Sunil Shanker Kunder

Preliminary Matters
Service

1.          On 11 January 2026, 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.

2.          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 hear part of the hearing in private

3.          Mr Maughan, before moving to the application to proceed in the absence of the Registrant, applied for parts of the hearing to heard in private. He explained that as part of his application to proceed in absence, he would be referencing matters relating to the Registrant’s private life which ought to be heard in private so as to protect the Registrant’s private life.

4.          The Panel heard and accepted the advice of the Legal Assessor. The Panel acknowledged that Mr Maughan wished to reference matters relating to the Registrant’s private life as part of his application to proceed with the hearing in the Registrant’s absence. The Panel was satisfied that it was justified to hear those matters in private, in order to protect the Registrant’s private life.

Application to proceed in the absence of the Registrant

5.          Mr Maughan, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. The Panel heard and accepted the advice of the Legal Assessor, who advised that the discretion to proceed in a Registrant’s absence must be exercised with great care and caution.

6.          The Panel had regard to all of the information, including correspondence the Registrant had sent to the HCPC fitness to practise department, dated 20 May 2024, [REDACTED]. The Panel noted that there had been no update since that email as to why the Registrant may be unable to attend, and not request for any adjournment. The Panel noted that the Registrant had sent the email from his registered email address, the same address to which the notice of hearing had been sent.

7.          The Panel was satisfied that the Registrant had been provided with the information regarding when the final hearing was to take place and had been provided with joining links to participate but had decided not to attend. It concluded that he had voluntarily absented himself. The Panel did not consider that there was any good reason to adjourn, or that such a step would secure the Registrant’s attendance on a future occasion.

8.          The Panel bore in mind that there were four HCPC witnesses arranged to give evidence over the course of the hearing who would be caused further inconvenience if the hearing were adjourned. In particular, they included the complainant and an expert. The Panel also had regard to the public interest and that cases should be heard within a reasonable period of time of the events to which they relate. The Panel noted that these allegations date back to 2023, and it was important that they should be resolved.

9.          Whilst the Panel acknowledged that there would inevitably be a disadvantage to the Registrant in proceeding in his absence, it considered that this was a consequence of his own voluntary absence from the final hearing. 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.

10.       At the outset of the hearing, Mr Maughan applied to amend the allegation by making, what he described as, minor amendments to correct typographical errors. He explained that in particular 4, the two sub-particulars were incorrectly marked ‘c’ and ‘d’. He applied to amend them to ‘a’ and ‘b’. In relation to particular 5, he applied to delete the words ‘and/or dismissal’. He explained that the dismissal was already dealt with in particular 6, and so its inclusion in particular 5 was duplicitous. Mr Maughan submitted that these were minor amendments to reflect the intended Allegation against the Registrant and there would be no prejudice to him if they were permitted.

11.       The Panel heard and accepted the advice of the Legal Assessor. The Panel decided to allow the proposed amendment. In reaching this decision, the Panel concluded that the amendments were minor and did not either increase the seriousness of the allegations against the Registrant or represent an under prosecution of the conduct alleged. In the Panel’s view they were essentially to correct typographical errors and avoid duplicity.

Background

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

13.       On 19 May 2023, the Registrant’s former employer, Sano Physiotherapy Ltd (the Company), submitted a referral to the HCPC raising concerns about the Registrant’s conduct during a physiotherapy appointment with Service User A on 10 May 2023.

14.       Service User A had been referred for physiotherapy by her employer for presenting symptoms pain in her back and legs. She had previously had an MRI scan which had identified osteoarthritis in her spine.

15.       On 10 May 2023, at 10 am, Service User A had an appointment with the Registrant at the Sano Physiotherapy Clinic in Redcar (the Clinic). She had not met the Registrant before and this was her first ever physiotherapy appointment.

16.       It is alleged that during the course of the appointment, the Registrant acted in the ways alleged at particular 1, and that his conduct was sexually motivated and/or sexual in nature.

17.       Following the appointment, Service User A, on 17 May 2023, contacted the Clinic to make a complaint about what had happened during the appointment. 

18.       On 17 May 2023, the Company started an internal investigation into the complaint and suspended the Registrant pending that investigation. On 25 May 2023, the Registrant was dismissed by the Company.

19.       It is alleged that the Registrant did not inform the HCPC of his suspension or subsequent dismissal from the Company as soon as possible or at all and that he had been dishonest in not doing so.

Decision on Facts

20.       The HCPC called the following witnesses:
·       Service User A, the complainant in respect of the appointment on 10 May 2023, and the subject of particular 1.
·       Mr MT, founder and Managing Director of the Company, which, on being made aware of Service User A’s complaint, suspended the Registrant pending its investigation and subsequently dismissed him. Mr MT made the referral to the HCPC on 19 May 2023.
·       Mr AW, a Registration Manager at the HCPC, whose main responsibilities included overseeing the team of registration advisors responsible for the UK admissions, readmissions and related processes. He interrogated the Registrations Department database to identify any contact made by the Registrant with the HCPC.
·       Mr Simon Porter, a Chartered Physiotherapist, instructed by the HCPC in the capacity of an expert.

21.       The HCPC provided a bundle of witness statements and exhibits, including:
·       Witness statements from each of the four witnesses called by the HCPC;
·       The expert report;
·       Clinical records and consent form of Service User A;
·       Audio recordings and transcripts of Service User A’s complaint to the Company;
·       Suspension and dismissal letters sent by the Company to the Registrant;
·       The Company’s email exchanges with the Registrant;
·       Screenshots from the HCPC Registrations Department data base;
·       Email correspondence between the Registrant and the HCPC.

22.       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 on a registrant’s state of mind’ and the case of Basson v GMC [2018] EWHC 505 (Admin). In relation to dishonesty, the Legal Assessor advised in accordance with the cases of Ivey v Genting Casinos (UK) Ltd t/a Crockfords   [2017] UKSC 67 and Barton and Booth v R [2020] EWCA Criminal 575. 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.

23.       The Panel considered all of the evidence, the submissions of Mr Maughan, and the written observations received from the Registrant.

Particular 1
On 10 May 2023, during a consultation with Service User A, you:
a) lowered Service User A’s leggings approximately to her ankles without clinical justification

24.       The Panel finds particular 1.a proved.

25.       The Panel’s approach was to first determine the factual dispute of who lowered the leggings, the Registrant or Service User A herself. Having determined that factual dispute, the Panel would then go on to consider the question of clinical justification.

26.       Service User A’s evidence was that the Registrant had lowered them, whereas the Registrant’s account was that he had asked Service User A to lower them which she had done. 

27.       Service User A said that at the appointment, after she had signed some consent forms, she was asked to lay down on the bench which had a hole to put her face through, face down and forward on her chest. She described that she was wearing a black T-shirt and black leggings. She said the Registrant then asked “Is it okay if I just pull your leggings down and sort of touch down sort of a bit?” Service A agreed because she presumed he would just move them down to the base of her back where the problem was. She described that he pulled her leggings down with both hands in a peeling motion to her ankles. She said he did not explain that he would pull them down to her ankles, nor did he provide her with a towel to cover her or offer her the option of a chaperone.

28.       The record of the internal investigatory meeting with the Registrant, the Company’s Director of Clinical Services and HR Administrator on 23 May 2023, summarised the Registrant describing the treatment whilst Service User A was on her front as follows:
Asked patient to lay prone. Asked patient to remove leggings, and expose top of glutes whilst performing STM (soft tissue massage) to Lumbar spine area, cleaned area following treatment.
Asked patient to remove to expose buttock and hamstrings, explaining that we can do something other treatments if not e.g. stretching. Patient consented and then exposed area and removed leggings and underwear to knees. [Registrant] gained consent for this, performed STM on glutes and hamstrings. Cleaned area and asked patient to put underwear back up leaving leggings down, turned away from patient onto computer whilst patient was redressing. Asked patient to let [Registrant] know when ready and then asked patient to lie supine…

29.       The Panel considered that Service User A’s account in her oral evidence was clear and credible. It noted that she had made the original complaint within days of the appointment. The Panel considered that her description of the incident had been detailed and coherent and was consistent throughout her initial report, her witness statement and her oral evidence. The Panel reminded itself that the Registrant’s absence must not be held against him and that his written account had not been tested under oath. In all the circumstances, the Panel was satisfied that Service User A’s account that the Registrant had pulled her leggings down to the ankles was the more likely. The Panel preferred Service User A’s account. 

30.       The Panel next considered whether lowering Service User A’s leggings to her ankles was clinically justified. In this respect it had regard to the expert evidence. In his report, the expert had opined:
The removal/lowering of the leggings to service user A’s ankles was not clinically justified, was avoidable, and inappropriate (removal of the leggings to expose the relevant buttock area would be acceptable with preservation of modesty with a towel or blanket). This was avoidable and inappropriate. Depending on the area requiring assessment, lowering the leggings to just below the area of assessment would have been more appropriate.

31.       The Panel noted the expert evidence that in some circumstances, the slight lowering of leggings might be appropriate to expose the area for assessment or treatment, but that this would involve communication with the patient to explain the process and to provide a modesty blanket or offer a chaperone. The Panel accepted Service User A’s evidence that the Registrant had not explained what he was doing or why and that he had not used a modesty towel or offered a chaperone. In any event, the extent to which the leggings had been lowered, namely to the ankles, was, according to the expert, more than was required for assessment or treatment. In all the circumstances, the Panel was satisfied that the Registrant had lowered Service User A’s leggings to her ankles without clinical justification.
Particular 1
On 10 May 2023, during a consultation with Service User A, you:
b) lowered Service User A’s underwear approximately to her ankles without clinical justification

32.       The Panel finds particular 1.b proved.

33.       The Panel’s approach was to first determine the factual dispute of who lowered the underwear, the Registrant or Service User A herself. Having determined that factual dispute, the Panel would then go on to consider the question of clinical justification.

34.       Service User A’s evidence was that the Registrant had lowered her underwear straight after having lowered her leggings, whereas the Registrant’s account was that Service User A had lowered her own underwear.

35.       Service User A said that the Registrant peeled her knickers down the same way that he had with her leggings, and she had thought ‘God, what the hell is he doing? She said that once again he did not explain that he was going to pull her knickers down to her ankles before doing it. He then massaged the bottom of her back and bum for 10 minutes, but it felt like longer because she did not want to be there and just wanted to leave. Service User A said that he cleaned her with some blue kitchen roll type product and then asked her to turn over without explaining why. She said she turned over and laid on her back with her leggings and knickers down at her ankles. She was tense and felt embarrassed and exposed. 

36.       The Registrant’s position was that he had asked Service User A to lower her own underwear and she had lowered it down to her knees. 

37.       For the same reasons as for particular 1.a, the Panel preferred the evidence of Service User A to the Registrant’s untested account and was satisfied that the Registrant had lowered Service User A’s underwear, in the form of knickers, down to her ankles.

38.       The Panel next considered whether lowering Service User A’s underwear to her ankles was clinically justified. In this respect it had regard to the expert evidence. In his report, the expert had opined:
The removal/lowering of the service user’s underwear was not clinically justified under any circumstances, and was avoidable and inappropriate as it is likely any assessment of the buttocks would not have required ‘observation’. Any ‘palpation’ or physical assessment could have been done over the underwear or with a chaperone present. Should the registrant have deemed removal of the underwear was unavoidable – he should then have called for a chaperone and/or covered the area with a towel or tissue such as that which covers plinths during assessments. The total exposure of the removal of underwear to expose the buttocks of service user A was not clinically justified.

39.       The Panel accepted the expert’s opinion, which he had reiterated in his oral evidence, that the lowering of a patient’s underwear to such an extent was unacceptable in any circumstances. In all the circumstances, the Panel was satisfied that the Registrant had lowered Service User A’s underwear to her ankles and that this was not clinically justified.
Particular 1
On 10 May 2023, during a consultation with Service User A, you:
c) did not obtain informed consent to lower Service User A’s leggings approximately to her ankles.

40.       The Panel finds particular 1.c proved.

41.       The Panel noted that Service User A had signed a consent form at the start of the appointment. However, the Panel noted that whilst the consent form identified that the removal of articles of clothing may be necessary to allow a proper examination, the form also stated that the clinician would explain each step of the assessment. The Panel did not consider that the form gave unfettered consent to remove clothing, or to remove any without explanation. The Panel noted that Service User A accepted that she had consented to what she thought would be a slight lowering of the leggings, but not for them to be lowered all the way to the ankles. The Panel accepted Service User A’s evidence that she was not asked for and did not give consent for her leggings to be lowered to the ankles.

42.       The Panel noted that the expert, on interrogating Service User A’s clinical notes,
found no entry to the effect that the Registrant had sought or gained consent. 

43.       The Panel noted that the Registrant’s account in his investigatory interview was that he had sought and gained consent some three to four times over the course of the appointment. However, this account had not been tested under oath or affirmation, nor was it supported by any entry to that effect within the clinical notes.

44.       In all the circumstances, the Panel was satisfied that the Registrant did not obtain informed consent to lower Service User A’s leggings approximately to her ankles.
Particular 1
On 10 May 2023, during a consultation with Service User A, you:
d) did not obtain informed consent to lower Service User A’s underwear approximately to her ankles

45.       The Panel finds particular 1.d proved.

46.       The Panel accepted the evidence of Service User A to the effect that she had not given consent for her knickers to be pulled down to her ankles or at all and she was not happy with it. 

47.       The Panel noted that the expert, on interrogating Service User A’s clinical notes, found no entry to the effect that the Registrant had sought or gained consent to lower her underwear and the Panel having reviewed the notes themselves was satisfied of the same.

48.       The Panel noted that the Registrant’s account in his investigatory interview was that he had sought and gained consent some three to four times over the course of the appointment. However, this account had not been tested under oath or affirmation, nor was it supported by any entry to that effect within the clinical notes.

49.       In all the circumstances, the Panel was satisfied that the Registrant did not obtain informed consent to lower Service User A’s underwear approximately to her ankles.
Particular 2
You did not inform the HCPC as soon as possible that you had been suspended by your employer on or about 17 May 2023

50.       The Panel finds particular 2 proved.

51.       The Panel had regard to the evidence of Mr AM, the Registrations Manager at the HCPC. He confirmed that having interrogated the HCPC Registrations Department database, he could find no record of the Registrant himself having notified the HCPC of his suspension from the Company.

52.       The Registrant, in correspondence with the HCPC, dated 27 August 2024, accepted that he did not inform the HCPC of his dismissal, albeit he made no mention of his position in respect of whether he had notified the HCPC of his suspension. The Registrant, in his explanation, said that he had not done so as his employer had already informed the HCPC and he did not think it necessary to do so as well. He agreed that it was his mistake and that he should have done so immediately.

53.       Given that there was no record of the Registrant informing the HCPC of his suspension and he had accepted he had made a mistake in not informing the HCPC of his dismissal, the Panel was satisfied that it was more likely than not that he did not inform the HCPC as soon as possible of his suspension.
Particular 3
You did not inform the HCPC as soon as possible that you had been dismissed by your employer on or about 25 May 2023

54.       The Panel finds particular 3 proved.

55.       The Panel had regard to the evidence of Mr AM, the Registrations Manager at the HCPC. He confirmed that having interrogated the HCPC Registrations Department database, he could find no record of the Registrant himself having notified the HCPC of his dismissal from the Company.

56.       The Panel also noted that the Registrant, in correspondence with the HCPC, dated 27 August 2024, accepted that he did not inform the HCPC of his dismissal.

57.       Given the Registrant’s acceptance that he did not notify the HCPC of his dismissal, the Panel was satisfied that he did not inform the HCPC as soon as possible of his suspension.
Particular 4
Your conduct in particular 1 was:
a) Sexually motivated

58.       The Panel finds particular 4.a proved.

59.       In assessing whether the Registrant’s conduct was sexually motivated, the Panel had regard to the HCPTS Practice Note entitled ‘Making decisions on a registrant’s state of mind’ and in particular, paragraphs 8 and 9, which state:
Paragraph 8
In determining sexual motivation, Panels must decide whether the conduct was done either in pursuit of sexual gratification or in pursuit of a future sexual relationship.   
Paragraph 9
Although this list is not exhaustive, in determining sexual motivation, Panels should consider the following factors: 
a.     The character of the conduct (i.e. is it overtly sexual, e.g. the touching of sexual organs); 
b.     The clinical appropriateness of the conduct; 
c.     The clinical justification or lack thereof for the conduct; 
d.     Any evidence regarding consent; and 
e.     The plausibility of any alternative explanation for the conduct.

60.       The Panel considered the character of the conduct to be overtly sexual in that it involved the complete removal of clothing and underwear to the point of nudity of an intimate part of the body. Whilst the slight lowering of the leggings may have been appropriate, the Panel bore in mind the expert’s opinion that the removal of underwear was unacceptable in any circumstances. The expert had also identified that measures which may preserve a patient’s dignity in a clinical setting, such as a modesty towel or offering a chaperone, had not been deployed at the appointment. The Panel also had regard to its findings that the Registrant’s actions had been without clinical justification or informed consent. The Panel considered that all of these factors supported the inference that the Registrant had acted for his own sexual gratification. 

61.       Accordingly, the Panel was satisfied that it was more likely than not that the Registrant’s conduct in particular 1 was sexually motivated.
Particular 4
Your conduct in particular 1 was:
a) sexual in nature

62.       The Panel finds particular 4.b proved.

63.       The Panel considered that a reasonable person would consider that exposing a patient’s intimate anatomy without clinical justification or consent was sexual in nature. Accordingly, the Panel was satisfied that the Registrant’s conduct in particular 1 was sexual in nature.
Particular 5
Your conduct in particular 2 was dishonest in that you knew you were supposed to notify the HCPC of your suspension
Particular 6
Your conduct in particular 3 was dishonest in that you knew you were supposed to notify the HCPC of your dismissal

64.       The Panel finds particulars 5 and 6 not proved.

65.       The Panel considered these particulars together as the same reasoning applies. The Panel first considered the Registrant’s state of mind in respect of not informing the HCPC of his suspension or dismissal. The Panel was of the view that, as a senior Physiotherapist, he would have been aware of his obligations of disclosure to the HCPC. However, the Panel did not consider that this was the end of the matter, as it had the Registrant’s explanation, dated 27 August 2024, as to the circumstances as he believed them to be at the time. In his email, the Registrant stated:
I agree that I did not inform the HCPC as I thought that since [the Company] has already done that, it would not be necessary for me to inform the HCPC as well. I agree that this was my mistake, and I should’ve informed the HCPC immediately that I had been dismissed by my employer. I ensure that I will not repeat this mistake again. 

66.       The Panel bore in mind the evidence of Mr MT that he had in fact referred the matter promptly to the HCPC on 19 May 2023. Mr MT had never met the Registrant directly, and was unable to confirm one way or the other whether or not the Registrant had been told that the Company had referred him, or that the Registrant was required to inform the HCPC himself directly.

67.       The Panel considered that the evidence indicated that the Registrant knew that the Company had already informed the HCPC of his suspension and dismissal. The Panel considered that in light of this, the Registrant may have held the genuine belief that, as his employer had already informed the HCPC of his dismissal, matters were in train with the Regulator and he was not required to inform the HCPC in addition.

68.       The Panel considered that by the standards of ordinary and decent people, this would not be regarded as dishonest.

Decision on Grounds

69.       Mr Maughan, on behalf of the HCPC, submitted that the Registrant’s conduct was of such gravity that a finding of misconduct was justified. He submitted that the conduct represented a multitude of incidents which were a gross departure of the standards expected. He submitted that in this case, the Registrant demonstrated a complete disregard of safe practice and failed to act in Service User A’s best interests by failing to respect her rights as well her privacy and dignity. He submitted that in acting as he did by exposing Service User A without her consent nor with any clinical justification, the Registrant failed to ensure that his conduct justified the public’s trust and confidence in him and the physiotherapy profession as is required under the HCPC conduct standards. 

70.       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 (N0. 2) [2000] 1 AC 311. The Legal Assessor advised that for conduct to amount to professional misconduct, it must fall short of what would be expected in the circumstances and that such a falling short must be serious and fall far below the expected standards. The Legal Assessor advised that the question of whether or not the facts found proved amounted to misconduct as alleged, was a matter for the Panel’s professional judgement.

71.       In relation to particulars 1 and 4, the Panel considered the conduct to be serious and fall far below the standards expected of a registered Physiotherapist, such that it would be considered deplorable by fellow practitioners. The matters were serious as they involved sexually motivated behaviour in a clinical context. In relation to Service User A, the Registrant’s conduct had clearly made her feel very uncomfortable, such that she had described how she just wanted to leave the appointment and had no intention of returning for further appointments or physiotherapy interventions. Furthermore, the behaviour had an impact on her, whereby for a time after the appointment she had felt “jittery” and vulnerable.

72.       The Panel considered that the Registrant’s actions had breached a number of the 2016 HCPC Standards of Conduct, Performance and Ethics (the Standards), as follows:
1.1 – You must treat service users and carers as individuals, respecting their privacy and dignity;
1.2 – You must work in partnership with service users and carers, involving them, where appropriate, in decisions about the care, treatment or other services to be provided;
1.4 – You must make sure that you have consent from service users or other appropriate authority before you provide care, treatment or other services;
2.3 – You must give service users and carers the information they want to need, in a way they can understand;
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;
73.       The Panel considered that the Registrant’s conduct had also breached a number of the HCPC’s pre-2023 Standards of Proficiency for Physiotherapists, which were in force at the time, as follows:
Registrant physiotherapists must:
1 – Be able to practise safely and effectively within their scope of practice;
2.1 – Understand the need to act in the best interest of service users at all times;
2.2 – Understand what is required of them by the Health and Care Professions Council;
2.3 – Understand the need to respect and uphold the rights, dignity, values, and autonomy of service users including their role in the diagnostic and therapeutic process and in maintaining health and wellbeing;
2.6 – Understand the importance of and be able to obtain informed consent;
2.7 – Be able to exercise a professional duty of care;
3.1 – Understand the need to maintain high standards of personal and professional conduct;
4 – Be able to practise as an autonomous professional, exercising their own professional judgement;
8 – Be able to communicate effectively;
8.6 – Understand the need to provide service users or people acting on their behalf with the information necessary to enable them to make informed decisions;
14.4 – Be able to select and use appropriate assessment technique; 
14.5 – Be able to undertake and record a thorough, sensitive and detailed assessment, using appropriate techniques and equipment.
74.       The Panel understood that not every breach of the Standards would necessarily amount to misconduct. Nevertheless, the Panel was of the view that the Registrant’s conduct in respect of particular 1 and 4 had been such a serious departure from the standards expected that it amounted to misconduct.
75.       In relation to particulars 2 and 3, the Panel considered that these were notable breaches of the Registrant’s professional obligations to keep the Regulator informed of his professional employment standing. The Panel considered that the Registrant ought to have known that just because his employer had notified the HCPC of his dismissal, that did not negate his own responsibility to also notify the HCPC of the position. However, given the Panel’s finding that the Registrant had not been dishonest in failing to notify the HCPC of his suspension and subsequent dismissal by his employer, the Panel did not consider that his conduct at particulars 2 and 3, in and of itself, was so serious as to amount to misconduct.

Decision on Impairment  

76.       Having found that the facts found proved at particulars 1 and 4 amount to misconduct, the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired as a consequence

77.       Mr Maughan submitted that in this case, given the seriousness of the panel’s findings, it would be difficult to find a pathway where the proven conduct could be remediable, given that it was conduct involving acting without clinical purpose, with a complete disregard for a service user and motivated by sexual gratification. Mr Maughan submitted that, given the absence of meaningful insight, reflection and remediation, particularly given the Registrant is not present and may be living out of the UK, there remained an obvious and serious risk of repetition.

78.       Mr Maughan further submitted that public confidence in the physiotherapy profession and the HCPC as it’s regulator would be seriously undermined if a finding of impairment was not made in a case of a Registrant had removed leggings and underwear of a service user without their consent and for non-clinical and sexual purposes.

79.       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.

80.       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.

81.       The Panel considered that the elements of poor communication and obtaining informed consent were potentially remediable. In relation to the sexual element of the misconduct, however, the Panel was mindful of the power imbalance and breach of trust between the Registrant and Service User A at the clinical appointment. This was Service User A’s first ever physiotherapy session, she had little idea of what to expect and placed her trust in the professional to assess and treat her appropriately. The Panel considered that due to the attitudinal and behavioural nature of sexually motivated conduct, such misconduct would be very difficult to remediate.

82.       However, the Panel considered that it had no evidence of any reflection by the Registrant to demonstrate any insight into his actions. The Panel acknowledged that it was the Registrant’s position that Service User A had removed her own leggings and underwear down to her knees. Nevertheless, the Panel considered that the Registrant had demonstrated no understanding why even this was not clinically justified and would have left Service User A exposed and utterly compromised her dignity.

83.       Given the Registrant’s lack of engagement in this process and the absence of evidence of any insight, remorse or remediation, the Panel considered that it was unable to conclude anything other than that there was a high likelihood of repetition. The Panel therefore concluded that the Registrant is currently impaired in respect of the personal component. 

84.       In respect of the public component, the Panel was mindful of its responsibility to protect the public, maintain public confidence in the profession and uphold professional standards. In protecting the public, the Panel considered that this involved service users who were entitled to feel safe, with their dignity protected when seeking physiotherapy treatment from a professional. In terms of maintaining public confidence, the Panel considered that the public was entitled to expect a registrant to be professional and not seek sexual gratification for himself during a clinical appointment. In terms of upholding professional standards, the Panel considered that the Registrant had brought the profession into disrepute and breached fundamental tenets of the profession, namely those of maintaining professional boundaries and respecting the dignity of service users. 

85.       The Panel considered that the Registrant’ sexual misconduct had been a gross violation of the standards expected. It considered that service users seeking treatment were in a vulnerable position and the public was entitled to place trust in the professionals providing treatment. The Panel was of the view that members of the public and the profession would be outraged if no finding of impairment were made in this case. It considered that in order to maintain public confidence in both the profession and the HCPC, the public needed reassurance that matters of this nature were taken seriously by the Regulator, especially where a high risk of repetition had been identified. In all the circumstances, the Panel concluded that the Registrant’s fitness to practise is currently impaired on the public component.

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

Decision on Sanction

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

88.       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  understood 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.

89.       The Panel identified the mitigating and aggravating factors, and evaluated them in respect of each sanction under consideration, in accordance with the case of O v NMC [2015] EWHC 2949 (Admin).

90.       The Panel considered the following to be the relevant mitigating factors:
·       The misconduct represented one, isolated act in a single appointment;
·       The Registrant was of previous good character with no fitness to practise history.

91.       The Panel considered the following to be the relevant aggravating factors:
·       The misconduct was committed in breach of the trust placed in the Registrant as a professional, given the power imbalance between therapist and service user;
·       The misconduct represented a breach of professional boundaries which was sexually motivated;
·       There was no clinical justification for the Registrant’s actions;
·       Service User A would have been caused emotional harm; and
·       There is a total absence of insight, remorse and remediation, meaning that the ongoing risk of repetition is high.

92.       The Panel did not consider the options of taking no further action or mediation to be appropriate or proportionate in the circumstances of this case. Neither would address the ongoing risks, including the high risk of repetition which the Panel had identified at the impairment stage. In any event, the Panel considered that the case is too serious and neither option would meet the significant public interest considerations, including the importance of maintaining the public’s confidence in the profession and the regulatory process. Furthermore, the Panel was of the view that taking no action would send the wrong message to the public and the profession. Accordingly, the Panel was not satisfied that the options of taking no action or mediation would be the appropriate or proportionate responses.

93.       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 the high risk of repetition which it had identified. 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 misconduct was isolated, it did not consider it to be limited or relatively minor in nature; that the risk of repetition was low; or that the Registrant had shown good insight and undertaken appropriate remediation. In any event, the Panel was of the view that the case was too serious to address the significant public interest considerations with a Caution Order. Accordingly, the Panel was not satisfied that a Caution Order was the appropriate or proportionate response.

94.       The Panel next considered a Conditions of Practice Order. It had regard to the Policy, in particular paragraph 153 of the Policy, which sets out the factors which may indicate when a Conditions of Practice Order is appropriate:
A conditions of practice order is likely to be appropriate in cases where: 
·       the registrant has insight;  
·       the concerns are capable of being remedied or managed;  
·       there are no persistent or general concerns which would prevent the registrant from remediating; 
·       appropriate, proportionate, realistic and verifiable conditions can be formulated;  
·       the panel is confident the registrant will comply with the conditions;   
·       a reviewing panel will be able to determine whether or not those conditions have or are being met; and  
·       a panel is satisfied that a registrant may continue to practise with conditions without exposing the public to risk of harm.

95.       The Panel did not consider that it had evidence of any insight. It was mindful of its earlier observations to the effect that the Registrant’s sexual misconduct would be very difficult to remediate, given its attitudinal and behavioural nature. Consequently, the Panel did not identify any workable conditions sufficient to address the public protection and public interest considerations in this case. Furthermore, given the absence of any engagement from the Registrant in these proceedings, the Panel had no basis on which to be confident that the Registrant would comply with the conditions. In the circumstances of this case, the Panel was not satisfied that conditions would sufficiently address either the public protection or public interest considerations in this case.

96.       The Panel next considered a Suspension Order. It acknowledged that such an Order would protect the public for the period during which it was in place, but also recognised that this was not the only consideration, and that it must have regard to the public interest considerations. In particular, the Panel had regard to paragraph 170 of the Policy and the factors which may indicate that a Suspension Order is appropriate:
·       the registrant has insight;  
·       the issues are unlikely to be repeated; or 
·       there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings, particularly in cases where the registrant has demonstrated they have begun to do so or given a credible explanation for how they will do so.

97.       The Panel was of the view that none of these factors were present in this case. The Panel had identified the misconduct as deliberate, in that it was sexually motivated, and that it had been committed in breach of the trust placed in Physiotherapists by service users. Given the lack of engagement in the proceedings, the Panel had no evidence of any insight on the part of the Registrant, which had contributed to the Panel’s conclusion that there was a high risk of repetition. In addition, the absence of engagement meant that the Panel had no evidence to suggest that the Registrant would be likely to be able to remedy the misconduct. 

98.       The Panel went on to consider a Striking-Off Order. The Panel had regard to paragraph 179 of the Policy, which identifies that: 
A Striking-Off Order may be appropriate for serious, persistent, deliberate or reckless acts which include conduct which is…sexual in nature or sexually motivated.

99.       The Panel also had regard to paragraph 180, which states:
A striking off order is likely to be appropriate, whether or not the conduct is included in the examples of such conduct in the list above, 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.  Some examples of such conduct include (this list is not exhaustive), where the registrant:  
·       lacks insight;  
·       …
·       is unwilling to resolve matters.  

100.   The Panel considered that in the circumstances of this case, the nature and gravity of the misconduct, which involved conduct of a sexually motivated nature, committed in breach of trust, was such that any lesser sanction would be insufficient to protect the public, public confidence in the profession and the regulatory process. Accordingly, the Panel concluded that a Striking-Off Order is the only sanction which is sufficient to protect the public, maintain public confidence in the profession and the regulatory process, and to uphold proper standards of conduct and behaviour.

101.   The Panel was mindful of the principle of proportionality when considering the appropriate sanction. It acknowledged that such an Order will preclude the Registrant from working as a Physiotherapist within the UK and may cause him significant hardship. However, the panel was of the view that the public interest considerations outweighed the Registrant’s own interests. In the Panel’s judgement, a Striking-Off order was the only appropriate and proportionate sanction in this case and no lesser sanction would serve the purpose of both protecting the public and meeting the wider public interest. 

ORDER: The Registrar is directed to strike-off the name of Sunil Shanker Kunder from the Registrant on the date that this Order comes into effect.

Interim Order
Application

1.     Mr Maughan, on behalf of the HCPC, applied for an Interim Order of Suspension for 18 months to cover the appeal period before the Striking-Off Order comes into effect. He directed the Panel’s attention to the notice of hearing, in which the prospect of applying for an Interim order at the end of the hearing was set out. Mr Maughan submitted that an Interim Order was necessary to protect the public and was otherwise in the public interest to cover the duration of the appeal period, given the seriousness nature of the findings

Decision

2.     The Panel heard and accepted the advice of the Legal Assessor and had regard to the Practice Note on Interim Orders.

3.     The Panel was satisfied that the Registrant had been given notice within the notice of hearing of the HCPC’s intention to apply for an Interim Order at the end of the hearing in the event that a restrictive sanction was imposed. It was further satisfied that it was appropriate and fair to hear and decide the application in his absence for the same reasons it had decided to proceed with the final hearing in the Registrant’s absence.  

4.     The Panel considered whether an Interim Order was necessary to protect the public and concluded that one was necessary. The Panel has found misconduct and current impaired fitness to practise on both the personal and public components, in respect of serious sexual misconduct which had a consequential impact on public protection and public confidence in the profession. The Panel had also found that the absence of insight, remorse and remediation meant that there is a high risk of repetition. The Panel, therefore, concluded that an Interim Order was necessary to protect the public.

5.     The Panel also considered the wider public interest. The Panel concluded that, having found that the Registrant’s fitness to practise is currently impaired, and that the only appropriate sanction is one of a Striking Off Order, the public would be shocked and troubled if the Registrant were permitted to practise during the appeal period.  It therefore concluded that an Interim Order was required to maintain public confidence in the profession and to uphold proper standards of conduct and behaviour.

6.     Accordingly, the Panel concluded that an Interim Order is necessary to protect the public and is otherwise in the public interest.

7.     The Panel considered an Interim Conditions of Practice Order, but in light of the Strike-Off, the Panel was of the view the case was too serious to be dealt with by way of conditions for the same reasons as set out in the substantive hearing. 

8.     In all the circumstances the Panel determined to make an Interim Suspension Order for a period of 18 months. In deciding to impose this length, it took account of the fact that if the Registrant were to appeal, that process may take a considerable period of time.
The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.  

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 Sunil Shanker Kunder