Mr John J Dickson

: Physiotherapist

: PH93950

: Final Hearing

Date and Time of hearing:10:00 13/03/2017 End: 17:00 15/03/2017

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

: Conduct and Competence Committee
: Not well founded

Allegation

(as amended at the Final Hearing)

 

1. On 12 February 2015, during a lumbar spine treatment session with Patient A, you:

 

a. Pulled down Patient A's trousers and/or underwear and did not ask for Patient A's consent to do so;

 

b. Put your hand into Patient A's underwear to pull it up and did not ask for Patient A's consent to do so;

 

c. Began an inappropriate conversation with Patient A about "50 Shades of Grey" during the course of Patient A's treatment.

 

2. Your actions described in paragraph 1 were sexually motivated.

 

3. The matter described in paragraphs 1 and 2 amount to misconduct.

 

4. By reason of your misconduct and/or lack of competence, your fitness to practise is impaired.

Finding

Preliminary Matters

Application to Amend

1.             The Panel finds that the proposed amendments to the particulars of the allegation improve their accuracy and better align them with the evidence. They are for clarification purposes and do not alter the nature of the particulars. The amendments make the allegations clearer. The Registrant is represented and does not oppose the application and there is therefore no risk of unfairness to the Registrant. The application is allowed.

 

Background

2.             The Registrant was employed as a Physiotherapist at Synergy Healthcare between January 2014 and October 2015. On 12 February 2015, Patient A attended a physiotherapy appointment with the Registrant. On 13 February 2015, Patient A contacted her lawyers, who were funding her treatment, to complain about the Registrant's conduct during the appointment the previous day. EF, the Clinical Director of Synergy Healthcare, was informed about this complaint on 13 February 2015, and carried out an investigation into the complaint.

 

3.             The treatment in question arose as a result of a road traffic accident during which Patient A sustained whiplash injuries. Her insurers arranged for her to have ten sessions of physiotherapy. The Registrant was the appointed physiotherapist. During the first seven sessions he worked on Patient A’s neck and shoulder area. Patient A saw EF for her eighth session because the Registrant was unavailable. During this session EF worked on her lumbar and buttock region.

 

4.             On 12 February 2014, Patient A told the Registrant after a discussion that she would like him to concentrate on her lumber spine. Patient A alleges that during the course of the session, the Registrant removed her trousers and her underwear without her consent, leaving her bottom exposed. She alleges that she felt distressed by this and proceeded to pull her trousers and underwear up. She claims that the Registrant told her that he needed to have access to this area and immediately pulled her trousers and underwear back down. After he had finished the treatment, Patient A alleges that the Registrant pulled up her trousers and underwear without informing her that he was about to do so and in doing so touched her bottom with his fingers. During the course of the session Patient A claims that he talked about the film “Fifty Shades of Grey”, which made her feel uncomfortable. The HCPC alleges that this was inappropriate and sexually motivated.

 

Submission of No Case to Answer

5.             At the close of the case for the HCPC, Ms Freeman made a submission of no case to answer in respect of all of the particulars on the grounds that Patient A was not a credible witness and that, taking the HCPC case at its highest, there was insufficient evidence on each particular. Mr Walters opposed the application on the basis that these were issues relating to credibility, which should be determined at the end of the case. In reaching a decision, the Panel has taken account of all of the evidence relied on by the HCPC.

Legal Considerations

6.             The Panel accepted the advice from the Legal Assessor. The applicable test is set out in R v Galbraith [1981] 1 WLR 1039, which sets out the two limbs to the test. Firstly, if there is no evidence to support the allegation then there is no difficulty in stopping the case. Secondly, if the evidence is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence, then the case should also be stopped.

 

7.             The Panel has a duty to take the HCPC case at its highest and to assess if there is a real prospect of the case being established. The Panel applied this test. The Panel also applied the guidance in the HCPC Practice Note on “Half-Time Submissions”, particularly the importance of considering the statutory grounds in the context of a no case to answer submission. The Practice Note states that the Panel should consider whether the evidence which the HCPC has presented is “such that, when taken at its highest, no reasonable Panel could properly find that that the facts as alleged amount to misconduct and as a consequence that fitness to practice is impaired.”

 

8.             The Panel did not take into account evidence submitted by the Registrant which had not yet been presented as the decision at the end of the case for the HCPC involves taking the HCPC’s case at its highest. This case rests essentially on whether the Panel finds that the recollection of Patient A is accurate. The Panel finds that there is evidence on which a Panel could properly come to the conclusion that the factual particulars amount to the statutory ground for misconduct. Therefore the Registrant’s submission of no case to answer with regard to each allegation is rejected.

 

Decision on Facts

9.             The allegation arises from a single session of physiotherapy. During the first seven sessions, the Registrant worked on Patient A’s shoulder and neck area. The first time that Patient A had treatment for her lumbar spine area, it was carried out by a female practitioner, EF. During the session on 5 February, Patient A lay on the treatment table on her side in order for EF to apply manual treatments, including soft tissue massage. On 12 February 2014, the Registrant treated Patient A with similar techniques but chose to treat her in the prone position.

 

10.           The Panel accepts that Patient A was clearly distressed by what happened. When she asked the Registrant to treat her lumbar spine she anticipated that the session would be similar to the session that she had with EF. Patient A telephoned her solicitors the next day to say that she didn’t want to go back to physiotherapy. Within five days she had reported the matter to the police. This said, the Panel were left with some concerns about her evidence. Although she was sure about her account, her evidence about the session she had with EF on 5 February was markedly different to the account given by EF. An example is that Patient A told the Panel that she adjusted her own jeans during the treatment to expose the relevant area, whereas EF was clear that she would have adjusted Patient A’s trousers so that she could expose the area that she needed to work on. EF stated that it is always necessary for the practitioner to adjust clothing because it is the practitioner who understands the area that he/she needs to expose to treat the area in question. EF stated that it is for this reason that a clear explanation and consent is required. In addition, the Panel did not fully accept Patient A’s evidence that she telephoned her local hospital and spoke to a man who told her that he was the Head Physiotherapist and that the Registrant’s behaviour was not appropriate. The Panel prefers the evidence of EF, who explained that as part of her investigation she telephoned Wansbeck General Hospital and was told that the Head of Physiotherapy was a woman, LB. EF reported that LB told her husband, MT, who is the co-director of Synergy Healthcare, that it would be most unusual for a therapist to comment on the actions of another therapist over the telephone.

 

11.           The Panel found EF to be credible and clear. During her evidence she didn’t deviate and she spoke with authority. She was confident in her knowledge and was honest. The Panel notes that Synergy Healthcare is small family-run practice and at that time the Registrant was the only employee. Although there was no formal supervision or specific training on techniques to be employed when treating the opposite sex, EF told the Panel that she had never had any complaints about the Registrant. It was the policy at the Practice to encourage practitioners to be friendly and to chat to patients during sessions. The Registrant continued to work at the Practice without any restrictions following these allegations.

 

12.           The Panel accepts that the Registrant was shocked by the allegation. The Panel found him to be honest and straightforward in his oral testimony and noted that he was not evasive when originally approached by EF, and that he co-operated with the Police and attended the police station voluntarily. He answered questions put to him at the hearing fully and he has continued to work unrestricted without any further reported concerns.

 

13.           The Panel has concluded that this case is mainly about expectations and understanding on the part of Patient A. There were in fact many areas of agreement between Patient A and the Registrant. However, credibility was an important component in this case and a close understanding and examination of the evidence was required.

 

14.           The Panel was not assisted by the fact that they were not provided with the statement of Patient A taken by the Investigating Police Officer, which was clearly detailed and formed the basis for the questions put to the Registrant during his police interview. This statement was taken shortly after the incident and was an important document which should have been before the Panel. The Registrant faced serious allegations of a sexual nature and, in assessing the evidence, the Panel were hampered by the omission of this important piece of evidence.

Particular 1a) - Not proved

15.           Both Patient A and the Registrant agree that Patient A asked the Registrant to work on her lumbar spine. The Panel accept the Registrant’s evidence that he obtained Patient A’s consent before the treatment. His notes for 12 February 2015 contain a note that he obtained the patient’s consent before the treatment. This is consistent with his normal practice and is evidenced by the notes that were contained in the exhibits bundle.

 

16.           Patient A had limited experience of treatment to the lumbar area, having only received the treatment given by EF the week before. On that occasion she lay on her side. The Panel accepts she was not expecting her clothing to be removed to expose her bottom and the fact that she was in a prone position meant that she could have felt more exposed. Patient A felt shocked at the time because both the Registrant and Patient A accept that she immediately moved her trousers back up. However, as Patient A moved her trousers back up, both agree that the Registrant explained that he needed the gluteal area exposed in order to work on the lumbar spine. The Panel accepts the Registrant’s evidence that after Patient A moved her trousers up a little, he re-checked that she was ‘comfortable’. In summary, the Panel accepts that the Registrant obtained Patient A’s consent before the treatment and again during it.

 

17.           In addition, the Panel does not attach significant weight to the fact the Registrant actually moved the clothing because this appears consistent with the evidence of EF, that practitioners adjust and move clothing in order to expose the area that they need to work on. The Panel notes that Patient A could not remember who had adjusted her bra and vest top during the first seven sessions and accepts the evidence of the Registrant that it was his normal practice to adjust clothing before treating an area. It would have been better if the Registrant had anticipated that Patient A might feel exposed and explained in more detail that he needed to expose her gluteal region, but the Panel are satisfied that he obtained her consent before the treatment.

Particular 1b) – Not proved

18.           In reaching a decision on this particular, the Panel have begun by looking at the evidence of EF. She stated that at the end of the session she always wipes the area that has been treated because the practitioners use gel and therefore need to clean the area. They then routinely replace the patient’s clothing. This is consistent with the description given by the Registrant and Patient A of the first seven sessions. It is also consistent with the Registrant’s account in his police interview that this was “second nature” to him. The sole point of contention is that Patient A states that the Registrant placed his hand in her underwear to pull it up without obtaining consent.

 

19.           The Panel finds that it would have been clear to Patient A that the treatment was over. The format of the treatment was the same as that which she had received the previous week. The mechanics of the description given by Patient A of how the Registrant pulled up her trousers and underwear is not considered feasible by the Panel. The Panel make every allowance for the fact that Patient A could not see what the Registrant was doing and that she felt uncomfortable, but it prefers the evidence of the Registrant that his fingers were hooked rather than straight and that, if he had brushed her bare skin, it was in the process of replacing her clothing.

 

20.           The Panel finds that replacing clothing is a normal part of the treatment and that consent was obtained.

Particular 1c) – Not proved

21.           Both Patient A and the Registrant accept that they discussed “Fifty Shades of Grey” during the session. However, the Panel do not find on the balance of probabilities that the HCPC has established that the Registrant started the conversation. Whilst the Panel note that the conversation was inappropriate and inadvisable in the context of treatment where a patient has her bottom exposed and is in a prone position, Patient A was not altogether consistent on this point. In her oral testimony she stated that she knew nothing of “Fifty Shades of Grey” when the Registrant raised it during the session. She then alleged that after she was dressed and as they were leaving the room, he asked her what “his thing was”. The Panel finds that if she knew nothing about “Fifty Shades of Grey” as she asserted in her oral evidence, she would not have been able to say, as she says she said, “I think he likes to control women”.

Particular 2 – Not Proved

22.           Patient A was clear in her evidence that she was unable to state whether the conversation was sexually motivated. Both Patient A and the Registrant confirmed that there had been no previous history of flirtation and whilst Patient A asserted that the conversation made her feel uncomfortable, she was unable, despite being asked on a number of occasions, to state that it was sexually motivated. The HCPC has therefore not satisfied the Panel on the balance of probabilities that this particular is made out.

 

23.           Overall, whilst the Panel do not find that the particulars are made out in this case, the Panel notes that the Registrant was naïve in his treatment of Patient A and may have been perceived as lacking sensitivity in this treatment of a female patient. The cumulative effect of this was to cause Patient A distress. The Panel noted that the Registrant has significantly adapted his practice, such as using towels to avoid skin-to-skin contact, to ensure that such misunderstandings do not occur again in the future.

 

24.           Therefore, the Panel finds that the case is Not Well Found at the Facts stage.

Order

The Panel finds that the case is Not Well Found at the Facts stage.

Notes

No notes available

Hearing history

History of Hearings for Mr John J Dickson

Date Panel Hearing type Outcomes / Status
13/03/2017 Conduct and Competence Committee Final Hearing Not well founded