Mr Adel Abdel Razeq

: Physiotherapist

: PH102944

Interim Order: Imposed on 10 Oct 2014

: Final Hearing

Date and Time of hearing:10:00 07/08/2017 End: 17:00 14/08/2017

: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Struck off

Allegation

Whilst registered as a Physiotherapist:

1. On 26 March 2014, during the course of treatment on Patient A you:

i. inserted one or two of your fingers into Patient A’s vagina;

ii. touched Patient A’s clitoris.

2. On 26 March 2014 you stated to Patient A:

i. "you drive me crazy" or words to that effect;

ii. "well, you enjoyed, because you were leaking" or words to that effect;

iii. "do you use sex toys?", or words to that effect.

3. You did not inform Patient A that the removal of her bra was unnecessary on:

i. 19 March 2014;

ii. 26 March 2014.

4. Your actions as set out in paragraphs 1 - 3 above were sexually motivated.

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

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

Finding

Preliminary Matters

Service

1. On 28 March 2017, the HCPC sent notice of this hearing by first class post to the Registrant’s registered address. A copy of the notice was also sent on the same date 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 given proper notice of this hearing in accordance with the Rules.

Proceeding in absence of the Registrant

3. Ms Chaker, Counsel instructed 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 should only be exercised with the utmost care and caution.

4. The Panel had regard to the communications between the Registrant and the HCPC.

5. On 9 February 2017, the Registrant returned the Pre-Hearing Information Form to the HCPC, advising that he would be attending the hearing, no witnesses would be called and he would be represented. On 13 February 2017, the HCPC received an email from the Registrant providing details of his solicitor. On 11 April 2017, the Registrant sent an email to the HCPC stating that he would no longer be represented by a solicitor.

6. On 13 July 2017, a telephone call was made to the Registrant. The telephone note records that the Registrant confirmed that he would not be represented, but was undecided as to whether or not he would attend the hearing.

7. On 27 July 2017 the HCPC sent the Registrant a letter and an email following up on the phone call of 13 July 2017, seeking confirmation as to whether or not the Registrant would be attending the hearing. No response to those communications has been received.

8. Over 3 and 4 August 2017 the HCPC attempted to contact the Registrant by telephone on 5 occasions to inquire about his attendance at the hearing. These attempts were unsuccessful. No communications have been received from the Registrant since 13 July 2017. The Registrant has not applied for an adjournment of this Substantive Hearing, nor has he submitted any representations.

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

10. The allegation dates back to 2014, when the Registrant worked as a locum Physiotherapist. The Panel was aware that there are two witnesses available to give evidence today (7 August 2017), one of whom is the complainant, Patient A, the other of whom is an expert witness.

11. In light of the above, the Panel was satisfied that the Registrant was aware of the time, date and venue for this Substantive Hearing. The Panel concluded that the Registrant had voluntarily waived his right to attend and there was no evidence that he would attend an adjourned hearing. The Panel also considered that it was in the public interest for the hearing to take place.

Admissibility of Evidence

12. Ms Chaker applied for the transcript of the Registrant’s first police interview under caution, which had been inadvertently omitted from the exhibits bundle, to be admitted in evidence. She submitted that she made the application on the basis of completeness, in fairness to the Registrant, so as to provide his full account. She explained that she was not seeking to adduce it as any additional support for the HCPC case, and insofar as there were apparent admissions to particular 3, she would not be relying on it for that purpose. She submitted that the overall flavour of the interview was not prejudicial to the Registrant, and he made no significant concessions within it.

13. In order to reach a decision on the application, the Panel read the contents of the interview transcript. The Panel heard and accepted the advice of the Legal Assessor.

14. The Panel determined not to allow the transcript of the Registrant’s first interview to be adduced into evidence. The Panel was concerned that, even if it were to disregard the apparent admissions of particular 3, the contents of the interview were overall detrimental to the Registrant. The Panel was of the view that there were a number of apparent inconsistencies within the interview which were adverse to the Registrant, and so it would not be fair, at this late stage and in his absence, to allow that interview into evidence. In reaching this conclusion, the Panel took into account that it had been provided with copies of the second police interview, in which the Registrant had denied the allegations made by Patient A, and these denials had been put to Patient A. The Panel was satisfied that, as a professional panel, it was able to put the contents of the interview out of its mind during its consideration of the evidence.

Background

15. The Registrant is a Physiotherapist registered with the HCPC. In 2014 he was working as a locum Physiotherapist at Holbeach and East Elloe Hospital (the Hospital) in Lincolnshire.

16. On 3 March 2014, Patient A was referred, following an MRI scan for physiotherapy treatment.

17. On Wednesday 19 March 2014, Patient A attended her first physiotherapy session which was with the Registrant. Following this appointment, a subsequent appointment was made the following week.

18. On Wednesday 26 March 2014, Patient A attended her second physiotherapy appointment with the Registrant.

19. During both sessions, it is alleged that when Patient A removed all of her clothing apart from her knickers, the Registrant did not inform her that she could keep her bra on.

20. During the second session on 26 March 2014, it is alleged that during the course of treatment, the Registrant:

• Inserted one or two of his fingers into Patient A’s vagina;
• Touched Patient A’s clitoris;
• Used words to the effect of ‘you drive me crazy’, well you enjoyed because you were leaking’ and ‘do you use sex toys’.

21. Shortly after the appointment on 26 March 2014, Patient A went to her friend to tell her what had allegedly happened. The police were called and she made her complaint that day. The Registrant was arrested the following day on suspicion of committing sexual offences against Patient A. He was interviewed under police caution and gave a full comment interview, in which he denied the allegations against him.

22. In June 2015, the Registrant stood trial at Lincoln Crown Court on an Indictment consisting of two counts, namely (1) assault by penetration of Patient A, contrary to section 2 of the Sexual Offences Act 2003, and (2) sexual assault of Patient A, contrary to section 3 of the Sexual Offences Act 2003. Ultimately the Registrant was acquitted of both counts. The subject matter of that trial is the subject matter of these regulatory proceedings.

Decision on Facts

23. The Panel heard evidence from Patient A, the complainant, and ZS, Chartered Physiotherapist instructed as an expert witness. It also had regard to the bundle of documentary exhibits provided to it. Within the bundle of exhibits was a transcript of the Registrant’s second police interview under caution.

24. The Panel found Patient A to be a credible witness. It found her evidence to be coherent and clear, and was consistent with her ‘achieving best evidence’ (ABE) interview with police, in her HCPC witness statement, and in her oral evidence to the Panel at this Substantive Hearing. The Panel considered that she had answered its questions candidly and had not attempted to exaggerate her evidence, but rather she had attempted to assist the Panel as best as she was able to recall, given the passage of time, since the incidents. For example, when she described the first physiotherapy appointment with the Registrant, she had not, in the Panel’s view, sought to embellish her evidence, saying that she had no concerns with the Registrant’s approach, albeit she had been personally embarrassed at her level of undress. The Panel was of the view that it could accept her evidence.

25. The Panel found ZS to be a credible witness. It was satisfied that her level of qualifications and experience, as set out in her police statement dated 13 October 2014, meant that she was able to provide reliable opinion evidence regarding the expected standards for the assessment and treatment of a patient presenting with the signs and symptoms as reported by Patient A, and compare it to the actual assessment and treatment provided by the Registrant.

26. The Registrant did not attend the hearing, and the Panel did not draw any adverse inferences against him from his absence, at the fact finding stage.

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

28. The Panel considered each particular and sub-particular separately. Where the Panel found a primary fact proved, it then went on to consider whether or not the circumstances surrounding that primary fact were such that the Registrant’s motivation for the primary fact had been sexual.

Particular 1(i)
On 26 March 2014, during the course of treatment on Patient A you:
i. inserted one or two of your fingers into Patient A’s vagina

29. The Panel finds particular 1(i) proved.

30. Patient A had been referred for physiotherapy treatment to Holbeach Hospital, following an MRI scan, and the Registrant was the Physiotherapist who had been allocated Patient A to provide the physiotherapy treatment. Patient A’s first appointment for Physiotherapy with the Registrant was on 19 March 2014, following which a second appointment was made for 26 March 2014, which Patient A attended. The Panel was satisfied that the appointment on 26 March 2014 was for treatment.

31. The evidence of Patient A was, that during the course of the session, the Registrant had pressed down on her pubic bone, asking her if she could feel it. She said he then moved down her vaginal lips and put his fingers inside her. In her oral evidence she described that she had been watching him and saw him put a finger inside her, and then had turned away, embarrassed. She then felt him put in a second finger.

32. Given that the Panel found Patient A to be a credible witness and that it could accept her evidence, the Panel was satisfied to the required standard that the Registrant had inserted first one and then a second of his fingers into Patient A’s vagina.

Particular 1(ii)
On 26 March 2014, during the course of treatment on Patient A you:
ii. touched Patient A’s clitoris.

33. The Panel finds particular 1(ii) proved.

34. Patient A’s evidence was that during the same session, the Registrant moved across from her pubic bone to her clitoris and started to manipulate her clitoris, asking her if she could feel it.

35. The Panel accepted Patient A’s evidence, and was, therefore, satisfied to the required standard that the Registrant had touched her clitoris.

Particular 2
On 26 March 2014, you stated to Patient A:
i. “you drive me crazy” or words to that effect;
ii. “well, you enjoyed, because you were leaking” or words to that effect;

36. The Panel finds particulars 2(i) and 2(ii) proved.

37. Patient A’s evidence was that after the Registrant had inserted his fingers into her vagina, she realised that what the Registrant was doing to her was not right. He was moving his fingers in and out until she said ‘enough’. She said she pushed his wrist away, saying ‘enough’. The Registrant then removed his fingers and said something along the lines of: ‘You enjoy? Because you were leaking’. Patient A said the Registrant then told her that she drove him crazy.

38. The Panel accepted Patient A’s evidence on this, and was, therefore, satisfied to the required standard that the Registrant had said words to the effect of both ‘You enjoy? Because you were leaking’ and that she drove him crazy.

iii. “do you use sex toys?”, or words to that effect.

39. The Panel finds particular 2(iii) proved.

40. Patient A’s evidence was that during the course of the session, the Registrant began discussing her hip and when she was experiencing pain in that area. She said he asked her if she used a sex device. This was before he had touched her clitoris or inserted his fingers into her vagina. As Patient A had not been sure what the Registrant meant, she clarified the question by asking him if he was referring to condoms. She said that the Registrant’s response was ‘no, not condoms, do you use sex toys?’ She said that she was embarrassed by this question. She responded no, following which the Registrant proceeded to use an ultrasound machine on the front of her hip.

41. The Panel accepted Patient A’s evidence on this, and was, therefore, satisfied to the required standard that the Registrant had asked Patient A: ‘do you use sex toys?’.

Particular 3
You did not inform Patient A that the removal of her bra was unnecessary on:
i. 19 March 2014;

42. The Panel finds particular 3(i) proved.

43. Patient A’s evidence was that she had never had any physiotherapy before her first session on 19 March 2014. When she arrived for the first session on 19 March 2014, the Registrant had told her to get undressed. She said she had asked if she needed to take everything off and he had said she could leave her knickers on, so she had undressed down to her knickers, removing her bra. She said that at no point did the Registrant say to her that she did not need to remove her bra.

44. ZS told the Panel that in her opinion, there was nothing in the physiotherapy treatment on 19 March 2016, which would have required the removal of Patient A’s bra.

45. The Panel accepted the evidence of both Patient A and ZS on this. The Panel was satisfied that there had been no misunderstanding on the part of Patient A about removing her bra, as she had clarified the extent of undress with the Registrant. It was therefore satisfied that the removal of Patient A’s bra was in fact unnecessary on19 March 2014, and that the Registrant had not informed Patient A that the removal of her bra was unnecessary.

ii. 26 March 2014.

46. The Panel finds particular 3(ii) proved.

47. Patient A’s evidence was that at the second session of physiotherapy on 26 March 2014, upon arriving, the Registrant had said something along the lines of ‘same as usual’. Patient A said she had asked if he meant clothing, and the Registrant had said something like ‘yes the same as usual, undress and get on the bed’. Patient A said she therefore took off all of her clothes apart from her knickers. She said that at no point did the Registrant say to her that she did not need to remove her bra.

48. ZS told the Panel that in her opinion, there was nothing in the physiotherapy treatment on 26 March 2014, which would have required the removal of Patient A’s bra.

49. The Panel accepted the evidence of both Patient A and ZS on this, and was therefore satisfied that the removal of Patient A’s bra was in fact unnecessary, on 26 March 2014, and that the Registrant had not informed Patient A that the removal of her bra was unnecessary.

Particular 4
Your actions as set out in paragraphs 1 – 3 above were sexually motivated.

50. In relation to particular 4, the Panel separately considered whether or not each primary fact found proved was sexually motivated, either because of the nature of the incident itself, or in relation to the context and circumstances in which it occurred.

51. In relation to 1(i) and 1(ii), the Panel was satisfied that the Registrant’s actions in inserting two fingers into the vagina of Patient A, and touching her clitoris were sexually motivated. In the Panel’s view, these are intimate parts of a female’s body, and touching them in the manner described by Patient A, was by its nature, inherently sexual. There was no clinical justification for the Registrant’s actions.

52. In relation to 2(i) and 2(ii), the Panel was satisfied that the Registrant’s use of these words, was, because of the circumstances, sexually motivated. The circumstances were that the Registrant had carried out a sexual act on Patient A, which she had stopped by pushing his wrist away and saying ‘enough’. The Registrant’s response had been to say words to the effect that she had enjoyed it as she was ‘leaking’ and that she drove him crazy. The Panel was satisfied that these words were used by the Registrant in a sexual context, to describe a level of arousal on both her part and on his part.

53. In relation to 2(iii), the Panel was satisfied that that the Registrant’s use of these words, was, because of the circumstances, sexually motivated. The circumstances were that Patient A was in a state of undress, down to her knickers and there was no clinical justification in respect of the treatment, for finding out whether or not she used sex toys. The Panel was satisfied that there had been no misunderstanding on the part of Patient A that the Registrant was inquiring about sexual protection, for example, a copper coil, which might have contra-indications in using the ultrasound, rather than sex toys, because Patient A had asked whether the Registrant meant condoms in clarification.

54. In relation to 3(i), the Panel was satisfied that the Registrant’s omission in not informing Patient A that it was unnecessary to remove her bra on 19 March 2014, was, because of the circumstances, sexually motivated. The Panel was satisfied that the Registrant had told Patient A to get undressed, and had confirmed that she could leave her knickers on when Patient A clarified the extent of undress with him. ZS had given her opinion that no part of the treatment would have required removal of the bra. She also said that it was a basic aspect of the profession to maintain the dignity of a patient, which was emphasised categorically throughout a Physiotherapist’s training. In light of this, disregard of a fundamental aspect of professional behaviour, the Panel concluded that the Registrant’s actions were sexually motivated.

55. In relation to 3(ii), the Panel was satisfied that the Registrant’s omission in not informing Patient A that it was unnecessary to remove her bra on 26 March 2014, was, because of the circumstances, sexually motivated. This was the second session, and the Registrant told Patient A to undress the same as usual, which led Patient A to undress down to her knickers.

Misconduct and Impairment

56. 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.

57. The Panel considered the submissions made by Ms Chaker on behalf of the HCPC. She submitted that the Registrant’s behaviour amounted to the most serious type of misconduct, in that the Registrant had been in a position of trust and had breached a fundamental tenet of the profession. She submitted that the Registrant's fitness to practise is currently impaired by reason of that misconduct.

58. 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, i.e. looking forward from today.

Decision on Statutory Ground

59. 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 touching a patient wholly inappropriately with sexual motivation.

60. It was clear to the Panel that such behaviour would be viewed as deplorable by other members of the Physiotherapy profession. In the Panel’s view the Registrant’s behaviour was extremely serious and involved a very significant breach of trust.

61. In the Panel’s judgement the Registrant’s conduct was serious, sexually motivated and, therefore, amounted to misconduct.

Decision on Impairment

62. 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’.

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

64. The Panel considered whether misconduct of this seriousness was remediable. Whilst it concluded that such behaviour could potentially be remediable, it would be very difficult to remedy, given that the misconduct was not clinical, but attitudinal. In any event, there was no evidence before the Panel of any reflection, remorse, or insight on the part of the Registrant, particularly in relation to the impact of his misconduct on Patient A, his colleagues or the profession as a whole.

65. In light of this, the Panel could not be confident that such misconduct would not recur. It therefore concluded that in respect of the personal component, the Registrant’s fitness to practise is currently impaired.

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

67. 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, he had brought the profession into disrepute. Patient A had no experience of physiotherapy treatment, and the Registrant had taken advantage of his position of trust. In her evidence, she had described the impact of the situation on her. She said that she had lost confidence, which she had started to get back last year, but giving evidence had brought it all back. She had lost confidence in the NHS and had not been able to seek any further physiotherapy from a different Physiotherapist because she did not want the same thing to happen again.

68. In the Panel’s view, the public would expect the regulator to take action in order to mark the profound unacceptability of the Registrant’s conduct in treating a patient. 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.

69. Accordingly, in respect of the ‘public component’ the Panel concluded that the Registrant’s fitness to practise is currently impaired.

Decision on Sanction

70. Having concluded that the Registrant’s current fitness to practise is impaired, the Panel went on to consider if a sanction is necessary and, if so, what would be the proportionate and sufficient sanction.

71. The Panel accepted the advice of the Legal Assessor. It had regard to the latest copy of the Indicative Sanctions Policy (ISP), dated 22 March 2017, 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 the public and to safeguard the wider public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.

72. The Panel considered that there were no mitigating factors in this case.

73. The Panel considered that the following were aggravating factors:

• the misconduct was sexually motivated;
• there was a very significant element of breach of Trust on the part of Registrant;
• the Registrant’s actions had a significant impact on Patient A;
• there was a risk of recurrence;
• the Registrant has shown no insight into the effects such behaviour would have on Patient A, the public and the profession.

74. The Panel does not consider the options of taking no further action or mediation to be either appropriate or proportionate in the circumstances of this case. Neither would address the identified risks, including the risk of recurrence, nor address the wider public interest as the case is too serious.

75. The Panel does not consider that a Caution Order meets the criteria as set out in paragraph 28 of the ISP, namely that ‘the lapse is isolated in nature, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action’. As previously found, there was no evidence before the Panel to demonstrate any reflection, remorse or insight into his behaviour, which led the Panel to conclude that there was a risk of recurrence. The public interest aspect of this case was also too serious for a Caution Order.

76. The Panel next considered a Conditions of Practice Order. The Panel took account of paragraph 34 of the ISP, which indicates that ‘…a panel will need to consider carefully whether the Registrant can be trusted to comply with [conditions]. Where an allegation relates to…breach of trust or abuse, conditions of practice are unlikely to be appropriate unless the panel is satisfied that the registrant’s conduct was minor, out of character, capable of remediation and unlikely to be repeated.’ In this regard, the Panel could not be satisfied that the Registrant could be trusted to comply with any conditions, given that it had no information about the Registrant’s current position in order to make that assessment. Equally, for the reasons earlier given, the Panel was of the view that the misconduct could not be considered minor, rather it was very serious, being both sexually motivated and a breach of the trust in the Physiotherapist/patient relationship, and in the absence of any evidence of reflection, remorse or insight, there is a risk of recurrence.

77. In the Panel’s view, this type of misconduct demonstrated attitudinal issues on the part of the Registrant. As such, the Panel concluded that it would not be possible to formulate appropriate or workable conditions to address this misconduct, which would be sufficient to protect the public. In any event, the misconduct was too serious for a Conditions of Practice Order as such an Order would not maintain public confidence in the profession.

78. The Panel next considered a Suspension Order. The Panel had regard to paragraph 39 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, for the reasons previously given, the Panel had not concluded that the misconduct was ‘unlikely to be repeated’.

79. The Panel also had regard to paragraph 41 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’. The Panel has already identified that the Registrant’s misconduct would be difficult to remedy, given the attitudinal nature of it, and that there is no evidence before it to suggest that the Registrant would be capable of remedying his behaviour. The Panel therefore considered that a Suspension Order was not the appropriate and proportionate response.

80. 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 had regard to paragraph 47 of the ISP, which states: ‘Striking off is a sanction of last resort for serious, deliberate…acts involving abuse of trust such as sexual abuse …’. In the Panel’s view this was such a case, it involved a female patient who had been subjected to sexually motivated behaviour, during the course of treatment, by the Registrant. The psychological impact on Patient A had been significant and it had also left her feeling unable to access physiotherapy treatment, for fear of being subjected to similar behaviour.

81. The Panel also had regard to paragraph 49 which states: ‘Striking off may also be appropriate where the nature and gravity of the allegation are such that … any lesser sanction would … undermine public confidence in the profession concerned or the regulatory process.’ In this respect, the Panel  was of the view that the public would be horrified to hear of a case where a Physiotherapist had  breached the trust of a patient seeking treatment, by touching that patient wholly inappropriately and in a sexual manner. The Panel did not consider that any lesser sanction than a Striking Off Order could be imposed without undermining public confidence in the profession or the HCPC as its regulator.

82. For all these reasons, including the risk of recurrence; absence of any evidence of reflection, remorse or insight, the Panel concluded that there was no other way both to protect the public and to address the wider public interest, than to impose a Striking-Off Order. The Panel therefore determined that a Striking Off Order was the only appropriate and proportionate sanction.

83. Although the Panel had no information as to the Registrant’s current situation, it acknowledged that such an Order would be likely to have a serious impact upon him as he will be unable to practise as a Physiotherapist. However, the Panel determined that the interests of protecting the public and upholding confidence in the profession outweighed the interests of the Registrant.

Order

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

Notes

The order imposed today will apply from 6 September 2017 (the operative date).

Hearing history

History of Hearings for Mr Adel Abdel Razeq

Date Panel Hearing type Outcomes / Status
07/08/2017 Conduct and Competence Committee Final Hearing Struck off
11/07/2017 Conduct and Competence Committee Interim Order Review Interim Suspension
15/06/2016 Conduct and Competence Committee Interim Order Application Hearing has not yet been held