Robert G Hawkins

Profession: Physiotherapist

Registration Number: PH76964

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 04/02/2025 End: 17:00 06/02/2025

Location: Virtually via Video Conference

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

As a registered Physiotherapist (PH76964) your fitness to practise is impaired
by reason of your misconduct. In that:


1. On or around 26 October 2021:

a. when massaging the chest area of Service User A (SUA), you told SUA they have ‘a beautiful body’, or words to that effect;

b. you attempted to lower SUA’s underwear:

i. without covering SUA’s pubic region;
ii. without SUA’s consent to do so; and/or
iii. when this was not clinically necessary.

c. you did not make any or any adequate record of the assessment and/or treatment of SUA’s tensor fascia latae (TFL) muscle.


2. By your conduct at 1(b)(i) above, you failed to respect SUA’s dignity.

3. The matters at any or all of particulars 1 and/or 2 amount to misconduct.

4. By reason of your misconduct, your fitness to practise is impaired.

Finding

Preliminary Matters

Amendment of the Allegation

1. The Panel’s attention was drawn to page 299 of the HCPC bundle, where the terms of the Allegation have been reproduced. The HCPC noted that within that there had been a typographical error in the spelling of ‘pubic’ within Particular 1(b)(i). There was an additional ‘l’ thereby making this word read as ‘public’. It was accepted by the parties and the Panel as purely a typing error.

Background

2. The matters involved relate to the HCPC receiving a complaint from a Service User A about the Registrant’s conduct. Those concerns arise from a single appointment on 26 October 2021 which took place at the Registrant’s clinic which was within his home.

3. Prior to this incident the service user had been a long-standing client of the Registrant, having attended the practice on and off since 2009. She had been happy with the treatment that she received and had referred the Registrant to others, including her husband, who was also a client.

4. On 22 October 2021, the appointment was made by the service user as she had been experiencing issues with her hip. During the course of the appointment, the Registrant informed the service user that he had had a last-minute cancellation to the following appointment so he had 30 minutes spare. As that appointment had been paid for by another patient, the Registrant offered that time to Service User A free, which she accepted as she was also suffering from a stiff neck.

5. The allegation sets out the events which took place at the appointment on 22 October 2021.

Decision on Facts

6. The Panel was not required at this hearing to make any findings of facts, there having been admissions at the initial substantive hearing; acknowledgment by the substantive hearing panel of the factual basis for those admissions; and acceptance of the substantive hearing findings within the High Court review.

Submissions

7. The Parties had helpfully provided the Panel with their written submissions within Skeleton Arguments. Those were read and considered by the Panel. In addition to those written submissions the parties amplified their relative positions at the hearing, having subsequently had the opportunity to consider the other parties’ arguments.

HCPC

8. The HCPC emphasised that there had been a breach of the standards expected and whilst these are not determinative, they are a factor to be taken into account by the Panel when making its decision.

9. In relation to the issue raised that the Registrant had not been providing clinical treatment, the HCPC’s position was that within this one setting of one appointment the same considerations applied relating to Service User A being vulnerable whilst semi clothed and within the same ambit of power imbalance. The comment made about having a ‘beautiful body’ would have made her feel uncomfortable as evidenced by the subsequent email sent by her to the Registrant.

10. The issue of consent lies at the heart of the matter. Whilst the allegation now refers to ‘attempting to lower’, the issue of consent before doing so, remains relevant and this was supported by the evidence of the expert witness. The HCPC maintained that the Registrant’s position that because this was ‘a massage’ and not ‘clinical treatment’ the issues of consent and harm are not applicable, was illogical.

11. It is accepted that the underwear had already been lowered once and it is the attempt to lower further on a second occasion which had raised again the need for consent. That is the mischief of the Registrant’s actions and which within the particular setting and circumstances amount to serious misconduct. It was incumbent upon the Registrant to offer a towel and the failure to maintain her dignity and modesty.

12. The matters should be viewed as a whole, starting with the comment of her having a ‘beautiful body’ which would have set the tone. Through this prism of the subsequent failure to obtain consent and offer to provide a towel to preserve her dignity should be viewed. It was stressed that therefore these matters should be taken together in making a finding of serious misconduct.

Registrant

13. The Registrant’s Representative took the Panel to the decision of the previous panel in which it was accepted as common ground that this addition time was to be used to provide a relaxing massage.

14. The previous panel had accepted that there had been consent given within the clinical treatment session to the lowering of the underwear. In the massage those actions were going further.

15. It was accepted that the Registrant had attempted to lower the underwear. There had been towels available and the service user had previously refused to have one when previously offered but it was not challenged that he had failed to provide one. Equally it was common ground that he had not obtained consent to the further lowering of the underwear in the massage session.

16. The Panel has to look at the events objectively and whilst some of the matters were failures they do not amount to serious misconduct. The making of the comment was inappropriate but does not support a finding of serious misconduct. The Registrant had sought consent to the lowering of the underwear on the first occasion and it was clinically supportable to do so, but he had overlooked to obtain consent within the context of providing a massage for the further lowering. This would not amount to serious misconduct nor would the failure to make adequate record of treatment.

17. It was argued that individually those matters did not amount to serious misconduct and that taken together these would not be considered serious.

HCPC further submissions

18. Following the Legal Assessor’s advice, which included within it reference to the case of Schodlock, where obiter comments in the court of appeal identified that individual findings should not in the normal cause of events, be taken together to make a finding of serious misconduct. The HCPC stressed that there was a danger of applying this decision widely. It was stated that nothing should turn upon the drafting of a particular into subdivisions when considering whether there was serious misconduct. These matters should be treated in the broadest terms and not narrowed by the way the allegation is constructed. That case should be distinguished from the current one before the Panel, in that this matter concerns one service user in one appointment, and so a different situation from that in the Schodlock case where several service users had been the basis for making findings.

19. The Registrant’s Representative stated that the reference made to this case reinforced his understanding that matters should be considered individually to determine if serious and then taken as one body.

Decision on Grounds

20. The Panel had received detailed written submissions from the parties in which the reference to the relevant law had been set out. The Legal Assessor provided her detailed advice which referenced the same cases as the parties with the addition of reference to application of the case of Schodlock v GMC [2015] EWCA civ 769 which the parties’ made observations upon.

21. The Panel accepted this advice and noted the submissions made by the parties in writing and orally. The Panel had read and considered all the documentation placed before it and noted the terms of the HCPTS guidance note on the matters that a panel should consider at this stage in proceedings.

22. The Panel noted that the HCPC had helpfully directed it to the relevant standards published by the HCPC which was the 2016 edition, for Physiotherapists and their practice as a registered practitioner. Those considered by the HCPC to be engaged in this hearing were standards 1.1, 1.4, 9.1 and 10.1. The Panel considered that the Registrant’s
conduct had been a breach of all those provisions, notwithstanding that it had not made a finding of serious misconduct on all the matters it was determining at this stage.

23. The Panel noted the findings of the previous panel and the terms in which it had expressed those. It has been suggested by the Registrant’s Representative that there was a professional treatment session and a separate massage session. Within that determination of the previous panel, it is noted that the service user had made an appointment for clinical treatment and she had considered herself to be consenting to an extended treatment appointment. When referencing that session in her subsequent text to the Registrant she had referred to being ‘uncomfortable with today’s treatment’. The service user had not drawn a distinction in the way in which she had received treatment.

24. It was further suggested that massage was not a form of physiotherapy treatment. The Panel noted that massage is included within manual therapy and therapeutic handling part of a physiotherapist’s practice. The Panel considered that there was an underlying continuum of treatment and conduct in this one session. The Panel noted that if it had been accepted that he was providing a massage it followed that the Registrant would be using the same skills and knowledge set and relying upon his position of trust. In the Panel’s view this distinction between treatment and massage would not be made by a practitioner.

25. The Panel noted that it had been submitted by the Registrant’s Representative that no harm flowed from the Registrant’s actions. The Panel noted that the HCPC case was never founded upon an allegation that there had been emotional, mental or physical harm. However, this Panel noted from the evidence of the service user the impact this incident had upon her. This was evidenced in the email chain that took place immediately following the session on 26 October 2021. That email chain started on 26 October 2021 at 13.42 hours by the Registrant sending to the service user the following message:

‘Just wanted to check you weren’t uncomfortable with today’s treatment. I look forward to seeing you next week’

This was then followed up at 15.06 with a text message from the Registrant to the service user in which the Registrant checks that the email account to which he had sent his email at 13.42 was the correct one. The service user confirms that it was the correct email address.

The service user then responds by email (which is partially redacted for the purposes of this hearing) on 27 October 2022 at 13.48 in the following terms:

I’ve thought considerably about my response to you.

I was very uncomfortable [redaction] and don’t see how that is in any way necessary for the treatment you were meant to be giving me.

Also, as complimentary as it may seem, telling me that I have a beautiful body whilst massaging my chest area made me feel extremely uncomfortable.

Being an ex-therapist myself I know what is acceptable and what is not.

I feel very conflicted because I highly rate the work you do and the improvements I’ve had physically since coming to you. It is unfair of you to make me feel this way.

I hope that you take time to consider my comments.

I’m unsure at this point in time if I will feel able to return for my treatment next week. I will give you 48 hours’ notice if this is not the case.

This was then followed at 14.06 the same day with the following response from the Registrant.

‘Thank you for responding to my email.

I cannot apologise enough; yesterday I behaved extremely unprofessionally, it was unacceptable, and I apologise for how you felt from my actions.

I completely understand if you don’t wish to continue your treatment, however, I promise I will never behave that way with you again if you do. I accept whatever you decide.
Kind regard.’

The Panel also noted from paragraphs 18 and 21 of the service user’s written statement which was signed and dated 19 August 2022, that her feelings about the event at that time were:

“ …I did not respond to the email immediately as I was angry and felt vulnerable therefore I wanted to take time to think about my response…”

“…I felt the need to report the Registrant to prevent them doing this to anyone else. I wanted the Registrant to be aware that what they did was wrong and that it is not fair to make people feel like I have felt. Even now, I feel very anxious about the incident and feel that my trust in the profession had been ruined…

26. The Panel noted that there were no arguments that these matters were misconduct, the issue that is in question was whether they individually and collectively amounted to serious misconduct.

Particular 1(a)

27. In relation to Particular 1(a) the observation that the service user had a ‘beautiful body’. The Panel noted that the findings were that this observation had not immediately followed after the service user’s observations that she had let herself go during COVID. Such an objective observation phrased differently within the context of taking further exercise to maintain body strength for instance would have been acceptable. This comment was not in the same category. The Panel considered that the use of ‘beautiful’ took it beyond an inappropriate observation to a completely unacceptable one. This observation would have made this service user feel most uncomfortable. Fellow practitioners would consider the making of this statement within a treatment session as deplorable and the Panel considered it would appear to be morally blame worthy to an ordinary citizen.

Particular 1(b)

28. In relation to the matters that have been particularised within 1(b), the Panel considered that the issues raised in the three subsections all flow from the one same incident of the Registrant seeking to further lower the service user’s underwear. These had been particularised to clarify the considerations which flowed from this attempt to further lower the underwear.

29. In relation to 1(b)(i), the Panel noted that the previous panel had accepted the service user’s position that a towel had not been offered rather than the Registrant’s position that there were towels available and previously the service user had declined the offer of a towel. The evidence of the Expert Witness was that a towel should be offered, and it was not appropriate for a service user to be expected to request one. There was no dispute that there had not been an offer of a towel before the attempted further lowering of the underwear. Given that there was the intention to further lower the underwear this should have been provided, as the evidence was that further lowering would have exposed this pubic area of the body. Practitioners would consider the failure to identify this was well below the standards expected of a practitioner particularly one of such experience as the Registrant. The Panel considers that this failure to identify the need to provide the means for this service user’s dignity to be preserved is serious misconduct.

30. In relation to 1(b)(ii) the Panel noted that the duty to obtain consent was a continuous process. Although there had been consent given by the service user to the treatment and the initial lowering of the underwear, this allegation relates to the lack of consent for the further attempted lowering of her underwear. The service user’s written redacted statement paragraph 14 records the sequence of events as follows:

“…After working on my abdomen for roughly a couple of minutes, the registrant then asked me to bend my knees. I initially thought [this] meant that the treatment was finished as, after laying down for so long in a deep relaxation, you take time getting up. Therefore, I followed the Registrant’s instructions and bent my knees. However, the Registrant then told me to lift up (meaning in relation to my hips) as he had his hands still on my underwear either side on my hip area. My immediate thought was that he was about to pull my underwear down [redaction]. At this point, I grabbed my underwear to stop the Registrant from pulling them down any further. The Registrant then said ‘oh, was that too far?’ to which I responded ‘yes, I don’t understand why that’s necessary’ or words to that effect. At this point, the Registrant stopped attempting to pull down my underwear and stepped away from the therapy couch. He did not say anything in response to this...”

From this it is clear that there had never been a request for consent to the attempted further lowering of the underwear.

The report of the Expert Witness at paragraph 3.2.11 states:

“…It is difficult to maintain the comfort and dignity of the patient when trying to palpate the TFL in the supine position. This is due to the position of the muscle relative to where the patient’s undergarments would be. I would expect the Registrant to put a towel or paper towel over the patient’s pubic area to avoid any discomfort to the patient. This could reasonably be done to make the patient feel comfortable and still access the TFL I would expect the Registrant to explain to the services use why he intended to lower the underwear and to gain consent to do so. In the supine position, you could raise the underwear about the anterior superior iliac spine (ASIS) or below ASIS and get the patient to it in position…

The Panel also noted the previous panel’s determination at paragraph 62 which stated that this advice had been relied on by that panel:

‘The Panel also noted the evidence provided by the expert, Ms Condon that the Registrant should have explained what he intended to do and obtain informed consent from the Registrant if he was required to move the underwear, particularly when treating the pelvic area. On this basis this particular is found proved’.

The service user’s further oral evidence in cross examination supports her written evidence that consent for the attempted further lowering of the underwear had not been obtained. The failure to do so, in the circumstances set out above, was, in the Panel’s view, serious misconduct.

31. In In relation to 1(b)(iii) the Panel again relied upon the statement of the service user as set out above. The Panel noted that the Registrant had made admissions as evidenced in the transcript that his attempt to lower the underwear was not clinically necessary. This position was supported by the evidence of the Expert Witness as set out in her report at 3.2.18. The Panel considers that a fellow practitioner would find this conduct as falling far below that which was expected of a practitioner.

32. In relation to 1(c) the failure to make adequate note of the treatment, this was misconduct but based on one example of a failure to make adequate notation of the treatment it did not, in the view of the Panel, amount to serious misconduct.

Particular 2

33. As stated previously this Panel considered that the failure to cover a pubic area of the body that may have been exposed as a result of his attempts to lower the underwear further was serious. It follows that in doing so he had failed to respect this service user’s dignity. The Panel consider this to be serious misconduct.

Decision on Impairment

Registrant’s evidence

34. The Registrant chose to give further testimony. He told the Panel that he was not good at setting out in written format his views and thoughts and appreciated that this was the time for him to articulate the ways in which he had remediated his misconduct. He understood that this was the time to persuade the Panel that there would not be a repetition of his misconduct.

35. He told the Panel that he had hundreds of sessions each year with female patients. This was a ‘one off mistake’, where he used the wrong words and had not appreciated that they had been capable of being misconstrued. He now appreciated that the hiatus between the earlier conversation with the service user around her low self-esteem and his subsequent comment had led to it being taken out of context. However, he agreed that the use of the term ‘beautiful body’ was totally inappropriate within a professional setting. He now ensured that he never said anything like that as he had put a “switch between his brain and his mouth so I don’t say what I am thinking”.

36. The Registrant told the Panel that he had undertaken training which he had been able to identify as relating to the areas of concern raised in this case. The courses relating to professional boundaries and communications had a wider application and did not specifically deal with the issue of consent. He had been unable to find a course relating to the issue of consent, other than one fashioned for those working with service users who had learning difficulties. He had recently re-taken the three courses he had completed some eighteen months ago and stated that he had gained no fresh learning from doing so, and those courses had confirmed what he already knew. They had not informed a change in his practice.

37. The Registrant told the Panel that he now ensured that instead of towels being available on the radiator one was always positioned at the end of the couch for a service user to use. He said that in terms of communications and treatment he was now extremely cautious. He was careful to ensure that there were no areas of uncertainty or confusion in a service user’s mind as to what was to be done within the session.

38. The Registrant confirmed that he would never act that way again because he had reflected deeply over the last four years. He stated that his way of undertaking reflection had taken the form of talking to service users, colleagues and his wife about this incident and seeking their views on his practice. He confirmed that he had not produced any reflective pieces of writing and had not taken anything from those reflection discussions with service users to produce a personal development plan. The Registrant stated that he was not aware of that process of producing a personal development plan.

39. The Registrant was not a member of any practitioner group and had not heard of the ‘Physio First’ group (which used to be known by another title of Organisation of Chartered Physiotherapists in Private Practice (OCPPP) which was led by a professional membership body, the Chartered Society of Physiotherapy. This was for practitioners to discuss professional issues within a peer group.

40. The Registrant confirmed that he had an arrangement with a sports therapist to undertake mutual clinical supervision. That supervision took the form of the two practitioners observing each other’s clinical interactions with clients who may benefit from interventions from both practitioners. The notation of that clinical oversight was in the form of notes made on the service user file of the clinical treatment agreed. Prior to COVID the Registrant’s professional supervision took the form of discussion with fellow practitioners at training courses. The Registrant confirmed that he does not undertake regular professionals supervision nor has a framework for documenting such supervision.

41. The Registrant confirmed that he understood that the public view of his profession would have been adversely affected by his conduct. He stressed that this was a one-off incident in a long career, and it was a stupid mistake.

Parties’ submissions

42. The Skeleton Arguments prepared by the parties included written submissions upon the issue of impairment. Those are set out below. At the commencement of the hearing the HCPC had indicated that if a finding of misconduct were found the HCPC would wish to further explore the issue of insight. It was noted that if this were the case, the Registrant may wish to address the Panel. The Registrant did give evidence and so those written skeleton arguments were expanded upon orally by both advocates.

HCPC

43. It was submitted by the HCPC that a finding of impairment is necessary in order to protect the public. It is submitted that the Registrant has not demonstrated the necessary insight and remediation required to reduce the risk of repetition to the point where the conduct is highly unlikely to be repeated, for the following reasons:

• In his second witness statement, before the previous substantive hearing panel, there was a conspicuous absence of any detailed reflection on the preservation of service users’ modesty, of ensuring that informed consent to treatment is obtained, and how to ensure that the dignity of patients is maintained. Remorse for the inappropriate comment is expressed, but there was little detailed reflection as to satisfy the Panel that he has embedded an understanding of why it was inappropriate. While at that time some further remediation by way of CPD certificates was provided, there was no written reflection on what had been learned from those courses.
• The Registrant’s third witness statement, written for this remitted hearing, suffers from similar deficiencies. While it is asserted that the Registrant has “engaged in deep reflection on [his] practice, specifically regarding professional boundaries, communication and record-keeping”, precious little is said that could satisfy the Panel that there is any depth to those assertions. Further CPD certificates are provided but, again, there is no reflection on what has been learned from those courses.

44. A finding of impairment is also required in the wider public interest. There is nothing, it is submitted, in the case of Adil v General Medical Council [2023] EWCA Civ 1261, that undermines the appropriateness of such a declaration at this impairment stage. Adil seeks to mitigate the potential unfairness and a disproportionate impact on a registrant of a restriction imposed on their practice, not the impact of a declaration at a remitted hearing that the nature of the proven misconduct requires a finding of impairment.

45. In the HCPC’s further submissions to the Panel it was reminded of that lack of insight the Registrant had in his most recent statement and his evidence to the Panel today. It was emphasised that there is a distinction between insight and remediation and remorse and apology. Whist the Registrant had been able to demonstrate remorse and apology he was unable to evidence insight or remediation.

46. The HCPC submitted that it was insufficient that the Registrant had placed a switch between his brain and his mouth: the Registrant should be able to demonstrate that his thought process was one that did not require censure before being spoken.

47. In the HCPC’s view the Registrant has been unable to adequately articulate the ways in which his practice had changed as a result of this incident, particularly in relation to the areas of consent and maintaining dignity. Further the Registrant has not been able to evidence the ways in which any of the further training he has undertaken had informed any changes in his practice. There should therefore remain concerns about the possibility of a repetition of the misconduct found.

48. In relation to the character references and testimonials the Panel was reminded that they had been produced during a period when the Registrant was under the scrutiny of the HCPC and so therefore should be given appropriate weight.

Registrant

49. The Panel was referred to the Registrant’s documentation that featured between pages 80 and 143 of the HCPC hearing bundle. These relate to statements made by the Registrant that demonstrate his level of insight, contain details the further training undertaken and further references from service users.

50. It was submitted that the Registrant has genuinely and sincerely been on a learning journey over the last three years following the complaint. The Registrant was permitted to continue seeing clients until the final hearing and there have not been any concerns raised during this period.

51. The evidence and testimonials presented by the Registrant to this Panel demonstrate an understanding of why things went wrong, remediation, and how to ensure the events do not arise in the future.

52. It was submitted that the Registrant had demonstrated insight and there is no risk of repetition.

53. In his further oral submissions, the Registrant’s Representative emphasised the narrow ambit of the matters before this Panel and confirmed to those on which there has been a finding of serious misconduct. There was no suggestion of any sexual motivation for his actions and should be considered as a single lapse of his normally high standards.

54. There was no evidence of any similar concerns before or since. The references before the Panel paint a picture of a man who has considerable skill and knowledge and is trusted by his service users.

Panel’s Decision

55. The Panel, having decided, in its judgment, that the matters outlined in Particulars 1(a), 1(b) and 2 amounted, individually and collectively, to serious misconduct, the panel moved on to consider impairment having discounted Particular 1(c) from its considerations.

56. The Panel sought and accepted the advice of the Legal Assessor and took into account that its decision at this stage was to assess the Registrant’s fitness to practise as of today: it is an issue of ‘current impairment’. The Panel’s consideration of current fitness to practise consisted of two components, the private and the public.

57. In relation to the issue of the private component the Panel was to consider whether the Registrant’s misconduct was capable of remedy; the steps taken by the Registrant to address that misconduct; and whether there remained a likelihood of repetition of that misconduct. Those considerations were in line with the decision of Cohen v GMC [2008] EWHC 581 (Admin).

58. The Panel was therefore able at this time to take into account the documentation provided by the Registrant relating to his reflection and insight into his former behaviour; the further training he had undertaken; and the references which had been provided at this time from seven of his longstanding service users. The Panel noted that these further references were all recent and had been produced in full knowledge of these proceedings. The Panel further noted that the three training courses which the Registrant had very recently undertaken related to the areas of professional boundaries, communications, and record keeping, which had previously been undertaken and were still within their period of validity. The certificates for these topics had, together with further references, been placed before the previous substantive hearing panel.

59. The Panel had also been directed by the Legal Assessor to the HCPTS published guidance on the issue of Impairment. The Panel was reminded that this was guidance only, and that it was a matter for the Panel to determine having taken into account all information before it.

60. In relation to the public element of its decision, the Panel was provided with advice emanating from the decision in CHRE v NMC & Grant [2011] EWHC 927 (Admin). That case confirmed that notwithstanding that there may be no finding of impairment on the private element of its decision, there were situations where the public interest warranted a mark of censure to denote the impact the Registrant’s actions had upon the profession’s standing, and the degree to which that conduct had undermined the public confidence in the regulatory process.

61. The Panel noted the positive terms in which the Registrant and his professional practice had been described in his character references and testimonials. The Registrant appeared to be held in high regard by those he had treated over a considerable period of time, and without any cause for concern about his treatment or his conduct. These references echoed the sentiments expressed in references placed before the previous substantive panel.

62. The Panel noted that within his statement dated 4 October 2024 the Registrant highlights the impact this case has had upon him and the impact of his suspension by the previous substantive hearing panel. He states:

‘The impact of the order was not limited to the immediate loss of my ability to work and earn a living, but also caused significant long-term harm to my professional reputation and a profound sense of shame that accompanied it. The impact went far beyond my career, affecting how I am perceived by colleagues, patients, and the wider public.’

He goes on to state in the same document:

‘I have engaged in deep reflection on my practice, specifically regarding professional boundaries, communication and record-keeping. I acknowledge the seriousness of the issues raised and have taken comprehensive steps to assure this Committee that there is no risk of repetition of the past failings identified through reflection and additional training.’

63. The Panel noted that in his oral evidence the Registrant had provided little detail of how his practice had changed in the last four years other than the repositioning of the towel that was made available for service users and a cautious approach.

64. The Panel noted that the Registrant’s efforts to find more suitable training had been limited. The course on consent may not have been totally applicable but could have been used as a basis to inform his further thinking around the issue of consent. During the hearing the Registrant had discovered an online course relating to the legal requirements of consent, something that could have been identified at an earlier time. It was unclear to this Panel what benefit could be derived from retaking the same courses after such a short period of time.

65. The Panel noted that the Registrant considered supervision to be confined to clinical supervision rather than clinical and professional. The Panel noted that the Registrant had no formal professional interactions with fellow Physiotherapists, something which would inform his thinking and would ensure that his practice processes, such as producing personal development plans, and undertaking continuous practice reflection were current.

66. The Panel had evidence of the Registrant’s apology and remorse for his actions. The reflection the Registrant had undertaken had been in a form of discussion with service users but what had been learnt from those discussions had not been evidenced in an oral or written form.

67. The Panel considered that the Registrant’s behaviour was capable of being remedied and the process of remediation would take the form of demonstrating changes of practice, training and insight. As noted above. the Registrant has failed to produce substantial evidence of those. This being the case, the lack of significant remediation leads the Panel to the conclusion that there is a risk of potential repetition. The Panel therefore find that on the personal component there is current impairment.

68. In relation to the public component, the Panel considered that the lack of remediation, the nature of the Registrant’s conduct, the comment that was made, the lack of consent for the attempted lowering of service user’s underwear and the failure to preserve her dignity would cause fellow practitioners and members of the public concern if impairment were not found. This coupled with the risk of potential repetition would additionally undermine the trust fellow practitioners and members of the public have in the regulatory process.

69. The Panel have therefore concluded that a finding of current impairment is warranted in this case on both personal and public components.

Sanction

Further evidence presented at the resumed hearing in February 2025

70. At the resumption of the hearing in the Registrant took the opportunity to provide the Panel with further documentation. Those were:

• A reflective piece of writing identifying the changes in the Registrant’s understanding and approach to his practice and the impact these HCPC proceedings had on him, particularly since the last hearing in October 2024. This was dated 27 January 2025.
• Reflective pieces of writing (undated) on the courses the Registrant had recently undertaken on the topics of:
i. Consent.
ii. Professional boundaries in health and social care.
iii. Documentation and record-keeping.
iv. Communications.
• A Personal Development Plan.
• Evidence of joining Physio First

HCPC submission on Sanction

71. The Panel are directed to the HCPC Sanctions Policy March 2019, which sets out the relevant principles and factors to be taken into consideration. The Panel was reminded of the general approach to be taken to the issue of the appropriate and proportionate sanction to impose.

72. The HCPC did not direct the Panel to any particular level of sanction, however, the aggravating and mitigating elements of this case would assist and inform the Panel on the appropriate level of sanction to impose. The HCPC set out what in its view those elements were.

73. The HCPC took the Panel to relevant sections of the decision in the case of Adil v General Medical Council [2023] EWCA Civ 1261, where the Court of Appeal dealt with the effect of time spent, with practice restricted by an interim order, had on the final sanction:

“100. It may also be appropriate to take into account periods of interim suspension insofar as the sanction is intended to mark the gravity of the offence so as to send a message to the profession and to the public. If, for example, there were a contrite practitioner with full insight into misconduct which was sufficiently serious to warrant suspension, the necessary message could be sent to the profession and the public by the tribunal making clear that the gravity of the misconduct needed to be marked by a suspension of a stated length; but that in fairness to the practitioner, he should be allowed to return to practice immediately, or within a lesser period, by reason of his already having been deprived of the ability to do so in the period prior to the imposition of the sanction. Messages depend upon the terms in which they are sent, and tribunals ought to be able to frame their decisions in language which enables the appropriate message to be sent whilst ensuring fairness to the practitioner in question.

101. However where, or insofar as, the suspension is required to return the practitioner to fitness to practise, and/or to mitigate the risk of further commission of the misconduct, and/or for the continued protection of the public from harm, periods of interim suspension may have little or no relevance. In those cases the length of suspension is tailored to what is necessary for the removal of impairment, removal of risk of repetition, and maintaining the safety of the public. Time already spent suspended from practice has no direct bearing on the length of a suspension which is necessary to achieve these objectives. To give credit for time away from practice under interim suspension orders in such cases would be likely to undermine those objectives in protecting the public from harm, promoting professional standards in the profession and promoting and maintaining trust in the profession.”

74. Adil did not deal with the situation in the present case, as the relevant period of suspension was the substantive period of suspension which has already been ‘served’ by the Registrant. However, the Panel may wish to consider whether the general principle is, mutatis mutandis, applicable on the basis that the public interest component of a sanction has already been dealt with by virtue of the suspension already served.

75. In its oral submissions to the Panel the HCPC restated that this case focused specifically on the public interest element of the Panel’s decision and in this instance the interim order was applicable because of public protection concerns. The HCPC considered the approach that was being put forward by the Registrant, of taking an arithmetical approach and removing the same period of suspension served, namely eight months, from the sanction to be imposed, was not appropriate in this regulatory arena. The correct approach was to consider all factors when determining the appropriate and proportionate restriction.

76. The HCPC considered the further training information placed before the Panel and highlighted the late stage at which this had been undertaken. The HCPC considered the reflection on that further training had some limitations. The HCPC highlighted that there was limited evidence of that further training had been put into practice due to its relatively recent completion.

77. The HCPC focused on the extent and limitation on the consent course that the Registrant had undertaken and emphasised that consent extended to obtaining informed consent to the nature of the treatment but additionally to the treatment options. The Panel was reminded of the Expert Witness evidence that, in relation to the treatment of a TFL, this could be undertaken lying on one side or supine, lying on the back, and access from the side gave the option of access by pulling underwear up or down.

Registrant’s submissions on Sanction

78. The findings made by the Panel do not concern the issue of lack of competence. The Panel has concluded that the Registrant is currently impaired following a finding of misconduct. The sanction can only be imposed in relation to the facts found proved and the Panel was invited to consider again the ambit of that Allegation.

79. There has been a significant period of time from the date of the last hearing and the date of the sanction hearing. In such circumstances, the Registrant is entitled to provide the Panel with additional evidence prior to determining the sanction and this has, in fairness and agreement of the HCPC, been placed before it today.

80. On 11 November 2024, the HCPC made an application for an interim order pending the sanction hearing and a copy of this is before this Panel today as it is relevant to your considerations. The reasons for the Application for an interim order were set out in paragraph 9 of the determination:

‘Mr Micklewright applied for an Interim Conditions of Practice Order for four months, on the grounds that it was necessary in light of the October 2024 panel’s findings of impairment, in particular that there was a risk of the Registrant repeating his conduct. He submitted that the Panel should conduct its risk assessment as of today and indicated that the application was being made because there had been a finding that the Registrant’s fitness to practise is impaired. Mr Micklewright accepted that there had been some delay in the HCPC’s application, but he submitted that the delay should be considered in the context of this case and that delay per se did not negate either the test to be applied or the risk involved. He submitted that even undisputed delay was not a good reason alone, or without more, not to make an Order.’

81. When considering whether an Interim Order is necessary for the protection of the public, the Panel stated, at paragraph 10:

‘The Panel is clear that it must make up its own mind on whether the Registrant poses a real risk to service users, colleagues or members of the public if an Interim Order is not made. The Panel must consider the seriousness of the concerns including any harm caused or which could potentially be caused and the risk of repetition of the concerns.’

82. At paragraph 32, the Panel concluded:

‘The Panel considers that while the Registrant does not appear as yet to have fully remedied his misconduct, it is not satisfied that he poses a real risk to the public which makes an Interim Order necessary.’

83. At paragraph 34, the Panel stated:

‘In these circumstances, the Panel has concluded that an Interim Order is not necessary to protect the public because it does not consider there is a ‘real’ risk to patients.’

84. That panel went on to determine whether an Interim Order should be made in the public interest and the Panel determined that an Interim Order is not otherwise in the public interest.

85. This Panel must give due consideration to all the information before it including in fairness the most recent evidence of steps taken towards remediation.

86. The Registrant’s Representative accepted that whilst mitigating factors do not excuse or justify poor conduct or competence then he went on to identify relevant mitigating factors which it was considered should be taken into consideration by the Panel.

87. It was submitted that the Panel was also required to have regard to the period of suspension served by the Registrant following the imposition of a sanction by the previous Panel.

88. On 19 May 2023, that substantive hearing Panel imposed a twelve-month suspension order. The suspension order was brought to an end on 15 January 2024. The Registrant has served a period of suspension of just under eight months for the same acts and omissions.

89. The Registrant’s Representative took the Panel to the decision in Adil v General Medical Council [2023] EWCA Civ 1261, in which the Court of Appeal referenced the impact of an interim order and how that period of suspension should be considered during the consideration of the appropriate and proportionate sanction to impose. The Registrant’s Representative took the Panel to paragraphs 97, 99 and 100 of that judgment. Paragraph 100 is set out above.

97. There is no logic in treating the fact that interim orders are imposed before determination of the facts as something which affects the weight to be attached to them once the facts have been found. At
that latter stage what matters is that the interim suspension has already occurred, with the effect that the practitioner has been excluded from the ability to practise for its duration. It is an independent question whether and to what extent the fact that the practitioner has already been deprived of the ability to practice for a period of time should be taken into account when a further period of suspension is being considered. Nor are GMC tribunals afforded any real guidance by the suggestion that they should not attach “undue weight” to interim suspension orders.”

99: Insofar as the purpose of the sanction is to punish the practitioner or deter him from repetition of the conduct in question, it is a matter of common fairness that account should be taken of the punitive and deterrent effect of having already been deprived of the ability to practice for a period under temporary suspension orders. To that extent there is a direct analogy with sentencing for criminal conduct in which time spent in prison on remand is automatically credited against the sentence imposed for the offence.”

90. As a result of the imposition of an interim suspension order following that substantive decision, the Registrant served a period of suspension. The only just sanction that can be imposed by the Panel is a Caution. This would be appropriate and proportionate in all the circumstances.

91. The previous panel imposed a sanction arising from the same allegations that have been considered by this Panel and the allegations as currently formulated could not justify a further period of suspension. The Panel will note that the allegations have been refined following the successful appeal in the High Court of Justice.

92. The Panel should take into account the fact that the Registrant has already served a sanction of suspension for a period of eight months. The Registrant’s Representative submitted the Registrant must not be punished twice for the same act or omission. The current allegations and the findings made by the Panel could not justify a period of suspension. The fact that the Registrant has served a period of suspension is highly relevant when determining the appropriate and proportionate sanction.

93. The Panel is not entitled to impose a conditions of practice order in such circumstances as these as this would lead to the Registrant being punished twice for the same act or omission. Further such a sanction would be inappropriate and disproportionate.

94. The Registrant’s Representative considered that a Caution Order was the fair, appropriate and proportionate sanction at this time.

Legal Assessor’s advice

95. The Panel having received detailed submissions from both partes on the application of the case of Adil, she provided guidance on the approach to be taken in the application of that case in these particular circumstances. The Legal Assessor reminded the Panel that Adil was a case in which a doctor had made comments on social media which would have undermined the public confidence in the profession. Dr Adil had been the subject of an interim order prior to a substantive hearing and there were no issues of competence or conduct involved in the case.

96. General principles were expressed in the judgment in Adil as to how to treat a period of interim suspension at the sanction stage of a substantive hearing and the HCPTS sanctions guidance provides some assistance on this at paragraphs 23 and 24 where it states:

In deciding whether a substantive sanction is proportionate, panels may wish to take into account any interim order and its effect on the registrant.

Panels should however be mindful that the criteria panel’s use when considering whether to impose a substantive sanction on a registrant’s practice is entirely different from the test for considering whether to impose an interim order, and that a panel making an interim order make no findings of fact.

97. In view of this guidance, and the dictum in the case of Adil, the Legal Assessor advised that the Panel that it should consider and take into account the following:

• The Registrant has, in this case been the subject of an interim period of suspension based upon a full consideration of all relevant factors and circumstances. In other words, at the sanction stage it was not necessary to factor in any previous period of interim suspension. The interim order had been imposed after a finding of misconduct and current impairment of the Registrant’s fitness to practise
• At a date in October 2024 this Panel had considered that there remained current impairment of the Registrant’s fitness to practise, a conclusion which reflected the previous substantive panel’s decision in May 2023. • The decision of the committee on 11 November 2024 was a factor to take into account by this Panel. The Panel however was not bound by that decision and was reminded that the decision of that Panel was based on an assessment of whether there was a real risk of harm as opposed to this Panel’s consideration of a potential risk of harm.
• Sanctions are not punishments, but there to protect the public and to be in the wider public interest and so it should not be considered that the Registrant has previously been the subject of a punishment, but subject to a measure to ensure continued public protection.
• The period of time during which the Registrant was interimly suspended reflects the delay in his appeal being heard and is not a reflection of the merit or appropriateness of the length of suspension.
• When taking into account that there has been a period of suspension it will only be one factor for the Panel to consider. The Panel will, on the issue of proportionality, take into account all surrounding circumstances and factors. It will consider what measures have been taken, and what other measures may or may not remain to be appropriate, to address any outstanding issues of impairment of fitness to practise.
• The Panel was advised to identify within its reasons the degree to which it has taken into consideration the suspension and how that has impacted on the Registrant. The Panel will identify what weight, if any, it gives to this period of previous suspension, and if necessary, identify the reasons why, and to what degree it has had a determinative impact on its decision.

98. The Panel was reminded that sanctions are not meant to be punitive although they may have a punitive impact on the Registrant. Panels should only take the minimum action necessary to ensure the public is protected. This means considering the least restrictive sanction available to them first and only moving on to a more restrictive sanction if it is necessary to protect the public.

Panel Decision

99. The Panel was aware that at this stage in proceedings it was able to take into account all information placed before it. The Panel took into account the detailed oral and written submissions it had received from both parties and accepted the Legal Assessor’s advice. The Panel reminded itself of the documentation that had been placed before the initial substantive hearing Panel and all documentation supplied at the remitted hearing in October and this resumed hearing.

100. The Panel had recourse to the Sanctions Policy and in particular the factors that were set out as guiding them to the decision on the appropriate and proportionate sanction to impose. The Panel noted the advice it had that the Sanctions Policy was guidance only and it was for the Panel to identify where and give reasons why it had departed from this guidance if it did so.

101. The Panel therefore started by considering what aggravating and mitigating factors there were in this case. In this regard the Panel had been assisted by both parties highlighting those which they considered relevant. The mitigating factors identified by the Panel were:

• The Panel had evidence that the Registrant had undertaken further action in response to this Panel’s earlier findings of impairment, including providing reflections into his general practice and the changes he has made to that.
• The Panel has evidence of the Registrant’s further insight flowing from his attendance at courses on consent, professional boundaries, communication and documentation and record keeping.
• The Registrant has demonstrated an increased level of insight into his previous practice fallings
• Previous written and oral demonstration of remorse had reflected a personal perspective on how the incident had impacted on him. The most recent examples of remorse were expressed in terms of being service user focused with a demonstration of having acquired a fuller understanding of how his actions have an impact on service users.
• The Registrant apologised to the complainant at the earliest opportunity.
• The Registrant has had a long career and until these events an unblemished record.
• The Registrant has continued seeing female clients following the
complaint without any concerns being raised and the Panel noted the number and nature of the testimonials received from female service users.
• There has not been a report of any repetition of similar behaviour.
• The risk of repetition has, with increased insight, training and changes to practice been reduced to low.
• The Registrant has taken steps to join Physio First and stated that he will take the opportunity of engaging with fellow professionals more regularly with a view to establishing a wider understanding of professional issues.
• The Registrant has taken the step of engaging in peer professional supervision.
• The Registrant has produced a Personal Development Plan.
• There were early admissions.

102. The Panel identified the following aggravating factors:

• The service user involved was vulnerable being within a confined space in a state of semi undress.
• The service user expressed the harm resulting from this incident. It has made her anxious and has affected her view of the profession.
• A lack of insight into his former behaviour and lack of insight into the ways in which his practice required to be altered.
• The Registrant had failed, until recently, to understand the nature of consent and that it is dynamic consent that is required rather than implied consent.
• Until recently the remorse demonstrated had been one of self-pity.
• There had been over the period of this HCPC process little or no previous attempt at remediation.

103. As set out above, training, insight and reflection had recently been undertaken. The Panel was reassured from this that there had been a change in approach and that steps were being taken to change his practice. As the Registrant has not been practising in the professional role of a physiotherapist those steps towards change cannot be fully demonstrated in that capacity. The Panel however noted that due to his continued interaction with clients in a similar form of physical engagement he was able to reference how those changes had been noted and appreciated by his service users.

104. In assessing which level of restriction to impose the Panel noted that having made a finding of misconduct it had the full range of sanctions available to it. The Panel considered that taking no action was not an option as it did not reflect the seriousness of the complaints raised and would not address the public interest. The Registrant’s former failings warranted some marque of censure. The Panel determined that mediation would not be appropriate.

105. The Panel considered carefully the terms of the Sanction Policy on when a Caution Order is appropriate. At paragraphs 101 and 102 of the policy it states:

A caution order is likely to be an appropriate sanction in cases where:

• The issue is isolated, limited or relatively minor in nature;
• there is a low risk of repetition;
• that registrant has shown good insight;
• the registrant has undertaken appropriate remediation.

A caution order should be considered in cases where the nature of the allegations mean that meaningful practice restrictions cannot be imposed, but a suspension of practice order would be disproportionate. In these cases, panels should provide a clear explanation of why it has chosen a non-restrictive sanction. Even though the panel may have found there to be a risk of repetition (albeit it low).

106. The evidence is that this was an isolated incident and limited to this interaction with this service user. However, it could not be considered as relatively minor in relation to the impact the Registrant’s actions had on this service user.

107. The Registrant has provided sufficient information for the Panel to feel some level of confidence that the risk of repetition is low. In this regard the Panel noted that there had only ever been one complaint and there is a quantity of evidence from other service users that they had no concerns of a similar nature. The Panel noted that going forward the Registrant will not be professionally isolated as he has now joined Physio First as a professional organisation and assured the Panel of links with fellow physiotherapists. He now also had all the requisite skills and tools to put into practice appropriate measures to ensure nothing similar occurs in the future.

108. Whilst the Registrant has not yet been able to demonstrate how his insight into his former failings has been put into practice, the Panel considered that there had been sufficient demonstration of an intention to adopt a changed approach following the Registrant’s recently acquired insight into this event.

109. In relation to the issue of remediation, the steps taken by the Registrant appear to have addressed the concerns in relation to current impairment which were expressed by this Panel in its determination in October 2024. This Panel was unable to identify what more the Registrant could do to demonstrate remediation.

110. The Panel went on to consider whether it had established sufficient grounds for adoption of a caution order by considering a restrictive practice level of sanction. In this regard the Panel took into account the level of remediation and insight demonstrated, which indicated that a further level of restriction may not be necessary or appropriate.

111. In relation to the imposition of a conditions of practice order, the Panel noted that it would be impractical given that the Registrant has been practising in a sole practitioner position and is still in a similar way working individually with service users without any cause for concern. Any conditions imposed should be focused on addressing a potential repetition of the conduct found and would therefore, in this case, be severely restrictive requiring full continual oversight, which the level of remediation may no longer warrant.

112. The Panel noted that within his reflective piece of writing the Registrant has identified the possibility of taking an associate position within an organisation. This would not provide continual oversight but would provide peer review of treatment and treatment options.

113. The Panel agreed that this option of conditions of practice was neither appropriate nor proportionate in the current circumstances. Further, the imposition of conditions would impact on the Registrant financially and professionally.

114. The Panel, with a view to assessing proportionality considered the further option of suspension but deemed that this would be unnecessarily draconian in view of the steps taken towards remediation.

115. The Panel therefore came to the view that a caution order was the appropriate and proportionate level of restriction and considered what length of time that caution order should be imposed for. In this regard the Panel took into account the guidance set out in paragraph 103 of the Sanctions Policy:

The Panel can impose a caution order for any period between one and five-years. As discussed earlier, the panel should take the minimum actions required to protect the public and public confidence in the profession, so should begin by considering whether or not a cautions order pf one year would be sufficient to achieve this. It should only consider imposing the caution order for a longer period where one year is insufficient.

116. The Panel noted the impact that this incident had upon the service user. The Panel also noted that the Registrant had only recently understood and adopted the need for revision of his professional insight and actions. A period of one year in such circumstances would not, in the Panel’s view be sufficient to ensure public confidence in the regulatory process. A longer period would provide the right message to the Registrant and the profession that his former actions were unacceptable and that there was a need to demonstrate further total adherence to the standards expected of a practitioner in his profession. The Panel came, after careful consideration to the conclusion that a period of three years was warranted in this instance as a marque for previous professional misconduct, albeit remediated. The Panel considered that given that level of remediation it would be inappropriate to impose a longer period for the caution order.

117. The Panel considered the implications of the Adil case. The Panel accepted that the interim order imposed on the Registrant after a substantive suspension order was required in the interest of public protection. The Panel noted and accepted the distinction between an interim order imposed prior to findings of fact to the imposition of one in this instance. The Panel considered that the application of the Adil case in relation to the public interest element of its current decision had been addressed above in informing the Panel’s decision on imposing the caution order for a period of three years rather than a longer period of time which could have been warranted given the seriousness of the Registrant’s former misconduct. The Panel considered that in all the circumstances of this case, where there had been findings of misconduct and current impairment in 2023 and 2024 it would be inappropriate to make a further reduction for the length of the caution order to reflect the time spent subject to the interim suspension order where there had been such strong public protection issues involved.

Order

ORDER: The Registrar is directed to impose a 3-year Caution Order on the Registrant

Notes

An appeal may be made to the High Court in England and Wales within 28 days of this decision.

Hearing History

History of Hearings for Robert G Hawkins

Date Panel Hearing type Outcomes / Status
04/02/2025 Conduct and Competence Committee Final Hearing Caution
16/10/2024 Conduct and Competence Committee Final Hearing Adjourned part heard
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