Andrew Gardner

: Physiotherapist

: PH44850

Interim Order: Imposed on 26 Oct 2016

Finding:

: Final Hearing

Date and Time of hearing:10:00 20/02/2017 End: 17:00 21/02/2017

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

: Conduct and Competence Committee
: Struck off

Allegation

During the course of your employment as a Physiotherapist at Morecambe Bay University Hospitals NHS Trust on dates between 18 July 2011 and 2 June 2013,You:

 

1. On 7 May 2013, during treatment by a Student A, allowed your penis to become exposed.

 

2. In the treatment session referred to in particular 1 above and/or in subsequent sessions, touched Student A one or more times:

a) on the arm;

b) on the buttocks; and / or

c) on the waist.

 

3. In the treatment session referred to in particular 1 above and/or in subsequent sessions, questioned Student A about her personal life, in that you:

a) asked if she was in a relationship; and / or

b) asked about her holiday plans.

 

4. Between 29 April 2013 and 2 June 2013, on finding Colleague B alone in an office, you inappropriately questioned her for several minutes about her sex life

 

5. During the questioning referred to in particular 4 above, positioned yourself in an intimidating manner towards Colleague B in that:

a) you leaned in close to Colleague B's face when speaking to her;

b) you then stood with your hands above Colleague B's head placed on the wall so that the only way she could walk away from you was by walking under your arm;

 

6. You behaved inappropriately towards Colleague B in that you:

(a) massaged her shoulders;

(b) tried to kiss her on the lips;

(c) stroked her hand and / or arm.

 

7. On 18 July 2011, during a one-to-one meeting (ADR meeting), with Colleague C you acted in an intimidating manner towards Colleague C in that you:

(i) (a) Raised your voice;

(ii) (b) Spoke in an aggressive manner;

(iii) (c) Stood over Colleague C; and / or

(iv) (d) Pressured her to write a document you dictated.

 

8. Your actions described in paragraphs 1, 2, 4 and/or 6 were sexually motivated.

 

9. The matters set out in paragraphs 1 - 8 constitute misconduct

 

10. By reason of your misconduct your fitness to practise is impaired

Finding

Preliminary matters

Previous findings

1.             At the commencement of the hearing, prior to the Allegation being read out, the Panel raised an issue with regard to findings made during the Trust investigation process in respect of the Registrant, which were in the HCPC’s written evidence before the Panel. The Panel had concerns about this evidence in the light of the recent case of Enemuwe v NMC [2013] EWHC 2081 (Admin) which confirmed that “normally the findings of fact made at some earlier investigation by another panel or another person are not admissible…”. The Panel also expressed concerns regarding some wider background material in the written evidence which potentially could have a prejudicial effect upon the Registrant. Ms Binding confirmed that she did not seek to rely on matters which were not charged. With regard to the wider material in the bundle relating to the background and culture in the Trust, she was happy to redact that, although she submitted that it was for Mr Henry to decide what his position was in respect of that material. Mr Henry confirmed that there was some material in Witness 1’s witness statement regarding her conclusions as Investigating Officer which he would seek to redact. Agreed redactions were made to Witness 1’s witness statement.

 

2.             The Panel agreed that they should wholly disregard those parts of the witness statement which had been redacted.

Application to amend the allegation

3.             Ms Binding made an application to amend Particular 1 to remove the words “a”, and “allowed”, and to substitute “became” for the words “to become”. This was to provide clarity and also consistency with Particular 8 which alleged a sexual motivation. Ms Binding submitted that the word “allowed” was akin to recklessness, which was inconsistent with the alleged sexual motivation which in Particular 8 which required an intention. Mr Henry did not object, referring to the Registrant’s position that he would accept the factual basis of Particular 1, as stated in para. 17 of the Registrant’s witness statement. The Panel accepted the advice of the Legal Assessor.

 

4.             The Panel decided to accede to the application on the basis that both parties were in agreement, and that it was fair and in the interests of justice in order to provide clarity, and consistency with Allegation 8 and did not prejudice the Registrant.

Background

5.             The Registrant was employed as a Band 7 (Advanced) Physiotherapist by the University Hospitals of Morecambe Bay NHS Foundation Trust (“the Trust”), working at the Queen Victoria Hospital (“QVH”). The Registrant had worked at the Trust and its predecessors since 1992. While he was on sick leave in 2013, he received physiotherapy treatment from Student A, a first year physiotherapy student on placement at the Queen Victoria Centre (“QVC”), over a period of 5 weeks, during which he is alleged to have acted in a sexually motivated manner. During a Trust investigation by Witness 1, further concerns came to light relating to the Registrant’s conduct towards two employees of the Trust. Firstly, in respect of Colleague B, the Registrant is alleged to have behaved inappropriately in a sexually motivated manner in 2013, and on other undated occasions. In relation to Colleague C, who was senior to the Registrant, the Registrant is alleged to have acted in an intimidating manner during a one-to-one Annual Development Review meeting on 18 July 2011.

Application for Special Measures

6.             At the start of Day 2 of the hearing, Ms Binding applied for special measures in the form of a screen in respect of Student A.  Ms Binding submitted that Student A is a vulnerable witness who gives evidence as to allegations of a sexual nature; she was the alleged victim and did not wish to see the Registrant when giving her evidence. Mr Henry did not oppose the application. The Panel accepted the advice of the Legal Assessor.

 

7.             The Panel considered Rule 10A of the 2003 Rules which provides that a witness, where the allegation is of a sexual nature and the witness is the alleged victim, may be treated as a vulnerable witness if the quality of his or her evidence is likely to be adversely affected as a result. The Panel also took into account the HCPC’s Practice Note entitled “special measures”. The Panel decided to allow the application in order to obtain the best evidence. The witness was less likely to feel intimidated with a screen and this would likely improve the quality of her evidence. 

Application to hear part of Colleague B’s evidence in private

8.             Before Colleague B began to give her evidence, Ms Binding informed the Panel that Colleague B was concerned about recriminations from employees at the Trust, where she still worked, as a result of her involvement in these proceedings. Therefore, Ms Binding applied for any evidence which Colleague B might give which would entail her job role being identifiable should be heard in private, and also applied for her to be referred to simply as an “employee” in the proceedings. Mr Henry did not oppose the application. The Panel heard the advice of the Legal Assessor who referred to Rule 10(1)(a) which states that the proceedings “shall be held in public unless the Committee is satisfied that, in the interests of justice or for the protection of the private life of...the complainant, [or] any person giving evidence …, the public should be excluded from all or part of the hearing”.  In the interest of justice the Panel agreed that the job role of Colleague B would not be referred to and she would simply be described as an “employee” of the Trust.  The Panel accepted the application that evidence identifying and referring to her role would be in private. Due to her concern about incrimination in the workplace.

 

Decision on Facts

9.             At the outset of the hearing the Registrant admitted Particular 1, Particular 2a), b) and c) and Particular 3a) and b). He denied the rest of the Particulars of the Allegation.

 

10.           On behalf of the HCPC the Panel heard evidence from the following:

Witness 1 – Investigation officer for the internal Trust proceedings.

Witness 2 – Case manager of the internal investigation and Lead Allied Health Professional.

Student A – Student physiotherapist at the material time.

Colleague B – Employee at QVC.

Colleague C – Team Manager and advanced physiotherapist at QVC.

11.           The Panel heard and accepted the advice of the legal assessor. The Panel understood that the burden of proving each individual fact rests on the HCPC and that the HCPC will only be able to prove a particular if it satisfies the required standard of proof, namely the civil standard, whereby it is more likely than not that the alleged incident occurred.

 

12.           The Panel firstly considered the credibility and reliability of the complainant witnesses during their oral evidence.

 

13.           The Panel concluded that Student A gave consistent evidence. She demonstrated an upset demeanour while giving evidence, which added to her credibility. Furthermore, despite the experience which she has gained as a physiotherapist since the time of the allegations, she still stood by her evidence, which added to her credibility. The Panel considered that she accepted when she could not recall matters, did not exaggerate, and this reinforced her reliability.

 

14.           The Panel considered that Colleague B was extremely nervous while giving evidence and was initially flustered. She was a reluctant witness, and considered that some of the incidents about which she gave evidence had been blown out of proportion. However, despite this, the Panel concluded that she gave a coherent account of her evidence, had a good recollection of detail, was forthright and consistent on significant issues, and was open and honest. She was a balanced witness and keen not to create a false impression of the Registrant. The Panel found her to be a credible and reliable witness.

 

15.           Colleague C was relatively consistent in her evidence, and was generally credible. However, the Panel considered her to be somewhat guarded in her answers, and she did not mention in her evidence that she had a close friendship outside work with the Registrant, features of which emerged later in the hearing.

Particular 1

16.           The Registrant admitted this amended Particular at the outset of the hearing. This admission is consistent with his written witness statement which states that he is willing to accept that his penis became exposed during the treatment by Student A as he could see no reason for her to lie. Although he had no recollection of the incident.

Particular 2

17.           The Registrant admitted limbs a), b) and c) of this Particular at the outset of the hearing, in line with his written witness statement. However, he has no recollection of touching Student A as alleged. As stated in his witness statement, he can see no reason why Student A should lie about these matters.

Particular 3

18.           The Registrant admitted limbs a) and b) of this Particular at the outset of the hearing, having done so in his written witness statement. However, he has no recollection of these events.

 

19.           With regard to Particular 3a), the Registrant stated in oral evidence that in his pastoral care role toward Student A he could have asked this question as external relationships can impact on placements and he would have been concerned that her performance and her grade were not affected.

 

20.           With regard to Particular 3b), the Registrant stated in oral evidence that it was possible that he mentioned that he was travelling to Spain which was part of his holiday plans. The Panel found Particulars 1, 2, and 3 proved.

Particular 4

21.           The Panel found Particulars 4a), b), and c)(i),(ii) and (iii)  proved.

 

22.           The Panel firstly concluded that any questioning for several minutes about Colleague B’s sexual life would in principle be inappropriate.

 

23.           Colleague B’s oral evidence was that “we got on fine” and that she had a good working relationship with the Registrant. She was keen to point out parts of her previous statements which gave a false impression, for example that she thought that the Registrant was going to shoot her. She felt that the management at the Trust had blown some of the incidents out of proportion and she wanted to correct that. She said “we got on very well”. However, she also stated that the Registrant “caught her off guard” and she “did not like it at all”. Her oral evidence was that he moved extremely close to her, and straddled either side of her chair with his legs, with his body leaning forward, although not touching her. Out of the blue he asked her if she had a vibrator in a low whispering tone. Colleague B recollected that she was flustered and would have appeared embarrassed because she did not like such personal questions. When asked if she could have mis-remembered the incident, she said that “I remember the incident very clearly”, and that there are “certain lines” which she felt had been crossed. She tried to escape by going over to a large filing cabinet.

 

24.           In assessing the evidence the Panel took into account that Colleague B was of the view that there was a witch hunt against the Registrant. Nevertheless the Panel considered that Colleague B’s evidence in respect of this particular matter was clear and consistent. On balance the Panel preferred the evidence of Colleague B. She gave a consistent and detailed account including evidence of the traumatic impact the incident had on her. The Panel accepted her evidence that the Registrant was whispering so that it was unlikely that he would be heard by those nearby. Although she was not prepared to stand by her evidence on other matters, she could recall this incident in detail. She was very keen not to create a false impression of the Registrant with whom she said she had no issues in their everyday relationship. She also said that this was a one-off incident.

 

25.           Furthermore, Student A recalled a conversation with Colleague B and Person 3 probably on the day of the incident in which Student A was discussing her concerns regarding the Registrant’s behaviour, and Colleague B said that “I have had a run in with him”. The Panel accepted this evidence.

Particular 5

26.           The Panel found Particular 5 a) proved and 5 b) not proved.

 

27.           The Panel noted that the stem of this allegation includes the words “in an intimidating manner”, which was a matter to be considered once a decision had been made in relation to Particulars a) and b).

 

28.           Regarding Particular 5a), the Panel considered Colleague B’s witness statement and oral evidence. The Registrant denied this Particular stating that he had no recollection of the events taking place and explained to the Panel that due to his injury he would not have wanted to get into a confrontational situation. However, the Panel preferred Colleague B’s account of the event in Particular 4 that “he was very close to my face” and “was taking up all my personal space”. This demonstrated to the Panel that on the balance of probabilities, the Registrant leaned in close to Colleague B’s face when speaking to her.

 

29.           Regarding Particular 5b), Colleague B described the incident as taking place in front of a large wardrobe-style filing cupboard which was taller than her and filled with shelves and files. She accepted that it was open but stated that it could be leaned against as it was full of files. The Registrant’s case pointed to the inherent implausibility of leaning against an open cupboard. In oral evidence Colleague B indicated that only one of the Registrant’s hands was on a wall and the other was on the cupboard. The Panel accepted Colleague B’s account but found this Particular could not be proved as the wording in the Allegation referred to both hands being placed on the wall. 

 

30.           Regarding the stem of this charge, Colleague B confirmed in her oral evidence that she felt intimidated in this incident. The Panel accepted that she could only escape by ducking under the Registrant’s arm, and that he positioned himself close to her face in an intimidating manner towards her.

Particular 6

31.           The Panel found Particular 6a), b) and c) proved.

 

32.           The Panel noted that the stem of this allegation includes the word “inappropriately”, which was a matter to be considered once a decision had been made in relation to Particular 6a), b) and c).

 

33.           Regarding Particular 6a), Colleague B in her oral evidence stated that on “most mornings”, the Registrant would massage her shoulders and those of Person 20. The Registrant denied this.

 

34.           Regarding Particular 6b), Colleague B in her oral evidence stated that sometimes “he would try to kiss us on the lips but we would turn away”. She confirmed that it did not bother her much, and that they would laugh it off; Person 20 would say “here he comes, pucker up”. The Registrant denied that he would try to kiss Colleague B on the lips.

 

35.           Regarding Particular 6c), Colleague B at para. 23 and 24 of her witness statement describes the Registrant’s habit of stroking her hand and arm and taking a pen very slowly out of her hand, but in other respects she felt the interpretation of events had been twisted in her witness statement. She considered that he was acting in a jokey manner. The Registrant denied acting in this way.

 

36.           The Panel accepted Colleague B’s evidence as consistent and credible and found the Registrant acted in the ways set out in Particular 6a), b) and c). Having heard all the evidence, and notwithstanding Colleague B’s evidence about the culture of the department, the Panel considered that the behaviour in Particular 6 a), b) and c) was inappropriate.

Particular 7

37.           The Panel found Particular 7 a), c) and d) proved. Particular 7 b) was found not proved.

 

38.           The Panel noted that the stem of this allegation includes the word “in an intimidating manner”, which was a matter to be considered once a decision had been made in relation to the rest of the Particular.

 

39.           Colleague C emphasised that she had a good working relationship with the Registrant and that this was a one off incident which was out of character.

 

40.           The Registrant accepted that an Annual Development Review meeting took place and that he was annoyed and frustrated at firstly, the lack of funds and study leave for training and career development and secondly, comments in the staff room which made him feel that staff were against him.

 

41.           Regarding Particular 7a), Colleague C’s witness statement at para. 22 states that the Registrant was speaking in an angry, raised voice although she would not describe this as shouting. When asked about this in her oral evidence, she explained he was speaking somewhat louder than a normal speaking voice. In his oral evidence, the Registrant agreed that he had raised his voice. The Panel therefore found that he had raised his voice.

 

42.           Regarding Particular 7b), Colleague C’s witness statement at para. 20 refers to the Registrant speaking in a “raised aggressive voice”. However, in her oral evidence Colleague C changed this to say that from the sound and tone of his voice he appeared angry rather than aggressive. She explained that his anger and frustration were not directed at her but the system. She was concerned for him that he was angry and upset. The Panel therefore did not find that the Registrant spoke in an aggressive manner as alleged.

 

43.           Regarding Particular 7c), Colleague C’s oral evidence was that the Registrant was standing over her while she was seated at her desk. In her oral evidence she told the Panel that “if anyone is standing over me and getting angry, my perception is that it is intimidating”. The Registrant denied this allegation, stating in his oral evidence that he could not see Colleague C’s small computer screen without kneeling or bringing the chair round to be closer to it. He had no recollection of standing over Colleague C. The Panel preferred Colleague C’s evidence which was clear and consistent. She had a good recollection of the incident, and was keen to describe it as out of character. She gave a balanced account. The Panel also took into account the Registrant’s evidence that he could not see the computer screen at a 45 degree angle, and therefore found it more likely than not that he did stand over Colleague C.

 

44.           In relation to Particular 7d), Colleague C’s evidence was that she “felt pressured to write the document”, that he was “insistent”, and that she felt that if she stopped, it would make him more agitated. The Registrant agreed that he asked her to write a document which he dictated to her. He accepted that he could see how Colleague C might have felt pressured, and he felt that there was no alternative. The Panel found that the Registrant did pressure Colleague C to write the document which he dictated.

 

45.           The Panel then considered whether the actions in Particular 7a), c) and d) were carried out “in an intimidating manner”. The Panel heard that Colleague C had reported the matter to her Line Manager, Person 5 in an email written the next day. She understood Person 5 had spoken to the Registrant about the matter.

 

46.           The Panel took into account that Colleague C perceived the Registrant’s manner to be intimidating because of his size and because he was getting angry. She felt that the balance in the appraisal had changed from the usual relationship in such a meeting, and felt that the Registrant was trying to lead the meeting despite being the appraisee. Colleague C said she was not used to people telling her what to write. The Registrant accepted that his behaviour could have been perceived as intimidating. On the balance of probabilities the Panel found that he did act in an intimidating manner in respect of Particular 7a), c) and d).

Particular 8 in respect of Particular 1

47.           The Panel found this Particular proved.

 

48.           The Panel considered sexual motivation in the ordinary meaning of the words. Although the Panel recognises that Student A was not a patient, it found helpful the definition of sexualised behaviour in the CHRE (now PSA) document entitled ‘Clear sexual boundaries between healthcare professional and patients: responsibilities of healthcare professionals’ dated January 2008 at p. 2:

Acts, words or behaviour designed or intended to arouse or gratify sexual impulses or desires.

It also looked at examples of sexualised behaviour in Appendix B which include;

       exposure of parts of the health care professional’s body to the patient.

49.           The Panel decided, when approaching this allegation, that any sexually motivated act must be intentional and not accidental. The Panel does not consider that sexual motivation exclusively requires an intent for intercourse to result.

 

50.           The Registrant is an experienced physiotherapist. There is a significant imbalance of power between a first year university student on her first practical placement, and a Band 7 Physiotherapist who was originally meant to be her Clinical Educator. Further, Student A was unfamiliar with the department and the management. She was therefore in a position of some vulnerability. The Registrant proposed that Student A treat him in order to further her education, and her treatment was directed by him, including the movements of his leg.

 

51.           The Registrant accepts the account of Student A that his penis became completely exposed. Student A’s evidence was also that this continued for approximately 30 seconds to a minute (according to her witness statement), after which he adjusted himself while she looked away. Student A’s evidence was that she was traumatised by the event, and that when it happened, she looked away and there was no talking.  In cross examination, Student A accepted that the Registrant did not become aroused. The Panel took into account that when initially interviewed by the Trust in October 2013, Student A stated that she felt that he did not possibly realise she was embarrassed, he did not react in a shocked manner, and readjusted his clothing.

 

52.           In her oral evidence Student A stated that the Registrant was wearing loose fitting underwear with a hole in the front and his penis became completely exposed for approximately 30 seconds when she lifted his leg up and out to the side. The Registrant stated that he has no actual recollection of the event yet denied that he was wearing loose fitting underwear, stating that he would have worn appropriate underwear. The Panel found a contradiction in his evidence in that the Registrant accepts that his penis became exposed, however, the Panel found that his underwear could not have been appropriate for this to have happened. It concluded that the Registrant had decided to wear loose fitting underwear which he would have known as an experienced Physiotherapist could expose his penis.

 

53.           In considering the evidence the Panel came to the conclusion that the Registrant must have noticed that his penis was exposed and adjusted himself Given the Registrant’s evidence that he would have been mortified that such an incident had occurred, it seems unlikely that the Registrant, having accepted the exposure occurred and having accepted that he would have needed to adjust himself, would have no recollection of events.

 

54.           The Panel finds that the Registrant intentionally left his penis exposed for a period of time in order to obtain sexual gratification. It accepts that his penis was not aroused but sexual motivation can include acts or behaviour intended to gratify sexual impulses. The Panel could find no other reasonable explanation for his behaviour and therefore concluded on a balance of probabilities that his actions were sexually motivated.

Particular 8 in respect of Particular 2a), b) and c)

55.           The Panel found this Particular proved in relation to Particular 2a), b) and c)

 

56.           Student A’s evidence was that she could not understand why the Registrant was touching her during treatment. While she was aware that trigger point treatment was painful, her oral evidence was that “no one subsequently has put their hands on or pushed me away when doing trigger point work”.  She stated that initially she thought the touching on her arm could have been a response to pain until the touching progressed towards an area that did not need to be touched, namely her waist and once on her buttocks. The touching on her buttocks was described by Student A as almost holding on, pushing into her buttocks, not a sharp touch as would be expected as a reaction to pain, and that the Registrant did not exert significant pressure. She felt awkward and shocked and ‘did not want to be there’. The Panel considered para. 27 of Student A’s witness statement in this regard. With regard to the frequency of the touching, the touching of the arm and waist occurred throughout the five weeks of treatment sessions although it began after the second session, as stated by Student A in her oral evidence.

 

57.           In his oral evidence, the Registrant stated that while he did not recall the touching, it was very possible that it occurred as a result of a pain reflex in response to the trigger point technique which was painful to his already sensitised knee.

 

58.           The Panel concluded that if such touching was in response to pain from the treatment, then the Registrant, as the patient/ senior physiotherapist, could have avoided inadvertent touching by suggesting other treatment in future sessions. Instead, whenever Student A was touched, and she in response asked if the pain was too much, the Panel found he reassured her and instructed her to carry on.

 

59.           Student A confirmed in her oral evidence that her interpretation of the touching was not influenced by her experience of the exposure in the first session. She also confirmed that the touching would continue until she moved away, and expressed her belief that the behaviour was sexually motivated. The Panel recognised that although she held such a belief, the issue was one for the Panel to assess in the light of an objective assessment of the evidence. 

 

60.           The touching was not a one-off but rather constituted a pattern over most of the ten treatment sessions. The Panel found that the repeated touching was avoidable. The Registrant suggested that Student A carry out the treatment, he proposed the treatment method knowing that it can be painful and that his knee was sensitised, and he continued with the treatment. It was not only the treating arm which was touched but other parts of her body. In conclusion, the Panel found that his behaviour in Particular 2a), b) and c) was sexually motivated in that he sought a sexual gratification in his actions.

Particular 8 in respect of Particular 4a), b) and c) (i)-(iii)

61.           The Panel found this Particular proved in relation to Particular 4a), b) and c) (i)-(iii).

 

62.           The Panel has previously found that Colleague B was an open and honest witness. She described the Registrant speaking in a quiet, whispering tone, very close to her face. In her oral evidence, she described the incident as “out of the blue”; when it happened, it caught her off guard and she did not like it at all. Colleague B described the Registrant, seeing that she was embarrassed and flustered, sensing her weakness, and continuing in that line of questioning, becoming more explicit.

 

63.           The case for the Registrant was that even if the comments (which are denied to have been said) are seen as sexual, they were not said for sexual gratification, and therefore there cannot be said to have been a sexual motivation. The Registrant accepted that he engaged in adult banter in the staff room and Colleague B stated that much of this came from the Registrant. This incident was not in the staff room but took place in a small room when Colleague B was alone.

 

64.           Colleague B did not consider that the conversation was sexually motivated. However, her evidence was that she did feel intimidated in the incident, and that he “crossed a line that day”. She said he repeated his questions “going on and on and on”.

 

65.           The Panel found that this was sustained questioning about highly intimate sexual matters regarding her relationship with her partner. The Panel took into account the imbalance of power between Colleague B and the Registrant in terms of their roles in the department, with the Registrant being more senior. The Registrant’s evidence was that he was trained in the Trust’s Dignity and Respect at Work Policy, and therefore he would have been aware of the definition of harassment and bullying. Appendix 2 of that document refers to “sexual comments of an inappropriate / offensive nature” as an example of “unacceptable behaviour”. The Panel also noted Appendix B of the CHRE document entitled ‘Clear sexual boundaries between healthcare professionals and patients: responsibility of healthcare professionals which states that “sexual behaviour” by a healthcare professional may include inappropriate sexual or demeaning comments for example sexual performance.

 

66.           The Panel considered that the Registrant’s motivation was not simply to embarrass, due to the sustained nature of the questioning as well as Colleague B’s evidence that the Registrant followed her to the other side of the room, and stood over her in an intimidating manner. Given the highly explicit subject matter of the questioning, and in light of the evidence, the Panel could find no reasonable explanation other than, on the balance of probabilities, that the behaviour in Particular 4a), b) and c) (i)-(iii) was sexually motivated in that it was for the purpose of sexual gratification.

Particular 8 in respect of Particular 6a), b) and c)

67.           The Panel did not find this Particular proved in relation to Particular 6a), b) or c)

 

68.           Colleague B accepted that the behaviour set out in Particular 6a), b) and c) was carried out in a joking or flirtatious manner. She did not like him massaging her shoulders because, as she described herself, she is not “touchy feely”. She stated that it was a “bit sexualised” but also stated that she and at least one other colleague laughed it off. She stated that the Registrant’s attempt to kiss her on the lips was not “sexualised” because he did it to Person 20 as well, and not just her. She did not consider the stroking of her hand and arm to be “sexualised”. Overall, she thought that sexual behaviour was “too high a label to put on it”. Colleague B also considered that the wording of para. 24 of her witness statements was twisted in that she did not say that the Registrant “used to have a number of overly sexualised habits during the course of his employment at the Hospital”.

 

69.           In its closing submission on facts, the HCPC was essentially neutral on whether the behaviour set out in Particular 6 was sexually motivated. On the balance of probabilities, and on the basis of the evidence, the Panel concluded that the behaviour set out in Particular 6a), b) and c) was not sexually motivated in that it was not carried out for sexual gratification.

Decision on Grounds

70.           The Panel then considered whether the facts found proved constitute misconduct. It was aware that there is no burden of proof at this stage and that misconduct is a matter for its own professional judgment. The Panel was aware that a breach of professional standards such as those contained in the HCPC Standards of conduct, performance and ethics (“the Standards”) was not necessarily in itself determinative of whether there was misconduct.

 

71.           At this stage of the hearing, the Registrant admitted that all matters found proved constituted misconduct apart from Particular 3b). The Panel took into account these admissions, but the final decision was a matter for its own professional judgment.

 

72.           In considering misconduct, the Panel had regard to the submissions of both parties. It accepted the advice of the legal assessor who referred to the case of Roylance v GMC (No. 2) [2000] 1 AC 311 which states that 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 alleged misconduct must be serious.

 

73.           The Panel firstly considered what may be referred to as the sexual misconduct findings. The Panel decided that the findings in Particulars 1 and 2 and Particular 8 in respect of Particulars 1 and 2 constituted misconduct. The Registrant failed to uphold the standards of conduct to be expected of a physiotherapist. He took advantage of an imbalance of power between him and Student A, as well as of her vulnerability. Such behaviour was a breach of trust in that he was fundamentally in the role of teacher; despite the blurring of the boundary between them he was being treated by her although he was also directing the treatment. The Panel also noted the impact of his behaviour on Student A who was traumatised by the incident of exposure, and noted the negative impact which the touching had on her. The touching was sustained throughout Student A’s 5 week placement, and the Panel noted that there was an escalation in seriousness.

 

74.           Such behaviour fell far below the following Standards which the Panel considered were fundamental tenets of the profession:

3   You must keep high standards of personal conduct.

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

You must justify the trust that other people place in you by acting with…integrity at all times. You must not get involved in any behaviour or activity which is likely to damage the public’s confidence in you or your profession.

75.           In all the circumstances, the Panel concluded that the Registrant’s behaviour was sufficiently serious to constitute misconduct.

 

76.           Regarding Particular 3a), the Panel noted that the Registrant admitted this to be misconduct in the light of the conversation which is the subject of this Particular having taken place after the incident in Particular 1 and during the events of Particular 2. The Registrant has accepted that he instigated the conversation.

 

77.           Given the Registrant’s explanation that he would have asked this question in his pastoral role, the Panel does not consider this behaviour, whilst uncomfortable for the Registrant, to fall sufficiently seriously below the standards expected of the Registrant, to amount to misconduct.

 

78.           Regarding Particular 3b), the Panel did not consider it necessary to resolve the factual differences in the account between Student A and the Registrant, because it would not, in its view, have a material effect on its decision as to whether the behaviour in question amounted to misconduct. In the Panel’s view any such discussion of holiday plans even though they made Student A uncomfortable, would not be sufficiently serious to amount to misconduct.

 

79.           Regarding Particular 4 and Particular 8 in respect of Particular 4, the Panel concluded that this also breached Standards 3 and 13.  The Registrant took advantage of an imbalance of power between him and Colleague B. Although this was an isolated incident, his inappropriate questioning was repetitive, leading to Colleague B feeling intimidated, shocked and upset. The Panel concluded that the Registrant’s sexual misconduct fell seriously short of what was expected of him to amount to misconduct.

 

80.           Regarding Particular 5a), the Panel considered that such intimidating behaviour in the workplace in the context of the sustained intimate questioning found in Particular 4 fell far below the standard expected of a physiotherapist. Such behaviour breached standards 7 and 13 of the Standards. Standard 7 states:

7 You must communicate properly and effectively with service users and other practitioners.

81.           Regarding Particular 6 a), b) and c), the Panel took into account that the Registrant was in a senior position in the department and played a significant role in setting the “adult” culture in the department. The behaviour in Particular 6a) and b) took place “most mornings” according to Colleague B. Whilst Colleague B said that such conduct did not bother her much and that she and her colleague would laugh it off, the Panel found that the conduct in Particular 6a), b) and c)  breached standards 3 and 13 of the Standards. It concluded this was serious enough to amount to misconduct because of the power imbalance, the sustained pattern of inappropriate behaviour, and the senior position of the Registrant, as team leader, who should have set an example.

 

82.           Regarding Particular 7a), c) and d), all these instances of acting in an intimidating manner amounted to breaches of standard 7 of the Standards. The behaviour was also a breach of standard 9 of the HCPC Standards of proficiency: Physiotherapists:

9 be able to work appropriately with others.

83.           Although this was an isolated incident in which Colleague C said that the Registrant was acting out of character, in the circumstances the Panel considered that the behaviour referred to in Particular 7d), in respect of pressuring his appraiser to write a document, sufficiently crossed the threshold of seriousness to amount to misconduct. The Panel did not find misconduct in respect of 7a) and c).

 

84.           Collectively, the Panel found the matters set out in Particulars 1-8 (with the exception of Particular 3) to be sufficiently serious as to amount to misconduct. There is a pattern of intimidating, inappropriate, and, in some cases, sexually motivated behaviour.

Decision on Impairment

85.           The Panel then considered whether the Registrant’s fitness to practise is currently impaired. It was aware that there is no burden of proof at this stage. It noted the Registrant’s admission of impairment in respect of its findings of sexual motivation in relation to Particular 8. However, it bore in mind that impairment is a matter for its own professional judgment.

 

86.           The Panel heard the submissions of both parties and had regard to the HCPC’s Practice Notes on the meaning of fitness to practise and making findings that fitness to practise is impaired. It accepted the advice of the Legal Assessor.

 

87.           In determining whether fitness to practise is impaired, panels must take account of a range of issues which, in essence, comprise two components:

1. the personal component which includes insight, the risk of repetition, whether the matters raised are remediable and whether there has been remediation by the Registrant.

2. the public component which includes the need to protect service users, maintain confidence in the profession, declare and uphold proper standards of conduct and behaviour.

88.           The Panel considered the personal component first. It considered Cohen v GMC [2008] EWHC 581 (Admin), and the three non-exhaustive questions raised, namely whether the misconduct is easily remediable, whether it has been remedied, and whether it is highly unlikely to be repeated.

 

89.           In relation to Student A, the Registrant demonstrated an abuse of a position of trust in that during her 5 week placement, although he was being treated by her, he was directing her and acting as her teacher albeit not formally as her clinical educator. He acted in a deliberately sexually motivated manner when she was in a position of some vulnerability. Student A was upset, shocked and traumatised. She indicated to the Registrant that his behaviour was unwanted but he persisted.

 

90.           In relation to Colleague B, there was a single isolated incident which was sexually motivated, and during which she felt intimidated and embarrassed at the sexually explicit content of the repeated questioning. Other behaviour towards her by the Registrant was inappropriate and continued over a prolonged period; she was a junior colleague and the Registrant was in a senior position and should have set an example.

 

91.           In relation to Colleague C, although this was a single isolated incident which pre-dated the sexual motivation allegations by almost two years, it nevertheless is another example of intimidating behaviour.

 

92.           In summary, the behaviour involved sexual misconduct, inappropriate and intimidating behaviour towards colleagues in the workplace.

 

93.           In considering whether such behaviour is easily remediable, the Panel was of the view that the inappropriate behaviour which was not sexually motivated is in principle easily remediable by training, reflection, feedback and monitoring. The intimidating behaviour, whilst attitudinal and  therefore not so remediable may be remedied by developing insight and awareness of the impact of behaviour on others, their perception of it, and management of anger. The sexually motivated behaviour demonstrates an attitudinal issue and is in the Panel’s view not easily remediable.

 

94.           In considering whether the behaviour has been remedied, the Panel took careful note of the Registrant’s witness statement in which he has reflected and states that he has

i.      read and internally digested the HCPC Standards and the Behavioural Standards Guidance from the Trust;

ii.     undertaken research and reading on the issue of boundaries and behaviour in the workplace;

iii.    recognised that he has behaved unprofessionally.

95.           The Registrant has also expressed remorse. In his witness statement he states that “for this I offer a very deep and unreserved heartfelt apology to my colleagues regarding any lapses perceived or otherwise with regard to my past conduct” “I have been truly disappointed in myself”. He demonstrated some insight during his oral evidence. He confirmed on reflection in his answers to Panel questions that he felt that the concerns had not been blown out of proportion, he indicated how he would behave differently in the future in terms of his conduct towards colleagues in the workplace and he would not ask a student to provide treatment to him again.

 

96.           Under questioning from the Panel, the Registrant accepted that the exposure was avoidable, that he will be much more aware of his body language and he accepted that his behaviour can impact adversely on others. The Panel concluded that he has developing insight into his behaviour.

 

97.           The Panel considered whether the behaviour is highly unlikely to be repeated. Regarding the intimidating behaviour the Registrant is developing insight and given the positive references advanced on his behalf, the Panel is of the view that such behaviour is unlikely to be repeated. However the sexually motivated behaviour and the inappropriate behaviour are less easily remediable and there remains a real risk of repetition.

 

98.           The Panel then considered the public component of impairment and the questions formulated by Dame Janet Smith in the Fifth Shipman Report as set out in the case of CHRE v NMC and Grant [2011] EWHC 927.

 

99.           The Panel concludes that in the past he has put colleagues at unwarranted risk of harm because of his sexual misconduct and inappropriate behaviour. Given the finding of a real risk of repetition of such behaviour, the Panel cannot be satisfied that the Registrant would not in the future repeat such behaviour in relation to either patients or colleagues in similar circumstances where there is a power imbalance and a vulnerable female alone.

 

100.        The Panel is of the view that Registrant has brought his profession into disrepute. The Registrant accepted the conduct and language towards Student A and Colleague B which the Panel has found proved would diminish the standards of the profession. The Panel decided that there remains a real risk of repetition of both the sexual misconduct and the inappropriate behaviour so that the Registrant is liable to bring the profession into disrepute in the future.

 

101.        The Registrant has in the past breached the fundamental tenet integrity in his sexual misconduct. Given the finding of a real risk of repetition, insufficient remediation and insight which is still developing, the Panel finds that the Registrant is liable to breach such a fundamental tenet in the future.

 

102.        The Panel also considered the wider public interest as set out in the case of Grant. It decided that in the circumstances of lack of full remediation and insight, as well as the risk of repetition of sexually motivated and inappropriate behaviour, the public interest is engaged. The Panel concluded that in the particular circumstances, the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made.

 

103.        In conclusion, the Panel finds the allegation well founded.

Interim Order

104.        Having heard submissions on sanction, having retired to deliberate on sanction, and having decided that it would not be able to reach a decision on sanction today, the Panel went on to consider whether or not to impose an interim order in the interim period before this matter is next listed for hearing.

 

105.        The Panel heard submissions from both parties. Ms Binding applied for an interim suspension order for a period of 18 months on the basis that it is necessary for the protection of the public and is otherwise in the public interest. Mr Henry opposed the application on the ground that the risk was no higher than prior to this hearing, but referred to interim conditions of practice as an outcome which the Panel should consider. The Panel accepted the advice of the Legal Assessor and referred to the Practice Note on interim orders.

 

106.        The Panel may make an interim order under Article 31(2) of the Health and Social Work Professions Order 2001, on the basis that it is necessary for the protection of the public, is otherwise in the public interest, or is in the interests of the Registrant.

 

107.        The Panel has made findings on fact, has found that the Registrant’s fitness to practise is currently impaired on the basis of misconduct, and has therefore found the allegation to be well-founded. The findings include findings of sexual misconduct. The Panel refers to its findings of the real risk of repetition of his sexual misconduct and inappropriate behaviour, and that he presents a risk to colleagues and patients; the consequences of that risk are, in the Panel’s view, serious. The Panel therefore decided that an interim order is necessary for the protection of the public.

 

108.        The Panel also decided that an interim order was otherwise in the public interest, and refers to the reasons set out in its findings on impairment in relation to the public interest. The Registrant has breached a fundamental tenet and is liable to do so in the future. An interim order is therefore in the public interest in order to declare and uphold proper standards of conduct and behaviour, and to maintain public confidence in the profession and the regulator.

 

109.        The Panel then considered the kind of interim order which would be appropriate, and decided that an interim conditions of practice order would be proportionate and sufficient in the circumstances. It decided that the public and the public interest would be suitably protected by the conditions listed below.

 

110.        The Panel also considered the duration of the order, and decided that in light of the likely date for re-listing of this hearing, a period of 9 months would be sufficient and proportionate.

Order

The Registrar is directed to annotate the HCPC Register on an interim basis to show that, for a period of time of 9 months from 26 July 2016 (“the operative date”), you, Andrew Gardner, must comply with the following conditions of practice:

1.             Except in life threatening emergencies, you must not be involved in the direct provision of services to female service users without a chaperone being present.

2.             You must not work alone with any female colleague while in the workplace without a chaperone being present.

3.             You must promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.

4.             You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

5.             You must inform the following parties that your registration is subject to these conditions:

A.            any organisation or person employing or contracting with you to undertake professional work;

B.            any agency you are registered with or apply to be registered with (at the time of application); and

C.            any prospective employer (at the time of your application).

Decision on Sanction

Introduction

111.        The hearing was adjourned part-heard on 26 July 2016 and re-convened on 8 November 2016. In November the Panel received additional documentary evidence which included a further witness statement from the Registrant, various testimonials and a report from his coach – Ms Adrienne Green. At that hearing the Registrant and Ms Green provided the Panel with oral evidence, followed by submissions from both parties on sanction and advice from the Legal Assessor. During the Panel’s deliberations an issue arose with regard to the evidence of the Registrant and whether the Panel would be assisted by receiving expert evidence on the effect the Registrant’s medication may have had on his behaviour at the relevant time. The hearing adjourned to enable the HCPC time to instruct a suitable expert.

 

112.        The hearing reconvened on 20 February 2017. The Panel received an expert report from Professor Kevin Moore, dated 22 January 2017 (and subsequently amended), an undated supplementary report from Ms Green and a further statement from the Registrant. Professor Moore, Ms Green and the Registrant gave oral evidence. Submissions were made by both parties and the Legal Assessor provided the Panel with legal advice on the expert evidence.

Panel’s Approach

113.        The Panel accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of any sanction is not to punish the Registrant, but to protect the public and the wider public interest. The public interest includes maintaining public confidence in the profession and the HCPC as its regulator and upholding proper standards of conduct and behaviour. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of severity.

 

114.        The Panel took into account the documentary and oral evidence received during the November hearing and considered this evidence in light of additional documentary and oral evidence provided during this hearing which commenced on 20 February 2017.

Overall Assessment of Further Evidence

115.        The Panel assessed the evidence of Ms Green, Professor Moore and the Registrant as follows:

Ms Green, Coach and Former Registered Psychotherapist

116.        Ms Green is a coach specialising in communication and relationship management. Although she has a background in psychotherapy she has not worked as a Registered Psychotherapist for 10 years.

 

117.        The Panel noted that Ms Green’s report contained no statement of truth, was undated and unsigned. However, the Panel accepted that Ms Green was qualified to express opinion evidence, as an expert in personal and professional development and communication.

 

118.        Ms Green acknowledged that she was not a medical expert and therefore the Panel disregarded the opinions and criticisms she expressed with regard to Professor Moore’s medical report. The Panel also disregarded Ms Green’s opinion on the likely impact of medication on the Registrant’s behaviour as this was clearly not within her area of expertise. Ms Green’s initial readiness to stray into areas outside her area of expertise undermined her impartiality and objectivity. The Panel noted that the Registrant employed Ms Green to provide coaching services. This was an additional factor which raised concerns that Ms Green was not sufficiently objective.

 

119.        The Panel accepted that in addition to being an expert witness, Ms Green was also a witness of fact. She informed the Panel that the Registrant had attended approximately 22-24 hours of coaching over 11 sessions and during this time insight and remediation, communication styles and the impact on others had been explored. The Panel accepted this evidence.

Professor Moore, Professor of Hepatology, University College London Medical School

120.        Professor Moore was instructed by the HCPC to provide an opinion as to whether the Registrant’s medication during the relevant period could have had an impact on his behaviour.

 

121.        The Panel found Professor Moore to be a reliable and credible witness. He assisted the Panel in understanding the limits associated with interpreting the effects of medication. Professor Moore explained the research exercise he conducted and the limitations of that research in assessing the interaction of his medications on behaviour. He accepted that the percentage figure he gave during his oral evidence was “plucked out of the air”. Although the Panel disregarded the figure Professor Moore gave, it accepted his evidence that it would be possible but rare for the Registrant’s medication to have a significant behavioural effect.  The Panel accepted Professor Moore’s analysis that the Registrant’s medications were common and that it was also common for them to be used in combination. It was therefore significant that Professor Moore could find no evidence in scholarly or scientific reports indicating sexual disinhibition as a known side effect of such medication.

 

122.        The Panel also accepted Professor Moore’s evidence that general anaesthesia administered to the Registrant between March and April 2013 would have cleared from his body very rapidly and were therefore irrelevant.

The Registrant

123.        The Registrant chose to give further oral evidence. He informed the Panel that he was still employed as a physiotherapist; however, he was off work from November 2016.

Insight

124.        In assessing the Registrant’s scope and level of insight the Panel took into account the statement he submitted at the hearing in November and the statement prepared for this hearing, as well as the evidence of Ms Green.

 

125.        The Registrant in his November 2016 statement drew the Panel’s attention to actions he had taken and the insight he had developed from the following:

     Coaching sessions with Ms Green;

     Conflict Resolution Training,

     Reading Human Resource documents and other scholarly documents;

     Research of websites, including EverydaySexism.com;

126.        The Panel accepted that the Registrant had gained some meaningful insight into his inappropriate and intimidating behaviour. However, the Panel noted that elsewhere in his November 2016 statement, there was evidence to suggest that his insight was not fully developed regarding his sexual misconduct. The Registrant stated: “I have really tried to dig deep into myself to ask if this is as a result of a deep-seated personality trait or if there could have been any other explanation…I discussed this situation with my wife…I also sought out professional help to see if there was anything underlying that could account for such aberrations…”

 

127.        The Registrant went onto state, “The only variable during the period in question, was [medication]. These medications could have caused their own side effects, or could perhaps have potentiated the side effects the medication that I was already taking [sic]”.

 

128.        The Registrant stated in relation to his behaviour with Colleague B, “Unacceptable, but as I’ve said, I think there is a – well, I believe very firmly that there was another force at work… in terms of reactions to and side effects of medication around that time.” Similarly, in relation to the sexualised behaviour of Student A, when asked what he had learnt about that, the Registrant stated “Again, that is unacceptable… and that she was right to raise a complaint about it. But again, in my normal state that would never have arisen.”

 

129.        Further on in his statement the Registrant made the following comment: “I certainly never consciously intended to behave towards colleagues in an intimidating or unprofessional or sexually motivated manner and I apologise sincerely for any lapses in this regard.”

 

130.        The Panel took the view that in November 2016, approximately 3 months after the finding of impairment, the Registrant had not accepted responsibility for his sexual misconduct. Instead he had looked for an external cause for his behaviour, attributing it to the medication he was taking at the time, the culture, pain reflex. The Panel noted that the potential impact of the Registrant’s medication on his behaviour was not raised during the fact-finding stage in July. The Panel concluded that it was reasonable to infer that whatever impact there may have been it was not sufficiently severe or noticeable otherwise, it would have been raised at an earlier stage of the proceedings.

 

131.        The Panel noted that the statement prepared for this hearing (February 2017) failed to demonstrate any further development of insight into his sexual misconduct. The Registrant in his most recent statement continued to externalise and focus on the impact of his medication, despite having the benefit of Professor Moore’s report which clearly indicated that it would be rare, although not impossible, that the medication had had such a profound impact on his behaviour.

 

132.        Ms Green, in her further oral evidence, informed the Panel that she had worked with the Registrant on insight. The Panel was satisfied that the Registrant had developed insight with regard to intimidating and inappropriate behaviour. The Panel accepted that the Registrant had taken steps to try to remediate his behaviour by undertaking coaching and training. During the intervening period between the July and February hearings the Registrant has demonstrated further remediation. The Panel was satisfied that the Registrant has become hyper vigilant with regard to inappropriate conversations in a professional environment and avoiding inappropriate physical contact with colleagues. The risk of repetition of such behaviour was in the Panel’s view reduced and it could properly be described as low.

 

133.        The Registrant expressed remorse and shame which the Panel accepted was genuine. However, he was guarded when it came to accepting responsibility for his sexual misconduct. Although the Registrant appeared to accept responsibility, any admission of personal accountability was frequently followed by a qualification.

Risk of Repetition

134.        Ms Green stated in her oral evidence that the Registrant poses no risk at all. However, this was based on belief rather than evidence. She had not carried out any evaluation of her work with similar clients to be able to make such an assertion and in any event the Panel concluded that that there must always be the possibility that an individual will not act in the manner predicted. Ms Green stated “it is impossible he would do it again.” Ms Green had also not undertaken any formal psychological testing which further undermined her objectivity and as a consequence her reliability. Ms Green’s substantive report focussed on excluding pathological sexual compulsion and raised the possibility of external factors. The Panel rejected Ms Green’s analysis.

 

135.        The Panel noted that the Registrant has stated that he does not recall the incidents of sexual misconduct, but accepts the Panel’s findings. He has maintained that the sexually motivated behaviour was unintentional. In his November 2016 statement the Registrant states that “…prior to the July hearing I had not recognized these behaviours so they must have been largely subconscious.”

 

136.        The Panel concluded that in the light of the Registrant’s lack of sufficient insight and remediation in respect of his sexual misconduct that there remained a risk of repetition of such behaviour.

Aggravating and Mitigating Factors

137.        The Panel identified the following aggravating factors:

     Breach of a fundamental tenet of integrity;

     Abuse of position of trust in the workplace;

     Persistent and sustained sexual misconduct;

     Actual harm.

138.        The Panel identified the following mitigating factors:

     The Registrant’s unblemished regulatory history and good conduct since the incidents;

     Positive testimonials prior to and since the hearing;

     Developing insight and steps taken to remediate the inappropriate and intimidating behaviour;

     Compliance with the Interim Conditions of Practise Order.

Panel Decision on Sanction

139.        The Panel first considered taking no action. The Panel concluded that, in view of the nature and seriousness of the Registrant’s misconduct and sexually motivated behaviour and in the absence of exceptional circumstances, to take no action on his registration would be wholly inappropriate. Furthermore it would be insufficient to protect the public, maintain public confidence and uphold the reputation of the profession.

 

140.        The Panel went on to consider whether to impose a Caution Order and noted paragraph 22 of the Indicative Sanctions Policy (ISP) which states:

“A caution order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate action.  A caution order should also be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the registrant has shown insight, the conduct concerned is out of character, the risk of repetition is low and thus suspension from practice would be disproportionate.  A caution order is unlikely to be appropriate in cases where the registrant lacks insight.”

141.        In view of the Panel’s findings that the Registrant took advantage of an imbalance of power between himself and Student A and exploited her vulnerability, the conduct could not properly be described as minor in nature. Neither was the conduct limited or isolated in that it persisted throughout Student A’s 5 week placement and escalated in seriousness during that period. Although the incident involving Colleague B was isolated, the inappropriate questioning was repetitive and as the Panel found it to be sexually motivated it was not minor in nature. Furthermore, whilst the Panel found that there was a low risk of repetition with regard to the intimidating and inappropriate behaviour, the Panel found that there was an on-going and unacceptable risk that the sexual misconduct could be repeated. The Panel concluded that for these reasons a Caution Order would be inappropriate and insufficient to protect the public or meet the wider public interest.

 

142.        The Panel went on to consider a Conditions of Practice Order. The Panel noted that the ISP states at paragraph 27:

“The imposition of conditions requires a commitment on the part of the registrant to resolve matters and therefore conditions of practice are unlikely to be suitable in cases:

     where there are serious or persistent overall failings;

     the registrant lacks insight or denies any wrongdoing; or

     involving… breach of trust...”

143.        The Panel also noted paragraph 28 which states:

“Where the allegation before the Panel is based upon actions which constitute…breach of trust, conditions of practice are unlikely to be appropriate unless the Panel is satisfied that the registrant’s conduct was minor, out of character, capable of remediation and unlikely to be repeated.”

144.        The Panel concluded that whilst conditions would provide a degree of public protection, the Panel was not satisfied that conditions would be appropriate given the serious nature of the Registrant’s sexually motivated conduct, his persistent lack of insight in this respect and the significant breach of trust. The Panel also concluded that in view of the risk of repetition, conditions would undermine public confidence in the profession and the need to uphold standards of conduct and behaviour. Accordingly a Conditions of Practise Order would be neither appropriate, nor sufficient.

 

145.        The Panel next considered a Suspension Order.  A Suspension Order would send a signal to the Registrant, the profession and the public re-affirming the standards expected of a registered physiotherapist. It would also protect the public as the Registrant would not be permitted to practise during the period of the suspension order.

 

146.        However the Panel noted that paragraph 32 of the ISP states:

“Suspension should be considered where … the allegation is of a serious nature but unlikely to be repeated and, thus, striking off is not merited.”

147.        The Panel also took into account paragraph 34 which states:

“If the evidence suggests that the registrant will be unable to resolve or remedy his or her failings then striking off may be the more appropriate option. However, where the registrant has no psychological or other difficulties preventing him or her from understanding and seeking to remedy the failings then suspension may be appropriate.”

148.        In the Panel’s view, the Registrant has demonstrated an inability to resolve or remedy the sexually motivated misconduct identified in July 2016. The Panel noted that the Registrant had 6 months from the findings of fact and impairment to demonstrate remediation and insight. The Panel was satisfied that the Registrant’s conduct has been remediated with regard to the inappropriate and intimidating behaviour, but unfortunately he has not taken the opportunity to demonstrate meaningful insight with regard to his sexually motivated behaviour. The Panel was satisfied that this indicates that the Registrant is either unable or unwilling to address these issues despite having the benefit of the Panel’s previous determination and having more than sufficient time to reflect on his behaviour and despite the intense coaching sessions he has undertaken, particularly as these sessions were specifically targeted at addressing his underlying behavioural issues.

 

149.        Sexually motivated misconduct in the workplace in breach of a position of trust undermines public confidence in the profession. The Panel took the view that the public would be seriously concerned by the Registrant’s sexually motivated behaviour which escalated over time and would be particularly concerned that there is an on-going risk of repetition.

 

150.        For these reasons and taking into account all the circumstances of the case, including the mitigating and aggravating factors, the Panel concluded that a Suspension Order would be inappropriate and would not adequately protect the public or meet the wider public interest.

 

151.        Having determined that a Suspension Order does not meet the wider public interest, the Panel determined that the Registrant’s name should be removed from the Register. A Striking Off Order is a sanction of last resort and should be reserved for those category of cases where there is no other means of protecting the public or the wider public interest. The Panel decided that the Registrant’s case falls into this category because of the nature and gravity of his sexualised behaviour in the workplace, his persistent lack of insight and the on-going risk of repetition.

 

152.        The Panel was also satisfied that any lesser sanction would undermine public confidence. In reaching this conclusion the Panel balanced the wider public interest against the Registrant’s interests. In doing so the Panel took into account the consequential personal, financial and professional impact these proceedings have had upon the Registrant and the impact a Striking Off Order would have on him, but concluded that his interests were significantly outweighed by the Panel’s duty to give priority to the significant public interest concerns raised by this case.

 

153.        The Panel decided that the appropriate and proportionate order is a Striking Off Order. 

Order

That the Registrar is directed to strike the name of Mr Andrew Gardner from the Register on the date this order comes into effect.   

Notes

The order imposed today will apply from 21 March 2017.

Hearing history

History of Hearings for Andrew Gardner

Date Panel Hearing type Outcomes / Status
20/02/2017 Conduct and Competence Committee Final Hearing Struck off