Philip Milner

Preliminary Matters

Service

1. The Panel was provided with a Service Bundle of documents from which it noted that the Notice of the Hearing dated 13 December 2024 (“the Notice”) had been served on the Registrant by email. The Notice set out the date, time and place (virtual) for the hearing. The HCPC also provided a certificate showing the Registrant’s registered status and his registered email address. A copy email addressed to the Registrant was provided to demonstrate the date the Notice was sent. The Panel was satisfied that the Registrant had been properly served with Notice of the Hearing in accordance with the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (as amended) (“the Rules”).

Proceeding in Absence

2. The Registrant did not attend the Hearing and was not represented. Mr Collins applied to the Panel to proceed in the absence of the Registrant. He drew the Panel’s attention to the Notice and submitted that it set out all the necessary information for the Registrant to take part in the Hearing. He drew the Panel’s attention to the Registrant’s email response dated 19 March 2025, in which the Registrant stated that he would not be in attendance or represented. He submitted that the Registrant had consistently stated previously that he would not attend the hearing. Mr Collins submitted that the Panel had the Registrant’s written responses to the charges in the hearing bundle and there had been no request for an adjournment. He submitted that there was no good reason to adjourn and there was a need for expeditious dealing with the regulatory proceedings.

3. The Legal Assessor reminded the Panel of Rule 11 and referred the Panel to the HCPTS’s Practice Note: Proceeding in the Absence of the Registrant. He referred the Panel to the cases of R v Jones [2002] UKHL 5 and GMC v Adeogba [2016] EWCA Civ 162 and the guidance of the courts.

4. The Panel carefully considered Mr Collins application. It accepted the advice of the Legal Assessor and considered the Practice Note. The Panel noted the email dated 19 March 2025 from the Registrant and his previous correspondence. Although the Registrant had said that he had a conflicting personal matter, the Registrant also made it clear that he would not be attending because he no longer had any desire to be a psychologist. The Registrant stated that he had no intention to try to resume practice. The Panel noted that this had consistently been the Registrant’s position over time.

5. The Panel took into account that the matters in the Allegation was now of some age. The HCPC had arranged for the attendance of its witness, for whom special measures had been allowed. The Registrant, although he had a good reason for not attending the hearing today, he had not asked for an adjournment, nor had he indicated that he would attend on subsequent days that the hearing is listed. He had decided to not attend the hearing, at least for the remainder of the dates listed this week, despite being aware of them in advance.

6. The Panel took into account that there is a public interest in regulatory proceedings being concluded. The Panel acknowledged that, if proceeding in his absence, it will not hear from the Registrant, and this will cause him some prejudice. However, it balanced this with the fact that it does have the Registrant’s response to the factual Allegation, which it would consider. The Panel noted that the factual actions alleged do not appear to be in dispute and the Registrant has stated that he has no intention of resuming practice. The Panel concluded that, even if it were to adjourn the hearing today, it is very unlikely that the Registrant will attend any future hearing listed.

7. The Panel, having weighed all the factors, decided that it was fair and appropriate to proceed in the Registrant’s absence.

Application to Amend the Allegation

8. Mr Collins applied for an amendment to the Allegation. He pointed out to the Panel that, in the original Notice of Hearing, the Allegation alleged that the Registrant’s health condition amounted to misconduct and that his fitness to practise is impaired by reason of his health. Mr Collins submitted that this was clearly incorrect and the allegation that the health condition amounted to misconduct in particular 4 should be removed (by deleting the words “and/or 3” from particular 4).

9. The Legal Assessor advised the Panel that, although the Rules do not make express provision for the Panel to amend the Allegation, the courts had recognised, in PSA v HPC and Doree [2017] EWCA [2017] EWCA Civ 319, that panels have the power to amend an allegation. He advised that the Panel should consider whether the amendment could be made fairly and without prejudice.

10. The Panel considered that particular 4 of the original Allegation was clearly incorrect, in that “health” and “misconduct” are distinct statutory grounds of impairment under Article 22 of the Health Professions Order 2001 (as amended) (“the Order”). It was therefore unnecessary to allege a health ground as misconduct also. The Panel took into account that the Registrant had been put on notice of the request to amend the Allegation in the Case Summary served on the Registrant with the papers.

11. The Panel considered that no prejudice to the Registrant arose from making the amendment and it was fair to make it. The Panel allowed the amendment of the Allegation, by deleting the words “and 3” from particular 4 and inserting the words "and/or” after “Particulars 1” and before “2”.

Hearing in Public or Private Session

12. Mr Collins submitted to the Panel that, although he did not intend to go into detail in the hearing relating to the identity of Service User A (“SU A”), or of any treatment of the Registrant, the matters in the Allegation did touch on the private lives of the Registrant and SU A. He highlighted that the Panel needed to act proportionately and that ‘special measures’ had been agreed for SU A. He submitted that it is possible for the Panel to move into private session where necessary, as the hearing proceeds.

13. The Legal Assessor advised the Panel that Rule 10(1)(a) sets out that hearings are conducted in public, but also that the Panel may sit wholly or partly in private, where the interests of justice or protecting the private lives of the Registrant or the complainant (or certain others) so requires. He referred the Panel to the HCPTS’ Practice Note: Conducting Hearings in Private. He advised the Panel that it must weigh the public interest in an open hearing with private life interests as per the Rule and decide how they are to be balanced appropriately.

14. The Panel noted that the case centrally concerns therapy given to SU A. The Panel also expects to hear live evidence from SU A, who may make reference to such matters. In addition, the Allegation also include a health allegation relating to the Registrant himself. The Panel concluded that the case is inextricably intertwined with matters relating to the health of both the complainant in the matter and the Registrant. The balance of interests favoured protecting the private life interests of both those persons and the Panel did not believe that this could be effectively achieved by moving into and out of private session.

15. The Panel decided to sit wholly in private for the hearing.

Application to rely on Hearsay Evidence

16. Mr Collins applied to the Panel to admit the evidence of Ms JC in the form of her witness statement and exhibited documents, without calling her to give live evidence. He submitted that the evidence of Ms JC was as a witness producing documents, having no direct involvement in the underlying facts of the case. He submitted that her evidence was not ‘sole or decisive’ evidence and there was a good reason for her not to attend on the basis the Panel had indicated it had no particular questions for her.

17. The Legal Assessor referred the Panel to the case of Thorneycroft v NMC [2014] EWHC 1565 (Admin) and the factors which the court set out that a Panel should consider. He also referred to NMC v El Karout [2019] EWHC 28 (Admin).

18. The Panel took into account that Ms JC‘s evidence amounted to her receiving and exhibiting the complaint documentation received by BUPA from SU A concerning the Registrant, and the BUPA terms and conditions. The Panel noted that it would in any event hear from SU A regarding her complaint and therefore did not need to hear from Ms JC on the matter. Ms JC’s evidence was not the ‘sole and decisive’ evidence. Further, from the Registrant’s responses, her evidence did not appear to be in dispute. The Panel decided to admit Ms JC’s evidence as her written statement and exhibits.

Background

19. The Registrant is a Practitioner Psychologist registered with the HCPC. From April 2018 until December 2020, the Registrant received work through BUPA. In December 2020, the HCPC received a referral in relation to the Registrant, concerning his alleged treatment of SU A.

20. It was alleged that the Registrant had failed to maintain appropriate boundaries in that he had provided SU A with a formal referral letter and at the same time provided her with an encrypted letter in which he included certain inappropriate references. It was also alleged that the Registrant had offered to buy a painting from SU A and given her details of his home address. Further, it was alleged that the Registrant had exchanged a number of inappropriate messages with SU A.

21. Further, the HCPC alleged that the Registrant’s conduct had been sexually motivated in relation to all the above conduct.

Evidence

22. The HCPC relied on the evidence of SU A, who attended the hearing and gave evidence to the Panel. The HCPC also relied on the witness evidence of Ms JC, Clinical Quality Assurance Manager for BUPA UK Insurance (“BUPA”) together with the exhibited documents.

23. SU A stated that she had received treatment sessions from the Registrant from late 2019 or early 2020 until late 2020. These had been at the Registrant’s office, at her home, or on one occasion via video link. The sessions were 1 hour in length. At a point, the Registrant had informed SU A that he was retiring, but stated that he would still be able to speak to her after his retirement. SU A told the Panel she thought this was odd, due to the Registrant’s age.

24. SU A told the Panel that she had received WhatsApp messages outside of therapy. Over time, she stated, these had become ‘chattier’. Her partner had been concerned. On 29 October 2020, SU A received a referral letter for a new therapist from the Registrant. He also sent her a second password-protected letter, and a password via WhatsApp. SU A stated that her reaction to reading the second letter was to describe the Registrant as “a weirdo” to her partner. Her health suffered as a result of receiving the letter. SU A also exhibited some of the WhatsApp messages that she received from the Registrant in around October 2020.

25. Ms JC stated in her witness statement that on 12 November 2020, she had been forwarded a complaint to BUPA from SU A about the Registrant. She exhibited a summary of SU A’s treatment. She contacted SU A to follow up the complaint, who gave her consent for a referral to the HCPC.

26. The Registrant had previously corresponded with the HCPC, responding to the complaint. The Panel took into account the correspondence from the Registrant in its decision on the facts. In October 2021, the Registrant had emailed the HCPC, stating that he was not contesting any of the Particulars (as they then were).

27. In December 2021, the Registrant emailed again to state that he had no desire or capacity to continue practising in any form. The Registrant stated that he should have ended the therapeutic relationship in March 2020. He said, “Initially I did not find her physically attractive at all, and not until October 2020 romantic thoughts did not enter my head”. He admitted that he had not taken appropriate action to close the case or to discuss feelings “of being strongly pulled in”, in supervision. The Registrant accepted being at fault for the situation and did not blame SU A.

28. Mr Collins submitted that there was little other conclusion to be reached on the evidence that the Registrant’s words had been sexually-motivated. He reminded the Panel that the Registrant’s feelings had been expressed in an encrypted message to her. It was clear that the Registrant had wanted SU A to know of his feelings for her, in the hope that they would be reciprocated.

29. The Legal Assessor advised the Panel that the burden of proving the facts lay on the HCPC, to prove the facts in the Allegation on the balance of probabilities. The Panel should reach a decision on each of the sub-paragraphs of the factual particulars but should also ‘step back’ and consider each Particular in the round. He referred the Panel to Dutta v GMC [2020] EWHC 1974 and the court’s guidance on the assessment of evidence. He advised the Panel that it was entitled to draw reasonable inferences on the evidence which it accepted.

30. The Legal Assessor referred the Panel to the cases of Basson v GMC [2018] EWHC 505 (Admin) on the meaning of ‘sexual motivation’ and Haris v GMC [2021] EWCA Civ 763.

Decision on Facts

31. The Panel carefully considered all the evidence and submissions. It heard and accepted the advice of the Legal Assessor. Although the Panel considered the Registrant’s correspondence, it also took into account that there had been no formal admissions from the Registrant in the hearing and, therefore, the burden of proving the facts lay on the HCPC.

Particular 1

32. The Panel bore in mind that the stem of particular 1 alleged a failure to maintain appropriate boundaries on the part of the Registrant. It took into account that the HCPC’s Standards of Conduct Performance and Ethics states at paragraph 1.7:

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

And the Standards of Proficiency, at paragraph 2.13 state that the Registrant must:

“2.13 recognise appropriate boundaries and understand the dynamics of power relationships”

33. The Panel was provided with a copy of the letter which SU A alleged she had received from the Registrant on 29 October 2020. The Panel noted that the Registrant in his written responses did not dispute having sent the letter to SU A.

Particular 1(a)

34. The Panel was able to identify in the exhibited letter that each of the statements alleged in the sub-particulars (i) to (iv) inclusive appeared within the letter.

Sub-particular (i)
35. In relation to sub-particular (i) the Registrant had clearly stated on more than one occasion that he had developed feelings for SU A. The Panel was in no doubt that the Registrant’s declaration to SU A had been unprofessional and had not respected the necessary professional boundaries.

Sub-particular (ii)

36. There were numerous references from the Registrant to his own feelings at the time and also personal information, which, in the Panel’s view, the Registrant should not have disclosed to SU A. Likewise, therefore, the Panel was clear that this had been a failure to maintain appropriate professional boundaries.

Sub-particular (iii)

37. In the letter, the Registrant stated in terms: “I'd tried to hurry up and complete the work, so I could close your case and not feel so conflicted, which was making me really anxious (and on one occasion, I was angry with you, which is not like me).” The Panel considered that, regardless of whether it had been appropriate to bring the therapy quickly to a close, it was not appropriate for the Registrant to have informed SU A of this and the Registrant was again referring to his own feelings, which was a failure to maintain appropriate professional boundaries.

Sub-particular (iv)

38. The statement: “I feel lonely apart from when I’m on my own, but with you, I didn’t feel lonely” was clearly present in the letter. The Panel was clear that the Registrant disclosing his own feelings to SU A amounted to a failure to maintain appropriate professional boundaries.

39. The Panel was satisfied that the Registrant had failed to maintain appropriate professional boundaries in relation to each of 1(a)(i) to (iv) inclusive. It found particular 1(a) proved.

Particular 1(b)

40. In the letter the Registrant did set out an offer to buy a painting and gave details of his home address for posting the painting. The Panel concluded that this also had breached appropriate professional boundaries.

41. The Panel was provided with exhibited copies of SU A’s WhatsApp message correspondence with the Registrant. The Registrant’s name was clearly set out as the corresponding party. The Panel was able to identify that each of the statements set out in Schedule A was present in the message exchanges from the Registrant.

42. The Panel found particular 1(b) proved.

Particular 1(c)

43. The Panel considered each of the statements in Schedule A. It decided that in each case the statement had been inappropriate for the Registrant to have made, in the circumstances that the Registrant had held a position as SU A’s psychologist. In the case of the statements in paragraphs 1 to 4, the Panel considered that these were also of a personal nature, because the Registrant had referred directly to personal information about his own life. In relation to paragraph 5, this had been of a personal nature, in that the exchange concerned a subject which should not have occurred in a professional context.

44. The Panel found particular 1(c) proved, in respect of each of the statements in Schedule A.

Particular 2

45. In respect of particular 2, the HCPC alleged that the same actions, which the Panel had found proved in relation to particulars 1(a), 1(b) and 1(c) had also been sexually motivated conduct on the part of the Registrant.

46. The Panel accepted, relying on the authority of Basson, that an action is sexually motivated if it is done either for sexual gratification or in pursuit of a future sexual relationship. It also accepted the court’s judgement in Basson that a decision as to a person’s state of mind was a matter of inference to be drawn from all the evidence. It bore in mind the judgement in Haris that the acts in question may be overtly and obviously sexual, and there may be an irresistible inference that an action was sexually motivated.

47. The Panel considered each of the matters in particulars 1(a), 1(b) and 1(c). It took into account that the Registrant had been aware of SU A’s vulnerability as a result of the therapeutic relationship. He had recognised the need to terminate the professional relationship, in late 2020, as a result of his developing feelings for SU A.

48. Despite this, however, the Registrant had contacted SU A with an encrypted letter, after the end of the therapeutic relationship. In the letter he had made disclosures about his feelings for her and revealed his own vulnerabilities to her. He had provided his home address to SU A.

49. The Registrant’s WhatsApp messages had raised issues of previous inappropriate photographs sent to him by previous clients. He had suggested that there was no longer a limit on what he could be sent after he retired from practice. He mentioned in the WhatsApp messages his continuation of contact with a previous client and expressed a willingness to keep in contact with SU A.

50. The Panel considered that the Registrant’s actions, taken on their own, did not lead to an irresistible inference that the Registrant had received sexual gratification from the messages. However, the Panel was of the view that the building picture of the actions of the Registrant did infer that he was seeking to maintain a personal contact with SU A, a person for whom he had admitted that he had feelings. The Panel concluded that, taking the letter and the WhatsApp messages together, the Registrant’s actions had been building towards a relationship with SU A.

51. Further, the Panel considered that the inappropriate nature of the disclosed information and the expression of feelings led it to infer that these excluded any innocent explanation and that there had been an intent to pursue a sexual relationship. The Panel concluded that the Registrant’s actions had been undertaken in pursuit of the Registrant having a future sexual relationship with SU A. The Panel concluded that the Registrant’s actions in particulars 1(a), 1(b) and 1(c) had been sexually motivated.

52. The Panel found particular 2 proved in respect of particulars 1(a), 1(b) and 1(c).

Statutory Ground

53. The Panel having found facts proved in the Allegation went on to consider whether the statutory ground, of misconduct, was also made out.

54. At this stage of the hearing, the HCPC had no further evidence to rely on. Mr Collins made submissions on behalf of the HCPC. The Panel bore in mind the correspondence received from the Registrant, contained in the hearing bundle and his response to the Notice of Hearing.

55. Mr Collins reminded the Panel of the definition of misconduct, in Roylance v GMC (no.2) [1991] AC 311 HL. He referred the Panel to relevant standards of the HCPC’s Standards of Conduct, Performance and Ethics (2016 edition) (“SoC”). Mr Collins submitted that there had been clear breaches of the standards in circumstances where the Registrant had been aware of SU A’s vulnerabilities.

56. The Panel noted from the correspondence that the Registrant had indicated his views about the allegations and himself at the relevant time. He was sad about what happened with SU A and understood it must have been “incredibly traumatic” for her. The Registrant suggested that his conduct had arisen due to how unwell he was becoming in February 2020.

57. The Legal Assessor advised the Panel that misconduct is a statutory ground in Article 22 of the Order. In the case of Roylance, Lord Clyde had said that ‘misconduct’ was a “word of general effect, involving some act or omission which falls short of what would be proper in the circumstances”. The Legal Assessor also advised that, as a statutory ground, misconduct is linked to the profession and had to be ‘serious professional misconduct’.

58. The Legal Assessor advised the Panel that the question whether the misconduct found proved amounted to serious professional misconduct was a matter for the Panel’s own judgement. The courts had provided clarification, stating that ‘serious’ is an ordinary English word, not a term of art. The descriptor ‘deplorable’ had been occasionally applied. However, the courts had also indicated it is a matter for the Panel’s judgement in every case. In R (Remedy UK Ltd) v GMC [2010] EWHC 1245 (Admin) the court had held that misconduct may involve sufficiently serious misconduct in the exercise of professional practice, and it may also embrace conduct of a morally culpable or otherwise disgraceful kind, which may bring disgrace on the profession.

Decision on Statutory Ground

59. The Panel considered again the evidence and its findings of fact, together with the submissions. The Panel heard and accepted the advice of the Legal Assessor.

60. The Panel bore in mind that there is no burden or standard of proof at this stage, but the decision on misconduct is a matter of its own judgement. The Panel considered the relevant professional standards which had applied at the time, taken from the SoC and the Standards of Proficiency for Practitioner Psychologists (pre-2023) (“SoP”) and considered whether, in its judgement, the Registrant had fallen short of those standards.

61. The Panel considered that the following standards were relevant. From the SoC:

“1.1 You must treat service users and carers as individuals, respecting their privacy and dignity”
“1.3 You must encourage and help service users, where appropriate, to maintain their own health and well-being, and support them so they can make informed decisions”
“1.7 You must keep your relationships with service users and carers professional”
“2.2 You must listen to service users and carers and take account of their needs and wishes”
“2.7 You must use all forms of communication appropriately and responsibly, including social media and networking websites”
“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”
“9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession”.

62. The Panel also considered that, according to its findings, the misconduct had breached the requirements of the SoP, as follows to:

“2.1 Maintain high standards of personal and professional conduct”
“2.2 Promote and protect the service user’s interests at all times”
“2.11 Recognise the power imbalance that comes with being a healthcare professional, and ensure they do not abuse this for personal gain”
“2.13 recognise appropriate boundaries and understand the dynamics of power relationships”
“3.5 manage the physical, psychological and emotional impact of their practice”
“7.9 select the appropriate means for communicating feedback to service users”.

63. The Panel considered that the Registrant had failed to respect SU A’s dignity, by engaging in a breach of professional boundaries with her. (contrary to SoC 1.1).

64. The Registrant had acted entirely contrary to the obligation to help SU A maintain good health and well-being. The Registrant had been aware of SU A’s vulnerability and her issues. (contrary to SoC 1.3, SoP 2.2, 3.5)

65. The Panel considered that paragraph 1.7 SoC was at the core of the Allegation and the Panel’s findings. The Registrant had failed in important respects to maintain appropriate professional boundaries and had engaged in conduct which the Panel found to have been sexually motivated behaviour. The Registrant’s conduct also failed to maintain the high standards expected. (contrary to SoP 2.1, 2,13)

66. The Panel considered that the Registrant had put his own feelings and desires above the needs of SU A. As a result, he had effectively ignored what SU A needed. (contrary to SoC 2.2, SoP 2.11). The Registrant had misused the WhatsApp social media tool to engage in overly familiar and inappropriate communications with SU A. (contrary to SoC 2.7, SoP 7.9)

67. The Panel accepted SU A’s evidence that she had been caused mental distress and difficulties by having received the encrypted letter on 29 October 2020. (contrary to SoC 6.1). The Panel considered that SU A’s health had been put at risk by the Registrant’s misconduct, and she had suffered actual mental distress. (contrary to SoC 6.2)

68. The Panel considered that the public is entitled to expect practitioner psychologists to act in the best interests of their service users and not to put their own wishes and desires ahead of the interests of service users. The Registrant had failed in both respects. (contrary to SoC 9.1)

69. The Panel noted that the Registrant’s misconduct had occurred within the context of his professional practice. Further, since it involved sexually motivated breaches of professional boundaries, the misconduct was also morally reprehensible and brought disgrace on the profession.

70. The sending of the encrypted letter, the content of which was the subject of particulars 1(a) and 1(b), was misconduct which the Panel considered that fellow professionals would regard as a ‘deplorable’ failure to maintain appropriate professional boundaries. It was serious professional misconduct, as it involved breaches of the standards as set out above.

71. The Panel was of the view that by sending the WhatsApp messages of an inappropriate and personal nature, as set out in particular 1(c), the Registrant had also failed to maintain appropriate boundaries. In them he had broached the subjects of romance and underwear and naked pictures, which had breached the standards and professional boundaries. The Panel determined that this was also ‘deplorable’ and serious professional misconduct.

72. Further, the Panel’s finding had been that the misconduct, considered as a whole, had been carried out by the Registrant with the purpose of pursuing a future sexual relationship, Hence the Panel had found sexually motivated behaviour, as in particular 2. The Panel was in no doubt that this also was serious professional misconduct.

73. The Panel found that the particulars 1(a), 1(b) and 1(c) and 2 of the Allegation, taken individually or considered globally were serious professional misconduct and the statutory ground of misconduct in Article 22(1)(a) of the Order was established.

Impairment of Fitness to Practise

74. Having determined that the facts found proved amounted to serious professional misconduct, the Panel next considered whether, as a result, the Registrant’s fitness to practise is currently impaired.

75. The HCPC had provided written submissions on the recommended approach to impairment, inviting the Panel to consider impairment by misconduct at this stage. It was submitted that the Registrant had fallen far below the expected professional standards and there is a real risk of repetition of significant harm. In addition, it was submitted, a finding of impairment was needed in the wider public interests of maintaining public confidence and standards.

76. Mr Collins submitted that impairment is a matter for the Panel’s judgment. SU A had given evidence as to the impact on her of the Registrant’s conduct. He submitted that attitudinal issues are harder to remediate. However, there was little or no evidence of the Registrant having undertaken remediation, and he had indicated that he did not wish to practise.

77. Mr Collins submitted that, although the Registrant had stated that he was at fault and he did not blame SU A, there was evidence in his responses of a different view, for example, where he had referred to SU A starting to “push my boundaries” and suggestions of ‘provocative’ behaviour. Mr Collins submitted that the Registrant bore a high degree of culpability for his conduct in seeking to maintain contact with a vulnerable service user.

78. Mr Collins submitted that, although the Registrant had not sought to dispute the factual allegations, he had offered little explanation for it, meaning that the Panel could not be sure that it would not happen again. He submitted that the HCPC guidance is clear, that sexually motivated conduct is regarded as having a significant impact on public confidence in the profession.

79. The Panel took into account the Registrant’s comments in his correspondence with the HCPC concerning the allegations.

80. The Registrant apologised; he wished that he had never met SU A, or that he had closed the case in March 2020. He suggested that he had instead responded to further disclosures from SU A but could not cope with continuing. The Registrant accepted that he had “massively messed up” and had become “delusional”. He had discussed with SU A moving her on to other professionals.

81. The Registrant described undertaking voluntary work for the National Trust and RHS. He felt better having ceased practising. He did not feel ready for a return to work for another 3-6 months but certainly would not return to psychology. The Registrant stated that he did not feel a need to gain insight or rehabilitate, because the behaviours which had occurred were clearly out of character and he did not intend to practise again. The Registrant wished to move on from the job and regain a quality of life.

82. The Registrant stated that he was content with any conclusion of the proceedings, but he could not attend a hearing. He said that he no longer posed a risk to others but accepted that he is not fit to practise.

83. The Legal Assessor advised the Panel that impairment is a decision for the Panel’s own judgement, not involving a burden or standard of proof. He referred the Panel to the HCPTS’ Practice Note: Fitness to Practise Impairment. The Practice Note guides the Panel to consider impairment in two broad areas: the ‘personal’ and the ‘public’ components. He advised the Panel to consider the risk of the Registrant repeating his past misconduct and whether his misconduct was remediable, had been remedied and was highly unlikely to be repeated. In addition, he advised that the Panel must consider whether public confidence in the profession and standards may be undermined unless there is a finding of impairment.

Decision on Impairment

84. The Panel first considered whether the Registrant’s misconduct was remediable and what, if any, steps he had taken to remediate it. It also considered, concerning any risk of repetition, whether the Registrant had developed insight into his past misconduct.

85. The Panel considered that, whilst in principle understanding of professional boundaries could be gained, where misconduct is present as a result of personal, attitudinal issues it is harder to remediate. The Panel considered that succumbing to sexual motivation was indicative also of attitudinal issues.

86. The Panel was therefore concerned that there was a personal, attitudinal aspect to the Registrant’s misconduct. In that case, the Panel concluded that it would require considerable evidence of remediation.

87. The Registrant, however, had candidly stated that he did not intend returning to practice. The Registrant had acknowledged fault and said that he did not ‘blame’ SU A. However, the Panel did find Mr Collins’ submission well-founded that, at times in his correspondence in February 2022 in his account to his supervisor, the Registrant had seemed to suggest that, in some way, SU A had drawn him into poor decisions. The Panel considered that, as the professional, the onus had been on the Registrant to maintain appropriate boundaries.

88. The Panel had noted that it had nothing in the way of reflections from the Registrant. He had not undertaken any formal remediation, or CPD. There were no testimonials or references from persons who could speak to the Registrant’s current character.

89. The Panel concluded that nothing significant in the way of remediation had been provided. By his acceptance of fault and expression of remorse, the Panel considered that the Registrant had demonstrated some, though very nascent, insight.

90. The Panel decided that it could not conclude that it was ‘highly unlikely’ that his misconduct would be repeated. Since the misconduct related to personal health and attitudinal issues, the Panel considered that, in light of the lack of remediation, there is a risk of the Registrant repeating his misconduct. The Panel found that the Registrant’s fitness to practise is currently impaired on the personal component.

91. In addition to this, the Panel considered that the Registrant’s misconduct was serious. The Registrant had put SU A at risk of harm, and harm had occurred. The Panel had concluded that there was a risk he might so act in the future. The Registrant had brought the profession into disrepute by his misconduct, and was liable to do so again, if the misconduct re-occurred. He had breached fundamental tenets of the profession in a serious breach of professional boundaries and there was a risk of repetition.

92. The Panel concluded that public confidence in the profession would be undermined, and professional standards prejudiced, if there was no finding of impairment. The Panel found that the Registrant’s fitness to practise is currently impaired on the public component.

93. The Panel decided that the Allegation is well-founded and that the Registrant’s fitness to practise is currently impaired.

Sanction

94. The Panel, having found the Allegation well-founded and that the Registrant’s fitness to practise is impaired, went on to consider the matter of any appropriate sanction.

95. At this stage of the hearing, the Panel received no further evidence. The Panel considered the evidence it had already received and its findings of fact, misconduct and impairment. The Panel heard further submissions from Mr Collins. It heard and accepted legal advice from the Legal Assessor.

96. Mr Collins submitted that the appropriate sanction is a matter for the Panel’s decision. He referred the Panel to the Sanctions Policy issued by the HCPC (updated March 2019) (“the SP”).

97. Mr Collins informed the Panel that the Registrant had no previous adverse fitness to practise history. The purpose of sanctions, Mr Collins submitted, is not to be punitive, but to protect the public. He submitted that the Panel must approach sanctions from the least restrictive sanction, moving upwards and imposing the minimum necessary to protect the public.

98. Mr Collins referred the Panel to the sections of the SP which deal with ‘Serious cases’. He mentioned specifically the sections which concerned ‘Abuse of professional position’, former service users, predatory behaviour and vulnerability. He also raised with the Panel the section dealing with ‘Sexual misconduct’. Mr Collins submitted that these had relevance to the case.

99. Mr Collins submitted that the SP recommends that the Panel should identify whether there were particular aggravating and/or mitigating factors. He suggested various features of the case which either aggravated or mitigated the seriousness of the Registrant’s case.

100. The Registrant did not attend the hearing and had provided no particular submissions on this stage. He had stated in correspondence that he would be content with whatever decision the Panel might make.

101. The Legal Assessor advised the Panel that the matter of sanction is a decision for the Panel. The Panel should be guided by the SP. He advised the Panel as to its powers under Article 29 of the Order. Article 29(4) provides that the Panel must consider whether it should refer the case to mediation, or whether it can end the matter with No Further Action, despite the finding of impairment. If not, the Panel is required to consider the options under Article 29(5).

102. The Legal Assessor advised the Panel to consider the available options from the least restrictive sanction, moving upward as necessary. He advised that the Panel had to be proportionate, imposing the least restrictive sanction which met the level of impairment. The Panel had to balance the Registrant’s interests with the public interest and impose a proportionate sanction which met the aim of public protection. The Panel must give written reasons for its decision.

Decision on Sanction

103. The Panel bore in mind the need to act proportionately and the aim of public protection in imposing any sanction. It started by considering what, if any, were the relevant mitigating or aggravating factors in the case.

104. In terms of mitigating factors, the Panel noted that the Registrant has engaged with the HCPC over the investigation. He had not disputed the facts of the case and had offered his apology and remorse.

105. The Panel considered however, in terms of aggravating factors, that there were also several matters which made the case more serious. The Registrant had provided little evidence of developed insight into the allegations, tending to focus on his own circumstances, even over the considerable period since the events in question. He had not undertaken any real remediation, stating simply that the behaviour was ‘out of character’ and that he had no intention to resume practice.

106. The misconduct had been committed against a vulnerable service user, whose vulnerabilities had been well-known to the Registrant. The Registrant had been prepared by his actions to risk harm to SU A, and mental distress had been caused to SU A by the Registrant’s misconduct. The Registrant had abused his position of trust with SU A, although he should have had a clear appreciation of professional boundaries. The Registrant’s misconduct had been sexually motivated and not an isolated incident, but a course of conduct, according to the Panel’s factual findings.

107. The Panel took into account that the SP states that abuse of trust may undermine the care and treatment provided and also prejudice the trust that the public has in the profession as a whole. The Panel considered that the misconduct was properly described as ‘predatory’ as discussed in the SP, because the Registrant had effectively taken advantage of SU A’s vulnerability, which was known to him, to pursue a future sexual relationship. The SP also set out that sexual misconduct is “a very serious matter which has a significant impact on the public and public confidence in the profession” (paragraph 76). The Panel noted that the SP indicates that such behaviour will normally result in a more serious sanction.

108. The Panel first considered Mediation as an outcome. However, it rejected this course as completely unsuitable, not reflecting the seriousness of the misconduct at all. It considered taking No Further Action. However, likewise, the Panel considered that this would completely fail to protect the public in a case where it considered that there is a risk of repetition.

109. The Panel next considered a Caution Order. However, again this led to the Registrant being able to resume unrestricted practice. In light of the seriousness of the misconduct, this sanction did not serve the interests of protecting the public and was an insufficient outcome to maintain public confidence and reinforce professional standards.

110. The Panel moved to consider Conditions of Practice. It noted that paragraph 106 states that this may be appropriate where a registrant has insight, the deficiency is capable of remedy, and the registrant does not pose a continuing risk of harm. However, in this case, the Panel had information from the Registrant’s correspondence that he did not intend to undertake remediation. The Panel concluded that the Registrant is not committed to resolving any concerns. The Panel also regarded the Registrant’s insight as limited.

111. The Panel also noted that its findings involved concerns as to the Registrant’s attitudinal issues. In light of these and the seriousness of the misconduct, the Panel concluded that Conditions of Practice are not appropriate, not likely to be complied with and not workable. Moreover, taking into account the seriousness of the sexual misconduct and abuse of position, the Panel decided that imposing Conditions of Practice did not meet the need to protect the public against a risk of repetition, nor did it meet the need to maintain public confidence in the profession. The Panel noted that the SP stated that conditions are less likely to be appropriate in cases involving abuse of professional position and sexual misconduct, which were both features of this case.

112. The Panel therefore went on to consider whether imposing a Suspension Order would meet the need of public protection, taking into account that it can impose suspension for up to one year. The Panel noted that the SP states that suspension is typically appropriate where: the registrant has insight; the issues are unlikely to be repeated; and there is evidence that the registrant is likely to be able to resolve or remedy their failings. However, in this case, the Panel found none of these factors applied.

113. The Panel noted paragraph 130 of the SP. This stated that “a striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving… abuse of professional position, including vulnerability... sexual misconduct”. These were features of the case.

114. The Panel further noted paragraph 131, which states:

“131. A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:
• lacks insight;
• continues to repeat the misconduct or, where a registrant has been suspended for two years continuously, fails to address a lack of competence; or
• is unwilling to resolve matters”.

115. The Panel considered that the Registrant does lack insight into his misconduct. It has found a risk of repetition of the misconduct and the misconduct had a high degree of seriousness. The Panel noted that the Registrant has stated that he does not intend to return to practice and has not practised since 2020. The Panel concluded that this amounted to an unwillingness to resolve matters.

116. The Panel took into account that a striking off order is an order of last resort, where no lesser sanction will serve to protect the public. The Panel accepted that making a striking off order may have professional and/or financial impacts on the Registrant. However, in this case, the Panel was of the view that nothing less than a striking off order will achieve public protection. Therefore, the public interest outweighs the Registrant’s interests and a striking off order is the proportionate and appropriate sanction.

117. The Panel makes a striking off order and directs the Registrar to strike off the Registrant’s name from the Register.

ORDER: The Registrar is directed to impose a Striking Off Order.

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

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.

Interim Order

Application

1. Mr Collins applied to the Panel to impose an Interim Suspension Order. He submitted that the Panel had made a striking off order and the Panel had identified an ongoing risk of harm to the public in its Determination. He asked the Panel to grant the Interim Suspension Order for 18 months.

2. Since the Registrant was not present or represented at the hearing, the Panel first considered whether it was appropriate to proceed to hear the application for an Interim Order in his absence, pursuant to Rule 11, as is suggested in the relevant Practice Note: Interim Orders.

3. The Panel noted that the Notice also stated in terms that the Panel might impose an Interim Order, if necessary. The Panel had previously decided in the hearing that the Notice had been duly served on the Registrant. The Panel considered that the Registrant had been provided with an opportunity to attend the application to make representations and that he was aware of the hearing. For similar reasons as to the decision to proceed with the hearing, the Panel decided to proceed to hear the application in the Registrant’s absence.

4. The Legal Assessor advised the Panel that, pursuant to Article 31(2) of the Health Professions Order 2001 (as amended) (“the Order”) the Panel may make an interim order on the basis that either it is necessary for public protection, it is otherwise in the public interest, or it is in the person’s own interests. He referred the Panel to the HCPTS’ Practice Note ‘Interim Orders’ to guide its decision-making.

5. The Legal Assessor advised the Panel that it had to impose the least restrictive interim order sufficient to protect the public and first to consider whether interim conditions would suffice and only if not impose an interim suspension order. He advised that the interim order could be imposed for a maximum of 18 months, but this was not the default, and any period had to be reasoned and justified.

6. The Panel was satisfied that, having found that a striking off order is necessary and that there is a continuing risk to the public of significant harm, an interim order is necessary in order to protect the public. Further, the Panel was satisfied that an interim order is also needed as being otherwise in the public interest, since the public would be shocked and alarmed if there was no interim order.

7. The Panel decided that interim conditions of practice would not sufficiently protect the public, for similar reasons as in its determination on Sanction. Therefore, the Panel made an Interim Suspension Order. The Interim Suspension Order was granted for 18 months on the basis that, if any appeal is made, it may take that period to complete the appeal process.

8. The Panel granted an Interim Suspension Order for 18 months.

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 Philip Milner