Mr Paul A Leach

: Physiotherapist

: PH58743

Interim Order: Imposed on 18 Feb 2016

: Final Hearing

Date and Time of hearing:10:00 23/01/2018 End: 17:00 23/01/2018

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

: Conduct and Competence Committee
: Struck off

Allegation

1. On 3 November 2016 at the Crown Court at Sheffield, you were convicted of:

a. Record a person doing a private act;
b. Record a person doing a private act;
c. Record a person doing a private act;

2. By reason of your conviction(s) as set out in paragraphs 1a-c your fitness to practice as a Physiotherapist is impaired.

Finding

Preliminary matters
Service
1. The Panel received evidence in the form of a Notice of Hearing dated 30 October 2017 and a certificate of service which showed that notice of the proceedings had been sent by first class post on 30 October 2017 to the registered address held by the HCPC. 

2. The Panel had regard to Rule 3 of the Health and Care Professions Council (Conduct and Competence) (Procedure) Rules 2003 ("the Rules"), which provides that the sending of a notice under the Rules can be effected by sending it to the Registrant's address as it appears in the Register. It also had regard to Rule 6, which provides that a Registrant is entitled to 28 days’ notice of the hearing. Finally, it had regard to Rule 11 which provides that "where the health professional is neither present nor represented at a hearing, the committee may nevertheless proceed with the hearing if it is satisfied that all reasonable steps have been taken to serve the notice of the hearing under Rule 6 (1) on the health professional.”

3. Finally, the Panel had regard to the guidance given to Panels by the Court of Appeal in GMC v Adeogba [2016] EWCA Civ 162, that in deciding whether reasonable steps had been taken to serve a Registrant when notice had been posted to his registered address, the Panel should bear in mind that the Registrant was under an obligation to maintain an up-to-date address on the regulator’s register.

4. In these circumstances, the Panel was satisfied that the HCPC had taken all reasonable steps to serve notice of the proceedings on the Registrant by posting a notice to the address held by the HCPC on the appropriate register.

Proceeding in the absence of the Registrant
5. At the hearing the Registrant was neither present nor represented.

6. Ms Shameli on behalf of the HCPC invited the Panel to proceed in the absence of the Registrant.

7. She submitted first that the Panel was entitled to proceed in the absence of the Registrant because there was good evidence that he had been served with notice of the proceedings in accordance with the Rules.

8. She submitted secondly that the Panel should exercise its discretion to proceed in the absence of the Registrant because the Registrant had returned the Response pro-forma and pre-hearing information form (undated) indicating that he did not intend to attend the hearing or be represented and had sent an email to the HCPC dated 26 October 2016, “I will not be attending any hearing or seeking representation”.

9. The Panel received the advice of the Legal Assessor, which it accepted and is incorporated in its determination set out below.

10. Accordingly, the Panel approached the question in two stages. First, it considered whether it was entitled to proceed in the absence of the Registrant. Secondly, it considered whether, in all the circumstances, it should exercise its discretion to do so.

Proceeding in absence
11. The Panel then considered whether it should exercise its discretion to proceed in the Registrant's absence.

12. The Panel had regard to the guidance given in the Practice Note, ‘Proceeding in the absence of the Registrant’ dated 22 March 2017 and to the decision of the House of Lords in R v Jones [2002] UKHL 5, and the further guidance given to panels by the Court of Appeal in  GMC v Adeogba. It bore in mind that the discretion to proceed in the absence of the Registrant should be exercised with great care.

13. The Panel looked at the nature and circumstances of the Registrant's absence and in particular whether his absence was deliberate and voluntary so that it amounted to a waiver of his right to appear. It had particular regard to his email dated 26 October 2017 to which the Panel referred above.

14. The Panel also considered whether an adjournment was likely to result in the Registrant attending at a later date, the likely length of any such adjournment and whether there was any indication that the Registrant wished to be represented. The Panel was satisfied that there is no evidence that an adjournment would secure the Registrant’s attendance or that he would wish to attend or be represented at any hearing. On the contrary, the evidence indicated that the Registrant had consented to the hearing proceeding in his absence.

15. The Panel accepted that there is inevitably a risk of prejudice to a registrant who does not attend. Nevertheless the Panel was satisfied that the Registrant had voluntarily absented himself.

16. The Panel balanced the Registrant’s interests against the public interest in allowing the HCPC to fulfil its duty to protect the public and the public interest in matters being dealt with expeditiously.  The Panel bore in mind the guidance given by the Court of Appeal in Adeogba: “Where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed.”

17. In all the circumstances, the Panel was satisfied that there was no good reason to adjourn and it should exercise its discretion to proceed in the absence of the Registrant.

Application to proceed in private
18. The Panel then considered whether some or all of the hearing should be held in private in the light of the email from the Registrant in which he stated “could I request that the case (sic) verdict is not further reported in the media to protect my wife and two children and further damage the profession.”

19. Ms Shameli submitted that the case should be heard in public because there was nothing in the Registrant’s email, or the other material before the Panel, which established an exception to the established principle that hearings should be heard in public.

20. The Panel received the advice of the Legal Assessor, which it accepted and is incorporated in its determination set out below.

21. The Panel had regard to Rule 10 of the Rules 2003 which provides:
a. 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;”

22. It also had regard to the HCPTS Practice Note on ‘Conducting Hearings in Private’ dated 22 March 2017 which gives guidance that holding a hearing in private:
is not justified merely to save the registrant or others from embarrassment or to conceal facts which, on general grounds, it might be desirable to keep secret. The risk that a person’s reputation may be damaged because of a public hearing is not, of itself, sufficient reason to hear all or part of a case in private unless the panel is satisfied that the person would suffer disproportionate damage.”

23. The Panel bore in mind that this case comes before it following a conviction in the Crown Court where proceedings were held in public and could be fully reported subject only to restrictions necessary to protect the identity of the victims.  The Registrant’s email suggests that the matter has already been reported. 

24. The Panel did not accept that a public hearing would damage the profession.  On the contrary, it was satisfied that a public hearing would promote public confidence in the regulatory process and the profession. The Panel was also satisfied that the identity of the Registrant’s victims could be protected by anonymization, without holding the hearing in private.

25. The Panel bore in mind that a private hearing could not be justified only to protect reputations. Therefore, the Panel was satisfied that there were no matters before it which engaged the matters set out in Rule 10 so as to justify a hearing in private. Accordingly it decided that the hearing would proceed in public.

Background
26. The Registrant was employed as a Physiotherapist at a private clinic in Sheffield from 30 January 2012.

27. On 15 January 2016 the Registrant was arrested for taking covert pictures of service users while they were partially undressed during and after treatment.

28. The matters came to light because Service User A, a young woman receiving treatment after a road traffic accident, noticed that she was being filmed on a concealed mobile phone. 

29. She first became suspicious on 7 January 2016 when the Registrant asked her to perform various exercises and movements in her bra. The Registrant then unclipped Service User A’s bra before massaging her back, albeit not on or near the area of her back where the bra strap was situated. Service User A also saw what appeared to be a camera phone concealed in the treatment room.

30. Service User A returned for treatment on 15 January 2016 and due to her concerns asked her mother to accompany her.  She again saw the concealed phone. She confronted the Registrant and he denied that he was filming her and attempted to get rid of the mobile phone. She called her mother and, after a short struggle, she was able to recover the phone and call the police.

31. The police arrested the Registrant that day and seized his telephone. The telephone revealed a recording of another service user, Service User B, taken earlier that day.

32. The Registrant admitted to police that he had filmed Service User A on 15 January 2016 and on the first occasion that she attended for treatment.  He also admitted filming Service User B earlier that day. He went on to admit that he had been filming service users covertly at two different practices when they were in the treatment room, on a daily basis for about 12 months and maybe longer.

33. On 3 November 2016, the Registrant appeared at the Crown Court at Sheffield and pleaded guilty to 3 counts of recording “another person doing a private act” contrary to Section 67 (3) of the Sexual Offences Act 2003. He was sentenced on 20 June 2017 to 12 weeks imprisonment. He will be subject to the notification requirements of the “sex offenders register” for seven years from the date of his conviction.

Decision on facts and grounds
34. The Panel considered the submissions of Ms Shameli, the written evidence before it and the advice of the Legal Assessor.

35. The Panel had particular regard to the Certificate of Conviction dated 19 May 2017, signed by an Officer of the Court. The Panel accepted this as proof of the conviction and of the findings of fact upon which it was based in accordance with Rule 10(1)(d) of the Rules.

36. The Panel is accordingly satisfied that the conviction against the Registrant is proved.

Decision on impairment
37. The Panel next considered whether the Registrant’s current fitness to practise is impaired by reason of his conviction. The Panel heard submissions from Ms Shameli on behalf of the HCPC and the advice of the Legal Assessor, which it accepted.  The Panel also had regard to the HCPTS Practice Note ‘Finding that Fitness to Practise is Impaired’. The Panel was aware that impairment is a question for its own judgement. In reaching its decision the Panel considered both the personal component and the public component of fitness to practise, which includes the need to protect service users, maintain confidence in the profession and the regulatory process and uphold proper standards of conduct and behaviour for the profession.

38. In deciding whether the Registrant’s fitness to practise is currently impaired the Panel had regard to the examples given by Dame Janet Smith in the 5th Shipman report and subsequently adopted by the High Court: CHRE v NMC and Grant [2011] EWHC 927:
a. Does the Registrant present a risk to service users?
b. Has the Registrant brought the profession into disrepute?
c. Has the Registrant breached one of the fundamental tenets of the profession?
d. Is it the case that the Registrant’s integrity cannot be relied upon?

39.  The Panel looked first at whether the Registrant still presents a danger to service users. It had careful regard to his remorse, his full admissions to the police and a plea of guilty before the Crown Court.

40. In the absence of any written submissions or information from the Registrant, the Panel found that he has demonstrated no insight into the effect his offending has had on his victims, only himself and his family. He has not demonstrated any understanding of the sense of betrayal and violation felt by the service users, whose trust he abused.

41. Nor has the Registrant demonstrated any insight into why he behaved in the way he did and so what steps he might need to take to ensure he never offends in this way in the future.

42. The Panel also found that there is no evidence that the Registrant has taken steps, through treatment or otherwise, to remediate his behaviour.

43. Having regard to all the evidence, the Panel is satisfied that the Registrant still presents a risk to future service users if allowed to practise without restriction.

44. The Panel also considered the public component of fitness to practise, namely the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession and the regulatory process.

45. The Registrant’s offending was directly linked to his practice as a Physiotherapist. It was serious and persisted over a long period. Two victims have been identified but there were, on the Registrant’s admission, many more. The effect on the two known victims was significant.  Above all, the Registrant’s offending was a gross breach of trust.

46. The Panel is satisfied that it would be failing in its duty to maintain public confidence in the profession and uphold proper standards of behaviour if it did not find impairment in the light of the serious offences which gave rise to the Registrant’s conviction.

Decision on sanction
47. The Panel has heard submissions from Ms Shameli on the issue of sanction. The Panel has also accepted the advice of the Legal Assessor and had regard to the HCPC’s Indicative Sanctions Policy (ISP).

48. The Panel is aware that the purpose of sanction is not to be punitive but to protect the public and the wider public interest which includes the deterrent effect on other registrants, the reputation of the profession and public confidence in the profession and the regulatory process.

49. The Panel also bore in mind the principle of proportionality and balanced the Panel’s duty to protect the public against the rights of the Registrant.

50. The Panel had regard to the following mitigating factors:
a) the Registrant made full admissions to the police;
b) he pleaded guilty to the offences and spared the victims from giving evidence; and 
c) there are no other matters recorded against him of a criminal nature or in regulatory proceedings.
 
51. The Panel has also considered the following  aggravating factors:
a) the Registrant was convicted of sexual offences;
b) he offended over a considerable period of time;
c) there was more than one victim;
d) the identified victims suffered significant distress;
e) there was a serious abuse of trust;
f) the Registrant has demonstrated no insight or victim awareness.

52. The Panel considered the sanctions available to it in ascending order of severity. The Panel considered that to take no action or to impose a caution would not be appropriate given the serious nature of the conviction for three sexual offences. Neither sanction would protect future service users. Nor are they sufficiently restrictive to protect the wider public interest.

53. The Panel also considered that a Conditions of Practice Order would not be appropriate given the nature of the Registrant’s conduct and his lack of engagement with the HCPC.

54. In coming to this conclusion the Panel had particular regard to paragraph 35 of the ISP which provides:
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. Therefore, conditions of practice are unlikely to be suitable in cases:
• where the registrant has failed to engage with the fitness to practise process, lacks insight or denies any wrongdoing;
• where there are serious or persistent overall failings; or
• which involve dishonesty, breach of trust or the abuse of service users.”
 
55. The Panel next considered a Suspension Order. The Panel considered paragraph 39 of the ISP which provides that a “…suspension order is appropriate where the Panel considers that a caution order or conditions of practice order would provide insufficient public protection and where the allegation is of a serious nature but there is a realistic prospect that repetition will not occur and thus, striking off is not merited
.”

56. The Panel found that the Registrant has neither developed insight nor engaged in remediation two years after the events giving rise to his conviction. In those circumstances, the Panel could not be satisfied that “there is a realistic prospect that repetition will not occur.” In any event, the Panel was satisfied that the serious nature of the offences which the Registrant committed during his practice and the serious breach of trust they represent, mean that in all the circumstances, the Registrant’s conduct was fundamentally incompatible with continued registration. The Panel found that suspension would be insufficient to reflect that finding.

57. The Panel next considered a Striking Off Order. The Panel had particular regard to paragraphs 47 – 49 of the ISP which provide:
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
.”

58. The Panel found that the nature and gravity of the Registrant’s conduct over a considerable period together with the breach of trust that it represents left the Panel with no other sanction which would sufficiently protect the public and the public interest.

59. The Panel was satisfied that the Registrant would pose a risk to service users for the foreseeable future because he has still not developed insight or begun remediation two years after the offending which gave rise to his conviction.

60. The Panel was satisfied that public confidence in the profession and the regulatory process would be seriously undermined if the Registrant remained on the Register despite abusing the trust of service users in the way that he did.

Order

The Registrar is directed to strike the name of Mr Paul A Leach from the Register on the date this order comes into effect.

Notes

No notes available

Hearing history

History of Hearings for Mr Paul A Leach

Date Panel Hearing type Outcomes / Status
23/01/2018 Conduct and Competence Committee Final Hearing Struck off