Lukasz Osipowicz

Preliminary Matters

Adjournment of day one

1. In advance of the hearing, the Panel had been provided with a number of bundles, including a bundle relevant to an application to proceed in absence (PIA bundle), in the event that the Registrant did not attend the hearing. The documentation within the PIA bundle included an email from the Registrant, dated 31 October 2025, in response to an enquiry from the HCPTS as to whether he would be attending the upcoming substantive hearing. In his email, the Registrant confirmed that neither he nor any representative would be attending and instead he attached a letter which he asked to be passed to the Panel.

2. The Panel noted that the title and the contents of the attached letter seemed to indicate that the Registrant had not understood the nature of the final/substantive hearing. Specifically, it seemed to the Panel that he may not have understood that it was a hearing at which evidence would be heard and findings of fact made on the basis of the civil standard in respect of whether the Registrant had touched Service User A’s breasts and/or nipples and if so, whether that touching was sexual in nature and/or sexually motivated. Then, depending on the findings of fact, the Panel would undertake an assessment of the Registrant’s fitness to practise.

3. The Registrant’s letter was entitled: “Request for Review and Removal of Practice Conditions Following Crown Court Acquittal”. Within the letter was included a request from the Registrant as follows:

“I fully respect the HCPC’s role in safeguarding the public. However, I now request that the HCPC give due weight to the Crown Court’s definitive conclusion. Continuing to impose practice conditions after unanimous, acquittal, appears unnecessary, and is deeply damaging to my ability to rebuild my professional life…”

4. The Panel noted that the solicitors representing the HCPC, Blake Morgan (the solicitors), had replied to the Registrant on 3 November 2025, and the content of that email seemed to indicate that the solicitors also had concerns as to the level of the Registrant’s understanding of the nature of the final hearing. The solicitor’s letter of 3 November 2025 included the following paragraph:

For the avoidance of doubt, the hearing from 10 –18 November is the final hearing of your case, not an interim order review. The purpose of the final hearing is for a panel to consider the evidence, determine if your fitness to practice is impaired, and if so, decide upon a sanction. The most serious sanction is strike off.

5. No response had been received to this email. Nevertheless, the Panel was concerned that the Registrant may still be under the misapprehension that as there had been an acquittal in the criminal court, that would bring an end to the regulatory proceedings at the HCPC. The Panel noted that the Registrant was not represented, English was not his first language and he had had the benefit of an interpreter in the Crown Court. The Panel was of the view that it was appropriate to adjourn the case for one day for the HCPC and their solicitors to make further efforts to contact the Registrant. It requested that the HCPC and/or their solicitors attempt to contact the Registrant by telephone and also by email making clear that:

a. This hearing is a final hearing, and setting out what a final hearing entails;

b. A final hearing is separate and distinct from an Interim Order Review;

c. Special counsel could be appointed to cross examine the complainant, Service User A as the Registrant would not be permitted to cross examine her directly;

d. The notice of hearing (dated 18 September 2025) and an email about special counsel (16 October 2025) be attached again to the email;

e. The Registrant should respond as soon as possible, and no later than 9am the next day (11 November 2025).

Service

6. On 18 September 2025, the HCPC sent notice of this final hearing by email to the Registrant’s registered email address as previously notified to the HCPC as an address for correspondence. The notice contained the required information, including the time, date and joining instructions for the remote final hearing.

7. Having heard and accepted the advice of the Legal Assessor, the Panel was satisfied on the documentary evidence provided, that the Registrant had been served with the appropriate notice in accordance with the Rules.

Application to proceed in the Registrant's absence

8. Mr Kerruish-Jones, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. Mr Kerruish-Jones informed the Panel that no communication had been received from the Registrant following the further efforts made by the HCPC and its solicitors at the Panel’s direction. He outlined the attempts made on 10 November 2025 as follows:

a. Four attempted telephone calls to the Registrant’s mobile telephone, on the telephone number previously provided by him as his registered number, there was no opportunity to leave a voicemail message;

b. A text message sent at 12:03 stating that the caller was ringing about the hearing taking place now and requesting a call back urgently; and

c. An email sent at 12:53 to the Registrant’s registered email address, previously used by him for correspondence (including his email of 31 October 2025), setting out those matters as directed by the Panel.

9. The Panel heard and accepted the advice of the Legal Assessor, who advised, in particular, that the discretion to proceed in a Registrant’s absence must be exercised fairly and with great care and caution. The Panel also had regard to the relevant HCPTS Practice Note.

10. The Panel had regard to the communications with the Registrant. It noted that in response to an enquiry from the HCPTS about whether he would attend the final hearing, the Registrant replied that neither he nor a representative would attend and sent a letter for the Panel’s consideration. The Panel was mindful that the letter appeared to suggest confusion on the part of the Registrant about the nature of the final hearing. It was for this reason and out of an abundance of caution, that it had directed further efforts to be made and had adjourned for one day. The Panel noted the correspondence with the Registrant as follows:

a. The letter of 16 October 2025, providing the Registrant with information about the logistics of the final hearing including regarding special counsel and whether the Registrant would require and interpreter;

b. The notice of hearing, dated 18 October 2025, which informed the Registrant of the dates    over which the final hearing was scheduled to be heard, set out the nature of the final hearing, including references to the evidential part of the process, set out the potential outcomes and directed his attention to various relevant practice notes, the HCPC and HCPTS websites as well as drawing his attention to the Substantive Hearings fact sheet;

c. The email, dated 3 November 2025, from the HCPC’s solicitors to the Registrant setting out  the nature of a final hearing and informing him that it is not an Interim Order Review;

d. The email, dated 10 November 2025, sent at the direction of the Panel, clarifying the nature of a final hearing and asking the Registrant to make contact.

11. The Panel was satisfied that the notice of hearing itself set out that it was a seven day hearing where evidence would be given. It considered that although the Registrant’s letter of 31 October 2025, indicated a potential misunderstanding on his part, the response of 3 November 2025 sought to clear up any potential confusion. Out of an abundance of caution, the Panel had directed that extra steps be taken to make contact with the Registrant and explain the nature of the hearing and he had been given a day to respond. No further communication had been received from the Registrant.

12. The Panel considered that the HCPC had taken all reasonable steps not only to inform the Registrant of the dates of the hearing itself, but also to inform him of the nature of the hearing so as to avoid any potential confusion that the Registrant may have had.

13. The Panel was mindful that there would be some prejudice to the Registrant in proceeding in his absence, but considered that this was outweighed by the public interest considerations, including that three witnesses were attending to give evidence and that such matters should be dealt with expeditiously. The Panel noted that it had a copy of the Registrant’s defence statement and a copy of the transcript of the Registrant’s evidence in the Crown Court, where he clearly set out his position and denied the offence, which the Panel would take into account and which would, in the Panel’s view, lessen any prejudice. The Panel would also take into account the Registrant’s letter dated 31 October 2025.

14. In all the circumstances, and mindful of the public interest, the Panel considered that it was appropriate and fair to proceed in the Registrant’s absence.

Application for special measures for Service User A

15. Mr Kerruish-Jones, on behalf of the HCPC, applied for special measures for Service User A, namely that her husband be permitted to sit with her for support during her evidence. Mr Kerruish-Jones submitted that Service User A was eligible for special measures by virtue of being the complainant in a case of a sexual nature. The nature of the special measure sought was as support for Service User A and it was not intended that the husband would participate in the hearing in any way.

16. The Panel heard and accepted the advice of the Legal Assessor. It was satisfied that Service User A was eligible for special measures as a vulnerable witness by virtue of her being a complainant in a case of a sexual nature and she was the alleged victim.

17. The Panel was satisfied that the special measure requested, that of the presence of her husband, would be likely to improve the quality of her evidence. It considered that it would be appropriate for Service User A’s husband to be present as support, due to the nature of the allegations themselves. It did not identify any prejudice to the Registrant if the special measure were granted and was of the view that it would enable the Panel to achieve the best evidence from Service User A. The Panel, therefore, granted the special measure requested.

Application for parts of the hearing to be heard in private

18. During Mr Kerruish-Jones’ closing submissions, he drew the Panel’s attention to factors that the Registrant may have wished the Panel to consider, had he been in attendance. This included reference to the letter, dated 31 October 2025, which the Registrant had sent to the HCPC solicitors, some of which itemised personal and sensitive matters, including the impact of the criminal and regulatory proceedings on his health.

19. Having heard and accepted the advice of the Legal Assessor, the Panel considered that those matters which related to the personal and sensitive matters, including the Registrant’s health should be heard in private in order to protect the Registrant’s private life.

Application to admit hearsay evidence

20. Mr Kerruish-Jones applied to adduce as hearsay, the witness statement of PC Pond, who had arrested the Registrant on suspicion of sexual assault of Service User A and had conducted the criminal investigation.

21. Mr Kerruish-Jones took the Panel through the factors identified in the HCPTS Practice note on Evidence. He submitted that PC Pond’s evidence was relevant as it provided background information about the criminal investigation and also the alleged comment made by the Registrant when his home was searched following his arrest. He also submitted that the evidence was not sole and decisive as the direct evidence was from Service User A.

22. Mr Kerruish-Jones conceded that PC Pond had not been spoken to by the HCPC or the HCPC’s solicitors and had been a witness required by the Registrant in his criminal trial. The police witness statement from PC Pond had been exhibited by a representative with the HCPC’s solicitors who had discovered the witness statement within the solicitor’s case management system when she took over the case from a colleague.

23. The Panel heard and accepted the advice of the Legal Assessor. She advised the Panel in accordance with Rule 10(b) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules) and sections 1 and 4 of the Civil Evidence Act 1995. The Legal Assessor advised that hearsay was admissible in civil proceedings subject to the requirements of relevance and fairness. The Legal Assessor advised in accordance with the case of Thorneycroft v NMC, to the effect that the decision to admit hearsay evidence required the Panel to perform a careful balancing exercise, having regard to the following relevant principles discerned from the case law:

1.1 The admission of the statement of an absent witness should not be regarded as a routine matter. The FTP rules require the panel to consider the issue of fairness before admitting the evidence;

1.2 The fact that the absence of the witness can be reflected in the weight to be attached to their evidence is a factor to weigh in the balance, but it will not always be a sufficient answer to the objections to admissibility;

1.3 The existence or otherwise of a good and cogent reason for the non-attendance of the witness is an important factor. However, the absence of a good reason does not automatically result in the exclusion of the evidence;

1.4 Where such evidence is the sole or decisive evidence in relation to the charges, the decision, whether or not to admit it requires the panel to make a careful assessment, weighing up the competing factors. To do so, the panel must consider the issues in the case, the other evidence which is to be called and the potential consequences of admitting the evidence. The panel must be satisfied either that the evidence is demonstrably reliable, or alternatively, that there will be some means of testing its reliability.

24. The Panel considered that the evidence was relevant as it related to the criminal investigation and the alleged comment made by the Registrant following his arrest. It considered that the HCPC essentially relied on the evidence of PC Pond as an admission by the Registrant of ‘doing something wrong’, following his arrest on suspicion of sexual assault.

25. In considering whether it would be fair to admit the evidence, the Panel considered the factors set out in the HCPTS Practice Note. It was satisfied that the evidence was not sole or decisive as it was potentially supporting and part of a bigger picture. Although the Registrant was not present at this hearing, it appeared from his defence statement in criminal proceedings that the officer had been required to attend the Crown Court trial. Given that the evidence was from a police officer, the Panel considered that there was no obvious motive to fabricate the evidence. The Panel was mindful that the allegation was serious and potentially career-ending.

26. The Panel’s biggest concern, however, was that there was no real reason for the non-attendance of the witness. It appeared to the Panel that the witness statement had originally been overlooked, but this did not explain why there had been no attempt to contact the witness once the witness statement was discovered. It had been exhibited in June 2025, some five months ago, and Mr Kerruish-Jones had conceded that the HCPC had not spoken to PC Pond. In the Panel’s view, no steps at all appeared to have been taken to secure the witness’s attendance.

27. The Panel considered that it would have been important to test the evidence of PC Pond regarding the alleged admission and to ascertain the context. It noted that English was not the Registrant’s first language and there was evidence from Ms DJ that the Registrant was hard to understand. It was also not suggested that the comment was made immediately on arrest, but later, to a third party whilst the home was being searched, with the potential for misunderstanding to what it related to.

28. In all the circumstances, the Panel decided that it would not be fair to admit the hearsay evidence of PC Pond and so ruled it inadmissible.

Background

29. The Registrant is a Physiotherapist registered with the HCPC.

30. On 2 May 2023, he self-referred himself to the HCPC, informing it that he had been charged on 13 April 2023 with a criminal offence that he had “intentionally touched a woman, aged 16 or over, and that touching was sexual when she did not consent, and I did not reasonably believe that she was consenting”.

31. The HCPC allegations are predicated on the witness statement of Service User A, together with a transcript of her testimony to the Crown Court, given in July 2024 and her witness statement provided to police, dated 5 February 2023.

32. On 4 February 2023, Service User A attended Alton Towers Resort for a spa treatment with Friend A, whose mother (Friend B) was also in attendance.

33. Service User A went to the treatment rooms for a full body massage. She was wearing a robe and her underwear, or ‘pants’. The Registrant called her into the treatment room and asked her to sign a piece of paper. It is alleged that he did not ask about her skin type or other such questions which were on the forms. The Registrant left the room to allow Service User A to remove the robe and lie down. A towel/sheet covered her. The Registrant commenced massaging Service User A.

34. It is alleged that at some stage during the massage, after she had turned onto her back, the Registrant massaged Service User A’s breasts and nipples in a “sweeping, circular motion with both hands” going underneath the towel. It is alleged he did this three times consecutively. On the third time Service User A asked him not to. He stepped away, offered her some water and then left the room. Shortly thereafter, Service User A put on her robe and left the treatment room and allegedly made disclosures to Friend A and Ms DJ, a Spa Assistant working at the Resort.

35. Thereafter, the matter was reported to the police and the Registrant was arrested. In July 2024, he stood trial at Stoke on Trent Crown Court on one count of sexual assault on Service User A and was acquitted.

Decision on Facts

36. The HCPC called the following witnesses:

a. Service User A, the complainant of the alleged behaviour;

b. Friend A, the friend of Service User A who arranged the Spa Day and massages at the Resort and accompanied her on the day;

c. Ms DJ, a Spa Assistant working at the Resort on the day in question.

37. The HCPC provided a bundle of witness statements and exhibits including:

a. The respective police witness statements of Service User A, Friend A and Ms DJ;

b. A copy of the Registrant’s defence statement, dated 29 August 2023, prepared for the criminal trial;

c. Transcript from 16 July 2024 of Service User A’s evidence in the criminal trial against the Registrant;

d. Transcript from 17 July 2024 of the Registrant’s evidence in his criminal trial;

e. HCPC witness statements of Service User A (15 January 2025), Friend A (23 January 2025) and Ms DJ (5 September 2025)

38. The Panel heard and accepted the advice of the Legal Assessor. She advised that the burden of proof was on the HCPC and the standard of proof required was the civil standard, namely whether it was more likely than not that the alleged facts occurred. In relation to allegations being ‘of a sexual nature’ and sexually motivated, she advised in accordance with the HCPTS Practice Note entitled ‘Making decisions of a registrant’s state of mind’ and the case of Basson v GMC [2018] EWHC 505 (Admin). The Legal Assessor advised that the Registrant was of good character which was one of the factors the Panel may take into account in the Registrant’s favour when considering the likelihood or otherwise of the alleged actions occurring.

39. The Panel considered all of the evidence and the submissions of Mr Kerruish-Jones on behalf of the HCPC as well as the letter of the 31 October 2025 from the Registrant, the transcript of his evidence under affirmation at the Crown Court and his defence statement for the criminal proceedings. Mr Kerruish-Jones said it was open to the Panel to consider whether to draw an adverse inference from the fact the Registrant was not present to give evidence. He submitted that the Notice of Hearing warned the Registrant of the potential consequences of not giving evidence. The Panel considered this, referred to the HCPTS Practice Note on Evidence and determined that it would not be appropriate for it to draw an adverse inference in the circumstances of this case. In reaching this decision, the Panel took into account, in particular, the contextual, cultural and medical factors identified by the Registrant.

Particular 1

On 4 February 2023, during a massage appointment with Service User A, you touched Service User A’s breasts and/or nipples.

40. The Panel finds particular 1 proved.

41. The Panel first considered the evidence of Service User A. It noted that the alleged incident occurred on 4 February 2023 and she gave a witness statement to the police the next day on 5 February 2023, when, in the Panel’s view, matters would have been fresh in her mind.

42. Service User A stated that on Saturday 4 February 2023, she, Friend A and Friend A’s mother (Friend B) attended the Alton Towers Resort Spa where they had booked full body massages with separate masseuses. At 13:00, Service User A was called into the massage room by a male therapist. He left while she got changed. She lay on her front with a towel covering her when the therapist returned to carry out the massage. After massaging the areas at the back, the therapist asked Service User A to turn onto her back, lifting the towel to allow her to do this and then covered her breasts, torso, and upper legs with a towel.

43. Within her police witness statement, Service User A described the massage continuing as follows:

The masseuse then began the massage on the front of my body, focusing on my legs and arms, and then my neck and shoulders. The masseuse then began to massage around my breast area, from underneath the towel. He circled around each breast before massaging straight on top of my breasts and nipples. The masseuse did this on three occasions. I said to him: “Can you not?”, asking him to not massage me in that area.

The masseuse stopped immediately, and said: "Would you like some water?”. I replied saying “No, I just want to lay here for a minute”. The masseuse took a step back at this point. I remember there being more conversation after this, but cannot remember exactly what was said. The masseuse then left the room and I put my robe back on. I did not see the male again after this.

44. The Panel noted the transcript of Service User A’s evidence in the Crown Court. Although the jury had acquitted the Registrant, the Panel noted that the evidence she had given and on which she had been cross examined was consistent with her police witness statement (dated 5 February 2023). Service User A had also ruled out in her Crown Court evidence the possibility that it was the towel she had felt touching her breasts and nipples. The Panel also noted that Service User A had given a witness statement to the HCPC, dated 15 January 2025, which was consistent with her contemporaneous account in her police witness statement the day after the incident. It considered that she was also consistent in her oral evidence to the Panel.

45. The Panel also had regard to the evidence of Friend A, to whom Service User A had disclosed the alleged incident on the day, shortly after the massage had finished. She described in her witness statement being told initially by Service User A that the therapist had “touched her boobs”, but was reluctant to tell her everything at that point, as Friend A had paid for the treatment as a present. Friend A, in her police witness statement, given on 15 February 2025, described the conversation continuing as follows:

I asked [Service User A] again what the masseuse had done, and she said “He touched my boobs”. I said: “What fully?”, and she replied saying “Yes”. I then asked if he had touched her nipples, and [Service User A] replied again saying: “Yes”. [Service User A] asked me how my massage was and if the masseuse had touched my breasts. I told her “No”. My mother [Friend B] was also present at this point.

46. The Panel also had regard to the evidence of Ms DJ, a Spa assistant at the Alton Towers Resort Spa. She had provided a police statement, dated 14 February 2023, regarding the disclosure made to her by Service User A on the day of the incident shortly after Service User A’s massage by the Registrant. The Panel noted that Ms DJ had not been known to Service User A or her friend and was, therefore, independent of them both.

47. Ms DJ described in her police witness statement, dated 14 February 2023, that shortly after 14:00 she was informed that there were two clients who wanted to speak to her. She went outside with Service User A where they could not be heard and she described what she was told by Service User A in her police witness statement as follows:

[Service User A] told me that she had a full body massage earlier in the day with our male therapist, and that during the massage, the therapist had gone over her breasts and nipples, two or three times.

48. Ms DJ knew the male therapist to be the Registrant. Ms DJ escalated the matter with Guest Relations for Alton Towers.

49. The Panel was mindful that neither Friend A nor Ms DJ were independent corroborative witnesses, as they were recounting the events disclosed to them by Service User A. Nevertheless, the Panel bore in mind that Service User A had disclosed some details of the alleged incident to Friend A very soon after the massage had ended. A short while after that, Service User A had disclosed matters to Ms DJ, who was not someone previously known to her. The Panel considered that whilst Service User A and Friend A may have subsequently discussed the alleged incident further, this would not have been the case with Ms DJ once Service User A had left the Alton Towers Resort.

50. The Panel considered that the evidence from both Friend A and Ms DJ about what Service User A had disclosed to them of the alleged incident, was consistent with the evidence of Service User A herself about what had allegedly happened. Therefore, whilst Service User A was the only witness to the events in the massage room and the Registrant had denied them, the Panel was assisted by this consistency in its assessment of whether Service User A was giving a truthful account.

51. The Panel considered that Service User A had given credible evidence. She had not, in the Panel’s view, sought to embellish her evidence and it had remained consistent with her account to police the day after the alleged incident. Her account had been tested in cross examination in the Crown Court, and she had maintained her account. She had disclosed the alleged incident very soon afterwards and had reported it to police via an online portal that same day and given a police witness statement the next day. In all the circumstances, the Panel was satisfied to the required standard that the Registrant had touched Service User A’s breasts and nipples during the massage he gave her.

Particular 2

Your conduct in relation to Particular 2 was sexual in nature and/or sexually motivated.

52. The Panel finds particular 2 proved.

53. The Panel first considered whether the Registrant’s actions found proved in particular 1 were of a sexual nature. It considered that the breasts and nipples are an intimate part of the female body. The Panel, therefore, considered that the Registrant’s actions were sexual in nature.

54. In relation to whether the Registrant’s actions were also sexually motivated, the Panel considered the surrounding circumstances. The touching occurred during a massage, and there was no legitimate or clinical justification for touching Service User A’s breasts and nipples, which had been covered by a towel. Service User A had not consented to it. The Panel considered that there was no plausible explanation for his behaviour and it was overtly sexual in nature. The Panel considered that the touching was three consecutive movements until Service User A had told the Registrant to stop. The Panel considered that the touching had been for the Registrant’s own sexual gratification and, therefore, in all the circumstances, had been sexually motivated.

Decision on Grounds

55. Mr Kerruish-Jones, on behalf of the HCPC, submitted that the Registrant’s conduct amounted to misconduct. He submitted that touching Service User A in an overtly sexual manner without her consent for his own sexual gratification qualified as serious professional misconduct, as identified in the cases of Roylance and Remedy. Mr Kerruish-Jones submitted that the Registrant had breached Standard 1 generally and Standards 1.1 and 1.7 in particular of the HCPC’s Standards of Conduct, Performance and Ethics 2016 (the Standards), in force at the time.

56. The Panel heard and accepted the advice of the Legal Assessor. In relation to misconduct, she advised the Panel in respect of a number of cases, including Roylance v GMC (No. 2) [2000] 1 AC 311 and On the Application of R (Remedy UK Ltd) v GMC [2010] EWHC 1245. The Legal Assessor advised that for conduct to amount to professional misconduct, it must fall short of what would be expected in the circumstances and that such a falling short must be serious and fall far below the expected standards. The Legal Assessor advised that the question of whether or not the facts found proved amounted to misconduct as alleged, was a matter for the Panel’s professional judgement.

57. The Panel noted that the Registrant had not been employed as a Physiotherapist at the Alton Towers Resort, rather he was employed as a massage therapist and so the conduct found proved had occurred outside of his professional practice as a registered Physiotherapist. Nevertheless, the Panel considered that the two roles were closely aligned and massage is a core skill of physiotherapy. Therefore, the Panel considered that the following Standards were relevant in this case, given the close alignment of the roles, and that the Registrant had breached them:

1.1 – You must treat service users and carers as individuals, respecting their privacy and dignity.

1.7 – You must keep your relationships with service users and carers professional.

58. In addition, the Panel considered that the Registrant had breached the following Standard:

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

59. The Panel also had regard to the case of Remedy cited by the Legal Assessor and in particular the following paragraphs:

Misconduct is of two principal kinds. First, it may involve sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practise. Second, it can involve conduct of a morally culpable or otherwise disgraceful kind which may, and often will, occur outwith the course of professional practice itself, but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession.
…
6. Conduct falls into the second limb of being misconduct if it is dishonourable or disgraceful or attracts some kind of opprobrium; that fact may be sufficient to bring the profession of medicine into disrepute. It matters not whether such conduct is directly related to the exercise of professional skills.

60. The Panel considered that the conduct found proved, although it occurred outside the course of the Registrant’s professional practice itself, involved conduct which was morally culpable and disgraceful, which would bring the profession into disrepute. In all the circumstances, it was the Panel’s judgement that the Registrant’s conduct was so serious as to amount to misconduct.

Decision on Impairment 

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

62. Mr Kerruish-Jones, on behalf of the HCPC, submitted that the Registrant’s fitness to practise is currently impaired on both the personal component and the public component.

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

64. The Panel first considered whether the Registrant’s fitness to practise is currently impaired on the personal component, which looks at matters personal to the Registrant, such as current competence, behaviour, insight and remediation, all of which inform in respect of the risk of repetition and any ongoing risk to the public.

65. The Panel considered that sexually motivated misconduct would be difficult to remedy, but in the circumstances of this case, which involved a single incident, it could in principle be remedied. However, the Panel had no evidence before it to indicate any steps taken towards remediation. It bore in mind that the Registrant had denied the conduct as he was entitled to do, and that he had been acquitted in the Crown Court. Nevertheless, given his lack of participation in these regulatory proceedings, there was no evidence before the Panel of any remorse, insight or remediation.

66. Therefore, whilst it was a single incident, the Panel had no evidence before it to conclude anything other than that there remained a risk of repetition of the misconduct. The Panel considered that if the misconduct were repeated, this would place potential service users at risk of harm. In reaching this decision, the Panel noted that Service User A had described the emotional harm caused to her as a result of the Registrant’s actions. The Panel therefore concluded that the Registrant is currently impaired in respect of the personal component.

67. In respect of the public component, the Panel was mindful of its responsibility to protect the public, maintain public confidence in the profession and uphold professional standards. The Panel considered that the Registrant’s misconduct had brought the profession into disrepute and breached fundamental tenets of the profession. He was a registered Physiotherapist employed as a massage therapist, using massage, a core physiotherapy skill, on a client. However, during the massage he had touched her breasts and nipples without consent and for his own sexual gratification. In the Panel’s judgement, a member of the public would be shocked and horrified at such behaviour and was of the view that it would undermine public confidence in the profession. The Panel determined that, a finding of impairment was also required so as not to leave the public and fellow practitioners with the impression that no steps had been taken to underline the profound unacceptability of the behaviour which led to the findings. In all the circumstances, the Panel concluded that the Registrant’s fitness to practise is currently impaired on the public component.

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

Decision on Sanction

69. Having determined that the Registrant’s fitness to practise is currently impaired by reason of his misconduct, the Panel went on to consider whether it was impaired to a degree which required action to be taken on his registration. The Panel took account of the submissions of Mr Kerruish-Jones on behalf of the HCPC and had regard to all the information previously before it.

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

71. Before considering the individual options open to the Panel in respect of sanction, it considered whether there were any relevant mitigating and aggravating factors in this case. The Panel acknowledged that this was a one-off episode with one client and was not a pattern of behaviour nor was it persisted with. The Panel considered that this was the context of the misconduct itself, as opposed to being a mitigating factor. The Panel did not identify any specific mitigating factors.

72. In terms of aggravating factors, the Panel had regard to the non-exhaustive list set out in the Policy. The Panel considered that the following were aggravating factors:

a. There was an element of breach of Trust. Although the misconduct had not occurred within  his professional practice as a registered Physiotherapist, he had been carrying out a massage, a core physiotherapy skill, on a client who was wearing only her pants and had a towel covering her;

b. Emotional harm had been caused to Service User A. She had been distressed by the incident and her victim impact statement to the police described her ongoing mistrust of and reluctance to access physiotherapy services;

c. There was no evidence of insight, remorse or remediation on the part of the Registrant. The Panel acknowledged that this would be hard for a Registrant who had denied the allegations to evidence, as he was entitled to do. Nevertheless, the Panel considered that there had been opportunities available to the Registrant to demonstrate insight. For example, the Panel considered that it would have been open to him to explain that although he denied the matter, he understood how such behaviour would have an impact on the individuals concerned as well as undermining the public’s and fellow practitioners’ trust and confidence in the profession.

73. The Panel also had regard to the Policy’s guidance that sexually motivated misconduct would be a serious category of case. In particular, it had regard to paragraphs 76 and 77 of the Policy, which state:

76 – Sexual misconduct is a very serious matter, which has a significant impact on the public and public confidence in the profession. It includes, but is not limited to... conduct of a sexual nature that is without consent…

77 – Because of the gravity of these types of cases, where a panel finds a registrant impaired because of sexual misconduct, it is likely to impose a more serious sanction. Where it deviates from this approach, it should provide clear reasoning.

74. The Panel recognised that the sexual misconduct in this case was serious. It was committed in breach of trust and had caused Service User A emotional harm. The context was that it was a single incident of sexually motivated touching of a single client, as opposed to a pattern of behaviour and there had been no evidence of any repetition. As such, the Panel did not consider that it was at the upper end of seriousness for cases of sexual misconduct.

75. The Panel acknowledged that the options of mediation or taking no further action were available to the Panel but did not consider that this case was suitable for either outcome, given the seriousness of the misconduct.

76. The Panel next considered whether to impose a Caution Order. The Panel was mindful that such a sanction would not restrict the Registrant’s practice. The Panel did not consider that a Caution Order was sufficient to protect the public, given that it had not been able to rule out a risk of repetition. Furthermore, the Panel did not consider that the criteria set out in the Policy were met for when a Caution Order may be appropriate. Although the Panel acknowledged that the incident was isolated, it did not consider it to be limited or relatively minor in nature or that the Registrant had shown good insight and undertaken appropriate remediation. Accordingly, the Panel was not satisfied that a Caution Order was the appropriate or proportionate response.

77. The Panel next considered whether a Conditions of Practice Order may be the appropriate and proportionate response. The Panel had regard to the specific factors set out in the Policy which may make a Conditions of Practice Order appropriate. In particular it was of the view that a number of the identified factors were not present in the Registrant’s case, as follows:

a. The Registrant has insight;

b. Appropriate, proportionate, realistic and verifiable conditions can be formulated; and

c. The Panel is confident that the registrant will comply with the conditions.

78. The Panel bore in mind that it had no evidence of insight before it. Although it had earlier found that the misconduct in this case may be capable of remediation, it did not consider that conditions could readily be formulated, or if they could be, that the Registrant would be willing or able to comply, given his non-engagement in the hearing. The Panel also noted the guidance in the Policy that conditions were less likely to be appropriate in cases involving sexual misconduct. In all the circumstances, the Panel did not consider that a Conditions of Practice Order was the appropriate and proportionate response.

79. The Panel next considered a Suspension Order. The Panel had regard to the factors set out in the Policy which may make a Suspension Order appropriate, namely:

d. The concerns represent a serious breach of the Standards of conduct, performance and ethics;

e. The registrant has insight;

f. The issues are unlikely to be repeated; and

g. There is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.

80. The Panel was satisfied that the misconduct represented serious breaches of the Standards, as had been identified at the statutory ground stage. However, the Panel did not consider that any of the other three factors were present which may indicate that a Suspension Order was appropriate. As identified, there was an absence of evidence of insight. The Panel considered that on its face the criteria for a Suspension Order might not be met.

81. The Panel therefore looked at the criteria set out in the Policy which may make a Striking-Off Order the appropriate and proportionate sanction. It noted that a Striking-Off Order is the sanction of last resort, where the nature and gravity of the concerns are such that no lesser sanction would be sufficient to protect the public and maintain confidence in the profession and the regulatory process.

82. The Panel had regard to the Policy which also indicated that a Striking-Off Order is a sanction of last resort for ‘serious, persistent, deliberate or reckless acts’ involving sexual misconduct. Whilst the Panel considered that the sexual misconduct was serious, it did not consider that the seriousness was to such a degree that a Striking-Off Order was the only sufficient sanction or that it was fundamentally incompatible with registration. In reaching this view, the Panel bore in mind that the nature of the misconduct itself was a single incident on one client, which did not represent a pattern of behaviour, and which the Panel had concluded was not at the upper end of seriousness for such cases.

83. The Panel was of the view that a Strike Off would be too draconian in the particular circumstances of this case, and that it would be disproportionate to strike the Registrant off. The Panel also noted its observations at the outset of the case, that the Registrant, who was unrepresented and for whom English was not his first language, may have been under the misunderstanding that the Crown Court acquittal would bring the regulatory proceedings to an end. Therefore, although he had not engaged in the hearing, he may be able to read the decision and reflect on the Panel’s findings, and potentially demonstrate insight to a future reviewing panel.

84. The Panel considered that this was a case where a lesser sanction would be sufficient to protect the public. It was satisfied that a Suspension Order would be sufficient to protect the public for the period that it was in place and would meet the public interest considerations in this case of maintaining public confidence and upholding professional standards. The Panel was also mindful that it must act proportionately. In all the circumstances, the Panel was satisfied that a Suspension Order was the appropriate and proportionate sanction.

85. The Panel determined to impose a Suspension Order for the maximum period of 12 months. In deciding this length, the Panel considered that such a length was the minimum necessary to achieve the appropriate level of public protection and meet the public interest considerations, noting that it had given serious consideration to whether it should impose a Strike Off. The Panel also considered that it would afford the Registrant the opportunity, if he wished to take it, to engage with the HCPC, reflect and provide evidence of insight and remediation.

86. The Panel did not seek to bind a future reviewing panel, but it was of the view that the following matters may assist it:

a. Participation at any future review hearing;

b. Reflection on the impact of sexual misconduct on a service user, and on public confidence in the profession;

c. Evidence of relevant training/courses or other remediation, for example in professional behaviour and maintaining professional boundaries;

d. Evidence of keeping skills and knowledge up to date;

e. Testimonials and character references from any subsequent employment, whether in the field of health care or otherwise.

The Registrar is directed to suspend Mr Lukasz Osipowicz from the Register for a period of 12 months.

Right of Appeal

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

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

Interim Order:

Application

1. In the event that the Panel imposed a sanction which restricted or prohibited the Registrant’s right to practise as a registered Physiotherapist, Mr Kerruish-Jones applied for an Interim Order to cover the appeal period before the sanction takes effect, or if the Registrant were to appeal, the period before the appeal was determined or otherwise disposed of.

2. Mr Kerruish-Jones submitted that given the findings of the Panel, an Interim Order was necessary to protect the public and was otherwise in the public interest.

Decision

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

4. The Panel was satisfied that an Interim Order was necessary to protect the public, given its findings that an ongoing risk of repetition could not be ruled out. It was also satisfied that an Interim Order was required in the public interest to maintain public confidence in the profession and to uphold professional standards, being of the view the public would be shocked and troubled if no Interim Order were imposed.

5. In light of its substantive conclusion that conditions, were not appropriate in this case, the Panel decided that an Interim Suspension Order was the appropriate and proportionate Interim Order.

6. The Panel decided the Interim Order should be for 18 months, as if the Registrant were to appeal, it may take a significant period of time to resolve.

7. The Panel makes an Interim Suspension under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest to cover the period before the substantive Suspension Order takes effect.

8. 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 Lukasz Osipowicz