC first become aware of the cases of Agbabiaka 2021 and Lateef v GMC ? The matter was first discussed at a senior level within the HCPC, at a Senior Management Meeting (SMM), on 10 May 2021. Whilst this was the first time it was discussed at a SMM, the HCPC could not give a guarantee that this was the first time that it was discussed by anyone within the organisation as it was a large organisation with many employees.

3. In respect of the HCPC’s acquired knowledge (as referenced in question 2 above), what action(s) has the HCPC taken in respect of the case before the Panel? (HCPC v Mr Meshram)? None, as the HCPC is yet to confirm its position.

4. Did the HCPC notify Mr Meshram of the cases of Agbabiaka or Lateef v GMC at any point during the course of listing these proceedings? No.

5. Did the HCPC notify Mr Meshram of the cases of Agbabiaka or Lateef v GMC, or of the potential implications for the hearing, subsequent to the matter going part-heard in February 2023? No.

6. If the HCPC did notify Mr Meshram of the issue of giving evidence from abroad, can the HCPC provide the Panel with copies of any communication relating to this matter? Not applicable as the Registrant was not notified.

7. In the HCPC’s response to the Panel’s directions the HCPC indicates that legal advice has been sought by the HCPC, when was this legal advice sought? 18 May 2023 (8 days after the matter came to the SMM’s attention).

8. When is it anticipated that the HCPC will publish a policy or position statement in respect of ‘giving evidence from abroad’? Not in a position to provide an anticipated date.

9. In the HCPC’s response to the Panel’s directions the HCPC indicate that it has a duty to ‘conclude matters expeditiously’ and consider the effect of any delay in making an application to the FCDO. Does the HCPC accept that in addition to these factors, the Panel also has a duty to ensure fairness in the proceedings, amongst other factors including expediency and the effect of delay? The Panel accepts that the Panel has a duty to ensure fairness in proceedings as well as demonstrating that it deals with matters expeditiously and understands the effect of delay.

10. Further to the HCPC’s Briefing note titled ‘Giving evidence from abroad interim order hearings’, does the HCPC accept that Agbabiaka applies for Interim Orders? No, the publication of the HCPC briefing note, of itself, does not indicate that the HCPC accept that Agbabiaka applies in these proceedings. The briefing note was produced simply to recognise the urgency of Interim Orders and that Panel’s may be asked to consider the matter.

188. Mr Bridges also outlined to the Panel that there was no settled position in respect of the Panel receiving evidence from abroad and/or whether the Agbabiaka case applied to statutory regulators such as the HCPC. Mr Bridges submitted that the issues for the Panel appeared to relate to the admissibility of any evidence provided from abroad and also the fairness of doing and any prejudice to the Registrant if the Panel refused to allow the Registrant to give evidence from India. In addition to considering and balancing the need to deal with the case expeditiously.

189. Mr Meshram made no representations to the Panel on the point, save for highlighting that he wished to give oral evidence to the Panel, via video link from India, in the presentation of his case and that he would not have the financial means to pay any fee due to the FCDO.

190. The Panel accepted the advice of the Legal Assessor which had drawn its attention to the following:

i. Secretary of State for the Home Department and Agbabiaka [2021] UKUT 00286 (IAC);

ii. Lateef v General Medical Council [2022] EWHC 2743 (Admin). (IAC);

iii. A briefing note published by the HCPC in respect of giving evidence abroad in Interim Order hearings;

iv. Presidential Guidance Note No 1 of 2022 from the Health, Education and Social Care Chamber, dated September 2022;

v. Presidential Guidance Note No 1 of 2022 from the General Regulatory Chamber, dated 23 June 2022;

vi. Government website link to Foreign, Commonwealth & Development Office with guidance on taking and giving evidence by video link from abroad; and

vii. Guidance published by ICAEW, dated 19 April 2022.

191. In addition, the Legal Assessor’s advice also outlined the options available to the Panel, in response to the matter raised.

192. The Panel carefully considered the parties submissions and had regard to the documentation before it. Having done so, the Panel concluded that it was in the interests of justice for the hearing to be adjourned.

193. Whilst the Panel noted and carefully weighed up the potential impact of a further delay to the hearing, which it observed had been adjourned previously, the Panel considered that it could not proceed with the hearing until the HCPC had provided its ‘interim position statement’ in respect of the applicability of Agbabiaka and whether the Panel could, or should, receive oral evidence from a country other than the United Kingdom. The Panel understood, from Mr Bridges’ submissions to it, that the HCPC’s interim position statement on the issue was due ‘soon’ but ‘was not imminent’. Whilst the Panel considered, from its reading of the aforementioned documentation and the clear guidance adopted by His Majesty’s Court’s and Tribunal Service and other regulators, that the Agbabiaka caselaw and principles derived from it, would be more likely than not to apply to it, the Panel noted that there was no confirmed or ‘considered position’ (per paragraph 20 of the Lateef Judgment) on the applicability of Agbabiaka or the principles derived from it, before it, from the HCPC. In the Panel’s view, the HCPC responses to questions posed and submissions to it on the point, were unhelpful at best and very disappointing at worst.

194. Notwithstanding the lack of detailed submissions from the HCPC, having weighed up and considered the potential ramifications for the hearing, and also the potential diplomatic ramifications of receiving oral evidence from a foreign state where permission had not been sought and might have been required, the Panel considered that it could not safely conclude that any oral evidence provided by the Registrant would not being ruled inadmissible in due course. The Panel further considered that once a decision has been made on the applicability of the Agbabiaka judgment, it could mean that any decision that the Panel made at this time to refuse or allow oral evidence, could amount to a procedural irregularity, or a nullity.

195. Further, the Panel also considered paragraph 19 of the Agbabiaka Judgment where it states:

“Whenever the issue arises in a tribunal about the taking of evidence from outside the United Kingdom, the question of whether it would be lawful to do so is a question of law for that country, whether or not that country is a signatory to the Hague Convention… In all cases, therefore, what the Tribunal needs to know is whether it may take such evidence without damaging the United Kingdom's diplomatic relationship with the other country”.

196. In the Panel’s view, it could not determine whether it may take such evidence from the Registrant without damaging the United Kingdom’s diplomatic relationship with another country. The Panel considered that this was especially so, when it was not known to the Panel whether the caselaw and subsequent requirement to obtain permission for oral evidence to be taken, applied in these proceedings.

197. In this case, the Registrant has not sought permission from the Foreign Commonwealth and Development Office (FCDO) and the Panel considered that it would not be fair to the Registrant to proceed with a hearing where this matter remained unresolved and when he was unrepresented. The HCPC accepted, in its responses to Panel questions, that the Registrant had not been put on notice of the issue, or of the potential need to apply to the FCDO for permission. In the Panel’s view, there could be no criticism of the Registrant in this case, in respect of this issue, because the HCPC had accepted that it had not placed him on notice of the point when it was arguably under an obligation to do so. The Panel also noted that as the Registrant had not been informed of the potential need to apply to the FCDO, he had not been afforded with an opportunity to travel to the United Kingdom to give his evidence from here; a course of action which may have been open to him if he had been notified of the HCPC’s consideration of the issue.

198. Whilst the Panel noted that the HCPC had encouraged it to be ‘expeditious’ in moving the case forward, in the Panel’s view the HCPC had not been expeditious in its handling of the issue and this case, thus far. In forming this view, the Panel noted that the HCPC had accepted that it had first become aware of the Agbabiaka judgment in May 2023 and whilst it had taken legal advice a short time after a Senior Management Meeting (SMM), it had been over four months since that time and no position statement had been issued. In considering whether this was an issue for this Panel to determine, the Panel also concluded that there were possible wider reputational ramifications for the HCPC if the Panel were to determine the issue during the course of this hearing and the Panel’s interpretation of the case was subsequently overturned on appeal.

199. Furthermore, in deciding that the matter ought to be adjourned, the Panel also had regard to the fact that there was only one day left (Thursday 14 September 2023) to conclude the case. In its view, this would provide insufficient time for the Registrant to conclude the presentation of his case (by whatever means permitted). Nor would the remaining time provide sufficient time for the Panel to hear closing arguments, legal advice, determine facts and draft its decisions. The Panel considered therefore that it was appropriate to adjourn to a date with sufficient time to conclude the case.

200. In adjourning the matter, the Panel determined it appropriate to utilise its case management powers to direct progress be made in this case and it issued the following directions to the parties:

Directions

1. Within seven days of the HCPC’s interim guidance on the applicability of: Secretary of State for the Home Department and Agbabiaka [2021] UKUT 00286 (IAC) and/or Lateef v General Medical Council [2022] EWHC 2743 (Admin). (IAC) (hereafter the caselaw) and/or of the need to obtain permission to give evidence from abroad, in HCPC Fitness to Practise substantive hearing proceedings (hereafter ‘the interim guidance’), being published, the parties are directed as follows:

a) To liaise with one another regarding whether permission needs to be sought from the Foreign, Commonwealth and Development Office (FCDO) for the Registrant to give evidence from abroad;

b) If the interim guidance published by the HCPC is that the caselaw does not apply to HCPC Fitness to Practise substantive hearing proceedings and permission does not need to be sought to give oral evidence from abroad in these proceedings, then the HCPC should request that the HCPTS relist this hearing as soon as is practicable, for a timescale of no less than seven days;

c) If the interim guidance published by the HCPC is that the caselaw does apply to HCPC Fitness to Practise substantive hearing proceedings and permission does need to be sought to give oral evidence from abroad in these proceedings, then the HCPC is directed to liaise with the Registrant and make an application on his behalf to the FCDO to enable him to be able to give evidence from abroad;

d) In the interest of expediency, in this case, the HCPC is to pay any fee due to the FCDO in the making of any application.

2. If for any reason it is not possible for the parties to comply with any of the aforementioned directions, then the parties should request a preliminary hearing be scheduled, by HCPTS, so that the matter can be addressed and resolved by the Panel.

Hearing 26 March 2024

Preliminary Matters

Service

201. The Panel was referred to the HCPC’s Service bundle and advised that the Notice of this Hearing had been sent to the Registrant at his registered email address on 14 December 2023. The Panel also took into account the confirmation of delivery of the Notice dated 14 December 2023.

202. The Panel accepted the advice of the Legal Assessor. He referred the Panel to Rule 6 of the Health Professions Council (Conduct and Competence Committee) Procedure Rules 2003 (the Rules) and the HCPTS Practice Note on Service of Documents.

203. In all the circumstances, the Panel was satisfied that the Registrant was fully aware of the time and date for this hearing and that it would be conducted virtually. In all other respects, the Notice of Hearing complied with the rules.

204. The Panel therefore determined that Service had been properly effected.

Application to adjourn

205. The Panel had been provided with a ‘Registrant’s Correspondence’ Bundle which included an email from the Registrant to the HCPC dated 25 March 2024 in which the Registrant stated:

“I am sorry

I did not know about these things. I always thought that I am not allowed to speak anything and there is no further hearing.

But unfortunately it is not possible for me to attend the hearing on 26‐27 March as well as on 10‐12 April as I'm with my relatives in other town and it is not possible for me to join from anywhere else apart from my clinic. Till now since last 3 years, I have joined the hearings only from my clinic and I actively involved in the process.

As you suggested, I am happy to request an adjournment. I would want to join on the next available dates.

I would like to request for an adjournment.

Thank you”.

206. The Panel requested Mr Bridges to advise it of the HCPC’s position in relation to this application.

207. Mr Bridges told the Panel that the application was opposed. Mr Bridges took the Panel to a ‘time line’ of communications between the Registrant which he had prepared and which had been provided to the Panel. Mr Bridges submitted that following the adjournment of the hearing in September 2023, the Registrant had been kept fully informed of the steps being taken to allow him to give oral evidence from India and potential dates for further hearings. He submitted that the Panel could reasonably infer that the Registrant was fully aware that there were to be further hearings days.

208. Mr Bridges referred the Panel to an email to the HCPC from the Registrant dated 23 October 2023 in which he stated ‘I do not wish to provide any oral evidence… I have decided not to provide any further evidence in this case.’ Mr Bridges further submitted that in another email to the HCPC from the Registrant dated 19 February the Registrant again stated, ‘I do not wish to provide any oral evidence’. Mr Bridges submitted that the Registrant did not suggest in these communications that he would have difficulties in remotely engaging on the further hearing days.

209. Mr Bridges submitted that the Registrant first stated he was unaware of further hearing dates in an email to the HCPC dated 24 March 2024 and then requested an adjournment in the email dated 25 March 2024.

210. Mr Bridges referred the Panel to the HPCTS Practice Note on Postponement and Adjournment of Proceedings and the suggested approach and factors to be taken into account by Panels set out therein. Mr Bridges submitted that the Registrant had failed to specify any exceptional circumstances for failing to request an adjournment before 24 March 2024 and that there were no compelling reasons to justify adjourning the hearing. He submitted that the Registrant had failed to provide any alternative dates when he could attend further days of the hearing.

211. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the HPCTS Practice Note on Postponement and Adjournment of Proceedings and advised that the Panel should take into account all relevant circumstances before it.

212. The Panel took into account the Registrant’s email application, Mr Bridges’ submissions and all relevant documentation before it.

213. The Panel determined that the various communications from the HCPC to the Registrant from October 2023 allowed it to reasonably infer that the Registrant was fully aware that there were to be further days of the hearing and the dates for the reconvened hearing. The Panel also noted that the Registrant had failed to specify why he had thought he could not present oral evidence to the Panel, nor had he identified any specific reasons why he could not engage remotely with this hearing other than he was visiting relatives and would not be in his clinic during the period set down for the reconvened hearing. Further the Panel determined that the Registrant had failed to specify what prejudice he would suffer if the hearing was not adjourned and how proceeding with the hearing would prevent him from being able to fully able to present his case.

214. The Panel has concluded that the Registrant has been aware of the dates for this resumed hearing, but – for reasons not explained by the Registrant – has chosen to currently be in a location where he is unable to engage with this hearing remotely. There was no information before the Panel to indicate this arose through matters beyond the Registrant’s control. The Panel concluded that any difficulties the Registrant was having in engaging with this hearing remotely arose through his own fault.

215. The Panel also took into account that this hearing had been adjourned on two previous occasions and the importance for regulatory hearings to be completed as expeditiously as possible. The Panel noted that it had heard evidence from service users and other witnesses approximately one year ago.

216. The Panel therefore determined that the Registrant had wholly failed to provide any evidence of exceptional circumstances justifying this hearing being adjourned. The Panel further determined that it was not in the public interest to adjourn this hearing.

217. In these circumstances the Panel rejected the Registrant’s application for the hearing to be adjourned.

Directions

218. Following the Panel announcing its decision to reject the Registrant’s adjournment application, Mr Bridges indicated that, whilst the question proceeding in the absence of the Registrant was ultimately for the Panel, that there were matters the HCPC wished to raise before the Panel.

219. Mr Bridges submitted that the Panel might wish to consider advising the Registrant that his application to adjourn today’s reconvened hearing had been rejected. He further submitted that the Registrant should be clearly advised that it was now possible that the HCPC would apply to proceed in the Registrant’s absence. However, Mr Bridges submitted that, before such an application was made, the Panel might consider it appropriate to allow the Registrant to be given the opportunity to provide further specific information about whether he did actually wish to engage with the hearing in some way and if so what his position in respect of giving oral evidence was. Mr Bridges submitted that the Registrant’s position appeared to have varied between that set out in his emails of October 2023 and February 2024 where he indicated he did not wish to give oral evidence and that in his most recent communications where he appeared to think that he was not allowed to give oral evidence but indicated he wished to engage in the hearing. Mr Bridges also submitted that the Registrant could be specifically told that it was open to him to provide written submissions.

220. In response to questions from the Panel about the time period that should be given to the Registrant to reply to such questions were the Panel minded to progress down this route, Mr Bridges suggested that the Registrant noted that he had been advised that India, where the Registrant was currently residing was around 5 and a half hours ahead of GMT. Mr Bridges submitted that, given it was late in the morning of 26 March 2024, if that the information could be sent to the Registrant and he be asked to reply in the morning of 27 March 2024. He submitted that even with the time difference, the Registrant would have the evening of 26 March 2024 to consider his position.

221. The Panel accepted the advice of the Legal Assessor. He advised that the Panel had an inherent case management power to issue case management directions or take similar steps.

222. The Panel took into account the Mr Bridges submissions, the various communications between the Registrant and both Kingsley Napley LLP when acting on behalf of the HCPC and his direct communications with the HCPC. The Panel also had before it a recent ‘Briefing Note’ from the HCPC in respect to giving evidence from abroad.

223. The Panel considered that there did appear to be a recent variation of the Registrant’s position in relation to his wish to engage further with the hearing, and in particular whether he wished to give further oral evidence. When reviewing the various correspondence with the Registrant, the Panel was concerned that in an email from the HCPC to the Registrant dated 13 March 2024, the Registrant had specifically been advised that he was not allowed to give further ‘evidence’ if he engaged with the hearing whilst in India. The Panel also noted that this email did not explain the difference between giving oral evidence or written submissions on facts or closing submissions. The Panel accepted that within this email the Registrant was asked if he did not wish to attend, whether he would be providing submissions, but concluded that this was an insufficient explanation of the actual position regarding the giving of oral evidence if the Registrant remained in India or the alternative options open to him.

224. The Panel was aware that the Registrant remains unrepresented. The Panel further considered that the contents of this email could have caused the Registrant confusion in respect of whether he could give oral evidence, how this might be arranged or the alternative options open to him if he did not give oral evidence.

225. In these circumstances, the Panel considered that it was in the interests of justice and fairness, and in the public interest, to ensure that any confusion was cleared up and that the Registrant had it clearly explained to him what the position was in relation to potentially giving oral evidence from India or the alternative options open to him if this did not occur.

226. The Panel determined this could be achieved by issuing directions requiring the HCPC to take specified steps to inform the Registrant of the exact position on the issues and also for him to have the opportunity to confirm his position on them.

227. The Panel did not consider that this could achieved by simply giving the Registrant the rest of the first day of the reconvened hearing to consider his position. The Panel determined these were complex matters and the Registrant required to be allowed time to read the information provided, fully understand it and provide any responses he wished to make.

228. The Panel therefore concluded that the reconvened hearing should not proceed further on 26 and 27 March 2023, but should reconvene on 10 April 2024.

229. The Panel therefore adjourned the hearing and issued the following directions:

1. The HCPC is to contact the Registrant and inform him of the Panel’s decision not to adjourn the hearing and not to proceed in his absence on 27 March 2024. The HCPC is to provide the Registrant with a copy of the HCPTS ‘Briefing Note, Giving Evidence from Abroad’ dated February 2024. The HCPC should also clearly explain to the Registrant that normally he would not be allowed to give evidence from India without the appropriate permission. It should be explained to him that if no permission has been given to allow him to give evidence remotely from India, the ‘Briefing Note’ states that it will be a matter for the Panel to decide whether he should be able to give evidence remotely.

2. The HCPC should refer the Registrant to his emails to Kingsley Napley in October 2023 and February 2024 where he clearly stated that he did not wish to provide oral evidence to the Panel. The Panel considered that this was at odds to his most recent emails in which the Registrant stated, ‘he was disappointed that I never got the opportunity to present my evidence and to speak up to my side’. The Panel also noted that the Registrant when applying for today’s hearing to be adjourned stated that he wanted to take part in future hearing dates. The Registrant should be asked whether he wants to give further oral evidence from India to the Panel or not.

3. The HCPC should explain to the Registrant, that if he decides that he does not wish to give oral evidence he can still provide oral submissions, which would not be under oath, or further written submissions in addition to those he has already submitted to this Panel and previous panels. If the Registrant decides to rely on his existing written submissions, he should be told he can provide a note directing the Panel to particular parts of his existing submissions that he wishes to rely on.

4. The Registrant should also be informed that should he not wish to provide further submissions he is entitled to attend or participate in the hearing, which could include listening to the proceedings and asking relevant questions and or clarifying matters.

5. The Panel decided that to ask the Registrant to consider these points and reply to them by tomorrow morning would not be sufficient time to make sure the Registrant had an appropriate opportunity to read, understand and reply to the matters raised.

6. The Panel therefore concluded that the Registrant should be given until 8 April 2023 by 12:00 UK Time GMT to respond.

7. The Panel asks that the HCPC make it clear to the Registrant that if he does not engage at the start of the first day of the hearing on 10 April 2024, then it will be open to the HCPC to invite the Panel to proceed with the hearing in the Registrant’s absence.

8. The HCPC should provide the Panel with a correspondence bundle detailing contact to and from the Registrant before they reconvene.

9. The Registrant should be reminded that support can be provided and that if this is required he should contact the HCPC’s Registrant Support Service.

 

Hearing 10 – 12 April 2024

Application to proceed in the Absence of the Registrant

230. At the outset of the hearing on 10 April 2020, Mr Bridges provided the Panel with an additional document being a timeline of communications between the Registrant and the HCPC.

231. Mr Bridges thereafter applied for the Hearing to proceed in the absence of the Registrant. He referred the Panel to the timeline he had provided. He submitted that following the Panel adjourning the Hearing on 26 March 2024, Kingsley Napley on behalf of the HCPC had sent an email to the Registrant that stated:

‘Dear Mr Meshram,

I write further to your HCPC case today.

You will recall that you previously requested an adjournment. This request was considered by the Panel today and the application was refused. Therefore they did not agree to adjourn the case. However they have agreed not to proceed with the case in your absence tomorrow and to allow you some time to consider the outcome of today’s hearing.’

232. Mr Bridges explained that on 28 March 2024 the Registrant had replied stating:

I still do not want to provide any evidence.
That is the reason why I thought there would not be any further hearings.
I am still firm on my stand that I Do Not Wish to provide oral any evidence in this matter.

Thank you

Kind Regards,

Shishir Meshram

233. Mr Bridges told the Panel that following this, on 29 March 2024, Kingsley Napley had sent an email to the Registrant that stated:

Dear Mr Meshram,

Thank you for your prompt response.

You will be aware that the case is to resume on 10 April. Can you please confirm whether it is your intention to attend this hearing and also whether you intend to provide written or oral submissions about your case.

Kind regards

234. Mr Bridges told the Panel there had been no further communication from the Registrant. He submitted that the Panel had the power to proceed in the Registrant’s absence under Rule 11. Mr Bridges submitted that the Registrant’s most recent position that he did not wish to give evidence contradicted his position in September 2023 when he stated he wanted to give evidence and the Panel had adjourned to facilitate this. Mr Bridges stated that following this Kingsley Napley, on behalf of the HCPC had taken steps to allow to Registrant to give evidence from his current location outside the UK and it was only recently the Registrant had varied this position. He suggested it could be thought that the Registrant was trying to frustrate the regulatory process. Mr Bridges submitted that all reasonable steps had been taken to allow the Registrant to engage and that he had voluntarily absented himself and that there was no likelihood that adjourning would result in him attending on another occasion. He submitted it was in the public interest to proceed in his absence.

235. The Panel accepted the advice of the Legal Assessor. He advised that the Panel had already made a decision that appropriate serve had been effect at the outset of the hearing on 26 March 2024 and therefore the issue was solely that of whether to proceed in the Registrant’s absence. He referred the Panel to Rule 11, the case of GMC v Adeogba [2016] EWCA Civ 162 and the HCPTS Practise Note on Proceeding in the Absence of the Registrant.

236. The Panel determined that its adjournment on 26 March 2024 had allowed for any confusion in the mind of the Registrant about whether he could engage with the hearing or not to be clarified and that the Registrant had had every opportunity to engage with these further days of the Hearing. The Panel further determined that the Registrant had voluntarily absented himself and that there was nothing before it to suggest he was likely to attend at any future date should the Hearing be adjourned. The Panel decided that there was a strong public interest in proceeding with the Hearing.

237. In these circumstances, the Panel granted Mr Bridges application to proceed in the absence of the Registrant.

Receipt of further communication from the Registrant.

238. After the Panel had retired to consider facts, it was advised that the HCPC had received a further email from the Registrant. The Panel therefore reconvened in public and requested Mr Bridges to make submissions on this latest email.

239. Mr Bridges referred the Panel to the email which stated that:

“I would have liked to provide the evidence. But as I stated before, I am away from home and not in a position to either submit written submission or provide oral submission.

I had the impression that I am not allowed to speak anything because there was no permission granted. For that reason I thought there won't be any hearing. I was never made aware before that the panel may still grant me permission to submit evidence until I can see this last email.

As stated in my previous email, I was actively involved but lack of opportunities made me disappointed and I gave up on this process because I never got any opportunity. [Redacted], I took a break from everything and I'm out of my home.

Only thing I can say is, this process was unfair for me. Despite cooperating throughout, I never got fair chance to put my side up. In my previous email also I had stated a few things which I want to repeat in this email.

I was disappointed of the fact that I never got the opportunity to present my evidence and speak up my side so I gave up.

I had been actively engaged in the hearing process since last 3 years but I never got a single opportunity to speak up.

I did not got any opportunity from Ascenti and I never got any opportunity from HCPC as well. All I got to do was submit my evidence in the form of written document. And my written evidence was not even added in the 'Expert Bundle'. Even though the 'Index' of Expert Bundle mentioned about 'Evidence from applicant' but the evidence were not included in the expert bundle.

The actual Treatment Notes were never part of the investigation process and even the expert had never seen the 'Actual full treatment notes'. Whole investigation was based on 'Extracts of treatment notes' I had asked HCPC to get the 'Full Treatment Notes' after which they were included in the file.

I had even asked the Expert during last hearing that 'whether they have seen the full notes' the expert said that 'they never saw full notes and made their conclusion based on the 'extracts' of notes" All these factors are unfair on me and I gave up.

Please consider this above email as my written submission the panel should consider. I do not have access to rest of my files in order to submit a proper written submission.

Thank you.

Shishir Meshram”.

 

Decision on Facts

240. The Panel accepted the advice of the Legal Assessor . He referred the Panel to the cases of Suddock v NMC [2015] EWHC 3612 (Admin), Dutta v GMC [2020] EWHC 1974 (Admin), Khan v GMC [2021]EWHC 374 (Admin) and Byrne v GMC [2021] EWHC 2237 (Admin) in relation to its approach to the assessment of witness evidence and to the cases of Basson v GMC [2018] EWHC 505 (Admin) and GMC v RH [2020] EWHC 2518 in relation to Particular 6.

241. The Panel considered each particular of the allegation in turn. In reaching its decision the Panel considered how the relevant witness evidence fitted with the non-contentious or agreed facts, contemporaneous documents, the inherent probability or improbability of any account of events and any consistencies and inconsistencies.

242. The Panel considered that SU 1 had given her evidence clearly and tried to assist the Panel. Her oral evidence was consistent with her witness statement and relevant contemporaneous documents before the Panel. SU 1’s evidence in relation to the core elements of the particulars of the allegation remained consistent during cross examination. Her evidence was not inherently improbable.

243. The Panel also considered that SU 3 had given her evidence clearly and tried to assist the Panel. Her oral evidence was consistent with her witness statement and relevant contemporaneous documents before the Panel. SU 3’s evidence in relation to the core elements of the particulars of the allegation remained consistent during cross examination. Her evidence was not inherently improbable.

244. The Panel considered that JB had given evidence in a clear manner and tried to assist the Panel. His oral evidence was consistent with his witness statement and relevant contemporaneous documents before the Panel.

245. The Panel considered that WH had given evidence in a clear manner and tried to assist the Panel. His oral evidence was consistent with his witness statement and relevant contemporaneous documents before the Panel.

246. The Panel was satisfied that JH satisfied the criteria as an expert witness and was qualified to speak on the matters that he opined on.

247. The Panel took into account the Registrant’s written submissions to the Investigating Committee and this hearing. However, the Panel took into account that the Registrant had chosen not to engage with this section of the hearing and in particular had chosen not to give oral evidence. The Registrant’s written submissions had not been tested by cross examination or questions from the Panel. In these circumstances, the Panel attached limited weight to these submissions and concluded they were of little assistance to it.

1. In relation to the treatment you provided to SU 1 between 6 November 2020 and 13 November 2020 inclusively, you;

a) Massaged around and/or on SU 1’s breast/s, when this treatment was not in line with the presenting injury

248. In considering Particular 1 (a) the Panel took into account the oral and written witness statement of SU1 and the written oral evidence and written opinion of the expert witness JH. The Panel also took into account the written submissions provided by the Registrant to the Investigating Committee and to this hearing. For the reasons outlined above the Panel considered these written submissions were lacking in specification in relation to this particular and were untested as the Registrant had chosen not to give evidence or engage with this hearing beyond the close of the HCPC’s case. The Panel attached very limited weight to these submissions and found them to be of little assistance in relation to this particular.

249. In considering this particular the Panel also adopted the approach set out in the case of Byrne v GMC [2021] EWHC 2237 (Admin) where it was stated:

‘(2) The credibility of witnesses and corroborating evidence

17. First, the credibility of witnesses must take account of the unreliability of memory and should be considered and tested by reference to objective facts, and in particular as shown in contemporaneous documents. Where possible, factual findings should be based on objective facts as shown by contemporaneous documents: Dutta 39 to 42 citing, in particular, Gestmin and Lachaux.

18. Secondly, nevertheless, in assessing the reliability and credibility of witnesses, whilst there are different schools of thought, I consider that, if relevant, demeanour might in an appropriate case be a significant factor and the lower court is best placed to assess demeanour: Despite the doubts expressed in Dutta 42 and Khan 110, the balance of authority supports this view Gupta 18 and Southall at 59.

19. Thirdly, corroborating documentary evidence is not always required or indeed available. There may not be much or any such documentary evidence. In a case where the evidence consists of conflicting oral accounts, the court may properly place substantial reliance upon the oral evidence of the complainant (in preference to that of the defendant/appellant): Chyc at 23. There is no rule that corroboration of a patient complainant's evidence is required: see Muscat 83 and Mubarak 20.

20. Fourthly, in a case where the complainant provides an oral account, and there is a flat denial from the other person concerned, and little or no independent evidence, it is commonplace for there to be inconsistency and confusion in some of the detail. Nevertheless the task of the court below is to consider whether the core allegations are true: Mubarak at 20.’

250. The Panel noted that in her written witness statement and oral evidence to the Panel SU 1 that she attended appointments with the Registrant on 6 November 2020 and 13 November 2020. There was no evidence before the Panel to challenge these dates.

251. The Panel took into account the oral evidence of SU 1 that during her appointment on 6 November 2020 the Registrant applied pressure to her right armpit, then worked his way down to her breast. She said that the lowest the Registrant’s hand went was just beneath her right breast and that his hand was tucked under her vest top and bra, and in direct contact with her skin at the side of her right breast. SU 1 estimated that the Registrant’s hand was two centimetres or so inside her bra and this lasted for less than 5 minutes.

252. SU 1 also told the Panel that during her second appointment on 13 November 2020 the Registrant started to massage her right shoulder and upper arm, then moved his hands lower and across so he was massaging her chest between her neck and breasts. She also told the Panel that the Registrant had massaged her breasts using both hands under her bra and vest, that he made contact with her nipples and massaged this area for approximately 15 minutes. SU 1 said she was very uncomfortable and she felt what was happening was ‘not right’.

253. SU 1 also told the Panel that during the second appointment the Registrant had asked her to sit on a chair, but did not explain why. She said that he then started massaging her right shoulder and arm, before moving his hands and massaging her breasts again. She said both the Registrant’s hands were underneath her vest top and bra and made full contact with her breasts. She said this also made her fell very uncomfortable.

254. SU 1’s oral evidence in relation to these matters was consistent with her written statement and she remained consistent on these matters during cross examination.

255. JH opined that ‘at no time would massaging around and on a patient’s breast(s) be relevant to the presenting injury in this case…and …there was absolutely no clinical justification for the Registrant to massage the patient’s breasts’. In his oral evidence JH further opined and explained that the massaging of SU 1’s breasts was absolutely wrong and not in line with SU 1’s presenting injury. The Panel determined that if there was no clinical justification then the massaging of SU 1’s breasts could never be in line with her presenting injury.

256. The Panel considered the Registrant’s written submissions and in particular noted that he stated that he ‘did not treat the breast area’. The Panel took into account that, as the Registrant had not engaged to give evidence himself, his position had not been tested by cross examination and questions from the Panel attached limited weight to them in respect of this charge.

257. The Panel also bore in in mind the comments in paragraphs 19 and 20 of Byrne.

258. The Panel determined that, on the balance of probabilities, during the appointments on 6 and 13 November 2020 the Registrant had massaged around and on SU 1’s breasts. The Panel further determined that, on the balance of probabilities, that this treatment was not in line with the presenting injury.

259. Particular 1 (a) is therefore found proved.

b) Asked SU 1 to remove their top and/or bra, or words to that effect, on at least one occasion, without seeking to maintain their dignity by

i. offering to leave the room

ii. offering adequate covering for the exposed areas of their body.

260. In considering particular 1 (b) (i) and (ii) the Panel took into account the oral and written witness statement of SU 1 and the written oral evidence and written opinion of the expert witness JH. The Panel also took into account the written submissions provided by the Registrant to the Investigating Committee and to this hearing. For the reasons outlined above the Panel considered these written submissions were lacking in specification in relation to this particular and were untested as the Registrant had chosen not to give evidence or engage with this hearing beyond the close of the HCPC’s case. The Panel attached very limited weight to these submissions and found them to be of limited assistance in relation to this particular.

261. In considering this particular the Panel also adopted the approach set out in the case of Byrne above.

262. The Panel noted that in her written witness statement and oral evidence to the Panel SU 1 that she attended appointments with the Registrant on 6 November 2020 and 13 November 2020. There was no evidence before the Panel to challenge these dates.

263. The Panel took into account that in her oral evidence SU 1 told it that during her appointment on 13 November 2020 asked her to ‘unhook the straps of her bra and vest top from the top of her shoulder so that they could be pulled down’. She said the Registrant then asked her to pull her top and bra down to her torso saying ‘are you able to pull them down’ or words to that effect. SU 1 refused this direction and refused again when the Registrant directed this during another treatment session. She told the Panel that, in addition, the Registrant did not offer to leave the room or offer her anything to cover herself.

264. SU 1’s oral evidence in relation to these matters was consistent with her written statement and she remained consistent on these matters during cross examination.

265. The Panel also took into account that JH opined that ‘A physiotherapist should always have a clear discussion with regards to the treatment being offered and at all times should not subject the patient to any unnecessary exposure…if parts of clothing need to be removed, the Registrant should offer and have available other forms of cover to ensure that the patient’s dignity is respected. A chaperone should be offered at all times when more intimate areas need exposing …Often with shoulder and back conditions you have to expose the affected area which might mean removing a top, but never a bra or underwear. This would have been totally inappropriate.’ JH also opined that the Registrant should have offered to leave the room whilst SU 1 undressed.

266. The Panel determined that the Registrant did not appear to address this particular in his written submissions, but denied the allegation. The Panel bore in in mind the comments in paragraphs 19 and 20 of Byrne in respect of this denial.

267. The Panel determined that, on the balance of probabilities, during the appointments on 13 November 2020 the Registrant had asked SU 1 to remove her vest top and her bra on at least one occasion and did not seek to maintain her dignity either by offering to leave the room or offer adequate cover for the exposed areas of her body.

268. Particular 1 (b) (i) and (ii) are therefore found proved.

2. In relation to treatment you provided to SU 3 between 4 November 2020 and 11 November 2020 inclusively, you:

a) Provided treatment, on at least one occasion that was not in line with the presenting injury, namely providing massage to the following areas of SU 3’s body:

i. their left and/or right hamstring

ii. their left and/or right thigh

iii. their left and/or right buttock

iv. their left leg.

269. In considering Particular 2 (a) (i), (ii) and (iii)the Panel took into account the oral and written witness statement of SU3 and the written oral evidence and written opinion of the expert witness JH. The Panel also took into account the written submissions provided by the Registrant to the Investigating Committee and to this hearing. For the reasons outlined above the Panel considered these written submissions were lacking in specification in relation to this particular and were untested as the Registrant had chosen not to give evidence or engage with this hearing beyond the close of the HCPC’s case. The Panel attached very limited weight to these submissions and found them to be of little assistance in relation to this particular.

270. In considering this particular the Panel also adopted the approach set out in the case of Byrne.

271. The Panel noted that in her evidence SU 3 had been confused about the dates of her appointments with the Registrant. In her witness statement she had said that she had seen the Registrant on 4 November 2020 and 11 November 2020. However, during cross examination SU 3 had accepted that she may have seen the Registrant on three occasions, including an appointment on 18 November 2020. This had given rise to the HCPC application to amend the allegation, which was granted by the Panel for the reasons set out above. The Panel was satisfied that whilst SU3 may have been confused regarding the exact dates due to the passage of time, that all the appointments about which she gave evidence fell within the amended time period of this particular.

272. The Panel took into account that in her oral evidence SU 3 told it that during her appointment on 4 November 2024, that the Registrant had massaged between her knee and buttock.

273. SU 3 then told the Panel that her recollection of her appointment on 11 November 2020 was much clearer and believed that this was because she found it so distressing. SU 3 said that during this appointment the Registrant had massaged her hamstrings on both legs and that no other physiotherapist had worked on her left leg. She explained that the Registrant had massaged upwards from her knee to her upper and outer thighs and then also started working on her glutes on both legs. She explained that when she used the terms ‘glutes’ she meant the muscles in the centre and outside of her buttocks. SU 3 told the Panel that the Registrant’s hands were under her shorts and underwear so his hands were directly touching her skin during the massage and that he pulled up the right side of her shorts so that the whole of her buttocks were exposed.

274. SU 3 said that the Registrant had asked her to turn over and lay on her back and had watched her so this. She said he then massaged the front of her thighs. She said he took approximately three to five minutes to work down her thigh to her inner thigh and that when he reached this position his fingers were no more than two inches from her vagina.

275. SU 3’s oral evidence in relation to these matters was consistent with her written statement and she remained consistent on these matters during cross examination.

276. The Panel also took into account that JH opined that:

‘A patient presenting with a specific orthopaedic injury to her ankle would not usually be expected to receive treatment to any other areas apart from the lower limb (calf, foot and ankle), unless clinically indicated the SU had already received treatment to her ankle and calf and would have expected further progress with the lower limb in a similar fashion.
In accordance with the presenting symptoms, the clinical records, and the statements there was no clinical justification to massage areas i-iii as above. Massaging the left upper leg was not in line with the presenting condition. There was no clinical justification for doing so.
There would be some merit in applying soft tissue massage to the lower part of the limb – that being below the knee and this would be clearly recorded at part of the assessment and examination, explained to the patient with clear clinical reasoning and targeted outcome measures. If the knee or upper leg presented symptoms, then this should be clearly documented. This was not undertaken in this case. There was no clinical justification for massaging the SU’s left upper leg (the hamstrings, thighs, and buttocks).
The actions, position and treatment were not clinically justified in the case and in my opinion falls significantly below the expected standards of a body of competent practitioners.’

277. JH confirmed that this remained his position in his oral evidence to the Panel. The Panel took into account that JH was an expert witness and that no evidence had been produced to counter his opinion, The Panel accepted the expert opinion of JH.

278. The Panel determined that if there was no clinical justification then the massaging of the areas identified by JH, then the treatment provided by the Registrant could never be in line with SU 3’s presenting injury.

279. The Panel determined that the Registrant did not appear to address this particular in his written submissions, but denied the allegation. The Panel bore in in mind the comments in paragraphs 19 and 20 of Byrne in respect of this denial.

280. The Panel therefore determined, on the balance of probabilities that between 4 November 2020 and 18 November 2020 the Registrant had provided treatment on at least one occasion that was not in line with SU 3’s presenting injury. In particular, the Panel determined that during this period this treatment involved massaging SU 3’s left and right hamstring; her left and right thigh; her left and right buttock and her left leg.

281. Particular 2 (a) (i), (ii) and (iii) are therefore found proved.

b) Asked SU 3 to remove their leggings, or words to that effect, without seeking to maintain their dignity by providing adequate covering for the exposed areas of their body.

282. In considering Particular 2 (b) the Panel took into account the oral and written witness statement of SU 3 and the oral evidence and written opinion of the expert witness JH. The Panel also took into account the written submissions provided by the Registrant to the Investigating Committee and to this hearing. For the reasons outlined above the Panel considered these written submissions were lacking in specification in relation to this particular and were untested as the Registrant had chosen not to give evidence or engage with this hearing beyond the close of the HCPC’s case. The Panel attached very limited weight to these submissions and found them to be of little assistance in relation to this particular.

283. The Panel took into account that in her oral evidence SU 3 told it that during the appointment on 4 November 2020 the Registrant asked her to remove her leggings. She said he left the room whilst she did this. SU 3 explained that she had not come prepared to remove her leggings and that she was only wearing a thong. She said when the Registrant returned he instructed her to lay on the bed and she stayed in this position for the rest of the session. SU 3 said she felt very exposed. She said she kept trying to pull her jumper down to cover her bottom. She said she did not think to ask for something to cover herself as she did not realise this was an option. SU 3 said that the Registrant had noticed that she was not comfortable and agreed to place some paper over her bottom, however he had only given her one piece of paper and it was semi translucent. SU 3 said this was not adequate cover. She said her bottom had been exposed during the entire session and she felt exposed.

284. SU 3’s oral evidence in relation to these matters was consistent with her written statement and she remained consistent on these matters during cross examination.

285. The Panel also took into account that JH opined in his expert report:

The registrant should have:

1. a) Provided a clear explanation and reasoning behind the suggested treatment whilst completing clear
documentation with sound clinical reasoning to justify the decisions making.

2. b) First and foremost, offer a chaperone to be present throughout.

c) Provided adequate cover to ensure maintenance of the patient’s dignity (shorts or a reasonable sized, gown or towel to cover the patient).

The Registrant failed to maintain SU 3’s dignity and this fell significantly below the standards expected from a competent body of practitioners.

286. JH confirmed that this remained his position in his oral evidence to the Panel. The Panel took into account that JH was an expert witness and that no evidence had been produced to counter his opinion, The Panel accepted the expert opinion of JH.

287. The Panel determined that the Registrant did not appear to address this particular in his written submissions, but denied the allegation. The Panel bore in in mind the comments in paragraphs 19 and 20 of Byrne in respect of this denial.

288. The Panel therefore determined that, on the balance of probabilities, the between 4 November 2020 and 18 November 2020, the Registrant asked SU 3 to remove her leggings or words to that effect without seeking to maintain her dignity by providing adequate covering for the exposed areas of her body.

289. Particular 2 (b) is therefore found proved.

3. You did not obtain informed consent in relation to the treatment you provided to SU 1 and/or SU 3 at particulars 1 and/or 2.

290. In considering particular 2 (a) (i), (ii) and (iii) the Panel took into account the oral evidence and written witness statement of SU 1 and SU 3, the written oral evidence and written opinion of the expert witness JH, and the oral evidence and written witness statement of WH. The Panel also took into account the written submissions provided by the Registrant to the Investigating Committee and to this hearing. For the reasons outlined above the Panel considered these written submissions were lacking in specification in relation to this particular and were untested as the Registrant had chosen not to give evidence or engage with this hearing beyond the close of the HCPC’s case. The Panel attached very limited weight to these submissions and found them to be of little assistance in relation to this particular.

291. In considering this particular the Panel also adopted the approach set out in the case of Byrne.

292. SU 1 in her written witness statement, which she adopted in her oral evidence to the Panel, stated in relation to the appointment on 6 November 2020:

‘He [the Registrant] had given me no verbal warning that he was going to make contact with my breast, and at no appointment had he told me where he was going to touch me…

293. In her oral evidence SU 1 told the Panel that she could not specifically recall the Registrant asking for permission before he touched her. She also said that the Registrant did not give her any warning that he was going to make contact with her breasts or at any point during the appointment say where he was going to touch her.

294. In relation to the appointment on 13 November 2020, SU 1 told the Panel that the Registrant did not explain the treatment he was going to administer and she had no idea what treatment would be provided.

295. SU 3 told the Panel that in relation to her appointment on 4 November 2020 that she did not recall the Registrant asking for permission to touch her and that to the best of her recollection the Registrant did not ask for her consent during this appointment. In relation to her appointment on 11 November 2020 SU 3 told the Panel that the Registrant did not warn her how he was going to touch her or seek her permission to do so.

296. The Panel also took into account that JH opined in his expert witness report stated:

a) Informed consent: the patient is provided with all the information about the proposed treatment, including a description of the type and method, the benefits and risks and where reasonable what alternative treatment methods that might be available. The patient will then have been provided with enough information to make a decision on whether they are agreeable with the suggested treatment and the plan. Part of the treatment process is to engage the patient with the treatment pathway, to understand the goals and to buy-in to the pathway to actively progress and understand the desired outcome.

b) In the contexts of the treatment provided to SU 1 and 3: with the information provided in the clinical records, the subsequent reviews and the SUs statements there is no documentation within the records that ‘informed consent’ was obtained and there was no clinical reasoning or justification for the Registrant to undertake the treatment methods that have been outlined as part of the complaints.

c) There was a considerable failure to provide appropriate and informed treatment for SU 1 and 3. The lack of consent departs significantly from the standards expected from a competent body of practitioners.

297. JH confirmed that this remained his position in his oral evidence to the Panel. The Panel took into account that JH was an expert witness and that no evidence had been produce in respect of his opinion, The Panel accepted the expert opinion of JH,

298. The Panel also took into account the oral evidence and witness statement of WH who told the Panel that the Registrant’s understanding of how to obtain informed consent was inadequate. He referred the Panel to the definition of consent in the HCPC Standards of Conduct, Performance and Ethics and explained it involved getting permission from a patient to administer treatment after they have received all information they reasonably need to make a decision.

299. The Panel further took into account the oral evidence and witness statement of JB who told the Panel that informed consent involved a practitioner “explaining exactly” what the practitioner was going to do and the patient confirming that they understood.

300. The Panel determined that the Registrant did not appear to address this particular in his written submissions, but denied the allegation. The Panel bore in in mind the comments in paragraphs 19 and 20 of Byrne in respect of this denial.

301. The Panel bore in mind that Particular 3 related to informed consent in relation to the treatment found proved in particulars 1 and 2.

302. The Panel determined that, on the balance of probabilities, the Registrant did not obtain informed consent in relation to the treatment provided to SU1 and SU3 as specified in particulars 1 and 2.

303. Particular 3 is therefore found proved.

4. Between 4 November 2020 and 13 November 2020, you did not maintain accurate patient records in relation to SU 1, SU 2 and/or SU 3’s treatment, in that you:

a) Did not adequately explain and/or outline your clinical reasons for providing the treatment you chose to deliver

304. In considering Particular 4 (a) the Panel took into account the evidence of SU1, SU3, JH and WH and all relevant documents, including all the patient records produced during the hearing. The Panel also applied the ordinary everyday definition to the word ‘adequately’, this being enough or satisfactory for a particular purpose.

305. The Panel took into account the evidence given by SU 1 and SU 3 in relation to any explanation of clinical reasoning by the Registrant as set out above in respect of Particulars 1 – 3.

306. The Panel took into account that JH opined:

a) A physiotherapist has a duty to fully inform a patient of the details of the assessment, the diagnosis and the proposed treatment based around the diagnosis. As part of this process the clinician would clinically justify and explain all the treatment options and propose a treatment plan. An explanation of what would be involved and the potential outcome / risks as necessary. The patient will then have an informed choice as to whether to accept this plan based on the clinical reasoning.

i. Based on the clinical records and the SUs statement there was no explanation, poor documentation with poor communication for the SUs

ii. Based on the above the Registrant’s management and treatment fell significantly below the standards expected from a competent body of practitioners.

307. JH confirmed that this remained his position in his oral evidence to the Panel. He told the Panel that ‘you have a discussion about going through the various types of assessment, detailing the sort of diagnosis, discussing the treatment plan, discussing what type of treatment is going to be applied, giving the patient the facts.’ The Panel took into account that JH was an expert witness and that no evidence had been produced to counter his opinion, The Panel accepted the expert opinion of JH.

308. The Panel also took into account the oral evidence and witness statement of JB. He told the Panel that a practitioner should clearly explain exactly to the patient what treatment was going to be provided.

309. The Panel further took into account the witness statement and oral evidence of WH. In his witness statement, which he adopted in his oral evidence, WH stated that he had ‘raised a concern that there were no notes made by the Registrant regarding consent for treating any area(especially areas that may lead for a patient to be exposed) and no document of removal of clothing … from a record keeping perspective, there is no indication that the Registrant has failed to address consent.. from the point of view of trying to understand why the treatment has been done as it had been, the notes are severely lacking. In my opinion as a physiotherapist, where there is a clinical reason to treat an intimate area such as gluteals and around the groin, best practice would be to include detail around the consent conversation or even to obtain written consent.’

310. The Panel also noted that in his submission to the Investigating Committee Panel the Registrant stated:

“Even though I performed the treatments in a professional manner, I fully realise that unknowingly and unintentionally the patients felt uncomfortable or unsafe which compromised the quality of care”.

“I should have asked patients a few more times than I did that if they are comfortable with the treatment or not.

I could have built a more better communication than I did as the treatment areas were near to sensitive areas.

I could have been more clearer with gaining verbal informed consent. Even though I had made the dear instructions regarding the treatment areas by showing muscle charts to the patient, I could have done better in building a clear communication”.

311. In these circumstances the Panel determined that, on the balance of probabilities between 4 November 2020 and 18 November 2020 the Registrant did not maintain accurate patient records in relation to SU 1, SU 2 and SU 3 in that he not adequately explain and/or his clinical reasons for providing the treatment he chose to deliver.

312. Particular 4 (a) is therefore found proved.

b) Did not adequately record whether informed consent was obtained before you carried out treatment

313. In considering Particular 4 (a) the Panel took into account the evidence of SU 1, SU 3, JH and WH and all relevant documents, including all the patient records produced during the hearing. The Panel also applied the ordinary everyday definition to the word ‘adequately’, this being enough or satisfactory for a particular purpose.

314. For the reasons outlined in relation to Particular 4 (a), the Panel determined that on the balance of probabilities between 4 November 2020 and 18 November 2020 the Registrant did not maintain accurate patient records in relation to SU 1, SU 2 and SU 3 in that he did not adequately record whether informed consent was obtained before he carried out treatment.

315. Particular 4 (b) is therefore found proved.

c) Did not accurately record all areas of treatment provided to SU 1, SU 2 and/or SU 3.

316. In considering particular 4 (a) the Panel took into account the evidence of SU 1, SU 3, JH and WH and all relevant documents including all the patient records produced during the hearing. the Panel also applied the ordinary everyday definition to the word ‘adequately’, this being enough or satisfactory for a particular purpose.

317. Again, for the reasons outlined in relation to Particular 4 (a), the Panel determined that on the balance of probabilities between 4 November 2020 and 18 November 2020 the Registrant did not maintain accurate patient records in relation to SU 1, SU 2 and SU 3 in that he did not adequately record whether informed consent was obtained before he carried out treatment.

318. Particular 4 (c) is therefore found proved.

5. Your understanding of where the pectoral minor and subscapularis lie was inaccurate when questioned by the Ascenti management team.

319. In considering Particular 5 the Panel took into account the evidence of WH and JH.

320. In his written witness statement and oral evidence WH explained to the Panel that the pectoral minor is a muscle that connects near the shoulder joint and reaches down across the ribs. He told the Panel that during an investigation meeting with the Registrant he had asked the Registrant to demonstrate on his own body where he had treated SU 1’s pectoral minor muscle and that the Registrant had gestured to the side of his own rib cage at the point which on a female would be next to the breast. WH said this was too low to be the pectoral minor and inaccurate.

321. WH also told the Panel that in the same meeting he had asked the Registrant to show where he had treated SU 1 subscapularis which is a muscle located at the back of the shoulder. WH told the Panel that again the Registrant indicated at the side of his rib cage which was inaccurate.

322. JH told the Panel that the Registrant lacked knowledge of anatomical structures. In these circumstances, the Panel determined that, on the balance of probabilities, the Registrant’s understanding of where the pectoral minor and subscapularis lie was inaccurate when questioned by the Ascenti management team.

323. Particular 5 is therefore found proved.

6. Your conduct in relation to particulars 1 and/or 2 was sexual.

324. In considering particular 6 the Panel took into account the evidence of SU 1, SU 3, JB, WH and JH. It also took into account all the Registrant’s written submissions to the Investigating Committee Panel and to this hearing. For the reasons outlined above the Panel considered these written submissions were lacking in specification in relation to this particular and were untested as the Registrant had chosen not to give evidence or engage with this hearing beyond the close of the HCPC’s case. The Panel attached very limited weight to these submissions and found them to be of little assistance in relation to this particular.

325. In considering this particular the Panel also adopted the approach set out in the case of Byrne.

326. The Panel also took into account the HCPC’s Practice Note on Making decisions on a registrant’s state of mind. However, the Panel also adopted the approach as set out in the cases of Basson v GMC [2018] EWHC 505 (Admin) and GMC v RH [2020] EWHC 2518. In particular, the Panel took into account that as set out in RH, as the particular only alleged that the conduct was sexual the Panel did not require to consider whether the conduct was done in pursuit of sexual motivation or gratification.

327. The Panel adopted in earlier findings in relation to the evidence of SU 1 and SU 2 above.

328. The Panel considered , on the balance of probabilities, considering all the evidence before it what was the Registrant’s state of mind when acting as found proved in Particulars 1 and 2.

329. The Panel took into account the Registrant has denied acting in the manner found proved in Particulars 1 and 2.

330. In these circumstances, the Panel determined that, on the balance of probabilities, the only inference that it could draw from the conduct of the registrant in Particulars 1 and 2 was that it was sexual. The Panel felt that the conduct of the Registrant was sexual due to its consideration of the evidence and particularly that from the Service Users who described striking similarity of circumstances. Such evidence included the Registrant causing SU 1 to move her top and bra before he conducted a prolonged massage of her breast and touching of her nipples; SU3 to remove her leggings without offering her adequate covering, leaving her in a state of undress, exposing an intimate area and conducting a prolonged massage of her inner thigh and buttocks. She specifically highlighted the close proximity of his fingers to her vagina.

331. Particular 6 is therefore found proved.

Decision on Grounds

332. Having found on facts, the Panel went onto consider particular 8 and grounds

8. Your conduct outlined at particulars 1, 2, 3, 4, 5 and/or 6 above constitute misconduct.

333. Mr Bridges had provided the Panel with written submissions on grounds and adopted them and commended them to the Panel. He referred the Panel to various cases including Roylance v GMC [2000] 1 AC 311and Nandi v GMC [2004] EWHC 2317 (Admin).

334. Mr Bridges submitted that the facts found proved by the Panel were serious. He further submitted that the Registrant’s actions breached Standards 1, 2 and 9 of the HCPC Standards of Conduct, Performance and Ethics (the Standards) and amounted to misconduct.

335. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the cases of Roylance v GMC [2000] 1 AC 311, Nandi v GMC [2004] EWHC 2317 (Admin) and Calheam v GMV [2007 EWHC 2606.

336. In considering grounds, the Panel took into account the submissions of Mr Bridges and the Registrant’s written submissions , all relevant evidence and its prior Findings on Facts.

337. The Panel was aware that in respect of misconduct there was no standard or burden of proof and that it was a matter for the Panel’s own professional judgement. It bore in mind that breaches of the Standards did not automatically result in a finding of impairment.

338. The Panel took into account the opinion of JH that the Registrant’s various acts and omissions fell significantly below the standards to be expected of a registered physiotherapist.

339. The Panel further considered that the Registrant’s conduct found proved in Particulars 1, 2, 3, 4 and 6 were serious. The Panel considered that the obtaining of informed consent was fundamental. The Panel further considered that the Registrant’s actions in Particulars 1 and 2 amounted to a calculated course of conduct and were sexual.

340. In relation to Particular 5, the Panel did not consider that the Registrant’s failures were serious and further that these failures were not of a similar nature to the Registrant’s conduct and failures in the remaining particulars.

341. The Panel determined that the following Standards were engaged and breached:

Standard 1: Promote and protect the interests of service users and carers.

Standard 2: Communicate appropriately and effectively

Standard 9: Be Honest and trustworthy.

Standard 10: Keep records of your work.

342. The Panel determined that both individually and cumulatively, the Registrant’s acts and omissions found proved in Particulars 1, 2, 3, 4 and 6 fell seriously short of the standards to be expected of a registered physiotherapist and amounted to misconduct.

 

Decision on Impairment

343. Having found that the statutory ground of misconduct had been made out, the Panel moved on to consider the question of impairment.

344. Mr Bridges had again provided the Panel with written submissions and he adopted them and commended them to the Panel.

345. Mr Bridges referred the Panel to the HCPTS Practice Note on Fitness to Practise Impairment and submitted that whether the Registrant’s fitness to practise was impaired was a matter for the Panel’s professional judgement.

346. He also referred the Panel to the approach formulated by Dame Janet Smith in the Fifth Shipman Report in relation to the approach to take to consideration of impairment of fitness to practise. He submitted that the Panel was considering the Registrant’s current fitness to practise, but that the Panel required to take into account the way the Registrant had acted in the past.

347. Mr Bridges referred the Panel to the cases of GMC v Meadow [2006] EWCA Civ 1319, CHRE v NMC & Grant [2011] EWHC 927 and Fopma v GMC [2018] EWHC 714 (Admin). He submitted that the Panel required to consider both the personal and public components as set out in the HCPTS Practice Note on Fitness to Practise Impairment.

348. Mr Bridges invited the Panel to find the Registrant’s fitness to practice was currently impaired.

Decision

349. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the HCPTS Practice Note on Fitness to Practise Impairment, the cases referred to by Mr Bridges and the further cases of Cohen v GMC [2008] EWHC 581 (Admin) and PSA v NMC [2017] CSIH 29.

350. In reaching its decision on current impairment, the Panel took into account the submissions of Mr Bridges and the written submissions from the Registrant. The Panel also took into account all other relevant evidence before it and its prior decisions on facts and grounds. The Panel also took into account the HCPTS Practice Note on Fitness to Practice Impairment. The Panel was aware that the question of impairment was a matter for it exercising its own professional judgement and that it was considering the Registrant’s current fitness to practice.

351. The Panel also took into account that in the Registrant’s written submissions to the Investigating Committee that references capable of being seen as positive, from two service users were included. However, the Panel had no information in relation to the provenance of these reference, or whether the authors were aware of these regulatory proceedings. In these circumstances, the Panel concluded that it attached little weight to them.

352. The Panel determined that the Registrant’s conduct found proved was serious. The Panel considered that the Registrant’s conduct was premeditated and sexual. There was no clinical justification for the Registrant’s conduct. The Registrant in acting as he did had traumatised and caused harm to young women who were in a vulnerable situation due to the trust that they had put in the Registrant as a professional. The Panel determined that he had abused his position as a registered Physiotherapist.

353. The Panel further determined that the Registrant had abused the trust put in him by SU 1 and SU 3, his employers and his colleagues.

354. The Panel further took into account that the Registrant had denied the particulars and this had resulted in SU 1 and SU 3 requiring to give evidence to the Panel, causing them further distress and trauma.

355. The Panel also determined that the Registrant’s denial of the particulars of the allegation was a denial of primary facts.

356. The Panel first addressed the matter of the ‘personal component’ of the Registrant’s current fitness to practise. As set out above the Panel determined that the Registrant’s conduct was premeditated, a breach of the trust in him and resulted in actual harm to SU 1 and SU 3. The Panel determined that the nature of the Registrant’s actions were indicative of attitudinal issues. The Panel further noted that the Registrant had only been practising as an autonomous registered physiotherapist for around three weeks when these incidents took place. Further, the incidents occurred in close time proximity and involved similar young women in vulnerable situations and analogous conduct. The Panel determined that as a result the Registrant’s conduct whilst remediable might be difficult to remediate.

357. The Panel also took into account the Registrant’s denial of the primary facts of the particulars of the allegations. The Panel concluded that the Registrant had not accepted the nature and extent of his misconduct or the consequent effects on vulnerable service users, colleagues, and public confidence in the profession and the HCPC as a regulator. The Panel concluded that the Registrant had shown no insight into his actions and that he was likely to repeat his conduct. The Panel therefore determined that the Registrant was currently impaired in relation to the personal component.

358. The Panel went on to consider the wider public interest and the personal component of the Registrant’s current fitness to practise. The Panel has determined that the Registrant has failed to protect the interests of service users and be honesty and trustworthy. For the reason set out above, the Panel considered his conduct was serious, sexual and caused direct harm to vulnerable service users at the time of the conduct and compounded this by denying the allegation and putting them into the position where they were required to give evidence before the Panel and be subject to cross-examination. Their distress was evident. Further, given the Panel’s conclusion in respect of insight, remediation and risk of repetition also set out above, the Panel determined that public confidence in the profession and the HCPC as a regulator would be undermined if there was no finding of impairment. The Panel therefore determined that the Registrant was currently impaired in relation to the public component.

359. The Panel therefore determined that the Registrant’s current fitness to practice was impaired both in respect of the personal and public components.

 

No information currently available

This hearing adjourned, part heard. The date for the reconvened hearing is to be confirmed

History of Hearings for Mr Shishir B Meshram

Date	Panel	Hearing type	Outcomes / Status
26/03/2024	Conduct and Competence Committee	Final Hearing	Adjourned part heard
05/09/2023	Conduct and Competence Committee	Final Hearing	Adjourned part heard
09/05/2023	Conduct and Competence Committee	Interim Order Review	Interim Conditions of Practice
20/02/2023	Conduct and Competence Committee	Final Hearing	Adjourned part heard
08/02/2023	Conduct and Competence Committee	Interim Order Review	Interim Conditions of Practice
22/07/2022	Conduct and Competence Committee	Interim Order Review	Interim Conditions of Practice
20/04/2022	Conduct and Competence Committee	Interim Order Review	Interim Conditions of Practice
24/01/2022	Investigating Committee	Interim Order Review	Interim Conditions of Practice
11/10/2021	Investigating Committee	Interim Order Review	Interim Conditions of Practice
03/09/2021	Investigating Committee	Interim Order Review	Adjourned part heard