Mr Sethuraman Pala Srinivasan

: Physiotherapist

: PH72375

: Final Hearing

Date and Time of hearing:10:00 05/06/2017 End: 17:00 16/06/2017

: Health and Care Professions Council, Park House, 184 Kennington Park Road, London, SE11 4BU

: Conduct and Competence Committee
: Struck off

Allegation

Between 2 May 2010 and 11 February 2015, during the course of your employment as a Physiotherapist by Humber NHS Foundation Trust, you:

 

1. In or around September 2012, touched Colleague A's bottom with your hand and/or a car key.

 

2. On or around 23 October 2012, made inappropriate comments and/or acted inappropriately in regards to Colleague B's trousers.

 

3. On or around 29 October 2012, said to Colleague B during a car journey that you wanted to text message her personal mobile and/or invite her to your house.

 

4. On or around 30 October 2012, carried out a visit to Patient A, and you:

 

(a) Slapped Patient A's hand;

 

(b) Told Patient A to "stop being a naughty boy" or words to that effect;

 

(c) Hugged Patient A's wife;

 

(d) Told Patient A's wife that she could call you any time if she needed a hug.

 

5. Demonstrated inappropriate behaviour towards colleagues, in that you:

 

(a) Referred to female colleagues as "the weaker sex" or words to that effect;

 

(b) Told female colleagues that you wanted to see them in dresses and/or commented on colleagues' clothes;

 

(c) During a home visit, said to Colleague B "don't worry it's only hand gel, this time" or words to that effect.

 

6. Demonstrated inappropriate behaviour towards Colleague C, in that you:

 

(a) on or around 12 September 2014, inappropriately touched Colleague C;

 

(b) on or around 12 September 2014, kissed Colleague C;

 

(c) Offered unwanted attention towards Colleague C which included

i. blowing kisses at her;

ii. winking at her;

iii. stroking her cheek;

iv. touching her face.

 

(d) Ignored Colleague C’s "No" in response to your unwanted attention on two separate occasions;

 

(e) Contacted Colleague C on the Social Networking website Facebook;

 

(f) Made comments to Colleague C which included, "Can I put this letter in your coin slot" or words to that effect.

 

7. Your actions described in paragraphs 1 - 3, 5 (b) - (c) and 6 were

sexually motivated.

 

8. Your actions described in paragraphs 1 – 7 amount to misconduct.

 

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

 

Finding

Preliminary matters

Application for evidence to be given via video link

1. Ms Eales made an application for the evidence of a witness VM to be given via video link. Ms Webb stated that the Registrant did not object to the application.

2. On 25 January 2017 the HCPC contacted VM to advise her that she would be required to attend the Final Hearing on 6 and 7 June 2017. VM responded to the HCPC and advised that, as she was on maternity leave, it had been decided that she would give her evidence via telephone. It had not been agreed that VM would give her evidence by telephone at that stage. A representative of Kingsley Napley LLP, RB, contacted VM on 3 February 2017 in an attempt to secure her attendance at the hearing in person.

3. On 7 February 2017 the HCPC emailed VM with confirmation that they would book travel and accommodation on behalf of VM and her family. On 31 May 2017 the HCPC sent a further email to VM to provide her with information. VM responded by asking the HCPC to call her. On 31 May 2017 the HCPC called VM who advised that she had not heard from anyone since February 2017, had not received the email dated 7 February 2017 and that she and her family would not be attending the hearing.

4. On 31 May 2017 RB called VM. She would be unable to attend the hearing in person. VM confirmed that she would be able and willing to give her evidence by video link.

5. Ms Eales made a further application for the evidence of JK to be given by video link. JK stated to the HCPC that she was not willing to travel to London to give evidence because of the terrorism incident at London Bridge that occurred the weekend before she was due to travel. Ms Webb did not object to this application in principle. She mentioned a concern about the legibility of the document bundle which was provided for the use of JK at the video conferencing facility.

6. Ms Eales also made an application for part of the evidence of Colleague B to be given by video link. There was insufficient time on 5 June for the evidence of Colleague B to be completed. Unfortunately Colleague B was not able to stay in London because of a matter relating to her family (Colleague B provided medical evidence in support), and she was unable to return to London due to work commitments. Ms Webb’s position was the same as in the case of witness JK.

7. The Panel accepted the advice of the Legal Assessor. The Panel decided to allow Ms Eales’ applications. The Panel was satisfied that there was no unfairness to the Registrant. The video link arrangement was the appropriate way of ensuring that the Panel heard the best evidence that was possible in all the circumstances. The Panel understood Ms Webb’s concerns about the legibility of the documents and decided that this issue could be dealt with if problems occurred. 

Hearing in private

8. The Panel exercised its discretion to hear part of the case in private. This decision was limited to evidence relating to the private life of the witnesses and the private life of the Registrant. The Panel decided that this was appropriate to protect the private life of the individuals concerned.

Background

FTP35362

9. The Registrant was employed as a Band 7 Physiotherapist by Humber NHS Foundation Trust (“the Trust”) from May 2010. The Registrant worked in the Older Adults Mental Health Team.

10. One of the Registrant’s junior colleagues was Colleague A (CA), who was at that time employed by the Trust as a Band 3 Physiotherapy Technical Instructor. Colleague B (CB) commenced employment with the Trust as a Physiotherapy Assistant in October 2012. The Registrant was CB’s line manager responsible for CB’s training and supervision. After she had been in her role for approximately six weeks CB discussed with CA her concerns about the behaviour of the Registrant. CA suggested that CB could speak to the Superintendent Physiotherapists about her concerns. CB did so, and subsequently made a written statement about her concerns dated 12 November 2012.

11. The Trust appointed an Investigating Officer (IO), PM, who suspended the Registrant before he then went on sick leave. On 20 November 2012 JK, Service Manager, was appointed IO. At this time the Registrant had returned from sick leave and was working under supervision. JK interviewed CB on 3 December 2012. After this interview the Registrant was suspended. CB alleged that the Registrant had given her unwanted attention, including making inappropriate comments. CB also alleged that the Registrant had slapped a patient during a home visit. As part of her investigation JK interviewed CA. In her interview CA stated that the Registrant had made inappropriate comments to her and that on one occasion he had touched her bottom. As part of her investigation JK interviewed the Registrant. He denied any wrongdoing.

12. On 10 and 12 April 2013 the Trust held a disciplinary hearing. The Registrant was dismissed, but successfully appealed his dismissal in July 2013 and was reinstated. He was downgraded to a Band 5 Physiotherapist and issued with a Final Written Warning for the period of 18 months effective from 1 April 2013.

FTP39368

13. Following his demotion the Registrant worked at the East Community Riding Hospital (“East Riding”). He was responsible for the assessment and treatment of male and female patients with muscle and joint problems. His line manager was AG. The work of the physiotherapists at East Riding was supported by administrative and reception staff who liaised with the physiotherapists. JW was an Administrative Assistant and Colleague C (CC) was a part time receptionist.

14. The Registrant had some difficulties in adapting to his new role and he lacked confidence. Approximately one month after his demotion he was placed under an informal capability procedure. The Registrant was provided with support and supervision and successfully completed the process in approximately April 2014.

15. On 3 October 2014 CC disclosed to a friend that the Registrant had tried to kiss her and had inappropriately touched her. CC spoke to AG who reported the concerns to VM, a Human Resources Manager at the Trust. A disciplinary investigation was initially put on hold because CC reported the Registrant to the police. When CC decided that she did not want to pursue the matter with the police, the Trust investigation proceeded. VM provided HR support to the Investigation Officer.

16. The Registrant provided a mitigating statement for the disciplinary hearing dated 3 February 2015 in which he stated that he admitted the vast majority of the allegations in relation to CC and apologised to her.

Submission of no case to answer

17. Ms Webb made a submission that there was no case to answer in relation to particular 1 and particular 7, so far as it relates to particular 1. She confirmed that the Registrant admits the facts in particular 1. However, there was no evidence from the HCPC to support an inference that the Registrant’s conduct was sexually motivated. In the absence of a finding of sexual motivation, no reasonable Panel could conclude that the admitted facts in particular 1 constituted misconduct or that the Registrant’s fitness to practise was impaired.

18. Ms Webb referred to the evidence of CA. During cross examination CA accepted that the touching that occurred when she stumbled backwards on the stairs could have been accidental rather than a deliberate act by the Registrant. On the basis that the touching occurred accidentally as a reaction to a stumble, a Panel could not conclude that the action was sexually motivated, having regard to the circumstances.

19. Ms Eales submitted that there was HCPC evidence to support an inference that the admitted conduct in particular 1 was sexually motivated. She referred to CA’s description of the incident in her witness statement and to CA’s reaction to the incident. Ms Eales submitted that the evidence was not so unsatisfactory that a Panel could not conclude that the admitted conduct in particular 1 was sexually motivated.

20. The Panel accepted the advice of the Legal Assessor and applied the guidance in the HCPC Practice Note “Half-Time Submissions”.

21. In deciding the submission of no case to answer the Panel disregarded the evidence provided by the Registrant which has not yet been presented to the Panel. The Panel has not made any findings of fact, and it retains an open mind on the issue of whether or not the Registrant’s conduct in particular 1 was sexually motivated.

22. In its deliberations the Panel identified that there was some evidence on which a Panel could decide to draw an inference that the Registrant’s conduct was sexually motivated. In particular the Panel identified the following evidence:
(a) evidence from CA about the Registrant’s conduct towards her prior to the incident on the stairs, particularly her description when she was interviewed on 30 November 2012 of a “build up of various comments and behaviour over time”;
(b) CA’s use of the word “poke” to describe the touching together with the location of the touching;
(c) evidence of CA’s reaction to the touching, particularly the evidence of how she challenged the Registrant immediately after the event and his response.

23. The Panel noted that CA was willing to accept in cross-examination that the touching could have been accidental. However, the Panel did not accept Ms Webb’s submission that this rendered the whole of the HCPC’s evidence on particular 1 unsatisfactory, such that that the Panel could not make an inference that the Registrant’s conduct in particular 1 was sexually motivated.

24. The Panel therefore concluded that there is a case to answer on particular 1, when considered with particular 7.

Decision on Facts

25. The Panel accepted the advice of the Legal Assessor. When it considered whether any of the particulars were sexually motivated the Panel took into account the definition of “sexual” activity in Section 78 of the Sexual Offences Act 1978:
“For the purposes of this part….penetration, touching or any other activity is sexual if a reasonable person would consider that-
(a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.”

26. The Panel also took into account the definition of “sexualised behaviour” in the CHRE guidance on “Clear sexual boundaries between healthcare professionals and patients: responsibilities of healthcare professionals” dated January 2008 which is published on the PSA website:
“Sexualised behaviour is defined as acts, words or behaviour designed to arouse or gratify sexual impulses or desires”.

27. The Panel heard evidence from the HCPC witnesses CA, CB, VM, JK, CC, and JW. The Panel found that Colleague A was a credible and entirely convincing witness. Her oral evidence was consistent with her written statement. She was clear about what had happened, about her response to it, and the Registrant’s response. She was forthright with no exaggeration and no embellishment.

28. The Panel found that CB was a credible witness who gave a consistent, plausible and detailed account of events. She provided a clear timeline which was of assistance to the Panel. She gave compelling evidence of what the Registrant was like as a character, and how he made her feel. Ms Webb suggested that CB’s evidence might be influenced by the fact that she was frustrated that the Registrant was not signing off her competencies as soon as she expected. There was no reason to doubt anything CB said.

29. The Panel found that CC was a credible witness and gave a consistent and clear account of the impact on her of the Registrant’s actions. Despite CC’s clear distress and frustration in giving evidence, she gave a clear timeline as to the progression of his behaviour. CC came across to the Panel as entirely straightforward and honest.

30. JW was a credible witness, un-biased in her evidence, who was candid when questioned by the Panel. She stated she had a good working relationship with the Registrant.

31. The Panel found that VM and JK were honest, open and credible witnesses. Their evidence did not greatly assist the Panel in determining the matters.

32. The Panel found that the Registrant was not a credible witness. He was reluctant to answer questions with a straight answer. He sometimes gave a lengthy answer which was not to the point. The Panel found that his account was not plausible. He contradicted himself and was evasive. His demeanour when giving evidence was calm and calculated.

33. The Registrant’s position in relation to his mitigation statement dated 3 February 2013 was that it was entirely incorrect and that he signed it because he received advice from his trade union representative that his denial of the allegations made by CC was not likely to be believed. He stated that he signed this incorrect statement “considering my personal situation as I wouldn’t be able to live and work if I was dismissed especially it [sic] have an impact on my family”. In the Panel’s view this evidence raised serious concerns about the Registrant’s attitude and honesty. The Panel did not accept that the Registrant’s choice when he signed this statement was simply an understandable human decision.

34. The Panel was satisfied that the Registrant’s denials were not due to a misunderstanding or his different perception of the same events. The Panel considered that the Registrant lied under oath.
Particular 1

35. The Panel found that particular 1 is proved by the evidence of CA. The Registrant admits particular 1, but states that the touching was accidental.

36. The Panel found that the Registrant’s conduct was sexually motivated. The Panel had to decide whether the incident was entirely accidental as suggested by the Registrant, or whether the Registrant took advantage of the Registrant stumbling backwards on the stairs to deliberately touch her. CA was very fair in her evidence in accepting that the Registrant’s conduct could have been accidental. However, this was five years after the event, and it was not her opinion at the time of the event.

37. The background was that CA felt that the Registrant was behaving inappropriately towards her. This included comments on the clothes she was wearing. CA was unable to give specific examples of the comments made by the Registrant, but the Panel accepted her evidence that there was a build up of inappropriate behaviour prior to the incident which made her feel uncomfortable. CA’s response to the incident on the stairs was that she was angry. She spoke to the Registrant, telling him that his conduct was not acceptable.

38. The Panel also considered CA’s description of the touching. It was referred to repeatedly as a “poke” and it “did not feel like a normal reaction”. In the Panel’s view this description indicated deliberate rather than accidental contact. In the Panel’s view deliberate contact by the Registrant was more likely, even though the Registrant could not have predicted that CA would stumble.

39. After the incident the Registrant apologised to CA and offered to escalate the matter to management. The Panel’s view is that this would be a bizarre reaction if the touching was a genuine accident.

40. The Panel therefore concluded that the touching was deliberate. The conduct of “poking” CA in the bottom is conduct which may be sexual. The Panel inferred that the conduct was sexually motivated because it occurred in the context of “a build up” of inappropriate behaviour towards CA.

Particular 2

41. The Panel found that particular 2 is proved by the evidence of CB. The Registrant made a late admission that the comment he made was inappropriate.

42. The Panel considered whether the comment made by the Registrant was a simple compliment that was being misinterpreted by CB, or whether it was sexually motivated.

43. The Panel decided that the comment made by the Registrant was sexually motivated. The Panel accepted CB’s evidence about the detail of the incident. CB’s description of the incident in her initial written complaint was: “After the MDT meeting at Rosedale he asked me to go into an empty office to where he passed comment on the trousers I was wearing, saying he had been looking at them in the meeting how nice they look down to the small detail on the pockets. This made me extremely nervous and self-conscious”.

44. The context is that the Registrant made a number of comments about the Registrant’s clothing. The incident at Rosedale was not the only occasion when he commented about her trousers. It was not a simple compliment because the Registrant took CB to an empty office, the comment was about the detail of the pockets which were close to the groin, and the Registrant stated that he had been looking at CB’s trousers in the meeting. The comment made CB feel nervous and self-conscious. The Panel found that CB’s perception was not due to CB misinterpreting the comment, but because she understood that the comment was sexual in nature.

45. The Panel also took into account the context and circumstances of the Registrant’s conduct towards CB, as found in the other particulars.

46. The Panel did not accept the Registrant’s explanation that he had a “passion for fashion” and that this explained his inappropriate comment because it was an implausible explanation.

47. The Panel inferred that the Registrant’s inappropriate comment in regard to CB’s trousers was intended to arouse or gratify sexual impulses or desires and was therefore sexually motivated.

Particular 3

48. The Panel found that particular 3 is proved both in relation to saying to CB during a car journey that he wanted to text message her personal mobile and in relation to inviting CB to his house.

49. The Panel accepted the evidence of CB that the Registrant told her that all weekend he had wanted to text her to invite her to his house. In her statement CB adds: “He told me that he kept picking up his mobile to text me, but did not know how I would react”. CB’s recollection was clear and consistent with her earlier statements. The Panel agreed with Ms Eales’ submission that the Registrant telling CB that he “did not know I would react” would be a very strange detail for CB to fabricate.

50. The Panel did not accept the Registrant’s account that he did invite CB to his house, but on a Friday and told her to bring her children.

51. The Panel did not accept that the Registrant was making a simple social invitation to CB. The Registrant’s statement to CB could have been sexual in suggesting that he was nervous about contacting her. The Panel could not identify any explanation for the Registrant being hesitant about texting CB and saying “didn’t know how she would react” other than that the Registrant had a sexual motivation. The Panel drew the inference that the Registrant’s conduct was sexually motivated.

Particular 4

52. The Registrant agreed that he carried out a visit to Patient A with CB on or around 30 October 2012. CB reported the matter on 13 November 2012.

53. The Panel accepted the evidence of CB that the Registrant slapped Patient A. The Panel found that CB had no reason to fabricate such an allegation against the Registrant. It would have to have been a complete fabrication rather than a misunderstanding because the Registrant denies the matter entirely. CB’s oral testimony was credible when she described the noise of the slap, her shock, and her reaction of jumping up.

54. CB’s accounts of the incident are consistent in her initial report in November 2012, in her witness statement in July 2015 and in her oral testimony. The Panel acknowledge that she did not report the incident immediately. CB repeatedly stated her remorse and regret that she did not do so. CB described the circumstances at the time which were that: CB was new in post; the Registrant was a senior colleague; CB had already made a complaint against him; she was worried about causing disruption in the team. The Registrant had also made a comment to her “you don’t know enough about mental health” which undermined CB’s confidence. In the Panel’s view these circumstances adequately explain the delay in CB reporting the incident.

55. CB’s evidence was that at the same time as the Registrant slapped Patient A’s hand, he also called him a “naughty boy”. The words “naughty boy” are consistent with a slap correcting a behaviour, for example with a child. They are words which might be spoken during the action of slapping to stop a behaviour. The Panel found that there was no reason for CB to fabricate such a detail. The words were used by CB in her initial complaint on 13 November 2012.

56. CB stated in her initial complaint and subsequent statements that the Registrant hugged Patient A’s wife. The Registrant admits that he hugged Patient A’s wife. CB’s account of the whole incident is also plausible. The Registrant was sympathising with Patient A’s wife who was exasperated by Patient A’s repeated scratching of his neck.

57. The Registrant admitted that he said to Patient A’s wife “call me anytime”, but does not admit that he told Patient A’s wife that she could call him any time if she needed a hug. This is another example of where the Registrant’s version of events is the same as CB’s, but without the incriminating part. Again, the Panel’s view was that it was not likely that CB would make up such a detail. The Panel accepted the evidence of CB.

58. There was disputed evidence between CB and the Registrant about whether the Registrant knew that a safeguarding alert was is in place at the time of the visit to Patient A. The Panel did not resolve this conflict of evidence. It is not necessary to do so because the Registrant’s actions were inappropriate even if he did not know there was a safeguarding alert. The Panel did not accept Ms Webb’s submission that CB’s credibility was damaged in relation to this incident because she was wrong in believing that the Registrant did not know about the safeguarding alert.

59. The Panel found that particulars 4(a), (b), (c) and (d) are proved.

Particular 5(a)

60. The Registrant accepted that he made a comment during an interview with JK on 3 December 2012, asking her if she was taking the side “of the weaker sex”. The Registrant had been advised that he was suspended and the comment was made at the end of the meeting after the Registrant’s union representative had left the room.
61. The Panel found that the Registrant’s oral testimony in relation to this particular was not convincing. The Registrant knew that he was facing allegations of inappropriate behaviour by junior female colleagues and that he was making the comment to a female manager who was investigating those comments. The Registrant waited until his union representative was out of the room before making the comment. The Panel concluded that the comment, in this context, was offensive and inappropriate and that the Registrant knew that it was inappropriate. When his words were repeated back to him the Registrant apologised to JK.

62. The Panel found that particular 5(a) is proved.

Particular 5(b)

63. The Panel accepted the evidence of CB that the Registrant made comments on her clothes and that he wanted to see her in a dress. She gave a specific example of a discussion when she was in the car with the Registrant and they drove past Beverley Racecourse. The Registrant started to discuss ladies day and explained that he had “wanted to go last year to watch CA.” He said that he wanted to see CB in a dress and asked how she would do her hair.

64. In his evidence, the Registrant agreed that there was a discussion about ladies day with CB. His account is that CB raised the question of ladies day and said that his wife was possessive and would not let him go. In his witness statement the Registrant stated: “This was not intended in a sexual way. I am an active learner. In addition to my professional knowledge I was interested and curious about knowing the local culture. I come from a foreign land where such occasion is not celebrated in any part of the country”.

65. The Panel did not accept the Registrant’s explanation. The Registrant had been in the UK since 2007 and his explanation that he had no knowledge of this aspect of local culture is not credible. The Registrant’s explanation is also not credible on the basis of CB’s account of the conversation, that it was the Registrant who brought up the topic and referred to the previous year.

66. In his witness statement the Registrant stated in relation to this allegation: “this was not intended to be sexual”, even though he did not admit saying anything about CB’s dress or hair. He was unable to explain this statement when challenged.

67. The Panel inferred from the Registrant’s words “he had wanted to go last year to watch CA” that he had made similar comments to CA. The Panel also accepted CA’s evidence that the Registrant made comments about her clothes, as she reported in her interview on 30 November 2012.

68. The Registrant’s comments were inappropriate in the context of all his behaviour. He overstepped the mark in asking for personal details such as asking CB how she would do her hair. The statement that he wanted to see CB in a dress is also clearly an inappropriate statement for the Registrant to make to a female junior colleague.

69.  The Panel found particular 5(b) proved both in relation to telling a female colleague that he wanted to see her in a dress, and in commenting on colleagues’ clothes.

70. The Panel inferred that the conduct in particular 5(b) was sexually motivated. The conduct in particular 5(b) could be sexual. There is no alternative explanation for the inappropriate comments, and the Panel inferred that they were sexually motivated.

Particular 5(c)

71. The Panel accepted CB’s evidence that the Registrant said “Its only hand gel”, but then whispered “this time” and that this comment is a sexual innuendo. CB gave detail of her reaction to the comment that she shouted out that the comment was “horrible” or “gross”. This was in the presence of the patient’s adult daughter who heard this reaction. The Panel also accepted CB’s evidence that the Registrant had previously made lewd jokes about hand gel such as “let me squirt you”.

72. In the Panel’s view the Registrant whispering the words “this time” has a distinct ring of truth about it.

73. The Panel also noted the background evidence that the Registrant spoke about women in a derogatory way. For example he told Colleague B that he would watch women on the streets or in clubs. In the Panel’s view the background evidence made it plausible that the Registrant would make a remark with a sexual innuendo.

74. The Registrant admitted that he said “its only hand gel” as opposed to “its hand gel”. There is no explanation for the use of the word “only”.

75. After the incident CB and the Registrant returned to their cars and the Registrant asked CB if they should sit and “talk about it”. CB understood that this referred to the hand gel comment. The Registrant stood by CB’s car and was adamant that he should get in her car which made CB feel intimidated. There would have been no reason for the Registrant to want to discuss the incident if no comment had been made or if the comment was innocent.

76. The Registrant’s remark has no other meaning than a sexual innuendo and it is therefore inappropriate. The Panel found particular 5(c) is proved.

77. The Panel inferred that the Registrant’s comment was sexually motivated because there is no other logical explanation.

Particular 6(a) and 6(b)

78. The Panel accepted CC’s evidence that the Registrant touched and kissed her. CC gave a compelling, graphic and detailed account of the touching and the kiss and events both before and afterwards. She described how the Registrant put his arms around her shoulders and back, pulled her towards him, and kissed her. CC states that she didn’t know how to react so she “just froze”, but the Registrant then saw CC’s partner arriving to collect her and the Registrant let CC go. CC was clearly upset and frustrated that the Trust had allowed the Registrant to continue to work with women when they knew he was a danger.

79. Whilst giving her evidence, CC had no reason to fabricate her account. She had initially gone out of her way to include the Registrant in friendly conversations. She was, as a result, reluctant to report the Registrant’s behaviour towards her, and did so initially through a friend.

80. CC was clear about the date of the incident, 12 September 2014. The Panel found no inconsistencies in her evidence. In her initial statement CC did not include any dates. The Trust investigating team tried to work out the date and initially in the investigation the Registrant was given the wrong date. This was later corrected and the Registrant was given the opportunity to comment and respond to the correct date of 12 September 2014 as part of the investigation.

81. The Panel found that the written evidence supported CC’s account and the date of the incident as 12 September 2014. The Trust has an instant messaging system which permits the reception team and the physiotherapists to send messages to each other, which will appear on the user’s computer screen. The Registrant sent an instant message to CC on 12 September 2014 at 16.26 about his diary. On Monday 15 September there was a series of instant messages between the Registrant and CC in which the Registrant apologises for his behaviour in connection with changes to his diary. At the end of this exchange the Registrant sent a message to CC: “Worried about the Friday. I feel sick about myself”. CC replied “Don’t worry about it”.

82. The Panel found that the message “I feel sick about myself” specifically linked to Friday was a reference to the incident where the Registrant kissed CC. The Panel did not accept the Registrant’s explanation for this particular comment that he was worried about changes to the rota. These were the subject of some of his earlier instant messages. The Panel found that it was not likely that the Registrant would say “I feel sick about myself” or be worried about Friday in relation to rota changes.

83. The signing out book showed that the Registrant signed out at 4.30 p.m. This is consistent with CC’s evidence that the Registrant came to reception, signed out, but then remained in the reception area.

84. In its conclusion that CC’s account of events was credible and that the Registrant lied about this incident, the Panel took into account the pattern of the Registrant’s behaviour. CC is young. At the time she was vulnerable because of her personal circumstances, and the Registrant was aware of her vulnerability. CC is similar in appearance to CB. The Panel also took into account the fact that the incident occurred at the time when the Registrant’s written warning was due to expire. The Registrant was aware of his status as he had attended a meeting with HR to discuss the expiry of the warning.

85. Ms Webb submitted that CC’s account of events was unreliable because of inconsistencies between CC’s evidence and JW’s evidence. The Panel agreed that there were some inconsistencies; for example JW believed that all staff including CC were aware that the Registrant had been subject to a previous disciplinary process in relation to his behaviour whereas CC said she was unaware. In the Panel’s view this type of inconsistency did not indicate that CC’s account of the events was unreliable or mistaken. The Panel would expect there to be some inconsistencies and would be more concerned if JW’s evidence exactly matched CC’s evidence which would suggest that they had colluded. 

86. The Panel found that the Registrant’s account of the incident on 12 September 2012 was unreliable and untrue. Despite the seriousness of the allegation he faced, the Registrant was unable to give any details of his actions prior to 4.30 p.m. on 12 September 2012. In his witness statement and in oral evidence he stated that another locum physiotherapist CL was present, and that she left at the same time as the Registrant and CC. There is no evidence in the signing in book or elsewhere to support the Registrant’s account that CL worked on 12 September 2012.

87. The Registrant’s account was that he did not remain in the reception area, but left about five minutes after he had signed out together with CC, CC’s partner and daughter who had arrived to collect her. CC was due to work until 5 p.m. and there is no evidence that she left before her finishing time. If the Registrant saw CC’s daughter arriving, as he said he did, it would have been later than the Registrant states.

88. On his own account the Registrant was willing to lie in his statement of mitigation to the Trust’s disciplinary Panel because he believed that it was in his own and his family’s interests to do so. Although the Registrant is currently unemployed, his immigration status is linked to his ability to work in the UK. The Registrant has an interest in lying to protect his position. The Panel had no confidence in the Registrant’s account and did not trust what he said.

89. The Registrant’s behaviour of kissing CC and inappropriately touching her was aggressive sexual behaviour towards CC. There is no suggestion by the Registrant that CC invited or encouraged such behaviour. The Panel found particular 6(a) and 6(b) proved.

90.  The Panel found that the Registrant’s conduct was sexually motivated. There is no other possible explanation for his behaviour other than a sexual motivation.

Particular 6(c)

91. CC gave evidence of two specific occasions, both on a Friday and prior to 12 September 2012 when the Registrant blew a kiss at her. She stated that on the first Friday the Registrant blew a kiss at her when she was by the signing out book by the door of reception. On the second Friday she was in the same position and the Registrant gestured kisses and said “come on, come down there” indicating down the corridor.

92. The Registrant denied this particular on the basis that he was not blowing a kiss, but pulling a face at CC. The Registrant demonstrated to the Panel the “kissing” gesture. It was very obviously a kissing gesture with pursed lips and in the Panel’s view there was no other explanation for it. CC was shocked and did not treat the gesture as a joke. Her reaction was to ask the Registrant what he was doing.

93. CC did not refer in her police statement, her interview in the Trust disciplinary investigation, or in her HCPC witness statement, to the Registrant winking at her. CC in her oral evidence denied that the Registrant had winked at her as part of a joke. 

94. CC gave examples of the Registrant’s conduct of stroking her cheek and touching her face. In her statement to the police she stated that he would “touch my face, stroke my cheek or grab my nose like you do to a child if you were pretending to steal their nose”. CC demonstrated to the Panel the actions of the Registrant that she described. In the Panel’s view the actions described by CC particularly the grabbing her nose were very specific and not something that was fabricated. The behaviour described by CC was patronising and invasive towards a young female colleague who was less senior than the Registrant. The Registrant was almost treating her as a child.

95. The Panel noted that the background evidence tended to support the credibility of CC. For example JW stated that she observed the Registrant behaving flirtatiously with another receptionist.

96. The Registrant’s actions were unwanted attention towards CC. There was no suggestion by the Registrant that CC invited or encouraged the Registrant’s behaviour. CC did not find the Registrant attractive.

97. The Panel found particular 6(c)(i), (iii) and (iv) proved. The conduct in particulars 6(c)(i), (iii), and (iv) is inappropriate behaviour towards CC. CC did not invite or encourage such behaviour and it is inappropriate in a workplace. The Panel did not find particular 6(c)(ii) proved because the HCPC has not discharged the burden of proof in relation to this particular.

98. The Panel inferred that the Registrant’s behaviour was sexually motivated. It was part of a flirtatious course of conduct which led up to the sexual touching and the kiss on 12 September 2012. The Registrant also continued with the conduct after CC had told him “no” in response to the unwanted attention, as set out in the Panel’s findings in particular 6(d).

Particular 6(d)

99. CC made it clear to the Registrant on the first Friday and the second Friday that the Registrant’s attention was unwanted by asking him what he was doing. The Panel decided that, in using these words, CC was saying “no” to the Registrant.

100. On 12 September the Registrant said “no” to the Registrant before he came towards her and placed his hands on her shoulders to kiss her.

101. The Registrant’s conduct in ignoring CC’s “no” is inappropriate behaviour. It was clearly inappropriate to continue with a pattern of behaviour that was unwanted and that the Registrant had been told was not wanted.

102. The Panel inferred that the reason for the Registrant continuing his behaviour after the Registrant said “no” was that he wanted an intimate relationship with CC as indicated by the progression of his behaviour over time, culminating in the unwanted kiss. The continuation of the conduct was to gratify the Registrant’s sexual impulses or desires.

Particular 6(e)

103. The Registrant admitted that he sent the Registrant a friend request on Facebook. His explanation was that the request was sent by mistake because he was looking for details of CC’s partner’s fish company. The Panel did not accept that this was the reason for sending the friend request because it was not likely that the Registrant would type the keys necessary to send a request simply because he had accessed the Registrant’s Facebook page. The Registrant had previously looked at CC’s Facebook page for other reasons. He admitted looking at photographs of CC’s 21st birthday on her Facebook page.

104. It was inappropriate for the Registrant to contact CC on Facebook and the Panel found particular 6(f) proved.

105. The Registrant had no reason to look at CC’s Facebook page or to send her a friend request. The Panel have rejected the Registrant’s explanation and there is no other explanation for his conduct other than it was part of the Registrant’s sexually motivated course of conduct towards CC.

Particular 6(f)

106. The Registrant was standing at reception, talking to CC and holding a letter. The Registrant said to CC “Can I put this letter in your coin slot”.

107. The Registrant accepts that he calls the letter tray a “slot”, although it is a tray. The Panel found CC’s description of the Registrant waving the letter and looking at her cleavage convincing. CC had never heard of the phrase “coin slot” before and it is a strange phrase for her to make up.

108. The Panel found that the Registrant’s explanation was implausible. He would have said “shall I put this letter in the tray” if this is what he meant and he would not have said “your” coin slot.

109. In the context of everything the Registrant had said and done, the comment was entirely inappropriate. The Panel found particular 6(f) proved.

110. CC understood from the comment and from the fact that the Registrant was looking at her cleavage that the comment was referring to her cleavage. The comment therefore was a sexual innuendo. The Panel inferred that the comment was sexually motivated because there was no possible explanation other than that the comment was for a sexual purpose.

Particular 7

111. The Panel found that the Registrant’s conduct in particulars 1-3, 5(b)-(c) and 6 was sexually motivated. The reasons in respect of each individual particular is set out above. The conduct as a whole is a pattern of behaviour. The Panel’s view was that it was not a coincidence that Colleagues A, B and C were all young and junior to the Registrant. Colleagues B and C were also similar in appearance. The Panel drew the inference from the Registrant’s conduct and from these facts that the Registrant was sexually attracted to Colleagues A, B and C.


Decision on Grounds

112. There is no statutory definition of misconduct, but the Panel had regard to the guidance of Lord Clyde in Roylance v GMC (No2) [2001] 1 AC 311: “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 conduct must be serious in that it falls well below the required standards. The question of whether the proven facts constitute misconduct is for the judgment of the Panel and there is no burden or standard of proof.

113. The Panel first considered the proved particulars which were sexually motivated, particulars 1-3, 5(b)-(c) and 6 (with the exception of particular 6(c)(ii). The Panel found that each particular sub-particular, considered individually, was sexually motivated. Such behaviour is a breach of a fundamental tenet of the profession. Each action or comment found proved was part of a pattern of similar behaviour which involved women who were young, vulnerable, and less senior. There was a pattern of insidious grooming behaviour which tended to escalate. The unwanted kiss and touching of CC was a sexual assault.

114. The Registrant continued with his behaviour despite the findings of the Trust made against him in relation to CA and CB. He continued with similar and more serious actions with CC when he knew his final written warning was due to expire. The Registrant showed a disregard for the sanctions which had been imposed on him by the Trust.

115. The Registrant’s conduct had consequences for CA, CB and CC because his behaviour made them feel uncomfortable. For CB and CC the impact was significant. Colleague B decided that she should leave her job.

116. The Registrant’s conduct in particular 5(a) was not sexually motivated, but it was a sexist and offensive remark made to a woman and referring to junior female colleagues who had made serious allegations against him. The Registrant waited until his representative had left the room before making the remark. The remark would be offensive in any context, but in this particular context it was particularly serious.

117. The Registrant’s conduct in particular 4 of slapping a patient and saying “naughty boy”, infantilising Patient A, was a physical assault and a gross breach of trust. The Registrant’s action of hugging Patient A’s wife and saying that she could call any time she needed a hug was entirely inappropriate. This behaviour took place in the sight of Patient A, who the Registrant had just reprimanded as if he were a child.

118. The Registrant’s conduct was a breach of: the HCPC standards of conduct, performance and ethics standards 3, 7 and 13; in relation to conduct in 2012 the HCPC Standards of Proficiency for physiotherapists standards 1a.1, 1a.8 and 1b.1; in relation to conduct in 2014 the August 2013 Standards of Proficiency standards 2.2, 3.1, 9.1, 9.2.

119. The Panel decided that when considered individually and when considered together, the Registrant’s conduct in each of the proved particulars falls seriously short of what would be proper in the circumstances and is sufficiently serious to constitute misconduct.

Decision on Impairment

120. The Panel applied the guidance in the HCPC Practice Note “Finding that Fitness to Practise is impaired” and accepted the advice of the Legal Assessor. The Panel considered the Registrant’s fitness to practise at today’s date.

121. The Panel first considered the personal component, which is the Registrant’s current competence and behaviour. The Panel considered the level of the Registrant’s insight. In relation to the particulars that he admitted the Registrant demonstrated some insight. He admitted that his behaviour in hugging Patient A’s wife was inappropriate, that he made an inappropriate comment in referring to female colleagues as the “weaker sex” and in his admission, although late, that he made an inappropriate comment about CB’s trousers.

122. In relation to the particulars the Registrant denied which include the most serious particulars, the Panel found that Registrant did not demonstrate any insight. The Registrant’s attitude is indicated by the fact that the Panel considered that he lied under oath. He did so because he believed it was in in his interests to do so because he believed that he might maintain his registration, his ability to work UK, and, for immigration reasons his ability to live in the UK. The Registrant in his witness statement for the Panel set out reasons for his belief that it is in the interests of his family to remain living in the UK. In the Panel’s view the Registrant continued to put his own interests first. The Registrant has not acknowledged his behaviour or the impact of his behaviour on his colleagues, the Trust or the profession.

123. The Registrant appeared to demonstrate remorse in relation to his behaviour towards CC in the mitigation statement he signed. However, the Registrant now states that this was not genuine and that the statement he made is not true.

124. There has been no meaningful remediation by the Registrant. After the Trust’s findings in relation to CA and CB the Registrant attended a training course on Professional Boundaries and Positive attitudes and behaviour. Although the Registrant stated that he had learned from this and changed him as a person, the Panel did not find that this was so. There is no evidence of any meaningful reflection in relation to the events involving CC.

125. Ms Webb referred the Panel to good character testimonials in support of the Registrant. None of the testimonials demonstrate that the author was aware of the nature of the allegations against the Registrant. The Panel considered that the testimonials were not relevant to the issue of the Registrant’s current fitness to practise, which is concerned with behaviour which would not be known to the author of the testimonials.

126. The Panel identified that there is a very high risk of repetition of similar misconduct. The Panel took into account the fact that the Registrant repeated similar conduct with three different junior female colleagues. There were notable similarities in the conduct of the Registrant described by CA, CB and CC. The Registrant repeated the conduct despite the findings of the Trust in relation to CA and CB and the sanction applied to him. The Registrant did not learn a lesson from the findings made against him in relation to CA and CB.

127. The Panel therefore decided that the Registrant’s fitness is currently impaired, considering the personal component.

128. The Panel next considered the public component which includes the need to protect the public, uphold standards of conduct and behaviour and maintain confidence in the profession and the regulatory process. The Panel identified that there is a risk to the members of the public, particularly for young female junior colleagues and young female patients. The risk is that the Registrant will repeat the conduct of unwanted attention and sexual assault. Members of the profession and members of the public would be expect the Regulator to act in these circumstances to protect the public and to uphold the standards of conduct. The Panel therefore decided that the Registrant’s fitness to practise is currently impaired, considering the public component.  

Decision on Sanction

129. The Panel accepted the advice of the Legal Assessor and applied the guidance in the HCPC Indicative Sanctions Policy (ISP). The purpose of a sanction is not to punish the Registrant, though it may have that effect. The purpose of a sanction is to protect the public. The Panel should also give appropriate weight to the wider public interest, which includes the deterrent effect to other registrants and the need to maintain public confidence in the profession and the regulatory process.

130. The Panel applied the principle of proportionality, balancing the Registrant’s interests against the public interest.

131. The Panel identified the following aggravating circumstances:

• multiple young vulnerable victims;

• behaviour over a protracted period of time;

• continued inappropriate behaviour following disciplinary and behaviour increased in seriousness rather than stopped;

• breach of trust both in relation to the behaviour towards a patient and in relation to colleagues;

• no demonstration of genuine remorse compounded by lying under oath;

• lack of real insight into the main issues regarding sexualised conduct towards women;

• very high risk of repetition of similar misconduct;

• an attitudinal problem regarding women.

132. The Panel identified the following mitigating circumstances:

• the Registrant’s full engagement with the Regulator;

• limited insight into some of the less serious particulars.

133. The Panel considered carefully Ms Webb’s submissions. At all stages in its deliberations the Panel took into account the Registrant’s interests and balanced those interests against the wider public interest. Ms Webb particularly referred to the Registrant’s financial interests, his immigration status, and the impact on the Registrant’s family. The Registrant is currently unemployed and a very restrictive sanction will have an impact on his ability to earn a living. The Registrant’s immigration status means that he requires a sponsoring employer to be able to work in the UK. The support of a sponsoring employer will depend on his continuing registration. The likely result of a very restrictive sanction is also that the Registrant will have to leave the UK and this will have an impact on the education of the Registrant’s son.

134. Ultimately, at the conclusion of its deliberations, the Panel decided that the public interest outweighed the Registrant’s interests for the reasons set out below.

135. Ms Webb invited the Panel to reflect on its findings in relation to the Registrant’s demeanour and consider whether cultural differences had an impact on the way in which the Registrant had expressed himself, given that he was not speaking in his first language. The Panel considered this point and was satisfied that there was not a language or cultural barrier to the Registrant explaining to the Panel his insight into the Allegation. The Registrant has been living in the UK since 2007 and the Panel did not have any difficulty in understanding his answers to questions. The Registrant did not request an interpreter or suggest that he was having any difficulties in expressing himself in English.

136. Ms Webb also invited the Panel to review the issue of risk. She submitted that the Registrant was not a high risk to patients specifically, and that the high risk the Panel identified was in relation to the Registrant’s behaviour to female colleagues.  The Panel accepted that there is not a high risk of repetition of physical harm to patients. However, the Panel was not of the view that the risk of repetition of sexually motivated behaviour was restricted to colleagues. The Panel identified that, if the Registrant were to have regular contact with a patient who was similar in appearance to CA, CB and CC there was a high risk of repetition.

137. The Panel considered the available sanctions in ascending order of severity, taking into account the principle that the sanction should be the least restrictive which is sufficient to satisfy the purposes of a sanction as set out in the ISP. The Panel decided that taking no action, mediation or a Caution Order would not be sufficient. These options would not satisfy the requirement of protecting the public against the risk of repetition, and they would manifestly not address the wider public interest, given the seriousness of the Registrant’s misconduct.

138. The Panel next considered a Conditions of Practice Order. The Panel decided that there are no workable and appropriate conditions that could address the Registrant’s behaviour.

139. The Panel considered the more serious sanctions of a Suspension Order or a Striking Off Order. The Panel carefully considered the ISP which indicates that the choice between the two orders is likely to depend on whether there is a realistic prospect of remediation and rehabilitation. The Panel noted that the Registrant had been given an opportunity to remediate his behaviour by the Trust and this had not succeeded. The Registrant completed relevant training, but this did not change his behaviour. As soon as the final written warning was lifted the Registrant started his behaviour again. Therefore the Panel had no confidence that the Registrant would not start the behaviour again if he was subject to a period of suspension. The Registrant did not develop insight over the eighteen month period during which he was subject to a Final Written Warning.

140. The Panel’s view was that the Registrant has an attitudinal problem towards women which makes it very difficult for there to be any meaningful remediation. The Panel also identified a high risk of repetition which indicates that a suspension order may not be appropriate.

141. In considering the proportionality of a suspension order the Panel took into account the mitigating factors it identified. The mitigating factors in this case are very limited and they do not suggest that there is a realistic prospect of rehabilitation.

142. The Panel also noted that there is positive evidence about the Registrant’s work as a physiotherapist, but decided that the evidence should not be given undue weight in this case, where the concerns are behavioural.

143. The Panel considered the ISP guidance on a striking off order which is a sanction of last resort. The Panel identified a number of aspects of the case which indicated that a striking off order may be appropriate. The case involved serious and deliberate acts, and a sexual assault. Those acts were a breach of trust, both in relation to the sexually motivated acts and the conduct towards Patient A. The behaviour persisted over a long period. The Panel considered that the Registrant lied under oath and has not demonstrated insight in relation to most of the particulars. There is an attitudinal problem and a high risk of repetition. A Striking Off Order would provide public protection, both for female colleagues and patients. 

144. In considering the proportionality of a Suspension Order or a Striking Off Order the Panel considered the wider public interest. The Panel’s view was that anything less than a striking off order would not be a sufficient deterrent. It would not send a clear enough message to the public. A Striking Off Order sends the clear message which is needed that the Registrant’s behaviour is completely unacceptable. A Suspension Order would undermine public confidence in the profession and any lesser sanction carries the prospect that the Registrant might be permitted to return to practice after a period of rehabilitation.

145. The Panel decided that a Suspension Order would not be sufficient to protect the public and the wider public interest. The Panel therefore decided that the appropriate and proportionate sanction is a Striking Off Order.

Order

The Registrar is directed to strike the name of Mr Sethuraman Pala Srinivasan from the register from the date this order takes effect.

Notes

The order imposed today will apply from 11 July 2017.

Hearing history

History of Hearings for Mr Sethuraman Pala Srinivasan

Date Panel Hearing type Outcomes / Status
05/06/2017 Conduct and Competence Committee Final Hearing Struck off
25/04/2016 Conduct and Competence Committee Final Hearing Adjourned