Mr Tombe Lumonamo

: Chiropodist / podiatrist

: CH32512

: Final Hearing

Date and Time of hearing:10:00 24/08/2016 End: 17:00 24/08/2016

: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Suspended

Allegation

Whilst registered as a Podiatrist on 10 May 2014, you:

1. Gave Person A a foot massage and you:
a) Asked Person A to remove her trousers when there was no clinical reason for doing so.
b) Stated that Person A was a 'gorgeous girl', or words to that effect.
c) Stated that you wanted to be 'special friends' or words to that effect.
d) Hugged Person A.

2. The actions described In paragraphs 1 were sexually motivated.

3. The matters described In paragraphs 1 - 2 constitute misconduct.

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

Finding

Preliminary Matters:

1. There was one preliminary issue. The HCPC applied for special measures in respect of Person A, the Complainant, to allow her to give her evidence in private and behind a privacy screen. The HCPC stated that the Complainant was a vulnerable person, within the meaning of the Procedural Rules, in that she was an alleged victim in a case involving an allegation of a sexual nature, and complains of intimidation.

2. Mr Walters referred the Panel to a written skeleton argument in support of the application and a witness assessment attached to it. This assessment accorded with the special measures application template attached to the HCPC Practice Note - Special Measures. The assessment stated that Person A had not seen the Registrant since the alleged incident and the thought of seeing him scared her and made her extremely nervous.

3. The Registrant opposed the application. He stated that he would be prejudiced by the special measures and that they would infer, if agreed, that the allegations were partly made out.

4. The Panel was advised by the Legal Assessor who referred to the Practice Notes ‘Preliminary Matters’ and ‘Conducting Hearings in Private’. Special measures are a series of provisions to help ensure vulnerable witnesses give their best evidence. The Panel must first decide if Person A is a vulnerable witness within the meaning of the Procedural Rules and if so, are the special measures suggested necessary to improve the quality of the evidence.

5. Having considered the application the Panel acceded to the application in full.  The evidence of Person A would be given in private and behind a screen. The precise logistics of this had been discussed in advance and the Panel was satisfied with the proposal of the Parties that the Registrant would sit behind the screen within eye contact of Mr Robinson Young but out of sight of Person A.

6. The reasons for acceding to the application are that Person A is a vulnerable witness, in that she is an alleged victim of sexually motivated actions, and complains of intimidation. The Panel accepted that the complaint of intimidation is ‘genuine’ in that, objectively viewed, her feelings are justified, without determining whether subjectively there was any intention to intimidate. In fact the HCPC did not assert there was such intention by the Registrant or anyone else. The Panel accepted that the use of a privacy screen and having the evidence heard in private is a moderate proportionate measure that balances the needs of Person A to be able to provide her evidence freely and candidly with the general requirement that hearings should be in public and the right of the Registrant to hear and consider the evidence against him and provide instructions to his representative.

Background:

7. The Registrant is a qualified Podiatrist. At the time of the allegation he was working at the Practice and had been since 2011. The Practice has five physiotherapists, two podiatrists and one massage therapist and two people that use the rooms to complete medico legal reports.

8. Person A is employed as a receptionist at the Practice. Her role involves general business administration and she has been employed there for approximately five years. The Registrant rented a room on a Saturday at the Practice for approximately two years. He worked there on a self-employed basis.
 
9. Person A alleged that prior to 10 May 2014, the Registrant had a good working relationship with her but he, from time to time had been over familiar, making comments such as ‘you look beautiful/nice’ and inviting her to meet his family.

10. On 10 May 2014 it is alleged that the Registrant asked on three or four occasions throughout the day if he could give Person A a foot massage. His reasoning was that it was a thank you for filling up his clinic list for that day. Person A says it got to the point where she felt she could not say no to the foot massage, and went into a treatment room with the Registrant at the end of the working day. It is alleged he asked her to lay back on the treatment couch. He massaged her feet and allegedly stated that he needed to massage her legs as well and asked her to roll up her jeans. He then allegedly asked her to take her jeans off, calling her a gorgeous girl and saying he wanted them to be special friends. Person A got up to leave and the Registrant is alleged to have hugged her.

11. Person A left the building. She stated that she was extremely distressed by what had occurred and burst into tears once she was in her car. Later on that day she reported the matter to Witness 1, the owner of the premises, who is a physiotherapist. Witness 1 had a meeting with the Registrant on 17 May 2014. Notes of that meeting were produced by Witness 1 by letter to the HCPC dated 23 August 2014 (these notes primarily comprised a record of the questions asked of the Registrant). Further notes of the 17 May meeting were produced following a request by the HCPC for further information on 20 November 2014. These indicate that the Registrant said that he wanted to show appreciation to Person A for help with arranging his clinic so he offered her a foot massage. When asked why he had asked Person A to remove her trousers he said that he was trying to show gratitude and wanted her to be relaxed and did not wish to upset her in any way.

12. Following the 17 May 2014 meeting the Registrant was asked not to work at the Practice any longer.

13. The Registrant has a substantially different version of events. He states that about two months before 10 May 2014 Person A had requested a foot check which he had not had time to do. On 10 May 2014 he did offer a foot check, once, which she consented to. At the end of the working day he conducted a quick check of her feet to confirm that there was no pathology that needed treating. He then suggested a quick application of an emollient to the feet to address dry skin, which she consented to and which took a few minutes. He asked her to roll up her jeans so that he could examine her lower legs. The jeans did not roll up beyond the ankle and that is where the treatment ended. The Registrant denied asking her to remove her jeans. He disputes the account of the meeting of 17 May 2014 with Witness 1.

14. The Registrant denied all the particulars of the allegations.

15. The task of the Panel was to make its own findings taking into account all the evidence (both oral and documentary) and the submissions made by the Registrant and Mr Walters. The Panel indicated that as the Registrant was unrepresented (save for the assistance of Mr Robinson Young for the purposes of cross examination) it would deal with facts first and consider the question of grounds, current impairment and sanction separately if that proved necessary.
   
16. The Panel heard oral evidence and considered witness statements from Person A and Witness 1 the owner of the Practice. It also considered two bundles of documents A and B containing statements and exhibits etc from the HCPC.

17. The Panel heard oral evidence from the Registrant and was provided with  bundles of documents labelled D and E constituting the Registrant’s written response to the allegations and various documentation said to be supportive of his case including emails between Person A and the Registrant concerning his clinical list.

18. Mr Walters on behalf of the HCPC submitted that particular 1 needed to be considered first. If this was not proved particular 2 was irrelevant. The case came down to credibility. Person A has worked at the Practice for a number of years without incident. The statements she has provided on the incident have been consistent. She gave a further consistent oral account on oath. She was fair to the Registrant. She did not want him to lose his job and had had to be persuaded to make a complaint. Witness 1 was fair and had no motive to lie. Person A was offered a foot massage not a foot check by the Registrant.  He wanted to ‘reward her’ and this was more likely to be done by a massage rather than a foot check.     

19. The Registrant submitted that Person A is deliberately attempting to smear his name and was not a reliable witness. The foot check lasted less than six minutes including the application of cream which lasted three minutes. Person A was not a patient she was a colleague who wanted a quick check of her feet. The assessment was therefore not the same as on a patient. On examination Person A had no obvious foot pathology.  There was a need to examine Person A’s legs, this was clinically justified. When it was clear that Person A’s jeans did not roll up beyond the ankle he did not request her to remove them. The Registrant stated that his evidence was the most credible of all the witnesses. Person A left on the day without complaint. She is old enough to complain if she felt uncomfortable, her failure to do so undermines her account.

20. The Panel took into account all the evidence, including all the documentation referred to in the witness statements and also referred to by the Parties during the course of the hearing. It has not been necessary to make findings on every matter raised in the evidence, the Panel concentrated on making findings on the matters alleged.

21. The Panel made the following general observations in respect of the credibility of the witnesses:

• Person A -The Panel found her evidence to be credible, consistent throughout and balanced and fair.

• Witness 1- The Panel found his evidence was consistent. He accepted his notes about the meeting on 17 May should have been made contemporaneously and shared with the Registrant. However his memory of the meeting was good and the Panel accepted it was. He gave straightforward evidence without embellishment.

• The Registrant – The Panel was not impressed with his evidence. There were numerous inconsistencies in and between his written and oral evidence. His description of the ‘foot check’ was improbable.    

Decision on Facts:

22. The Legal Assessor reminded the Panel of the guidance set out in Practice Note ‘Finding that Fitness to Practise is Impaired’ under the heading Introduction. In respect of the Panel’s fact finding exercise the HCPC has the burden of proof in establishing the facts as alleged. The standard is the civil standard of proof – that is on the balance of probabilities. This was accepted by the Panel.

Whilst registered as a Podiatrist on 10 May 2014, you:
 
1. Gave Person A a foot massage:
 
Found: Proved

Reasons: The Panel accepted the evidence of Person A who clearly stated that the Registrant had requested on three or four occasions during the day to give her a foot massage. Person A reluctantly agreed to a massage at the end of the clinic. Her evidence was consistent throughout and she had no obvious reason not to tell the truth. Person A gave a full account of the events of the 10 May 2014 that evening by voice mail and telephone to Witness 1. He used the details of that voice message when he met with the Registrant on 17 May 2014 to interview him. Witness 1 gave evidence that he used the term “foot massage” in this meeting, and he does not recall the Registrant contradicting him or saying it was a foot check or treatment. Person A gave written accounts of 10 May 2014 on 27 May 2014 to the HCPC and more detailed statements some time later. She gave oral evidence at the hearing. Person A stated and it was accepted by the Panel that the Registrant did not carry out a clinical assessment of her feet. Person A had no history of foot complaints and no obvious reason to see a podiatrist. The Registrant’s own statement at p.3 of Bundle E did refer to the “offer to do a foot massage”. The Registrant’s description of the foot check did not accord with good clinical practice. The length of time allegedly taken, reasons for application of the emollient and lack of record keeping all point to a massage rather than a clinical check. The Panel did not accept that the Registrant has been the victim of a conspiracy by Person A and Witness 1, to remove him from the Practice. Such an assertion is unsupported by evidence and is illogical given there would be no financial benefit to Witness 1 for the Registrant to leave the Practice. So far as it is alleged by the Registrant that Person A and/ or Witness 1’s evidence is tainted by race discrimination, this is not accepted by the Panel. The Panel found on the balance of probabilities that the Registrant did give Person A a foot massage.

a) Asked Person A to remove her trousers when there was no clinical reason for doing so.

Found:  Proved

Reasons: The Panel was faced with a straight conflict of evidence on this point. Person A stated that the Registrant asked her to remove her trousers, on the pretext of wanting to massage her legs, on four or five occasions. Person A refused giving different excuses on each occasion. The Registrant stated that he wanted to examine her legs as part of his foot check and asked her to roll her trousers up. When it was clear they would not go beyond the ankle he stated he did not request her to remove her trousers.

The Panel accepted the evidence of Person A. Her evidence on this issue as with all other issues has been consistent throughout. The Panel also accepted the evidence of Witness 1 who stated that he had asked the Registrant in the meeting of 17 May why he had asked Person A to remove her trousers and he did not deny doing so.  This was a foot massage, not a clinical examination, as the Panel has already found and there was no clinical reason for the Registrant to request her to remove her trousers. The Panel found on the balance of probabilities that the Registrant did ask Person A to remove her trousers.   

b) Stated that Person A was a 'gorgeous girl', or words to that effect.

Found: Proved

Reasons: The Panel accepted the evidence of Person A who stated that this was said. Again her evidence was consistent throughout. The Registrant denied this was said during the foot massage although he did accept that on other occasions he did tell Person A and other colleagues that they looked “beautiful/nice”. The Panel found on the balance of probabilities that the Registrant did use words to the effect of ‘gorgeous girl’.

c) Stated that you wanted to be 'special friends' or words to that effect.

Found: Proved

Reasons: The Panel accepted the evidence of Person A who stated that this phrase was used towards the end of the foot massage. The Panel noted that Person A described how the Registrant emphasised the word special and said at that point she became scared. She felt the word “special” meant that the Registrant wanted something more to happen between them. The Panel found Person A’s written and oral evidence compelling on this point. Her evidence was consistent throughout. The Panel found on the balance of probabilities that the Registrant did say that he wanted to be special friends with Person A.

d) Hugged Person A.

Found: Proved

Reasons: The Registrant accepted that he had hugged Person A earlier in the day in a communal area but denied hugging her immediately after the foot massage. Person A says the hug was given as she was leaving the treatment room and that she agreed to it very reluctantly under duress and purely as a mechanism to placate the Registrant and allow her to leave the premises. The Panel found Person A’s written and oral evidence to be consistent and compelling. The Panel concluded on the balance of probabilities that the Registrant did hug Person A.  

2. The actions described in paragraphs 1 were sexually motivated.

Found: Proved

Reasons: The Panel was of the view that the only motivation for the above acts was sexual. There is no other legitimate explanation for the Registrant’s behaviour. The Registrant did not undertake a clinical examination, he gave Person A a foot massage. He requested that she remove her trousers with no clinical justification. Person A gave evidence that she was frightened that the Registrant wanted something sexual. Again the Panel found her evidence credible and concluded on the balance of probabilities that the actions described in paragraph 1 were sexually motivated. 

Decision on grounds:

23. Paragraph 3 of the Allegation asserts that the relevant matters described in paragraphs 1-2 constitute misconduct.

24. The Panel directed itself in accordance with the following principles, as advised by the Legal Assessor.

25. 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.

26. In R (on the application of Remedy UK) v GMC [2010] EWHC 1245 (Admin) at [37], having reviewed the prior case law Elias LJ stated in respect of misconduct–

“I would derive the following principles from these cases:

(1) Misconduct is of two principal kinds. First, it may involve sufficiently serious misconduct in the exercise of professional Practice such that it can properly be described as misconduct going to fitness to practise.  Second, it can involve conduct of a morally culpable or otherwise disgraceful kind which may, and often will, occur outwith the course of professional Practice itself, but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession.

(2) 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.

(3) 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.
      ………………………..”   
The misconduct must be serious and this has been said to involve ‘incompetence or negligence of a high degree’ or ‘conduct which would be regarded as deplorable by fellow practitioners’. In Preiss v General Dental Council [2001] 1 WLR 1926, Lord Cooke of Thorndon delivering the judgment of the Privy Council stated, at [28]:

"It is settled that serious professional misconduct does not require moral turpitude. Gross professional negligence can fall within it. Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium that inevitably attaches to the disciplinary offence."

Recently, in the case of Shaw v The General Osteopathic Council (2015) EWHC 2721 Admin Kerr J however stated that the notion of moral blameworthiness is not an unnecessary gloss on the statutory language but, rather, flows directly from the meaning of the word “conduct”. In so doing he held that statements in the authorities (such as Preiss) on medical cases to the effect that “moral turpitude” or “morally blameworthy” behaviour is not required to establish misconduct were made for the purpose of contrasting deliberate wrongdoing with conduct that is merely negligent.

Further, a breach of professional standards does not itself suffice to establish a statutory ground.  All the relevant circumstances in which the conduct took place should be taken into account on the question of culpability. References in the case law to ‘doctors’ and ‘medicine’ are equally applicable to Registrants regulated by the HCPC.

27. The Panel considered each of the subparagraphs of the Allegation found to have been proved and asked itself whether, either individually or collectively, those facts amounted to misconduct in view of all the evidence placed before it. This is a matter of judgement for the Panel, it is not a matter which needs to be proved - see HCPC Practice Note ‘Finding that Fitness to Practise is Impaired’.

28. Mr Walters submitted that there is misconduct within the meaning of the term. The Registrant acted wholly inappropriately towards a junior colleague with actions that were sexually motivated. This has had a lasting detrimental impact on Person A, both creating general distress and impacting on her willingness to seek podiatric treatment in the future. The Registrant made no specific submissions in respect of the question of grounds.

29.   The HCPC relied on the HCPC Standards of conduct, performance and ethics:

• 3 - You must keep high standards of personal conduct.

• 13 - You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.

30. The Panel found that HCPC standard 3 has been breached and 3.1 of the Chiropodists/Podiatrists Standards of Proficiency has been breached - ‘understand the need to maintain high standards of personal and professional conduct’.
 
31. The Panel took into account that the Registrant was older than Person A and in a relative position of seniority. His actions occurred in a professional setting, when no other person was present. They were sexually motivated,inappropriate and liable to bring the Podiatry profession into disrepute. His actions were serious, immoral and highly blameworthy. The context of the actions was particularly troubling. The Panel accepted the detrimental impacts on Person A as identified by Mr Walters, which are serious and liable to be long standing. The Panel therefore found that the facts proved constituted misconduct.   
 Decision on Impairment:

32. The Panel accepted the advice of the Legal Assessor and considered the HCPC Practice Note on ‘Finding that Fitness to Practise is Impaired’. In determining whether fitness to practise is impaired, panels must take account of a range of issues which, in essence, comprise two components:

i) the ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and

ii)  the ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

33. The Panel further was advised of the following general principles:

i) Impairment is a matter of judgment rather than proof;

ii) “However, it is essential, when deciding whether fitness to practise is impaired, not to lose sight of the fundamental considerations emphasised [in Cohen ] at paragraph 62, namely the need to protect the public and the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession.”

iii) Insight – the expectation that a Registrant will be able to stand back and accept that, with hindsight, he should have behaved differently, and it is expected he will take steps to prevent reoccurrence – is an important factor in a hearing.

iv) “It must be highly relevant in determining if a doctor's fitness to practise is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated” Cohen v GMC [2008] EWHC 581 Admin at [65] per Silber J.

34. The HCPC submitted that by virtue of the Registrant’s misconduct he brought the profession into disrepute. It was imperative that a finding of impairment was established to uphold public confidence in the profession and the regulatory process and to protect the public. It was accepted that the Registrant’s professional practice was at a current appropriate standard. However the Registrant has not demonstrated any real insight into his actions. He has tried to lay the blame at the door of others. He has shown no remorse. He denied the allegations and instructed his representative to conduct a robust cross examination of Person A. There is a risk of repetition in the future.  

35. The Registrant accepted the findings of the Panel as to facts. Since 10 May 2014 he has become more careful in terms of his relationship with friends and work colleagues. The incident has impacted on his standing within his faith community. There may be cultural issues to do with his accent and he has now made sure that whoever he interacts with understands him. In less than five years he has worked in 13 NHS establishments and his behaviour was good. This was the first such allegation since he started. He relied on his reference from Harrogate NHS Trust dated 29 June 2016 which was positive. He expressed his apology to Person A and Witness 1.  He now has professional indemnity insurance and demonstrated he is on cover.  He has no intention to do private work and intends to continue his work in the NHS. He has undertaken study days and mandatory training as well as regular training through the Society of Chiropodists and Podiatrists. He works with a team leader with whom issues can be discussed. He keeps a reflective diary. He had mandatory equality and diversity training when he joined the Harrogate NHS Trust. There have been discussions with his employer about further communication training/support. He now tries to avoid being alone with female colleagues and is cautious before he speaks. 

36. The Panel was aware that, in considering impairment, there is no definition to be relied upon but it is sometimes described as a negative subsisting impact on a person’s performance.  It is a matter for the judgment of the Panel, there is no burden or standard of proof to be applied at this stage.  The Panel noted that the test of impairment is expressed in the present tense: that fitness to practise is impaired at the current date.

37. The Panel fully acknowledged the references provided by the Registrant, the first one dated 3 September 2015 from a recruitment consultant indicating that the Registrant worked as a locum Podiatrist between November 2012 - May 2015; and the second being two sets of references from Harrogate NHS Trust dated 7 September 2015 and 29 June 2016. There appears to be no problem with the Registrant’s professional practice save for a low number of communication concerns. The Panel also noted the positive character references provided by his Pastor dated 7 September 2015 and 29 June 2016. 

38. The Panel was of the view that the Registrant’s fitness to practise is impaired both on the personal and public component. The impairment is attitudinal, belying a worrying lack of understanding of appropriate professional boundaries. Attitudinal problems are difficult to remediate in any event. However the Panel concludes that the Registrant completely lacks insight into his misconduct. He gave some general expressions of regret or remorse belatedly after the findings of fact were made but then qualified these statements with references to language and cultural differences. The Panel was therefore concerned that the Registrant has not taken personal responsibility for his behaviour. The Panel saw a distinct lack of concrete steps taken to address the matters giving rise to its findings such as appropriate courses and training or the production of a reflective piece. The Panel was concerned that the Registrant showed no demonstrable empathy for Person A and the long lasting impact on her of his actions. The Registrant objected to her giving evidence behind a screen and accused her of dishonesty and colluding with Witness 1. The Panel found that all of these matters mean that there is a realistic risk of repetition and therefore a risk of serious harm to service users, colleagues and members of the public. The Panel also concluded that there is a necessity to make a finding of impairment to uphold proper standards of behaviour and maintain public confidence in the profession and the regulator.  The actions of the Registrant were wholly inappropriate. Members of the public and the profession would expect in the circumstances a finding of impairment to mark strong disapproval of this conduct.

39. Following the handing down of the decision, evidence on sanction was given and submissions were made and guidance provided by the Legal Assessor. Unfortunately the Panel did not have time to conclude its deliberations on sanction. A date was determined of 24 August 2016 for the hearing to be resumed and on that day the decision on sanction will be given.

40. In the interim period the HCPC applied for an interim order on the basis of a change of circumstance, ie. the decision of the Panel on Facts, Grounds and Impairment.

41. The Panel after inviting submissions from both parties and hearing from the Legal Assessor agreed that an Interim Order should be made. The Panel determined to make the following interim conditions of practice order which it decided was proportionate and provided suitable public protection for the interim period between today and 24 August. The order was necessary for protection of the public and otherwise in the public interest.

For three months or until any further order

(i) You must confine your professional practice solely to Harrogate and District NHS Foundation Trust   
(ii) You must immediately show your line manager the Panel’s “Notice of Decision and Order” from your hearing on 18-20 July 2016
(iii) You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

42. The Panel also considered that the following case management direction would be of assistance:

42.1  Seven days prior to the resumed hearing the Registrant may send an up to date report of his employment circumstances.

42.2 Three days prior to the resumed hearing the HCPC may provide written submissions in response to the document above at 42.1.

Decision on Sanction:

43. The Panel reconvened on 24 August 2016 to consider sanction. Pursuant to the directions indicated at paragraph 42.1 the Registrant provided an up to date position as to his employment circumstances. He has been suspended on full pay by his employer, which has now launched its own investigation, presumably prompted by the Panel’s factual findings. The Panel noted this evidence, which did not have a bearing on its decision.

44. The decision on sanction is a matter for the Panel exercising the principle of proportionality and reflecting the principles within the HCPC’s ‘Indicative Sanctions Policy’ (ISP).

45. The Panel noted that any sanction must be proportionate, that it is not intended to be punitive although it may have a punitive effect, and that it should be no more than is necessary to meet the legitimate purposes of providing adequate protection to the public and otherwise meeting the wider public interest in protecting the reputation of the profession, maintaining confidence in the regulatory system, and declaring and upholding proper professional standards. The Panel sought to balance the public interest against the rights of the Registrant to practise his chosen profession.

46. The Panel considered the available sanctions in ascending order of severity and has concluded that to take no action or to impose a caution would not be appropriate because the offence is too serious. A caution order would not in any sense address the public interest or the seriousness of the misconduct as found by the Panel in this decision.

47. The Panel next considered the imposition of Conditions of Practice on the Registrant. The Panel gave careful consideration to the possibility of imposing a Conditions of Practice Order in this case. Ultimately the Panel rejected the imposition of such an order. Its reasons are as follows.

48. Firstly the Panel is of the view that the Registrant has demonstrated no real insight into his misconduct save for the generalised expressions of regret and remorse after the findings of fact were made. As previously indicated the Registrant’s problems are attitudinal and are therefore difficult to remediate. The Registrant has demonstrated a lack of empathy towards his victim who was a colleague and there was a denial of wrong doing. The totality of all these factors is that the Panel is deeply concerned that there is risk of repetition. The nature of the misconduct is such that with such a risk service users, co-workers and members of the public would be placed at risk of harm if the Registrant returned to practice in any capacity at present. The Panel took particular note of paragraph 27 of the ISP which indicates that a Conditions of Practice Order is unlikely to be appropriate where the Registrant lacks insight or denies wrongdoing.

49. The second reason for rejecting a Conditions of Practice Order is that the Panel were unable in the present circumstances to formulate conditions that could be workable, practicable and verifiable. A condition requiring a permanent chaperone (which might arguably address the risk of repetition) would be unworkable, difficult to verify and would, in practice, amount to a suspension.
 
50. The third reason for rejecting a Conditions of Practice Order is that the Panel is of the view that such an order would not serve the wider public interest and uphold confidence in the Podiatry profession and the regulator. Members of the public and the profession would rightly consider the conduct of the Registrant to be deplorable and expect to see such disapproval of his conduct marked by a period of complete removal from practice. 
 
51. Accordingly the Panel next considered whether a suspension order would be appropriate. The ISP states that a suspension order should be considered where the Panel considers that a caution or conditions of practice order would provide insufficient public protection.

52. The Panel acknowledged the financial impact on the Registrant of a suspension order but was of the view that the public interest outweighed his interests in this regard.


53. The Panel decided that a suspension order for 12 months is appropriate because this is sufficient to mark the seriousness of the offence, address the public interest considerations and maintain public confidence in the profession and the regulatory process. The Panel is not of the view that erasure from the Register is warranted. The Panel is of the view that the Registrant has, with a significant amount of remedial work, the potential to safely return to practice.

54. The suspension order will allow for the possibility that the Registrant can return to practice in the future. A period of suspension will give him an opportunity to develop insight into his misconduct including its underlying reasons. The suspension order will be reviewed before it expires. Whilst it is not for this Panel in any way to seek to bind the discretion of any reviewing panel, such a panel might find it helpful for the Registrant to produce the following

(i) up-to-date testimonials and references from any employers commenting upon his professional relationships with female colleagues and/or members of the public.

(ii) evidence of the successful attendance and completion of face to face courses delivered by established training providers which provide training (and potentially examination) on:

• professional boundaries at work and
• equality and diversity standards in the workplace.

(iii) a reflective piece written by the Registrant addressing the incident and what he has learned from any training he has undertaken.

Order

ORDER: That the Registrar is directed to suspend the registration of Mr Tombe Lumonamo for a period of 12 months from the date this order comes into effect.

The order imposed today will apply from 21 September 2016.

This order will be reviewed again before its expiry on 21 September 2017.

Interim Order:

The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.  This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

Notes

This final hearing of the Conduct and Competence Committee convened on 18 July 2016 and was adjourned part heard.

The hearing reconvened on Wednesday 24 August 2016 at 10 am at 405 Kennington Road, London.

Hearing history

History of Hearings for Mr Tombe Lumonamo

Date Panel Hearing type Outcomes / Status
16/01/2018 Conduct and Competence Committee Review Hearing Conditions of Practice
18/08/2017 Conduct and Competence Committee Review Hearing Conditions of Practice
24/08/2016 Conduct and Competence Committee Final Hearing Suspended