Mr Darren M Bernard

Background

1. The Registrant is registered with the HCPC as a Physiotherapist. At the material time he was employed as a Senior Physiotherapist at Sloane Hospital, which is part of the Health Circle Group.

2. Colleague A was employed as a Patient Administrator at the Hospital. In or about June 2023, Colleague A’s duties included working at the physiotherapy desk. She was 19 years old at the time.

3. In the period between, and including, 6 June 2023 to 29 June 2023, the Registrant made a number of overtly sexual comments to Colleague A and on three occasions deliberately made physical contact with her without her consent. Each of these incidents is detailed in Particulars 1 – 4 of the Allegation.

4. On 3 July 2023, Colleague A reported the Registrant’s behaviour to the patient administrator lead.

5. On 7 July 2023 Colleague A was interviewed by DP, Operations Manager at Sloane Hospital, and provided a detailed account about the Registrant’s conduct towards her.

6. On 10 July 2023, the Registrant was interviewed by DP about Colleague A’s complaint. He admitted the substance of Colleague A’s account but explained and characterised his behaviour towards her as being office banter.

7. Following the investigation by DP, a disciplinary hearing was held on 19 July 2023, which resulted in the Registrant’s dismissal.

8. On 24 July 2023, the Registrant made a self-referral to the HCPC, which resulted in these proceedings.

The Hearing

9. The Panel was provided by the HCPC with a hearing bundle including the witness statements of Colleague A and DP, the notes of DP’s interviews with Colleague A and the Registrant, the record of the disciplinary meeting and the Registrant’s self-referral to the HCPC.

10. The Panel also received a witness statement from the Registrant and some photographs of him in the company of colleagues from the physiotherapy department at Sloane Hospital.

11. At the outset of the hearing the Registrant admitted particulars 1, 2, 3 and 4 of the Allegation in their entirety but denied that his conduct in relation to those particulars, or any of them, was sexually motivated as alleged in particular 5.

12. The Panel announced that particulars 1, 2, 3 and 4 were proved by admission. On that basis, the HCPC dispensed with the attendance of Colleague A and DP as witnesses.

13. The Registrant gave sworn evidence in which he adopted and elaborated on his witness statement. By way of background evidence, he stated that he had practised as a Physiotherapist since 1999. He had worked part-time at Sloane Hospital for about 18 years and full-time since 2017. He said that he worked in a small team and had a very good working relationship with his co-workers, some of whom he had known for many years. He said that they would also meet socially outside work, and he provided photographs of some such occasions. He said that he had never before been subject to complaints of being in breach of professional boundaries with either staff or patients nor had he been previously subject to HCPC proceedings.

14. The Registrant stated that he had first encountered Colleague A in the smoking area outside the Hospital but only became acquainted with her when she started working in the physiotherapy department a few weeks before the incidents complained of. He said that he treated Colleague A the same way that he treated other co-workers and was accustomed to engaging in “a bit of banter”.

15. Whilst admitting that all of his remarks and conduct referred to in the Particulars of Allegation were overtly sexual, he sought to explain them by stating that they were all intended as jokes, albeit, as he subsequently realised, misconceived, in bad taste and upsetting for Colleague A. He was adamant that he had no romantic feelings about Colleague A and that his behaviour was not sexually motivated.

The Particulars of Allegation

Particular 1a, b and c

16. With regard to Particular 1 of the Allegation, Colleague A stated that she was alone in the treatment room with the Registrant, who had just been seeing a child patient. Referring to the patient, the Registrant said “she’s so cute, I want one”. He then took Colleague A’s hand and placed it next to his. He then said “yep, we could make cute mixed race babies”. He went on to say that he could get a flat for Colleague A “instantly” and asked her to “just tell (him) when”.

17. The Registrant admitted Colleague A’s account, although he said that he thought that the incident had taken place in the reception area. He agreed that his comments were sexual but said that they were intended as a joke. With regard to the comment about getting Colleague A a flat, he explained that he was intending to make a jocular reference to the fact that Colleague A and her boyfriend were living in an undesirable area called “Shrublands”.

Particular 2a, b and c

18. Colleague A stated that on 27 June 2023 she was sitting behind the reception desk when the Registrant leant over and whispered in her ear “your waist is just so sweet and sensual” and “you’ve got a nice ass for a receptionist”.

19. The Registrant admitted this incident and that his behaviour and comments were sexual but said that he intended it as a joke and was taking up a comment made by the other female receptionist that Colleague A had a narrow waist.

Particular 3a, b and c

20. Colleague A stated that on 28 June 2023 she was chatting to the Registrant about the news of the submarine which had gone in search of the Titanic. The Registrant commented “If we were in the submarine and I raped you, no one could hear you scream”. Later that day, she was on the telephone to a patient when the Registrant stood behind her and place his hands around her neck. He had also said that he would “piss on (her)”.

21. The Registrant admitted making these comments to Colleague A and also that he had placed his hands around her neck. He admitted that his comments and act of putting his hands around her neck were sexual. He said by way of explanation that he had previously discussed with Colleague A a television programme which they had both watched about serial killers and that his reference to raping her on a submarine where no one could hear her scream, pissing on her and putting her hands around her neck were intended as jocular references to the television series.

Particular 4a, b and c

22. Colleague A stated that on 29 June 2023, she had not felt well and told the Registrant that she felt like dying. The Registrant had responded by saying “fine, die then, but while you’re warm, you’re still mine”. He then touched her forehead with his hand and said “let me feel that white skin”.

23. The Registrant admitted this incident and that his comments and behaviour were sexual. He explained, however, that his comments were intended as another jocular reference to the TV series about serial killers. His intention in touching Colleague A’s forehead was to check whether she was suffering from a fever.

24. Colleague A stated that the Registrant’s comments and behaviour, especially his comments about raping her, made her feel so uncomfortable that she did not go into work the day after the last incident on 29 June 2023. She was concerned that the Registrant might act on some of the thoughts he had expressed and was considering handing in her notice so that she would not have to see him again. It was these concerns that had prompted her to mention her concerns to a colleague and led to the subsequent investigation into the Registrant’s behaviour.

The Panel’s decision in relation to Particular 5

25. The Panel carefully considered all the evidence, in particular the Registrant’s explanations as to each of the Particulars of
Allegation. The Panel took into account the submissions on behalf of the HCPC and the Registrant.

26. The Panel was mindful that the burden of proof is on the HCPC and the standard of proof is the balance of probabilities.

27. The Panel had regard to the HCPTS Practice Note on “Making decisions on a registrant’s state of mind” and accepted the advice of the Legal Assessor.

28. The Panel noted that, in determining sexual motivation, it must decide whether the conduct was done either in pursuit of sexual gratification or in pursuit of a future sexual relationship. In determining sexual motivation, the Panel had regard to the fact that each and every Particular of the Allegation was, by the Registrant’s own admission, overtly sexual.

29. The Panel went on to consider the Registrant’s explanation for his conduct and whether his assertion that his comments and behaviour, albeit overtly sexual, were not sexually motivated but had the character of office banter and were intended to be jocular.

30. The Panel noted that Colleague A was 19 years of age. She was only briefly acquainted with the Registrant before his unwanted behaviour towards her commenced. Most, if not all, of the comments and behaviour took place when they were alone together. There was no evidence to suggest that she did anything to prompt or encourage the Registrant’s conduct towards her. In the course of less than four
weeks, there were twelve instances of the Registrant making overtly sexual comments to her, which included:

• saying that he and Colleague A could “make cute mixed race babies” – Particular 1b;
• whispering in Colleague A’s ear her waist was “just so sweet and sensual” – Particular 2b;
• telling her that she had “a nice ass for a receptionist” - Particular 2c;
• commenting that if he raped her in a submarine, no one would hear her scream - Particular 3a;
• saying that he would “piss” on her - Particular 3c;
• saying to her when she said that she was feeling unwell “fine, die then, but while you’re still warm, your mine” – Particular 4a;
• saying to her “Let me feel that white skin” - Particular 4c; and
• suggesting that he could get her a flat – Particular 1c

31. In addition, there were three occasions when the Registrant made physical contact with Colleague A without her consent:

• taking her hand and placing it next to his own – Particular 1a;
• putting his hand around her neck when she was on the telephone – Particular 3b; and
• touching her forehead – Particular 4b

32. The Panel considered, but rejected, as entirely implausible the Registrant’s explanation that his comments and conduct towards Colleague A amounted to nothing more than innocent office banter and were all intended to be jocular.

33. In the Panel’s judgement, the Particulars of Allegation, both individually and collectively, were sexually motivated in that they were in pursuit of sexual gratification on the part of the Registrant. Accordingly, the Panel found Particular 5 proved.

Statutory grounds

34. Mr Nwokedi acknowledged on behalf of the Registrant that Particulars 1 to 4 of the Allegation, which the Registrant admitted, amounted to misconduct. He further conceded that, if the Panel found that the Registrant’s conduct had been sexually motivated, as alleged in Particular 5, that also would constitute misconduct.

35. The Panel had regard to the fact that the decision as to whether the proven facts amounted to misconduct was a matter for its professional judgement.

36. The Panel took into account that misconduct was defined in Roylance v General Medical Council (no 2) [2001] 1 AC 311 as:

“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 (medical) practitioner in the particular circumstances”.

37. In the case of Nandi v GMC [2004] EWHC 2317 (Admin), the court stated that:
“The adjective ‘serious’ must be given its proper weight, and in other contexts there has been reference to conduct which would be regarded as deplorable by fellow practitioners”.

38. The Panel considered that the Registrant’s conduct as detailed in the Particulars of Allegation would be considered deplorable by fellow practitioners. The Panel was satisfied that his conduct breached professional boundaries and that, additionally, he was in breach of Standards 6.2 and 9.1 of the HCPC Standards of Conduct, Performance and Ethics (2016), which provided as follows:

• 6.2: “You must not do anything … which could put the health or safety of ….. a colleague at unacceptable risk”. The Panel noted the anxiety and distress caused to Colleague A by the Registrant’s conduct towards her and the fact that she had considered resigning from her employment in order to avoid seeing him again.

• 9.1: “You must make sure that your conduct justifies the public’s trust and confidence in you and your profession”.

39. The Panel was also satisfied that the Registrant has also breached the following Standards of Proficiency – Physiotherapists:

• 3.1: understand the need to maintain high standards of personal and professional conduct
• 9.2: understand the need to build and sustain professional relationships as both an independent practitioner and collaboratively as a member of a team

40. The Panel was in no doubt that the Registrant’s conduct fell seriously short of the standards to be expected of him in the circumstances and thereby constituted misconduct.

Decision on Impairment

41. The Registrant provided the Panel with a remediation bundle containing a character reference from a friend, details of Continuing Professional Development (CPD) which he had undertaken and academic literature which he read on issues relating to sexually motivated behaviour by clinicians.

42. The Registrant also gave further sworn evidence to the Panel in order to demonstrate that his fitness to practise is not currently impaired.

43. The Registrant stated that the character reference had been provided by a long-time friend who was also godfather to his daughter.

44. The Registrant stated that, since his dismissal from Sloane Hospital, he had continued to practise almost continuously as a Physiotherapist without restriction. He had obtained employment through an agency and had worked at a hospital in Hull for one year, at two different hospitals in Reading for four weeks and two months respectively and latterly in Peterborough, where he is currently employed. He stated that there had been no concerns raised about his behaviour at any of these places of work.

45. The Registrant provided further details of the CPD he had undertaken, which focused on such matters as stress, bullying and harassment in the working environment.

46. The Registrant explained what he had learned from his reading of the academic articles and the impact of sexual harassment on victims, the profession and society at large.

47. He stated that the combined effect of redacted …, CPD and his reading was to make him reflect on his own behaviour and that of others and develop strategies to avoid comments and behaviour which could have a negative impact on others. He said that he had changed the way that he communicated with others and resisted making any personal remarks to work colleagues. He illustrated this by a specific example at work where he had avoided paying a compliment to a female colleague about her appearance after she had lost weight. He said that he was now aware of the professional boundaries and standards that he had breached in relation to Colleague A. He said that these proceedings had been a learning experience. He said that he knew that he would never repeat such behaviour again and would tell others of his experience as a cautionary lesson.

48. On behalf of the HCPC Mr Irving submitted that the Registrant’s fitness to practise remains impaired with regard to the personal component because there was insufficient evidence of insight to obviate the risk of repetition.

49. With regard to the public component of impairment, Mr Irving submitted that the Registrant’s misconduct was so serious that public confidence in the profession would be undermined if there were no finding of impairment.

50. Mr Nwokedi submitted that the Registrant had expressed appropriate remorse, acquired insight and fully remediated his misconduct, so that the risk of repetition was low. He submitted that the Registrant had continued to practise for nearly two years as a Physiotherapist and there had been no further incidents or concerns about the Registrant’s behaviour reported. He further submitted that a finding of impairment was not justified in respect of the personal or public components.

The Panel’s decision

51. The Panel gave careful consideration to the Registrant’s documentary and oral evidence on remediation.

52. The Panel took account of the submissions on behalf of the HCPC and the Registrant.

53. The Panel had regard to the HCPTS Practice Note on “Fitness to Practise Impairment” and accepted the advice of the Legal Assessor.

54. In determining whether the Registrant’s fitness to practise is currently impaired, the Panel took into account both the personal and public components. The personal component relates to the Registrant’s own practice as a Physiotherapist, including any evidence of remorse, insight and efforts towards remediation. The public component includes the need to protect the public, including work colleagues, to declare and uphold proper standards of behaviour and maintain public confidence in the profession and the Regulator.

55. The Panel noted that the Registrant had, within days of Colleague A making her complaint, largely admitted her account of his behaviour and made admissions to Particulars 1- 4 at the outset of this hearing. He had also expressed remorse for causing distress to Colleague A and the wish to apologise to her.

56. The Panel, however, remained concerned that the Registrant, as a very experienced Physiotherapist of mature age, could ever have considered it acceptable to behave in such a manner towards a young and junior member of staff in Colleague A’s position. The Panel was of the view, that whilst possible to remediate, such attitudinal behaviour as has been found proven in this case, is difficult to remediate.

57. The Panel noted the CPD undertaken by the Registrant, his reading of relevant literature and his evidence that he had engaged in counselling.

58. The Panel accepted that the Registrant had reflected on his misconduct and made a conscious effort to ensure that it would not be repeated, not least to avoid facing proceedings of this nature in the future. The Panel, however, was not convinced that the Registrant had full insight as to what had motivated his conduct towards Colleague A. The evidence of insight and remediation was largely generic rather than clearly demonstrating how the Registrant had applied his learning in the way he communicates with others in the working environment.

59. The Panel noted the Registrant’s evidence that he had practised as a Physiotherapist without restriction since July 2023 and that there had been no concerns raised about his conduct at work since his dismissal from Sloane Hospital. The Panel, however, was surprised and disappointed that the Registrant had not provided any testimonials or references from any of the four places where he had worked since his dismissal from Sloane Hospital, almost 18 months ago. In the absence of such evidence, the Panel was not satisfied that the Registrant had remediated his practice to the extent that the risk of repetition was low.

60. In the circumstances, the Panel concluded that the Registrant’s fitness to practise remains impaired having regard to the personal component.

61. With regard to the public component of impairment, the Panel was mindful of the need to protect the public, including work colleagues, to maintain public confidence in the profession and to declare and uphold proper standards of conduct and behaviour. The Panel considered that the proven facts were so serious that public confidence in the profession and the HCPC as its Regulator would be undermined if there were no finding of current impairment.

Decision on sanction

62. On behalf of the HCPC, Mr Irving referred to the Sanctions Policy and drew to the Panel’s attention the relevant passages on sexual misconduct.

63. On behalf of the Registrant, Mr Nwokedi stated that the Registrant fully accepted the Panel’s decision as to the seriousness of his misconduct and the finding that his fitness to practise remains impaired.

64. Mr Nwokedi submitted that a Striking Off Order would be wholly disproportionate. He further submitted that, in light of the remedial work already undertaken by the Registrant, a Suspension Order would not be appropriate because the Registrant does not present a risk to the public and it would be in the public interest for the Registrant, as a competent Physiotherapist, to continue to provide the public with his services.

65. Mr Nwokedi urged the Panel to consider the imposition a Conditions of Practice Order. He submitted that appropriate conditions could include the requirement for the Registrant to undertake a course on professional boundaries, together with supervision and the provision of a report relating to his supervision.

66. Mr Nwokedi also invited the Panel to consider the imposition of a Caution Order as being sufficient to send a message to the profession and the public that the Registrant’s misconduct was considered by the HCPC to be unacceptable.

67. Mr Nwokedi reminded the Panel that the Registrant is the sole breadwinner in his family. He stated that the Registrant also has plans to help the community in Jamaica. Mr Nwokedi submitted that the Panel should take these matters into account in arriving at a decision on sanction which is balanced and proportionate.

68. The Panel took into account the submissions on behalf of the HCPC and the Registrant.

69. The Panel was guided by the HCPC’s Sanctions Policy and accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of a sanction is not to punish the Registrant but to protect the public and the wider public interest in upholding proper standards and maintaining public confidence in the profession and the regulatory process. The Panel applied the principle of proportionality, balancing the interests of the Registrant with those of the public, and considered the available sanctions in ascending order.

70. By way of mitigation:

• the Registrant had admitted the complaints by Colleague A about his conduct as soon as he was questioned about them. He expressed remorse for his behaviour and a wish to apologise to Colleague A. He also expressed some understanding and empathy for the upset that his behaviour would have caused her;
• he self-referred to the HCPC at the first opportunity and has fully engaged in these proceedings;
• he made admissions to the principal factual allegations against him at the outset of this hearing and thereby spared Colleague A from being required to give evidence; and
• he has undertaken counselling, relevant CPD and researched academic literature on sexual misconduct and its effects.

71. By way of aggravating factors:

• the Registrant’s sexually motivated behaviour towards Colleague A comprised 12 incidents and persisted over a period of approximately four weeks;
• he abused his position as a senior and long-standing employee to take advantage of a young and recently appointed member of staff; and
• his behaviour towards Colleague A could have resulted in significant emotional harm, albeit there was no evidence that she did in fact suffer such harm.

72. The case is too serious for the Panel to take no further action.

73. A Caution Order would not reflect the seriousness of the Registrant’s misconduct and the Panel’s concerns about the potential risk of repetition.

74. A Conditions of Practice Order would not be appropriate because the Panel could not formulate any conditions which would address the underlying concerns regarding the Registrant’s sexual misconduct and his exploitative attitude towards a female colleague.

75. The Panel considered that a Suspension Order for a period of six months was the appropriate sanction on the basis that the Registrant had demonstrated a commitment to resolving the outstanding concerns but had not yet achieved full insight and needed to take further steps to satisfy a panel that he had fully assimilated his reflections, insight and learning into his communications with, and conduct towards, colleagues and others in his working relationships.

76. The Panel considered whether to impose a Striking Off Order but decided that it would be disproportionate given the significant mitigation referred to above.

77. The Suspension Order will be reviewed before its expiry. A future reviewing panel is likely to be assisted by the following:

• independent evidence of any counselling that the Registrant has undertaken;
• evidence that that the Registrant has undertaken a course in professional boundaries;
• references and testimonials from professional colleagues and others as to the Registrant’s conduct towards colleagues and others in the workplace during the period since July 2023 and subsequent to this Suspension Order and his observance of professional boundaries; and
• a structured reflective piece to show how the Registrant has assimilated and applied in practice what he has learnt about the need to maintain professional boundaries in the workplace and the strategies he has adopted to avoid the repetition of inappropriate communications with work colleagues

The Registrar is directed to suspend the name of Mr Darren M Bernard from the Register for a period of 6 months from the date that this order comes into effect.

Right of Appeal

You may appeal to the High Court of England and Wales against the Panel’s decision and the order it has made against you.

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

Interim Order
1. Mr Irving on behalf of the HCPC made an application for an Interim Suspension Order for a period of 18 months to cover the appeal period or until any appeal lodged has been determined. On behalf of the Registrant, Mr Nwokedi did not oppose the imposition of an Interim Suspension Order.
2. The Panel accepted the advice of the Legal Assessor.
3. Given the Panel’s findings on facts, grounds and impairment and its decision to impose a Suspension Order, it would be inconsistent with that need for public protection and the wider public interest not to impose some form of interim order. The Panel, for the same reasons it identified above, came to the conclusion that it is impracticable and inappropriate to formulate interim conditions of practice in this instance.
4. The Panel therefore makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary for public protection and otherwise in the public interest, having regard to the Panel’s findings of fact and determination as to impairment and sanction.
5. 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. This Interim Suspension is for a period of 18 months.

History of Hearings for Mr Darren M Bernard