Nicole Roberts
Profession: Occupational therapist
Registration Number: OT74618
Hearing Type: Final Hearing
Date and Time of hearing: 10:00 07/01/2025
End:
17:00 28/02/2025
Location:
virtually via video conference
Panel: Conduct and Competence Committee
Outcome: Struck off
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Allegation
As a registered Occupational Therapist (OT74618) your fitness to practise is impaired by reason of misconduct and/or health. In that:
1. You did not maintain appropriate professional boundaries in relation to Service User A, in that:
a. On or around 1 February 2019 you:
i. accessed their confidential information without appropriate reason to do so, in order to obtain their personal phone number
ii. contacted Service User A from your personal mobile phone for a non professional purpose.
b. On or around 15 February 2019 you placed your hand on their thigh and said “it will be okay” or words to that effect.
c. Between 1 February 2019 and 20 April 2019 you had an inappropriate relationship with Service User A, both in person and via text and/or Whats App messaging.
d. Between 1 February 2019 and 20 April 2019 you inappropriately disclosed personal details about yourself and your private life to Service User A via text and/or WhatsApp messaging.
2. On or around 20 April 2019 you did not adequately report that Service User A disclosed that they felt suicidal.
3. On 28 May 2020 you wrote and signed a police witness statement that contained false statements. In that:
a. You stated “when he wasn’t my patient, I gave Service User A my personal phone number”
b. You stated “we met up socially three times after he was no longer my patient”
c. You stated “I didn’t have any romantic intentions towards Service User A”
d. When referring to Service User A telling you he loved you, you stated “I felt uncomfortable about this and said that I did not feel the same way, and that I only wanted to be friends”
4. Between 1 February 2019 and 12 April 2019 you did not complete adequate records of all conversations that you had with Service User A within his patient notes.
5. You have a physical and/or mental health condition as set on in Schedule A
6. Your conduct in relation to particular 3 above was dishonest and/or misleading.
7. Your conduct in relation to 1(a), 1(b), 1(c) and/or 1(d) above was sexually motivated.
8. The matters set out in particulars 1, 2, 3, 4, 6 and 7 above constitute misconduct.
9. By reason of your misconduct and/or health your fitness to practise is impaired
Schedule A
- REDACTED
- REDACTED
Finding
Preliminary Matter
Conducting the hearing in private
1. The Panel having accepted legal advice decided that if and when any health or personal matters arise that it will conduct the hearing in private in order to protect the Registrant’s right to privacy.
Background
2. In early 2019 the Registrant, a registered Occupational Therapist, was allocated to the care of Service User A whilst employed at the George Eliot Hospital NHS Trust ('the Trust'). The Service User was under the Registrant’s care from 11 January 2019 to 12 April 2019, with the last appointment taking place on 29 March 2019. It is alleged that over a period of approximately three months, the two individuals entered into a personal relationship. It is alleged that over six thousand messages were exchanged between them, and that they also met outside of professional appointment times. Towards the end of their personal and professional relationship, it is alleged that Service User A disclosed to the Registrant that he felt suicidal, but that the Registrant did not adequately report this, as required. The Registrant resigned from her role on 14 February 2019.
3. In August 2020 Service User A referred the matter to the HCPC. He alleged that he first met the Registrant on 3 January 2019 and that on 15 February 2019 she placed her hand on his knee, which he interpreted as a sexual advance. He alleges they met on five occasions when they hugged and kissed. They last met five days after he left her care. He further alleged that the Registrant made significant personal disclosures to him.
4. In 2020, due to ongoing, unwanted, communications from Service User A, the Registrant reported Service User A to the police for harassment. This resulted in Service User A being issued with a harassment warning. At the time of the police investigation the Registrant provided a witness statement to the police in which she stated that the only personal interaction between her and Service User A was after the professional relationship had ended, and that she did not have any romantic intention towards him and only wanted to be friends. The HCPC allege that these statements by the Registrant, as set out in allegation 3, were not true.
5. After having left the employment of the Trust, the Registrant commenced employment with University Hospital Birmingham (UHB) as a Band 5 rotational Occupational Therapist on 16 April 2019. On 27 August 2020, UHB received a complaint from Service User A against the Registrant. Ms H conducted an investigation into the complaint. It is alleged that the Registrant initially denied a personal relationship with the service user but when confronted with the messages she had sent to the service user she admitted a relationship. It is alleged that the messages between the Registrant and Service User A were flirtatious and indicated that the Registrant was seeking a personal, sexual relationship.
6. The Registrant has been diagnosed with health conditions as set out in Schedule A. However, the HCPC submitted that the evidence suggests these conditions are in remission and it did not offer any additional evidence in respect of the health allegation. The HCPC alleges impaired fitness to practise in respect of those allegations and advances it’s case solely on the statutory ground of misconduct.
7. Service User A did not attend to give evidence. The HCPC called the following witnesses in support of its case:
• SW, the Matron for Vulnerable Patients and Safeguarding Adults Lead within the Trust;
• AG, Therapy Services Manager within the Trust;
• JH, a registered Physiotherapist, Director of Therapies at UHB, and at the time of the allegations, Therapy Lead for Planned Care Acute and Community Services and Triage at UHB.
Admissions
8. The Panel noted that the Registrant admitted particulars 1 a) i); 1 c); 1 d); 3
a); 4, 5, 6 - dishonesty in respect of 3 a) only. It accepted the advice of the Legal Assessor, and he reminded it of the guidance in the HCPC Practice Note on “Admissions” (October 2024).
9. The Panel noted that the Registrant is legally represented by solicitors and by Counsel. In these circumstances, the Panel was satisfied that the Registrant’s admissions were clear, unequivocal and properly informed. It accepted those admissions and, accordingly, the Panel found the admitted particulars of the allegation proven by virtue of those admissions without the need for further evidence to be adduced by the HCPC to prove those facts.
Hearsay application
10. Ms Vanstone for the HCPC applied to receive as hearsay the witness statement of Service User A. He has made clear that he will not give evidence remotely as he has concerns about the ability of a panel to assess the evidence in a virtual hearing.
11. Ms Vanstone referred to the relevant rules and case law and submitted that these allegations are serious and that there is a public interest in the proceedings. She submitted that the evidence was relevant, and it was fair to admit the witness statement as hearsay. She submitted that the evidence of Service User A was not the sole or decisive evidence, and that the messages are not directly challenged, it is the interpretation of those messages that is the issue. Ms Vantsone submitted that the format of the hearing was not for a witness to determine, and reasonable adjustments had been made for Service User A’s attendance, but he had refused to avail himself of those adjustments. The overriding requirement is that of fairness particularly as the evidence of the messages is not disputed.
12. Ms Vanstone reminded the Panel that the issue of admissibility was separate from the question of the weight to be applied to the evidence. She advised that the messages were also exhibited by a witness from the Trust and were not challenged.
13. Ms Adeyemi for the Registrant opposed the application. She advised that objection was restricted to Service User A’s witness statement, not the messages. The Registrant accepts that she sent the messages, acted inappropriately and caused upset to the service user. The Registrant does not accept, however, the assertions made by the service user about the messages. Ms Adeyemi submitted that the Service User A witness statement exaggerated and sought to make up aspects of the matter. She submitted that there was evidence in his aggression towards the Registrant that, regrettably, indicated that he had reason to fabricate his evidence.
14. Ms Adeyemi submitted that no witness summons has been sent to Service User A and there had been little effort to secure his attendance. Ms Adeyemi submitted that aspects of the witness statement were decisive, notably as to the Registrant’s alleged conduct when they first met, to her making sexual innuendos and to her making sexual advances to the service user. All of that is denied. She submitted that these comments by the service user were decisive in regard to the alleged sexual intention, and it would be very difficult for the Registrant to challenge these particular points. The sole and decisive evidence for particular 1 b), the touching of the thigh, is in the witness statement of Service User A. Ms Adeyemi submitted that it was not therefore fair to admit this evidence. She clarified that the screenshots and texts were agreed evidence, but the witness statement was not.
Decision on Hearsay
15. The Panel accepted the advice of the Legal Assessor who referred it to the guidance in Thorneycroft v NMC [2014] EWHC 1565 (Admin) and NMC v Ogbonna (2010) EWCA Civ 1216 and the factors to consider, bearing in mind the central importance of relevance and fairness.
16. The Panel carefully considered Service User A’s witness statement and the particulars of the allegation. The witness statement covers a significant portion of evidence. The Panel was mindful that the messages themselves are not disputed and are agreed evidence. The Panel found that the evidence of Service User A in the witness statement is clearly relevant. He gives evidence about the allegation both on specifics and as to the larger context in which the text messages were sent and received. It next considered whether it was fair to admit the witness statement and it was mindful of the factors in Thorneycroft.
17. Service User A has not attended this hearing despite the reasonable adjustments put in place by the HCPC and he has demanded a live hearing. The Panel was satisfied that the HCPC had made proper and reasonable efforts to engage with the witness and to secure his attendance. Despite the HCPC communicating clearly with the witness and despite the reasonable adjustments made to accommodate him, he has nonetheless not attended. The Panel was of the view that a witness summons would not have likely been a reasonable or appropriate approach to secure the attendance of the witness in this case, particularly given his health and well-being.
18. In respect of particular 2, whilst the witness statement is significant, it does not appear to be sole and decisive given the text messages, which are not disputed. The Panel was of the view that the evidence of Service User A is likely to be the sole and decisive evidence in respect of particular 1 b). The Panel was mindful of the seriousness of the allegation as a whole, but it was of the view that particular 1b), of itself, does not alter the overall nature or gravity of the allegation, and to exclude the witness statement solely on this basis would not be fair. The Panel will be in a position to test this particular to some extent with the Registrant when she gives evidence. The service user’s witness statement is not the sole and decisive evidence in respect of any of the other particulars of the allegation.
19. The Panel considered that the evidence in Service User’s A’s witness statement is not demonstrably reliable. However, the Panel was satisfied that the evidence in the witness statement can be sufficiently tested by cross referencing it to the other evidence before the Panel, including the dates and content of the many text messages, the employer’s investigation, the Registrant’s earlier statements, the police records and, indeed, the Registrant’s own evidence and her admissions. That process will allow the witness statement to be sufficiently and fairly scrutinised and tested. The Panel did not find any proper basis to consider that the witness statement was fabricated.
20. On balance, the Panel decided that it was fair to allow the witness statement of Service User A to be admitted into evidence as hearsay evidence. The Panel will assess it with caution, and it will attach such weight to it as it considers fair and appropriate when it assesses the evidence as a whole.
Summary of Evidence
Witness 1- (AG)
21. Ms AG affirmed and adopted her witness statement. She is a registered Physiotherapist and worked at the Trust at the time of the allegations. She was the Registrant’s departmental manager but not her line manager. She explained the Registrant’s role at the time of the allegation.
22. In her statement AG told the Panel that in September 2020 she was contacted by the Therapy Manager from University Hospital Birmingham (UHB) and asked if she was aware that the Registrant allegedly had an inappropriate relationship with Service User A. She was asked about her knowledge of the allegations as the alleged relationship spanned a period of time in which the Registrant was employed at the Trust.
23. AG understood from information later provided to her by Service User A directly that the Registrant initially messaged Service User A from her personal telephone in February 2019 and that these messages developed into an alleged inappropriate relationship.
24. AG explained that the Trust does not have a specific policy regarding inappropriate relationships or maintaining professional boundaries with Service Users, but this was an expected standard of a HCPC registered professional. Every HCPC registered professional working at the Trust would be aware that they have to adhere to the HCPC Code of Conduct, and this includes the fact that one must keep your relationships with service users professional. AG said that the Registrant would be aware of the Code of Conduct as she is an HCPC registered professional with an active registration. Within the Trust they had a general conduct policy which prohibits gross misconduct. A relationship with a service user would be considered gross misconduct and it would therefore need to be investigated, which AG later did.
25. AG confirmed that the Registrant would have had access to Service User A's personal phone number and contact details as she was the clinician responsible for his care. She said that under no circumstances should the Registrant have needed to contact Service User A from a personal mobile device. There was no strict policy or guidance that governed this, but it was included in the best practice of the Code of Confidentiality Policy. She said that a land line should have been used, not a mobile telephone, and that should have been recorded in the patient’s notes.
26. AG said that she had discussed the safeguarding concern with EG, the Registrant’s line manager. During the conversation, EG confirmed that the Registrant had reported that Service User A had disclosed suicidal tendencies to her as her Line Manager, but that at the time, EG did not know who the patient in question was. EG confirmed to AG that she had nevertheless instructed the Registrant to follow the safeguarding policy and report the concern to SW and Service User A's GP.
27. AG said that, despite the fact that the Registrant informed EG of the safeguarding concern, she was still required to inform SW as Safeguarding Matron and Service User A's GP. Furthermore, the Registrant was required, as per the Safeguarding Policy, to record the safeguarding concern within Service User A's patient notes irrespective of any further action taken. AG said that there should therefore have been a record of the exact safeguarding concern, who the concern was reported to and what action was taken as a result.
28. In cross examination, AG told the Panel that she would deal with any complaints received in the department. Whilst she was working at the Trust there were no complaints about the Registrant. The Registrant did not have a work mobile telephone, and she accepted that there was nothing untoward about the Registrant checking that Service User A was ok. As regards the issue about patients expressing suicidal ideation, AG explained that the safeguarding team should be contacted for advice and support. AG accepted that the policy and practice at the time was not clear, and at that time, there was only one safeguarding member of staff.
29. AG said that she had not made a record of her conversation with EG and said that the matter was difficult as no records were made in the patient notes by the Registrant. AG did not think that this issue arose after the Registrant had left the Trust as suggested by the Registrant.
Witness 2 – (JH)
30. JH affirmed and adopted her witness statement. She is the Director of Therapies at UHB and a registered Physiotherapist. She was involved in initially investigating the complaint regarding the Registrant and Service User A.
31. JH told the Panel in her witness statement that she had arranged to meet the Registrant on 1 September 2020. Also in attendance was a colleague, LL. During the meeting, the Registrant had become upset, and at that point CH, her Line Manager, had joined the meeting to support her. During this meeting, JH said that the Registrant confirmed that she had sent Service User A, her previous patient, a text message in approximately January 2019 from her personal mobile number in order to perform a welfare check as he was unwell at the end of their appointment on the same day.
32. JH said in her witness statement, that the Registrant had explained to her that she had asked Service User A to remain in reception after an appointment whilst she arranged alternative transportation for him but that he had already left when she returned. The Registrant therefore explained that she messaged Service User A in order to ensure that he was “ok” and safe.
33. Having reviewed the complaint and attached messages JH asked the Registrant whether she had a relationship with Service User A to which she replied 'no'. As a result of this, JH had begun reading to her some of the text messages that she had reviewed and had asked her to explain their content. JH could not specifically recall which messages she had read aloud but she recalled that they suggested a relationship had developed between the Registrant and Service User A.
34. JH recalled the messages being “flirty” in nature with indications that there had previously been some sexual involvement between the Registrant and Service User A. In response, JH recalled that the Registrant had blushed, began to cry and had confirmed that she had had a relationship with Service User A contrary to her earlier answer. JH was concerned that the Registrant had not been completely honest in her initial responses and AG ended the meeting and she decided to initiate a formal investigation into the alleged misconduct. The Registrant was also referred to Occupational Health.
35. After reviewing the statement, a colleague, SH, commenced a formal investigation and arranged to meet with the Registrant on 8 February 2021. JH exhibited the investigatory meeting notes. JH was not present at the meeting. As part of the formal investigation, the Registrant made a written statement, and she had admitted to exchanging Whatsapp messages with Service User A and that they appeared to be “flirty” but had said that was not her intention. The Registrant also stated that Service User A would message her constantly and ask questions about her life to which she would respond honestly.
36. The meeting notes indicate that the Registrant was asked why she messaged Service User A from her personal mobile phone and whether that was usual practice at the Trust. In response, the Registrant is recorded as having confirmed that she was performing a welfare check on Service User A but that this was not usually done from a clinician's personal mobile phone. When asked whether she informed her seniors of the welfare check, the Registrant confirmed that she had informed her Senior Physiotherapist, NL, and that he had 'just said not to text the patient from [her] mobile phone'.
37. It is recorded in the meeting notes that the Registrant was asked why she continued to message Service User A from her personal telephone after this point, and she stated that she did not know why she carried on and that she thought she 'felt sorry for [Service User A]'.
38. In cross examination, JH said that the Registrant had fully cooperated in the investigation, and she had admitted her wrongdoing. There had been well- being issues around the Registrant that were taken into consideration.
39. The Registrant is recorded in the meeting notes as stating that Service User A had become “persistent” in his contact with her, and she had later reported Service User A to the police. JH in her witness statement further referred to the meeting notes that record that the Registrant had told the investigation that she had informed the Police that she had seen Service User A on three occasions outside of work when he was not her patient despite WhatsApp messages suggesting that she had met with Service User A on five separate occasions. Furthermore, the Registrant had informed the Police that she had given Service User A her personal phone number when he was not her patient, but JH said this appeared to be factually incorrect as could be seen by comparing the dates within the Registrant's notes for Service User A.
40. The meeting notes record that SH had asked the Registrant why she was not truthful when completing her Police statement and she had replied saying 'to be honest the messages he sent me were quite frightening, it was not my intention to mislead them in any way.” JH told the Panel that the matter then proceeded to a formal disciplinary process in which she was not involved.
Witness 3 – (SW)
41. SW affirmed and adopted her witness statement. She is a registered nurse and was the Matron for Vulnerable Patients and Safeguarding Adults Lead within the Trust at the time of the allegation. She explained the Safeguarding process and procedures at the Trust at the time of the allegation.
42. SW said that the policy at the time required that there essentially be three steps taken when there is a safeguarding concern, such as suicidal ideation and these were disclosure, report and escalation. When considering what information to include about the safeguarding concern within the patient notes, it was important to consider the position of the individual and whether including detail about the concern would cause further harm. Nevertheless, there should always at least be a simple note to say that a safeguarding referral has been made. She said that if the safeguarding concern requires an onward referral, the clinician must notify the appropriate agencies via their external reporting processes.
43. In cross examination, SW explained that safeguarding is a very individual thing, and each case must be assessed on its own merits. She said that she would always expect a DATIX report to be completed. That cannot be done if the health care professional has left the employer as they cannot access the patient records or the DATIX system. She said that whoever the disclosure about suicidal ideation is made to must assess the matter, and that can involve escalating matters and can also involve a risk assessment. She said that there was no set, specific or mandatory process that was required to be followed as it all depended on the circumstances. SW said she had no specific details of the allegations or what was said to the Registrant by Service User A, or when any disclosure was made.
The Registrant’s Evidence
44. The Registrant affirmed and adopted her witness statement in which she confirmed the admissions she had made. She said that EG was her line manager, and she also worked with a Physiotherapist, NL. She first met Service User A in January 2019 when she had booked an appointment with him.
45. The Registrant explained her initial interactions with Service User A in her witness statement stating that: - “Following my second appointment SUA became extremely fatigued and very unwell. I asked him how he came to his appointment which he replied via car, I stated that I wasn’t happy with him driving because of how unwell he seemed to me, therefore putting him and others at risk. I explained that I wanted him to sit in reception close to the fresh air so he can see if his symptoms disappear before driving. However if they did not then I would not like him driving and I would ask his parents to come and collect him, and ensure that his car is safe on the hospital site until he can collect it another day. He was adamant he wanted to drive home, so agreed to stay in the reception area. I went into the office to write up some notes, I came out after approximately 10 minutes, and he was gone; in panic I picked up my phone and I rang him off my personal phone, when he did not answer I messaged him to say to call the department to let me know he was home safe. I then let the reception staff know that I was awaiting a phone call from the patient. On reflection I should have spoken to a colleague about the situation and potentially called security. I do not know why I did not do this, I think I panicked, and just took action.
Using my own phone has caused consequences and this is why I am in the situation I am in today. I understand the result of using my personal phone has caused a relationship to formulate blurring the professional boundaries. I do regret this immensely as this was not what I wanted from this interaction.
After this SUA and I began texting each other. Looking at the bundle, the texts started at the beginning of February, from the bundle, the conversations were not often and then became a daily occurrence. I cannot remember the full conversations that were had, however I do remember telling SUA about my past however I do not remember saying I wanted a relationship with him or the flirtiness of the messages…
To prevent arguments, I just said it. If I did not say that I loved him, he would continuously message me and then threaten my career. I am not 100% sure why I felt that this is what I needed to do or say. On reflection this was wrong, I was giving the wrong impression to SUA and I was not meeting my professional standards. Looking back I know I should have raised this sooner to prevent this from escalating. I know that the code of practice is there to protect both professionals and patients, I was not thinking when this happened and now I regret this deeply. I know that this exchange did not help the SUA. This is not the person that I am being perceived as, either personally or professionally. I work hard, I care about others and I always want the best for others. I enjoy supporting others and working with them to be the best that they can be.”
46. The Registrant left the Trust in early April 2019. She accepted that she had “stupidly” used her own mobile phone to contact Service User A and accepted that her colleague, NL had told her not to contact the service user using her own phone.
47. The Registrant said that she met Service User A in March 2019 for a meal. She had not wanted to meet him, but she said he had been threatening saying to her he would damage her career and make her life “hell”. He was still her patient at that time. She said she had been “gullible” and had felt sorry for him.
48. The Registrant met Service User A again in April 2019 at a restaurant, but she had left the Trust by then, so she said he was not her patient. This was just before she started at UHB. There was then a third meeting in April, the weekend before she started at UHB. They met up in a local carpark. She said she had met him as he had threatened that he would end her career if she did not do so, and she was concerned he was planning to drive when he was not safe to do so. The Registrant denied meeting Service User A in 2018 or at any other times in 2019, including on “Pancake Day,” despite him describing several other meetings with her in his statement to the police.
49. The Registrant denied placing her hand on the Registrant’s thigh as alleged. She said she was not “touchy feely” and would never have done that. The Registrant said that she had said in messages to Service User A stating that he had looked at her with “fuck me” eyes but she said she did not like that.
50. [REDACTED]
51. As regards the safeguarding concerns, the Registrant said this happened on 20 April 2019. Service User A had called her that day and said that he was committing suicide with Jack Daniels and co-codamol. She had gone to a friend, and he had advised her to take care. She said her friend was on the call with Service User A and they had said to the service user “do it.” The Registrant had then called JB, a colleague at the Trust, to ask for advice. She had also contacted EG and had asked her to do a welfare check on the service user. EG had said that was not a problem and that she would call the police on her behalf. EG had also advised NL who had contacted the Registrant and told her to block the service user and not to contact him again.
52. The Registrant said she was not employed at the Trust at this time and so she could not access the patient notes. The Registrant denied that EG had asked her to refer the service user to his GP and said that she could not do so as he was not her patient. The Registrant said she did not consider the service user was at risk at the time as she knew that he was with his parents who would not allow him to drink or to take drugs despite his threats to do so.
53. The Registrant denied any sexual motivation in respect of Service User A. She said that she had felt sorry for him and wanted to be a “sound board” when he needed to talk. She explained that the service user wanted their friendship to be sexual, but she did not want that. She said she would try to change the subject or ignore his comments, but that he was sometimes “quite threatening”. [REDACTED]
54. The Registrant said she had mentioned her sex drive in text messages as the service user had used the phrase “horny devil” and she had felt he was coaxing her into a sexual relationship. She had told him in a text that she did not want a relationship but had said to him that she “liked” him as a person and a friend. She said she had wanted a friendship with him and to support him “as a person”. She said she had felt trapped and had agreed to meet him to “appease” him. Despite the texts she sent asking to meet him, she said she could not explain or recall them. She said she had felt “sick” and so she said she loved him in order to get some sleep. She said he was controlling and threatening “every aspect of you” and that he also knew she was vulnerable, as she had told him about her personal issues which had been a mistake.
55. The Registrant told the Panel about her police interview after she had reported Service User A. She said she had received two messages from unknown social media accounts in February 2020 and April 2020 that were threatening. She thought they were from Service User A and so had reported this to the police and asked for a non-harassment order. On about 28 May 2019 she had made a witness statement which was typed up by the police at the time. She admitted she had been dishonest in part of that police statement [REDACTED]. She had told the police that the service user was not her patient when she had a meeting with him, but she later realised she had been wrong about that.
56. [REDACTED]
57. In cross examination, the Registrant said she first contacted the service user on 1 February 2019 to conduct a welfare check, after two earlier appointments on 11 and 18 January 2019 with another colleague. She could not recall or explain why she had not recorded the details of the call in the patient notes. She said she should have told a colleague who could have made contact with him or his family as she felt too panicked. She accepted she should have done so. She said the office landline was in use, so had used her own phone and knew then that she should not have done so. She said that she had put kisses “xxx” in messages to the service user but just out of habit and that it felt rude not to message.
58. The Registrant accepted that the messages she sent then and later were not sent for professional purposes, and the service user knew she should not be using her personal number. She said she could not recall why she had sent many of the messages, and had sent kisses in the messages to him on 15 February 2019 including - “you know are really cute you know that”. She accepted that looking at them now, the messages were flirtatious.
59. The Registrant said she was certain she had spoken to Service User A on 20 April 2019. She accepted that she was aware of the steps she should have taken in light of the disclosure made by him about suicidal ideation. She did not report him to the police as he worked for the police as she was worried, he could be stigmatised. The Registrant accepted that she should have contacted safeguarding but did not do so.
60. The Registrant admitted to having had three meetings with the Service User
A. One in March 2019 at Beefeater, and two in April 2019, being one at Beefeater and one in a car park. She denied there had been any more meetings with him. The Registrant said she did not recall sending the messages about meeting in Starbucks and she denied meeting the service user there. She did not recall the messages discussing any other meetings, despite being taken to messages about meeting in a restaurant called “Buffet Island”.
61. The Registrant accepted that there were messages between her and the service user every day in February and March 2019. She said she did not intend the messages to be attempts to have a relationship with Service User A, although they might look like that. She denied sending the message on 27 March 2019 stating - “I do want a relationship xxx”. She accepted that she told him she loved him several times and accepted that was not a response to any threat from him. The Registrant accepted that by this time a relationship had been formed, and she could not explain why she told him repeatedly that she loved him in texts, particularly on 26 and 27 March 2019.
62. The Registrant accepted that what she told the police about Service User A was misleading and dishonest. She denied finding the service user attractive and said that he had become more threatening in April 2019, and he had behaved like that face to face rather than by text.
63. The Panel asked the Registrant about a number of the text messages. In the text message on 6 March 2019 where the service user refers to them having “kissed a lot”. The Registrant denied that she had ever kissed Service User A and said she had ignored the text.
64. The Registrant was also referred to the messages on 15 February 2019 where the service user mentions her legs being open to which she had replied stating – “you wanted stuff to happen…”. The Registrant said that comment had related to them meeting that day and it was not about wanting to kiss but had been a question by her about what he had meant.
65. On 20 March 2019 the Registrant used the word “cock” in a message to Service User A. She said that she had just wanted to clarify what the service user meant by referring in an earlier message to “c”, but it was not sexual.
66. As regards the 25 February 2019 messages about a car, the Registrant said her comment about being “wet” was not sexual. She said she had been shocked at the service user’s comments and did not know what to say. She said that she could not block his number as he would then call her and Snapchat her, so she thought it was easier to reply to him. The Registrant denied sending a number of the text messages.
Closing Submissions
67. Ms Vanstone for the HCPC advised that the majority of the evidence, in particular the text and WhatsApp messages before the Panel were admitted, albeit the Registrant stated at one point in her evidence that she had not sent a message. Ms Vanstone invited the Panel not to accept the evidence from the Registrant about the impact of her health on her recollection, as there was no expert evidence to that effect. The messages are not disputed evidence.
68. Ms Vanstone submitted that the Registrant had accepted in her evidence that she contacted the service user for non-professional purposes, and she referred to the messages on 1 February 2019. There were no patient notes that supported the Registrant’s version of events.
69. Ms Vanstone asked the Panel to consider the messages around the date of the allegation about placing her hand on his thigh, 15 February 2019. She submitted that by that time professional boundaries had already been breached. By that date the messages were flirtatious and intimate. The Registrant messaged the service user saying he was “cute.” She submitted that undermines the Registrant’s denial of this allegation and her position was not credible.
70. As regards allegation 7, Ms Vanstone submitted that the messages clearly indicated the pursuit by the Registrant of a sexual relationship with Service User A.
71. Ms Vanstone reminded the Panel that 12 April 2019 was the Registrant’s last day of work at the Trust, and the suicide disclosure was on 20 April 2019. Ms Roberts had been clear about this chronology in her evidence. There was evidence of a procedure to be followed, and the Registrant accepted that she should have reported the matter to the safeguarding team.
72. Ms Vanstone submitted that the Registrant accepted that she met the service user three times, two at a time when he was still her patient. She submitted that it was clear from the messages that further two meetings took place with Service User A. The Registrant had therefore signed a police witness statement that was not true and was false. The Registrant accepted that the messages appear to show that she had romantic intentions towards Service User A, but she had said that she told him that was not the case when they had met face to face. However, none of the messages she continued to send him indicated that. Ms Vanstone submitted that the statements alleged in allegation 3 were all false, misleading and dishonest.
73. Ms Vanstone submitted that the Registrant had said that she knew the threatening screenshot messages she had exhibited were from the Service User A, although that was not evident from the screenshots. As Service User A did not give evidence, those messages could not be put to him. Ms Vanstone submitted that the Panel should be mindful of the messages the Registrant nonetheless continued to send to the service user despite the claims she made that he was threatening her. Ms Vanstone invited the Panel to find the entire allegation proved.
74. Ms Adeyemi for the Registrant, submitted that the HCPC had not discharged its evidential burden. She submitted the Registrant could not remember some of the many messages, but that was understandable. The health evidence came from the Registrant and that was relevant evidence and should be taken account of. Ms Adeyemi submitted that the screenshots of messages the Registrant claimed were from the service user should not be ignored and should be considered as part of the wider context as they had prompted her to go to the police.
75. Ms Adeyemi submitted that the Registrant has always maintained that she acted wrongly and was apologetic. Ms Adeyemi submitted that the mischief in allegation 1 a ii) is the initial contact by the Registrant with the service user. The Registrant said that she had first contacted the service user to see if he was well, and that was for a professional purpose. She submitted that the email of 3 September from NL supported the Registrant's version of events, albeit it is hearsay. Ms Adeyemi submitted that the Registrant’s version of events was consistent, and she accepts that she failed to properly make patient notes. She submitted that allegation should be found not proved.
76. The only evidence about the Registrant placing her hands on his thigh was from the service user and Ms Adeyemi submitted that was a fabrication to damage the Registrant. She submitted that the texts do not support the service user’s position.
77. Ms Adeyemi submitted that as regards particular 2, regarding the adequacy of the Registrant’s report of the suicidal disclosure, the Registrant’s account is not challenged. AG had no basis for her assertion about the timings of the disclosure and the Registrant’s reporting of it. The Registrant had certainly left the Trust at the time of the disclosure. Ms Adeyemi submitted that what the Registrant did was “adequate”, well within a range of reasonable responses, and that particular of the allegation should be found not proved.
78. Ms Adeyemi submitted that the statement made to the police by the Registrant was not false or misleading, the Registrant had simply got the timings wrong and at the time she thought her statement was correct. She submitted that the Registrant had poor recollection, but she was not being dishonest. She had been distressed, and her position was highly credible.
79. Ms Adeyemi submitted that with regard to the texts, the Panel must not take a “pick and mix” approach. She submitted that the Registrant had felt the need to appease the service user and keep him calm. The Registrant repeatedly made it clear in the texts that she had no romantic intentions towards Service User A. The Registrant’s position was credible, and Ms Adeyemi submitted there was no sexual motivation, the opposite was the case. There was no evidence that the Registrant ever took the opportunity to have sex with the service user. The texts were no more than ill judged communications with no romantic intentions.
Decision on Facts
80. The Panel accepted the advice of the Legal Assessor. He reminded the Panel that the onus of proof was on the HCPC to prove the case on the balance of probabilities. He referred to the guidance on assessment of evidence in Suddock v NMC 2015 EWHC 3612 (Admin); on dishonesty in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67; and on sexual motivation in Basson v GMC [2018] EWHC 505 (Admin). He reminded the Panel that it had no jurisdiction on the health allegations and that the HCPC sought a finding of impairment on the grounds of misconduct, not health.
81. The Registrant has admitted the allegation, particulars 1 a i) , 1 c), 1 d), 3 a), 4 ,5 and 6 - dishonesty, in respect of 3 a) only. The Panel has accepted those admissions, and it has found those particulars proved.
Allegation - As a registered Occupational Therapist (OT74618) your fitness to practise is impaired by reason of misconduct and/or health. In that:
1. You did not maintain appropriate professional boundaries in relation to Service User A, in that:
a. On or around 1 February 2019 you:
i. accessed their confidential information without appropriate reason to do so, in order to obtain their personal phone number
ii. contacted Service User A from your personal mobile phone for a non professional purpose.
b. On or around 15 February 2019 you placed your hand on their thigh and said “it will be okay” or words to that effect.
c. Between 1 February 2019 and 20 April 2019 you had an inappropriate relationship with Service User A, both in person and via text and/or Whats App messaging.
d. Between 1 February 2019 and 20 April 2019 you inappropriately disclosed personal details about yourself and your private life to Service User A via text and/or WhatsApp messaging.
Allegation, particulars 1a) – 1 d)
82. The Registrant has largely admitted this particular. It has been found proved by admission that she had an inappropriate relationship and breached professional boundaries in her relationship with Service User A as alleged in particulars 1 a) – 1 d) (except for 1 a ii) and 1 b) - see below). The Panel was mindful that the entire body of the texts and WhatsApp messages are agreed evidence and are not disputed.
Allegation, particular 1 a) ii) – Proved
On or around 1 February 2019 you: ii) contacted Service User A from your personal mobile phone for a non professional purpose.
83. This particular was initially denied by the Registrant. The Panel considered the live evidence it heard from the Registrant. She said she was in a “panic” and she accepted in her live evidence that the messages she sent on 1 February 2019 to Service User A were not for a professional purpose. That is consistent with the admissions she had made and with the finding of an inappropriate relationship that was a breach of professional boundaries. Accepting the Registrant’s evidence, the Panel found this particular proved.
Allegation 1 b) – Not Proved
On or around 15 February 2019 you placed your hand on their thigh
84. The Panel found that the only evidence to support this was the hearsay evidence of Service User A, the Registrant denied this took place. The Panel considered the texts dated 15 February 2019, the day of the appointment between them. The text message at 12.35 from the Registrant to the service user refers to “fuck me” eyes and there are further texts between them that day. There are no texts from or to the service user referring to the alleged thigh touching. Service User A sends many texts that day to the Registrant, but he makes no mention of that alleged thigh touching. The Panel considered that, on balance, it was not likely that the texts would make no mention of touching if it had taken place. The Panel concluded that on the balance of probabilities, this particular was not proved.
85. Sexual Motivation - The Panel next considered sexual motivation as alleged at Particular 7 – Your conduct in relation to 1(a), 1(b), 1(c) and/or 1(d) above was sexually motivated. The Panel was mindful of the inferential nature of sexual motivation, and it assessed and weighed the evidence in the round. It considered the conduct alleged in the context of the entire admitted messages.
Was the conduct proved in particular 1 a) i) and a ii) sexually motivated ? - Yes
86. There is no record of any welfare check by the Registrant. The messages passing between the parties on 1 February 2019 are almost immediately of a friendly, personal and non-professional nature discussing personal plans.
87. The Panel looked at the evidence and the conduct proved in the round. The Panel found that the Registrant’s conduct in obtaining the service user’s personal number and contacting him on 1 February 2019, was part of a developing course of conduct by the Registrant towards the service user. The Registrant makes a joke about the use of her personal number when the service user asks. She does not, to any extent, dissuade him from using it, nor does she express any concern or warn him about the use of her personal number. He then uses Whatsapp to send her a message to which she swiftly replies.
88. The texts are admitted, agreed evidence. The Panel found that it would not be appropriate in its analysis of the evidence, and would be artificial when considering sexual motivation, to compartmentalise the texts and ignore the wider context. To see the Registrant’s conduct as a whole, in the context of the admitted, inappropriate relationship in which the texts were sent and received, is critical to the Panel’s analysis and assessment of the evidence.
89. The Panel found the Registrant’s conduct in this particular was a small part of a wider context in which the Registrant sought to befriend and gain the trust of the service user. Given the texts as a whole, and how their nature, content and tone swiftly developed in February and March 2019, the Panel found that this conduct in these messages was sexually motivated.
90. The Panel concluded that this conduct by the Registrant was made in pursuit of a future sexual relationship with the service user, and that is reflected in the texts sent that day. They were part of the Registrant’s longer- term intention to seek a sexual relationship with the service user and were sexually motivated.
Particular 1 c) - Between 1 February 2019 and 20 April 2019 you had an inappropriate relationship with Service User A, both in person and via text and/or Whats App messaging.
Was the conduct proved in particular 1 c) sexually motivated ? - Yes
91. As stated above, the Panel considered the texts and WhatsApp messages as a whole. The texts are frequent and there are very many over a short period of time in the period alleged. The Panel was mindful that these texts are not denied and took place within what the Registrant admits was an inappropriate relationship which breached professional boundaries.
92. Many of the texts are personal and friendly and are not sexual. However, many of the texts are overtly and manifestly flirtatious, have strong sexual overtones and contain clear sexual innuendo and sexual references. At times, the messages make it clear that they were flirting with one another. The Registrant did not try to discourage the service user. She frequently engaged in lengthy sexualised chat with him. She does not stop replying to him nor does she leave the conversations. The Panel found that it can be reasonably inferred from the sexualised, and at times crude nature and tone of the texts, that both parties were seeking some degree of sexual gratification from the exchange of messages and were seeking a sexual relationship.
93. The Panel did not find the Registrant’s explanation as to why she had not simply blocked his number to be credible or plausible. She said he would simply contact her in other ways, but that revealed that she had provided him with further, alternative methods of making contact with her. The Panel took account of the evidence from the Registrant that at times she felt stressed and harassed by the service user and she said she had needed to placate him. However, the Panel found that evidence was hard to reconcile with, and was not consistent with or reflected in, the nature or tone of the many messages sent and received which the Panel have considered. The Registrant appeared at times to initiate contact, and she frequently appears to have encouraged and sought attention from the service user. More than once she tells the service user that she loves him and many times she sends him kisses “xxxx”.
94. The Panel found that the Registrant’s position was not credible when asked about the messages. She often seemed to evade giving direct explanations of messages and she repeatedly stated that either she could not recall sending the text, or that she could not explain why she had sent it. She frequently stated that her responses to him were made because she had been seeking “clarification” of what the service user had meant. Having
considered the messages the Panel found that explanation made little sense.
95. The Registrant accepted that many messages appeared, with hindsight, to be seeking a romantic relationship, including sexual contact. Despite that, she denied that was ever her intention. She denied ever being attracted to the service user, although she repeatedly told the service user she loved him, sent him kisses and used the phrase “gf” - girlfriend, to describe herself.
96. The Panel did not accept the Registrant’s evidence about her lack of any sexual interest in the service user. It found that evidence was inconsistent with her conduct and with the sexualised nature and content of the many texts she sent Service User A. Having considered the messages, and giving them a fair and reasonable interpretation, the Panel found that the Registrant’s evidence about her absence of sexual motivation lacked plausibility and was inherently improbable. The Panel found that the messages were sexually motivated, the Registrant was seeking a sexual relationship with Service User A.
97. The Registrant accepted that she had met with the service user three times – twice at a restaurant and once at a carpark. Those meetings were in the period alleged and the Panel found that those meetings were a part of the course of conduct pursued by the Registrant in pursuit of a sexual relationship with the service user.
98. Having considered the content, nature and tone of the many messages sent to and by the Registrant, the Panel concluded that the Registrant’s evidence was not credible, plausible or reliable. It decided that between 1 February 2019 and 20 April 2019 the Registrant had an inappropriate relationship with Service User A, both in person and via text and/or Whats App messaging, and that the Registrant’s conduct in pursuing and conducting that relationship was sexually motivated.
99. Particular 1 d) - Between 1 February 2019 and 20 April 2019 you inappropriately disclosed personal details about yourself and your private life to Service User A via text and/or WhatsApp messaging.
Was the conduct proved in particular 1 d) sexually motivated ? -Yes
100. This is directed specifically at personal details and private life. The Panel found that anything out of a work and professional context is private and personal by definition. In the texts she frequently sent to him, the Registrant discusses with the service user her personal and private life, such as when she goes to bed, bathes, eats, what she drinks and her social life. The Panel found that, in context, this personal and private information was disclosed as part of the course of conduct embarked on by the Registrant to befriend the service user and to gain his trust and confidence in pursuit of a sexual relationship. The Panel found that it was therefore conduct that was sexually motivated.
Particular 2 – Proved
On or around 20 April 2019 you did not adequately report that Service User A disclosed that they felt suicidal
101. There is no witness statement from EG or JB, those whom the Panel were told by the Registrant she had contacted about this disclosure. AG told the Panel what EG had told her about this issue. It appears from the records that the Registrant had indeed left the Trust by this date, her last day of work being 12 April 2019.
102. There is no independent evidence of the facts. However, the Registrant admits this particular, but denies that what she did was not adequate. The Panel heard from a trained safeguarding Marton, SW. She was clear that she knew no particular details of this case and she stressed that each case was different depending on the circumstances presented. No mandatory procedure was in place, but a risk assessment was an important element.
103. The Registrant told the Panel about the contact she made with EG whom the Registrant said told her that she would take it further. The Registrant accepted that she should have done more by reporting the matter to safeguarding, but she did not do so. In her own evidence, the Registrant accepted that she had not done a risk assessment, asserting that the service user was in fact safe at home with his parents. She seemed convinced that this significant disclosure was not genuine but was an attempt to control her.
104. With the word “adequate” in mind, the Panel decided that, whilst the Registrant had taken some steps to report the disclosure, she had not done so adequately. She made no risk assessment and made no referral to safeguarding. The Panel found that was not an adequate response by a health care professional to this serious disclosure.
Particular 3 - On 28 May 2020 you wrote and signed a police witness statement that contained false statements. In that:
a. You stated “when he wasn’t my patient, I gave Service User A my personal phone number”
b. You stated “we met up socially three times after he was no longer my patient”
c. You stated “I didn’t have any romantic intentions towards Service User A”
d. When referring to Service User A telling you he loved you, you stated “I felt uncomfortable about this and said that I did not feel the same way, and that I only wanted to be friends”
105. The Registrant admitted she made these four statements and admits dishonesty regarding 3 a). It was not clear to the Panel whether her admissions included an acceptance that they were false statements.
106. The Panel considered the police interview notes. The Registrant’s position in her witness statement was that she thought what she was saying was correct at the time and so it wasn’t a false statement. However, the Registrant’s live evidence was that she now accepts that there were three meetings with the service user which took place on 23 March 2019 (at a restaurant), 4 April 2019 (also at a restaurant) and 17 April 2019 (in a supermarket carpark). AG’s evidence confirms that Service User A was in the Registrant’s care until 12 April 2019 (the Registrant’s last day of work after her notice period ended), his last appointment being 29 March 2019.
107. The Panel accepted the evidence from AG and this is consistent with the Registrant’s own live evidence. It therefore found that 3 b) was a false statement.
108. Particulars 3 c) & 3 d) - Having taken account of the many messages sent by the Registrant, including multiple messages from her telling Service User A that she “loved” him, some of them unprompted, the Panel was satisfied that these statements were false. The messages she sent to the service user were clearly expressing romantic intentions and the Panel has found that they were sexually motivated. Statements 3 c) and 3 d) were made by the Registrant and they were false.
Particular 6 - Your conduct in relation to particular 3 above was dishonest and/or misleading.
109. The Panel found that the Registrant was frequently less than open with the Panel when pressed about the messages. She frequently stated that she could not recall sending the messages and said that she could not explain why she had sent them. At one point she denied sending a message despite having admitted sending them at the outset of the hearing. The Panel found that her evidence lacked cogency and clarity, and it was not credible or reliable.
110. The Registrant in her live evidence accepted that, in respect of these statements, they were misleading. It appeared to the Panel that, to some extent, she accepted her conduct was dishonest, clearly, she did so by admitting dishonesty in respect of particular 3 a). The Panel found the statements she made alleged at particular 3 a) to d) were misleading and were intentionally so.
111. The Panel did not accept that the Registrant made an honest mistake about the truth of the statements to the police. It found that she knew she was being misleading and dishonest when she made them. She has admitted dishonesty for the statement in 3 a). The Panel, applying the test in Ivey, found that the Registrant knew that she was being dishonest and that by the objective standards of ordinary, decent people her conduct was dishonest.
Submissions on Grounds
112. Ms Vanstone for the HCPC referred to the relevant case law and submitted that the conduct found proved was serious. She submitted that each of the allegations proved by themselves amounted to serious misconduct including dishonesty and breach of professional boundaries. She stressed that the conduct also took place over a lengthy period of time.
113. Ms Vanstone referred to the HCPC Standards of Conduct, Performance and Ethics [2016] and submitted that the following standards had been breached: - 1.7; 2.6; 2.7; 6.1; 7.1; 7.3; and 9.1. She also referred the Panel to the HCPC Practice Note on professional boundaries and the aggravating factors that she submitted were engaged, including power imbalance, vulnerability and abuse of power.
114. Ms Adeyemi for the Registrant submitted that the matter of misconduct was an issue for the Panel, and that the Registrant apologised.
Decision on Grounds
115. The Legal Assessor reminded the Panel of the guidance on misconduct in Roylance v GMC (no 2) [2000] 1 AC 311 where it was defined as: “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances.” He advised the Panel to be mindful of the need to consider the seriousness of the conduct found proved and also any relevant professional standards. Misconduct was a matter for the professional judgment of the Panel.
116. The Panel accepted the legal advice. It was of the view that the factual findings both individually and together were serious. The findings of dishonesty, breach of professional boundaries and sexual motivation are all findings of considerable gravity. These findings all breach fundamental tenets of the profession notably trust, integrity and honesty.
117. The Panel considered the relevant HCPC Standards [2016] and found that the following professional standards had been breached:- 1.7; 2.7; 6.1;
7.1; 7.3; 7.4 9.1; and 10.1
1.7 You must keep your relationships with service users and carers professional.
2.7 You must use all forms of communication appropriately and responsibly, including social media and networking websites
6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible
7.1 You must report any concerns about the safety or well-being of service users promptly and appropriately.
7.3 You must take appropriate action if you have concerns about the safety or well-being of children or vulnerable adults.
7.4 You must make sure that the safety and well-being of service users always comes before any professional or other loyalties.
9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.
10.1 You must keep full, clear, and accurate records for everyone you care for, treat, or provide other services to.
118. Accordingly, the Panel concluded that the conduct proved was serious and amounted to misconduct.
Impairment of fitness to practice: Registrant’s evidence
119. The Panel heard live evidence from the Registrant on current impairment of her fitness to practice. The Registrant explained that she had accepted that she broke the HCPC Standards. She said that she had thought at the time she was doing the right thing. She explained her current view of professional boundaries including protecting service users and professionals. She said she had been unwell at the time, had been moving home and had suffered some personal issues [REDACTED]. The Registrant said that looking back she could not remember some of the messages she had sent and said she had made no sexual innuendo. She did not think the messages were sexually motivated and said she had been fearful of the service user. She had felt that he had no one else to turn to.
120. [REDACTED]
121. The Registrant said that she now felt less vulnerable and would ask for help from colleagues. She said that if she crossed a professional boundary in the future, she would let a colleague know and would be truthful. She said that being open and honest would be less embarrassing than not disclosing such an issue.
122. The Registrant said that she had completed professional boundaries training by going through a power point she had “googled”. She said that boundaries were there for everyone, including staff members and that all interactions that breached boundaries must be reported. She said she was a very caring person, and she had been too emotionally involved with Service User A. She said that now she discussed any concerns with her current team leader and would not use a personal phone to contact service users.
123. The Registrant told the Panel about the Information Governance course she had completed. It was mandatory training, and it had explained the accessing of patient records. She said that this had helped her reflective practice.
124. The Registrant said that in her current role as a wellbeing officer she had dealt with several colleagues who had sought her support regarding suicidal ideation. She had risk assessed and referred those colleagues to further support, including referrals to safeguarding. She said she had also done further training on safeguarding. The Registrant said that the courses she had done on effective communication and conflict resolution had been helpful. In her current role as a wellbeing officer with UHB she had been nominated for awards.
125. The Registrant said honesty was important in her profession, and the public needed to have confidence in the OT profession. She said she was not a dishonest person, but she had panicked at the time. Since then, she has been honest about her diagnosis.
126. The Registrant said that her conduct will have negatively impacted Service User A and that was not her intention. She said that he had been looking for someone to love him. She understood that he would have been hurt and upset. She understood that the public may see her as having betrayed her trusted position.
127. The Registrant said that this all happened at a difficult time in her life, and she had a supportive team both at work and in respect of her health. She said she is not “that person” anymore and she had changed. She said she was sorry for her actions but some good had come out of it as she now had a diagnosis, and she was stable.
128. In cross examination, the Registrant said that she had looked at the professional boundaries PowerPoint in 2022 and had also done some reading on the issue. If she had not used her own phone, she said she would not have sent any texts and would not have blurred professional boundaries. She said the public would consider she was a “bad” person for being dishonest and a “predator” for her conduct with Service User A. She said her first two referees did know about the allegation. DT is her team lead, and he knew the allegation. The Registrant said that she had told the other referee about the hearing but had not gone into much detail.
Submissions on Impairment
129. Ms Vanstone referred the Panel to the case law and guidance on impairment. She reminded the Panel that impairment was a matter for its professional judgement. She submitted that there was an absence of targeted training and continuing professional development. No reflections have been provided about the courses attended. She submitted that the conduct has not been remedied. She submitted that the Registrant maintained her position on the messages. [REDACTED]
130. Ms Vanstone submitted that there was a risk of repetition. She referred the Panel to the case of GMC v Dugboyele [2024] EWHC 2651 (Admin) where the judgement emphasised the seriousness of findings of sexual misconduct and the importance of the public interest. She submitted that the four limbs of the Grant case were engaged. Ms Vanstone submitted that a finding of impairment was required both on public protection and public interest grounds.
131. Ms Adeyemi submitted that the Registrant has moved on considerably since these events. She submitted that the Registrant would not repeat her misconduct because she had reflected. The Registrant was entitled to resist the allegations and to maintain her position, but that did not mean she had no insight. She submitted that the Registrant had learned, and she had demonstrated that she understands the issues that led to her misconduct. Her health is a factor and the Registrant’s view of her health conditions was a part of her reality. She submitted that there were no concerns about her competence, and she has worked without issues as a wellbeing officer, albeit that is not an OT role.
132. Ms Adeyemi submitted that the Registrant has demonstrated in her current role that she has learned, and she has not repeated her misconduct. The Registrant’s references were positive and spoke of her trustworthiness, and her appraisal referred to her knowledge of her boundaries. Ms Adeyemi submitted that the public would be content for no further action to be taken given the work the Registrant has done and the help she had given colleagues in her current role. Ms Adeyemi submitted that the Registrant’s fitness to practice is not currently impaired.
Decision on Impairment
133. The Panel accepted the advice of the Legal Assessor who referred it to the HCPC Practice Note on impairment and to the relevant case law including the guidance in CHRE v NMC and Grant [2011] EWHC 927 (Admin). He reminded the Panel of the central importance of considering the Registrant’s insight, any remediation of her practice and the risk of repetition of the misconduct. The Panel should not lose sight of the wider public interest.
134. The Panel was of the view that the misconduct is wide ranging and covers several distinct areas of professional conduct - breach of professional boundaries, dishonesty, sexual motivation, and a failure to adequately record and deal with concerns raised. The misconduct is remediable, although the Panel acknowledged that dishonesty and sexual motivation can be particularly difficult to remediate, but not impossible.
135. The Panel next considered whether there is evidence that the Registrant has taken sufficient steps to remediate her misconduct. The Panel heard live evidence from the Registrant at the impairment stage and it was provided with a number of positive testimonials.
136. As regards the issue of safeguarding and escalating concerns, the Panel found that the Registrant appears to have learned more about safeguarding in her current role as a well-being officer (which is not an OT role). She appears to have reflected on this deficiency and to have improved her practice in this particular regard. The Panel found that, to an extent, the Registrant has remediated her misconduct in respect of this area of practice. The Panel heard no evidence about any reflection or remediation of the finding of inadequate record keeping.
137. The Panel heard from the Registrant on the issue of dishonesty. It found that she demonstrated some, limited insight into her dishonesty. However, she did not sufficiently deal with her dishonesty to both the police and to her colleagues, whom she sought to mislead. She did not demonstrate that she had reflected adequately on the impact of her actions. The Panel found that there was limited evidence of reflection and insight into this serious aspect of the misconduct, and it found there was some limited evidence of remediation. The reflection produced was very limited and the Registrant was unable to explain to the Panel in her evidence why she had not completed her written reflections on all of the breaches of professional standards. The Panel concluded that there was a lack of evidence of meaningful and sufficient insight or remediation into the dishonesty found, and there was a consequent risk of repetition.
138. The Panel considered the findings of sexual motivation and breach of professional boundaries, two closely linked issues. It found that the Registrant did not demonstrate any meaningful insight into her sexually motivated conduct with a vulnerable service user. The Panel found that her knowledge and explanation of professional boundaries was superficial. She has not, for example, completed any courses on professional boundaries and simply referred to having read a PowerPoint on the issue several years ago. She did not provide evidence of any relevant courses, training or reflection undertaken in respect of sexual motivation or professional boundaries, two of the most serious aspects of the misconduct found.
139. Whilst the Panel appreciate that she is entitled to deny the allegation, it was concerned that, despite the findings, the Registrant appeared to maintain her position on sexual motivation. She stated again that she could not recall sending some of the messages. That is irrelevant given her admissions and the misconduct found proved. She maintained that there was no sexual innuendo, directly contradicting the findings of the Panel. The Panel found that this demonstrated a serious lack of reflection and insight and an unwillingness to acknowledge her wrongdoing.
140. The Panel found that the Registrant did not deal with the texts and continued to avoid properly acknowledging their content and impact. She demonstrated no reflection or insight into her sexual motivation, and demonstrated a very limited understanding of her motivation, conduct and behaviour.
141. Furthermore, the Panel was struck by the Registrant’s evidence about the impact of her conduct on Service User A. When asked about the service user, the Panel found that the Registrant showed a lack of empathy or remorse. Instead, she focussed on her health and said that some good had come out of the incident as it had resulted in her diagnosis and treatment.
142. The Panel found that what limited reflection she demonstrated, was significantly focussed on herself and her own wellbeing. The Registrant demonstrated limited remorse or regret in respect of the emotional harm she likely caused to Service User A as a result of her sustained breach of professional boundaries and sexually motivated conduct. She appeared far more concerned with her own well-being than the care, safety and welfare of the service user.
143. The HCPC’s case was explicitly not based on health issues or any diagnosis. That was made clear to the Registrant. Despite that, the Registrant was highly focussed on her own health and wellbeing. Whilst, on one view that may be understandable, there was no evidence before the Panel that, to any extent, her health condition was a causative factor in her misconduct. This is not a health case, and the finding of misconduct is based wholly on the facts found proved and is not based on medical evidence or any health conditions. There was no evidential basis on which to make any findings that the misconduct was linked to or were a result of the Registrant’s health (and that was not the role of this Panel in any event).
144. As a result, the Panel found that there is a real risk of repetition of the misconduct in respect of these two serious aspects of the misconduct, that is professional boundaries and sexual motivation. There was a profound lack of insight into those findings and no evidence of remediation, and the Panel therefore concluded that there was a real risk of repetition and a risk of harm to service users.
145. The Panel was mindful of the guidance on impairment and the four limbs in the Grant case expressed as follows: -
“Do the finding show that fitness to practise is impaired in the sense that:
a) Has the Registrant in the past acted and/or is liable in the future to act in a way so as to put service users at unwarranted risk of harm;
b) Has the Registrant in the past brought and/or is liable in the future to bring the profession into disrepute;
c) Has the Registrant in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession?
d) has in the past acted dishonestly and/or is liable to act dishonestly in the future.”
146. The Panel was also mindful of the guidance on the wider public interest in Cohen v GMC [2008] EWHC 581 which stated: “the critically important public policy issues which are: the need to protect the individual and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect…and that the public interest includes amongst other things the protection of service users and the maintenance of public confidence in the profession.”
147. The Panel found that all four limbs of the Grant analysis were engaged. The Registrant has in the past and is liable in the future to place service users at unwarranted risk of harm; she is in the future liable to bring the profession into disrepute and to breach fundamental tenets of the profession, namely honesty, trust and integrity; and she is in the future liable to act dishonestly.
148. The Panel concluded, given the nature and gravity of the misconduct, that the public would be concerned and would be placed at risk were a finding of impairment not made in this case. Public confidence in the profession would also be undermined. The Panel decided that on both the personal and the public element, the Registrant’s current fitness to practice is impaired.
Submissions Sanction
149. Ms Vanstone referred the Panel to the HCPC Sanctions Policy and to the need to act proportionately. She submitted that the aggravating factors may be breach of trust, repetition of concerns and dishonesty, lack of remorse, insight or apology and a lack of remediation. She referred to paragraphs 40, 56, 58, 60, 69, 76 and 77 of the HCPC Sanctions Policy on the seriousness of the concerns.
150. Ms Adeyemi reminded the Panel that the Registrant had apologised. The Registrant had sought to be calm in the hearing but had not been cold. The Registrant accepted all of the issues were her fault and that she had caused harm to the service user, and she was very sorry. Ms Adeyemi submitted that conditions of practice would be appropriate and would protect the public and referred to paragraph 106 of the Sanctions Policy.
151. Ms Adeyemi submitted that the Registrant accepted that she had abused her position of trust and had caused actual harm to the service user. However, she had made admissions, had engaged fully and had expressed
remorse. The Registrant was junior as she was only three years qualified at the time. She had tried to remediate but accepted that she had some way to go. [REDACTED]
152. Ms Adeyemi submitted that removal from the Register would be disproportionate and unnecessary. She submitted that lack of insight was not the same as an inability or unwillingness to resolve matters. The Registrant fully understood that she needed to remediate. The Registrant had worked for two years with service users without issue, although not in an OT role. She had been subject to an interim conditions of practice order since 23 March 2022 but was unable to find an OT role. She said that the Registrant can be trusted.
153. Ms Adeyemi submitted that conditions of practice should be imposed as the Registrant did not pose a risk of harm. She suggested that conditions requiring formal education, training, monitoring, supervision and a personal development plan would be appropriate and would be subject to review. She submitted that there was insight, albeit not yet fully developed. Ms Adeyemi submitted that the public interest would be satisfied if the risks are addressed by conditions and the Registrant is engaged and willing to improve her practice.
Decision on Sanction
154. The Panel accepted the advice of the Legal Assessor who referred to the HCPC Sanctions Policy and reminded the Panel to act proportionately and to apply the least restrictive sanction that would serve to protect the public and the wider public interest.
155. The Panel was mindful of the HCPC Sanctions Policy and the Practice Note on Professional Boundaries. It first identified the aggravating and mitigating features. It found the following mitigating features:
• Some early admissions
• Apology and an acknowledgement of harm caused
• Some, limited insight and remediation
• Some difficult personal circumstances at the time
• Working in a health care environment without further incident (not as an OT)
156. The Panel found the following aggravating features, and it found all to be powerful factors:
• Abuse of trust
• A deliberate and sustained course of sexually motivated conduct
• A power imbalance
• Placing her interests ahead of the interests of the service user
• Dishonesty to both the police and to colleagues about the relationship
• Failure to work in partnership given the dishonesty to colleagues
• A serious lack of insight and remediation
• The vulnerability of the service user
• Predatory and persistent behaviour
• The harm caused to the service user
• Failing to recognise and report the breach of professional boundaries
157. The Panel was mindful of the Sanctions Policy on seriousness and considered paragraphs 56, 59, 62, 67- 69, 71, 72, 73 – 75, 76 and 77. It found that these factors were all significantly engaged in the circumstances of this case, and that this case was therefore particularly serious.
158. The Panel considered that in light of the nature and gravity of this case that mediation, taking no action and a Caution Order would seriously fail to reflect the seriousness of the findings. None of these orders would restrict the Registrant’s practice, and none would serve to protect the public given the risk of repetition identified. Such orders would significantly undermine public confidence in the profession and the regulator and would fail to uphold proper professional standards.
159. The Panel next considered Conditions of Practice, and it considered paragraphs 105 and 106 of the Sanctions Guidance. The Panel took account of the seriousness of the findings and the risks identified. It has identified limited insight into some areas of misconduct, but the Panel has found that the Registrant has no insight into the sexual motivation.
160. In such circumstances, the Panel decided that there were no sufficient, proportionate or workable conditions that could be devised which would protect the public and adequately manage what are attitudinal and behavioural issues coupled with a serious lack of insight and remediation. The Panel decided that conditions of practice would also fail to reflect the gravity of the findings, fail to uphold proper standards and would fail to maintain public confidence in the profession.
161. The Panel considered suspension and took account of paragraph 121 of the Sanctions Policy and the factors set out: -
• the concerns represent a serious breach of the Standards of conduct, performance and ethics;
• the registrant has insight;
• the issues are unlikely to be repeated; and
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.
162. There is no doubt the findings represent a very serious breach of professional standards. Further, the Panel has decided that the Registrant has limited insight generally and has demonstrated no insight in relation to the findings of sexual motivation. The Panel has found that there is a real risk of harm and a risk repetition of three of the most serious aspects of misconduct, namely dishonesty, breach of professional boundaries and sexual motivation. In the years since this incident, whilst she may be able to do so, the Registrant has failed to demonstrate she has taken steps to properly address or sufficiently remedy the failings. In all the circumstances, the Panel decided that suspension would not sufficiently address the seriousness of this case.
163. The Panel considered paragraph 130 of the Sanctions Policy regarding Striking Off Orders. This lists a number of factors, and the Panel found that five of those factors were engaged in what it has found was a deliberate and persistent course of conduct by the Registrant:
• dishonesty;
• failure to raise concerns;
• failure to work in partnership;
• abuse of professional position, including vulnerability;
• sexual misconduct;
164. In the circumstances of this case and given the nature and gravity of the multiple serious concerns, the Panel concluded that nothing less than a Striking Off Order would be appropriate and proportionate. With paragraph 131 of the Sanctions Policy in mind, the Panel decided that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process.
Order
The Registrar is directed to strike the name of Nicole Roberts from the Register on the date this order comes into effect.
Notes
Interim Order
Application
1. In light of its findings on sanction, the Panel next considered an application by Ms Vanstone for an Interim Suspension Order to cover the appeal period before the Sanction becomes operative. This was opposed by Ms Adeyemi.
Decision
2. The Panel accepted the advice of the Legal Assessor who referred it to the HCPTS Practice Note on Interim Orders. He reminded the Panel that an Interim Order must be necessary to protect the public or be otherwise in the public interest. The Panel must act proportionately and balance the interests of the Registrant with the need to protect the public.
3. The Panel decided that it would be wholly incompatible with its earlier findings and with the Striking Off sanction imposed, to conclude that an Interim Suspension Order was not necessary for protection of the public or otherwise in the public interest. Accordingly, the Panel concluded that an Interim Suspension Order should be imposed on both public protection and public interest grounds. It decided that it is appropriate that the Interim Suspension Order be imposed for a period of 18 months to cover the possible appeal period. When the appeal period expires, this Interim Order will come to an end unless there has been an application to appeal. If there is no appeal the Striking Off Order shall apply when the 28 day appeal period expires.
Hearing History
History of Hearings for Nicole Roberts
| Date | Panel | Hearing type | Outcomes / Status |
|---|---|---|---|
| 07/01/2025 | Conduct and Competence Committee | Final Hearing | Struck off |
| 30/09/2022 | Conduct and Competence Committee | Interim Order Review | Adjourned |