Mrs Emma King

Preliminary Matters

Application for special measures
1. Mr Bellis, on behalf of the HCPC, applied for special measures under Rule 10A(1)(e) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules) for the witness, Service User A. He submitted that Service User A was eligible for special measures and requested that he be permitted to have a supporter present for the giving of his evidence. He submitted that this would allow the witness to give his best evidence.

2. Mr Shadenbury, on behalf of the Registrant, did not object to the application.

3. The Panel heard and accepted the advice of the Legal Assessor. She advised that Rule 10A(1)(e) and Rule 10A(2) state as follows:
10A(1) – In proceedings before the Committee, the following may, if the quality of their evidence is likely to be adversely affected as a result, be treated as a vulnerable witness—
(e) – any witness, where the allegation against the practitioner is of a sexual nature and the witness was the alleged victim;
10(2) – Subject to any representations from the parties and the advice of the Legal Assessor, the Committee may adopt such measures as it considers desirable to enable it to receive evidence from a vulnerable witness.

4. Given the nature of the allegation faced by the Registrant, the Panel was satisfied that Service User A was an eligible witness. It bore in mind that special measures were a neutral method by which to achieve the best evidence. In this case, it was satisfied that it was proportionate to allow Service User A to have a supporter present whilst he gave his evidence, to enable it to receive the best evidence from him. However, the supporter did not attend, due to unforeseen circumstances. After due consideration by the Panel and all parties, Service User A confirmed that he was content to proceed, and the Panel was satisfied that the quality of his evidence would not be diminished without the supporter present.

Application for parts of the hearing to be in private

5. Mr Bellis, on behalf of the HCPC, applied for those parts of the hearing which related to the Registrant’s private life to be heard in private. He invited the Panel to exercise its discretionary powers under Rule 10(1)(a) of the Rules on the basis that it was required to protect the Registrant’s private life. He submitted that the sensitive matters relating to the Registrant’s family life and her health were discrete and could be separated from the rest of the hearing so that just those parts of the hearing should be heard in private. Mr Shadenbury, on behalf of the Registrant, did not oppose the application.

6. The Panel heard and accepted the advice of the Legal Assessor, who advised in accordance with Rule 10(1)(a) of the Rules. The Panel decided to hear those parts of the hearing which related to the Registrant’s family life and her health in private. It was satisfied that it was justified to do so in order to protect her private life.

Background

7. The Registrant was employed by Newcastle City Council (the Council) within the Adult Social Care and Integrated Services Directorate as an Occupational Therapist between 25 June 2003 and 17 July 2023.

8. The Registrant first saw Service User A in a professional capacity in around April 2018. The Registrant assessed Service User A in relation to adaptations for his bathroom and kitchen to promote independent living. As part of the assessment, conducted on 12 April 2018, the Registrant recorded that Service User A had a number of physical and mental health conditions, including severe depression, and PTSD.

9. It is alleged that shortly after the work in relation to Service User A’s bathroom was completed, around January 2019, the Registrant bought books for Service User A and, on 16 February 2019, attended his home and gave them to him. On that same occasion it is alleged that they engaged in sexual intercourse, following which they had a relationship, which, apart from a break in 2020 during the COVID pandemic and subsequent lockdown restrictions, continued until the Registrant ended the relationship in early 2023.

10. It is alleged that the Registrant’s actions in respect of the personal relationship with Service User A breached professional boundaries and were sexually motivated. It is further alleged that Service User A was vulnerable and that the Registrant knew that he was.

Decision on Facts
11. The Panel heard from the following witnesses on behalf of the HCPC:
• Service User A, the subject of the allegations;
• Witness CA, who, at the relevant time was the Service Manager for Adults and Older People’s Services within the Council. She conducted the Council’s disciplinary investigation into the Registrant; and
• Witness JC, who, at the relevant time was the Occupational Therapy Team Manager within the Adult Social Care and Integrated Services Directorate at the Council and was the Registrant’s line manager.

12. The Panel was also provided with the following documentary exhibits on behalf of the HCPC, including:
• Copies of the safeguarding adults initial enquiry forms, dated 23 February 2023 and 28 February 2023;
• The Registrant’s self-referral to the HCPC, dated 8 March 2023;
• Copy of the investigation report prepared by Witness CA;
• Copy of the fact-finding notes conducted by Witness CA with the Registrant, dated 7 March 2023;
• Correspondence between the Council and the Registrant;
• Safeguarding minutes of meeting held with Service User A, dated 20 March 2023;
• Notes of telephone conversation with Service User A, conducted by Witness CA on 21 April 2023;
• Notes of meeting held with Witness JC, conducted by Witness CA, dated 13 March 2023;
• Notes of investigatory meeting with the Registrant, conducted by Witness CA, dated 6 June 2023;
• Copy of the assessment document, recording the assessment carried out by the Registrant in respect of Service User A on 12 April 2018 and authorised on 3 May 2018;
• Relevant Council policies.

13. The Registrant gave evidence, provided the Panel with her reflective statement and provided a reference, dated 15 November 2024, from two Occupational Therapists who worked within the Registrant’s Team at the Council.

14. The Panel heard and accepted the advice of the Legal Assessor. She advised that the burden of proving each individual fact rests on the HCPC and that the HCPC will only be able to prove a fact if it satisfies the standard of proof, namely the civil standard, whereby it is more likely than not that the incident occurred.

15. In relation to professional boundaries, the Legal Assessor advised the Panel to have regard to the HCPTS Practice Note on Professional Boundaries. In relation to knowledge of vulnerability, the Legal Assessor advised the Panel in accordance with the case of PSA v (1) GMC and (2) Onyekpe [2023] 2391(Admin), to the effect that a service user is vulnerable in the sense that their characteristics or circumstances are such that they are significantly more vulnerable than would be inherent in the usual professional/service user relationship. In relation to sexual motivation, the Legal Assessor advised the Panel in accordance with Basson v GMC [2014] EWHC 873 (Admin) and Sait v GMC [2018] EWHC 3160 (Admin), to the effect that: “a sexual motive means that the conduct was done either in pursuit of sexual gratification, or in pursuit of a future sexual relationship.”

The Panel’s approach

16. The Panel acknowledged that it was common ground between the parties that the professional relationship between the Registrant and Service User A had ended in January 2019 and the personal relationship between them started when the Registrant visited Service User A on 16 February 2019 and took some books with her to give to him. The first issue for the Panel to determine was whether there were ongoing professional boundaries between the Registrant and Service User A at the time the personal relationship started. In determining this issue, the Panel had regard to the HCPTS Practice Note on Professional Boundaries and in particular the section identifying the factors to be aware of when assessing evidence about professional boundaries. At paragraph 16 it states:

The mere fact that a personal or sexual relationship between a registrant and a service user or carer began after the registrant had stopped treating the service user in question does not necessarily mean that there is no breach of professional boundaries. Panels should consider:
a. The nature of the previous professional relationship
b. The length of time since the registrant stopped, treating the service user
c. Whether any […] aggravating features… are present along with any other factors which appear to be relevant on the particular facts of the case.

17. The Panel considered that the nature of the previous professional relationship had involved the Registrant assessing Service User A’s needs and arranging for adaptations to be made in his home to address those needs. It had started in April 2018, when Service User A, who had been on a wating list since May 2017, came to the top of the waiting list and the Registrant allocated the case to herself, which was normal practice. The interactions involved a visit to ‘Disability North’, an assessment centre, as well as a number of visits to his home between April 2018 and January 2019, when the works were completed, and the case was signed off and closed.

18. The assessment document dated 12 April 2018, before the Panel recorded that the Registrant had elicited significant personal information from Service User A about his health, which she had used to support her recommendation for extensive adaptations to his home, and which had been approved and carried out. The Panel considered that the nature of the professional relationship itself had necessarily involved an imbalance of power, as Service User A was dependent upon the professional role of the Registrant to assess, recommend and arrange to be carried out, the required adaptations to his home. Furthermore, although the case had closed, the Panel noted that there was no more than a month before the personal relationship between the Registrant and Service User A had started.

19. Service User A told the Panel that he was attracted to the Registrant during the professional relationship and that he had flirted with her. The Registrant, in her evidence, acknowledged that she was aware, during the professional relationship, that Service User A was attracted to her. In particular, she had described that during the trip to Disability North, she recognised that he had had a haircut, had dressed smartly and was wearing aftershave.

20. The Panel was also of the view that although Service User A was no longer allocated to the Registrant once the case was closed, she, nevertheless, still had a professional role in respect of former service users whereby further intervention may be required. In support of this view, the Panel noted that in April 2020, during the lockdown phase of the Pandemic, the Registrant had been tasked to contact service users by telephone regarding their wellbeing and in that professional capacity she had contacted Service User A by telephone. In all the circumstances, the Panel was satisfied that, at the time the personal relationship began shortly after the professional relationship had ended, there were ongoing professional boundaries between the Registrant and Service User A.

Particular 1
On one or more occasions between around 16 February 2019 and January
2023 you breached professional boundaries with service user A, in that
You:
(a) Bought one or more gifts for Service User A;

21. The Panel finds Particular 1(a) proved.

22. The Panel had regard to the evidence of Service User A and the acceptance by the Registrant that she had bought books for Service User A. Service User A stated that that on Saturday 16 February 2019, the Registrant texted him, asking him how he was doing. She mentioned that she had bought some books about PTSD from the charity shop and asked if he minded if she dropped them off. He agreed and she visited him at his home and stayed for coffee and then dinner.

23. The Panel had regard to the context of the Registrant’s personal visit to Service User A on 16 February 2019. The Panel had regard to the circumstances existing in the Registrant’s life at that time.

24. The Panel bore in mind that it was the Registrant who had instigated contact with Service User A. She had bought books for him about PTSD, knowing that he suffered from the condition through her previous professional interventions with him. She took the books to him on a Saturday and at the time she gave them to him, she was aware that he was attracted to her. The Panel was satisfied that the circumstances and context existing at the time were such that the Registrant had breached professional boundaries by buying the books for Service User A.

(b) Engaged in sexual intercourse with Service User A

25. The Panel finds Particular 1(b) proved.

26. The Panel had regard to the evidence of Service User A and the acceptance by the Registrant that she had had sexual intercourse with Service User A on 16 February 2029, the same day that she took him the books about PTSD.

27. Service User A stated that on 16 February 2019, whilst he and the Registrant were sat in the garden having coffee and tea, every so often she would reach out her hand and place it on his. She also had dinner at his house and then “one thing led to another” and they engaged in sexual intercourse that day. He said that he had not been able to tell that the Registrant was attracted to him until that day when she came round with the books and told him how she felt.

28. The Panel bore in mind that it was the Registrant who had instigated contact with Service User A, asking to visit him, knowing that he was attracted to her. She had told the Panel that she wanted to be somewhere where she was wanted and welcome. The Panel was satisfied that the circumstances and context existing at the time were such that the Registrant had breached professional boundaries by engaging in sexual intercourse with Service User A.

(c) Engaged in a romantic relationship with Service User A

29. The Panel finds Particular 1(c) proved.

30. The Panel had regard to the evidence of Service User A and the acceptance of the Registrant that she and Service User A remained in a romantic relationship until early 2023, with a brief break during lockdown as a result of the government restrictions imposed at that time.

31. Service User A stated that after having sexual intercourse on 16 February 2019, he and the Registrant were in a relationship, swapping telephone numbers and arranging future dates to meet. He stated that they would go out on dates as a normal couple would, and there were occasions when they would go on trips away together. They also celebrated their anniversary and Valentine’s day together. Service User A described that they were two people in love with each other.

32. The Panel noted that the Registrant had ended the personal relationship with Service User A when lockdown restrictions were imposed in March 2020. On 7 April 2020, Service User A’s case notes recorded that the Registrant had made a telephone call to him to ‘check on Covid 19 status’. This was a telephone call made in her professional capacity to check on the welfare of vulnerable service users who were ‘shielding’ and was recorded in Service User A’s case notes. The Panel noted that it was shortly after this telephone call that the Registrant resumed her personal relationship with Service User A for another three years or so.

33. The Panel was satisfied from the evidence of Service User A, and the acceptance by the Registrant, that the Registrant had been engaged in a romantic relationship with Service User A. Furthermore, given the ongoing professional responsibilities of the Registrant to service users and former service users, the Panel was satisfied that it breached the ongoing professional boundaries in place.

Particular 2
You knew Service User A to be vulnerable

34. The Panel finds Particular 2 proved.

35. The Panel understood that in order to find this Particular proved, the HCPC must first satisfy it that Service User A was particularly vulnerable, over and above the vulnerabilities inherent in a service user/Occupational Therapist relationship and secondly that the Registrant knew that he was particularly vulnerable.

36. The Panel noted that Service User A did not accept that he was particularly vulnerable and was of the view that he had been characterised as such only due to the Pandemic. However, the Panel did not consider that he was best placed to assess that objectively.

37. The Panel had regard to the specialist assessment document, dated 12 April 2018, which the Registrant completed as a result of her assessment of Service User A. It noted that in the health section, the Registrant had elicited the following information:
Adult A has a neurological injury followings [sic] 2 separate incidents: one a stabbing injury in his lower back, and the second a gunshot injury in the left leg in 1999 when he was in the South African police force. The gunshot wound severed his sciatic nerve and 2.5 cm of his thigh tissue was lost due to the injury. He reports he has no motor function from the knee down causing dropped foot. This has left him with the following psychological problems: severe depression, post-traumatic stress disorder (currently receiving treatment from Newcastle Talking Therapies). He also suffers with frontal lobe epilepsy, which can trigger mild seizures, which starts by him, developing a distinctive smell, taste or image. He has widespread arthritis and suffers severe pain in his spine.

38. The Panel was of the view that the Registrant had elicited information demonstrating that Service User A had significant physical disabilities as well as extensive mental health issues (including PTSD for which he was receiving treatment), and that he was living with a great deal of pain. The Panel noted that the Registrant had also identified within the assessment document that Service User A was relatively isolated as he had no family in the UK and only a very small network of friends who lived out of the area.

39. The Panel was satisfied that the extent of Service User A’s physical and mental health issues, enduring pain and isolation, meant that he was vulnerable in the sense that his characteristics and circumstances were such that he was significantly more vulnerable than would be inherent in the usual Occupational Therapist/service user relationship.

40. The Panel noted the Registrant’s evidence to the effect that at the time she started a personal relationship with Service User A, he seemed like a very confident, funny and personable individual and that she did not realise how bad his depression was or the extent of his mental health problems until she was already invested in the relationship. The Panel noted that in cross examination, the Registrant agreed that Service User A was vulnerable and that she should have seen that and taken more notice of his vulnerabilities and that she now realised that he may have been “over-compensating” for his disabilities.

41. The Panel considered that the Registrant’s own assessment of Service User A had elicited extensive information regarding his vulnerabilities. The Panel noted that she was an experienced professional who had been working at the Council since 2003 and so was of the view that she would have known of the significance of that information provided to her during the assessment. The Panel further noted the inherent power imbalance in the professional relationship. In all the circumstances, the Panel was satisfied that Service User A was vulnerable and that the Registrant knew that he was vulnerable at the time that she started a personal relationship with him.

Particular 3

Your conduct at any or all of particulars 1a to 1c above was sexually motivated

42. The Panel finds Particular 3 proved in respect of each of 1a, 1b and 1c.

43. In relation to each of the three sub-particulars, the Panel had regard to the context in which the personal relationship between the Registrant and Service User A had arisen. It noted that the Registrant was unhappy in her home life and, as she described in her own evidence to the Panel, she was aware that Service User A was attracted to her and she was looking for somewhere where she would be wanted and welcome.

44. In relation to Particular 1a, the Panel bore in mind that it was the Registrant who had instigated the contact with Service User A and that the books which she had selected were relevant to his own personal issues. It concluded that she had wanted to be with someone who found her attractive and the books that she had selected would give her that opportunity. The Panel was satisfied that it was more likely than not that the Registrant’s actions in buying the books for Service User A were sexually motivated in that they were done in pursuit of sexual gratification and of a future sexual relationship.

45. In relation to Particular 1b, the Panel was satisfied that the act of sexual intercourse itself was done in pursuit of sexual gratification and of a sexual relationship.
46. In relation to Particular 1c, the Panel was satisfied that engaging in a romantic relationship was in pursuit of an ongoing sexual relationship.

Decision on Grounds
47. Mr Bellis, on behalf of the HCPC, submitted that the Registrant’s conduct was sufficiently serious as to amount to misconduct. He submitted that breaching professional boundaries was always serious in a regulatory context. He submitted that the Registrant’s sexually motivated conduct towards Service User A, who the Panel had found to be particularly vulnerable was particularly serious. He submitted that the Registrant had breached paragraphs 1.7, 6.1, 6.2, 7.4 and 9.1 of the HCPC Standards of conduct, performance and ethics (2016) (the Standards), which were in operation at the time.

48. Mr Shadenbury, on behalf of the Registrant, accepted that the facts found proved against the Registrant were serious and fell short of the standards expected, such that they amounted to misconduct.

49. The Panel heard and accepted the advice of the Legal Assessor. In relation to misconduct, she advised the Panel in respect of a number of cases, including Roylance v GMC (No. 2) [2000] 1 AC 311. The Legal Assessor advised that for conduct to amount to professional misconduct, it must fall short of what would be expected in the circumstances and that such a falling short must be serious and fall far below the expected standards. The Legal Assessor advised that the question of whether or not the facts found proved amounted to misconduct as alleged, was a matter for the Panel’s professional judgement.

50. The Panel considered that the therapeutic, professional relationship between the Registrant and Service User A had been for an extended period, lasting around a year and involving a number of home visits over that time, with the last visit in January 2019 to check that the adaptations to Service User A’s home had been satisfactorily completed. The Panel considered that the Registrant had subsequently instigated contact with Service User A around a month later and embarked on a personal sexual relationship with him which, in the Panel’s view was very shortly after the professional relationship had ended.

51. The Panel had also found that Service User A was particularly vulnerable and that the Registrant had known this at the time she started the personal relationship, as she had elicited the information about his vulnerabilities during her assessment of him in her professional role as his allocated Occupational Therapist.

52. In the Panel’s judgement, the Registrant had repeatedly breached professional boundaries in respect of a particularly vulnerable service user and her actions had been sexually motivated. It was of the view that fellow practitioners would find her conduct deplorable, noting that the Registrant’s supportive line manager, Witness JC, had said she had been ‘shocked’ to learn of the Registrant’s behaviour. The Panel was of the view that the Registrant’s conduct fell far below the professional standards expected.

53. The Panel considered that the Registrant had breached the following Standards:
Maintain appropriate boundaries
1.7 – You must keep your relationships with service users and carers professional;
Manage risk
6.1 – you must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible;
6.2 – you must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague, at unacceptable risk;
Personal and professional behaviour
9.1 – You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

54. The Panel considered that the facts found proved fell far below the standards expected of a registered Occupational Therapist and were sufficiently serious as to amount to misconduct.

Decision on Impairment

55. Having found that the facts found proved amount to misconduct, the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired as a consequence.

56. Mr Bellis, on behalf of the HCPC, drew the Panel’s attention to the case of Grant v NMC [2011] EWHC 927 (Admin), and submitted that the three relevant limbs were engaged in relation to the Registrant’s past conduct:
• Has in the past acted, and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
• Has in the past brought and/or is liable in the future to bring the profession into disrepute; and/or
• Has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession.

57. In determining whether there was liable to be a repetition in the future, Mr Bellis invited the Panel to consider whether there had been remediation, as identified in the case of Cohen v GMC [2008] EWHC (Admin). He submitted that whilst the Registrant’s misconduct may in theory be remediable, the underlying concerns of breaching professional boundaries and sexual misconduct were attitudinal in nature and therefore may be more difficult to remediate. Mr Bellis submitted that her fitness to practice is currently impaired.

58. Mr Shadenbury, said that although the Registrant had denied the allegations, she accepted the Panel’s decisions. He explained that the Registrant was aware of the seriousness of her actions and accepted that her conduct had engaged the first three limbs in Grant: she acknowledged that her actions had adversely impacted Service User A and caused him pain when the personal relationship ended; she recognised that she had brough the profession into disrepute and she understood that she had breached a fundamental tenet of the profession.

59. Mr Shadenbury submitted that the Registrant had reflected on her actions and had achieved a good level of insight. He submitted that she accepted that her actions had been wrong, that they would have had a detrimental impact on both Service User A and the profession and if she were placed in a similar situation in the future, she would not pursue a personal relationship and would inform her employer. Mr Shadenbury submitted that this had been an isolated incident; there had been no previous concerns, the Registrant had taken responsibility and been open and honest about her actions during the Council’s internal investigation, as confirmed by Witness CA. Consequently, he submitted that the risk of repetition was unlikely.

60. Mr Shadenbury said that the Registrant accepted that her fitness to practise was impaired on public interest grounds. She accepted that she had caused damage to the profession and that the public would expect a finding of impairment to be made.

61. The Panel heard and accepted the advice of the Legal Assessor. It had regard to the HCPTS Practice Note on Impairment, and in particular the two elements of impairment, namely the personal component and the public component.

62. The Panel first considered the three relevant limbs identified in the case of Grant (above) and concluded that each was engaged. The Panel concluded that the Registrant’s conduct had put Service User A at risk of harm, whereby he was caused emotional harm and distress, particularly when the relationship ended. Although the misconduct was in respect of a single service user, the Panel did not accept the submission of Mr Shadenbury that it was an isolated incident as the misconduct had continued over a prolonged period of time. The Panel was of the view that the Registrant’s actions had brought the profession into disrepute as her misconduct had been sexually motivated and had involved breaching professional boundaries. The Panel was also of the view that the Registrant had breached a fundamental tenet of the profession, namely, to promote and protect the interests of service users, whereas the Registrant had put her own interests above those of Service User A.

63. The Panel next considered whether the Registrant’s fitness to practise is currently impaired on the personal component, which looks at matters personal to the Registrant, such as, remorse, insight, remediation all of which inform in respect of whether there is a future risk to the public.

64. Given the nature of the misconduct, which was sexually motivated and involved breaching professional boundaries, the Panel considered that these were attitudinal traits which may be more difficult to remedy than clinical concerns. Nevertheless, the Panel did consider that it may be possible to remedy the misconduct, for example through reflection to gain insight and undertaking training to maintain professional boundaries in order to avoid repetition.
65. In terms of insight, the Panel took account of the Registrant’s oral evidence where she had articulated her recognition that her actions had brought pain and distress to Service User A, particularly when she ended the relationship and his involvement in the whole regulatory process. She acknowledged that her actions had been wrong and undertook not to repeat them. She also had an understanding that her actions would have damaged the reputation of the profession.

66. Whilst the Panel acknowledged that the Registrant had some insight into her misconduct, it considered that it was still in its infancy. The Panel was of the view that the Registrant was inclined to focus on the adverse impact upon herself and the fact that she considered herself vulnerable rather than being able to understand the power imbalance that would have existed between herself and Service User A. It appeared to the Panel that the Registrant had adopted a narrow interpretation of what was meant by professional boundaries, working on the basis that they had ended immediately once the professional relationship had ended. In the Panel’s judgement, the Registrant did not appear to understand that in respect of such a vulnerable service user, they would have continued for some time afterwards, as the power imbalance may have made him overly dependent upon her.

67. In terms of practical remediation such as education or training, the Panel noted that it had not been provided with any such evidence, for example, evidence of any courses on or practical learning around professional boundaries and decision making.

68. Given the Registrant’s limited insight and that there is no evidence of any other practical remediation, the Panel concluded that the Registrant had not remedied her misconduct and so there remained a consequent risk of repetition. The Panel therefore concluded that the Registrant’s fitness to practise is currently impaired in respect of the personal component.

69. In respect of the public component, the Panel was mindful of its responsibility to protect the public, maintain public confidence in the profession and uphold professional standards. In terms of protecting the public, the Panel considered that service users were entitled to expect professionals to maintain professional boundaries, including once a formal professional relationship had ended, as well as to place the service user’s interests above the personal interests of the Occupational Therapist. In terms of maintaining public confidence and upholding professional standards, the Panel considered that the public was entitled to expect a registrant to be professional and act within appropriate professional boundaries.

70. In all the circumstances, the Panel was of the view that public confidence in the profession would be undermined if no finding of current impairment were made in this case. In all the circumstances, the Panel concluded that the Registrant’s fitness to practise is currently impaired on the public component.

71. Accordingly, in the Panel’s judgement, the Registrant’s fitness to practise is currently impaired.

Decision on Sanction
72. Having determined that the Registrant’s fitness to practise is currently impaired by reason of misconduct, the Panel went on to consider whether it was impaired to a degree which required actions to be taken on her registration. The Panel took account of the submissions of Mr Bellis on behalf of the HCPC and Mr Shadenbury on behalf of the Registrant. It also had regard to all the material previously before it.

73. The Panel accepted the advice of the Legal Assessor, and it exercised its independent judgement. It had regard to the HCPTS Sanctions Policy (the Policy) and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive but to protect members of the public and to safeguard the public interest which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.

74. As part of its consideration in respect of sanction, the Panel considered the relevant mitigating and aggravating features in this case.

75. The Panel considered the following to be the relevant mitigating factors:
• The Registrant has no fitness to practise history;
• The Registrant has a long history of 20 years’ practice as an Occupational Therapist and there is no evidence of any further subsequent concerns;
• The Registrant has expressed remorse for the pain and distress she caused to Service User A and has apologised for it;
• Whilst the Registrant’s insight is in its infancy, the Panel was of the view that she had the potential to develop her insight;
• The Registrant has provided positive character references, both written (from Miss SS and Mr KR) and oral (through her line manager at the time, Witness JC);
• The Registrant has fully engaged throughout this process, cooperating with both the internal Council investigation and the HCPC proceedings, and making early admissions about her personal relationship with Service User A.

76. The Panel considered the following to be the relevant aggravating factors:
• The Registrant had acted in abuse of her professional position;
• Service User A was particularly vulnerable;
• Emotional harm and distress had been caused to Service User A; and
• The misconduct involved sexual misconduct.

77. The Panel acknowledged that the option of mediation was available to the Panel, but it did not consider that this case was suitable for such an outcome. It noted the criteria set out in the Policy indicating where such an outcome may be appropriate and did not consider that any were engaged in this case. In particular, the Panel did not consider that the impairment was minor, isolated in nature and unlikely to recur. Further, it did not consider that the Registrant had ‘displayed sound insight’ or ‘undertaken significant remediation’.

78. The Panel next considered whether a sanction was required, or whether the case could be concluded with no further action. The Panel was of the view that this case was too serious to take no action. Such a course would not address the ongoing risk of repetition which the Panel had identified, given that the Registrant’s insight was in its infancy and there was an absence of evidence of remediation. Further, the Panel was of the view that taking no action would send the wrong message to the public and the profession. Accordingly, the Panel was not satisfied that taking no action was the appropriate or proportionate response.

79. The Panel next considered whether to impose a Caution Order. The Panel was mindful that such a sanction would not restrict the Registrant’s practice, which was inappropriate, given the ongoing risk of repetition identified. The Panel did not consider that a Caution Order was sufficient to protect the public or address the wider public interest concerns. Furthermore, the Panel did not consider that the criteria set out in the Policy were met for when a Caution Order may be appropriate. In particular, the Panel did not consider that the misconduct was isolated, limited or relatively minor in nature; that the risk of repetition was low; or that the Registrant had shown good insight and undertaken appropriate remediation. Accordingly, the Panel was not satisfied that a Caution Order was the appropriate or proportionate response.

80. The Panel next considered a Conditions of Practice Order. The Panel bore in mind that it had characterised the conduct as being attitudinal in nature and had occurred outside the workplace. Therefore, although the panel was of the view that the Registrant’s misconduct was potentially capable of remediation, it did not consider that conditions could readily be formulated at this stage, which would be appropriate, proportionate, realistic and verifiable. Furthermore, the Panel considered that even if conditions could be formulated, they would be insufficient to address the seriousness of the misconduct and therefore maintain public confidence in the profession. Therefore, the Panel did not consider that a Conditions of Practice Order was the appropriate or proportionate response.

81. The Panel next considered a Suspension Order. The Panel had regard to the factors set out in the Policy which may make a Suspension Order appropriate, namely:
• The concerns represent a serious breach of the Standards of conduct, performance and ethics;
• The registrant has insight;
• The issues are unlikely to be repeated; and
• There is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.

82. The Panel was satisfied that the concerns represented serious breaches of the Standards, as had been identified at the misconduct stage. The Panel noted that the Registrant had some insight, albeit it was currently limited although the Panel considered that the Registrant had the potential to continue to develop her insight. It was of the view that the process of developing insight had been occurring throughout this fitness to practise hearing. The Panel was also of the view that the oral evidence the Registrant gave suggested that she would be likely to be able to resolve or remedy her misconduct, as she had appreciated the damage she had caused to Service User A and had expressed what the Panel considered to be genuine regret and remorse for that. The Registrant had also come to understand, during the course of her evidence, the extent of Service User A’s vulnerability.

83. Nevertheless, the Panel was mindful of its finding at the impairment stage, that there was an ongoing risk of repetition, and so the Panel went to look at the criteria set out in the Policy which may make a Striking-Off Order the appropriate sanction. The Panel bore in mind the following:
A striking of order is a sanction of last resort for serious, persistent,
deliberate or reckless act involving:
• Abuse of professional position, including vulnerability;
• Sexual misconduct

84. Whilst the Panel recognised that these features made the Registrant’s misconduct particularly serious, it also had regard to the mitigation identified in this case. It bore in mind that the Policy identified a Striking-Off Order as being likely to be appropriate where the ‘nature and gravity of the concerns are such that any lesser, the sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process’. Given the mitigation that the Panel had identified, particularly the Registrant’s potential to continue to develop her insight and her understanding of the harm she had caused Service User A, the Panel was not satisfied that a Striking-Off Order was the only sufficient sanction in this case.

85. The Panel considered that this was not a case where a lesser sanction would be insufficient to protect the public. It was satisfied that a Suspension Order would be sufficient to protect the public for the period that it was in place and would meet the public interest considerations in this case of maintaining public confidence and upholding professional standards. The Panel was also mindful that it must act proportionately. In all the circumstances, it was satisfied that a Suspension Order was the appropriate and proportionate sanction.

86. The Panel determined to impose a sanction of 12 months. In deciding this length, the Panel considered that such a length was necessary to achieve the appropriate level of public protection and to meet the public interest considerations. It also considered that it would afford the Registrant the opportunity to further develop her insight and to take practical steps to further her understanding of professional boundaries and therefore to remediate her misconduct, so as to reduce the ongoing risk of repetition.

87. The Panel did not seek to bind a future reviewing panel, but it was of the view that the following matters may assist it:
• A further reflective piece focussing on the importance of maintaining professional boundaries, including with former service users, to demonstrate that the Registrant has gained insight into the impact of her misconduct on service users and on public confidence in the profession;
• Evidence of relevant training and development, for example the undertaking of an accredited professional boundaries course;
• Evidence of continuing professional development; and
• Current testimonials and character references from those aware of the Registrant’s misconduct, whether in the field of health care or not.

ORDER: The Registrar is directed to suspend the registration of Mrs Emma King for a period of 12 months from the date this Order comes into effect.

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

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

Interim Order
Application
88. As the Panel has imposed a sanction which restricted or prohibited the Registrant’s right to practise as an Occupational Therapist, Mr Bellis applied for an Interim Order to cover the appeal period before the sanction takes effect, or if the Registrant were to appeal, the period before the appeal was determined or otherwise disposed of. Mr Bellis submitted that given the findings of the Panel that there was an ongoing risk, an Interim Order was necessary to protect the public and was otherwise in the public interest.

89. Mr Shadenbury did not oppose the application.

Decision
90. The Panel heard and accepted the advice of the Legal Assessor, who advised that the substantive Suspension Order of 12 months would not take effect until the appeal period of 28 days had expired, or if the Registrant were to appeal, until the appeal was determined or otherwise disposed of. She advised the Panel that it was open to it to impose an Interim Order of up to 18 months to cover that period if it was satisfied that an Interim Order was necessary to protect the public or was otherwise in the public interest.

91. The Panel was satisfied that an Interim Order was necessary to protect the public, given its findings of an ongoing risk of repetition. It was also satisfied that an Interim Order was required in the public interest to maintain public confidence in the profession and to uphold professional standards, being of the view that public confidence would be undermined if no Interim Order were imposed.

92. In light of its substantive conclusion that conditions would not address the public interest considerations, even if it were possible to formulate them, the Panel decided that an Interim Suspension Order was the appropriate and proportionate Interim Order.

93. The Panel makes an Interim Suspension Order 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 to cover the period before the substantive Suspension Order takes effect.

94. 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.

History of Hearings for Mrs Emma King