Mr Tombe Lumonamo

: Chiropodist / podiatrist

: CH32512

: Review Hearing

Date and Time of hearing:10:00 18/08/2017 End: 12:00 18/08/2017

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

: Conduct and Competence Committee
: Conditions of Practice

Allegation

Whilst registered as a Podiatrist on 10 May 2014, you:

 

1. Gave Person A a foot massage and you:

a) Asked Person A to remove her trousers when there was no clinical reason for doing so.

b) Stated that Person A was a 'gorgeous girl', or words to that effect.

c) Stated that you wanted to be 'special friends' or words to that effect.

d) Hugged Person A.

 

2. The actions described in paragraphs 1 were sexually motivated.

 

3. The matters described in paragraphs 1-2 constitute misconduct.

 

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

Finding

Background

1. The Registrant is a registered Podiatrist and has been qualified since 2011. At the time of the allegation he was working at the Norton Physiotherapy Practice (‘the Practice’).

2. Person A was employed as a receptionist at the Practice. Her role involved general business administration and she had been employed there for approximately five years. The Registrant rented a room on a Saturday at the Practice for approximately two years. He worked there on a self-employed basis. Person A stated that prior to 10 May 2014, the Registrant had a good working relationship with her but he, from time to time had been over familiar, making comments such as ‘you look beautiful/nice’ and inviting her to meet his family.

3. On 10 May 2014 the Registrant asked on three or four occasions throughout the day if he could give Person A a foot massage. His reasoning was that it was a thank you for filling up his clinic list for that day. Person A stated it got to the point where she felt she could not say no to the foot massage, and went into a treatment room with the Registrant at the end of the working day. He asked her to lay back on the treatment couch. He massaged her feet and stated that he needed to massage her legs as well and asked her to roll up her jeans. He then asked her to take her jeans off, calling her a gorgeous girl and saying he wanted them to be special friends. Person A got up to leave and the Registrant hugged her.

4. Person A left the building. She stated that she was extremely distressed by what had occurred and burst into tears once she was in her car. Later on that day she reported the matter to a physiotherapist at the Practice. The Registrant was subsequently asked not to work at the Practice any longer and a referral was made to the HCPC.

5. The HCPC final hearing took place on 18-20 July 2016 and 24 August 2016. The Registrant denied all of the particulars of the Allegation but they were found proved in their entirety and at the conclusion of the hearing the panel imposed a 12 month Suspension Order. The final hearing panel suggested that the reviewing panel may be assisted by the following:

(i) up-to-date testimonials and references from any employers commenting upon his professional relationships with female colleagues and/or members of the public.

(ii) evidence of the successful attendance and completion of face to face courses delivered by established training providers which provide training (and potentially examination) on:

• professional boundaries at work, and

• equality and diversity standards in the workplace.

(iii) a reflective piece written by the Registrant addressing the incident and what he has learned from any training he has undertaken.

HCPC Submissions

6. Ms Stark, on behalf of the HCPC, outlined the history of this case and the Panel’s statutory powers. She reminded the Panel of the information that the previous panel had suggested that the Registrant should provide to assist at this review hearing. Ms Stark drew the Panel’s attention to the references that the Registrant had provided and the absence of any comment with regard to his professional relationship with female colleagues and female members of the public. She also stated that the Registrant did not appear to have reflected on the impact on Person A which called into question his level of insight. However, she made no positive submission as to whether his fitness to practise remains impaired.

Registrant’s Evidence

7. The Registrant chose to give evidence under oath. During his oral evidence, the Registrant expanded on his undated reflective statement that he provided to the Panel. In addition he provided the Panel with four references, attendance certificates relating to two training courses (Professional Boundaries and Equality and Diversity), documents confirming his financial hardship and his Change of Name Deed (which had not yet been considered by the HCPC Registration Department).

8. The Registrant, in his reflective statement, informed the Panel that his initial view was that the 2016 decision had not been balanced. He felt that the 2016 panel had not fairly evaluated his evidence and instead had relied on the ‘concocted’ evidence of Person A. The Registrant went on to state that having reflected on the 2016 panel’s findings he accepted its decision. In oral evidence he stated that it was his religious faith that had helped him to accept the findings. However, it was clear from the Registrant’s evidence and reflective statement that he remained of the view that his actions were misconstrued and based on a ‘misconception’.

9. The Registrant outlined what he has learnt from the whole experience. He stated that in future he would ensure that he did not put himself in a position where such accusations could be made against him. He also stated that he had made a mistake in treating Person A as a friend rather than as a patient. In his reflective statement the Registrant outlined what he had learnt from the training courses he had attended.

10. The Registrant invited the Panel to conclude that his fitness to practise is no longer impaired.

Panel’s Approach

11. In undertaking this review, the Panel took into account the documentary evidence, the submissions from both parties and the Registrant’s oral evidence.

12. The Panel accepted and applied the advice it received from the Legal Assessor as to the proper approach it should adopt. In particular that:

• The purpose of the review is to consider the issue of impairment based on the previous panel’s findings of fact, the extent to which the Registrant has engaged with the regulatory process, the scope and level of his insight, whether his previous misconduct has been sufficiently and appropriately remedied and the risk of repetition.

• In terms of remediation, relevant factors include whether the Registrant:

(i) fully appreciates the gravity of the previous panel’s finding of impairment;

(ii)  has maintained his skills and knowledge;

(iii) is likely to place patients at risk if he were to return to unrestricted practice.

• The Panel should have regard to the HCPC Practice Note: Finding that Fitness to Practise is impaired and must take account of a range of issues which, in essence, comprise two components:

(i) the ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and

(ii) the ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

• It is only if the Panel determine that the Registrant’s fitness to practise remains impaired, that the Panel should go on to consider sanction by applying the guidance as set out in the HCPC Indicative Sanctions Policy (ISP), and the principles of proportionality which require the Registrant’s interests to be balanced against the interests of the public.

Decision  

13. The Panel found the Registrant’s detailed reflective statement to be useful and overall his evidence was thoughtful and demonstrated that he had made good progress towards developing insight. Although the Panel noted that the Registrant continued to deny that his conduct and behaviour towards Person A was sexually motivated, he had undertaken some reflection on the importance of maintaining proper professional boundaries. The Panel was satisfied that he had undertaken appropriate training on Professional Boundaries and Equality and Diversity. The Registrant recognised that from an objective perspective his conduct and behaviour had raised legitimate concerns and for that he should take full responsibility.

14. Although the Registrant had made significant progress the Panel was concerned by the Registrant’s failure to fully embrace the opportunity, provided to him by the previous panel, to consider the entirety of its findings and to demonstrate that his fitness to practise is no longer impaired. 

15. The Registrant, when asked by both the HCPC representative and the Panel, was unable to describe what the impact on Person A may have been. In response to this question he informed the Panel that it was the podiatry profession that had been adversely affected. He stated the professional standing of the podiatry profession had been brought into disrepute because Person A had indicated that she would not feel confident to see another podiatrist or have anyone touching her feet. The Panel was concerned that, irrespective of his denial, he appeared unable to articulate the impact on Person A based on the factual findings of the 2016 panel. In addition the Panel noted that the Registrant referred to the request that Person A remove her trousers (which he denied – he maintained that he asked her to roll up her trousers) but made no mention of the additional factual findings of the 2016 panel which contributed to the determination that his conduct was sexually motivated. For example, the Registrant did not appear to have reflected on his use of language and the appropriateness of his language in a professional environment. Nor did he appear to have properly considered the imbalance of power when addressing junior colleagues. Furthermore, the Panel noted that his references did not specifically address his ability to interact effectively with female colleagues or members of the public as suggested by the 2016 panel.

16. Whilst the Panel acknowledged that the Registrant had attended appropriate training courses it is the learning that has been obtained that is of critical importance. The Registrant was able to outline the theoretical learning but was unable to sufficiently provide practical examples of how he had or would use this to improve his practice. When directly asked by the Panel to provide a practical example of how he would avoid or address a misunderstanding, he was unable to do so. His response was general and vague which indicated that he had not fully considered his own behaviour in the work place.

17. For these reasons, although the Panel accepted that the risk of repetition and harm had reduced it was not satisfied that these risks were sufficiently low.  The Panel concluded that there is an ongoing risk to the public and as a consequence the Registrant’s fitness to practise remains impaired. However, the Panel was satisfied that the wider public interest had been satisfied by the imposition of the 12 month Suspension Order.

18. Having determined that the Registrant’s fitness to practise remains impaired the Panel went on to consider what sanction, if any, should be imposed.

19. The Panel first considered taking no action. The Panel concluded that, in view of the nature and seriousness of the Registrant’s misconduct which has not been fully remedied and in the absence of exceptional circumstances, it would be wholly inappropriate to take no action. Furthermore it would be insufficient to protect the public, maintain public confidence and uphold the reputation of the profession.

20. The Panel then considered a Caution Order.  The Panel noted paragraph 28 of the ISP which states:

“A caution order is an appropriate sanction for cases, 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 action.” 

21. The Registrant’s failings were not minor in nature and had the potential to have wide-ranging adverse consequences. Furthermore, the Registrant has not demonstrated sufficient insight and therefore the Panel concluded that a Caution Order would be inappropriate.

22. The Panel went on to consider a Conditions of Practice Order. The Panel noted that paragraph 33 of the ISP states:

‘Conditions will rarely be effective unless the registrant is genuinely committed to resolving the issues they seek to address and can be trusted to make a determined effort to do so.’

23. The Panel was persuaded that the Registrant had made an effort to address the issues that had been raised by the 2016 panel and that he appeared committed to working towards a return to unrestricted practice. In these circumstances the Panel was satisfied that the Registrant should be given a further opportunity to focus on the findings of the 2016 panel and carefully consider the outstanding issues which he has not yet addressed adequately. These include his recognition and understanding of the impact on Person A and his management of professional boundaries, in particular his interaction with females in the work place. The Panel was satisfied that these issues would be best addressed during a period of conditional registration.

24. The Panel determined that a Conditions of Practice Order should be imposed for a period of 12 months. The Panel was satisfied that this period would be sufficient for the Registrant to demonstrate an appropriate level of insight and demonstrate within a professional environment that he is able to maintain professional boundaries.

25. The Panel decided that extending the Suspension Order or imposing Striking Off Order, at this point in time, would be disproportionate as there remains a possibility that the Registrant is willing and able to demonstrate full remediation.

Order

The Registrar is directed to annotate the Register to show that, for a period of 12 months from the date that this Order comes into effect (“the Operative Date”), you, Mr Tombe Lumonamo, must comply with the following conditions of practice:

1. You must identify a suitable mentor if you are not employed as a podiatrist.   

2. If you obtain employment, as a podiatrist, you must notify the HCPC within 5 working days.

3. You must identify, when in employment as a Podiatrist, a workplace supervisor, registered by the HCPC or other appropriate statutory regulator, who can provide you with monthly supervision.

4. You must provide the HCPC with:

• Details of the mentor and supervisor as soon as one has been identified;

• Evidence of monthly meetings with your mentor/ supervisor;

• Written feedback from your mentor/ supervisor about your learning which includes your reflections in relation to condition 5.

5. You must as part of these meetings reflect upon your communication with and interaction with female colleagues and patients, identifying any areas of challenge and how you have addressed these.

6. You must provide a written reflective piece identifying what impact all of the actions found proved against you had on Person A.

7. You must provide written examples of how you have put your learning around professional boundaries into practice in the workplace.

8. You must promptly inform the HCPC if you cease to be employed as a podiatrist or take up any other or further employment as a podiatrist.

9. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer if you are in a podiatrist role.

10. 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 as a podiatrist;

B. any agency you are registered with or apply to be registered with (at the time of application) as a podiatrist; and

C. any prospective employer (at the time of your application) as a podiatrist.

11. All evidence you are required to provide must be submitted to the HCPC at least 28 days prior to the next review hearing.

12. You will be responsible for meeting any and all costs associated with complying with these conditions.

13. Any condition requiring you to provide any information to the HCPC is to be met by you sending the information to the offices of the HCPC, marked for the attention of the Director of Fitness to Practise or Head of Case Management.

Notes

The order imposed today will apply from 18 August 2017.

This order will be reviewed again before its expiry on 18 August 2018.

Hearing history

History of Hearings for Mr Tombe Lumonamo

Date Panel Hearing type Outcomes / Status
23/08/2018 Conduct and Competence Committee Review Hearing Adjourned part heard
16/01/2018 Conduct and Competence Committee Review Hearing Conditions of Practice
18/08/2017 Conduct and Competence Committee Review Hearing Conditions of Practice