Mr Nigel J Hilton

: Arts therapist

: AS00208

Interim Order: Imposed on 17 Mar 2016

: Final Hearing

Date and Time of hearing:10:00 27/03/2017 End: 17:00 28/03/2017

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

: Conduct and Competence Committee
: Struck off

Allegation

(As amended at the final hearing)

 

During the course of your employment as a Psychodynamic Psychotherapist with South London and Maudsley NHS Foundation Trust, and whilst registered with the HCPC as an Arts Therapist, you:

 

1. Between 22 July 2015 and 26 July 2015:

a. whilst on authorised annual leave, took Patient A on four-night trip without the proper authority and/or clinical reasoning, and you:

 

b. allowed Patient A to kiss you;

c. performed oral sex on Patient A;

d. allowed Patient A to get into bed with you;

e. touched Patient A whilst she was in bed with you;

f. asked Patient A if she wanted to touch you and/or you allowed Patient A to touch you;

 

g. allowed and/or told Patient A to hit you;

h. did not record the four-night trip and/or the clinical reasoning and/or any treatment provided in Patient A's clinical records.

 

2. On 15 October 2015, during a therapy session with Patient A:

a. allowed Patient A to:

i. sit on your lap;

ii. kiss your neck.

b. stroked Patient A's back whilst Patient A was sitting upon your lap;

c. did not record the incident as described in particular 2(a) and 2(b) in Patient A's clinical records;

d. did not inform your manager of the incident as described in particular 2(a) and 2(b).

3. During therapy sessions with Patient A:

a. occasionally held Patient A's hand;

b. hugged Patient A;

c. whilst hugging Patient A, kissed Patient A on the neck;

d. kissed Patient A on the lips and said 'there';

e. asked Patient A if she wanted you to help her 'release' and you put your hand on Patient A's pubic bone and pushed;

f. told Patient A, 'I do love you but we have to have boundaries', or words to that effect;

g. allowed Patient A to straddle you;

h. allowed Patient A to lean back into you and you would hold Patient A;

i. asked Patient A to kiss you;

j. placed your hands on Patient A's breasts and/or under Patient A's bra.

4. The matters set out in paragraphs 1(a) - 1(g), 2(a) - 2(b) and 3(a) - (k) were sexually motivated.

5. The matters set out in paragraphs 1- 4 constitute misconduct.

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

Finding

Preliminary Matters

Service of Notice

1. On 19 December 2016, the HCPC sent the notice of this hearing by first class post to the Registrant’s registered address. A copy of the notice was also sent to the Registrant by email. The notice contained the required particulars.

2. Having heard and accepted the advice of the Legal Assessor, the Panel was satisfied, on the documentary evidence provided, that the Registrant had been served notice of this hearing in accordance with the Rules.

Proceeding in the absence of the Registrant

3. Ms Chaker, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. The Panel heard and accepted the advice of the Legal Assessor, who advised that the discretion to proceed in a Registrant's absence must only be exercised with the utmost care and caution.

4. The Panel had regard to the chronology of communications between the HCPC and the Registrant, as follows:

• On 1 July 2016, the HCPC sent a letter to the Registrant informing him that a Panel of the Investigating Committee determined that there was a case to answer in relation to his fitness to practise.

• On 20 September 2016, the HCPC sent a letter to the Registrant advising him of its intention to amend the allegation.

• On 19 December 2016, the HCPC sent the notice of this final hearing to the Registrant by both first class post and email.

• On 8 February 2017, the Registrant signed, dated and returned to the HCPC, the response pro forma document which had accompanied the service of papers. Within it he indicated that he would not be attending the final hearing and would not be represented. He also admitted the facts alleged against him as set out in the notice of final hearing dated 19 December 2016. The pro forma document had the date of the hearing included within it.

5. The Registrant has not applied for an adjournment of the final hearing, nor has he submitted any representations.

6. The Panel was satisfied that the HCPC had fulfilled its obligations and taken all reasonable steps to serve the notice on the Registrant in accordance with the Rules.

7. The Allegation dates back to 2015. The Panel was aware that there were two witnesses in attendance to give evidence today (27 March 2017) and a further witness warned for tomorrow (28 March 2017).

8. In light of the fact that the Registrant has completed and returned the pro forma document to indicate that he would not be attending, and in which he had admitted the facts as set out in the notice, the Panel was satisfied that the Registrant was aware of today’s hearing. The Panel therefore concluded that the Registrant had voluntarily waived his right to attend and there was no indication that he would attend any adjourned hearing. The Panel also considered that it was in the public interest for the hearing to take place.

Application to amend the allegation

9. Ms Chaker, on behalf of the HCPC, applied to amend the particulars of the allegation, in order to delete Particular 3(h). She explained that a letter had been sent to the Registrant dated 20 September 2016, which stated that the HCPC intended to apply to amend the allegation to delete particular 3(h), offering no evidence on it. She said that although there did, in fact, appear to be evidence to support the particular, it was accepted by the HCPC that it would not now be fair to pursue it at the final hearing, given the fact that the Registrant had been informed that it would not be pursued.

10. The Panel, having heard and accepted the advice of the Legal Assessor, determined to allow the application to delete particular 3(h). Whilst it noted that there did appear to be some evidence to support particular 3(h), it took into account that the proposed amendment to delete it had been notified to the Registrant on 20 September 2016.  In the Panel’s view, this letter would have created a legitimate expectation in the mind of the Registrant that the HCPC would not proceed with that particular. Subsequent to this notification he had accepted all of the other particulars. In light of this, the Panel did not consider that it would now be fair on the Registrant, who was not present, to allow the HCPC to resile from its position of 20 September 2016 and to pursue this particular. The Panel also had regard to the totality of the particulars which the Registrant was accepting, and concluded that particular 3(h) did not detract from the overall gravity of the Allegation.

Background

11. The Registrant is registered with the HCPC as an Arts Therapist. He began working for South London and Maudsley NHS Foundation Trust (the Trust) around 20 years ago as an Arts Therapist. At the relevant time he was employed as a Band 7 Arts Therapist within the Lambeth Integrated Psychological Therapies Team (IPTT). In this role he also provided psychotherapy services to patients on a one to one basis.

12. Patient A had a long history of anxiety and depression and had been engaged with many NHS therapy services over the years. In around 2012 she was diagnosed with Body Dysmorphic Disorder and had been off work for eight months. She was referred to a psychiatric team, and it was through this team that she was referred to the Registrant.

13. Patient A was seen by the Registrant as a patient for around two years. Initially the sessions would take place once a week and would last for an hour although, as the treatment progressed, from around 2015, the sessions would typically last longer than an hour, sometimes lasting several hours.

14. The therapy included talk therapy, art therapy, life span integration and other therapies. Towards the end of 2014, Patient A had a break from therapy for about 2 months to see how she was managing without it. When she returned, the Registrant introduced a new therapy into the sessions. During this treatment, Patient A’s body would start to spasm and shake.

15. It is alleged that during these therapy sessions, the Registrant started to ask sexual questions and use sexual language. It is alleged that he encouraged Patient A to hug him and to hold his hand. It is alleged that at some point, the boundaries between patient and therapist were crossed and kissing and sexual touching took place.

16. In around July 2015, it is alleged that the Registrant suggested that he and Patient A go away for a short trip for the purpose of therapy. The Registrant arranged and paid for the trip, which comprised a four night stay in B&B accommodation, whilst he was on authorised annual leave, from 22 to 26 July 2015. It is alleged that during the trip, the Registrant performed oral sex on Patient A, allowed her to get into bed with him, and engaged in sexual touching with her.

17. On 15 October 2015, Patient A was receiving a therapy session from the Registrant at St Thomas’ Hospital. By this time, it is alleged that the therapy sessions had progressed so that it had become the practice that Patient A would sit on the Registrant’s lap. On this occasion it is alleged that Colleague 3, a Senior Adult Psychotherapist employed by the Trust, saw the Registrant and Patient A together. Colleague A was leaving work at around 6:50pm and went to the Registrant’s treatment room to check if he was still seeing patients. It is alleged that through the glass panel of the door, Colleague 3 saw Patient A sitting on the Registrant’s lap, leaning into him, with him stroking her back.

18. Colleague 3 reported what she had seen the next day to her line manager. Colleague 8 was appointed to investigate the matter.

19. On 13 November 2015 colleague 8 interviewed the Registrant. In relation to the incident of 15 October 2015, he accepted that  Patient A had been on his lap, but said that it was for less than a minute. He also said that she had kissed him and he had not known how to manage this situation. He denied that he had met Patient A in a hotel.

20. On 27 November 2015, the Registrant provided a statement to the Trust admitting that he had organised a 4 night stay for Patient A and himself for therapeutic activity. He denied that there had been anything more than ‘some warmth of expression’ between himself and Patient A.

Findings on Facts

21. The Panel received evidence from the following HCPC witnesses:

• Colleague 3 – Senior Adult Psychotherapist within the IPTT at the Trust, whose role included the assessment, treatment and supervision of psychodynamic psychotherapy. Colleague 3 is alleged to have witnessed the incident on 15 October 205.

• Colleague 1 – Consultant Adult Psychotherapist. Interim Head of IPTT, since March 2016. At the relevant time she was the Registrant’s Line Manager and Clinical Supervisor and conducted line management and clinical supervision sessions with the Registrant.


• Colleague 8 – part time Head of Nursing for the Psychological Medicine for Integrated Care Clinical Academic Group and part time Consultant Nurse for Self Harm. She was appointed to investigate the allegations into the Registrant.

• Patient A – Patient of the Registrant, subject of the allegations.

22. Colleagues 1 and 3 gave live evidence, which was consistent with their witness statements. The witness statements from Colleague 8 and Patient A were read into the record given that there was to be no challenge to their evidence.

23. The Panel heard and accepted the advice of the Legal Assessor who advised it that, notwithstanding the admissions from the Registrant, it is the HCPC which brings the case, and so the burden is on the HCPC to prove each particular and sub-particular to the required standard, namely the civil standard.

24. The Panel took into account the fact that the Registrant had completed and returned the pro-forma document signed and dated 8th Feb 2017 admitting all of the facts. Although the Panel recognised that this is not determinative, it meant that there had been no information or evidence from the Registrant to undermine the evidence given by the HCPC witnesses. The Panel nevertheless considered each particular and sub-particular separately to determine whether or not, on an objective appraisal of the evidence, there was sufficient evidence to prove each one individually.

25. The Panel did not hold the Registrant’s non-attendance against him in respect of the fact finding stage, but scrutinised the evidence objectively.

Particular 1

26. In relation to Particular 1, the Panel was satisfied on the evidence, that the Registrant had taken Patient A on a four night stay (22 to 26 July 2015). Although the Registrant had initially denied there had been such a trip in his investigative interview with Colleague 8 on 13 November 2015, he accepted that such a trip had taken place in his letter, dated 27 November 2015, sent to the Trust during the disciplinary process.

27. In relation to particular 1 (a) to (g), the Panel found each of these proved to the required standard. The Panel accepted the unchallenged testimony of Patient A, together with the admissions of the Registrant.

28. In relation to particular 1(h), the Panel found this particular proved to the required standard. The Panel had copies of Patient A’s clinical records and was satisfied that there was no reference within these records of the four night stay. The Panel also accepted the unchallenged evidence of Colleague 8 and the Registrant’s admission.

Particular 2

29. In relation to particular 2 (a) to (b), the Panel found each of these proved to the required standard. The Panel accepted the unchallenged testimonies of Patient A and Colleague, 3 who witnessed the incident through the glass in the Registrant’s door, together with the admissions of the Registrant.

30. In relation to particular 2 (c), the Panel found this particular proved to the required standard. The Panel had copies of Patient A’s clinical records and was satisfied that there was no reference within these records of the nature of the contact between the Registrant and Patient A. The Panel also accepted the unchallenged evidence of Colleague 8 to this effect.

31. In relation to particular 2(d), the Panel found this particular proved to the required standard. The Panel accepted the unchallenged evidence of Colleague 8, to the effect that the Registrant had not completed a ‘DATIX’ (the Trust’s incident reporting system) report and that the Trust Policy is that a DATIX report should be completed any time there is an ‘unexpected event occurring during treatment…which may, or does, cause harm to the service user’. The Panel also accepted her evidence that the Registrant had not reported the incident to her as his Line Manager or any other senior member of the Team.

Particular 3

32. In relation to particular 3 (a) to (j), the Panel found each of these proved to the required standard. The Panel considered whether it was satisfied to the required standard, in respect of each sub-particular, that the alleged contact had occurred at least once during therapy sessions, other than on those occasions which are the subject of particulars 1 and 2. The Panel accepted the unchallenged testimony of Patient A, together with the admissions of the Registrant.

Particular 4

33. In relation to particular 4, which alleges that the conduct in particulars 1 to 3 was sexually motivated, the Panel separately considered each incident alleged to be sexually motivated, to determine whether or not it was, in fact, sexually motivated either because of the nature of the incident itself, or in relation to the context and circumstances in which it occurred.

34. In relation to 1(a), the Panel was satisfied that the Registrant’s reason for taking Patient A away on a four night trip, whilst on annual leave from work was sexually motivated. The circumstances were such that there was no clinical reason to take her away, and whilst they were away, they slept in the same bed and sexual activity occurred between them.

35. In relation to particulars 1(b) to (e), the Panel was satisfied that the incidents, which occurred whilst the Registrant and Patient A were away, namely: kissing (1b), performing oral sex on Patient A (1c), allowing Patient A to get into bed with him (1d), touching Patient A whilst she was in bed with him (1e), were, by their nature sexual, and, therefore, were sexually motivated.

36. In relation to particular 1 (g), the Panel finds that this was not sexually motivated. Patient A’s evidence was that after sexual activity between the Registrant and Patient A, Patient A ran out of the room feeling upset. She said that the Registrant followed her and said he was very sorry and asked her if she wanted to hit him. Patient A said she slapped him. The Panel was of the view that this exchange was not by its nature sexual. The circumstances were such that the Panel could not be satisfied that it was more likely than not that this was sexually motivated, as opposed to trying to mollify Patient A. 

37. In relation to particular 2(a) and (b), the Panel finds that the Registrant’s behaviour which occurred during the therapy session of 15 October 2015, namely allowing Patient A to sit on his lap (2a(i)), allowing her to kiss his neck (2a(ii)) and stroking her back whilst she was sitting on his lap were, in the context of the relationship which had developed between them, sexually motivated.

38. In relation to particular 3 (a) to (j), inclusive, the Panel finds that this behaviour of the Registrant in therapy sessions was, by its nature, sexual, and therefore that it was sexually motivated.

Misconduct and Impairment

39. The Panel next considered whether the matters found proved, as set out above, amounted to misconduct and, if so, whether by reason thereof, the Registrant's fitness to practise is currently impaired.

40. The Panel considered the submissions made by Ms Chaker on behalf of the HCPC. She identified a number of standards which she submitted the Registrant had breached. She also submitted that the facts, if found proved, amounted to misconduct. She submitted that the Registrant's fitness to practise is currently impaired by reason of that misconduct.

41. The Panel heard and accepted the advice of the Legal Assessor. The Panel was aware that findings of misconduct and impairment were matters for the independent judgement of the Panel, and that consideration of impairment only arises in the event that the Panel judges that the facts found proved do amount to misconduct and that what has to be determined is current impairment, that is looking forward from today.

Decision on Grounds

42. The Panel considered whether the facts found proved amounted to misconduct and concluded that they did. It considered that the Registrant had breached a fundamental tenet of the profession, namely by engaging in an emotional and sexual relationship with a patient who was both emotionally and psychologically vulnerable.

43. It was clear to the Panel from the evidence of Patient A, that she had trusted the Registrant completely as her therapist, and he had breached that trust. His actions had caused her significant emotional harm and confusion.

44. The Panel was of the view that the Registrant’s conduct had breached the following HCPC standards of conduct, performance and ethics (2012 version):

a. 1 – You must act in the best interests of service users.

b. 13 – You must behave with (….) integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.
45. In the Panel’s judgement the Registrant’s conduct was serious, sexually motivated and, therefore, amounted to misconduct.

Decision on Impairment

46. The Panel had regard to the HCPC Practice Note on Impairment and, in particular, the two elements of impairment, namely the ‘personal component’ and the ‘public component’.

47. The Panel first considered the ‘personal component’.

48. The Registrant has not engaged with the HCPC process, save for his admissions within the pro forma document dated 8 February 2017. The Panel, therefore, had no evidence before it of the Registrant’s current personal situation. Beyond the admissions themselves, there was no evidence before the Panel of any remorse or insight on the part of the Registrant, particularly in relation to the impact of his conduct on Patient A, his colleagues or the Trust as a whole.

49. In all the circumstances, the Panel was of the view that, in the absence of insight, there remained a risk of repetition that the Registrant would behave in this way again. It therefore concluded that in respect of the personal component, his fitness to practise is currently impaired.

50. The Panel went on to consider the ‘public component’.

51. In the Panel’s judgement, the Registrant, by his conduct and behaviour, had not only breached a fundamental tenet of the profession, as outlined above but had also brought the profession into disrepute. Patient A was a vulnerable individual, who had been engaged with NHS therapy services over a number of years. In her evidence, she had described the impact of the situation on her. She said that she had found the whole situation very upsetting and confusing and it had added more trauma on top of trauma. Colleague 1 said that the most immediate consequence of the Registrant’s behaviour on Patient A was that there had been an immediate cessation of therapy for her. This was then followed by a period of assessment, when it had been difficult to identify the appropriate support and therapy for her clinical needs.

52. Colleague 1 also described the significant reputational fallout at the Trust as a result of the Registrant’s behaviour. She said there had been two major investigations at the Trust: one in relation to Disciplinary proceedings against the Registrant, and a second, wide ranging investigation, in relation to ‘Lessons Learnt’ which had resulted in a number of recommendations being put in place, particularly in respect of checks and balances at managerial level.

53. In the Panel’s view, the public would expect the regulator to take action in order to mark that the Registrant’s conduct was unacceptable for a professional charged with the therapeutic care of a vulnerable individual. The Panel therefore concluded that public confidence in the reputation of the profession would be undermined if a finding of impairment were not made in this case. Similarly, the Panel concluded that professional standards would be undermined if it did not make a finding of Impairment. Accordingly, in respect of the ‘public component’ the Panel concluded that the Registrant’s fitness to practise is currently impaired.

Decision on Sanction

54. Having concluded that the Registrant’s current fitness to practise is impaired, the Panel went on to consider what would be the appropriate, proportionate  and sufficient sanction or other outcome in this case.

55. The Panel heard submissions from Ms Chaker and accepted the advice of the Legal Assessor. It had regard to the Indicative Sanctions Policy (ISP) and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive, but to protect members of the public and to safeguard the public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.

56. The Panel considered that the following were mitigating factors in this case:

a. The Registrant had a previously unblemished career of some 20 years’ experience.

b. The Registrant admitted the facts so that Patient A was not required to recount the incidents by giving live evidence.

c. There was some evidence to suggest that there had been some procedural lapses at the time at the Trust, for example, in authorising new treatments and ensuring mandatory training for staff, such as safeguarding, was up to date.

d. Colleague 1 had said that the Registrant had otherwise been committed to his patients.
 
57. The Panel considered that the following were aggravating factors:

• The misconduct was sexually motivated and it was repeated.

• There was an abuse of trust on the part of the Registrant in respect of a vulnerable patient whom he was treating.

• Patient A had suffered significant emotional and psychological consequences as a result of the actions of the Registrant, and continues to do so.

• The Registrant had caused significant reputational damage to the Trust.

58. For the reasons previously set out, the Panel had no evidence of any remorse on the part of the Registrant. Also, in the absence of engagement by the Registrant with the HCPC or in these proceedings, beyond his admissions, it followed that the Panel has no information as to his level of insight in respect of his behaviour, and specifically whether he had reflected on its impact on Patient A, the Trust and on public confidence in the profession.

59. The Panel does not consider the option of taking no further action to be appropriate or proportionate in the circumstances of this case. It would not address the identified risks, including that of repetition, nor would it meet the wider public interest.

60. The Panel does not consider that a Caution Order would meet the criteria as set out in paragraph 22 of the ISP. This was not an isolated incident. There was no evidence of insight, remorse or remediation. There was a risk of recurrence. The nature of the case was also too serious to be met by a Caution Order, as such an Order would not satisfy the wider public interest.

61. The Panel next considered a Conditions of Practice Order. Given the nature of the case, namely misconduct which was sexually motivated and which involved an abuse of trust between therapist and patient, the Panel was of the view that Paragraph 28 was relevant. It says: ‘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 behaviour was minor, out of character, capable of remediation and unlikely to be repeated’. For the reasons previously given, the Panel did not find that the behaviour was minor and unlikely to be repeated.

62. Furthermore, in the absence of information from the Registrant, the Panel was not able to conclude whether or not this misconduct was capable of remediation by the Registrant. The Panel was of the view that remediation of this type of misconduct, would be difficult to evidence, but the Panel has no evidence that the Registrant has developed any strategies which might demonstrate that he would be able to remedy such behaviour.

63. The Panel was also of the view that the nature of the Registrant’s misconduct was such that it was not amenable to conditions, particularly in the absence of any evidence of remorse, insight or attempted remediation. It, therefore, determined that a Conditions of Practice Order was not the appropriate or proportionate response in this case.

64. The Panel next considered a Suspension Order. The Panel had regard to paragraph 32 of the ISP, which 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’. In this case, as stated above, Panel is satisfied that the allegation was of a serious nature, but given the absence of evidence of insight or remorse, the Panel was unable to conclude that the behaviour was ‘unlikely to be repeated’.

65. The Panel also had regard to paragraph 34 of the ISP, 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’. As the Registrant has not engaged with the HCPC, the Panel had no information before it as to what his current circumstances are. Therefore, the Panel had no information before it to suggest that the Registrant may be able to resolve or remedy his behaviour. The Panel therefore considered that a Suspension Order was not the appropriate and proportionate response.

66. The Panel next went on to consider a Striking Off Order and concluded that this was the only appropriate and proportionate sanction in this case. The Panel noted paragraph 40 of the ISP which states “Striking Off is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust …” The Panel considered that Paragraph 42 of the ISP was relevant, which reads: ‘Striking off may also be appropriate where the nature and gravity of the allegation are such that any lesser sanction would lack deterrent effect or undermine confidence in the profession concerned or the regulatory process’.

67. The Panel acknowledged that a Striking Off Order is the sanction of last resort. However, for the reasons previously given, including: the seriousness of the behaviour which was sexually motivated; a breach of trust of the Registrant’s position as a vulnerable patient’s therapist; the risk of repetition; no evidence of insight or remediation; and the adverse reputational impact on the Trust and the profession, the Panel concluded that there was no other way to protect the public and meet the wider public interest in this case, than to impose a Striking Off Order.

68. Although the Panel had no information as to the Registrant’s current situation, it acknowledged that such an Order would be likely to have an adverse impact upon him. However, the Panel determined that the interests of protecting the public and upholding confidence in the profession outweighed the individual needs of the Registrant.

Order

That the Registrar is directed to Strike the name of Mr Nigel J Hilton from the Register on the date this order comes into effect. 

 

Notes

The order imposed today will apply from 25 April 2017 (the operative date). 

 

Hearing history

History of Hearings for Mr Nigel J Hilton

Date Panel Hearing type Outcomes / Status
27/03/2017 Conduct and Competence Committee Final Hearing Struck off