Mr David Kimathi Gitonga

Admissions

1. At the outset of the hearing, the Registrant admitted Particular 1a, namely, that he hugged SUA, and he also admitted Particular 3 to the extent that this action (‘the hug’) amounted to misconduct. The Registrant denied all other Particulars.

Background

2. The Registrant is a registered Physiotherapist. At the time that the concerns arose, the Registrant was working on a self-employed basis at The Stable and Coach House based in Haywards Heath.

3. Service User A (‘SUA’) first came to know the Registrant when she was recommended his services by a friend.
4. In 2023, SUA attended several appointments with the Registrant. However, the incident that gave rise to the fitness to practise proceedings allegedly took place on 13 September 2023.

5. On the date in question (13 September 2023), SUA attended an appointment with the Registrant. At the end of the appointment, it is alleged that the Registrant hugged SUA by placing his hands on her hips and pulling her slightly towards him. It is further alleged that after this, the Registrant tapped SUA’s bottom.

6. As SUA was exiting the treatment room, it is also alleged that the Registrant grabbed SUA by the waist and said: - ‘I know I’ve confused you, but I like you.’

7. On 15 September 2023, SUA contacted the Registrant, via email, to complain, to him about his conduct. On 19 September 2023, SUA subsequently contacted the HCPC to complain.

Summary of Evidence

HCPC

8. The HCPC relied upon the oral and written evidence of SUA. The HCPC also relied upon a final hearing bundle of 25 pages. The HCPC also furnished the Panel with a case summary of 5 pages and written closing submissions consisting of 11 pages.

9. The Registrant gave oral evidence to the Panel. In the presentation of his case, he also relied upon a bundle of 8 pages; a 6-page witness statement; a single page email confirmation of booking between himself and SUA; and a single page diary entry which outlined the appointments listed in his diary for the week commencing the 11 September 2023. Mr Bealey, appearing on the Registrant’s behalf, also provided the Panel with his closing submissions on facts, which was 12 pages long.

10. The accounts below are provided as a summary of the evidence to the Panel and are not a verbatim account of the evidence provided to it.

Special measures application

11. Ms Bernard-Stevenson, appearing on behalf of the HCPC, made an application for the Registrant to turn his video camera off during the course of SUA’s oral evidence to the Panel. Ms Bernard-Stevenson indicated that, further to discussions with SUA, SUA was feeling “anxious” about giving evidence and the Registrant disabling his video camera would enable SUA to give her ‘best evidence’ to the Panel.

12. After taking instructions from the Registrant, Mr Bealey did not object to this course of action being directed by the Panel.

13. The Panel accepted the advice of the Legal Assessor who had, amongst other things, drawn the Panel’s attention to Rule 10A of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (hereafter ‘the Rules’) and to the HCPTS Practice Note titled ‘Special Measures’.

14. Having regard to the aforementioned, the Panel determined that SUA could be regarded to be a ‘vulnerable witness’ falling within the definition outlined at Rule 10A (1)(e), because she was a witness ‘where the allegation against the practitioner is of a sexual nature and the witness is the alleged victim’. Further, the Panel also accepted Ms Bernard-Stevenson’s submission to it that the quality of SUA’s evidence may be adversely affected should she have to see the Registrant ‘on screen’ and special measures not implemented. Having regard to this, the Panel directed that the Registrant turn his video camera off during the course of SUA’s evidence to it.

15. The Panel was satisfied that directing this course of action was both fair and proportionate to all parties in all of the circumstances of the case. This was because the Registrant and his representative, Mr Bealey, would both be able to see SUA give her evidence ‘on screen’ and further, Mr Bealey would have an opportunity to cross-examine SUA on her evidence on the Registrant’s behalf. Consequently, the Panel determined that there was no detriment caused to the Registrant in the presentation of his case. The Panel was also satisfied that by implementing this special measure SUA would be able to give her best evidence to it and no other special measures were required.

SUA

16. SUA told the Panel, in her oral evidence to it, that she first became aware of the Registrant when he was recommended to her by another patient of his. She stated that she had initially sought treatment due to back pain which was associated with running a ‘glamping’ business.

17. SUA stated that she believed that she had seen the Registrant for approximately six appointments which usually took place one week apart, however, she could not recall the exact number of sessions and sometimes the sessions would be twice in one week. SUA also told the Panel, that her appointments usually took place in the morning before she started work however, her last two appointments with the Registrant occurred in the evening.

18. SUA also told the Panel that the Registrant also provided treatment for her son, and a colleague of hers who worked for her (‘Ms P’).

19. SUA, in her written witness statement placed before the Panel and her oral evidence told the Panel that she had no cause for concern regarding the Registrant’s clinical treatment of her during her sessions with him, but rather she had concern regarding his behaviour which was displayed during the appointment on 13 September 2023 (‘the appointment’).

20. SUA told the Panel that during the appointment, on 13 September 2023, the Registrant had provided treatment on her back and that once this treatment had concluded she got up to get dressed and went to place her shoes back on, as she had removed them to receive treatment. SUA told the Panel that as she was leaning over to put her shoes on, the Registrant “sort of hugged” her by placing his hands on her hips and slightly pulling her towards him. SUA told the Panel that following on from this, the Registrant tapped her bottom and walked away to take notes. SUA stated that the Registrant then proceeded to make “light conversation” about her plans for the remainder of the evening, to which she responded she would be cooking dinner.

21. SUA told the Panel that as they both went to leave the treatment room, the Registrant grabbed her from the waist and said “I know I’ve confused you, but I like you or words to that effect” and she had responded with words something akin to “no that’s not possible”.

22. SUA informed the Panel that she paid for the treatment and left in a state of shock. SUA also told the Panel that she could not say what the Registrant’s intention was behind his actions however she felt that they were an opportunistic “pass” being made towards her.

23. SUA indicated to the Panel that in the coming days, she spoke to a friend who used to practise physiotherapy and she told the Panel that they suggested a referral to the Registrant’s regulatory body. SUA’s email complaining to the Registrant about his behaviour, dated 15 September 2023, and her subsequent referral to the HCPC, dated 19 September 2023, were appended to SUA’s witness statement.

24. SUA also gave evidence to the Panel that on the morning of the 15 September 2023, the Registrant responded to her email of complaint, dated the same, and stated that in his email the Registrant apologised for his behaviour and that he acknowledged that his behaviour was unprofessional and that he should have maintained the client-therapist boundaries. The Registrant’s email, dated 15 September 2023, was also exhibited to SUA’s witness statement.

25. SUA also informed the Panel that after receipt of this email, the Registrant refunded her a sum of money namely, £230.00.

26. In response to questions from Ms Bernard-Stevenson, SUA also told the Panel that the hug from the Registrant had lasted approximately “two seconds” and was “not very long” and that the tap on the bottom had lasted approximately “a millisecond”.

27. In response to matters put to her in cross-examination by Mr Bealey, SUA acknowledged and accepted that because matters had occurred some time ago (in 2023), that the passing of time may have had an impact on the accuracy of her memory on matters such as the timing of the appointment. However, she also stressed to the Panel, that her email to the Registrant, dated 15 September 2023, and her referral to the HCPC, dated 19 September 2023, were an accurate reflection and account of what had occurred during the appointment on 13 September 2023. SUA also told the Panel that she did not include all aspects of her complaint in her email to the Registrant (dated 15 September 2023) and stated that this was a summary of her main concerns about how he had behaved during the appointment.

The Registrant

28. The Registrant gave oral evidence to the Panel, and he also relied upon his written witness statement and other documentation placed before the Panel.

29. The Registrant told the Panel that he had been registered with the HCPC since 2012, having qualified as a Physiotherapist in June 2006. The Registrant stated that he had been working as a Physiotherapist, in Finland, between 2006 and 2011 at which point he relocated to the United Kingdom.

30. The Registrant also outlined that between 2011 and 2021 he worked as a locum Physiotherapist through agencies for various NHS trusts and that during weekends, and when he was between NHS contracts, he also provided physiotherapy on a self-employed basis from private rented premises.

31. The Registrant also told the Panel that in August 2021 he started providing physiotherapy via his own private clinic, working for himself and that he would treat patients who would self-refer to him, he also outlined in his witness statement that he treated patients who were receiving funding provided through their medical insurance company.

32. The Registrant told the Panel that he first met SUA in 2023 and that she had been referred to him by another patient of his. The Registrant stated that he first saw SUA for lower back and right shoulder “issues” and that she had received four “sessions” from him which were between May and June 2023. The Registrant stated that these sessions ended because SUA’s presenting issue was resolved but that she returned to see him for further treatment on her right shoulder and central lower back pain on 30 August and 13 September 2023.

33. The Registrant informed the Panel that during the session on 13 September 2023 he provided SUA with some manual therapy to “deal with her lumbar sacral pain” and that he also provided acupuncture to her.

34. The Registrant stated that, at the conclusion of the treatment provided to SUA, he recalled SUA looked “very tired” and that this was a common reaction in clients who had received acupuncture. The Registrant also told the Panel that it was at this stage that he said to SUA “You look very exhausted after the acupuncture treatment” and in response to this SUA informed him that she would have to return home and cook dinner for her entire family. The Registrant told the Panel that it was at this stage, he had thought to himself that he admired her dedication to her family and, without thinking, he hugged her for no more than two seconds. The Registrant also told the Panel that he did so by placing his hands on SUA’s lower back, above her hips and stated that he had did not pull SUA towards him or grab her.

35. The Registrant told the Panel that he stepped back and immediately said “I am so sorry, I like your character. Despite me advising you to go to rest you will be going to cook, that is dedication I admire.”

36. The Registrant also told the Panel that he denied patting SUA on the bottom and that he accepted that he should not have hugged SUA and that he had apologised to SUA both at the time and in his subsequent email to her on 15 September 2023.

37. The Registrant also told the Panel that his behaviour, in hugging SUA, was not sexually motivated and that it was an act of “compassion” towards her.

38. The Registrant also told the Panel that after the hug, SUA stayed to discuss her son’s treatment with him, as SUA’s son was also a patient of his, and that he said “I hope I did not confuse you by hugging you” and that SUA responded with “no, you did not”.

39. The Registrant also accepted, during his oral evidence to the Panel that he had refunded £230 to SUA and that he had done so as an act of “good customer service” because, further to SUA’s email to him dated 15 September 2023, it was clear to him that she was not happy about the session and what had occurred during that session.

40. In response to questions from Ms Bernard-Stevenson, the Registrant denied that this payment amounted to ‘hush money’, or that he had attempted to prevent SUA from complaining to the HCPC.

41. The Registrant also accepted during cross examination that as a registrant of the HCPC he must advocate for his patients and ensure that they are treated with the highest standards. He also accepted that hugging, or touching a patient without clinical justification and/or consent breached the HCPC’s Standards of Conduct, Performance and Ethics and that he recognised in hugging SUA, he had breached professional boundaries.

42. The Registrant also informed the Panel that he had, since the matter arose, attended a ‘Professional Boundaries in Practice course’ in March 2025 and that this course had helped him to understand the severity and impact of his behaviour towards SUA.

Decision on Facts

Panel’s Approach

43. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything and the individual particulars of the Allegation could only be found proved if the Panel was satisfied on the balance of probabilities. The Panel also reminded itself that it did not need to determine all matters which had been raised before it, it only had to consider such matters which enabled it to determine whether the particulars of the Allegation had been proved.

44. In reaching its decision, the Panel took into account all of the evidence and information presented to it and also that contained within the hearing bundles, as well as the submissions made by Ms Bernard-Stevenson and Mr Bealey. The Panel also had regard to the HCPTS practice note titled ‘Making decisions on a registrant’s state of mind’. The Panel also had regard to the Registrant’s good character when determining the facts before it.

45. The Panel accepted the advice from the Legal Assessor.

STEM

‘As a registered Physiotherapist (PH98608):

46. The Panel had regard to the evidence before it and in doing so it noted that the HCPC had produced a certificate confirming that the Registrant was an HCPC registrant with a registration number of ‘PH98608’. Further, the Panel also noted the evidence from the Registrant, who accepted in his witness statement and oral evidence to it, that he was an HCPC registered Physiotherapist and that he did not seek to challenge or deny this aspect of the Allegation.

47. The Panel was therefore satisfied that the Registrant was a registered Physiotherapist with the registration number of PH98608 and that the stem of the Allegation had been made out.

Particular 1 - proved

1. You failed to maintain professional boundaries with Service User A on or around 13 September 2023, in that you:

a)‘Hugged’ Service User A; and/or

b)Tapped Service User A on the bottom; and/or

c)Grabbed Service User A by the waist from behind; and/or

d)Said, ‘I know I’ve confused you, but I like you,’ or words to that effect.

48. The Panel considered that it was appropriate for it to first determine whether the acts as outlined within Particulars 1a) – 1d) were proved and for it then go on to consider whether the over-arching stem of Particular 1 had been proved.

49. The Panel noted that there were some agreed facts between the parties. Firstly, it was an agreed fact that SUA had attended for treatment with the Registrant on the 13 September 2023. Secondly, it was not disputed that a ‘hug’ had taken place during the course of the appointment and that the hug had taken place after the Registrant had concluded clinical treatment on SUA. Lastly, it was also not disputed that SUA had emailed the Registrant on the 15 September 2023 and that the Registrant had responded to her on the same date and that subsequent to this, SUA had referred her concerns to the HCPC on 19 September 2023.

50. In its consideration of the aforementioned agreed facts, the Panel also noted that SUA and the Registrant did not agree upon: where in the room the ‘hug’ had taken place; the Registrant denied tapping SUA on the bottom; that the Registrant denied grabbing SUA by the waist from behind; that he denied using the words ‘I know I’ve confused you, but I like you’ or words to that effect; and that he denied that any conduct was either sexually motivated or sexual in nature. The Panel also noted that there was dispute between SUA and the Registrant regarding SUA’s account in respect of her attire on the day, where her clothing was placed during the course of the appointment and who had moved the appointment timings (from morning sessions to evening sessions).

51. In its consideration of the evidence before it, the Panel had regard to the contents of the email exchange between SUA and the Registrant, dated 15 September 2023, which stated:

SUA to the Registrant:

‘I writing to Inform you that [Ms P] will not be attending her appointment today at 8.00am or any future sessions.

I want you to know that the incident that happened at the end of the above session where you hugged me from behind and then patted me on my bottom in your practice room and then whilst exiting the room told me that you had confused me and that you liked me. This unwarranted advance left me reeling.

I was so shocked that I proceeded to sit in your office and paid for the session in disbelief, unable to process what had just happened whilst you continued to make light conversation about treatment and my son's shoulder.

When I returned home I felt upset and angry with myself for not confronting you as you had clearly crossed a line. I have placed my trust in you and I feel violated by your actions. I was completely vulnerable in a building with no other people at time of day when there are few people at that location.

You have behaved in an unprofessional manor and broken the trust between therapist and patient. I am still considering how to report this incident. I will not be attending any further sessions.’

Registrant’s response to SUA:

‘Good morning,
I Sincerely apologise for being unprofessional by hugging you. I understand I did cross a line by this and all I can ask is please
forgive me and I can promise this has not and will never happen again in this premises or elsewhere.
I felt for you looking so tired after treatment and mentioning you would be going to start cooking for your family, but I should
have respected and maintained our client-therapist boundary.
I can refund all you have paid to my clinic for making you feel bad and please I again ask for forgiveness and a chance to correct
this.
Thank you’

52. The Panel also had regard to the contents of SUA’s referral to the HCPC, dated 19 September 2023, which stated:

‘I am writing to complain about the above Physiotherapist. He may be fraudulently misleading as he promotes himself as a
member of your organisation. However when I checked your register to begin this complaint he did not appear.

The address of his practice is…

…I first visited his clinic on 3rd July for a lower back complaint. In all I attended around 11 sessions, also booking in 4 sessions for my son.

On my last session with him on Wednesday 13th September there was an incident at the end of the session. I had turned my back towards him and was bending down to put my shoes on when he grabbed me by the hips, at first I thought he was checking my hips but then, but then he sort of hugged me, tapped me on the bottom and walked away to make his notes. I looked in his direction, reeling not quite sure what had just happened. He proceeded to write notes and made light conversation about what I would be doing later.

As I exited the practice room in front of him, he grabbed me again from behind, by the waist pulling me towards him, he said, I know I've confused you but I like you. I babbled something like no, no no that's not possible. He walked past me as if nothing had happened towards the office where he took payment, I was in a state of shock and he continued to make conversation. He began to discuss my sons shoulder complaint. When the payment transaction was complete he said you may want to leave it for a while, I said next appointment? I said yes I would leave making another appointment and left.

I was unable to talk about it until the next day when I told my husband. My friend had an appointment with him on Friday 15th September. I advised her not to attend. I am copying in the email I sent to him and his response below. He also sent two similar texts at the same time which I can evidence. Please could you acknowledge that you have received this complaint & advise further regarding what the procedure is to investigate & what actions can be taken.’

53. In doing so, the Panel noted that the email exchange between SUA and the Registrant took place two days after the appointment (13 September 2023) and that SUA’s referral to the HCPC was made 6 days after the appointment (19 September 2023). Further, the Panel also noted that SUA’s witness statement was dated 14 February 2024 (five months after the appointment date) and that conversely, the Registrant’s witness statement was dated 06 May 2025 (approximately 19 months after the appointment date and shortly before the hearing date (12 May 2025)).

54. In its assessment of the evidence before it, the Panel noted that the documents exhibited to SUA’s witness statement and indeed SUA’s witness statement itself, were provided much closer in time to the date of the appointment, than that of the Registrant’s witness statement, which was provided well over a year after. Having noted this, the Panel considered that the documents before it (SUA’s email and referral to the HCPC) could be considered to have been provided contemporaneously to the appointment, by SUA and it formed the view that they were credible and reliable. Having regard to this, and to the fact that the Panel considered SUA’s oral evidence to be largely consistent with her witness statement and the contents of the email exchange and her referral to the HCPC, the Panel determined that SUA’s evidence was also credible and consistent. The Panel was also of the view that any deviation from the accounts previously provided by SUA were likely owing to the passage of time and the impact of time on her memory. However, the Panel considered that any deviations in SUA’s evidence to it were infrequent and not material in nature.

55. Conversely, the Panel noted that the Registrant’s account of events had not been provided close in time to the appointment date and at times the Panel considered that the Registrant’s oral evidence had been embellished and differed from that which was outlined within his witness statement.

56. Consequently, the Panel determined that it preferred SUA’s account of the events which unfolded after treatment was provided to her, over the accounts provided to it by the Registrant.

Particular 1a) a)‘Hugged’ Service User A; and/or

57. The Panel noted that the Registrant was legally represented and had, at the outset of proceedings, admitted hugging SUA during the course of the appointment on 13 September 2023.

58. The Panel had regard to contents of SUA’s email to the Registrant and of her referral email to the HCPC. In doing so, the Panel noted that SUA was clear and had repeatedly stated, that the Registrant had ‘hugged’ her. Further, the Panel also noted that in his response to SUA, the Registrant accepted that he had ‘hugged’ SUA. The Panel also noted that both SUA and the Registrant stated during the course of their oral evidence to it that a ‘hug’ had taken place after treatment had concluded.

59. The Panel therefore find Particular 1a) proved.

b)Tapped Service User A on the bottom; and/or

c)Grabbed Service User A by the waist from behind; and/or

d)Said, ‘I know I’ve confused you, but I like you,’ or words to that effect.

60. As outlined above, the Panel noted that the account of events provided by SUA and the Registrant were different and that the Registrant denied Particulars 1b), 1c) and 1d).

61. Having regard to the evidence before it and having regard to the Panel’s assessment of whose evidence it preferred, the Panel was satisfied, on the balance of probabilities, that the Registrant had tapped SUA’s bottom, after he had hugged her as she stood by the chair to place her shoes on, as he walked away from her. In the Panel’s view, SUA had been unswerving in her evidence in respect of what had occurred, and the Panel found her evidence to be credible and consistent in this regard.

62. Further, the Panel was also satisfied on the balance of probabilities that the Registrant had grabbed SUA by the waist from behind as they were both preparing to leave the treatment room and that he had said words to the effect of ‘I know I’ve confused you, but I like you.’ In determining that the Registrant had acted in this way, the Panel had regard to the Registrant’s witness statement and to his oral evidence. In doing so, it noted that the Registrant had admitted that a further interaction had taken place after the hugging and that in both his witness statement and his oral evidence to it, that he had said “I am so sorry, I like your character” and that he had also accepted that he said “I hope I did not confuse you by hugging you”. The Panel also noted that the Registrant had not been entirely consistent on the wording used by him and further, it also concluded that he had sought to embellish upon the wording outlined within his witness statement when giving oral evidence to it. Having regard to all of the aforementioned, the Panel considered that it was more likely than not that the Registrant did grab SUA by the waist from behind and used the words ‘I know I’ve confused you, but I like you’ were used by the Registrant.

63. Consequently, the Panel found Particulars 1b), 1c) and 1d) proved.

You failed to maintain professional boundaries with Service User A on or around 13 September 2023, in that you:

64. Having noted that there was no dispute that the Registrant had provided treatment to SUA, on 13 September 2023, the Panel was satisfied that the Registrant was under an obligation to maintain professional boundaries when doing so. In forming this view, the Panel noted the HCPC Standards of Conduct, Performance and Ethics and it had regard to the standards pertaining to the maintenance of professional boundaries. In the Panel’s view, it was a fundamental tenet of the Physiotherapy profession that physiotherapists maintain professional boundaries when treating patients.

65. Further, in forming the view that the Registrant was under such an obligation, the Panel also had regard to the Registrant’s email to SUA (dated 15 September 2023) and to his oral and written evidence before the Panel which stated that he was aware that hugging SUA was a breach of professional boundaries and the Panel shared this view. The Panel also considered that the Registrant also failed to maintain professional boundaries by engaging in the acts it had found proved at Particular 1b), 1c) and 1d), in addition to 1a).

2. Your conduct in relation to particular 1 was sexually motivated and/or sexual in nature. – NOT PROVED

66. The Panel first considered whether the Registrant’s conduct, as outlined at Particular 1 could, individually or cumulatively, be considered to be sexually motivated. It then went on to consider whether the Registrant’s same conduct could be considered to be sexual in nature. In doing so, the Panel had regard to the HCPTS guidance note (referenced above).

67. Having had regard to the practice note, and having carefully considered the totality of the evidence and facts before it, the Panel was not satisfied that the Registrant’s conduct was undertaken in pursuit of sexual gratification or in pursuit of a future sexual relationship with SUA.

68. In the Panel’s view, the Registrant’s actions did not amount to conduct which it regarded as overtly sexual or undertaken in pursuit of sexual gratification or in pursuit of a future sexual relationship. Whilst the Panel acknowledged that in isolation a hug and/or tapping SUA’s bottom may be considered to be sexual in nature, the Panel was not satisfied that in the context of this case and having heard the evidence before it, that what the Registrant did, was in any way intended to be sexual.

69. In forming this view, the Panel accepted the Registrant’s explanation to it that SUA had received acupuncture treatment from him and that she had looked tired afterwards. The Panel also accepted that the Registrant had a momentary lapse of professional judgement and had very briefly (2 seconds) hugged SUA in an act of human sympathy and empathy for her circumstances because she was having to return home to cook for her family after treatment (when he was advising rest).

70. The Panel also considered that there was a distinction to be drawn between the “millisecond” tap of SUA’s bottom, which it had found had taken place, and that of a gratuitous grab or extended hold of SUA’s bottom or waist which was not the basis of the Allegation before the Panel. In the Panel’s view, the Registrant had tapped SUA briefly on the bottom, as an act of dismissal following the hug, rather than it being anything that was sexual in nature.

71. Further, the Panel was also of the view that having realised that he had breached a professional boundary by hugging SUA, the Registrant when he took hold of SUA by the waist when they were exiting the treatment room, was not seeking to engage in conduct which it considered to be sexual in nature but rather he was trying to provide reassurance and an explanation to her for his lapse of professional judgment in hugging her.

72. Consequently, the Panel found Particular 2 not proved.

Reconvened hearing (11 August 2025)

73. Both advocates provided written submissions on grounds and current impairment for the Panel’s consideration.

Submissions on statutory grounds and current impairment

HCPC

74. Ms Bernard-Stevenson submitted the following on behalf of the HCPC:

I. whether the Registrant’s conduct amounts to misconduct is a matter for the Panel. However, it should be noted that the Panel has determined that the Registrant touched Service User A without her consent on more than one occasion and this touching was not clinically indicated. Moreover, the Registrant’s conduct towards Service User A made her feel so uncomfortable that she complained to him directly and then escalated her complaint to the HCPC;

ii. the standards ordinarily required to be followed by the Registrant are the HCPC Standards of Conduct, Performance and Ethics which were implemented in 2016;

iii. the HCPC invites the Panel to consider the standards as a whole, but in particular, draws the Panel’s attention to the following standards: -

I. Standard 1 - promote and protect the interests of service users and carers;

ii. Standard 1.1 - you must treat service users and carers as individuals, respecting their privacy and dignity;

iii. Standard 2 - communicate appropriately and effectively;

iv. Standard 2.1- you must be polite and considerate;

v. Standard 9 - be honest and trustworthy; and

vi. Standard 9.1- you must sure that your conduct justifies the public’s trust and confidence in you and your profession.

iv. that individually and/or collectively the facts found proved amount to misconduct and the Registrant’s fitness to practise is currently impaired on the public component and it is open to the panel to find that the Registrant’s fitness to practise is also impaired on the personal component.

Registrant

75. In summary, Mr Bealey submitted the following on the Registrant’s behalf:

I. findings of misconduct are ultimately a matter for the Panel applying the strict test (and as outlined in his written submissions);

ii. the Panel will have to consider whether all the incidents underlying Allegation 1 amount to serious professional misconduct in the particular circumstances of this case. The Panel must bear in mind that in finding Allegation 2 not proven, the actions of the Registrant must have had a compassionate basis;

iii. the Panel may further find that the act of reassuring a patient (although conceding a lapse of judgement in the method used) does not fall so far below the standards expected that it is deplorable. Not all breaches of the “code of conduct” will be a matter of regulatory concern;

iv. it is apparent that discussion with Service User A during the course of multiple physiotherapy sessions would involve general discussion about personal lives. The Panel may think that this is a reasonable attempt to put Service User A at ease and to provide a welcoming and engaging service. Notably, this was not in a manner that caused concern for Service User A, who felt comfortable enough to return to see the Registrant and in recommending him to other family members/friends; and

v. the Registrant is not impaired on the personal or public component.

Decision on Grounds

76. Having found Particulars: 1a - d) proved, the Panel went on to consider whether the Registrant’s conduct amounted to misconduct.

Panel’s Approach

77. The Panel took into account the submissions of the parties’ and accepted the advice of the Legal Assessor. The Panel also had regard to the totality of the evidence presented to it.

78. In considering the issue of misconduct, the Panel bore in mind the explanation of that term given by the Privy Council in the case of Roylance v GMC (No.2) [2000] 1 AC 311 where it was stated that:

“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a … practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the misconduct to the profession ... Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.”

79. The Panel considered the HCPC Standards of Conduct, Performance and Ethics applicable at the time (dated 2016), and was satisfied that the Registrant’s conduct breached the following standards:

• Standard 1 - promote and protect the interests of service users and carers;

• Standard 1.1 - you must treat service users and carers as individuals, respecting their privacy and dignity;

• Standard 1.7 – you must keep your relationships with service users and carers professional; and

• Standard 9.1- you must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

80. The Panel also considered the HCPC Standards of Proficiency for Physiotherapists, applicable at the time (dated 01 September 2023) and was satisfied that the Registrant’s conduct breached the following standards:

• Standard 2.1 – maintain high standards of personal and professional conduct.

81. The Panel was aware that a breach of the standards alone does not necessarily constitute misconduct. However, the Panel was of the view that the Registrant’s conduct, when his actions were considered both individually and cumulatively fell far below the standards expected of a registered Physiotherapist.

82. In the Panel’s view, members of the public, alongside Physiotherapy colleagues, would expect the Registrant to maintain appropriate professional boundaries with a service user and the Registrant’s conduct in hugging her, tapping her bottom, grabbing her waist and saying ‘I know I have confused you but I like you’, or words to that effect, did not do that. In the Panel’s view, those matters found proved in Particulars 1a) – d) individually, and cumulatively, amounted to misconduct.

83. Whilst the Panel recognised that the Registrant had an unblemished career spanning over 2 decades and that the incident was isolated in this regard and that it lasted only moments, the Registrant immediately recognised that he had acted inappropriately when he touched Service User A without clinical justification and he compounded his actions with his comments towards her. Further, the Panel considered that the Registrant’s conduct had an adverse effect on Service User A and the wider reputation of the physiotherapy profession. In its view, members of the public would be very concerned to learn that registrants were permitted to engage in a culture of touching patients, without clinical justification and/or for non-clinical reasons.

84. In forming the view that the Registrant’s actions amounted to misconduct, the Panel also noted that the Registrant accepted that his action in respect of Particular 1a) (hugging Service User A) amounted to misconduct at the outset of the hearing.

85. Having regard to the aforementioned, the Panel was satisfied that the Registrant’s conduct fell far below the standards expected of a registered Physiotherapist.

Decision on Impairment

Panel’s Approach

86. Having found that the Registrant’s actions amount to misconduct, the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. The Panel took into account the HCPTS Practice Note: “Finding that Fitness to Practise is Impaired”.

87. The Panel also took the parties’ submissions (written and oral) into account and accepted the advice of the Legal Assessor.

88. The Legal Assessor advised that in determining current impairment the Panel should have regard to the following aspects of the public interest:

I. the ‘personal’ component: the current behaviour of the individual Registrant; and

ii. the ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

Panel’s Decision

89. The Panel first considered the Registrant’s current fitness to practise from the personal perspective and then from the wider public perspective.

90. The Panel noted that the factual findings in this case raise concerns regarding the Registrant ability to maintain appropriate professional boundaries with a service user. However, in balancing its findings, the Panel also noted that the Registrant’s actions took place at a single appointment, in what it considered to be a momentary lapse of judgement by the Registrant, in his conduct towards Service User A. This was not a case, in the Panel’s view, where the Registrant had demonstrated predatory or sexually motivated conduct towards Service User A. In its view, the Registrant was clearly attempting to demonstrate empathy with Service User A and her circumstances albeit he acted inappropriately in breaching the professional / client relationship in doing so.

91. Whilst the Panel appreciated that demonstrating remediation can in certain cases be difficult, the Panel concluded that in this case the Registrant’s conduct was capable of remediation and it also concluded that the Registrant had remediated his conduct. In forming this view, the Panel noted that the Registrant had: undertaken a professional boundaries course and provided documentary evidence of the same; given oral evidence to it attesting to what he had reflected and learnt from the incident; provided a witness statement outlining the same; furnished testimonials, attesting to his care and professionalism as a Physiotherapist.

92. Having regard to all of the aforementioned, the Panel was satisfied that the Registrant had done all he could to rectify his conduct and that he had remediated his behaviour.

93. The Panel next considered the Registrant’s insight. In doing so, the Panel noted that the Registrant had expressed remorse for his conduct and behaviour and that he had done so in his written statement and in his oral evidence to the Panel. Whilst the Panel was disappointed not to have received an up-to-date reflective piece from the Registrant, further to its findings of facts, the Panel noted that the Registrant had previously addressed the impact of his actions upon himself, and he had also focussed on the impact of his actions on the public, service users and the wider Physiotherapy profession.

94. Having regard to the aforementioned, the Panel concluded that the Registrant had shown insight into his actions and was satisfied by the steps that he had taken to ensure that his actions would not be repeated again in the future. Including, by undertaking a professional boundaries course and by implementing the option of having a chaperone during a treatment session, should this be requested by a service user. In addition, the Panel also noted that there had been no further concerns raised regarding the Registrant’s conduct since the incident arose.

95. The Panel was also satisfied that the Registrant had learned a salutary lesson from the experience and consequently, it also concluded that there was a very low risk that the Registrant’s actions would be likely to be repeated in the future.

96. The Panel therefore concluded that for all of these reasons, the Registrant’s fitness to practise is not currently impaired based on the personal component.

97. In considering the public component, the Panel had regard to the public interest, which included the need to maintain confidence in the profession and to declare and uphold proper standards of conduct and behaviour.

98. In the Panel’s view, the Registrant’s conduct demonstrated a breach of professional boundaries with a service user and members of the public would be concerned to learn that a registered physiotherapist had hugged a patient, tapped her on the bottom, grabbed her hips and/or in what he said to her, when there was no clinical justification for doing so, notwithstanding that it had found that his motivation for doing so was not sexual in nature.

99. In the Panel’s view, it is critically important for all registered HCPC professionals to have integrity and for the public to be able to trust the words and actions of a Physiotherapist and a significant aspect of the public component is upholding proper standards of conduct and behaviour. In the Panel’s view, the Registrant’s conduct fell far below the standard expected of a Physiotherapist. The Panel therefore concluded that public confidence in the profession and the HCPC as its regulator would be undermined if a finding of impaired fitness to practise was not made, given the seriousness of the Registrant’s conduct and behaviour.

100. Further, the Panel also concluded that such a finding was required to send a very clear message to the wider physiotherapy profession that such conduct fell below the standards, was not appropriate and should not be repeated.

101. Consequently, the Panel determined that the Registrant’s fitness to practise is currently impaired on the public interest component.

Decision on Sanction

Panel’s approach

102. In reaching its decision on sanction, the Panel took into account the oral submissions made by the parties, in addition to Mr Bealey’s written submissions submitted on behalf of the Registrant.

103. The Panel also referred to the ‘Sanctions Policy’ issued by the HCPC.

104. The Panel had in mind that the purpose of sanction was not to punish the Registrant, but to protect the public, maintain public confidence in the profession and maintain proper standards of conduct and performance. The Panel was also aware of the need to ensure that any sanction is proportionate.

105. The Panel accepted the advice of the Legal Assessor.

The Panel considered the aggravating factors in this case to be that, Service User A:

I. suffered emotional harm as a result of the Registrant’s actions; and

ii. she was a lone female, in circumstances where she was unaware of the presence of anyone else in the remote clinic location.

106. The Panel considered the mitigating factors in this case to be that the Registrant:

I. is of previous good regulatory character, with no referrals prior or subsequent to Service User A’s concerns being raised;

ii. recognised his error and apologised to Service User A shortly after the incident (by email) and again in oral evidence before the Panel;

iii. had taken steps to remediate his conduct such as undertaking training and implementing a formal chaperone process in his practice; and

iv. engaged in all stages of the regulatory process.

107. The Panel first considered the option of taking no action. The Panel noted that the Sanctions policy (paragraph 97) states “…It is therefore unlikely that the panel would take no action following a finding of impairment”.

108. The Panel considered the option of taking no action to be an exceptional outcome and the Panel was of the view that the circumstances of this case were not exceptional. In view of its findings on impairment, the Panel decided that the option of taking no action was not sufficient to uphold the public interest in this case. In the Panel’s view, taking no action would not uphold public confidence in the profession, nor would it uphold or maintain appropriate standards in the profession. For these reasons, the Panel considered that taking no action was not appropriate in the circumstances of this case.

109. The Panel next considered the option of a Caution Order. The Panel considered the guidance in the Sanctions Policy (paragraph 101) that:

“A Caution Order is an appropriate sanction for cases, where the lapse is isolated, limited, or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action”.

110. Having regard to the Sanctions Policy guidance, the Panel noted that it had previously determined that: there was a low risk of recurrence of the Registrant’s conduct; the Registrant had shown insight; the Registrant had taken remedial steps to address his conduct; and the Registrant’s fitness to practise is currently impaired on the public component only.

111. In forming the view that a Caution Order was the appropriate order to impose, the Panel determined that such an order would appropriately balance and reflect the seriousness of its findings and would also send a clear message to the public and the wider physiotherapy profession that such conduct is not permitted and will not be tolerated.

112. Further, in balancing the Registrant’s interests with the wider public interest, the Panel was satisfied that a Caution Order of a two-year duration would uphold the public’s trust and confidence in the profession and would mark the Registrant’s misconduct. The Panel was also of the view that public confidence in the profession, and the HCPC as its Regulator, would be maintained by the imposition of such an order. The Panel was also satisfied that a well-informed member of the public would not be concerned if the Registrant was permitted to continue in practice subject to a caution order in view of its findings and the circumstances of this case.

113. The Panel determined that a duration of two years balanced the need to reflect the seriousness of the Registrant’s misconduct, (which the Panel had determined included a breach of professional boundaries with a service user, causing emotional harm to her) with the mitigating factors in this case (as outlined above).

114. The Panel gave careful consideration to the potential for any other more restrictive sanction. However, there was nothing to suggest that such sanctions would be appropriate in this case. The Panel also considered that there were no workable conditions of practice which could be formulated in the circumstances of this case and a suspension order would be disproportionate.

115. In making its decision on sanction, the Panel had regard to the impact of an order on the Registrant. The Panel was of the view that the public interest considerations in this case outweighed any detriment that might be caused, by the imposition of a Caution Order, to the Registrant.

 

ORDER: The Registrar is directed to annotate the Register entry of David Gitonga with a caution which is to remain on the Register for a period of 2 years from the date this Order comes into effect.

No notes available

History of Hearings for Mr David Kimathi Gitonga

Date	Panel	Hearing type	Outcomes / Status
11/08/2025	Conduct and Competence Committee	Final Hearing	Caution
12/05/2025	Conduct and Competence Committee	Final Hearing	Adjourned part heard