David R Nelson

Preliminary Application to Amend
1. The HCPC made an application to rectify several minor typographical errors in the application, namely:

(a) to remove a typographical error in Particular 5(a), namely the inclusion of an additional “a”, and;
(b) to rectify a typographical error in which the number “5” has been omitted from Particular 6, following the joinder decision of the Conduct and Competence Panel on 11 August 2025.

2. The Registrant was put on notice of the application to amend on 6 May 2026. On 19 May 2026, he Registrant’s Representative confirmed, “I confirm we have no objection to the amendment to the allegations.”

3. Having taken legal advice the Panel was satisfied that the amendment was appropriate and fair and that no prejudice arose. The Panel found that the amendment was minor and did not alter the allegation in any material way. The amendment was allowed.

Application for Special Measures for Witness B

4. The HCPC presented a Skeleton Argument in support of an application for special measures for Witness B. Special measures have already been granted in respect of Person A and Person C at an e-preliminary hearing on 2 June 2026.

5. Witness B states that she is anxious and feels intimidated about giving evidence given the alleged circumstances. She satisfies the requirement that the hearing is likely to have an adverse impact upon the quality of their evidence. She has requested that she attend the hearing virtually and has screens in place during her evidence (virtual or physical). The application was not opposed.

6. Having taken legal advice from the Legal Assessor as to fairness and proportionality, the Panel was satisfied that it was appropriate and fair to agree to the requested special measures that will support and assist Witness B in giving their best evidence.

7. The Allegation was read and the Registrant made a partial admission to allegation 7. The Registrant accepted that he did discuss Person D’s treatment with Person C but denied the remainder of the allegation. All other allegations were denied.

Background

8. David Nelson (“the Registrant”) provided private 1:1 physiotherapy sessions and group yoga instruction at the MacDonald Cardona Hotel (“the Hotel”). The Registrant is registered with the HCPC as a Physiotherapist.

9. Between December 2022 and October 2023, Person C attended physiotherapy sessions with the Registrant. Person C alleges that, during one of the sessions between April 2023 and October 2023, the Registrant unzipped the flies of his trousers and pulled them down in front of her to around his knees.

10. Person C further describes that, during her appointments with the Registrant in the summer of 2023, he spoke to Person C about her friend Person D’s scans and test results.

11. In May 2023, Person B began to attend the Registrant’s yoga classes at the Hotel, having been referred by a friend. In September 2023, Person B told her friend, Person A, that she was attending the Registrant and Person A decided to try the classes.

12. Person B attended the Registrant’s yoga classes from May until October 2023 and Person A attended the Registrant’s yoga classes from September until October 2023. Person B also attended three physiotherapy sessions with the Registrant in October 2023.

13. On 23 October 2023, Person B attended the Registrant’s Monday night yoga class. During the class, Person B described that she was having a discussion with the Registrant regarding the correct standing posture to relieve her sciatica pain. During this discussion, Person B alleges that the Registrant adjusted her positioning and cupped her right breast with his hand. Person B described that this felt too prolonged to be accidental.

14. On 30 October 2023, Person A attended the Registrant’s Monday night yoga class. During the class, Person A alleges that the Registrant came over to adjust her positioning and while doing so, placed his left hand in a cupped position on her left breast.

15. In October 2023, Person C also attended yoga sessions with the Registrant at the Hotel. Person A, Person B and Person C all describe the Registrant touching individuals in the yoga class to make adjustments to their positioning, without asking for consent before doing so.

16. The HCPC received three separate complaints in respect of the Registrant. The first two were received on 11 April 2024 from Person A and Person B, and the third was received on 10 May 2024 from Person C.

17. The concerns raised by Person A, Person B and Person C were initially investigated separately by the HCPC. On 11 August 2025, a preliminary hearing took place to consider joining the three matters. The Registrant’s Representative confirmed in advance of the preliminary hearing that he had no objection to the matters being joined. All three complaints are now reflected in the current Allegation.

18. The Panel agreed to the HCPC’s application for joinder, and the amended allegation was sent to the Registrant on 17 September 2025 confirming the Allegation was referred to the Conduct and Competence Panel.

Witnesses

The HCPC called the following witnesses to give live evidence:
1. Person A
2. Person C
3. Person B
Summary of Evidence

Witness Person A

19. Person A affirmed and confirmed the accuracy of her signed witness statement which was adopted as her evidence. She told the Panel she is a yoga instructor and has been since she was 20/21 years old. She attended her first yoga class with the Registrant in September 2023. She told the Panel that at times there would be partner work in the class where you would work with another member of the class.

20. Person A told the Panel that Mr Nelson often came round to adjust people’s positioning in his yoga classes without asking for prior consent to do so. She said that she has had other yoga instructors in the past adjust her positioning, however in her experience it was quite rare. On each of these occasions, the yoga instructor explained how they wanted to adjust her positioning and asked for consent before touching me.

21. Person A said that she had discussed with her Person B and they had agreed that the Registrant was quite old fashioned and that he might be less aware of how times had moved on, and that he probably should ask for consent. They knew he had a military background as he discussed.

22. Person A in her witness statement said: “On 30 October 2023, I attended Mr Nelson’s weekly Monday night yoga class between 19:45 and 21:00. Roughly an hour into the class, I was in a triangle pose (Trikonasana) stood with my legs wide, leaning to my right, with my right hand on my right leg, and left arm pointing straight upwards. Mr Nelson had asked the class to face upwards so my head was turned upwards and I was looking at the ceiling. While I was in this pose, Mr Nelson came over to me and adjusted my positioning from behind. When he did so, he placed his left hand in a cupped position on my left breast. I cannot remember what he did with his right hand at the time. He did not ask for my consent before he touched me.

I was so shocked I did not do or say anything, I just remained frozen. I then had what I would describe as a ‘body jerk’ where it felt as though I had received an electric shock. I do not know if this was visible to others but as the class was asked to face upwards and look at the ceiling for the triangle pose it is likely it was not visible. I then had a second of awareness and felt sorry for Mr Nelson as I thought it must be embarrassing for him to accidentally touch my breast. In the moment, I believed after a few seconds he would realise what he had done and apologise, however he did not do or say anything to acknowledge that he had touched my breast.

Mr Nelson continued talking to the class giving out instructions and talking to me about my positing in a calm manner, while touching my breast. As far as I am aware, no one else saw what was happening. In total I estimate that Mr Nelson cupped my breast for at least five seconds before he let go and walked away…Almost immediately after this incident, Mr Nelson brought a male participant of the yoga class (I do not know his name) to the front to demonstrate the position with him. I noticed that Mr Nelson touched the man’s shoulder rather than his chest area.”

23. Person A said in live evidence that she would have expected consent to have been asked for on each occasion she was touched by the Registrant. She said she had not been comfortable but others seemed content with it. She said she had consented as she carried on attending the class. She said she would have preferred not to be touched if the Registrant had asked, but she “never said anything at the time...and would have preferred that it didn’t happen.”

24. Person A said she felt that contact by the Registrant with her breast was not accidental as she had been held for several seconds, and if accidental she said she would have expected him to apologise. She said that if he had apologised she would have felt comfortable but she had frozen involuntarily. The Registrant had said nothing.

25. Person A initially said she felt embarrassed for the Registrant and then felt it was not accidental. She said she was unable to speak and she felt frightened, it felt like an assault and the Registrant had “power over me” and she had wanted to leave the room. She felt her faculties shut down and she “froze”.

26. Person A explained that she decided to complain to the HCPC about the Registrant after discussing her concerns with a friend, Person B. Person A said in her witness statement:- “I decided to make the referral as I know and a woman named have also had similar experiences with Mr Nelson and I was concerned about the safety of vulnerable women. and I had discussed my incident and her incident with Mr Nelson over WhatsApp and in person so I was aware she had had a similar experience. I have another friend named Person C who I had spoken to about my concerns regarding Mr Nelson and she had told me that a friend of hers, [Person C], had also had a similar experience with him. I knew of vaguely through work….I spoke to [ ] and about making the referral to the HCPC. I know that [B and C] and have also submitted their own referrals.”

27. Person A said that Person B was a friend. Person A said she did not share the contents of her referral to the HCPC with Person B, although she knew that they had both made a referral to the HCPC about the Registrant. She had also learned through a mutual friend about Person C who had a similar experience with the Registrant. Person A said she did not see Person C’s HCPC referral.

28. In cross examination, Person A said that the class on the day was busy, about ten people. She said attendees were about 1 to 2 metres apart. She agreed that one can look at other class members but in this position she was looking at the ceiling. She said that she did not know the Registrant was “adjusting” people. She was referred to the texts she had exchanged with Person B and accepted that she had said “he was moving people” but that was after the event when she was explaining the incident to Person B. She could not recall if verbal instructions were given by the Registrant, but she did recall that he had asked her to turn more upwards and did not touch her ribs.

29. Person A said he had touched her to correct her posture, or that was the pretext in any event. Person A said that the class would not have seen the Registrant touching her breast as they were all told to look at the ceiling.

30. Person A said she had spoken to Person B and Person C and shared her story with them both before making the statement for the HCPC. She had later met with the police to report the matter. She had been told what the police could do as regards the reporting of an offence, but she did not do so as she could not face a criminal investigation.

31. Person A discussed the concerns with Person B and about the mutual friend who had told her about Person C’s concerns about the Registrant taking his trousers down to show his hip to her.

32. Person A said in re-examination, that neither Person B nor C had told her what to say in her HCPC referral. Despite practising yoga for some years, Person A said that she had never experienced her breast being touched by a yoga teacher.

33. In response to Panel questions, Person A said that the Registrant had “cupped” her whole breast, including her nipple, for about five seconds. She said that she was “very certain” that everyone else was looking up at the ceiling.

Witness Person C

34. Person C affirmed and adopted her signed witness statement. She explained that she had consulted the Registrant since 2022 and he had assisted her in recovering from a hip replacement.

35. Person C told the Panel about the alleged incident in her witness statement :- “Mr Nelson had a hands-on approach to his physiotherapy. I have seen other physiotherapists in the past and Mr Nelson used his hands more than they did to point to bits of our bodies, mostly our hips and backs. Sometimes he made physical contact with my body, both over clothes and on bare skin, and sometimes he just pointed in the general direction, although I cannot recall the context or any specific examples. I cannot remember if Mr Nelson asked for my permission before he touched me.
I attended the appointments dressed in leggings and a t-shirt. On a few occasions I gave Mr Nelson consent to massage the scar at my operation site which was on my buttock. On these occasions I pulled down my leggings to reveal the scar. Incident when Mr Nelson unzipped his trousers.
On a date I cannot recall between April 2023 and October 2023, in one of my physiotherapy sessions, Mr Nelson unzipped the flies of his trousers and pulled them down in front of me to around his knees. 14. I cannot recall if I was lying down or sat, but I remember I was on the massage table at the time. Mr Nelson was not directly facing me so I could see his side profile. Mr Nelson’s trousers were down for less than a minute before he pulled them back up. I cannot recall exactly where Mr Nelson was stood in relation to me but to the best of my memory I believe he was stood on my left.
I do not know why Mr Nelson pulled his trousers down in front of me, however, from memory I believe he was showing me something on his hip.
I did not feel threatened at the time of appointment as I come from a sporting background and I am used to people changing in front of one another. I am, however, aware that other people are more reserved and could feel threatened by this behaviour, especially due to the secluded area the appointment is in.
I have not said anything to Mr Nelson about my concerns. I was very dependent on Mr Nelson in the intense period after my hip operation and believe that may have been why I have not spoken to him about this.”

36. In live evidence, Person C said the Registrant was showing her a position, an anatomical place on his hip, but she did not see why he had to take his trousers down. She recalled that he had been pointing at his hip or buttock, but she could not recall why but it was something to do with hip surgery and the hip muscles. The Registrant was wearing underwear. She said that she felt it was a bit odd and was surprised. When she later told her partner they were both thought that it had been “a bit odd” because he had taken down his trousers. She felt it was “crossing a boundary.”

37. Person C said that at the time she had just carried on with the appointment and did not say anything, but that she would have wanted to say it was not appropriate. She had felt she had a lot going on in her life at the time and she had felt dependent on the treatment from the Registrant to recover from her hip replacement.

38. As regards the alleged breach of confidentiality, Person C stated:- “Sometime during the summer of 2023, on a date I cannot recall, I attended an appointment with Mr Nelson where he openly spoke to me about my friend, [Person D]’s recent scans. I know attended physiotherapy sessions with Mr Nelson through the Practice and that she had been for a scan over the summer of 2023. I cannot remember how Mr Nelson knew that and I were friends…During the appointment Mr Nelson discussed [Person D] ’s scan with me in a conversational way, he did not show me the scans….When I spoke to [Person D] after the appointment she did not think it was appropriate for Mr Nelson to be sharing her test results with me. I saw [Person D] frequently so I believe this conversation was face to face but I cannot recall for certain.”

39. Person C said they all lived in a small place and she felt that what the Registrant had said to her about Person D was not appropriate, although she knew that Person D had had a scan. She could not recall exactly what the Registrant had said about the scan and the reference to “test results” was a reference to the scan.

40. Person C also told the Panel in live evidence, and in her witness statement, about the yoga classes taken by the Registrant. She said he would frequently adjust people’s positions by touching them, but he would not explain that before doing so. She had also been told by Person A about Person B and their concerns regarding the Registrant at yoga classes. As a result, Person C said that she had stopped going to the yoga classes or physiotherapy. Person C said that she had been told by a friend that the Registrant had touched Person A’s breast at a yoga class. She had also been told that Person B had similar concerns about the Registrant.

41. Person C said that she would have expected the Registrant to ask for consent before touching attendees, but he had not done so. She said that she never personally experienced any issues with the Registrant during his yoga classes.

42. Person C made a referral about the Registrant to the HCPC on 10 May 2024. She said she had done so because his conduct “was not correct.” She had not referred it earlier due to a family bereavement. She had discussed it with friends and Person A. She said she was trying to work out what to do that was right for everyone and what she could deal with. She did not recall whether Person A had seen a copy of the referral to the HCPC, but possibly she had and she did know Person A and Person B also had made referrals to the HCPC.

43. In cross examination, Person C said she had about 23 appointments with the Registrant in 2023. She said he was a “fantastic” physiotherapist as to diagnosis and treatment, but not his professional skills. He had been an integral part of her recovery from her hip replacement. She also referred two family members to the Registrant.

44. As regards the incident with the Registrant taking down his trousers, she accepted her complaint to the HCPC was made after Person A had done so.

45. As regards the issue about Person D’s scan, Person C said she had a degree of concern about their health, but she did not think Person D had told her about the scan, as Person D had been concerned about the conversation that the Registrant had had with Person C. Person C was referred to her HCPC referral form where she stated “[The Registrant] openly talked about her treatment and upcoming tests.” She said she could not recall anything further. Person C confirmed that she had never personally experienced any issues with the Registrant at the yoga classes she attended.

46. In response to Panel questions, Person C said that in relation to the Registrant taking down his trousers, the Registrant had done so to be specific about part of her hip or buttock and it was part of the treatment she was receiving. She recalled that it was when she was on the massage table and it was something about the buttock area to show a precise area. She said his trousers were pulled down for about a minute, it had been fairly quick and he was talking as he was showing her on his body.

Witness Person B

47. The witness affirmed and adopted her signed witness statement. She told the Panel that she attended yoga classes taken by the Registrant and how the Registrant would adjust their position without actually asking for consent to do so. She also was referred to the Registrant by her GP for physiotherapy.

48. Person B said in her statement that: “I understand that part of his responsibility as a yoga instructor is to ensure people are practising with correct positioning, however, Mr Nelson never asked for consent to do so. I have previously worked as a snow sports instructor, and I was taught to always ask for permission from the client before adjusting their positioning. I also always explained why I was adjusting their positioning. Mr Nelson did not do either of these in the yoga classes I attended.

49. Person B said that she would have expected to be asked for consent before being touched. She said the said that she felt uncomfortable about the issue and it did feel at time surprising. She said she was not good with touch when it was not consented to but she did not raise it with the Registrant as everyone else seemed content with it. She was also embarrassed to raise it publicly. She said that implicit consent was not raised at the start of the class but there was never any such discussion. She said that at one point that the yoga class had felt “oversexualised and inappropriate”.

50. Regarding the incident at the yoga class on 23 October 2023 Person B stated in her witness statement:
“Whilst I paid for the class Mr Nelson and I discussed the correct standing posture to relieve my sciatica pain. When we were having this discussion Mr Nelson and I were face to face. Mr Nelson then grabbed my shoulders with both hands, and turned me around, rotating me 180 degrees so he was directly behind me. Mr Nelson then put his left hand in my lumbar region and pushed forward while he pulled my shoulders up and back with his right hand placed on my right breast. Mr Nelson’s hands were touching me but his body was not, however I would estimate he was only a few inches away. Mr Nelson said something along the lines of ‘you’ve got to do this, go to push your pelvis forward and pin back your shoulders’ whilst he did this…
Mr Nelson cupped my right breast with his right hand and, in my opinion, it felt too prolonged to be accidental. He stood in close proximity to me and it felt as though his pelvis region was very close to the side of my hip, approximately a few inches away (similar to the incident in the physiotherapy session a few months prior). Mr Nelson’s body was not touching mine at this time however it felt very close and like an invasion of my personal space…I was very shocked and found it very difficult to comprehend what Mr Nelson’s intentions were. At the time it was difficult to call Mr Nelson out for touching my breast in case I got it wrong, which would have been embarrassing... I did not attend another yoga class after that.”

51. Person B said that it felt very intentional as it was prolonged. It did not feel accidental and the Registrant said nothing and did not apologise. She later discussed the incident with a good friend and with Person A with whom she exchanged WhatsApp messages which were exhibited. She said she felt that there was a pattern of behaviour by the Registrant in both the physiotherapy session and yoga classes.

52. Person B explained that she discussed the matter with Person A and they both subsequently made a referral to the HCPC about the Registrant. She said that they did not see the HCPC referrals they each made.

53. In cross examination, Person B confirmed that she went to over 20 yoga classes conducted by the Registrant over the course of a year from May 2023. She had also recommended the classes to a friend. She confirmed that the Registrant regularly would “adjust” attendees at the classes by touching them. She said that he touched her about once per session, she said she was a beginner. She accepted that the Registrant had to correct attendees at the classes. She said that she did not read his website.

54. Person B said that she would be surprised sometimes when the Registrant adjusted her as he could approach from behind and without any warning or seeing his approach. She said every time he adjusted her it made her “jump” and “freeze up”. She confirmed that she also had sports massage on her legs and back from the Registrant in July 2023. She said she only had an issue when there was no consent.

55. Person B discussed the consent issues with Person A in about September 2023, but she had subsequently returned to his classes after that time. She said that she did tend to over-react and overthink things. She accepted that she did not ask him to seek her consent before adjusting her position and she also had the Registrant’s telephone number, but she did not contact him and said she had felt embarrassed to leave the class despite accepting that she had opportunities to do so.

56. Person B said that she did not agree that she was giving implied consent by attending the classes, although you could look at it that way she considered that you have to give consent every time.

57. As regards the 23 October 2023 incident at the yoga class, Person B said that at the time she also saw the Registrant for three physiotherapy sessions around October 2023. She said she had spoken to the Registrant at the start of the yoga class and she had asked the Registrant about what pose could relieve her sciatic pain. He then had touched her shoulders and her breast. She accepted others were present preparing for the class but said it was a busy environment and those present could easily have overlooked the incident. She said the touch was firm and too prolonged to be accidental particularly given the position of his hand. Person B then attended the yoga class of over one hour duration.

58. Person B was referred to her email to Scottish Borders Rape Crisis Centre (SBRCC) dated 10 November 2023 where she had said the Registrant touching her breast had been a mistake. She said she had doubted herself, but now with hindsight and having considered it further, she felt that it had been deliberate. She accepted that the more she talked about it, and the more she had discussed it with Person A, the more certain she was about the incident and that it was a pattern of behaviour by the Registrant.

59. In response to Panel questions, Person B confirmed that she had attended yoga classes from May – October 2023 and attended 20-25 classes; the sports massage with the Registrant was in July 2023; and in September her GP had referred to physiotherapy with the Registrant and she had three physiotherapist sessions with him in October 2023. During the massage she had felt that the Registrant’s pelvic region was very close to her.

60. [Person B said she felt “unsafe” raising concerns with the Registrant as she had previously suffered abuse and she had not been believed at that time. She said that was not about the Registrant’s conduct specifically].

Half Time Submission

61. The HCPC closed their case and Mr Bruce for the Registrant made a half time submission of no case to answer in respect of Allegation, Particular 6. He submitted that the allegation was incapable of being proved and should proceed no further. Allegation, Particular 6 alleges that the conduct in Particular 5 was sexually motivated.

62. Mr Bruce submitted that there was a lack of sufficient evidence to allow the HCPC to discharge the burden of proof. He referred to the relevant case law and to the HCPC Case Summary which properly sets out the law.

63. Mr Bruce submitted that there were other allegations of a sexual nature but they are not analogous as they occurred in a yoga class and they allege a sexual assault, which Particular 5 is not. Person C said in her evidence that what the Registrant was doing, as alleged in Particular 5, was to point to an anatomical place relevant to her recent hip replacement and was to show more precisely what they were talking about. Person C said the conduct was “clinical”.

64. Mr Bruce submitted that any link to sexual motivation was tenuous, weak and also inconsistent with the evidence of Person C who was clear the act was clinical. The evidence was that the conduct was not sexual. Any finding of sexual motivation would contradict Person C’s evidence. Person C provides the only evidence on this Particular, and it would be unreasonable to contradict her evidence.

65. Mr Blair for the HCPC, opposed the application. He submitted that the law is reflected in the HCPC Practice Note on half time submissions - essentially whether taking the evidence at its highest could a Panel conclude that the allegation has been proved. There is no suggestion that the trousers were not taken down and the sole question is one of sexual motivation.

66. Mr Blair submitted that the best evidence is the Registrant’s behaviour and he referred to paragraphs 9-14 of the HCPC Practice Note on “I.” He submitted the question is - could a Panel reasonable infer that the act done was for sexual gratification and he said it was a “jury point.” He submitted there was no clinical justification and that the removal of trousers was typically a sexual matter. He stated that the explanation was an inference Person C drew, but she also said that she did not know why he could not do what he did with his trousers on.

67. Mr Blair submitted that the clinical justification was an excuse, and sexual motivation was an inference open to the Panel which was supported by the context of the case as a whole, in particular the two other allegations about sexual assault and lack of consent.

Decision on Half Time Submission

68. The Panel accepted legal advice from the Legal Assessor regarding half time submissions and sexual motivation. He referred the Panel to the relevant HCPC Practice Notes and to the cases of R v Galbraith [1981] 1 WLR 1039, Basson v GMC [2018] EWHC 505 (Admin) and Haris v GMC [2021] EWCA Civ 763.

69. The Panel was mindful of the guidance in Galbraith, and on sexual motivation and it considered all the evidence it had heard about Particulars 5 and 6. The Panel considered that the only evidence in this regards was from Person C and there was no other evidence regarding these allegations.

70. The Panel was of the view that the alleged conduct was not overtly or manifestly sexual in nature. The situation and circumstances were very different from the other allegations alleging about sexual motivation and the Panel did not rely to any extent of the evidence it has heard in respect of those other parts of the allegation.

71. Person C said that she found that the conduct was “quite odd” and she had been “surprised”. She did not say that she considered the conduct to be sexually motivated, or that at the time she felt shocked, albeit she considered the conduct was inappropriate and unnecessary. She said in her evidence that she thought that the conduct was relevant to her hip treatment and she described it as “clinical.”

72. The Panel was of the view that, while the conduct may not have been clinically appropriate and possibly ill-judged, there was no evidence from which it could draw any reasonable inferences of sexual motivation. There was evidence that it was, to some extent, conduct that was relevant to what was being discussed with Person C, and to the treatment she was receiving from the Registrant.

73. The Panel concluded that the nature and circumstances of the conduct as set out in the evidence was not such as to suggest or infer any sexual connotations or motivation. There was no other evidence from which the Panel could properly draw any reasonable inference of sexual motivation in respect of this conduct.

74. The Panel did not consider the issue of consent arose in this matter. It concluded that there was no evidence from it could properly or reasonably draw any inferences that the conduct alleged in Particular 5 was sexually motivated.

75. In these circumstances, the Panel decided that the half time submission was made out. It therefore agreed to strike out allegation, Particular 6 on the basis that there is insufficient evidence, taken at its highest, on which it could properly find that Particular proved.

Day 3 - 11 June 2026
The Registrant’s Evidence

76. The Registrant took the oath and gave his evidence. He outlined his qualifications and career history. He has a BSc (1999) in Sports Science from Bangor University, and an MSc (2003) in Rehabilitation Science from Caledonian University. Between 1986 – 1993 he was in the Royal Engineers where he was a Combat Engineer. He was deployed in Germany and Plymouth and then became a Commando Engineer supporting the Royal Marines. He did tours in Belize and Norway and in Iraq after the Gulf War. He was first registered with the HCPC in 2003.

77. The Registrant said he has been a Physiotherapist for 23 years including a period working as a civilian Band 6 Physiotherapist in the Military. He also worked for about 4 years in a Fire Fighters charity, part of that time in a Band 7 role leading a team. The Registrant also had a private physiotherapist practice for about 4 years during which he saw several hundred patients.

78. The Registrant is also qualified as a yoga instructor following to year course 2003-2005. He started working as a yoga instructor in 2005 and is currently working as a yoga instructor. His website went live in 2021 when he first started teaching yoga in Peebles. His website states that he will touch to “adjust” attendees to help correct posture during classes.

79. The Registrant said that on his web site he highlights that he would “adjust” attendees, that is touch attendees, at yoga classes. He understood that the style of yoga was such that consent was implied by attending the class. If a person attends they are therefore consenting and are doing so if there return to the class.

80. The Registrant said that Person A, Person B and Person C all attended classes and none raised any issues with him before or after any of the classes. The Registrant said that all returned to his yoga classes and he said he would have referred all attendees to his website. Person C had a 1-1 session with him and the Registrant said he had made adjustments to her during that consultation.

81. The Registrant said that none of the three ever told him they did want to be touched by him. If they had asked not to be touched he would not have done so as that would have been disrespectful. The Registrant said that none of them gave him any indication that they were uncomfortable being touched by him. If they had asked he would have stopped adjusting them and perhaps then had a discussion after the class to clarify.

82. The Registrant explained his approach to consent and said that he would aways seek verbal consent and also make a written note of consent. He referred to patient notes for Person B noting that consent was given in July 2023. He did not know about the allegations at that time. He said that he know seeks ongoing consent.

83. The Registrant next provided evidence about allegation 2 and Person B. He said that he recalled Person B speaking to him about her sciatica when she was on her mat just before the yoga class started about 7.40pm. Others were also present setting up for the class. He recalled approaching her and speaking to her with others either side of her. There were about 8-10 people in the class about 1 – 2 metres apart in a row.

84. The Registrant said that he suggested to Person B a yoga pose rotating with your left arm toward the ceiling. He said that he showed her the pose and as she seemed confused so he assisted her and put his hand on her side to assist her. She had been attending his yoga class for about six months at the point.

85. The Registrant said he put his right hand on her right hip when assisting her and his left hand on her wrist to extend the arm up. Given the passage of time, he said that he could not be sure exactly where. He thought she could not fully understand his verbal instructions.

86. Some of those others present in close proximity had observed, as was typical. He said he held the pose for her for about 5 seconds. He recalled her saying thank you to him and then he started the class and she stayed and did the class. As regards touching Person B’s breast the Registrant said he refuted that allegation.

87. The Registrant next gave evidence as regards allegation 3 and Person A. He described the yoga class room at the hotel as about 20m square and there was a mixture of men and women. He said that the triangle pose was towards the end of the class about 8.40pm. He had asked a male member of the class to come out to the front to demonstrate the pose. He then adjusted the pose and posture by coming behind the person and placing one hand on their lower rib cage and the other on their arm to point to the ceiling. This was how he had been taught.

88. The Registrant said that Person A was over reaching and he recalled lifting her arm up more to stop over flexing. He said he was talking her through that as he was doing so. He said he would have been standing behind her and putting his left hand on her right wrist, with his right hand on her lower ribs. This was intended to put her in the correct posture and he said he would have touched for about 5-10 seconds. He did not recall Person A saying anything to him, people rarely do so. He said he did not touch her breast. After adjusting Person A he went to the next person in line and adjusted them.

89. The Registrant said that he always told attendees to come out of the posture if they wanted to. While in this posture he would ask them to try to look up at the ceiling, but they could move their head anywhere while in the posture. He would typically request that attendees hold the posture for about 30 seconds to 1½ minutes.

90. The Registrant said Person A had left the class the following morning and so he had contacted her. He said he was concerned she may be injured and he had concerned about her well-being. He left a message asking why she had left the class. As Person B was a good friend of her he also then contacted Person B with whom he had a good relationship and had attended his class for six months. The Registrant said he has not been contacted by the police.

91. As regards allegation 5, the Registrant said he did not take down his trousers or expose his underpants. He said that would never be acceptable and he would never pull down his trousers in front of a patient or expose his underpants.

92. In respect of allegation Particular 7, the Registrant said that Person D was recommended to him by Person C. He said he had referred Person D for an MRI scan in about September 2023 after providing three treatments.

93. The Registrant disclosed to Person C that he was going to refer Person D for a scan. He did so to reassure Person C who was a friend of Person D. The Registrant did not disclose any test result and, in any event, the test results were not back at the point and he said that it would have been “totally unethical” to do so. He said he now regretted the disclosure and he wanted to apologise but he had just been trying to reassure Person C that Person D was being well looked after. He said he had a good relationship with Person C at that point. He said that he would not do the same again and such details would remain confidential.

94. Since issues about consent had arisen, the Registrant had discussed it with his NHS line manager and other colleagues. It was agreed that he would explain to attendees at each class that he might adjust and ask for consent. However, as he remained concerned, he had since August 2024 made no hands on adjustments and now only does verbal adjustments. As regards boundaries he said he had reflected further and be mindful of boundaries at all times.

95. The Registrant confirmed his professional development was all up to date and he had read up on trauma and previous trauma, and a colleague has referred him to materials about treating trauma patients. He told the Panel he had learned that trauma may be physiologically stored in the body and he had educated himself in this area.

96. The Registrant said he could work safely and effectively as he was now aware of trauma issues and was up to date in his professional life. He said he had never had any other complaints or allegations about his physiotherapy of yoga practice and was subject to no investigations.

97. In cross examination, the Registrant confirmed he was aware of and abided by the HCPC Code although he accepted he had fallen short in respect of allegation, Particular 7 on confidentiality. He accepted that an investigation, a scan, was part of a treatment pathway. He reiterated that he did not discuss test results with Person C and stated that Person C had said “up and coming” scan so there were no results. He said he recalled the timing specifically and that he last saw Person C before the results in November 2023. He did recall the reassurance he gave Person C. He said he would never have disclosed the actual test results, he said he could not imagine why he would do that. He agreed that there was no consent from Person D to disclose the scan to Person C.

98. On the issue of adjusting attendees at his yoga classes, the Registrant said that he had not ask each time he touched them, but he would be explaining what he was doing. He said he would not tend to touch legs, head, neck or breasts. He agreed that a failure to resist is not consent.

99. The Registrant as to consent at a yoga class that there was an understanding, as he had been taught, that there is implied consent by attendance. He said he would have expected attendees to read the website where he explains the issue of adjusting. He said he assumed attendees would understand the type of yoga being taught and accepted that it could be embarrassing for attendees to challenge him about consent. He would not expect a person to return to the class if there was an issue. He said in the area there were other yoga classes run by women.

100. The Registrant said he was not following the HCPC Code of Practice when conducing yoga classes. He assumed consent by attendance at the yoga class and said that he did not know why anyone would attend and returned to his class if they were uncomfortable. The Registrant said he had reflected and that he would now send out a form to get a signed consent form from attendees. He said he was now more aware and thoughtful about the issue.

101. The Registrant accepted that cupping an attendees breast was not acceptable and was a breach of dignity and trust. He said if he had accidentally brushed or touched a breast he would apologise immediately. He said Person A and Person B were wrong when they say he cupped their breast.

102. The Registrant accepted that there was no clinical reason to remove trousers and he did not understand why Person C had said that he had done so. He denied he did any of the alleged conduct and that he did so for sexual gratification.

103. The Registrant was asked to confirm the position about whether there were any other complaints about your practice. He said he was aware that he subject to an interim order and the HCPC had raised a concern about alleged breach of that interim order.

104. Mr Blair for the HCPC explained that this question was asked to clarify the issue of whether any further complaint had been made, given the Registrant’s previous answer that there were none. For the avoidance of doubt, Mr Blair submitted that he did not rely on the substance of the complaint of a breach, the issue was raised solely by him in respect of the Registrant’s credibility.

105. In re-examination the Registrant accepted that he had previously said there were no further complaints because he had understood this alleged breach issue was not relevant to the current case and that was the legal advice he had received. He did not know what the allegation actually was.

106. In response to Panel questions, the Registrant explained the difference between explicit and implied consent, explaining the latter may arise where there was on going treatment for a complaint or one was attending, for example, a yoga class.

107. On the issue of consent in the yoga class, the Registrant explained that he been taught that implied consent was the way to proceed and it was distinct from his physiotherapist practice. He also explained that Iyenga yoga was a style of yoga that required “hands on” and one which he considered better reflected his physiotherapy practice. Other, more popular forms of yoga were not hands on and that may be what some people were more used to. The Registrant said that he had read up on chaperoning and consent and reflected on the HCPC Code.

108. The Registrant said that he had never had concerns raised with him about adjusting or touching during a class. He said he had used the word “disrespectful” when explaining why he would not touch someone who had asked not to be touched as to do would ignore their wishes and that was equally true in physiotherapy and yoga. He said that he had never felt people were uncomfortable when he touched them, and he and not noticed any difference when he touched Person A or Person B. He said he had not noticed any concerns from either or said that after 23 years of practice that he would be tuned in to a different reaction.

109. When Person A left the class WhatsApp group he had spoken to Person B and enquired after her. Person B had told him that she had not spoken to Person A and did not why she had left. When he told Person C about Person D’s scan he did not recall any surprise, but he could not recall her response.

24 August 2026

110. The hearing reconvened in Edinburgh on 24 August 2026 at the same venue and with the same participants except for a change of legal assessor.

111. Mr Bruce, on behalf of the Registrant applied to have a late Respondent’s bundle admitted under rule 10(c) which provides:

the Panel may hear or receive evidence which would not be admissible in such proceedings if it is satisfied that admission of that evidence is necessary in order to protect members of the public;

112. Mr Bruce explained that the new bundle was largely what had been provided in the first Registrant’s bundle but with a refreshed CV for the Registrant, a copy of his yoga website page and corrected spelling and minor details in the associated Registrant’s witness statements.

113. The bundle consisted of:
The Registrant's CV.
Two images of the Registrant performing manual adjustment of witness WM.
Video clip of example yoga position Registrant would employ in class.
Excerpt from the Registrant's website offering his services anent yoga.
Statement of WM, yoga class attendee.
Statement of VM, yoga class attendee.
Statement of MN, yoga class attendee.
Statement of AK, Registrant's physiotherapy patient.
Statement of Dr RD, local GP, former physiotherapy patient of the Registrant, and former colleague.
The Registrant's updated CV 2026.

114. Mr Blair, on behalf of the HCPC, did not oppose the late receipt of the new bundle as it did not impact on his case presentation.

115. The Panel accepted the legal assessor’s advice. The Panel, having read the material in the bundle was satisfied that no unfairness or disadvantage would arise to any party by admitting the late bundle. The timetable for the hearing would be unaffected. In all of these circumstances, the Panel decided that it would admit the Registrant’s late bundle into evidence.

116. Mr Bruce called the following five witnesses to give evidence in person.

WM Evidence

117. Ms WM affirmed and adopted her statement from the new Registrant’s bundle as her evidence in chief. Her evidence was:

I know Dave Nelson as a yoga instructor, but he has also provided physiotherapy to my daughter following knee surgery. I first met him in October 2021. He has never treated me in regard to physiotherapy, but I know my daughter found Dave's treated of great benefit.
I attended Dave's yoga classes every week between October 2021 and December 2025. I have been practising yoga for almost thirty years and would expect my instructor to manually adjust me in class. This is done to both prevent injury, and to get the maximum benefit from the pose. I recall Dave discussing manual adjustment with pupils in his class, and I and others have at times asked him to adjust our positioning. Dave would ask if he could adjust us, or he would use one of us to demonstrate a pose to the others.
I confirm Dave has manually adjusted me many times, and I always consented to this. A typical adjustment would be gently pulling your arms back or up the way, or he'd pull your shoulders back, or press on your rib cage. It depends on the specific pose. I never had any concerns over Dave adjusting me. I never felt any discomfort with his methods.
I have never seen Dave behave inappropriately in class nor has anyone ever complained to me about his conduct.
I was in Dave's yoga classes on 23rd and 30th October 2023, and recall enjoying each of these classes. I don't recall anything unusual about either class; they were just the normal routine with the typical manual adjustments.

118. Ms WM also said that she could not recall that the Registrant placed his hand on a class member’s breast. Had she observed that she would have remembered, but she had never seen the Registrant touch anyone inappropriately.

119. The Triangle pose was formed on many occasions. She said that classes varied and could not remember what poses were completed in the 30 October 2023 class, although nothing unusual had happened in that class. She could observe other class members on either side of her and did not hold the pose as long as others. There were 8 to 12 class members who were arranged in two rows facing the Registrant who had a mat at the front. She had been in the second row with a view of the whole class and all of the members.

120. Ms WM said that the Registrant had asked permission of class members to correct their pose physically but did not recall him using words such as ‘Am I OK to adjust you?’ The Registrant would frequently ‘adjust’ class member’s pose without seeking consent. It would have been unreasonable to do so constantly in the conduct of the class.

VM Statement

121. Ms VM affirmed and adopted her statement from the new Registrant’s bundle as her evidence in chief. Her evidence was:
I know Dave Nelson as he has treated me, my son, and my daughter through his physiotherapy practice. I have also attended a number of his yoga classes. I first met him in June 2022.
In terms of physio, Dave has treated my shoulders and my calf. This involved massage and movement techniques in each area. I found the treatment very beneficial. I had been to see several other physios with little success, but Dave's methods improved my shoulders dramatically, so much so that I was able to once again compete on swimming competitions, which I had been unable to do prior. I can recall buying Dave a bottle of wine to say 'thank you' after the treatment.
I have always found Dave incredibly thorough. He researched my issues extensively and tried new approaches to find the best solution. He has never spoken to me about any other patient's medical issues, treatments, or results.
I have been going to yoga and Pilates classes for many years, but I started going to Dave's yoga classes in November 2022 and continued regularly until March 2025. The only reason I stopped was because Dave stopped doing his Friday class, which was the one I'd typically attend. From my experience, some yoga instructors will do manual adjustment, and some will not. Personally, I find it helpful to be adjusted by the instructor and I prefer instructors who do this. I confirm Dave has in the past manually adjusted my body position during classes. I cannot specifically recall what he would say, but when we were holding poses for a long time, he would come around and adjust us. He'd usually say something like "can I just adjust your arm?" or similar. Dave would often adjust arm position, or raise your hips, or reposition them.
I was attending Dave's yoga classes between May and November 2023. Typically, we would do a routine which was a mix of Dave instructing from the front of the class, and then on occasions he would walk round us all to adjust postures. Class members were all keen to improve, and were always pleased if Dave would tell us, "well done." Dave would also give us ideas about stretches and mindfulness ideas we could use at home.
I confirm I was in attendance at Dave's yoga classes on both 23rd and 30th October 2023, however I have no specific memory of these particular classes. As far as I recall, the classes was a similar format as always. I was not aware of any issues during these classes.
I don't recall being specifically asked for my consent around manual adjustment, but I felt very able to refuse, should I have chosen to do so. I confirm I had no issue around Dave's consenting processes whatsoever. I always felt Dave was very professional and clearly had a lot of knowledge. Following any adjustment, the stretch/challenge would be far more noticeable and useful.
I have never seen Dave behave in any way which caused me concern, nor has anyone reported such concerns to me. Every time Dave adjusted me it was for practical improvement of a posture. I felt entirely comfortable and trusted Dave's professional knowledge. I did not and have never felt Dave's conduct in manually adjusting students was sexually motivated.
I continue to work with Dave and see him roughly every three weeks for sports injury rehabilitation. He has also treated my children for sports injuries. In my view, Dave is an excellent yoga teacher and physio, with extensive knowledge and a professional manner.

122. Ms VM said that the Registrant would speak to participants in the process of individually adjusting poses. He was very approachable. He would always ask if he could, for example, move your hand. After the ‘incident’ he would not touch class members at all for a while although in later classes he adopted words to secure consent before touching a person. Ms VM said that she would have noticed if the Registrant had placed his hand on a member’s breast because it was an unusual thing to do. She had never seen such a thing occur. Ms VM said that the layout of the class and the routine breaking of pose for different class members, who would then sit and observe the class and the Registrant’s adjustments of pose, made it improbable that anything like that had happened.

MN Evidence

123. MN affirmed and adopted his statement from the new Registrant’s bundle as his evidence in chief. His evidence was:

124. I know Dave Nelson through the yoga classes he runs in Peebles/Cardrona. I first met him around three to four years ago.

Dave has never treated me in terms of physiotherapy, but I have been going to his yoga classes for the last three or four years. Dave's classes were my first experiences of yoga. Generally in Dave's classes, if he was introducing a new position he would explain to the class what we would be doing then try correct what folk were doing wrong via verbal instruction. Then, Dave would go around each member of the class and adjust their position individually. As he was doing this, he would usually explain out loud to the rest of the class what he was adjusting. I can recall at the start Dave would explain to the class what sort of yoga he was teaching and that he would help us achieve the appropriate position. He would usually do this at the start of a class, however I believe everyone in the class was a regular so manual adjustment was something we all expected, for certain poses.
It was common for Dave to say during a class that he was now coming round to adjust positions. He would often adjust your stance to help with balance. He would push or pull you into the correct position.
I confirm I had no issue with Dave adjusting my position in this manner, as required. I consented to this. I had no discomfort with any of Dave's processes, methods, or conduct. Nobody has every complained to me about Dave, in any way, nor have I witnessed Dave acting in a way which caused me concern.
I confirm I was in attendance at Dave's yoga classes between May and November 2023. The classes changed to a different venue and became mixed, whereas prior they had been men only. There were fewer adjustments compared to before and the class had less of a 'strength' aspect to it, but adjustments did still occur for more complicated stances.
I was in attendance at Dave's yoga classes on both 23rd and 30th October 2023. From what I recall of the 23rd, it was around 60% female that evening. I think that is typical for the sort of poses, and I recall Dave going around adjusting folk a couple of times that evening. As far as I recall, the 30th of October class was very similar.
I confirm that I never formed an impression Dave was behaving in an inappropriate or sexually motivated manner. Any adjustments that were made to me always targeted specific areas, and Dave would explain how we should feel each pose targeting a specific area of the body. You would also watch adjustments being made to others to get an idea of what you needed to concentrate on.
I know of no reason why Dave could not continue to work as a physio safely and effectively.

125. Mr MN said that the Registrant would demonstrate the pose at the front of the class, sometimes recruiting a class member as a model. He would explain what he believed was wrong with the pose taken up and move class member’s bodies into the correct pose.

126. In regard to obtaining consent for touching, the Registrant would say out loud what was wrong and ask if it was ok to point out what the person was doing wrong and adjust their pose. The Registrant was always very calm and relaxed about it. Manual adjustments were important. Mr MN could immediately feel the difference and found that it helps to be moved into the right place.

127. Mr MN said that nothing unusual had occurred in the classes. Everyone there had been there over the summer, regularly up to that point. Classes began with chatting among members and the Registrant would provide blocks and straps to use at front of the class.
128. Mr MN said that if he had seen the Registrant put his hand on a class member’s breast he would have noticed and would have remembered. He had never seen that happen.

AK Evidence

129. Ms AK affirmed and adopted her statement from the new Registrant’s bundle as her evidence in chief. Her evidence was:
I know Dave Nelson through my work, having first met him in August 2021. [We have not worked together at the same GP practice although we are both physiotherapists in the Scottish Borders]. I have been treated by him via his own place of work - he performed passive stretches of my hip. Iliopsoas release and provided me with exercises to do at home. The treatment didn't work and Dave referred me on to orthopaedics.
I believe Dave would do full subjects and objective assessments. In the past, he has requested all relevant interventions including x-rays and MRI scans and referred onwards to orthopaedics, where necessary. I've never had any concern about Dave's practice or methods. He has only ever shared patient's information with me in a professional, appropriate capacity, in accordance with physiotherapy pathways and protocols. We have never discussed patients outside of work. Dave has never discussed his yoga clients with me.
I have never attended one of Dave's yoga classes. However, I believe an instructor manually adjusting a student is standard practice, and important for correct movement facilitation and may be beneficial, encouraging the body's natural and functional range of motion.
I have never seen Dave behave inappropriately nor has anyone complained to me about his conduct.
In my view there is no reason Dave cannot continue to work as a physiotherapist. I do not consider him a risk to the public. In all my dealing with him, he maintained full confidentiality, professionalism and integrity throughout, in both patient and colleague capacities.

130. Ms AK said that she was confident that the Registrant always respected patients and colleagues. He had never said or done anything inappropriate or made her feel that he had acted other than as a professional physiotherapist. When the Registrant had treated her, he had obtained verbal consent. He had explained what would happen and sought her consent. The Registrant’s approach to consent was clear and was within the expected manner and professionalism that she had expected. There were no issues that she was aware of regarding the Registrant’s approach to maintaining professional boundaries. She had, however, never observed the Registrant’s professional practice.

Dr. RD Evidence

131. Dr. RD affirmed and adopted his statement from the new Registrant’s bundle as his evidence in chief. His evidence was:
I am currently employed as a GP Partner at St Ronan's Health Centre. I know Mr Nelson through his work as the advanced physiotherapy practitioner attached to our practice. I first met him around 2021 or 2022, when he joined St Ronan's.
Mr Nelson has not treated me at his physiotherapy practice. On one occasion, however, he saw me informally after I dislocated my acromioclavicular joint and strapped my shoulder. I found this treatment beneficial. His methods did not cause me any concern or discomfort.
In the course of our professional work, Mr Nelson and I discussed scan results relating to mutual patients. In my experience, his approach to patient confidentiality was appropriate and gave me no cause for concern.
I have never attended a group yoga class run by Mr Nelson and have no experience of yoga classes. I therefore cannot comment on the use of manual adjustments during his classes, including whether these were discussed, consented to or carried out.
I was not present at any of Mr Nelson's yoga classes between May and November 2023, including the classes on 23 October 2023 and 30 October 2023. I cannot comment on demonstrations or manual adjustments at those classes, or whether any adjustment was sexual in nature or sexually motivated.
I had no concerns about Mr Nelson's consenting process based on my experience of supervising him during his injection course. I have never seen him behave inappropriately, and no person has ever complained to me about his conduct.
In my view, Mr Nelson is currently capable of practising safely and effectively as a physiotherapist and does not present a risk to the public. I only witnessed him behaving professionally in his work as a physiotherapist.

132. Dr. RD said that he had direct experience of the Registrant’s practice to the limited extent that he had been the clinical supervisor for the Registrant during his advanced Physiotherapy training. Dr. RD had observed the Registrant administer injections to ten patients as part of that training. The Registrant had always obtained appropriate consent from the patients, explaining what he intended to do before injecting the patient. Dr. RD never had any issues regarding the Registrant’s obligations of patient confidentiality. Dr. RD had never observed the Registrant during physiotherapy sessions for patients.

Submissions
The HCPC

133. Mr Blair, on behalf of the HCPC adopted his case summary as his submissions. He invited the Panel to find that all of the remaining factual Particulars proved, except Particular 6 which was no longer under consideration. He added the following submissions:
• No motive to fabricate: There was no suggestion of any prior personal relationship or grievance between the complainers and the Registrant that might lead them to fabricate allegations of this nature. It was not put to any of the witnesses that they were lying.
• Consistency between witnesses: Witnesses A and B provided accounts of very similar conduct, in the same location, in the same context, and within a very short time period. Their accounts were described as corroborative of one another. Witness C's evidence further supported the position regarding manual adjustments without consent.
• Consistency with contemporaneous written evidence: The Panel had the benefit of WhatsApp messages exchanged between the two complainers shortly after the alleged incidents. HCPC Counsel submitted these messages reflected materially the same account as given in oral evidence, adding to the witnesses' credibility. A report made approximately one month later was also said to be consistent in all material facts.
• Demeanour: Both Witnesses A and B became visibly upset when recounting their experiences. Counsel submitted this was consistent with the behaviour of persons truthfully recounting distressing events, while acknowledging the Panel should take legal advice on the appropriate weight to be given to demeanour evidence.
• Registrant's inaccurate evidence: The Registrant, in his evidence in chief stated;
"There have been no complaints"
when asked whether he was aware of any other complaints relating to his practice. In cross examination it was established that this was inaccurate. The Registrant ultimately accepted he had been aware of other complaints at the time he gave that evidence. Mr Blair clarified that no adverse inference was invited from the existence of those other complaints but highlighted this as the sole instance in this case in which a witness gave materially inaccurate evidence that required to be corrected in cross examination.
Mr Blair submitted that
"It is simply not credible that all three of these women [witnesses A, B, and C] are lying or that all three of these women have misunderstood what happened to them."
• Registrant's supporting witnesses undermined: Several witnesses called by the Registrant gave evidence inconsistent with the Registrant's own position on consent, stating that the Registrant would ask permission before making adjustments — a practice the Registrant himself did not assert. This materially undermined the reliability, and potentially the credibility, of those witnesses.
• Sexual Conduct and Sexual Motivation: The best gauge of a person's motivation is their actual conduct. Touching of the breasts is, in ordinary circumstances, plainly sexual in nature.
• There was no plausible alternative explanation for the conduct was advanced.
• Both witnesses A and B spoke to the prolonged nature and quality of the physical contact, leading them to conclude it could not have been accidental.
• The Registrant himself denied any accidental contact with the breast occurred, effectively excluding an accidental explanation.
• Mr Blair submitted that if the Panel accepted allegations two and three as proved, it must follow that allegation four (that the conduct was sexual in nature and sexually motivated) should also be found proved. He said;
"Touching of the breasts is, in the ordinary, one of things plainly sexual. No other plausible explanation has been provided for the conduct."
• Manual Adjustments Without Consent: Witnesses A, B, and C, had confirmed that the Registrant would place his hands on them to adjust their yoga positions without first seeking consent.
• The Registrant accepted in cross examination that he would place hands on participants without asking, and that consent cannot be obtained after the act has taken place.
• The Registrant's position, that attendance at the yoga class constituted implied consent was untenable. This was particularly so because the Registrant had accepted that the onus was thereby effectively placed upon participants to object, rather than upon him to obtain consent. This was not what obtaining consent could be understood to be.
• The Registrant did not warn students at the outset of the class that he would make physical adjustments.
• The Registrant had since altered his practice to seek consent before touching students. Mr Blair submitted that this amendment of practice was evidence of an implicit acknowledgement by the Registrant that his prior conduct was wrong. Mr Blair said;
"Placing the onus on the participants to object is antithetical to the approach usually taken in relation to the question of consent."

The Registrant

134. Mr Bruce on behalf of the Registrant submitted that the Panel should not find that any of the Particulars had been proved to the required standard. Mr Bruce added:
• Yoga instruction is a recreational fitness activity and not healthcare. Accordingly, stringent healthcare consent standards should not apply to yoga classes.
• The class participants attended regularly and were all aware of physical adjustments. The absence of any objection in this recreational setting amounted to their providing an implied and continuing consent.
Person B:
• Person B initially acknowledged continued attendance and her implied consent, telling the Panel:
“I never said anything at the time. So all I’m saying is you could argue that I consented to it.”
• In cross examination Person B accepted the defence hypothesis of implied consent saying:
“you could look at it that way”.
• She had attended 20–25 sessions. B’s criticism centres on lack of express prior consent, not on absence of any continuing consent.

Person C:
• Person B had told the Panel that she
“… didn’t personally have any issues with David … [Person C] didn’t have the issue of no consent for adjustments.”
− The Panel should take into account the evidence of direct observations of a non-assault by the defence witnesses, Ms WM, Ms VM, and Mr MN, in which they:
− Spoke positively about David’s approach to consent and described verbal interaction during adjustments.
− Consistent with implied consent, heard the Registrant ask permission even if not the express phrasing “Do you consent to me touching your wrist?” as an example.
− The Registrant denied the accusation and had provided a full account of his assistance to Person C.
• There were real concerns regarding the credibility and reliability concerns for Person B and Person A due to alleged collusion with Persons A and C. As evidence of this:
− The initial texts on 31 October 2023 described the Registrant’s touch as accidental and noted “so many ways he could have done it [touched a breast]… without being invasive [and so less open to being observed].”
− Email to SB RCC on 10 November 2023: “…she passed this off as a mistake.”
− C’s later testimony materially shifted to describing the touch as “…very intentional” and “…prolonged”, which C explained in evidence as her becoming more certain after discussing with Person A: “…seeing that she had a similar experience confirms that it was a pattern of behaviour.”
• Inherent improbability:
− The alleged incident occurred just before class in a busy environment where others might be looking at the Registrant as instructor.
− Person B’s explanation that her assault had been “…overlooked” by all of the possible chance observers conflicted with her description of a “…firm” and “…prolonged” touch.
− For these reasons, Person B’s account is incredible and unreliable; the allegation is therefore not proved on the balance of probabilities.
• The Registrant denies the allegation and provides a convincing and full explanation supporting his recollection.
− Visibility of actions and absence of any corroboration:
− Person A alleged a 5-second touch from behind during triangle pose but there was no corroborating witness from the same class, despite Person A mentioning a friend behind her.
− The Registrant had called witnesses who had been in the class. They were interested observers of all that was happening in the calls and unpredictably fell out of pose. They did not see any of this conduct and were clear that they would have remembered it.
− Class composition: around 10 members spaced 1–2 metres apart making observation probable and invisibility of actions unlikely.
• Person A’s assertions:
− She claimed the whole class was looking at the ceiling during the triangle pose; she had refused to accept people could be moving/looking elsewhere.
− When shown a photo indicating head movement is possible, she said it wasn’t the same triangle pose.
− She claimed not to know that the Registrant was walking around adjusting class members. However, her texts on 31 October 2023 said explicitly that he had been moving around making adjustments. That was an important inconsistency.
• Mr Bruce submitted that Person A’s account is not candid or reliable; the allegation is accordingly not proved on balance of probabilities.
• Were Particulars 2 and 3 sexual in nature and/or sexually motivated? Mr Bruce submitted that:
− Primary position: Allegations 2 and 3 did not occur; therefore, sexual nature/motivation does not arise.
− In any event, the Registrant’s motivation was to assist with yoga poses and pain management; no further sexual attention or advances were in evidence beyond the scope of the three witnesses, Persons A, B and C. This was not supportive of surreptitious sexually motivated actions given the long duration of the classes and the long established yoga class business.
− Mr Bruce observed that the Panel had previously indicated insufficient evidence of sexual motivation at half time submissions.
• Mr Bruce invited the Panel to find that if Particular 2 is not found proved, Particular 4 should also not be found.
• Particular 5: accusation that between April and October 2023, in physiotherapy practice, the Registrant had pulled down his trousers and exposed his underpants to Person C.
• Mr Bruce said that Person C’s account was unclear; she was “surprised” and thought it “odd,” and had discussed it with her partner.
• The event in any event is implausible:
− If trousers were removed by the Registrant to his down to knees for two minutes, David could not move and would have to hold them, preventing the demonstration that Person C had discussed.
− There was no anatomical reason to lower trousers while leaving underpants on; hip/buttock demonstration wouldn’t require trousers to be removed to the level of knees.
− If exposure occurred, concern would more likely be genitals or buttocks; Person C’s concern centred on seeing underwear.
• The Registrant denies the event; he would never do this in his professional practice, which professionalism was directly supported by the testimony of Dr RD and Ms AK.
• Mr Bruce relied on Person C’s testimony being unconvincingly vague for such a memorable event. Person C could not identify the exact session/date, limiting the Registrant’s ability to give specific rebuttal.
• Mr Bruce submitted that this Particular was not proved on the balance of probabilities.
• Particular 7: Disputed fact regarding discussion of Person D’s confidential test results with Person C. Mr Bruce submitted that:
• The Registrant had admitted fact of disclosure of treatment, but that there had been no admission of breach of confidentiality.
• Person C’s complaint made in May 2024 referred to upcoming tests, not test results that had been then available; under examination, she said she didn’t know this.
• The Registrant’s position was that the test results were not available at the relevant time and so could not have been disclosed by him to anyone.
• Mr Bruce put forward the possibility that there had been a misunderstanding:
− Person C may have told Person D that results were discussed, causing understandable upset, but the results did not yet exist.
− Alternatively, Person D assumed “results” rather than the fact of an upcoming scan.
− Person C’s witness statement refers to discussing Person D’s scan and Person D believing it was inappropriate to share her test results—indicative of confusion between “scan occurring” and “scan results.”
• Mr Bruce submitted that the fact of a disclosure is admitted; but the scope and character (results vs upcoming test) are disputed. Any breach of confidentiality determination in regard to that admission is for the next stage (stage 2 of the hearing).
• Mr Bruce highlighted the Registrant’s credibility:
− He had made “…appropriate concessions,” including admitting the fact of disclosure regarding Person D/Person C despite lack of conclusive proof. The admission was not necessary and vouched for the Registrant’s credibility.
− The Registrant had maintained consistency by asserting implied consent rather than retrofitting his evidence to fit witnesses’ accounts of express consent.
− The defence witnesses (including Dr RD and Ms AK) described the Registrant’s professionalism in his physiotherapy practice.

Decision on Facts
Panel’s Assessment of the Evidence

135. The Panel accepted the advice of the legal assessor. The Panel began its deliberations by considering the contemporaneous and near-contemporaneous social media messages that had been exhibited. The Panel was satisfied that there was no evidence (or any assertion) of an alteration of the material produced. It was supported in that conclusion by the testimony of the relevant witnesses, Persons A, B, and C.

136. The Panel accepted that there was some importance in the submission on behalf of the Registrant that there had been an exchange of texts between the witnesses close to the time of the events and that these had preceded the complaints made by the witnesses. However, the Panel was satisfied, after careful deliberation, that the texts can be read in a natural and uncontrived way.

137. The texts appeared, on their face, to be a developing discussion between friends regarding matters that were private and important. A certain degree of validation of feelings and perceptions was not unnatural, in the Panel’s view. However, there was no support at all for collusion between the witnesses. There was no evidence of any of the witnesses canvassing speculatively for support for their individual complaints. There was no evidence to support that the exchanges had provoked or resulted in false or inflated accounts made to support a correspondent or to damage the Registrant. The fact of the Registrant having touched the breast of Person A, and separately Person B was not challenged. What was in issue was the Registrant’s alleged sexualised intention and purpose. There were no elaborate details of the events, nor were there exchanges supporting details of time and place or any more extended circumstances suggesting an invented fantasy.

138. The Panel was satisfied that the texts were a natural medium of exchange between friends of matters that they regarded as alarming and as amounting to sexual assault. The witnesses later testimony to the Panel stood up convincingly to the challenge to their veracity of content and the credibility of their writers.

139. The Panel however had no direct testimony in support of the actual alleged sexualised touching of either Person A or Person B, other than their direct testimony. The central issue for the Panel was therefore whether they fundamentally believed the witnesses, or whether their testimony was finally sufficiently coherent, persuasive and authentic in character. The events were relatively fleeting for any casual observer and although there existed the possibility of discovery by observation, each witness had recounted that the Registrant’s alleged touching had fully cupped the breast, extending to include the nipple and held for a time that excluded the possibility of accident.

140. This had to be balanced against both Person and A and Person B adopting their own independently arrived at perceptions that the Registrant’s sexualised ‘adjustments’ of pose had been taken up from an unorthodox angle of approach. There were a number of alternatives more easily available, and the Panel concluded that taking all matters into account, the fact that the potential observers had not in fact seen anything was not a direct contradiction of the possibility of the touching having occurred. Rather the unconventional attitude of physically ‘adjusting’ Person A and Person B in pose, lent itself to adroit concealment.

141. The Panel concluded after careful deliberation and with an open mind regarding the Registrant’s defence that the witnesses Persons A, B, and C were all truthful persons. They gave their testimony in clear unembellished terms. The witnesses’ evidence was consistent with each other in relation to the sexualised touching and did not appear to be exaggerated or corrupted by the passage of time or the discussions between the witnesses.

142. The Panel came to the view that the purported distinction between the consent that would be expected in a clinical setting and that in the yoga class setting was misconceived. It had not been alleged that clinical consent and the consent necessary to permit touching persons in a yoga pose were the same standard. It had not been alleged that consent for this purpose was virtually unnecessary. What was necessary, in the Panel’s view, was that at the material time when a class member was to be touched, the Registrant must intelligibly alert the person to his wish to engage physically with the person in adjusting their pose prior to touching them and receiving that permission unequivocally prior to touching them.

143. The Panel considered that the defence case of implied consent was flawed. Consent to be touched was not inherent in the agreement to pay for a yoga class like some minor implied term of a contract. It was obvious to the Panel as it must be obvious to everyone who has a professional background in which consent to touching is a central and everyday part of working life, that consent can be no more implied or inferred that could consent to any action invading the bodily integrity of another person, no matter how small or limited that might be in practice. Further, it was obvious to the Panel, and must be obvious to every professional person having a healthcare background, that the person concerned has no onus or obligation to ensure that their objection or hesitation in being touched is being withheld.

144. Agreeing to take part in a yoga class does not, by itself and no matter how routinely taken up, imply or import the assumption that consent will be obtained. The person has the right to withhold consent entirely or as the class develops.

145. If consent has any other way of being a right made real, it is grounded in the right to withhold consent. The parties and the witnesses did not offer example of any situation in which the right to touch any person grew out of an assumption by another person that paying a fee and entering a room created an enduring assent to invasion of integrity unless the person concerned expressly and consciously anticipated the need to inform the invader that any such assumption was wrong at that point in time.

146. That inversion of responsibility and assumption of right is contrary to all principles held by registered Physiotherapists. Just as it would be repugnant in a professional setting, the essentials of informed consent are expected to be respected by all physiotherapists acting in any capacity, whether professional or recreational, in which they carry the responsibility to respect the rights and wishes of persons who have agreed to participate in any activity organised by them.

147. The Panel came to the view that the obligation to obtain consent can be discharged with little difficulty. A simple question and a pause for express agreement is all that is necessary. A unilateral assumption made by the class leader even if founded in the small print of a webpage, does not ever relieve the leader from an obligation to obtain consent on each occasion that invasion of bodily integrity is proposed, even for teaching or for adjustment of pose. To the extent that any person willing to model a pose was prepared to do so does not by itself signal far less carry consent to be touched. An objection unexpressed is not proof of consent. The model should still have been asked and consent obtained, and if refused, not touched.

148. The Panel found itself surprised that it became necessary to explore this simple and self-evident obligation in detail. Physiotherapists are by their training acutely aware of the obligation to obtain consent and the principle that no service user of any service in any context is ever to be assumed to be bound to consent unless the contrary is made clear on any occasion. That would utterly negate what consent is. Nor need consent be complicated, either to ask for nor to agree to. The fault for any failure to obtain consent lies squarely with the person who requires to obtain consent.

Particular 1 is found proved

149. The Panel had no evidence that the Registrant obtained consent to touching and adjusting the poses of class members as set out in Schedule A. In the Registrant’s own evidence the necessary consent was implied because ethe class members entered the class. The Panel considered that the defence witnesses were not conclusive. When asked, they could not agree that simple consent was obtained when required on every occasion.

150. The Panel was not satisfied that the exchanges in text between the witnesses was evidence of collusion in any sense. Certainly there was no evidence of a plan or an agreement to falsify an absence of consent being obtained. Persons A and B were clear in their evidence that they did not consent to being touched in the way that they were, had not been asked for consent and would have refused such consent if asked.

Particular 2 is found proved

151. Person B was clear in her evidence that her breast was touched by the Registrant while being manually ‘adjusted’ in her pose. That touch was prolonged. The touch was understood by her to be a sexual touch and wholly out of place in a pose adjustment, once she had absorbed to impact of what had occurred.
152. The Panel was satisfied that Person b was truthful and was not mistaken. She had not fabricated the incident, nor was she making more of it than was by overthinking it. There was no improper contamination of her evidence in the way that the text exchanges between Parsons A and B developed. The texts did not induce her to make a false allegation. They did no more than reassure her that what she understood to be true, was true.

153. The multiplicity of ways in which the Registrant could have attempted to adjust Person B, did not include any way which required him to make an unconventional unexpected approach and to touch Person B’s breast for an uncomfortable period of time.

154. Had the touch been somehow accidental, the Panel would have expected the Registrant to make an immediate and fulsome apology to her and to commit publicly to there being no accidental repeat.

Particular 3 is found proved

155. The Panel preferred Person A’s account of this event on 30 October 2023. She recalled that the touch was no mere accidental brush by the Registrant having adopted an awkward stance to readjust her pose. Instead, the Panel accepted Person A’s account that the Registrant had touched the whole of her breast extending to include the nipple area.

156. Person A had taken the matter up almost immediately. She spoke to the police who provided assistance and had also sought help from her local Rape Crisis service. She made an unprompted and spontaneous disclosure to her friend. The Panel found Person A to be credible and reliable in all respects that mattered in coming to a concluded view as to where the truth lay.

Particular 4 is found proved in both sub-Particulars a and b

157. The Panel paid close regard to the guidance offered by the court in the case of Basson v GMC [2018] EWHC 505 (Admin) that:
• A sexual motive means that the conduct was done either in pursuit of sexual gratification or in pursuit of a future sexual relationship
• A finding of sexual motivation may be based on inference or deduction from surrounding evidence
• The facts may also be so clear as to speak for themselves – where there is more than enough evidence to raise (at its lowest) a strong prima facie case of sexual motivation which would discharge the burden of proof in the absence of an innocent explanation

158. The Panel decided after carefully reading the evidence accepted by it that the Registrant’s sexual motivation was abundantly clear from the circumstances. The Panel rejected the Registrant’s testimony that the touching of Person A’s and Person B’s breast had not happened. The Panel found that there was no room for a conclusion other than sexual motivation being behind the Registrant’s conduct. Any other finding would, in the Panel’s view, be in defiance of logic.

159. The Panel considered whether it was necessary or helpful to consider each limb of the heads of Allegation in turn and ascribe to them the most likely conclusion;
− pursuit of a sexual encounter or
− self-gratification without any further intended victim contact.

160. The Panel sought guidance in what the Court of Appeal had said in the case of Haris v General Medical Council [2021] EWCA Civ 763; that the Panel could
− first set out each separate act complained of, so that the committee can decide which, if any, is or are proved, and then
− to give separate consideration to whether the acts that had been proved were sexually motivated, if and insofar as it was felt necessary to ask the committee to consider that question.

161. The Panel understood that it must take care not to take ‘…an over engineered approach’ to the definition of sexual motivation. The main concern is the underlying conduct.
162. Accordingly, the Panel decided that it would over-engineer the outcome for it to ascribe each limb of each head with one of the two alternative forms of sexual motivation. Instead, based on all of the evidence and the absence of an acceptable innocent explanation each limb of each head was driven by the Registrant’s sexual motivation. The Panel did not consider that it would be essential or productive to discriminate between the alternatives at a granular level.

163. The Panel had followed the heads of Allegation and decided which acts were proven. It had then ascribed sexual motivation in each case. Accordingly, the Panel found that the Registrant’s conduct in Particulars 2 and 3 were individually sexually motivated conduct.

164. For similar reasons, the Panel came to the conclusive view that the Registrant’s actions were sexual in nature. There was no other explanation which met the facts of Particulars 2 and 3.

Particular 5 is found not proved

165. The Panel was satisfied that Person C was a truthful witness. However, she was not clear in a number of important details. Person C could not recall any of the details of her treatment, whether she was sitting or lying down, or where the Registrant had stood in relation to her. The account that she provided of the Registrant dropping his trousers to his knees for a minute in order to point to a part of the anatomy seemed implausible to the Panel. There had been no other such allegation in the Registrant’s career.

166. The Panel was not satisfied that Person A was a sufficiently reliable witness in order to find that the burden of proof had been discharged by the HCPC in relation to this Particular.
Particular 7 is found proved in sub-Particular a, but not sub-Particular b

167. The Registrant had admitted Particular 7 in that he had discussed the treatment of another person with Person D. What was at issue was whether he had also discussed Person D’s test results with Person D, which the Registrant had denied.

168. As above, Person was a vague witness. She was unable to be clear about the details of what had been allegedly revealed improperly to her regarding Person D’s results. The Registrant had asserted that the test results were not available at that point and so he could not have discussed the results. There was no evidence to contradict that position.

169. Person C’s statement referred only a scan and not to test results.

170. The Registrant had admitted sub-Particular a, and accordingly that is found proved by admission. Sub-Particular b is found not proved because the HCPC has not discharged the burden of proof in that matter.

171. The Panel then moved to stage 2.

Decision on Grounds

172. The Panel went on to consider whether the Panel’s finding of facts in relation Particulars 1 to 4 and 7(a) established the statutory grounds of misconduct.

173. Mr Blair invited the Panel to find that the statutory ground of impairment under Article 22 of the Health Professions Order 2001 (the Order) had been made out. Article 22(1)(a)(i) provides that one of the grounds upon which an allegation may be made is that a Registrant’s fitness to practise is impaired by reason of misconduct.

Submissions by Mr Blair on behalf of the HCPC

174. Mr Blair provided the Panel with oral and written submissions that
• whether the proven facts amount to the statutory ground of the allegation was a matter of judgement for the Panel, and
• the HCPC did not propose to present any separate evidence on this point.

175. Mr Blair submitted the Panel’s findings in respect of Particulars 1 to 4 and 7(a) established that the Registrant had acted in a way that fell far short of:
• what would be proper in the circumstances and
• what the public would expect of a registered Physiotherapist.

176. In Mr Blair’s submission, the Registrant had breached the following Standards of the HCPC Standards of Conduct, Performance and Ethics (January 2016), which provide:
Treat service users and carers with respect
1.1 You must treat service users and carers as individuals, respecting their privacy and dignity. Make sure you have consent
1.4 You must make sure that you have valid consent, which is voluntary and informed, from service users who have capacity to make the decision or other appropriate authority before you provide care, treatment or other services.
Maintain appropriate boundaries
1.9 You must take action to set and maintain appropriate professional boundaries with service users, carers and colleagues.
1.12 You must not abuse your position as a health and care practitioner to pursue personal, sexual, emotional or financial relationships with service users, carers or colleagues.
Using information
5.1 You must treat information about service users as confidential.
Disclosing information
5.2 You must only disclose confidential information if:
- you have permission;
- the law allows this;
- it is in the service user’s best interests; or
- it is in the public interest, such as if it is necessary to protect public safety or prevent harm to other people.
Personal and professional behaviour
9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

177. Mr Blair reminded the Panel that it may decide that the Registrant’s misconduct is not limited to the standards he had highlighted.

178. He referred the Panel to various cases including Roylance v GMC (No. 2) [2000] 1 AC 311and Remedy UK Ltd, R (on the application of) v The General Medical Council [2010] EWHC 1245 (Admin).
179. Mr Blair submitted that the facts found proved by the Panel were serious. He said that:
• The misconduct fell into three fundamental areas: sexual misconduct, improperly shared confidential data, and disregard of the service users right to withhold consent.
• The sexual misconduct (Particulars 2 and 3) was the most severe element and an aggravating factor for the other breaches.
• The HCPC adopted the stance that real harm and emotional distress were caused to Persons A and B, as evidenced by support being sought from the Police and the Scottish Borders Rape Crisis Centre.
• The conduct fell seriously below expected professional standards, particularly in relation to maintaining appropriate boundaries.

180. Mr Blair submitted that these constitute serious professional misconduct under HCPC standards regarding respect, consent, strict professional boundaries, information use/disclosure, and public trust.

181. Mr Blair pointed out that the Registrant’s conduct had been harmful for Persons A and B. It was so destructive of the yoga leader relationship that they would not attend classes with him again.

182. In all of these circumstances, Mr Blair submitted, the Panel should find that the Registrant’s conduct, individually and taken together was serious and fell so far short of what was expected of him as a Registered Physiotherapist as to amount to misconduct.
Mr Bruce on behalf of the Registrant

183. Mr Bruce on behalf of the Registrant stated that misconduct and impairment are matters for the panel’s judgement and made no further submissions at stage two.

The Panel’s approach

184. The Panel accepted the advice of the Legal Assessor. The Panel acknowledged that, in principle, not every breach of a relevant Standard would be sufficiently serious to amount to misconduct. The Panel was required to consider whether any breach on its own or taken together with other related and connected breaches would result in a sufficiently serious departure from the standards as to amount to misconduct.

185. The Panel adopted a two-step process in its consideration. Firstly, the Panel considered whether the facts found proved amounted to misconduct. Secondly, and only if the facts proved were found to amount to misconduct, the Panel would go on to consider whether the Registrant’s fitness to practise is currently impaired as a result of that misconduct.

186. In considering grounds, the Panel took into account the submissions of Mr Blair and Mr Bruce on behalf of the Registrant, including the written submissions, all relevant evidence and its prior Findings on Facts.

187. The Panel was aware that in respect of misconduct there was no standard or burden of proof and that it was a matter for the Panel’s own professional judgement. It bore in mind that breaches of the Standards did not automatically result in a finding of impairment.

188. The Panel considered the meaning prescribed to misconduct in the case of Roylance where the court had said:
Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a … practitioner in the particular circumstances.
The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the misconduct to the profession...
Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.

189. The Panel kept in mind what was said by the court in the case of Nandi v GMC [2004] EWHC 2317 (Admin) referring to Roylance and described misconduct as
a falling short by omission or commission of the standards of conduct expected among medical practitioners, and such falling short must be serious [such that it would be] regarded as deplorable by fellow practitioners.

190. An issue for the Registrant at stage 2, having regard to his evidence and submissions made on his behalf at stage 1, is the distinction that ought to be drawn between the Registrant’s practice as a physiotherapist and his leading a recreational yoga class. The Panel accepted that the distinction has some importance, for example in the less stringent demands for obtaining consent. However, the Panel considered that the case law made clear that a registered professional cannot compartmentalise their professional life from other aspects of their lives.

191. In the Remedy UK case, Mr Justice Elias stated;
I would derive the following principles from these cases:
i. 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 out with the course of professional practice itself, but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession. Misconduct falling within the first limb need not arise in the context of a doctor exercising his clinical practice, but it must be in the exercise of the doctor’s medical calling. There is no single or simple test for defining when that condition is satisfied.
ii. Conduct can properly be described as linked to the practice of medicine, even though it involves the exercise of administrative or managerial functions, where they are part of the day to day practice of a professional doctor. These functions include the matters identified in Sadler, such as proper record-keeping, adequate patient communication, proper courtesy shown to patients and so forth. Usually a failure adequately to perform these functions will fall within the scope of deficient performance rather than misconduct, but in a sufficiently grave case, where the negligence is gross, there is no reason in principle why a misconduct charge should not be sustained.
iii. Misconduct may also fall within the scope of a medical calling where it has no direct link with clinical practice at all. Meadow provides an example, where the activity in question was acting as an expert witness. It was an unusual case in the sense that Professor Meadow’s error was to fail to recognise the limit of his skill and expertise. But he failed to do so in a context where he was being asked for his professional opinion as an expert paediatrician. Other examples may be someone who is involved in medical education or research when their medical skills are directly engaged.
iv. Roylance demonstrates that the obligation to take responsibility for the care of patients does not cease simply because a doctor is exercising managerial or administrative functions one step removed from direct patient care. Depending upon the nature of the duties being exercised, a continuing obligation to focus on patient care may co-exist with a range of distinct administrative duties, even where other doctors with a different specialty have primary responsibility for the patients concerned.
v. Conduct falls into the second limb 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.

192. The Panel considered that each Particular by itself satisfied the test of morally disgraceful conduct which amounted to serious professional misconduct. The impact on Persons A and B was striking.

193. The Panel was satisfied that the Registrant’s conduct fell seriously below expected professional standards, particularly in relation to sexual misconduct and maintaining appropriate professional boundaries. In the Panel’s view, touching someone without consent in the yoga class was not maintaining professional appropriate boundaries. Touching someone's breast during any kind of activity is a catastrophic breach of that trust which resulted, in this case, in real harm to Persons A and B.

194. The Panel noted that the Registrant’s misconduct was repeated within a short time frame in relation to two different people and in relation to many others in respect of disregarded obligations to obtain consent.

195. In the Panel’s view, the Registrant had abused his professional position and trust. The Registrant's clinical practice and his yoga classes were inextricably linked, as shown by the fact that several individuals saw him in both capacities. Being a yoga instructor placed the Registrant in a position of a certain authority and trust, not dissimilar to his professional practice as a physiotherapist. The Registrant had abused that trust.

196. The Panel considered that the Registrant’s conduct negatively impacted public confidence in the profession. The public would be appalled to find out that a physiotherapist who acted in that way had been somehow absolved of responsibility by his Regulator if no finding of misconduct were reached.

197. The Panel went on to consider the 2016 HCPC Standards of Conduct and Performance as set out by Mr Blair. The Panel was satisfied that Registrants are not free to disregard the duties imposed on them in the 2016 Standards merely by not being directly involved in patient care. The 2016 Standards inform Registrants that:
If you are registered with us, you must make sure that you are familiar with the standards and that you continue to meet them. As a Registrant, you are personally responsible for the way you behave. You will need to use your judgement so that you make informed and reasonable decisions and meet the standards.

198. Even if not acting as a physiotherapist directly, the Registrant was under a duty to act in accordance with the 2016 Standards in any capacity or in any other public-facing aspect of his life. The Panel was satisfied that the Registrant’s conduct fell far short of the standards in all aspects of the Particulars proved.

199. The Panel considered that the Registrant’s conduct found proved in the Particulars were all serious, both individually under each limb of the Particulars and also when taken collectively.

200. The Panel was satisfied that sexually motivated conduct and conduct that was sexual in nature was a very serious matter and would be regarded as deplorable conduct by fellow Physiotherapists. The Panel concluded that conduct and actions that were sexual in nature and were sexually motivated where wholly outside of the norms of professional behaviour and were all misconduct.

201. The Panel concluded that misconduct had been made out.

Submissions on Impairment

202. Having found that the statutory ground of misconduct had been made out, the Panel moved on to consider the question of impairment.

Mr Blair on behalf of the HCPC

203. Mr Blair, in his oral submissions, referred the Panel to the HCPTS Practice Note Fitness to Practise Impairment. He said that whether the Registrant’s fitness to practise was impaired was a matter for the Panel’s professional judgement. The HCPC did not intend to present any separate evidence on this point.

204. Mr Blair submitted that the Panel should find that the Registrant's fitness to practise is currently impaired for reasons which included that the Registrant had breached the Standards expected of him in a way that materially impacts on his ability to work safely and effectively with colleagues and on the public’s trust and confidence in the Physiotherapy profession.
• The Registrant had displayed a striking lack of critical self-awareness and understanding of the foreseeable consequences of his actions.
• The Registrant’s deep lack of insight makes a risk of repetition predictable.

205. Mr Blair invited the Panel to conclude that the following factors applied;

• Seriousness of sexual misconduct (allegations 2 and 3).
• Public confidence requiring a finding of impairment given seriousness.
• Harm to Persons A and B and risk of repetition shown by the absence of real insight.
• Some conduct occurred outside the clinical context (yoga instruction) but remains relevant.
• Pattern of behaviour across two complainants.
• Position of trust as teacher; sexual misconduct is aggravating.
• Limited insight and remediation on the most serious charges; some remediation claimed on consent in yoga classes and data disclosure.
• Both personal and public components of impairment are met due to the seriousness of allegations 2 and 3.

206. Mr Blair submitted that it would undermine both public confidence in the profession and in the regulatory process were the Panel to make a finding that the Registrant's fitness to practise is not impaired.

207. Mr Blair also referred the Panel to the approach formulated by Dame Janet Smith in the Fifth Shipman Report and made the test for impairment in the case of CHRE v NMC & Grant [2011] EWHC 927 He submitted that the Panel were required to consider both the personal and public components as set out in the HCPTS Practice Note on Fitness to Practise Impairment.

208. Mr Blair invited the Panel to find that the Registrant’s fitness to practise was impaired today. He reminded the Panel that this was an exercise that looked forward rather than considered what was the position historically. Mr Blair reminded the Panel that the Practice Note Fitness to Practise Impairment said the purpose of such a finding was not to punish the Registrant but was solely confined to issues of public protection. Protecting the public engages the critically important public policy issues of:
a. protecting service users;
b. declaring and upholding proper standards of behaviour; and
c. maintaining public confidence in the profession concerned.

209. Accordingly, Mr Blair said, the Panel must take account of two broad components:
a. the ‘personal’ component: the current insight, reflection and remediation shown by the Registrant; and
b. the ‘public’ component: the critically important public policy issues.
Mr Blair reminded the Panel that both aspects are interrelated and that both are components of the public interest.

210. Mr Blair invited the Panel to find the Registrant’s fitness to practise was currently impaired.

The Registrant

As above, Mr Bruce had instructions that all matters at stage 2 were for the Panel and no formal submissions were to be made.

211. The Panel held in mind however that the Registrant had provided evidence and called witnesses in support for his other professional interactions which were very positive. There had been no hint of similar conduct by the Registrant so far as his witnesses were aware.

212. The Registrant had emphasised:
• He respected personal boundaries.
• He does not accept that the Particulars are true. The Panel inferred from this that he found it impractical or logically inconsistent to offer insight and remediation which acknowledged what he did not accept to be true.

Decision on Impairment

213. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the HCPTS Practice Note Fitness to Practise Impairment, and the cases referred to by Mr Blair including Cohen v GMC [2008] EWHC 581 (Admin) and the Grant case. The Panel held in mind what had been said in the case of PSA v NMC [2017] CSIH 29, regarding the importance of finding impairment, where appropriate, as a means to secure the protection of the public. The Panel also recognised that HCPC’s overarching objective is protection of the public and the purpose of fitness to practise proceedings is not to punish registrants for their past acts and omissions, but to protect the public from those who are not fit to practise. It does this by:
• Protecting, promoting and maintaining the health, safety and well-being of the public.
• Promoting and maintaining public confidence in the professions it regulates.
• Promoting and maintaining proper professional standards and conduct for members of those professions.

214. Fitness to practise is not defined in the Health Professions Order 2001, but it is generally accepted to mean that a registered Physiotherapist has the skills, knowledge, character and health to practise safely and effectively.

215. Impaired fitness to practise means a concern about the Registrant’s conduct which is sufficiently serious to suggest that he is unfit to practise without some form of restriction, or at all.

216. In reaching its decision on current impairment, the Panel took into account the submissions of Mr Blair and the earlier stage 1 evidence and submissions where relevant by and on behalf of the Registrant.

217. The Panel was aware that the question of impairment was a matter for its own professional judgement and that it was considering the Registrant’s current, not historical, fitness to practise.

218. The Panel determined that the Registrant’s conduct found proved was serious. The Panel considered that the Registrant’s conduct was premeditated and sexual both in content and intention. The Registrant, in acting as he did, had traumatised and caused harm to women due to the trust that they had put in the Registrant as a professional, albeit while engaged in a recreation class setting. The Panel determined that he had abused his position as a registered Physiotherapist, since among other things, he relied on his professional standing in his website materials to promote his yoga classes.

219. The Panel further determined that the Registrant had abused the trust put in him by Persons A and B.

220. The Panel further took into account that the Registrant had admitted certain of the facts at the outset. The Panel did not hold it as an adverse factor that the Registrant continued to deny the other Particulars that had been found proved. He is entitled to maintain his position and the Panel’s professional judgement allowed for this logical position. Accordingly, the Panel’s findings did not adopt a ‘failed defence’ approach that would in itself result in an adverse impact on the outcome of this issue.

Personal component

221. The Panel first addressed the matter of the personal component of the Registrant’s current fitness to practise. As set out above the Panel determined that the Registrant’s conduct was a breach of the trust placed in him by Persons A and B and had resulted in real emotional actual harm to both of them. There had been a serious history of a lack of securing consent in yoga classes. Finally there had been a discreditable though less serious breach of confidentiality while acting in a professional capacity.

222. The Panel determined that the nature of the Registrant’s actions were indicative of deep-seated attitudinal issues. In that regard, the Registrant had not apologised for his misconduct or offered any meaningful insight or reflection into the seriousness and harmfulness of his misconduct. That could have been done by adopting the position that he had accepted that, despite his defence, certain of the Particulars had been found proved. Accordingly he could have (but did not) seek to participate in relevant courses in professional boundaries, the impact of sexualised behaviour on persons A and B, breach of trust, or any other practical measures to show insight.

223. The Panel considered that the Registrant’s conduct was remediable but only with difficulty. The Registrant had, however, shown no insight into his failings and the unacceptable attitudinal reasons that might account for their having occurred.

224. The Panel noted that the Registrant has taken some practical steps to avoid any repetition of a failure to secure consent to touching in adjusting yoga poses, although this appears not to have been sustained or rigorously implemented. There was not any evidence before the Panel of a repeat of anything similar in yoga class or in any other workplace. The Panel had been provided with substantial and robust character evidence from people who know him in his current workplace including Dr. RD. That was material that the Panel regarded as supportive of the potential for the Registrant to develop insight. However, the Registrant had not shown evidence of any attempt to unearth the underlying reasons for his actions and the further steps for him to take in remediation.

225. The Panel were not satisfied that there was no likelihood of a repeat of the Registrant’s misconduct. The Registrant has not yet attempted to drill down into the effects and impact of his misconduct on his professional colleagues. He has not taken sufficient ownership of his actions. He has not shown that he understands the limits of professional boundaries. The Registrant appeared not to have acknowledged the impact that his actions had on Persons A and B and would have were he to repeat his misconduct.

226. The Panel concluded that the Registrant had not accepted the nature and extent of his misconduct. The Panel concluded that the Registrant’s insight into his actions was almost completely absent. The Panel considered that, in these circumstances, he is likely to repeat his misconduct. The Panel therefore determined that the Registrant was currently impaired in relation to the personal component.

The public component

227. The Panel went on to consider the wider public interest and the public component of the Registrant’s current fitness to practise.

228. For all of the reasons set out above, the Panel considered that the Registrant’s misconduct was serious, sexual in nature and in pursuit of his own sexual ends. He had caused direct harm to class members who had made themselves vulnerable to him. He had compounded this by denying the true context of the sexually motivated conduct. The Panel’s conclusions in respect of insight, remediation and risk of repetition also set out above, was directly relevant to the wider public interest issues in this case. The Panel determined that public confidence in the profession and the HCPC as a regulator would be undermined if there was no finding of impairment. The Panel therefore determined that the Registrant was currently impaired in relation to the public component.

229. The Panel therefore determined that the Registrant’s current fitness to practise was impaired both in respect of the personal and public components.

Decision on Sanction
Sanction:

201. In reaching its decision on sanction, the Panel took into account the submissions made by Mr Blair on behalf of the HCPC.

202. Mr Blair said that the HCPC did not invite the Panel to come to any particular sanction but reminded the Panel of the key elements set out in the HCPC’s Sanctions Policy. He reminded the Panel that protection of the public and ensuring that the confidence of the public is retained, are essential aspects of the Sanctions Policy. Sanctions are imposed only for the purposes of protecting the public in all three objectives subsumed under the overarching objective. Mr Blair reminded the Panel that any sanction must be necessary and also proportionate. The Panel must therefore adopt a ‘…laddered approach’ beginning with the least restrictive sanction. The Panel should only move up the ladder if the less restrictive options are insufficient to protect the public.

203. Mr Blair reminded the Panel that they should identify the aggravating and mitigating factors. He proposed that aggravating factors included;
• the Registrant’s breach of trust in a teacher/class member context;
• a pattern of serious sexual misconduct in association with a disregard for the need to obtain consent;
• No real evidence of remediation
• Harm to Persons A and B who were each significantly distressed
• Sexual motivation and conduct which was sexual in nature
Mr Blair said that all of these factors pointed to a more significant sanction.

204. In regard to mitigating factors, Mr Blair reminded the Panel that they had heard the Registrant’s reflections and changes to his practice in regard to consent. However, these were matters related to the least serious of the allegations and so the weight of those mitigating factors was less than if there had been any reflection in regard to the most serious of the concerns.

205. Mr Blair reminded the Panel that if a condition of practice order was being considered it must not be so restrictive that it would amount to a suspension order in all but name. Conditions of practice must be practicable and workable.

206. There were no submissions by Mr Bruce on behalf of the Registrant. However, the Panel considered all of the submissions already made by Mr Bruce in order to ensure that anything relevant to sanction was fully taken into account.

207. The Panel accepted the legal assessor’s advice and held in mind the guidance issued in the Sanctions Policy. The purpose of sanctions was not to punish the Registrant, but to protect the public, maintain public confidence in the profession and to maintain proper standards of conduct and performance. The Panel was also aware of the need to ensure that any sanction is proportionate.

208. The Panel found the following mitigating factors:
• prior to this matter the Registrant had no previous disciplinary history with the HCPC;
• the Registrant had engaged earlier in the process and although that was incomplete overall, there has been participation by him.
• There was some mitigation in relation to the less serious of the Particulars in regard to changes to obtaining service users’ consent.
• Witnesses have spoken positively about the Registrant’s improved practice regarding consent.

209. The Panel found the following aggravating factors:
• These serious departures from the standards expected of the Registrant which reoccurred over a short period of time.
• The Registrant’s actions had amounted to a series of breaches of trust,
• The Registrant’s disregard for the importance of obtaining consent to touching a service user.
• He had touched Persons A and B in a sexualised way for his own sexual purposes.
• There was no evidence of insight by the Registrant into the harmful effect his actions had on Persons A and B, and the damage he had caused to the necessary trust and confidence held by the public in the profession,
• There was no genuine expression of remorse and there was no acknowledgement of the degree of harm done by him,
• There was no evidence of attempted remediation.

The Sanctions Available
No Action

210. In light of the very serious nature of the circumstances, the Panel did not consider that this case was an appropriate one in which to take no further action. The Panel considered that the circumstances of this case made that conclusion self-evident.

Caution Order

211. The Panel next considered whether a Caution Order would adequately reflect the seriousness of the conviction. The Panel’s role, as indicated by the Sanctions Policy, was not to punish the Registrant, but solely to;
• protect the public,
• to maintain high standards amongst registrants and
• to maintain public confidence in the profession.
The Panel, however, did not consider that a Caution Order would adequately mark the seriousness of the Registrant’s behaviour. It would not reassure the public that the profession and its regulator took such matters very seriously.

Conditions of Practice

212. This was not a case where conditions of practice would be appropriate because of the Registrant’s unwillingness to engage to the extent that he had not suggested;
• appropriate conditions,
• suitable training courses or other remediation,
• a willingness to abide by and to remediate through conditions,
• expressed a commitment to ensure that there would be no repeat of his sexually motivated misconduct in any circumstance and in any context.
Sexual misconduct is in any event difficult to remediate through conditions of practice. Without the active participation of the registrant, this would be an unsuitable and inappropriate sanction.

213. Persons A and B had been the subject of actions by the Registrant directed at his own personal gratification at the expense of service users whose trust had been abused in an appalling way. There was a clear thread of evidence that pointed to a deep-seated attitudinal concern linked to the Registrant’s unwillingness to accept the Panel’s findings even on the basis that, while he still disagreed, he was willing to accept and to work with the process towards remediation. The Registrant had not provided any reflections or completed any training in respect of sexualised misconduct, or any other relevant matters such as consent and maintaining professional boundaries.

214. The Panel considered that conditions would not satisfy the public interest and would not adequately reflect the seriousness of the Registrant’s offending behaviour. Conditions would not be practicable or effective in protecting and reassuring the public.

Suspension Order

215. The Panel next considered whether to make a Suspension Order.

216. The Sanctions Policy states that;
A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a Conditions of Practice Order, but which do not require the Registrant to be struck off the Register. These types of cases will typically exhibit the following factors:
• the concerns represent a serious breach of the Standards of conduct, performance, and ethics;
• the Registrant has insight;
• the issues are unlikely to be repeated; and
• there is evidence to suggest the Registrant is likely to be able to resolve or remedy their failings.

217. The Panel considered all these factors to be entirely absent in this case. The Registrant’s actions do represent a serious breach of the Standards, he does not have insight, his conduct is not highly unlikely to be repeated and there is no evidence to suggest he has even appreciated that he must resolve his failings, far less that he has begun to do so.

218. The Panel considered that if it were to impose a Suspension Order in all of these circumstances, it would itself create the risk of damage to the reputation of the profession and its regulator in the minds of the public.

Striking off Order

219. The Panel then turned to consider the guidance in relation to a Striking Off Order. The Sanctions Policy guidance states that:
A striking off order will be appropriate for serious, persistent, deliberate or reckless acts which may include;
• conduct which represents a serious breach of professional boundaries towards service users …;
• abuse of professional position, including vulnerability;
• conduct which is sexual in nature or sexually motivated;
• ….
A Striking Off Order is likely to be appropriate … where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. Some examples of such conduct include …, where the Registrant:
• lacks insight; or
• …
• is unwilling to resolve matters.

220. The Panel has already referred to the Registrant’s absence of insight and his seeming unwillingness to address the harm done by him in regard to his sexually motivated misconduct and so begin, if possible, to resolve matters. The Panel considered that the public would be in no doubt regarding the seriousness of the total misconduct in this case. As referred to above, it is not this Panel’s role to punish the Registrant, but rather to ensure that the public is fully protected when engaging and trusting in the services of physiotherapists, including when they provide services or engage with service users outside of their professional role. For that reason alone, a clear marker must be set down to act as a deterrent to others who may consider taking up such a course of misconduct.

221. Further, public trust and confidence in the profession and in its regulator must be maintained. The Panel wished to be clear that the Registrant’s inexcusable behaviour must be marked so as to send out a message to the Registrant, the profession, and to the public about how seriously the Panel views this misconduct.

222. Taking into account the specific circumstances of this case and the almost complete absence of any mitigation that the Panel could find, the Panel considered that the Registrant’s conduct could only be regarded as being fundamentally incompatible with continued registration. He had demonstrated no meaningful insight and was unable or unwilling to take any steps to resolve matters.

223. The Panel concluded that there could be no other appropriate and proportionate sanction than to remove the Registrant from the Register.

224. Accordingly, the sanction in this case will be one of Striking Off from the register to reflect the gravity of the Registrant’s misconduct and the need to protect the public in all aspects of the overarching objective.

ORDER: The Registrar is directed to strike the name of Mr David R Nelson from the Register on the date this Order comes into effect.

Interim Order
Application

225. On behalf of the HCPC, Mr Blair made an application for an Interim Suspension Order for a period of 18 months on the grounds that it is necessary for the protection of the public and is otherwise in the public interest.

226. The Panel accepted the advice of the Legal Assessor. The Panel has the power to make an interim order under Article 31(2) of the Health Professions Order 2001, but this is not an inevitable outcome. The Panel should carefully consider if an interim order is necessary and, if so, on which of the statutory grounds. If an interim order is required the Panel should apply the principle of proportionality and impose the least restrictive order which is sufficient to protect the public and the wider public interest.

Decision

227. In its deliberations the Panel was concerned that if the Registrant were to appeal the decision, there would be no protection for the public while the appeal is ongoing. The Panel came to the view that the risks to service users and the public from the Registrant’s unrestricted practice were such that an Interim Order is necessary for the protection of the public for all of the reasons set out under the decision on sanctions above. The Panel was also of the view that the gravity and seriousness of the Registrant’s misconduct was such that an interim order was otherwise in the public interest.

228. The Panel considered the option of an Interim Conditions of Practice Order but decided, again for the reasons set out above, that there are no workable conditions that would sufficiently protect the public and would address the risk of repetition. The Panel therefore 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.

229. The Panel considered the length of the order and decided that it was appropriate and proportionate to impose the order for the maximum period of 18 months. In reaching this decision the Panel took into account the realistic length of time that might be required for the final determination of any appeal.

230. 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 David R Nelson