
Amine El-Bacha
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Allegation
As a registered Physiotherapist (PH67903):
1. On 30 June 2023, at Harrow Crown Court, you were convicted of sexual assault x 3.
2. On 05 September 2023, in respect of particular 1, you were given a sentence totalling to 3 years imprisonment, placed on the Sexual Offenders’ Register indefinitely and given an Sexual Harm Prevention Order until further order under S.103A Sexual Offences Act 2023.
3. By reason of your conviction, your fitness to practise is impaired.
Finding
Preliminary Matters
Service
1. The Panel had information before it that the Notice of Hearing was sent by email to the Registrant’s email address, as well as by post to HMP [redacted], where the Registrant currently resides, on 24 July 2024. The Panel decided that good service had been effected in accordance with Rules 3 and 6 of the Conduct and Competence (Procedure) Rules 2003.
Proceeding in Absence
2. Ms Woolfson, on behalf of the HCPC applied for the hearing to take place in the absence of the Registrant. Ms Woolfson referred to events on the morning of the first day of the hearing, when the Hearings Officer contacted HMP [redacted] requesting that, as arranged, the Registrant be brought from his wing to the suite where he could join the hearing virtually. The Hearings Officer was told that the Registrant had declined to attend this morning.
3. Ms Woolfson referred the Panel to the Registrant having submitted in a bundle of papers with a covering email dated 9 September 2024 in which he stated that he was unable to attend due to a GP appointment on 12 September, and that he was submitting a statement instead.
4. Ms Woolfson also told the Panel that the Registrant had previously, on 6 August 2024, sent the HCPC an email requesting an adjournment as he had not yet received the HCPC bundle. The bundle was then sent to him on 8 August 2024 and the prison confirmed that this had been received the following day and placed in his tray.
5. Ms Woolfson also referred to a telephone note dated 5 September 2024 recording a call between the Registrant and the Hearings Officer, in which the Registrant confirmed he was aware of the hearing, and had received the bundle. He stated that he was having difficulty in collating his documents, and if he could not, he may not attend the hearing.
6. Ms Woolfson stated that there was currently no application for an adjournment, and in light of the public interest in expeditious disposal of the hearing, the Panel should proceed.
7. The Panel accepted the advice of the Legal Assessor and took into account the guidance in the HCPTS Practice Note “Proceeding in the absence of the Registrant”. The Panel was aware that it must exercise the utmost care and caution in deciding to proceed.
8. The Panel took into account all of the information set out above. The Registrant is clearly aware of the hearing, and exercised a choice not to attend today when a prison officer went to collect him from to take him to the location where he could participate in this hearing virtually. He has been given every opportunity to attend but has voluntarily absented himself. There is no suggestion that he would like an adjournment. He has provided a small bundle of documents which he has asked to be taken into account by the Panel, and the Panel will do so. While there is a potential disadvantage to him in proceeding in his absence, the Panel decided that in light of the position taken by the Registrant, it was fair and in the interests of justice to proceed.
Amendment of the Allegation
9. Ms Woolfson pointed to a typographical error in Particular 2 of the Allegation, in that the Sexual Offences Act was in fact dated 2003 rather than 2023 as was originally set out. Ms Woolfson sought an amendment to 2003, relying on the submission that there was no change to the Allegation other than a more accurate reference to the date of the statute in question.
10. The Panel accepted the advice of the Legal Assessor. The Panel decided that there would be no prejudice to the Registrant that it was fair and just to allow the amendment.
Background
11. The Registrant is registered with the HCPC as Physiotherapist.
12. On 30 June 2023 he was convicted of 3 counts of sexual assault against Service User A (SUA) in respect of whom he was providing treatment. On 5 September 2023 he was sentenced to 3 years imprisonment, placed on the Sexual Offenders’ Register indefinitely and given a Sexual Harm Prevention Order until further order.
Decision on Facts
13. The Panel read the HCPC’s bundle and the Registrant’s bundle.
14. The Panel took into account the submissions of Ms Woolfson, as well as the bundle of the Registrant. The Panel was aware that the burden of proof in respect of fact is on the HCPC to the civil standard, namely the balance of probabilities.
15. The Panel took into account the HCPTS Practice Note entitled “Conviction and Caution Allegations”, and accepted the advice of the Legal Assessor.
16. The Panel took into account Rule 10(1)(d) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 which provides that where a Registrant has been convicted of a criminal offence, a certified copy of the certificate of conviction shall be admissible as proof of that conviction and of the findings of fact upon which it was based.
17. The Panel had sight of a certified and signed Certificate of Conviction issued by Harrow Crown Court on 19 October 2023 which set out the conviction and the details of the sentence imposed. Another certified Certificate of Conviction dated 30 June 2023 was also before the Panel (which pre-dated the sentencing hearing). The Panel took into account the detailed sentencing remarks of Judge as well, of which there was a transcript before the Panel.
18. Taking into account the Certificates of Conviction, as well as the Judge’s sentencing remarks, the Panel was satisfied that factual Particulars 1 and 2 were proved.
Decision on Grounds and Impairment
19. Having found the factual particulars proved, which, as a conviction, forms the statutory ground upon which a finding of impairment may be based, the Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired. It was aware that impairment is a matter for its own professional judgment.
20. The Panel considered all of the documents before it in the HCPC’s hearing bundle, including the transcript of the Judge’s sentencing remarks on 5 September 2023, which sets out the details of the criminal offences. The Panel also read the Registrant’s bundle including his email dated 9 September 2024.
21. The Panel took into account the submissions of Ms Woolfson that the Registrant’s fitness to practise is currently impaired on the basis of the personal and public components.
22. The Panel accepted the advice of the Legal Assessor who referred to Council for the Regulation of Health Care Professionals v GDC & Fleischmann [2005] EWHC 87 and PSA v GDC & Naveed Patel [2024] EWHC 243. The Panel took account of the HCPTS Practice Note on Impairment.
23. The Panel noted that the convictions directly relate to the Registrant’s professional practice. The victim was SUA who had attended on two separate dates 24 and 28 October 2018 for physiotherapy treatment for whiplash and suffered three sexual assaults.
24. At the first appointment, the Registrant touched SUA’s breast area. Whilst massaging her, the Registrant’s hands kept moving down on to her breast, which was not part of the treatment which was required. At the second appointment, the Registrant again touched her breast, having then gone to her legs and moving upwards towards her crotch. The Registrant had got SUA to lie on her back and the Registrant started massaging her breasts. The Registrant got her to undo her bra. After this, the Registrant looked for pains in her legs by massaging them. He brushed his hands up towards her legs with his fingers brushing her vagina area through her trousers.
25. The Judge considered the “very serious nature of the offences” as well as the victim impact statement of SUA which the Judge summarised as follows:
“she has suffered a great deal of mental anxiety, has not been able to complete any physiotherapy sessions for whiplash, which she had come to you for the very treatment of. She experienced panic when in a private healthcare situation with a male practitioner and she is even scared when walking home from her car to her house at night”.
26. In determining whether fitness to practise is impaired, panels must take account of a range of issues which, in essence, comprise two components:
i. the personal component which includes insight, the risk of repetition, whether the matters raised are remediable and whether there has been remediation by the Registrant.
ii. the public component which includes the need to protect service users, maintain confidence in the profession, declare and uphold proper standards of conduct and behaviour.
27. The Panel considered the private component. The Panel took into account that the Registrant’s email dated 9 September 2024 states as follows:
“While I respect the court’s decision, I continue to assert my innocence and believe I was wrongfully convicted”.
28. The Panel also took into account the following reference in the sentencing remarks to the pre-sentence report written by the Probation Service for the purposes of the sentencing hearing:
“The writer of the report says that your behaviour represented a breach of trust placed in you by a woman in a vulnerable position. They said this, ‘He used the guise of his profession to sexually assault the victim on a number of occasions.’ It was three occasions. The writer said, ‘I am not convinced that he,’ that is you, ‘has digested the gravity of your behaviour and its impact.’ It goes on to say, quoting from the report, that ‘Mr El Bacha has portrayed his behaviour as slightly misunderstandings and even incorrect perceptions on behalf of the victim. However, I am of the view,’ that is the Probation Officer, ‘that his behaviour was predatory in nature, driven by a desire for sexual conduct…’
29. The Registrant does not accept that he has done anything wrong. Nor has he provided any information to show that he has reflected or understood the gravity of what happened. In this regard, the Panel took into account that when he was interviewed by Probation for the pre-sentence report, he was regarded by the author of the report as, in effect, minimising his behaviour, and not being aware sufficiently of the seriousness of it. There is thus before the Panel no evidence of insight, no reflection into what occurred, and no evidence to address the offences.
30. The Panel considered the questions formulated by Dame Janet Smith in the Fifth Shipman Report as set out in the case of CHRE v NMC and Grant [2011] EWHC 927.
31. The Panel concluded that due to the matters found proved, the Registrant indeed caused actual physical and emotional harm to SUA. She no longer felt able to seek treatment for her whiplash and was emotionally affected. Due to the lack of any evidence of insight or remediation, the Panel was of the view that the risk of repetition is high. The Panel was also of the view that the Registrant brought the profession into disrepute and breached fundamental tenets of the HCPC Standard of proficiency for Physiotherapists, in particular Standard 2 “be able to practise within the legal and ethical boundaries of their profession” and Standard 2.2 “understand the need to act in the best interests of service users at all times” which guard against transgressing professional boundaries and giving priority to service users’ welfare. Once again, in the absence of any evidence of remediation, or insight, the Panel was of the view that there is high risk of bringing the profession into disrepute and breaching fundamental tenets in the future.
32. The Panel took into account the wider public interest. The Panel was satisfied that the Registrant’s criminal behaviour struck at the heart of the fundamental purpose of a physiotherapist’s role, breached trust and professional boundaries and took advantage of SUA’s vulnerability as a person who was receiving treatment from him by way of the Registrant placing his hands on her body, while in a position in which she should have been able to trust him.
33. The Panel considered that the public interest is high in this case. As well as being required to be on the Sexual Offender’s Register for life, the Registrant was made the subject of an indefinite Sexual Harm Prevention Order. The Judge described the term of the latter in detail as follows:
“you are prohibited from, one, carrying out any therapeutic, holistic, or medical treatment of any nature or participating in the provision of such services, paid or otherwise.
Unless, (a) any employer, manager, or voluntary service provider is notified of your relevant previous convictions and, (b) if providing services to any female, a chaperone must be present during the entirety of the session including any initial consultation and after for any follow up appointment/sessions. No chaperone will be required where the individual to whom the services are provided is male.
Two, carrying out any therapeutic, holistic, or medical treatment of any nature while participating in the provision of such services, paid or otherwise, from your home address”
34. While the criminal justice system is separate to the Panel’s jurisdiction, the restrictions placed upon the Registrant and his practice by the elements of the criminal sentence have a high level of relevance to the need to protect the public, uphold confidence in the profession and maintain proper standards, which are the aims of the regulatory process.
35. The Panel had no doubt that the confidence of a well-informed and reasonable member of the public in the profession and the regulatory process would be seriously damaged if no restriction was applied to the Registrant’s practice, in light of the nature of the criminal behaviour, and the gravity of the sentence imposed. As such, the Panel was satisfied that the need to uphold proper professional standards and maintain public confidence in the profession would be undermined if a finding of impairment were not made in the circumstances of the case.
36. For the reasons set out above, the Panel decided that the Registrant’s fitness to practise is currently impaired on both the personal and public components.
Decision on Sanction
37. Ms Woolfson referred to the HCPTS Practice Note on Conviction and Caution Allegations and the HCPC Sanctions Policy (SP). Ms Woolfson submitted that the only appropriate sanction was a Striking Off Order.
38. The Panel took into account the HCPTS Practice Note on Conviction and Caution Allegations and the Sanctions Policy (SP) and accepted the advice of the Legal Assessor. The Panel bore in mind that a sanction is a matter for its own independent judgment, and that the purpose of a sanction is not to punish the Registrant but to protect the public and uphold the wider public interest. Further, sanction must be proportionate, so that any Order that it makes be the least restrictive Order that would protect the public interest, including public protection.
39. The Panel was of the view the following were aggravating factors:
i. abuse of a position of trust;
ii. a level of planning and premeditation, as stated by the sentencing judge;
iii. the behaviour was “predatory” as described by the Probation Officer who wrote the pre-sentence report for the sentencing hearing;
iv. an absence of insight;
v. an absence of remorse;
vi. emotional harm caused to SUA
40. The Panel was unable to identify any mitigating factors. This is a case where the Registrant does not accept that he sexually assaulted SUA. There are no testimonials or references or any reflection on the impact on SUA of the sexual assaults or on public confidence because of the convictions.
41. The Panel considered that this case was at a high level of seriousness, both in terms of the high level of risk to the patients or service users, and the impact upon the wider public interest. The reasons are numerous. The Registrant sexually assaulted SUA three times, with a degree of planning and premeditation involved. He was convicted after a trial by a jury and sentenced to a significant custodial sentence. He is to be registered on the Sex Offenders’ Register for life, and a Sexual Harm Prevention Order has been made which places significant restrictions on his ability to practise his profession, unless those restrictions are lifted after a successful application by him. The sexual assaults occurred during the Registrant’s clinical treatment of SUA. He remains in custody, and when he is released, he will be on licence, until the conclusion of three years from the beginning of his sentence.
42. This was not a case where mediation was in any way appropriate considering the nature of the case.
43. The Panel considered taking no action. The Panel concluded that, in view of the nature and seriousness of the Registrant’s convictions, the high risk of repetition, the lack of insight and any steps to reflect on or address his convictions, and the ongoing risk to public protection, it would be inappropriate to take no action. It would be insufficient to protect the public, maintain public confidence and uphold the reputation of the profession. The Panel then considered a Caution Order and decided that this would not be appropriate for the same reasons.
44. The Panel next considered a Conditions of Practice Order but decided that this would be inappropriate in light of the lack of insight or indication that the Registrant wishes to work towards addressing his criminal behaviour, the seriousness of the convictions involving sexual assault, and the current custodial sentence and ancillary sentencing orders in place. Conditions could not be formulated to sufficiently protect the public and uphold the public interest.
45. The Panel next considered a Suspension Order. In light of the lack of insight and the high risk of repetition, the Panel could not conclude that this was an appropriate and proportionate outcome. The Registrant does not accept that he sexually assaulted SUA and there is no suggestion that he is able to reflect on or address his crimes. Suspension would not be appropriate or sufficient to protect the public or uphold the wider public interest.
46. The Panel took into account paragraph 85 of the SP:
“Although inclusion on the sex offenders’ database is not a punishment, it does serve to protect the public from those who have committed certain types of offences. A panel should normally regard it as incompatible with the HCPC’s obligation to protect the public to allow a registrant to remain in or return to unrestricted practice while they are on the sex offenders’ database.”
47. The Panel also took into account the terms of the Sexual Harm Prevention Order.
48. The Panel was mindful of the case of and PSA v GDC & Naveed Patel [2024] EWHC 243.
49. The Panel considered all of the circumstances before it. The lack of any evidence of insight from the Registrant or acceptance that he committed the sexual assaults, with the associated high risk of repetition, give rise to ongoing risk to public safety and implications for the wider public interest. The Registrant exploited SUA’s vulnerability while she was being treated by him for whiplash on two occasions, involving three sexual assaults. The Registrant exercised a degree of planning and premeditation. The Panel was of the view that such deliberate actions struck at the heart of the purpose of physiotherapy and were fundamentally incompatible with being a registered professional.
50. In light of the circumstances, Striking off is the only way in which the public can be protected, and which can uphold the wider public interest.
51. In coming to its decision, the Panel took into account the principle of proportionality, and the impact that such a sanction will have on the Registrant’s right to practise his profession, as well as the likely reputational and financial impact. However, the Panel decided that the need to protect the public and uphold the public interest outweighed the Registrant’s interests in this regard.
52. The Panel therefore decided to impose a Striking Off Order.
Order
ORDER: The Registrar is directed to strike the name of Mr Amine El Bacha from the Register on the date this Order comes into effect
Notes
Right of Appeal
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.
Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.
Interim Order
Application for an Interim Order to cover the appeal period
53. The Panel heard an application from Ms Woolfson for an 18-month Interim Suspension Order to cover the appeal period. She submitted that such an order is necessary for the protection of the public and is in the public interest.
54. The Panel considered the HCPTS Practice Note entitled “Interim Orders” as well as Paragraphs 133-135 of the SP. The Panel accepted the advice of the Legal Assessor.
55. The Panel decided to hear the application for an interim order in the absence of the Registrant. The Panel took into account that the Registrant had been informed, in the Notice of hearing dated 24 July 2024, that the Panel may impose an interim order. In addition, the Panel took into account the reasons set out in its earlier decision to commence the hearing in the absence of the Registrant. In the circumstances, and for the same reasons, the Panel determined that it would also be fair, proportionate and in the interests of justice to consider the application for an interim order.
56. The Panel took into account its previous findings in respect of impairment and sanction, and the need to protect the public and uphold the public interest. The Panel came to the conclusion that an Interim Order is necessary to protect the public and that an interim order is also in the wider public interest in order to maintain public confidence in the profession and to uphold proper standards. Public confidence in the profession and the regulatory process would be seriously harmed if the Registrant were not made subject to an interim order during the appeal period.
57. The Panel was mindful of its decision at the sanction stage that Conditions were not appropriate. The Panel considered that not to impose an Interim Suspension Order would be inconsistent with its finding that a Striking Off Order is required.
58. The Panel recognised that the Panel must take into consideration the impact of such an interim order on the Registrant as part of the principle of proportionality and must balance the impact on the Registrant with the need to protect the public and uphold the public interest. The Panel was satisfied that the need to protect the public, the public interest outweighed the Registrant’s interests in this regard.
59. The Panel decided to impose an Interim Suspension Order for a period of 18 months, a duration which is appropriate and proportionate to allow any appeal which the Registrant brings, to be concluded.
Interim Order:
The Panel makes an Interim Suspension Order under Article 31(2) of Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.
This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.
Hearing History
History of Hearings for Amine El-Bacha
Date | Panel | Hearing type | Outcomes / Status |
---|---|---|---|
11/09/2024 | Conduct and Competence Committee | Final Hearing | Struck off |
15/05/2024 | Conduct and Competence Committee | Interim Order Review | Interim Suspension |
15/02/2024 | Conduct and Competence Committee | Interim Order Review | Interim Suspension |
24/11/2023 | Conduct and Competence Committee | Interim Order Review | Interim Suspension |
23/08/2023 | Conduct and Competence Committee | Interim Order Review | Interim Suspension |
13/03/2023 | Conduct and Competence Committee | Interim Order Review | Interim Suspension |
14/12/2022 | Conduct and Competence Committee | Interim Order Review | Interim Suspension |
14/09/2022 | Conduct and Competence Committee | Review Hearing | Interim Suspension |
02/03/2022 | Conduct and Competence Committee | Interim Order Review | Interim Suspension |
02/12/2021 | Conduct and Competence Committee | Interim Order Review | Interim Suspension |