Mr Michael C Cox

: Physiotherapist

: PH72015

Interim Order: Imposed on 06 Dec 2016

: Final Hearing

Date and Time of hearing:11:00 23/11/2017 End: 17:00 23/11/2017

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

: Conduct and Competence Committee
: Struck off

Allegation

While registered a Physiotherapist with the Health and Care Professions Council:

1. On 13 January 2017 at Bristol Crown Court, you were convicted of sexual assault on a female – no penetration.

2. By reason of your conviction as set out at paragraph 1, your fitness to practise as a Physiotherapist is impaired.

Finding

Preliminary matters
Proof of service
1. The Panel was informed by the Hearings Officer that notice of this hearing was sent to the Registrant’s registered address by letter 10 October 2017. It contained the required particulars, including time, date and venue.

2. The Panel was satisfied that the notice contained the required particulars and had been properly served as required by the Rules.

Proceeding in the absence of the Registrant
3. Ms Manning-Rees, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. The Panel received and accepted the advice of the Legal Assessor who advised that the Panel’s discretion to proceed in the Registrant’s absence should only be exercised with the utmost care and caution.

4. The Panel had regard to the documentation which had been sent to the Registrant. On 22 May 2017, the HCPC had written to the Registrant saying that the Investigating Committee had determined that there was a case to answer and that arrangements would be made for the case to be heard by a Panel of the Conduct and Competence Committee. On 16 August 2017 and 10 October 2017, the HCPC sent out the Notice with details of today's (23 November 2017) hearing. The response pro forma document, a signed copy of which was returned  by the Registrant, dated 16 October 2017, indicated that he would not be attending the hearing in person, but would be represented by his wife. Additional emails in August 2017 also indicated that the Registrant’s wife would be attending.

5. In light of this information, the Hearings Officer made telephone inquiries and was able to speak to the Registrant’s wife, Ms Hassell, who informed the Hearings Officer that neither she nor the Registrant would be attending in person, although she would be able to attend by telephone.

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

7. The Panel concluded that the Registrant had decided not to attend, thereby waiving his right to attend. His wife was in attendance by telephone. It was unlikely that the Registrant would attend an adjourned hearing. The Panel was of the view that it was in the interests of justice that the hearing should proceed. The Panel, therefore, decided to proceed in the Registrant’s absence.

Application to hear the case in private
8. Ms Hassell provided to the Panel, a copy of the psychiatric report, dated 5 January 2017, which was before the Crown Court Judge at the Registrant’s sentencing hearing on 16 February 2017. The Panel considered whether it should to hear those parts of the case which related to the Registrant’s health in private. This approach was endorsed by Ms Manning-Rees.

9. The Panel accepted the  advice of the Legal Assessor. It had regard to the HCPC’s Practice Note Conducting Hearings in Private. The Panel determined that matters which related to the Registrant’s health, should be heard in private so as to protect his private life.

Background
10. The Registrant is a Physiotherapist registered with the HCPC.

11. At the relevant time, the Registrant was working in Abbey Wood, providing physiotherapy treatment to Ministry of Defence staff working there. The complainant, Person A, was a female member of staff who first saw the Registrant in late 2015. She saw him a number of times.

12. On 25 April 2016, Person A had a physiotherapy appointment to see the Registrant, who suggested an upper body massage. The Registrant asked Person A to remove her upper clothing, which she did, and she then lay, as instructed, on the bed, face up, with a towel covering her breasts. The Registrant asked her to uncover slightly, which she did, and then the Registrant removed the towel. The Registrant massaged her around her breast area, including her nipples. The Registrant then asked Person A to lower her trousers to the hips bones and ran his fingers along the top of her trousers. He then further massaged her breasts again.

13. Person A went to the police and on 6 May 2016, she made a video recorded police statement. On 16 May 2016, the Registrant gave a voluntary interview, not under arrest, to the police, during which he denied the offence. On 11 November 2016, the Registrant was charged with the offence of sexual assault on a female. On 15 December 2016, the Registrant appeared at Bristol Magistrates’ Court where he indicated a guilty plea and the case was sent to the Crown Court.

14. On 13 January 2017, the Registrant pleaded guilty to one offence of sexual assault on a female – no penetration, in relation to the 25 April 2016 matter. On 16 February 2017, he was sentenced to 18 months’ imprisonment, suspended for 24 months. The following requirements were imposed:
• Undertake a rehabilitation requirement as directed for a maximum of 40 days; and
• Electronically monitored curfew at home address from 8pm to 6am for 6 months.
In addition the Registrant was ordered to pay a victim surcharge of £140, and was informed he may appear on Barring lists by the Disclosure and Barring Service. As a result of the sentence imposed, he became subject to the notification requirements of sex offender registration for a period of 10 years.

Decision on facts
15. The Panel heard and accepted the advice of the Legal Assessor. The Panel understood that the burden of proving the facts 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.

16. The Registrant did not attend. He was represented by his wife. The Panel did not hold his non attendance against him at the fact finding stage.

Particular 1 – found proved
17. The Panel found this Particular proved.

18. The Panel had regard to Rule 10(d) which states: “where the registrant has been convicted of a criminal offence, a certified copy of the certificate of conviction (...) shall be admissible as proof of that conviction and the finding of fact upon which it was based”.

19. The Panel had before it a copy of the Certificate of Conviction, dated 9 June 2017, from Bristol Crown Court. The Panel was satisfied to the required standard, that the Registrant had been convicted of the offence of sexual assault on a female – no penetration.

20. The Panel also acknowledged that the Registrant had admitted the Allegation in the HCPC pro forma document, dated 16 October 2017, which he returned to the HCPC.

Statutory ground
21. Having found the facts proved, the Panel was satisfied that, by its nature, it amounted to the statutory ground of a conviction.

Decision on impairment
22. The Panel next went on to consider whether the Registrant’s fitness to practise is currently impaired as a consequence of the conviction.

23. Ms Manning-Rees submitted that the Registrant’s fitness to practise is currently impaired by reason of his conviction. She submitted that his conviction for sexual assault on a female, who he had been treating in a professional capacity, constituted a breach of trust. She highlighted the long lasting and damaging effect that the sexual assault had had on Person A. She submitted that the Registrant had breached a number of the HCPC Standards of Conduct, Performance and Ethics and Standards of Proficiency for Physiotherapists. She submitted that a finding of impairment was required in order to uphold public confidence in the profession.

24. Ms Hassell told the Panel that the Registrant accepted full responsibility for his actions, and was sorry for the hurt that he had caused and that he knew that he had let down the profession. She updated the Panel on the Registrant’s current state of health.

25. The Panel accepted the advice of the Legal Assessor. It had regard to the HCPC Practice Note on ‘Convictions and Cautions’. It also 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’.

26. The Panel considered that this was a serious offence, which had occurred in a professional setting, where the Registrant was treating Person A, and he breached that trust placed in him as a professional. The Panel was mindful of the damaging and long lasting effect that the offence had had on Person A. It was in this context that the Panel considered both the ‘personal’ and ‘public’ components.

27. In relation to the ‘personal component’, the Panel acknowledged that there was some evidence of insight and remorse on the part of the Registrant. He had pleaded guilty to the offence in the Crown Court and had admitted the Allegation before the Panel.

28. The Panel noted that the psychiatric report had concluded that: “as to the matter of future risk of similar like behaviour, I am of the considered opinion that any such risk is vanishingly small”. In light of the psychiatric report, a copy of which had been placed before the Panel, together with the sentencing remarks of the Crown Court Judge, the Panel accepted that it was highly unlikely that the Registrant would repeat the type of behaviour which led to the conviction.

29. However, whilst there had been some engagement by the Registrant, the Panel had not been provided with any personal reflection by him regarding his behaviour, nor any independent evidence regarding the rehabilitation that he was undertaking as part of his sentence. At this time, the Panel considered that there was some evidence of insight on the part of the Registrant into his offending, and it’s impact on Person A. It was difficult to judge the Registrant’s present insight in the absence of written evidence or hearing from him.

30. In all the circumstances, the Panel concluded that in respect to the personal component, the Registrant’s fitness to practise is currently impaired.

31. In relation to the ‘public component’, the Panel was aware that consideration of fitness to practise is not limited to the ‘personal component’, but also requires a judgement to be made in respect of the wider public interest and in particular upholding proper standards of conduct and behaviour; the reputation of the profession and maintaining public confidence in both the profession and the HCPC as its Regulator.

32. The Panel was of the view that the case was serious, and this was reflected in the 18 months’ suspended sentence which the Registrant had received. The Panel had regard to the remarks of the sentencing Judge who had found that the Registrant had acted in abuse of trust of the position in which he, as a professional, had been placed. In the Panel’s view, the Registrant had breached a fundamental tenet of the profession. The Panel also noted from the sentencing remarks, that it appeared that the offence had profoundly affected Person A’s life and resulted in difficulties for her in many areas, including forming relationships.

32. The Panel took into account the HCPC Standards of Conduct, Performance and Ethics, to be expected of a Registrant. In this case, the Panel was of the view that the Registrant had breached standards:
Standard 1.1   You must treat service users and carers as individuals, respecting their privacy and dignity;
Standard 1.7  You must keep your relationships with service users and carers professional; and
Standard 9.1   You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

33. The Panel also took into account the HCPC Standards of Proficiency for Physiotherapists. In this case, the Panel was of the view that the Registrant had breached standards:
Standard 2   be able to practise within the legal and ethical boundaries of their profession; and

Standard 3.1  understand the need to maintain high standards of personal and professional conduct.

34. In all the circumstances, the Panel was of the view that not to find current impairment would have a detrimental reputational effect on the Regulator, and would undermine public confidence in the profession. The Panel considered that a well informed member of the public, in possession of all the facts, would be shocked if no finding of impairment was made.

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

Decision on sanction
36. Having determined that the Registrant’s fitness to practise is currently impaired by reason of his conviction, the Panel next went on to consider whether it was impaired to a degree which required action to be taken on his registration by way of the imposition of a sanction.

37. The Panel accepted the advice of the Legal Assessor and it exercised its independent judgement. The Panel had regard to the Indicative Sanctions Policy (ISP) 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 members of 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.

38. The Panel considered the following to be aggravating factors in this case:
a. The offence was committed in gross breach of trust placed in the Registrant by Person A;
b. The offence is so grave, being of a sexual nature, that it resulted in a custodial sentence, albeit suspended; and
c. The ongoing and severe detrimental impact the offence had on Person A.

39. The Panel considered the following to be mitigating factors:
a. The Registrant’s immediate guilty plea in the Crown Court together with his admission to the Allegation in this Hearing, demonstrating some insight. There is also evidence of insight in the psychiatric report;
b. The Registrant is still attending and cooperating with rehabilitation sessions with the probation service;
c. The Registrant has apologised for his conduct and there is evidence of remorse in the psychiatric report;
d. The Registrant’s previous good character;
e. The Judge accepted, what he described as, excellent references, supporting that this was a one off incident which was out of character.

40. The Panel considered the alternative sanctions available, beginning with the least restrictive. The Panel did not consider that the option of taking no further action, or the sanctions of a Caution Order or a Conditions of Practice Order to be appropriate or proportionate in the circumstances of this case. None of these options would reflect the seriousness of the case and satisfy the high public interest aspect of this case, namely the need to maintain public confidence in the profession.

41. In respect of a Conditions of Practice Order, the Panel also had regard to the case of Fleischmann (Council for the Regulation of Healthcare Professionals v (1) General Dental Council (2) Alexander Fleischmann [2005] EWHC 87 (Admin)) and the general principle that in order to maintain public confidence in the profession, a Registrant should not, ordinarily, be permitted to practise, either with or without restriction, whilst subject to a criminal sentence. In this case, the Registrant had been sentenced on 16 February 2017 to 18 months’ imprisonment which had been suspended for 24 months, and this period would be operational until 15 February 2019.

42. A further consequence of the sentence was that the Registrant was subject to sex offender notification requirements for a period of 10 years, which would therefore be operational for some years to come. In the Panel’s view allowing a physiotherapist on the Sex Offenders Register to practise would seriously impact public confidence in the profession.

43. The Panel next considered a Suspension Order. The Panel acknowledged the steps that the Registrant has been taking and continues to take to rehabilitate himself. He had pleaded guilty in the Crown Court at an early stage, and had admitted the Allegation before this Panel. He had been open in the psychiatric report provided both to the Crown Court sentencing Judge and again to this Panel. That report had concluded and this Panel accepted that the risk of repetition was “vanishingly small”. The Registrant  has some insight and remorse into his offending, and has undertaking counselling. All these steps are to be commended, and in light of them, the Panel carefully considered whether it would be able to impose a Suspension Order.

44. However, given the serious nature of the Registrant’s commission of a sexual offence when in a position of trust and the significant harm which Person A had consequently suffered, the Panel concluded that a one year Suspension Order was insufficient to mark the nature and gravity of the offending. The reality was, in the Panel’s judgement, that public confidence in the profession and the regulatory process would be undermined if a Suspension Order were imposed. Further, having regard to the case of Fleischmann, the Panel was also mindful that the Registrant would still be subject to the notification requirements as a sex offender in 12 months’ time, which is the maximum period for which a Suspension Order could be made, and by which time an Order for Suspension would have to be reviewed.

45. The Panel considered a Striking Off Order and concluded that this was the only appropriate sanction in this case.

46. The Panel had regard to paragraph 47 of the ISP which states:

Striking off is a sanction of last resort for serious… acts involving abuse of trust such as sexual abuse….”

47. For the reasons earlier identified, the Panel was satisfied that this was a case which fell into this identified category.

48. The Panel also had regard to paragraph 49 of the ISP, which states:

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…

49. For the reasons previously given, the Panel was of the view that the nature and gravity of the Registrant’s offence are such that a Striking Off Order is required, to satisfy the wider public interest in this case and uphold professional standards. It was clear to the Panel that any reasonably well informed member of the public would be concerned if a physiotherapist, convicted of such an offence, were not removed from the Register.

50. In terms of the principle of proportionality, the Panel noted that the Registrant would be prevented from working in the profession by this order. However the high public interest of maintaining public confidence in the profession and upholding professional standards outweighs his own interests.

Order

That the Registrar is directed to strike the name of Michael C Cox from the Register on the date this order comes into effect.

Notes

No notes available

Hearing history

History of Hearings for Mr Michael C Cox

Date Panel Hearing type Outcomes / Status
23/11/2017 Conduct and Competence Committee Final Hearing Struck off
17/11/2017 Conduct and Competence Committee Interim Order Review Interim Suspension