Mr Mark G Troy

: Occupational therapist

: OT21581

: Final Hearing

Date and Time of hearing:10:00 19/06/2017 End: 17:00 21/06/2017

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

: Conduct and Competence Committee
: Conditions of Practice

Allegation

Allegations (as amended at Final Hearing):

During the course of your employment as an Occupational Therapist for Pennine Care
NHS Foundation Trust between September 2011 and 13 September 2015:

1. You behaved inappropriately towards Service User A in that:

a) On an unknown date, you said to her “next time I go away you can come with me and sleep in the same bed and/or room” or words to that effect;

b) On unknown dates, you hugged her;

c) On unknown dates, you kissed her;

2. You behaved inappropriately towards Service User B in that:

a) On unknown dates, you hugged her;

b) On unknown dates, you kissed her;

3. Your actions described in particulars 1 and 2 constitute misconduct;

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

 

Finding

Preliminary matters:

Amendment of the allegation

1.   The Panel first considered an application by the HCPC to amend the allegation. The proposed amendment was sent to the Registrant on the 19 May 2016. The reason for the amendment was to better reflect the evidence from the Registrant in relation to Particular 1(a).  The Registrant did not object to the amendment and the Panel concluded that it was in the interests of justice to allow the amendment. There was no prejudice to the Registrant in allowing the amendment. The Panel further noted that the Registrant had not raised any objection to the proposed amendment, despite having 13 months’ notice of the proposed application. The allegation set out above, is therefore the amended allegation. 

2.   The Panel has been provided with an exhibit bundle of documents which runs to 83 pages and 6 pages of representations from the Registrant. At the hearing, the Registrant also produced some further documentation, with compliments from service users and carers.  

Background:

3.   The Registrant (who is also known as “Greg”) was employed as a Band 6 Occupational Therapist, by Pennine Care NHS Foundation Trust between September 2011 and 13 September 2015. He worked in the Older People’s Community Mental Health Team. The Registrant’s role included completing duty and/or crisis visits, working with long term patients, completing occupational therapy assessments and taking sessions in the memory clinic. The Registrant worked with service users who were over the age of 65, along with the carers of service users.

4.   A safeguarding alert was raised, following a complaint which was made by the friend of Service User A, to Witness 1. The complaint referred to the Registrant kissing Service User A and making a comment regarding a holiday to the effect: “next time I go away you can come with me and sleep in the same bed/and or room.”  

5.   The Registrant was suspended whilst an investigation took place. Witness 2 was the Registrant’s line manager. She reviewed the Registrant’s caseload. As a result of this, she found a record on the file of Service User B, to the effect that Service User B had requested a female Occupational Therapist. Witness B thereafter investigated this issue further with Service User B, who explained that the reason for her request was that the Registrant had kissed her and made her feel uncomfortable. 

6.   The Registrant left the employment of Pennine Care NHS Foundation Trust in September 2015, having been offered work as a Band 2 Nursing Care Assistant, which he did not think was suitable. He worked thereafter for a few months in a residential home for disabled residents, but the home closed and he was made redundant. Thereafter, he went travelling with his wife from September 2016 until April 2017. He is not presently working, but expressed the desire to return to working as an Occupational Therapist in the future. 

      
7.   The Panel has heard oral evidence from:

(a) Witness 1: presently Social Worker, Community Mental Health Team, Older People.

(b) Witness 2: previously, Manager of Community Mental Health Team, Older People and the Registrant’s Line Manager,

(c) Witness 3: presently, Investigating Officer and Older Peoples Service Manager. 

8.   Witness 3 gave evidence that she had made no attempt to contact either of the service users who had raised complaints about the Registrant’s conduct. It was concluded that the service users had already been through enough trauma, and this was not necessary as the Registrant admitted the allegations in the course of the internal inquiry.

9.   The Panel was very conscious that when a witness has not given oral evidence, this is hearsay evidence. When considering hearsay evidence, which is admissible, the Panel has paid due regard to the weight which it can attach to it, bearing in mind that it has not been possible for that evidence to be challenged or probed. The Panel has, in respect of each allegation, sought to corroborate the allegation where possible through documentation and the oral evidence it has heard.

10. The Panel has heard and accepted the Legal Assessor’s advice and has exercised the principle of proportionality at all times. In approaching the task of deciding the facts, the Panel has kept at the forefront of its deliberations, the importance of requiring the HCPC to prove matters against the Registrant. The standard of proof to which the HCPC is required to prove matters is the civil standard – on the balance of probabilities.

Decision on Facts

Particular 1(a) Not Proved

Particular 1(b) and 1(c): Proved 

11. The evidence from Witness 1 was that Service User A had longstanding mental and physical health conditions. Witness 1 described attending at Service User A’s home on the 13 October 2014. He attended with the Registrant. The purpose of the visit was to assess Service User’s A domestic circumstances. She was living with a friend, and there was some suggestion that sheltered accommodation might be more suitable. There was no evidence at this meeting that Service User A was uncomfortable in the presence of the Registrant and Witness 1 did not observe any physical contact between Service User A and the Registrant.

12. A follow up visit was arranged for the 20 October 2014 by Witness 1 on his own. When Witness 1 attended, Service User A was not present, as she was in hospital. However, Service User A’s friend, during the course of the subsequent conversation, stated words to the effect of: “she was unsure if it was her place to tell me but she thought she ought to explain that   Mark Troy had made some comments to Service User A and had also kissed her.”  The conversation was cut short by someone else entering the room.

13. Witness 1’s view of Service User A was that she was well enough to participate in an interview, but that she could be easily manipulated. In oral evidence, he stated there was a history of exploitation and that Service User A might state what she thought the questioner would like to hear. 
14. Witness 1 also commented that Service User A’s friend had been hostile towards the Registrant at the initial meeting. It was alleged that the Registrant had not informed them of the financial assessment and potential bill that might have to be paid for respite care. Witness 1 clarified that it was not the Registrant’s responsibility to convey the outcome of the financial assessment to the service user - this would be the role of a social worker.  

15. Witness 1 stated, in his witness statement: “It did strike me as odd that Service User A’s friend chose to disclose it there whilst Service User A was not present and she was also not certain as she had heard it from another person.” 

16. When interviewed, as part of the internal inquiry by Witness 3, it is recorded that Witness 1 stated: “Person D said that another friend had told her that GT [the Registrant] had whispered to Service User A that he would share a bed with her the next time he went on holiday. This didn’t come directly from Service User A but from another friend…”  When cross-examined on this issue, Witness 1 stated that the information he had been provided with was “vague” and that he did not have an opportunity to investigate this any further. 

17. The safeguarding alert in the bundle, noted that the Registrant was alleged to have stated that” “the next time he went on holiday Service User A could come with him and that Service User A could sleep in his bed.” This was reported by Service User A to Person C, who in turn reported it to the Registrant’s carer, Person D. Service User  A is recorded has having reported directly to Person D that “Greg kissed me.”

18. Witness 1’s evidence was that it was not acceptable to hug service users. He added that he would try and have someone with him when he subsequently met Service User A, noting that she now had an independent advocate.

19. The Panel heard evidence from Witness 3. She gave evidence that it would never be appropriate to have physical contact with a service user. She regarded this as abuse and a breach of professional boundaries which could be viewed as an assault. She also noted there might be confusion on the part of service users, caused by such physical contact and or jokey comments, such as going on holiday, as to the nature of the relationship between the professional and the service user. There was a danger of sending mixed messages to the service users. Even though the Registrant may have acted without malice, Witness 3 still felt that the Registrant lacked appropriate professional boundaries. 

20. Witness 3 gave evidence that in advance of any physical contact, even when for example taking a blood sample, it is important to seek permission from the service user. The aim is to explain in advance which would allow service users to consent, providing they have capacity to do so. Invading someone’s personal space involves any contact which was closer than arm’s length. This was a safeguarding issue, with risks for both the service user and the professional.

21. This was a concept which would be taught in the Managing Violence and Aggression training, with de-escalation techniques, particularly when in a service user’s home. The Registrant would have received this training. Witness 2’s evidence was that the issue of professional boundaries and inappropriate physical contact was discussed in the team.

22. The Registrant acknowledged that he had undertaken the Violence and Aggression training. He admitted that he could see that there were relevant principles regarding personal space in the training, but saw the course more in the context of aggressive service users, and not directly relevant to his behaviour at the time. The Registrant also told the Panel he had undertaken internal safeguarding training every 2 years. The Registrant maintained that other teams had additional training, where there were more social workers involved. The Registrant’s evidence was that there had been no specific training regarding the transition between hospital based care and working in the community, but was keen not to use this as an excuse for his behaviour. 

23. When the Registrant was interviewed by Witness 3 during the internal investigation, he said that he had not said Service User A could stay in his bed, but stated that “he might have said she could stay in his room but not sleep in his bed.” 

24. Witness 3 was of the view that there was not much difference in gravity between the 2 comments.

25. The Registrant said that this comment was “banter” and explained that he had “banter with service users all the time”. The Registrant stated that Service User A laughed about the holiday comment at the time and had been given no indication that his comments had been misinterpreted. 

26. The Registrant’s position in oral evidence was that he did not make reference to “bed” in Particular 1(a) or to “room”. His account was that he had made some jokey remark about going on holiday, and said there may have been reference to “packing his bags.”

27. The Panel concluded on the balance of probabilities, having heard all the evidence that 1(a) had not been proved on the balance of probabilities. The Panel reached this decision for a number of reasons:

(a) The allegation was vague and relied on at best, second hand hearsay evidence. The Panel felt that they could place very little weight on an allegation which was conceded to be vague, had been denied in oral evidence, and which had not been investigated, for understandable reasons, in any detail with Service User A;

(b) The Panel found the Registrant to be a credible witness. He had admitted all of the other Particulars, but had been adamant that he had not made any comments about hotel rooms and / or beds;

(c) The Panel concluded that this finding was consistent with the lack of any sexual motive on the part of the Registrant. The Registrant’s comment had been to the effect that he would “pack his bags” but this was intended to be friendly, albeit misguided;

(d) The Panel was mindful of the admission made by the Registrant in his first interview, but concluded that this was not reliable. The Registrant had been unwell following his suspension, which the Panel accepted may have impaired his ability to pick up this error in the notes at the time.

28. When interviewed initially, the Registrant stated that he had hugged and kissed patients on the cheek, and had been doing so for 20 years - including both male and female patients.

29. The Registrant admitted that he had kissed Service User A and when he was told that he should not be hugging and kissing any service user as this was inappropriate, asked “why?” He stated that this was “just normal behaviour” but that he did not do it all the time. 

30. The Registrant denied kissing Service User A on the lips. He stated that Service User A had asked him for a hug, but accepted that he had initiated similar contact on previous occasions. Witness 3 stated in evidence that it was her perception, when being interviewed in his first investigatory interview, that the Registrant had no understanding that he had done anything wrong.

31. Towards the end of the first interview, the Registrant stated that “being asked about it now, it does seen inappropriate, but unintentionally so. My practice will be different from now on. It is amazing what you cannot see until someone points it out to you…” 

32. Witness 3 gave evidence that over time awareness had changed about vulnerable service users and what was appropriate. However, she maintained that both she and other professionals in the team were well aware of the appropriate professional boundaries, prior to the investigation, and expressed surprise at the Registrant’s admission that he had behaved this way over a prolonged period of 20 years, in the first investigatory interview.  

33. The Panel found that Particular 1(b) and (c) proved on the basis of the Registrant’s admission and the totality of the oral and documentary evidence available. 

Particular 2(a), 2(b): Proved 

34. The Panel found the allegation proved, the Registrant having admitted the same. In addition, there is clear evidence that the Registrant did on unknown dates, both hug and kiss Service User B. Service User B is a vulnerable elderly lady.

35. The Panel heard evidence from Witness 2 that she looked back through all of the Registrant’s cases and found a note dated the 22 September 2014, which was a record of a phone call between Service User B and a nurse. During the course of the telephone call, Service User B stated that she would like a female worker. At the time, the Registrant was the only male Occupational Therapist on the team.

36. Witness 2 wrote an Safeguarding email on the 6 November 2014: “Service User B says Mr Troy kissed her on the cheek; she felt uncomfortable about this and did not feel it was appropriate…”

37. Witness 2 describes Service User B as being “articulate, and clear, she was not confused in any way and showed a good level of insight. Service User B knew that Mark Troy’s behaviour had not been appropriate. Service User B did not have any cognitive impairment…”     

38. Witness 2 confirmed in her evidence that Service User B had told her that the Registrant had kissed her; the kiss having taken place when the Registrant had passed her by, when he was leaving. Service User B said “she had felt it was very odd…” She was taken aback by the Registrant’s actions and did not know what to do. She was uncomfortable about the Registrants next visit and avoided this by being out, and following advice, requested a female worker.

39. Witness 2 also described the Registrant as being a “helpful, warm and friendly worker who is always willing to help is very sensitive to patient needs as well as being a very kind person.”

40. The Registrant, when interview for a second time on the 25 November 2014, admitted that he had hugged Service User B and stated: “I may have given her a peck on the cheek.” He denied that his conduct was ever of a sexual nature. He accepted that he had not sought permission, before entering the personal body space of Service User B. He further accepted that his actions had been “unwise” but his intention had never been to upset anyone. He stated that he may have hugged Service User B but it was in front of her husband.

41. The Registrant said in interview: “I have never knowingly breached policy. I have never breached a boundary that I thought was just a friendly boundary. There have been times when patient have initiated that with me.” The Registrant also stated that it was about: “giving people reassurance and support. If I return to work then it will not happen again. You learn by your mistakes.” The Registrant concluded that he was “upset” at the thought of causing “distress to people who I was working hard to support and help. Unwittingly and unknowingly I have done that. I can’t add anything more”. 

42. In oral evidence, Witness 2 accepted that there had been a change in culture, since her previous experience working with the Registrant in a community hospital setting. There was more of a focus on staff in the hospital environment by service users who were lonely. In this context, there was more physical contact, particularly with service users who had dementia, who initiated hugs for example. Witness 2 said that in such circumstances you would try and avoid such physical contact, in the manner in which you positioned yourself, but you would not push them away. She thought however, that by 2014, in a community context, and in service users own homes, the position had evolved and become more clinical. She regarded the only acceptable physical contact was shaking hands, or a slight touch when, for example breaking bad news. She would fall back on the internal Code of Conduct.

43. Witness 3 stated that the Registrant’s behaviour was in contradiction of the Trust’s Standard of Behaviour Policy 2009. Staff had access to this document which was on the intranet. The policy in the bundle is dated 2015, but Witness 3 confirmed that the policy would have been similar in 2014.

44. At 15.2 it states: “Under no circumstances should staff form personal relationships with service users. They should not behave in any way…which would call into question their suitability or professional conduct. This includes friendships, social networking, and breach of sexual boundaries (which include acts, words or behaviours of a sexual nature).”

45. Witness 3 stated that the Registrant did not appear to understand that what he had done was wrong in the first interview. However, when giving evidence, she confirmed that the Registrant was very upset during the course of the second interview. She described the Registrant as feeling “mortified by his actions”. She further described him as being: “open and candid from the start”.

46. The Registrant’s position was that he admitted the allegation in full. In the course of giving evidence he stated that did not know why he had acted the way he did with Service User B, invading her personal space. He did not know her that well, and would now avoid initiating any personal contact with a service user.  

Decision on Grounds:

47. The Panel considered whether the Registrant’s actions amounted to misconduct, falling well below a reasonable professional standard for an occupational therapist, and what would be proper in the circumstances, and concluded that they did.

48. The Panel concluded that the Registrant was aware of, or should have been aware of, the inappropriate nature of his behaviour and the risk which this posed to service users. The Panel’s view was that despite the transition from a hospital to a community context, the Registrant should have been aware that working with vulnerable service users, in their own homes, that he risked causing distress and confusion regarding his intentions, affecting the well-being of service users.

49. The Panel accepted the submissions that the Registrant’s actions were misguided rather than malicious and that there was no sexual motive. The Panel accepts evidence that there was no formal training in professional boundaries, but concluded that the Registrant should still have been aware that his actions were inappropriate.

50. The Panel concluded that the Registrant had fallen well below a reasonable standard, or what would be considered proper in the circumstances, in respect of each of the proven particulars and that it amounted to conduct which would be regarded as highly inappropriate by fellow practitioners. 

51. The Panel concluded that the Registrant is in breach of the following Code of Practice for Occupational Therapists:

Standard 2: be able to practise within the legal and ethical boundaries of the profession; 

2.1. understand the need to act in the best interests of service users at all times;

2.3 understand the need to respect and uphold, the rights, dignity, values and autonomy of service users including their role in the diagnostic and therapeutic process and in maintaining health and wellbeing,  

2.8 be able to exercise a professional duty of care.
Standard 8: be able to communicate effectively

8.4 be able to select, move between and use appropriate forms of verbal and and non-verbal communication with service users, carers and others   

52. The Panel also concluded that the Registrant is in breach of the following Standards of Conduct, Performance and Ethics:

Standard 1: You must act in the best interests of service users and carers. 

Standard 7:  You must communicate properly and effectively with service users and other practitioner,
Standard 13: You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.

Decision on Impairment 

53. The Panel then had to consider whether the Registrant’s fitness to practise is currently impaired, in light of the HCPC practice note on impairment.

54. The Panel is mindful of the forward looking test for impairment. The question is whether the Registrant’s current fitness to practise is impaired, with a view to protecting service users and the public interest. 

55. The Panel, after reviewing all the evidence in this case, considering the submissions from the HCPC, and the advice from the Legal Assessor, has concluded that the Registrant’s current fitness to practise is currently impaired, after considering both the personal and public components. The Panel relied on the following matters:

(a) The Registrant has expressed considerable remorse for the upset and or distress that he had caused to the service users.

(b) The Panel accepts that there was no ulterior sexual motive in the Registrant’s actions, but that his conduct was inappropriate in terms of professional boundaries, crossing the line into misconduct. The service users were clearly vulnerable and there was the potential for both confusion and misinterpretation.  

(c) The Registrant told the Panel there would not be a repetition of such events. He accepts that his view of professional boundaries now was quite different. At the time, he felt that he was being friendly and supportive, open and approachable. He now recognises that he had not kept pace with the transition from how things had operated previously in the community hospital, and reflected on what was appropriate in a service user’s private home.

(d) The Registrant gave evidence that he would not initiate hugging or any other personal contact with service users. If this was initiated by a service user, he maintained that he would honesty state that he could not engage in personal contact, so as to not place himself in a similar position again. The Registrant accepted in cross-examination that he should, on reflection have been aware of appropriate professional boundaries, with regard to physical contact with service users, at the time the incidents took place. 

(e) The Registrant stated his intention was to return to practice as an Occupational Therapist if he could. He accepted that he had not kept up to date with developments in the profession since September 2015 or undertaken any CPD. He expressed some concern about initially returning to a similar Community Team role. He would look for close support from his supervisor and was willing to undergo any training requirement which was identified. He later confirmed that he would seek out training which would be helpful.

(f) The Panel’s overall conclusion, in relation to the personal component of impairment, was that although there was evidence of remorse and insight, the Registrant had not had an opportunity to remediate. He had not been able demonstrate his new insight on appropriate professional boundaries, whilst working as an Occupational Therapist on a day to day basis, interacting with service users in different contexts and environments. The Panel could therefore not be satisfied there would not be a repetition of his behavior and that service users would not be put at risk in the future.

(g) The Panel further considers that the failings identified above had a negative impact on service users. The actions of the Registrant have damaged public confidence in the profession of being an Occupational Therapist and brought the profession into disrepute.

(h) The Registrant’s cases involved vulnerable service users, and the Panel concluded that the Registrant had breached a fundamental tenet of the profession of being an Occupational Therapist. The Panel also had regard to the need to protect service users and to uphold the proper standards of behaviour, in concluding that the public component of impairment is clearly established.

Decision on Sanction

56. The Panel has heard submissions on sanction on behalf of the HCPC and from the Registrant. It has paid regard to the HCPC’s Indicative Sanctions Policy and has listened to the advice of the Legal Assessor.

57. The Panel has had regard to the aggravating and mitigating circumstances in this case.

58. The aggravating features are: the vulnerable nature of service users; the risk of emotional harm to service users; disruption to treatment; the fact that misconduct took place in the service user’s home environment; the misconduct was repeated in the case of Service User A, and finally, that the allegation related to 2 individual service users.

59. The mitigating features are: the clear evidence of remorse and insight on the part of the Registrant; the Panel concluded that the Registrant’s motives were to foster strong therapeutic and supportive professional relationships with service users. The Panel also took account of the full engagement of the Registrant in these proceedings.

60. It is clear that the Registrant was profoundly upset at the thought of causing distress to service users, and was adamant that there would not be a repeat of his past misconduct, should he return to practice as an Occupational Therapist in the future. The Registrant stated that he wanted the opportunity to rectify any damage to his professional life, the profession of Occupational Therapy and the HCPC. 

61. The Panel determined that given the serious nature of the Registrant’s misconduct, that to take no action, or to impose a caution order would not protect the public, would not be in the public interest, and would not retain public confidence in the regulatory process. The Panel further concluded that public confidence in the profession would be undermined by imposing no sanction or imposing a Caution Order.

62. The Panel next considered whether to make a Conditions of Practice order for a period of 1 year, and concluded that this was appropriate to protect the public and to retain confidence in the profession of Occupational Therapy.

63. Having arrived at an appropriate and necessary sanction, the Panel concluded that to impose the more restrictive sanction of a Suspension Order would be unnecessarily punitive and disproportionate.

64. The Panel took the view that the failings identified in these proceeding are potentially remediable in the future. The Panel concluded that the less restrictive sanction of a Conditions of Practice Order provided the appropriate level of public protection required. The Registrant is likely to comply with the conditions, which are adequate to provide the degree of protection identified as required for service users.  

 

Order

Order: That the Registrar is directed to annotate the HCPC Register to show that for a period of 12 months from the date this order comes into effect (the operative date) you, Mark G Troy, must comply with the following conditions of practice:

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

(a) Any organisation or person employing or contracting with you to undertake professional work;

(b) Any agency you are registered with or apply to be registered with (at the time of application);

(c) Any prospective employer (at the time of application).

2. You must place yourself and remain under the indirect supervision of a workplace supervisor registered by the HCPC or other appropriate statutory regulator and supply details of your supervisor to the HCPC within 14 days of commencing employment as an Occupational Therapist. Indirect supervision means that your work place supervisor need not be in attendance at home visits.

3. You must forward a report from your work place supervisor commenting on your adherence to the maintenance of appropriate professional boundaries at least 14 days to the HCPC before any review hearing.

4. At the earliest opportunity you must complete training on the maintenance of professional boundaries, the precise course to be advised by your workplace supervisor. Evidence of training undertaken should be submitted 14 days in advance of the subsequent review hearing.

5. You must not attend service users in their own homes without a chaperone being present until your workplace supervisor is satisfied that you fully understand the maintenance of appropriate professional boundaries.

6. You must allow your work place supervisor to provide information to the HCPC about your progress towards achieving the conditions set out in paragraphs 2-5.

 

Notes

The order imposed today will apply from 19 July 2017 (the operative date)

This order will be reviewed again before its expiry on 19 July 2018.

Hearing history

History of Hearings for Mr Mark G Troy

Date Panel Hearing type Outcomes / Status
08/06/2018 Conduct and Competence Committee Review Hearing Conditions of Practice
19/06/2017 Conduct and Competence Committee Final Hearing Conditions of Practice