Mr Markus Themessl-Huber

: Practitioner psychologist

: PYL27727

: Final Hearing

Date and Time of hearing:10:00 07/08/2017 End: 17:00 11/08/2017

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

: Conduct and Competence Committee
: Struck off

Allegation

Allegation (As amended at Final Hearing):

 
Whilst registered as a practicing psychologist and employed by NHS Tayside
1. You engaged in  a sexual relationship with Patient A in that you:
a. Had sexual intercourse with Patient A on one or more occasion between January and March 2016.
2. During your treatment of Patient A between November 2013 and December 2015 you breached professional boundaries in that you :
a. Allowed Patient A to touch you during treatment
b. On or around 12 December 2015 you had a telephone conversation of a sexual nature with Patient A;
c. On or around 18 December 2015 allowed Patient A to sit on your lap;
d. Exchanged emails with Patient A including emails of a sexual nature;
e. Exchanged gifts with Patient A.
3. On 24 December 2015 you discharged Patient A without exercising the appropriate level of clinical judgment.
4. On 24 December 2015 you kissed Patient A.
5. Completed and submitted time sheets which were inaccurate by not accounting for time spent out of the office on:
a. 29 December 2015
b. 7 January 
c. 11 January 
d. 12 January
e. 14  January 
f. 20 January 2016
6. Your actions as stated in paragraphs 1 - 4 were sexually motivated.
7. Your actions as stated in paragraph 5 were dishonest.
8. The matters set out in paragraphs 1 - 7 constitute misconduct.
9. By reason of your misconduct your fitness to practice is impaired.

 

Finding

Preliminary matters:

1. There were various preliminary and procedural matters that had to be dealt with by the Tribunal during the course of the hearing. On each occasion the Tribunal heard submissions from the representatives, received advice from the Legal Assessor and considered the appropriate Practice Notes.
 
Amendment of the Particulars of the Allegation
 

2. Ms Partos applied to amend the Particulars of the Allegation in respect of which notice had been given to the Registrant by letter dated 4 April 2017.  She stated that the reason for the application to amend was to better reflect the evidence and that there was no significant change to the case by way of the proposed amendments. She submitted that there was no prejudice to the Registrant by the application to amend as he had been given notice of it some four months earlier.  Ms Hewitt confirmed that the Registrant had no objection to the proposed amendments. 


3. The Tribunal asked itself whether, if the amendment was allowed, it would result in prejudice to the Registrant and whether he had been given a proper opportunity of preparing his defence to the Allegation as amended. The Tribunal decided to allow these amendments as it could not see any discernible prejudice to the Registrant given that significant notice of the intention to amend had been given; he had made no objections to them; none of the proposed amendments materially affected the nature of the Allegations; and that several of the proposed amendments sought to clarify the particular Allegation and were essentially grammatical. 


Proceeding in Private 


4. Ms Partos applied to proceed in private when hearing evidence from Patient A.  She indicated that as the allegations involved the treatment given to Patient A by the Registrant due to her psychological health issues, the whole of her evidence should be in private.  Ms Hewitt had no objection to the application. 


5. The Legal Assessor reminded the Tribunal that the Chair had already directed that Patient A be treated as a vulnerable witness and that she be allowed to give her evidence by video with the Registrant not being visible to her. He advised the Tribunal that it would be entitled to have her give the whole of her evidence in private if it considered that the quality of her evidence would be enhanced by such privacy. Otherwise, the Tribunal was referred to the Practice Note entitled “Conducting Hearings in Private”.  
 
6. The Tribunal reminded itself that proceedings should normally be held in public and noted Rule 10(1)(a) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules), which states:
At any hearing— 
(a) the proceedings shall be held in public unless the Committee is satisfied that, in the interests of justice or for the protection of the private life of the Registrant, the complainant, any person giving evidence or of any patient or client, the public should be excluded from all or part of the hearing
;” 
 
7. The Tribunal was mindful that, under Rule 10 (1) (a), it must be satisfied that it is in the interests of justice or for the protection of the private life of a Registrant or a witness before a decision can be made to exclude the public from any proceedings.  Moreover, its decision must be consistent with Article 6(1) of the European Convention on Human Rights (ECHR), which provides limited exceptions to the need for hearings to be held in public, namely that it is “in the interests of justice or for the protection of the private life of the health professional, the complainant, any person giving evidence or of any patient or client”. 

8. The Tribunal decided to grant the application so as to protect the private life of Patient A by holding the hearing in private when she gave her evidence.  It considered that, as she had already been assessed as a vulnerable witness, it was appropriate to ensure that the quality of her evidence be maintained by having her give the whole of her evidence in private.  

9. This application was made and acceded to at the commencement of the hearing whilst the Tribunal awaited the arrival of the Registrant from Austria, his flight that morning having been delayed.  Upon his arrival, Ms Hewitt requested, and was granted, further time to take instructions as she had not met him before then, at the conclusion of which she advised the Tribunal that the evidence of Patient A was now agreed by the Registrant and that she would not be asking any questions of her in cross-examination.  Ms Partos indicated that she had no supplementary questions of Patient A.  After a short deliberation, the Tribunal decided that it did not have any questions of Patient A, who was subsequently advised that her evidence had been agreed and that she was no longer required to give evidence in person.   

10. However, during the Registrant’s evidence, specific consideration had to be given to very intimate details of Patient A’s health and her private life which required the Tribunal to go briefly into private session.

Background:

11. The Registrant was employed by a psychological services as a Band 8A Clinical Psychologist. His primary role involved conducting assessments and providing evidence based treatment to adults with mild to moderate psychological disorders.

12. Patient A became the Registrant’s patient in November 2013.  This passage of treatment continued until July 2014, and was implemented as a consequence of her medical condition.  During this period of treatment (in which she was seen in 25 sessions by the Registrant) Patient A disclosed details of sexual abuse that had occurred 17 years earlier. 

13. Patient A was discharged in July 2014 but was given the option to consider further treatment if she thought it necessary.   

14. A second episode of treatment was duly requested by Patient A and ran between October 2014 and December 2015, during which the Registrant saw Patient A in 36 sessions.  Due to the nature of the service it was not normal for a patient to be seen this many times by a practitioner in the department.  Such patients would usually be transferred to another department for long term treatment. 

15. In March 2015 Patient A wrote a letter to the Registrant indicating that she had feelings for him.  The Registrant discussed this development with his line manager and clinical supervisor and it was decided that the Registrant would continue with the treatment, although the possibility of an alternative therapist or a break in therapy was also discussed.  

16. From about October 2015 the relationship between the Registrant and Patient A began to become more intimate.  E-mails between them indicate that, in late
October 2015, there were references to “steering off the beaten path”, to
opening up” and to boundaries being crossed, which the Registrant welcomed. 
They then started exchanging sexually suggestive e-mails from about November, continuing into December 2015.  In addition, instead of sitting opposite each other during therapy sessions they would sit next to each other on a couch.  In all, hundreds of e-mails were sent between them, which included sexually themed photographs and revelations about their sexual fantasies.

17. By 27 November 2015 they were having discussions about meeting outside of therapy and they then started corresponding on private email after that point.  They also had intimate telephone conversations, after one of which Patient A indicated that the Registrant had made her orgasm.  They also exchanged gifts, in the Registrant’s case giving books, chocolates, cheese, and a USB stick with mindfulness documents on it but also containing information about group sensual massages and stimulation.  Patient A gave the Registrant a notebook and a piece of homemade cut paper artwork.

18. Furthermore, the Registrant suggested that they met at a local restaurant on 3 December 2015, ostensibly to assist Patient A to become used to the idea of meeting men in “ordinary” circumstances.  On one occasion during a therapy session on 18 December 2015, Patient A sat on the Registrant’s lap.  They also began discussing Patient A’s discharge from therapy and the possibility of maintaining and developing a relationship thereafter.    

19. Patient A was ultimately discharged from the service by the Registrant on 24 December 2015.  They then went for a walk after the final session and formal discharge during which they kissed for the first time.  A sexual relationship then began during which they had intercourse or intimate sexual contact on about 8 or 9 occasions, such taking place in the Registrant’s matrimonial home, his hot tub, study and lounge and also his car-port.  Some of these encounters, as well as other meetings between them, took place during the Registrant’s working hours but were not reflected in his work time sheets submitted in relation to Flexi-Time.

20. In January and early February 2016 Patient A wrote a number of letters to the Samaritans in which she stated that: the telephone calls and e-mails prior to discharge had entered into sexual areas; they had exchanged hundreds of emails; the Registrant had said that the only way they could be with each other would be if she agreed to discharge from treatment. After he tried to pull back from the relationship because of his wife and children, she was left confused and heart broken and felt like she had nothing anymore; her flash backs to the sexual abuse had returned with a vengeance; and that by 30 January she was taking anti-depressants. 

21. The situation came to light when on 23 March 2016 Patient A took an overdose of medication.  The Registrant contacted her following her “irate” phone call the previous evening. She would not tell him where she was, but eventually to phone Mental Health Services. She then told him she was going to A&E. He met her at the hospital. She told him not to come in, but he saw into the hands of a community psychiatric nurse.  Thereafter, Patient A disclosed that she had been in a relationship with her psychologist. 

22. The Registrant self-referred to his employers on 24 March 2016, suggesting misconduct.  It is understood that, following these events, Patient A was kept as an in-patient under the care of the mental health services for a time.  Ms 1 was appointed as the investigating officer.  Following her report the Registrant’s employment with the service was terminated on 25 May 2016. 

Decision on Facts:

23. In considering this case the Tribunal bore in mind that the burden of proving the facts rests upon the HCPC and that the standard of proof is the civil standard of the balance of probabilities. It has taken account of all the evidence presented to it, namely the written and oral evidence of the witnesses, including the Registrant, listed below, together with the documentary evidence provided by the HCPC and by the Registrant.  It has also considered the detailed submissions of the representatives, and has accepted the advice of the Legal Assessor. 

24. The Tribunal particularly noted the Legal Assessor’s advice that, notwithstanding that the HCPC’s Procedure Rules do not have a specific provision which indicates that a Tribunal can find the allegations proved by simply relying upon the Registrant’s admissions of those allegations, there was likewise nothing in the Rules to prevent it from doing so if it was satisfied that the admissions were well-informed, not made for reasons of expediency or duress and had been made with the benefit of legal advice.  Consequently, the Tribunal noted that it would be entitled to treat those admissions as determinative of the factual allegations.  

25. The Tribunal heard from one witness on behalf of the HCPC, namely Ms 1, a Consultant Clinical Psychologist and Deputy Director of the Psychological Therapy Services with NHS Tayside.

26. In addition, the Tribunal considered the witness statement from Patient A, signed by her on 12 April 2017, and a large bundle of documents produced by the HCPC amounting to 1179 pages.

27. The Tribunal also heard from the Registrant.  In addition, it considered two bundles submitted by the Registrant, amounting respectively to 26 and to 107 pages. 

Assessment of witness credibility

28. The Tribunal found Ms 1 to be a reliable and honest witness.  She answered questions clearly and in a balanced way.  Her awareness in respect of some areas of detail was not complete, but she was quick to admit where this was the case.  Some of her evidence, such as in relation to managerial practice at the unit, was hearsay and the Tribunal has adopted a cautious approach in deciding how much weight can be placed upon it.

29. The Registrant gave full answers to the questions put to him.  In a number of areas he stated that his recollection was not complete and that he was deducing patterns of events or causations from the written evidence.  The Tribunal has borne this in mind when interpreting his evidence.  The Tribunal detected no intention on the Registrant’s part deliberately to mislead.

Particulars 1 to 5

Found proved by way of admission

30. The Tribunal accepts the Registrant’s admissions in respect of particulars 1 to 5 (inclusive), which are entirely consistent with the evidence, both live and documentary, before the Tribunal.

Particular 6

6. Your actions as stated in paragraphs 1-4 were sexually motivated.

31. The Tribunal notes the Legal Assessor’s advice in relation to the test that should be applied when assessing sexual motivation.  He stated that there are two considerations (1) Was the act overtly sexual or reasonably able to be perceived as such, and (2) Was the act carried out for the Registrant’s own sexual gratification or with the intention of pursuing a sexual encounter or relationship? 

32. The HCPC had the burden of raising a prima facie case on the first question, “Was the act overtly sexual or reasonably able to be perceived as such?”  If it did, then the burden of proof switched to the Registrant to explain what his motivation was.  If the Tribunal accepted his explanation then the allegation was unproved.  

33. In addition, sexual motivation was to be proved to the civil standard.  However, the Legal Assessor also referred to the case of Re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] 3 WLR 1: [2009] 1 AC 11. This case provided that, in general, the more serious the allegation, the more cogent would be the evidence for which the Tribunal will be looking.  In some cases it needed to look at the facts more critically or anxiously.  However this did not require a different standard of proof. Essentially, the Tribunal needed to subject the evidence relied upon by the HCPC to a critical, anxious and heightened scrutiny.

Particular 6, in respect of particulars 1, 2 (b), 2 (c), 2 (d) and 4 – found proved by way of admission

34. The Tribunal accepts the Registrant’s admissions in respect of the above particulars, which are entirely consistent with the evidence, both live and documentary, before the Tribunal.

Particular 6, in respect of particular 2 (a) – found proved

35. The Tribunal reminded itself of particular 2 (a), which read:  

2. During your treatment of Patient A between November 2013 and December  2015 you breached professional boundaries in that you
(a) Allowed Patient A to touch you during treatment.

36. The Tribunal noted that the HCPC alleged that the Registrant had been sexually motivated when allowing Patient A to touch him on his hands and when allowing her to give him a hug.  The HCPC indicated that there is an unwritten, but recognized, rule about touching patients and the potential adverse consequences of doing so, and that any touching therapy should be discussed and documented.  

37. The Registrant explained in his evidence that he did suggest touching as part of Patient A’s treatment.  Being touched by men, particularly on her lower back, was a strong trigger of traumatic responses.  The Registrant indicated that it was his professional opinion that planned, discussed and controlled non-sexual touching was indicated as part of an exposure treatment.  As there were no
“safe” male figures in her life other than the Registrant, he considered that an exception could be made to the usual practice.  Consequently, in or about
September 2015, he initially started with “imagined” touching, whereby Patient A tried to imagine a man touching her hand, but she found that she could not concentrate long enough to make much progress.  The Registrant therefore suggested that he place his hand near to hers on a table and that she gradually put her hand onto his hand.  The process took place entirely at her own speed and, as it progressed, involved her taking the Registrant’s other hand and placing it over her hand.  The Registrant also factored in him asking permission to remove his hand so as to emphasise that she was in complete control of the process.  The Registrant denied that he had any sexual motive behind this manoeuvre and maintained that it was therapeutically motivated.  Moreover, he denied receiving any sexual thrill from the touching of hands.  The Tribunal accepts the Registrant’s explanation; this process took place well before the relationship between the Registrant and Patient A became more intimate.

38. However, in relation to the hug from Patient A, the Tribunal comes to a different conclusion.  The Tribunal notes that the HCPC specifically referred to a hug given by Patient A to the Registrant on or about 15 December 2015, at the Registrant’s private treatment room, which was smaller and more intimate than the room he used to see Patient A for NHS treatment.  At around this time, Patient A had started to date a man she liked but when he had tried to kiss her, following a trip to a cinema, she had a seizure and fainted.  She was very embarrassed by this and wanted to end the relationship, but the Registrant suggested that she use him as a trusted male to mimic such an encounter.  The Registrant described how he stood in the room with his eyes closed. 
Patient A gradually came closer to him with instructions to only put her arm around him if she “felt OK”, followed by her other arm.  He said that she was again in control of the process, being the one who could tell the Registrant to open his eyes, hug her back or disengage.  This had been agreed in prior discussions between them.

39. The Tribunal appreciates that there were elements, as with the hand touching, of therapeutic planning and execution in this process, which might indicate a non-sexual motive.  However, the Tribunal notes that at this stage the relationship between them had become far more intimate, such as involving frequent e-mails of a sexual nature between them.  Moreover, the Registrant had admitted that he had already engaged in a telephone conversation of a highly sexual nature with Patient A on or around 12 December 2015.  In addition, during his evidence he admitted enjoying the experience.  Consequently, the Tribunal finds that there was a considerable and significant element of sexual motivation behind this incident.  Accordingly, on balance, the Tribunal finds that, in certain aspects of what the Registrant describes as exposure treatment by touch was sexually motivated and accordingly, it finds particular 6 as it relates to particular 2 (a) proved.

Particular 6, in respect of particular 2 (e) – found not proved

40. The Tribunal reminded itself of particular 2 (e), which read:  
2. During your treatment of Patient A between November 2013 and December 2015 you breached professional boundaries in that you    

(e) Exchanged gifts with Patient A.


41. The Tribunal notes that the HCPC allege, and the Registrant accepts, that he and Patient A did exchange gifts; the Registrant gave some coral, chocolates, cheese, books and a USB stick with mindfulness documents on it but also containing information about group sensual massages and stimulation.  Patient A responded by giving the Registrant a notebook and a piece of cut paper artwork in the shape of a house on whose doors were inscribed his daughters’ names.  

42. The Tribunal asked itself first of all whether the nature of the gifts was overtly sexual or reasonably able to be perceived as such.  It accepts that gifts can be exchanged between men and women without any sexual motivation being present.  However, all of the above mentioned gifts, with one exception, are not intrinsically sexual in nature.  The exception is the inclusion of the clearly sexual material on the USB stick.  The Tribunal notes that the Registrant was surprised at this being included when interviewed about it by Ms 1 and stating in evidence that he did not remember including it on the USB stick.  The Tribunal finds that the HCPC has not proved that there was a sexual motivation. 

43. However, even if the Tribunal was wrong on that, it was not in any event satisfied that there was a sexual motivation in the exchange of gifts between the Registrant and Patient A.  Whilst the Tribunal recognises that the USB stick given to Patient A contained material of a sexual nature and that, on the face of it, the Registrant’s inclusion of this material may have been sexually motivated, there is no evidence that Patient A’s gifts to the Registrant were sexually motivated.  Thus, there was no sexually motivated exchange and therefore this Particular, as drafted, cannot be made out.

Particular 6, in respect of particular 3 – found proved

44. The Tribunal reminded itself of particular 3, which read:  
On 24th December 2015 you discharged Patient A without exercising the appropriate level of clinical judgment.

45. The Tribunal notes that Ms 1 indicated that in her opinion Patient A was not discharged too soon by the Registrant but rather too late and that she ought to have been discharged much earlier.  This was because the service was not designed for long term treatment and that, in reality, treatment lasting beyond 12 sessions would be unusual.  The Tribunal also notes the Registrant’s evidence that he believed that the course of treatment that he had initiated (which he now accepted was utterly wrong and misguided) had been a success.  He stated that he had read in textbooks about the concept of the therapist being a fellow traveler and this had guided him in his treatment.  He saw the fact that Patient A reported considerable progress as meriting her discharge. 

46. The Registrant stated that he had felt conflicted because, whilst he believed that his interventions had caused Patient A’s improvement, he feared withdrawing from the relationship because of the potential for harming her.  He indicated that he went along with the idea of a continuing relationship to sustain her improvement but deep down did not actually want to commit to a posttherapy relationship.  The Registrant now realized that he should have suggested that she go to another therapist but, at the time, felt that he was too committed to drop out.  It was on that basis that the Registrant admitted that he did not exercise the appropriate level of clinical judgement in arranging her discharge.   

47. The Tribunal finds that the Registrant’s admitted discharge of Patient A without exercising the appropriate level of clinical judgement was sexually motivated. There is abundant evidence of a significant exchange of emails and telephone calls of a sexual nature in the period leading up to and immediately prior to the discharge on 24 December 2015.  Moreover, there was physical contact between them which contained sexual elements.  These exchanges were increasingly sexually charged and, in the Tribunal’s judgement, demonstrate a clear intention to consummate the relationship between Patient A and the Registrant after discharge. The Registrant admits that a sexual relationship, including sexual intercourse, followed after discharge. The Tribunal finds, on the balance of probabilities, that the discharge process was significantly influenced by this developing sexual relationship.  It may be that the Registrant had other therapeutic motivations but his sexual motivation was by then a significant factor.  The tribunal therefore finds particular 6 as it relates to particular 3 proved.

Particular 7 as it relates to particular 5 – found not proved 48.

The Tribunal reminded itself of particulars 7 and 5, which read:
7)   Your actions as stated in paragraph 5 were dishonest.
5) Completed and submitted time sheets which were inaccurate by not accounting for time spent out of the office on:
a. 29th December 2015
b. 7th January 2015 2016
c. 11th January 
d. 12th January
e. 14th January 
f. 20th January 2016

49. The Tribunal notes the Legal Assessor’s advice in relation to the test that should be applied when assessing dishonesty, as outlined in the case of Twinsectra v Yardley [2002] UKHL 12 which essentially repeated what the criminal case of Ghosh stated, namely that “dishonesty requires knowledge by [the registrant] that what [he] was doing would be regarded as dishonest by honest people, although [he] should not escape a finding of dishonesty because [he] sets [his] own standards of honesty and does not regard as dishonest what [he] knows would offend the normally accepted standards of honest conduct”.  That decision went on to say that the real issue is whether the conduct took place and whether it was known that it was false, or whether it was innocent or negligent. 

50. The allegation against the Registrant is that on the days he met Patient A outside his place of work he did not account for such time when he subsequently completed his Flexi - time sheets.  The Registrant indicated that he would regularly work more than (“way over”) the required hours (37.5)  Ms 1 corroborated this and confirmed that she did not believe that any psychologist in the service worked only those hours due to it being a very busy and timeconsuming job.  She also confirmed that the Registrant was regarded as a committed and dedicated member of the team and that she had no concerns about the standard of his clinical practice other than in respect of Patient A.

51. The Tribunal notes that under the Flexi-Time system, employees could carry forward of work done in excess of contractual hours.  They were not paid overtime but were entitled to take time off in lieu, the taking of which would also be recorded on the time sheets.  He confirmed that he did not take as much care as perhaps he should have done when filling in his time sheets as he regarded it as an administrative chore – Ms 1 confirmed that the Registrant has a reputation for lodging his time sheets late and having to be chased for them.  

52. The Registrant stated that he would have completed the time sheet for January 2016 in late February 2016 and might have forgotten some details.  Moreover, he indicated that it was a “frantic time” during which he was doing something completely out of character (having an affair with Patient A), he was “incredibly stressed” and that he was not acting rationally.  He also indicated that although he tried to compensate for what he believed was the time he spent out of the office, he had completely underestimated how often he had met her.   He never meant to cheat the system and indeed, did not have to.  He accepted that he was not careful enough and may well have made mistakes.  

53. The Tribunal accepts that the Registrant took a lackadaisical attitude to the completion of time sheets, but also found that he always worked more than the total hours that he claimed. The Tribunal finds that he had no motivation, therefore, to claim extra time as having been worked. 

54. The Tribunal considered whether or not the Registrant might falsify his time sheets in order to conceal his relationship with Patient A. Here, by the standards of reasonable and honest people, such actions would be regarded as dishonest. However, the Tribunal is not satisfied that this was the
Registrant’s motivation. Instead, the Tribunal finds that the Registrant’s poor attention to his responsibility to complete timesheets accurately drove any inaccuracies. 

55. Thus, the subjective test of the Registrant realising, by those same standards, that he was acting dishonestly is not met.  The Tribunal is satisfied that his actions were negligent, not dishonest.  Accordingly, Particular 7 is found not proved in relation to Particular 5 (a) to (f).

Decision on Grounds:

56. Having found the facts proved in this matter, the Tribunal went on to consider whether the facts found proved, individually or collectively, amounted to misconduct.  In relation to misconduct, the Tribunal noted the advice of the Legal Assessor who referred to the cases of Roylance v General Medical Council [2000] 1 A.C. 311, Cheatle v General Medical Council [2009] EWHC 645 (Admin), Nandi v. General Medical Council [2004] EWHC 2317 and R v. Nursing and Midwifery Council (ex parte Johnson and Maggs) (No 2) [2013] EWHC 2140 (Admin). The Tribunal noted that misconduct must be serious and amount to a registrant’s conduct falling far below the standards expected of a registered psychologist. 

57. The Tribunal noted the submissions of Ms Partos and Ms Hewitt, the latter confirming that the Registrant accepted without hesitation that the particulars found proved did amount to misconduct.  However, the Tribunal was aware that this was still a matter for its own individual judgment.

58. The Tribunal further noted Ms Partos’ submissions that a number of standards in both the HCPC’s Standards of conduct, performance and ethics, (both in respect of the 2012 and 2016 versions) and in the Standards of Proficiency for Psychologists, had potentially been breached.
59. The Tribunal finds that the Registrant is in breach of the following paragraphs of the HCPC Standards of proficiency: Practitioner Psychologist:
2 – ‘Be able to practise within the legal and ethical boundaries of their profession’ 
2.1 – ‘understand the need to act in the best interests of service users at all times’
2.7 – ‘be able to exercise a professional duty of care’
2.8 – ‘understand the complex ethical and legal issues of any form of dual relationship and the impact these may have on service users’
2.9 – ‘understand the power imbalance between practitioners and service users and how this can be managed appropriately’

2.10 – ‘be able to recognise appropriate boundaries and understand the dynamics of power relationships’
4.2 – ‘be able to make reasoned decisions to initiate, continue, modify or cease treatment, intervention or the use of techniques or procedures, and record the decisions and reasoning appropriately’

60. The Registrant is also in breach of the following paragraphs of the HCPC Standards of Conduct, Performance and Ethics:
August 2012 version:
1 – ‘You must act in the best interest of service users’.
3 – ‘You must keep high standards of personal conduct’.
6 – You must act within the limits of your knowledge, skills and experience and, if necessary, refer the matter to another practitioner.
10 – ‘You must keep accurate records’
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’ January 2016 Version:
1.1 – ‘ you must treat service users and carers as individuals, respecting their privacy and dignity’
1.3 – ‘You must encourage and help service users, where appropriate, to maintain their own health and well-being and support them so they can make
informed decisions. 
1.7 – ‘You must keep your relationships with service users and carers professional’
2.6 – ‘You must share relevant information, where appropriate with colleagues involved in the care, treatment or other services provided to a service user.
9.1 – ‘You must make sure that your conduct justifies the public’s trust and confidence in you
and your profession’
9.4 – ‘You must declare issues that might create conflict of interest and make sure they do not influence your judgement’
10.2 – ‘You must complete all records promptly and as soon as possible after providing care, treatment or other services’.

61. The Tribunal reminded itself that the Registrant engaged in a sexual relationship with Patient A; that during his treatment of Patient A he breached professional boundaries; that he discharged Patient A without exercising the appropriate level of clinical judgment, and that he kissed Patient A on the day of her discharge all of which actions were sexually motivated.  He also had completed and submitted time sheets which were inaccurate by not accounting for time spent out of the office.

62. The Tribunal finds that the Registrant’s actions in engaging in email and telephone exchanges of a sexual nature with Patient A, conducting a sexual relationship with her and carrying out other sexually motivated acts falls well  short of what would be proper in the circumstances.  The Tribunal therefore finds that he engaged in a pattern of inappropriate behaviours which, considered individually and collectively, represent a serious and detrimental variation from the standards expected of a Practitioner Psychologist. The Tribunal is in no doubt that fellow practitioners would find his actions to be deplorable.

63. The Tribunal therefore concludes that the proved Particulars 1, 2, 3 and 4 amount to Misconduct. 

64. In relation to Particular 5, namely the inaccurate timekeeping, the Tribunal does not consider this,  which it did not find to be dishonest, to be an example of the registrant falling so far short of the standards expected of a Practitioner Psychologist as to amount to misconduct. For the reasons given above in relation to Particular 7. The tribunal therefore finds that the facts proved in relation to particular 5 do not amount to misconduct.

Decision on Impairment:

65. In reaching its decision on impairment, the Tribunal took account of the submissions of the representatives, the documentary and oral evidence given during the hearing, and the advice of the Legal Assessor. It also took account of the HCPC Practice Notes “Finding that Fitness to Practise is “Impaired” and “Fitness to Practise – What does it Mean”.  

66. The Tribunal was aware that, in determining whether fitness to practise is impaired, it must take account of a range of issues which, in essence, comprise two components, namely the ‘personal’ component (the current competence and behaviour of the individual Registrant) and the ‘public’ component (the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession). The Panel was aware that not every finding of misconduct would result in a finding that fitness to practise is impaired.

67. The Tribunal noted Ms Hewitt’s submissions that the Registrant had demonstrated significant remorse and had reflected on his actions.  His referees had confirmed that he regularly discussed boundary issues and he had acknowledged the effect of his actions not just on Patient A and her family but also on the profession and on his wife and children, who had suffered from his actions. 

68. The Tribunal noted Patient A’s evidence that the events that had taken place have had an enormous impact on both her health and life as a whole. She once again could not stand to be around men which meant that sometimes she could barely leave her house. She had self-harmed and thought about suicide on most days and now was not allowed to be left alone with sharp objects. She also had to have her prescriptions regulated and collected weekly because she was not allowed access to them all at once. She had to have people with her at all times. She struggled with attachment and trust issues with people generally.

69. She felt responsible, ashamed and guilty for what had happened. She believed that the Registrant would “always want to keep me safe and that did not happen” she felt abandoned, having to deal with this alone, and this had been hurtful to cope with. She had given up most of her hobbies because they reminded her of the Registrant. Moreover, she could not drive on certain roads and had to avoid some shops or carparks, songs or television programmes because they reminded her of their times together.  In conclusion, the impact upon her and her family had been severe. Telling her family had been very difficult and her daughter struggled because she thought Patient A would, at some stage, have to return to hospital.

70. The Tribunal also notes Ms 1’s evidence that Patient A was still receiving treatment from an experienced and senior adult psychotherapist. Ms 1 hoped that longer term care would be provided for her. Ms 1 also indicated that the
Registrant’s actions had impacted on the Trust because 40 – 50 patients who were been treated by the Registrant had to be reassigned and would have to restart treatment with other clinicians. The service as a whole was therefore put under pressure. 

71. Finally, the Tribunal notes the Registrant’s evidence about what he had learned from this experience.  He stated he had learned: that he was “woefully unqualified” to do the work with Patient A on the second occasion; that his training in relation to how to deal with sexual trauma was “completely inadequate”; how easy it was to ignore the warning signs when it came to boundaries; that there was such a “sheer risk and propensity for harm” when ignoring boundaries since it was easy to be drawn into the momentum created, notwithstanding that he had wanted to protect Patient A; that now he would find a supervision team he could trust and discuss matters with them openly; that he was only qualified to deal with mild to moderate psychological matters; how vulnerable he was to such pressures and that undertaking private therapy (as he had done and would continue to do) was now an important part of his professional practice; and how much harm he had done not only to Patient A but to loved ones.  

72. He also indicated that he hoped to practise clinical psychology again if allowed as he loved the job.  He hoped that he could use the experience to help others – for instance, before this matter he had never been “really anxious or low” but now he had experienced such feelings he could understand patients better.  He just wanted to “make amends” and support people.  Further, he did not want to go into private practice.  He was happy to work for an organisation like the NHS as he now appreciated that rules and policies were there to protect both patients and employees. 

73. The Tribunal appreciates that the Registrant has not sought to minimise the effects of his actions and that he has accepted without demur Patient A’s evidence about the long-term effect of his actions upon her.  Indeed, he spared Patient A the ordeal of giving live evidence by agreeing her statement.  The Tribunal gives the Registrant due credit for that.   

74. The Tribunal reminds itself that it has found that the Registrant’s sexually motivated actions as set out above amounted to Misconduct. 

75. The Tribunal has concluded that the Registrant’s fitness to practise is impaired on both the personal and public component grounds.

76. The Registrant’s behaviour in engaging in a pattern of misconduct which led to a sexual relationship with Patient A, a vulnerable patient in his care, placed Patient A at a clear risk of harm.  Moreover, his actions brought his profession into disrepute and breached the fundamental tenets of his profession as represented by the HCPC Standards identified above. 

77. The Tribunal finds that, whilst his misconduct is capable of remediation in theory, it has not been fully remediated. There remains, therefore, a risk of repetition. The Registrant has displayed emerging insight in his statement, oral evidence and his reflective piece, but this is recent and falls short of full insight.  The Tribunal was not satisfied that the Registrant had displayed full understanding of how he had allowed the relationship with Patient A to develop. 

78. The Tribunal went on to consider the wider public interest in maintaining confidence in the profession and declaring and upholding proper standards of conduct and behaviour. The Registrant’s misconduct is serous and it is necessary to mark its unacceptability.

79. The Tribunal therefore finds that the Registrant’s fitness to practise is currently impaired on the grounds of public protection and the wider public interest.

Decision on Sanction:

80. In reaching its decision on sanction the Tribunal took account of each representative’s submissions, the Indicative Sanctions Policy (“ISP”) document and the advice of the Legal Assessor, which it accepted. The Tribunal was mindful that the purpose of sanctions is not to be punitive, although they may have that effect. It appreciated that the primary purpose of any sanction is to address public safety from the perspective of the risk which the registrant concerned may pose to those who use or need his services. It noted, however, that in reaching its decision, tribunals must also give appropriate weight to the wider public interest, which includes: the deterrent effect to other registrants; the reputation of the profession concerned; and public confidence in the regulatory process. In addition, the Tribunal noted that it must act proportionately, which requires it to strike a balance between the interests of the public and those of the Registrant. 
 
81. The Tribunal especially noted Ms Hewitt’s realistic submission,that the
Registrant recognised that, in the particular circumstances of this case, the Tribunal was likely to find itself considering which of the two most onerous sanctions, those of suspension and striking off, was most applicable. 
 
Mitigating and Aggravating factors
 
82. The Panel took account of the various mitigating factors namely:
 
• This matter involved a single patient in an otherwise unblemished career and service for 15 years up to this incident;   
• The Registrant’s honesty together with his admissions to most of the allegations;
• The Registrant’s realistic approach to the evidence (particularly by not requiring Patient A to give live evidence, which indicated a continuing desire to protect her);
• The fact that he started out with the very best of intentions towards Patient A, albeit that he allowed matters to become completely out of control by the end of December 2015, by which time he had lost sight of his responsibilities and had become “blinded”;
• His initial lack of predatory or sexual intentions;
• The Registrant’s genuine remorse;
• His reflection and developing insight;  
• His recognition of the harm caused, not only to Patient A, but also to his family, his colleagues and to his profession;
• The Registrant’s full engagement with not only these proceedings but also with the service’s investigation, which was initiated following his selfreferral;  
• His lack of self-justification for his actions and his recognition that they were, for example “disgusting” and “twisted”;  
• The numerous and supportive testimonials from his peers and work colleagues (both past and present).

83. However, the Panel also noted the following aggravating features and in particular:
 
• The significant vulnerability of Patient A, who had a background of sexual abuse which had left her with an inability to trust men;
• The damaging impact upon Patient A of the Registrant’s blending of therapeutic treatment with sexual language and actions, which caused her confusion; 
• The potential, actual and continuing harm caused to Patient A; 
• The very serious violation of professional boundaries which was inexcusable given the eventual sexual nature of the Registrant’s
relationship with Patient A;  
• The fact that the Registrant ignored numerous opportunities to break the long cycle of misconduct;
• The Registrant’s lack of full understanding of his actions, albeit that he is developing insight into his misconduct; 
   
Consideration of Sanction
 
84. Given the seriousness of the misconduct and the aggravating factors the Panel took the view that this was not a case that could be appropriately dealt with without a sanction.  The Panel therefore went on to consider the various sanctions, beginning with the least onerous.
 
85. The Panel first considered the sanction of mediation and concluded that it was not appropriate - the matter was too serious to be resolved in this way. 
 
86. The Panel next considered a Caution Order, which is deemed to be appropriate:
 
where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action. A caution order should also be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the registrant has shown insight, the conduct concerned is out of character, the risk of repetition is low and thus suspension from practice would be disproportionate. A caution order is unlikely to be appropriate in cases where the registrant lacks insight.” 
 
87. Once again, the Panel considered that the Particulars found proved were so serious that such a sanction would be insufficient to address the
Panel’s concerns in relation to the public interest grounds or to provide adequate protection to the public.  Moreover, such a sanction would be neither appropriate nor proportionate. 
 
88. The Panel then considered the next most onerous sanction, that of a Conditions of Practice Order, and noted that this is appropriate where a failure or deficiency is capable of being remedied and where the Panel is satisfied that allowing the Registrant to remain in, or return to, practice, while subject to conditions, minimises the risk of future harm to service users.  
 
89. The Panel gave consideration to making a Conditions of Practice Order. However, based on the information before it, the Panel felt unable to draft workable, appropriate, realistic or verifiable Conditions of Practice in the specific circumstances of the case that would not be restrictive as to amount to a suspension by another name.  Moreover, the Tribunal was not satisfied that a Conditions of Practice Order would adequately reflect the seriousness of the Registrant’s misconduct.  The Panel next considered imposing an order of Suspension.
 
The Panel noted the following paragraphs of the ISP:
 
39. Suspension should be considered where the Panel considers that a caution or conditions of practice would provide insufficient public protection or where the allegation is of a serious nature but unlikely to be repeated and, thus, striking off is not merited…
 
 41. 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. However, where there are no psychological or other difficulties preventing the registrant from understanding and seeking to remedy the failings then suspension may be appropriate… 
 
90. The Panel appreciated that a Suspension Order would provide the necessary level of public protection for its duration, but the Tribunal reminded itself of the nature of the Registrant’s misconduct, which involved a prolonged sexual relationship with an extremely vulnerable patient which has resulted in further and serious enduring harm to that patient.  The Registrant failed to take any of the several opportunities available to him to end the relationship before it had reached the stage of explicit sexual exchanges by email and phone, and its eventual consummation.

91. As such, the Tribunal finds that a Suspension Order would be neither proportionate nor appropriate in the circumstances of the case.  It would not be sufficient to maintain public confidence in the regulatory process or the profession.  

92. The Tribunal therefore considered the sanction of Striking Off.  It noted the following paragraphs of the ISP: 
47. Striking off is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust such as sexual abuse, dishonesty or persistent failure.
 
48. Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial.  A registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate.
 
49. Striking off may also be appropriate where the nature and gravity of the allegation are such that any lesser sanction would lack deterrent effect or undermine confidence in the profession concerned or the regulatory process. Where striking off is used to address these wider public protection issues, Panels should provide clear reasons for doing so. Those reasons must explain why striking off is appropriate and not merely repeat that it is being done to deter others or maintain public confidence.
 
93. The Tribunal finds that the Registrant’s behaviour is fundamentally incompatible with continued registration.  It takes account of the fact that the Registrant’s actions exacerbated Patient A’s long-standing mistrust of men and has caused her additional and significant harm.  It may well be that the Registrant initially meant no harm to Patient A but, as an experienced practitioner, he would have known that by allowing the escalation of their therapeutic relationship into a sexual one was not only a dangerous violation of boundaries but was also, given Patient A’s particular vulnerability, likely to cause her additional and enduring harm. 
Notwithstanding the Registrant’s remorse and developing insight into what he has done, the Tribunal concludes that the properly informed and fair minded person on the street would consider the Registrant’s misconduct to be most serious and any sanction less than a Striking Off Order would seriously undermine their confidence in the profession and in the regulatory process.  The Tribunal also considers it essential to send a clear message to the profession that behaviour such as that shown by the Registrant will not be tolerated.  

 

Order

The Registrar is directed to strike the name of Mr Markus Thermessl – Huber from the Register on the date this order comes into effect. 


 

Notes

The Panel imposed an Interim Suspension Order to cover the appeal period. 

Hearing history

History of Hearings for Mr Markus Themessl-Huber

Date Panel Hearing type Outcomes / Status
07/08/2017 Conduct and Competence Committee Final Hearing Struck off