Mr Arthur Martial

Background

4. The Registrant is a registered physiotherapist. At the material time, he was employed by Nuffield Health based in Crawley Fitness and Wellbeing Centre.

5. On 14 April 2023 the HCPC received a referral from Service User A who alleged that the Registrant had behaved in a sexually inappropriate manner towards her and had breached professional boundaries over the course of three physiotherapy sessions. In addition, it was reported that the Registrant had taken Service User A to the gym in his own car outside his working hours and had called and messaged her when there was no clinical reason to do so. Service User A reported that the Registrant had made a number of inappropriate comments to her during the physiotherapy sessions and during the interaction at the gym.

6. The allegations were also reported to Nuffield Health on 14 April 2023 and an investigation commenced. During the investigation it came to light that the Registrant had recorded Service User A’s presenting complaint as right knee instead of right shoulder. Further, it was discovered that the Registrant had not recorded full details of Service User A’s mental health and other personal matters that were disclosed to him during the sessions in the physiotherapy records. Following an interview with the Registrant, the matter was referred to a disciplinary hearing. The Registrant resigned from his position on 1 June 2023 before the disciplinary hearing was arranged.
Documents and evidence.

7. The Panel was provided with the HCPC bundle consisting of the Witness Statement and exhibits of Service User A and the Witness Statement and exhibits of Laura Stocks, a registered physiotherapist who conducted the investigation for Nuffield Health. The Panel was also provided with a bundle of documents by the Registrant consisting of a written statement by the Registrant and three testimonials. Ms Girven also provided the Panel with a case summary.

8. At the outset of the hearing the Registrant made some qualified admissions to the factual particulars but denied that his conduct was sexually motivated.

9. In addition to the documents the Panel heard oral evidence from Service User A and Laura Stocks on behalf of the HCPC. The Registrant also gave oral evidence to the Panel.

10. Ms Girven on behalf of the HCPC invited the Panel to find all of the facts proved. She submitted that the evidence of Service User A was clear and consistent and that she had made concessions where appropriate when she could not recall events. Ms Girven submitted that the evidence demonstrated that the Registrant had initiated hugs with Service User A on at least three occasions which were unwanted physical contact. She submitted that although the Registrant’s position was that these hugs were initiated by Service User A this was more likely to have been a misinterpretation given her subsequent complaint. She submitted that Service User A gave a clear account of the Registrant kissing her on her hairline and at the top of her head and this conduct is sexual and therefore sexually motivated. She submitted that there was clear evidence from Service User A that this was unwanted. She reminded the Panel that the Registrant accepted in his initial interview with Laura Stocks that he did kiss Service User A on the head.

11. Ms Girven submitted that the evidence demonstrated that the Registrant made a number of inappropriate comments to Service User A and that he largely accepted that he used the words as set out in the allegation. It was submitted that telling Service User A that she was “gorgeous” and that he was “attracted” to her was sexualised and was undertaken with a view to pursuing a sexual relationship.

12. Ms Girven submitted that collecting Service User A from her home address in his car and taking her to the gym during the evening was a clear breach of professional boundaries and was undertaken with a view to pursuing a sexual relationship with her. She submitted that the texts. Calls and WhatsApp messages were unnecessary and any communication regarding appointments should have been conducted thorough the Nuffield telephone system. Ms Girven submitted that the evidence of Laura Stocks confirmed that the Registrant should not have been using his personal mobile to be communicating with Service User A. Ms Girven submitted that this communication was a clear breach of professional boundaries.

13. Ms Girven submitted that with regard to record keeping the record clearly showed that the Registrant had incorrectly recorded right knee instead of right shoulder. In addition, she submitted that the Registrant had accepted in his oral evidence that he had deliberately chosen not to record some of the personal details provided by Service User A in order to protect her confidentiality. Ms Girven submitted that medical records are confidential documents, and this justification was not credible. She referred the panel to the evidence of Laura Stocks who confirmed that there were personal details omitted that she would expect a physiotherapist to record.

14. The Registrant submitted that at all times he was acting in the best interests of Service User A. He apologised for her experience and stated that he was trying to make her better. The Registrant submitted that at no stage was he intending to pursue a sexual relationship, and the idea was abhorrent to him. The Registrant submitted he is happily married with children and a grandchild. He told the Panel that he felt paternalistic towards Service User A as his daughter is the same age.

15. He submitted that he was empathetic towards Service User A, having undergone similar trauma and felt that he was trying to boost her self-confidence with his comments. He submitted that taking her to the gym was an effort to extoll the virtues of exercise which he genuinely believed would help her. He submitted that he misunderstood and misinterpreted Service User A’s responses and believed that she was comfortable with him and the offer of an orientation session in the gym. The Registrant stated that he often takes Service Users to the gym, and he was attempting to assist Service User A as it was difficult for her to get to the gym on public transport.

16. The Registrant accepted that he had incorrectly recorded knee instead of shoulder and explained that this was a simple error. He submitted that he had taken a conscious decision not to record the personal details divulged by Service User A as they were personal and confidential, and he did not consider they should be in the medical records.

17. The Registrant submitted that all calls and messages were undertaken to facilitate appointments or treatment, and he told the Panel that there were sometimes difficulties with the Nuffield telephone systems. The Registrant submitted that he did not want to make Service User A anxious by calling from an unknown number.

18. In conclusion the Registrant submitted that he has never had any complaints or issues in 26 years. He reminded the Panel that Laura Stocks evidence was that he went, “above and beyond” for his patients and this was what he was attempting to do with Service User A.

19. The Panel accepted the advice of the Legal Assessor. She advised the Panel that the burden of proof remains with the HCPC, and the standard of proof is the civil standard, namely the balance of probabilities. She advised that this does not vary according to the gravity of the conduct alleged and the facts will be proved if the Panel consider that it was more likely than not that they occurred as alleged. The Legal Assessor advised that the Panel should weigh the evidence carefully and not rely solely on the demeanour of any witness. She reminded the Panel that memories can be fallible, and that a confident recollection does not necessarily equate to the truth. A confident witness may be mistaken. The Legal Assessor advised that credibility can be divisible and lies of themselves do not necessarily mean that the whole of a witness’s evidence should be discounted. She reminded the Panel of the Registrant’s good character and advised that this was an aspect that the Panel should take into account, but it was not a defence to the allegation.

Decision on Facts

20. The Panel took into account all of the evidence it has seen and heard so far. In addition to the agreed bundle of documents provided, it took account of the oral evidence of Service User A, Laura Stocks and the Registrant. The Panel had regard to the submissions of Ms Girven and the Registrant and reminded itself that these were not evidence. The Panel accepted the advice of the Legal Assessor given in open session and no further advice was given in the course of deliberations. The Panel has borne in mind throughout its deliberations the burden and standard of proof.

1. Between 20 March 2023 and 11 April 2023, you did not maintain professional boundaries in relation to Service User A, in that:
a. You made unwanted physical contact with Service User A, in that:
i. You hugged Service User A on more than one occasion;

The Panel finds this particular proved.

21. The Panel noted that it did not appear to be in dispute that there were hugs between the Registrant and Service User A. The Panel considered that it was likely that at the conclusion of the first consultation Service User A agreed to the hug that was offered by the Registrant. The Panel noted that in her witness statement Service User A stated that the Registrant asked her if he could hug her, and she accepted. The Panel accepted the evidence of both Service User A and the Registrant that during the consultation there had been discussion of trauma experienced by Service User A and that the session had been emotional. However, the Panel did not consider that this hug, in this context was unwanted or breached professional boundaries.

22. The Panel considered that the hug at the conclusion of the second physiotherapy session was unwanted and therefore did breach professional boundaries. The Panel accepted the evidence of Service User A who stated in her witness statement, “As I stood to leave, the Registrant gave me a tight long body hug whilst stroking my head. The Registrant also kissed my forehead two to three times. I did not consent to this hug or to him kissing me on the forehead.” The Registrant’s evidence was that the hug was “initiated” by Service User A by her extending her arms for a hug. The Registrant did concede that it was possible that this had been misinterpreted by him. The Panel considered that it was more likely that Service User A’s account was correct, that the Registrant had hugged her without consent and that she did not want him to hug her. This is supported by the fact that Service User A subsequently complained about this hug and has been consistent in her account that it was unwanted and made her uncomfortable.

23. For similar reasons the Panel considered the hug at the end of the third session was also unwanted and a breach of professional boundaries. The Panel considered that by this stage the Registrant had become accustomed to hugging Service User A at the conclusion of sessions and had crossed professional boundaries by hugging Service User A and making the assumption that she was comfortable with it. The Panel accepted Service User A’s evidence that by this stage she was becoming uneasy with the conduct of the Registrant and that the hugs were unwanted.

ii. Kissed Service User A on their head on more than one occasion;

The Panel finds this particular proved.

24. The Panel noted that the Registrant denied during this hearing that he had kissed Service User A at any time. In his investigatory interview with Laura Stocks the Registrant accepted that he had kissed Service User A on the back of the head when they were hugging. During this hearing the Registrant stated that he had accepted this because he was traumatised by the allegation and felt that he “must have done something”. However, on reflection he now knows that there was no kissing.

25. The Panel accepted the evidence of Service User A. It considered that she was clear, careful and consistent in her account that the Registrant had kissed her on the forehead and on the top of her head during hugs. The Panel noted that Service User A had been clear in her initial complaint that she had not consented to this and that this was unwanted. The Panel considered that the Registrant’s initial recollection was more likely to have been correct and that there was kissing on the head during the hugging. The Panel did not consider it was likely that this could have been misconstrued by Service User A as the Registrant’s chin resting on her head as suggested by the Registrant as she was very clear in her description that the Registrant kissed her on her head.

You offered Service User A a private gym session outside of working hours;

The Panel finds this particular not proved.

26. The Panel noted that there was no dispute that the Registrant had offered to take Service User A to the gym outside his normal working hours at Nuffield. The Panel accepted that the Registrant worked for Nuffield until 12pm three days per week and also had private clients that he saw in the afternoons and evenings. In addition, the Panel did not consider it was necessary to determine whether the interaction in the gym was a gym “session” or “orientation”. The key issue for the Panel to determine was whether this offer was a breach of professional boundaries.

27. On balance the panel determined that the offer of a gym session at 5pm was not a breach of professional boundaries. The Panel noted that it was within the remit of therapeutic input and that some gym time had been contemplated within the physiotherapy sessions. The Panel accepted the Registrant’s evidence that he had made this offer to assist Service User A become familiar with the gym and with the hope that she would use the gym in the future to assist her recovery. The Panel did not consider that the Registrant’s actions in making this offer were a breach of professional boundaries or undertaken with a view to pursuing a sexual relationship.

You picked Service User A up in your personal vehicle from their home address to transport them to the gym outside of working hours

The Panel finds this Particular Proved

28. The Panel noted that there was no dispute that the Registrant had used his own car to collect Service User A and give her a lift to and from the gym. The Panel noted the Registrant’s explanation that he had done this as a favour to Service User A as she had said it was difficult for her to get to the gym by public transport. It was also clear from the Registrant’s evidence that he felt very strongly that attending the gym would be beneficial for Service User A and he was keen to facilitate it.

29. The Panel considered that this conduct was a breach of professional boundaries. The Panel noted that the Registrant arranged to collect Service User A from her home address and encroached into her personal space by attending at her home address. By using his own car and undertaking the trip in his own time the Panel considered that this conduct takes the gym session outside the professional arena and was indistinguishable from a personal matter. In the view of the Panel, it was conduct that breached professional boundaries.

You made inappropriate comments to Service User A as set out in Schedule A.

The panel finds this particular proved

30 The Panel noted that the Registrant largely accepted that he made the comments as set out in Schedule A. He was clear in his evidence that he would not have used the word “gorgeous” when describing Service User A as this is not a word he uses. Further he stated that he would have been likely to have used the words “beautiful soul” rather than “beautiful person”. The Panel considered that on the basis of the evidence it had heard it was more likely than not that the Registrant had made the comments as set out in Schedule A or words to a similar effect.

31. The Panel considered that these comments were a breach of professional boundaries. They are personal in nature and in the view of the Panel cross the line from what would be considered appropriate in a professional therapeutic relationship. The Panel took into account the Registrant’s explanation that he was attempting to boost Service User A’s self-esteem however, the Panel considered that these comments went beyond what would be appropriate for a physiotherapist and breached professional boundaries.

4. Your conduct in relation to particular 1 was sexually motivated.

The Panel finds this particular Not Proved.

32. The Panel considered the conduct it had found proved in relation to Particular one both individually and as a whole. The Panel had in mind that sexual motivation is a state of mind which can only be inferred by the surrounding circumstances. It had in mind the good character of the Registrant and the explanation he put forward for his conduct which was that he felt paternalistic and empathetic towards Service User A and wanted to help her with her trauma,

33. It took into account the submissions that kissing would ordinarily be reserved for sexual partners and had a sexual element. However, it equally took on board the submission made by the Registrant that kissing can take place in a family or friends’ context with no suggestion of a sexual element.

34. The Panel noted that it was not disputed that the kissing was to the top of Service User A’s head. The Panel considered that this was not overtly sexual, such as kissing on the lips might be. It considered that this was consistent with the Registrant’s evidence that he felt a fatherly concern for Service User A. The Panel considered that the kissing and the hugging was more likely to be as a result of the fatherly concern rather than in pursuit of a sexual relationship.

35. The Panel reached the same conclusion in relation to the hugging. Although hugging can be an intimate act, it can also be done to reassure or to provide comfort. The Panel accepted that the sessions had been emotional for Service User A, and it also accepted the Registrant’s account that he wanted to provide comfort. The Panel noted he did not ever deny he hugged Service User A but has consistently denied that there was any “sinister” intent. The Panel noted that there was no attempt to touch Service User A inappropriately during the hugs or do anything to escalate the hug to something more intimate.

36. The Panel reached a similar conclusion in relation to the car journey to the gym. There was no evidence that anything inappropriate or untoward occurred in the car or that the Registrant made any attempt to kiss or touch Service User A. There was a “fist bump” as the Service User exited the car but no attempt to use the car journey to initiate a sexual relationship or obtain sexual gratification. In these circumstances the Panel concluded that there was insufficient evidence that this conduct was sexually motivated.

37. The Panel considered the comments made and noted that none of the comments were sexually explicit or referred to Service User A’s personal or intimate areas. The Panel considered that the comments could be interpreted as an attempt to boost Service User A’s self-esteem and empower her to recover as the Registrant submitted. Although there were words used such as “attracted” and “magnetised” the Panel could not be satisfied that taken in the context of a conversation about Service User A’s personal experiences they were said in pursuit of a sexual relationship or for sexual gratification. Whilst the Panel were satisfied that the comments were inappropriate and in breach of professional boundaries it was not satisfied that the HCPC had discharged the burden that they were sexually motivated.

38. The Panel considered the conduct collectively and it did not consider that the conduct as a whole supported an inference that it was done in pursuit of a sexual relationship. There was no evidence that the Registrant at any time sought to initiate a sexual advance and his conduct in hugging and kissing to the top of the head is consistent with his account that he felt paternalistic towards Service User A as she is a similar age to his daughter. The Panel noted that the Registrant is of previous good character and has never had any complaint about his conduct. Further, the Panel had in mind the evidence of Laura Stocks that she was “shocked” by the allegations, and she considered that the Registrant always went above and beyond for his patients and there had never been any concerns about him. In all the circumstances, the Panel did not consider there was sufficient evidence that the conduct was sexually motivated.

2.Between 2 April 2023 and 14 April 2023, you communicated with Service User A using your personal mobile phone when there was no clinical reason to do so, in that:

a. You sent text messages to Service User A; and/or
b. On 11 April 2023, you sent WhatsApp messages to Service User A; and/or
c. On 13 April 2023, you telephoned Service User A on two occasions.

The Panel finds this Particular Not Proved.

39. The Panel considered the content of the text messages sent to Service User A. The Panel noted that the text messages that were sent to Service User A related to either arranging the gym session or cancelling a previously arranged appointment. Whilst the Panel considered that the Registrant ought not to have used his personal mobile phone for these communications, there was no evidence that the text messages were sent without a clinical reason. The Panel noted that one message was sent on Easter Sunday, but this was in response to a message sent by Service User A confirming her address. Another message was sent asking how Service User A was after the gym session which the Panel considered did have a clinical purpose.

40. For similar reasons the Panel considered that the telephone calls did have a clinical purpose and were made with a view to re-arranging a previously booked appointment. This was supported by the contemporaneous text and emails and there was no suggestion that the calls were made for any other reason. The Panel could not be clear from the screen shots the exact date of the missed calls, but it was likely that they were the calls referred to by both Service User A and the Registrant relating to the cancellation of a pre-booked appointment.

41. The Panel did not consider the sending of the WhatsApp messages had no clinical reason. It accepted the evidence of the Registrant and Service User A that they had discussed Eckhart Tolle during the car ride from the gym session. The videos sent via WhatsApp were related to Service User A’s personal matters that had been discussed with the Registrant during the sessions. Although the Panel considered the time that these messages were sent was inappropriate it did not consider that they were unsolicited or had no clinical reason.

3.Between 20 March 2023 and 11 April 2023, you did not maintain accurate and complete records for Service User A, in that:

a. You did not adequately record clinical details of the physiotherapy assessment taken on 20 March 2023; and/or
b. You incorrectly recorded in Service User A's records that they required an assessment on their right knee, when they required an assessment on their right shoulder.

The Panel finds this particular proved.

42. The Panel noted that it was accepted that the Registrant had not recorded fully all of the personal details that had been disclosed to him by Service User A in the records. The panel did not consider his explanation that these details were confidential to be persuasive. Medical records are by their very nature confidential and other practitioners are required to observe the same rules relating to confidentiality as the Registrant. The Panel accepted the evidence of Laura Stocks that she would have expected these details to have been recorded. The Panel considered the Registrant’s evidence that he thought that the information was relevant to the clinical picture and had asked questions about these matters. In the circumstances the Panel concluded that it was incumbent upon him to record full details of the answers given in order to make an accurate and complete record.

43. The Panel noted that it was accepted that the Registrant had erroneously recorded right knee. The Panel considered that this appeared to be a one-off administrative error.

Decision on Grounds

44. The Panel then considered whether the facts found proved amounted to misconduct. The Panel noted that the consideration of misconduct and impairment is a two-step process, and it was required to consider whether by reason of the misconduct as alleged the Registrant’s fitness to practise is currently impaired. The Panel noted that this was a matter for the Panel exercising its own professional judgement.

45. The Panel in reaching this decision had regard to the submissions made by Ms Girven on behalf of the HCPC and by the Registrant. Ms Girven helpfully set out the approach for the Panel to adopt and referred to the relevant case law and Standards within the Case Summary and in oral submissions. The Registrant provided the Panel with a written reflective document and in answer to Panel questions set out the steps he has taken to prevent any repetition and set out his plans for the future.

46. The Panel had regard to the advice of the Legal Assessor. It had regard to the HCPTS Practice Note on “Fitness to Practise Impairment” and in particular, it noted that it was required to determine whether the facts found proved amounted to the statutory ground and this did not automatically follow from the findings of fact. The Panel was reminded that misconduct must be serious and not every falling short will give rise to a finding of misconduct.

47. The Panel considered that the particulars found proved as set out in Paragraph 1 amount to serious misconduct. The Panel considered that kissing the top of Service User A’s head and hugging her was a very serious breach of professional boundaries and fell far short of the standards expected of a registered Physiotherapist. It ought to have been clear to the Registrant that this conduct was unwanted and was a clear crossing of the boundary expected between professional and patient. The Panel considered that this was compounded by the comments made to Service User A, which were unprofessional, personal and would not be expected by a Service User to be used by a Physiotherapist in the context of treatment. In making arrangements to transport Service User A to the gym in his car, the Panel considered that this was a further blurring of the lines between the Registrant as a professional and Service User A. The Panel considered that the Registrant had engaged in a course of conduct which crossed professional boundaries and both individually and collectively the facts found proved amounted to misconduct. The Panel considered that fellow practitioners would find the Registrant’s conduct deplorable.

48. The Panel notes the HCPC Standards of Conduct, Performance and Ethics January 2016 and in particular Standard 9.1 “You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.” The Panel considered that the Registrant’s conduct undermined public trust in him and the profession.

49. The Panel considered that the Registrant had also breached the following standards:

“1.7 You must keep your relationships with service users and carers professional.

2.2 You must listen to service users and carers and take account of their needs and wishes.”

The Panel noted the applicable HCPC Standards of proficiency for Physiotherapists and considered that the Registrant had also breached standards 2.3 and 2.4.

50. The Panel considered that the reputation of Physiotherapists was damaged by the Registrant’s conduct. The Panel considered that members of the profession and the public would be shocked and appalled to learn of the Registrant’s actions towards Service User A.

51. The Panel considered that in relation to the facts found proved at Paragraph 3 these did not amount to serious professional misconduct. The Panel considered that in recording right knee instead of right shoulder, the Registrant had made a one off administrative error. The evidence before the Panel was that the Registrant had previously scored 100% on each of his record keeping audits and there was no evidence that this error was anything other than a mistake. The Panel did not consider this crossed the threshold to amount to serious professional misconduct.

52. In respect of the failure to fully record the details provided by Service User A the Panel considered that this was a breach of Standard 10.1 which requires a practitioner to keep full, clear and accurate records. The Panel was concerned that the Registrant had taken a decision not to fully record information on the basis that it was confidential. The Panel considered that the evidence of Laura Stocks confirmed that this was information that ought to have been recorded. However, the Panel was not satisfied that this was such a serious falling short of the Standards that fellow practitioners would find deplorable. The Panel considered that the Registrant had recorded some details and there was no attempt to mislead or cover up any wrongdoing by the failure to record. The Panel considered that the Registrant had made an error of judgement which was a breach of the standard but was not so serious as to amount to serious professional misconduct.

Decision on Impairment

53. The Panel went on to consider the issue of impairment by reason of the Registrant's misconduct. It had careful regard to all the evidence before it and to the submissions of Ms Girven for the HCPC and those made by the registrant in relation to this aspect. It accepted the advice of the Legal Assessor and had particular regard to the HCPTS Practice Note on “Fitness to Practise Impairment”.

54. Ms Girven for the HCPC submitted that the Registrant’s fitness to practice was impaired both on public protection and public interest grounds. Ms Girven submitted that in considering whether the misconduct had been remedied and was unlikely to be repeated the Panel should consider the degree of insight and remediation shown by the Registrant. Ms Girven submitted that the evidence demonstrated limited insight into his misconduct and did not demonstrate a full understanding of the gravity of the matters found proved. Ms Girven submitted that as the Registrant had not accepted the full extent of his misconduct there was a risk of repetition. Further, she submitted that the need to uphold proper professional standards would be undermined if a finding of impairment were not made in this case.
55. The Registrant in summary set out that he had taken steps to remedy his failings. He did not attempt to discredit Service User A and stated he took responsibility for his actions and their impact on Service User A. The Registrant drew the Panel’s attention to his lengthy career in which the Registrant has treated many patients. The Registrant stated that he would like to continue to reflect and develop and undertake a Masters degree.

56. The Panel first considered past impairment. It noted its findings that the Registrant had on more than one occasion failed to observe proper professional boundaries in relation to Service User A and had made her feel uncomfortable and upset. It had also found that the Registrant’s misconduct had breached key standards of the HCPC’s “Standards of conduct, performance and ethics” as set out above, and had undermined public confidence in the profession.

57. The Panel went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of that misconduct. In addressing the personal component of impairment, the Panel asked itself whether the Registrant is liable, now and in the future, to repeat misconduct of the kind found proved. In reaching its decision, the Panel had particular regard to the issues of insight and remediation.

58. The Panel noted that in the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin) Mrs Justice Cox stated: “When considering whether or not fitness to practise is currently impaired, the level of insight shown by the practitioner is central to a proper determination of that issue.”

59. The Registrant has submitted documents including a reflection and relevant references. The Registrant has expressed within the documents and in his evidence an apology and has explained that he takes responsibility for his actions and feels shame and remorse at the impact his actions had on Service User A.

60. The Panel had careful regard to Silber J’s guidance in Cohen v GMC [2008] EWHC 581 (Admin) that Panels should take account of:

• Whether the conduct which led to the charge is easily remediable;
• Whether it has been remedied; and
• Whether it is highly unlikely to be repeated.

61. The Panel accepted the evidence that the Registrant has treated a considerable number of patients over a lengthy career, and this is an isolated complaint. However, the Panel reminded itself that these were very serious breaches of professional boundaries and had distressing and upsetting consequences for Service User A who was a vulnerable service user. The Panel considered that with the development of meaningful insight the Registrant’s misconduct is remediable. It noted the Registrant’s assurances that he has learned from this experience and his reflection as to the reasons why it arose. The Panel considered that the Registrant had taken some steps to appreciate the effect of these circumstances, in particular his recognition that he was overly empathetic and had tried to go above and beyond. The Panel noted that the Registrant indicated he had accessed some counselling and had taken steps to reflect on this process and the impact on his practice.

62. The Panel also noted that the Registrant has continued to work as a Physiotherapist and has implemented a chaperone process.

63. The Panel considered that the Registrant had not fully developed his insight into the nature and gravity of his conduct. The Panel noted that although the Registrant had taken steps to put procedures in place such as chaperones, his reflection did not fully address any coping strategies he has to deal with how he would manage a similar situation in the future. The Panel considered that the Registrant had not explained what support was in place should he find himself feeling similarly empathetic towards a patient.

64. The Panel was not reassured from the evidence presented that the Registrant fully understood the issues that led to the blurring of the boundaries and the subsequent complaint by Service User A. The Panel noted there had been no evidence of any training undertaken by the Registrant, particularly in relation to the area of professional boundaries. Furthermore, the Panel had no independent evidence beyond the Registrant’s assertion that he had reflected and had implemented chaperone procedures to ensure that there was no repetition of similar failings. In addition, there was likewise no independent evidence, (for example, in the form of service user testimonials or from another professional that had observed the Registrant’s practice) that he was now communicating effectively and professionally with patients and that there were no concerns regarding overstepping professional boundaries.

65. The Panel was therefore unable to conclude that he had embedded any learning into his practice.

66. The Panel considered that whilst the Registrant had some insight and had undertaken some remediation, this was not complete and did not sufficiently address the failings the Panel had found proved.

67. In light of its findings in relation to insight and remediation, the Panel considered that it could not rule out a risk that the Registrant would repeat matters of the kind found proved. For these reasons, the Panel determined that a finding of impairment is required on public protection grounds.

68. The Panel then went on to consider whether a finding of impairment is necessary on public interest grounds. In addressing this component of impairment, the Panel had careful regard to the critically important public issues identified by Silber J in the case of Cohen when he said:

“Any approach to the issue of whether .... fitness to practise should be regarded as ‘impaired’ must take account of…the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour.”

69. The Panel considered that there had been a serious falling short by the Registrant which had compromised Service User A’s dignity, and crossed professional boundaries which caused her upset and distress. The public rightly expects professionals to act sensitively and appropriately in relation to these matters. The Panel considered that the public would be very concerned to learn of the Registrant’s conduct in this matter. The Panel was of the view that public confidence in the profession and the regulatory process would be undermined if no finding of impairment was made in these circumstances. Therefore, the Panel concluded that it was in the public interest to make a finding of impaired fitness to practise.

70. For all the reasons set out above, the Panel determined that the Registrant’s fitness to practise is currently impaired on both public protection and public interest grounds.

Decision on Sanction

71. The Panel heard submissions from Ms Girven and the Registrant. Ms Girven did not advocate for a particular sanction but drew the Panel’s attention to the relevant framework and principles to be adopted. She submitted that the Registrant’s actions involved a breach of trust and had the potential to have caused harm to Service User A. Ms Girven informed the Panel that the Registrant had a lengthy career and had been practising without restriction since these allegations were made and there had been no repetition of any concerns.

72. The Registrant in his submissions set out that he did have insight and had taken on board the findings of the Panel and did not pose an ongoing risk.

73. The Panel considered the “Sanctions Policy” of the HCPC and accepted the advice of the Legal Assessor that a sanction should be the least that is necessary to ensure public protection. The Panel reminded itself that the purpose of a sanction is not to punish the Registrant and that a sanction must be reasonable and proportionate.

74. The Panel first considered the aggravating features of the case. The Panel determined that the breach of professional boundaries was a repeated course of conduct over a number of weeks. The Panel considered that there was evidence of some distress to Service User A who was a vulnerable service user. The Panel also considered that the nature of the conduct was a breach of trust and amounted to an aggravating feature.

75. In mitigation the Panel noted the remorse demonstrated by the Registrant which it considered was genuine. The Panel was impressed that the Registrant took full responsibility for his actions and at no stage did he attempt to minimise the effect on Service User A which was to his credit. The Panel also took into account the steps the Registrant had implemented to remediate his practice. The Panel reminded itself of the findings made at the impairment stage and took into account that the Registrant had taken a number of practical steps to address the failings that led to the misconduct. The Panel noted that the Registrant had been working without restriction since the allegations were raised and there have been no further concerns. The Panel noted that this was a single Service User complaint in the context of a lengthy career. The Panel noted the Registrant’s engagement in these proceedings and accepted his willingness to continue to improve his practice.

76. The Panel reminded itself that it had previously determined that there was a risk that the Registrant could put patients at risk of harm if he were to return to practice as a Physiotherapist without restriction. The Panel considered that although the Registrant had made some progress a residual risk remained that he could again blur professional boundaries.

77. The Panel determined that the risk it had identified as a result of the Registrant’s misconduct was too significant to make no Order. Further, it considered that the serious breach of professional boundaries it had found proved required a more severe sanction in order to uphold public confidence in the profession.

78. The Panel considered that similar considerations applied to a Caution Order, as this would not provide sufficient public protection and would not address the public interest concerns.

79. The Panel considered that a Conditions of Practice Order was the most appropriate and proportionate order. The Registrant had fully engaged with the HCPC process and demonstrated that he was willing and able to comply with any conditions. The Panel considered that the risk it had identified could be managed with conditions which would support the Registrant to further develop his physiotherapy practice and ensure that he was able to maintain professional boundaries as a physiotherapist. The Panel had regard to paragraph 106 of the Sanctions Policy which sets out the cases in which a Conditions of Practice Order is likely to be appropriate. The Panel considered that all of these circumstances applied in the Registrant’s case.

80. Having determined that a Conditions of Practice Order was appropriate the Panel went on to consider why a Suspension Order would not be a proportionate and appropriate measure. The Panel concluded that preventing the Registrant from practising where workable conditions would protect the public would be disproportionate and unduly punitive. Although the Panel identified that the misconduct involved a breach of trust with a vulnerable patient, it did not consider that the Registrant exhibited predatory behaviour or abused his position to pursue an inappropriate relationship. Therefore, the Panel considered that it was in the public interest for a Conditions of Practice Order to be imposed to enable the Registrant to strengthen his practice and continue to treat patients.

81. The Panel considered that there should be conditions for training and a mentor to enable the Registrant to develop his practice and objectively demonstrate that he understood professional boundaries.

82. In considering the period of the Order the Panel determined that it should be for 12 months. This period would afford the Registrant an opportunity to arrange a mentor and to demonstrate to a reviewing Panel that he had taken the opportunity to embed the learning he was developing.

83. This order would be reviewed before expiry. On such a review the Panel considered that a future Panel would be assisted by the Registrant’s continued attendance and engagement in addition to the information required to be provided in the Conditions of Practice Order. The Panel also considered that a Reviewing Panel would be assisted by an updated reflective account detailing the Registrant’s learning.

ORDER: The Registrar is directed to annotate the Register to show that, for a period of 12 months, you, Mr Arthur Martial, must comply with the following conditions of practice:

1. You must inform the HCPC within 7 days if you take up any other or further professional work.

2. You must inform the HCPC within 7 days of becoming aware of:

A. any patient safety incident you are involved in;

B. any investigation started against you;

C. any disciplinary proceedings taken against you.

3. You must inform the following parties that your registration is subject to these conditions:

A. any organisation or person employing or contracting with you to undertake professional work;

B. any agency you are registered with or apply to be registered with to undertake professional work (at the time of application);

C. any prospective employer for professional work (at the time of your application);

4. Within 21 days of the operative date, you must identify a mentor who must be a HCPC Registered Physiotherapist, a GMC Registered Doctor or any other regulated healthcare professional.

5. You must work with your mentor to formulate a Personal Development Plan addressing the area of professional boundaries.

6. Within 3 months of the Operative Date, you must forward a copy of your Personal Development Plan to the HCPC.

7. You must meet with your mentor on a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.

8. You must allow your mentor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.

9. You must forward to the HCPC a report from your mentor about your compliance with these conditions no later than 28 days before any review hearing.

10. You must attend a face to face or virtual training course on the topic of professional boundaries within 3 months and forward to the HCPC confirmation of your completion of this course within 14 days of completion.

Interim Order

Application

84. The Panel considered the application by the HCPC for an Interim Order to cover the appeal period. The HCPC’s application is made on the 2 statutory grounds as follows:

• it is necessary for the protection of members of the public
• is otherwise in the public interest.

85. The Registrant made no submissions on the application for an Interim Order and confirmed to the Panel that he understood the nature of the application.
Decision

86. The Panel makes an Interim Conditions of Practice Order in the same terms as set out above under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. The Panel considered that to do otherwise would be inconsistent with its earlier findings and would not protect the public against the risk of repetition identified. 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 to cover the length of any appeal.

History of Hearings for Mr Arthur Martial