Michal J Grzywacz

Preliminary Matters

Hearing in private

1. During the hearing, the Legal Assessor advised the Panel that it may exercise its discretion to hear part of the hearing in private to protect the private life of the Registrant or other individuals. There is a public interest in open justice, but this should be balanced with the interests of individuals where reference is made to details of their health or private life.

2. The Panel heard submissions from the Registrant and from Mr Barnfield on behalf of the HCPC, who did not oppose the Panel exercising its discretion in this limited way.

3. The Panel decided that it was appropriate for part of the hearing to be heard in private. This decision was limited to references to the health of a relative of the Registrant, and to details relating to the Registrant’s private life. The remainder of the case was heard in public in accordance with the principle of open justice.

Application to admit new evidence

4. During the evidence of MP both parties made an application to admit new evidence which had not been served in accordance with the directions. Mr Barnfield submitted that the evidence he sought to admit was relevant, and that it would be fair to admit it, despite the late disclosure. The Registrant invited the Panel to admit an e-mail which he had identified as relevant in light of the witness evidence.

5. The Panel accepted the advice of the Legal Assessor. She advised that the Panel may exercise its case management powers to permit either or both of the parties to rely on documents which have not been served in accordance with standard directions. The requirements for the admissibility of evidence are that it must be relevant, and that the admission of the evidence must be fair. The Legal Assessor also advised on the steps that should be taken if the Panel were to admit the new documents.

6. The Panel decided to agree to both applications and admit the new evidence. The documents, as outlined by the parties, were potentially relevant to the Allegation. Although the documents have been provided at a late stage, the Panel did not consider that this created unfairness for either party. Both parties had an opportunity to consider the documents and to prepare questions for the HCPC witness, MP.

Application for an adjournment

7. Prior to the hearing the Registrant made an application for an adjournment due to family circumstances. He advised that he was travelling and providing care [redacted]. The HCPC had requested medical evidence to support the application, but this had not been provided. The Panel Chair did not agree the request for an adjournment.

8. The Registrant attended the hearing on 13 January 2025 and provided information that he would not be able to attend the hearing on 14 or 15 January 2025. The Registrant stated that he would be able to attend on 16 and 17 January 2025. He told the Panel that he was flying to Poland on 14 January 2025 and that on 15 January 2025 he would be travelling [redacted]. He said that the travelling time would be significant, such that he would not be available at all on 15 January 2025.

9. At the conclusion of the hearing on 13 January 2025, the Registrant was invited to state whether his intention would be to give evidence to the Panel and whether he wished the Panel to adjourn or to continue with the hearing in his absence. The Registrant stated that he did wish to give evidence, and that he would prefer the Panel to adjourn the hearing until 16 January 2025. The Registrant acknowledged that the documents he had provided relating to his [relative]’s health were in Polish and that he had not provided a translation.

10. On behalf of the HCPC, Mr Barnfield opposed the application for an adjournment. He submitted that the application was not supported by medical evidence and that a strict approach should be taken. He also submitted that there was a real risk that the hearing would not be completed if the adjournment were to be granted.

11. The Panel accepted the advice of the Legal Assessor. The options open to the Panel were to agree the Registrant’s application for an adjournment until 16 January 2025, or to proceed with the hearing in the Registrant’s absence. The Legal Assessor’s advice included reference to the cases of General Medical Council v Adeogba [2016] EWCA] Civ 162 and R v Jones [2001] QB 862. The Panel should consider fairness to the Registrant, fairness to the HCPC, and the public interest in expedition. The Legal Assessor also confirmed that in cases where an application for an adjournment is made for medical reasons, it would be expected that there should be medical evidence to support the application.

12. The Panel carefully considered the information in support of the application for an adjournment. The Registrant attended the first day of this hearing and stated that he would attend on 16 January 2025. The Panel was of the view that the Registrant has engaged and was not seeking to frustrate the process. The Panel heard directly from the Registrant on the reasons he is unable to attend the hearing on 14 and 15 January 2025 and had the opportunity to question him. The Panel was able to correlate the information the Registrant has provided with other information in the bundle. Although the Registrant has not provided a translation of the documents relating to his [relative]’s health, he has stated that those documents relate to her treatment. On balance, the Panel was satisfied that there was sufficient information to support the application for an adjournment.

13. The Panel next considered the balance between the Registrant’s interests, fairness to the HCPC, and the public interest. The Panel considered that if the adjournment were not granted, the Registrant’s ability to present his case would be compromised and he would potentially be placed at a significant disadvantage. The HCPC case was concluded, and the next stage of the case would be to hear the Registrant’s case. The Registrant stated that he wished to give evidence to the Panel. If the Panel were to continue with the case, the Registrant would not be able to give evidence or make submissions on the facts. If the Panel were to agree the adjournment, there would be no disadvantage to HCPC witnesses, because the HCPC case has concluded. The Panel agreed with the HCPC submission that there was a risk that the case may not be concluded. However, the Panel considered that this disadvantage was outweighed by the requirement that the hearing should be fair for the Registrant. The public interest was secured by the continuation of the hearing on 16 January 2025.

14. The Panel therefore decided to adjourn the hearing until 16 January 2025.

Background

15. The Registrant is a registered physiotherapist. At the time of the concerns, he was working in private practice as an employee of Woolton Physiotherapy (“WP”). He was employed from 4 May 2022 to 21 March 2023.

16. The Registrant’s contract of employment provided:

“20.1 You are required to devote your full time, attention, and abilities to your duties during your working with Woolton Physiotherapy. You must not undertake any employment or engagement which might interfere with the performance of your duties or conflict with the interests of Woolton Physiotherapy.

20.2 You are required to notify a Director/Manager if you intend to undertake any employment or engagement paid or unpaid (including any such employment or engagement which commenced before your employment under this contract). You will be notified within 10 working days whether such employment or engagement is prohibited.”

17. Prior to his employment at WP, noting the terms of his contract of employment, the Registrant advised WP that he had another business which was not related to physiotherapy (inspirational speaking and young football coaching). It was agreed by MP, Clinic Director of WP, that this was not a problem as it was not in conflict with his new role. The Registrant sent an e-mail to MP on 21 April 2022. He referred to his contract of employment and advised MP of his company “Potential Mastery” and stated that he provided “mental coaching and sports physiotherapy (injury prevention training) for the young football players”. MP was content with this e-mail which was consistent with the discussion in interview.

18. On 6 October 2022 MP promoted the Registrant to the role of Head Clinical Lead. He remained subject to the terms of his contract of employment.

19. In December 2022 MP became aware that the Registrant was advertising a member of WP staff, Colleague A, on his website.

20. On 8 February 2023, MP held an informal meeting with the Registrant about LP’s involvement. The Registrant gave MP an explanation and agreed to remove LP from his website. MP sent an e-mail to the Registrant dated 8 February 2023 in which she stated that she accepted the Registrant’s apology and would draw a line under the matter. She referred to “mutual respect, honesty, transparency and integrity between myself and my staff”. In a record of appraisal (February 2023) MP made a written comment that the Registrant’s apology had been accepted “with warning” and that his businesses providing inspirational and coaching seminars and coaching young players were acceptable because this was not Physiotherapy, but “be mindful you should always discuss any other work outside your employed role with WPC with myself first."

21. Unknown to MP, in around September 2022, the Registrant incorporated EPO Performance Ltd [“EPO”]. He created social media profiles and promotional material for EPO which advertised physiotherapy treatment.

22. As part of his role at WP, the Registrant had access to WP’s web design and marketing service, Flatdot Marketing. It is alleged that he used this relationship to obtain images via WP’s account with Flatdot which he then used in the promotional materials for EPO.

23. Whilst developing the business, the Registrant asked a colleague at WP, Colleague A, to become involved with a strength and conditioning project. He reassured Colleague A that this would not be a problem in relation to his employment with WP.

24. In late February or early March 2023, MP became aware of EPO, and Colleague A’s inclusion on marketing materials. The Registrant was ultimately the subject of local disciplinary proceedings, and was dismissed.

Admissions

25. The Registrant admitted the following facts 1(a), (b), (c), 2(a) (with comments), 2(b), 3(a), 5 and 6(c).

26. The Panel accepted the advice of the Legal Assessor. She referred the Panel to the HCPTS Practice Note on “Admissions”. She confirmed that it is open to the Panel to make findings of fact based on the Registrant’s admissions without hearing evidence on those matters. In considering the admissions, the Panel should bear in mind that the Registrant is unrepresented, and should note the entirety of his response to the Allegation, both in writing and orally.

27. The Panel decided that it was fair and appropriate to make findings of fact based on the Registrant’s admissions for particulars 1(a), (b), and (c), 3(a) and 5.

28. The Panel decided that at this stage it would not be fair or appropriate to make findings of fact on particular 2 or particular 6. These particulars involve dishonesty, and the Panel was of the view that, taking the Registrant’s responses as a whole, there was not an unequivocal admission of dishonesty. In his written submissions the Registrant stated that his intention was not to act dishonestly. Dishonesty is a serious matter, and in the Panel’s judgement this issue should be determined when the Panel had heard all the evidence.

Witness evidence

29. The Panel heard evidence from MP. She stated that she did not have concerns about the other businesses mentioned by the Registrant in his interview and email dated 21 April 2022 because it was prevention training and she understood that this was not connected to physiotherapy treatment. MP told the Panel about her expectation that employees should be totally committed to their employer and that the Registrant was aware of this.

30. MP was also asked about the Registrant’s promotion and spoke about her faith and belief in the Registrant and said that his duties became more important after his promotion. She told the Panel that the Registrant informed her that he was doing little if any seminar work for businesses, and a couple of hours for the children’s football coaching two hours a week. MP said that the Registrant understood that she needed him to be totally committed.

31. MP also gave evidence about her conversation with the Registrant on 8 February 2023 about the promotion of her employee, Colleague A, on the Registrant’s website. She said that she told the Registrant how upset and saddened she was and that it wasn’t right, but that she gave the Registrant the benefit of the doubt and he agreed to remove Colleague A from his website. She said that she wanted to be very sure that the Registrant understood what she wanted, which was openness and transparency.

32. MP was asked about her formal meeting with the Registrant on 14 March 2023. She confirmed that the account of the meeting was accurate. MP was referred to the list of physiotherapy treatments provided by EPO as shown on the screenshot from the website. She said that the treatments provided were the same as those provided by WP and that the Registrant was in direct competition with her company. EPO was offering services across the Wirral, and WP has a clinic in Birkenhead which is part of the Wirral. MP pointed out that the Registrant had incorporated EPO at the same time as she offered him the role of Lead Physiotherapist.

33. MP said that her contact at Flatdot Marketing was JD. She had given the Registrant authority to work with Flatdot Marketing. JD provided MP with an e-mail from the Registrant (30 December 2022) requesting 37 images from JD for WP’s ‘social media”. MP was not copied into this e-mail and the Registrant’s explanation for this in the e-mail was that the messages were not for the website. MP said that she did have an interest in all aspects of the presentation of WP on social media and that her exclusion from the e-mail was alarming. MP said that some of the images sent by JD were nothing to do with her business, but were related to the Registrant’s business, Potential Mastery. MP also told the Panel that some of the images requested from JD were used for the Registrant’s business.

34. MP was asked about the impact on WP. She stated that WP’s use of images through Flatdot marketing was not unlimited and that there was an overall cost for using the images. She told the Panel that if the Registrant requested 37 images that would reduce the number of images available for WP. She did not know how many credits were available, and said that it was not “set in stone”.

35. In answer to questions from the Registrant, MP said that within her company staff were required to adhere to the contract of employment and the staff handbook. She said that WP could provide home physiotherapy treatment and was not only providing clinic appointments.

36. In answer to questions from the Panel, MP stated that she did not follow up the e-mail from the Registrant dated 21 April 2022. She said that she did not consider the references to injury prevention training or sports physiotherapy to be a threat to her business because at the interview the Registrant told her that this did not involve hands on physiotherapy treatment. MP acknowledged that physiotherapy, particularly in the sporting field, may not involve hands on treatment. MP told the Panel that she considered it to be part of the responsibility of an employee to inform the employer of anything that might be considered to be a conflict with the employer’s business.

37. MP was also asked about the image that she recognised on the EPO website as the same image used to promote her business. She said that this was a “stock” image, not specific to the company and could be taken from the internet.

38. MP was asked further questions about new documents which had been admitted in evidence. She referred to an e-mail from the Registrant dated 28 February 2023 requesting a change in his working hours to substitute Thursday as his day off work. Within the e-mail the Registrant indicated that the change was due to changes relating to his personal life. MP told the Panel that she now makes a connection between this request and correspondence between the Registrant and a potential client of EPO (6 March 2023), in which treatment the Registrant offered treatment sessions on a Thursday. MP told the Panel that this was not right because she had made the change requested by the Registrant for the reasons set out within his letter and to assist him in his work life balance, whereas in fact he was working as a physiotherapist and building his own business.

39. The Panel read the witness statement of LH, which was agreed.

40. The Registrant provided a reflective statement and the Panel heard evidence from him. The Registrant told the Panel that he had a brief conversation with MP after he was interviewed for the position and that he informed her that his business did not involve “hands on” physiotherapy, but was coaching young people and inspirational speaking. The Registrant agreed that he knew that MP valued trust and honesty within her business and that she trusted him. He also agreed the content of his appraisal in January or February 2023 which recorded that he should always discuss any other work with MP.

41. The Registrant was asked about his meeting with MP in which he was promoted. He said that there was a discussion about his company, Potential Mastery, and that it would not compromise his role with WP. He told the Panel that it was an “oversight” that he did not mention in this meeting that he had incorporated EPO on 14 September 2022.

42. The Registrant was asked about the website for EPO and agreed that it advertised physiotherapy treatment in the Wirral area. The Registrant said that he did not know that WP provided home physiotherapy services. He denied that he had requested a change in the timing of his day off work to suit himself and his business.

43. The Registrant was asked about Flatdot marketing and agreed that WP paid for the services provided by Flatdot and access to images. He said that when he was in communication with JD he was assured that there was no limit on the number of images. The Registrant accepted that two of the images MP had seen on the EPO website were within the list of images provide by JD from Flatdot marketing. The Registrant said that the images are publicly available as “stock” images and in Poland he used such images. It was a coincidence that the images on the EPO website came from the same source that Flatdot used (Envato).

44. The Registrant said that he didn’t include MP in his e-mail exchange with JD because he didn’t want to overwhelm her. He denied that he deliberately kept her out of the loop. The Registrant said that his request in the email to JD that the email should be “just for us” was not an instruction to keep the content of the email secret and that this was not his intention. The Registrant denied that he used Flatdot marketing for his own business and that it was not his intention to mislead MP or Flatdot.

45. The Registrant was asked about the documents which demonstrated that he was advertising physiotherapy services on EPO in December 2022. He agreed that a review on 19 December 2022 on a social media site referred to rehabilitation treatment was linked to the EPO website. The Registrant said that he did not see this as an advert for physiotherapy services. He said that he did not consider that his discussion with Colleague A was misleading because strength and conditioning was not offered by WP, the services were provided after working hours, and there was not a direct conflict with WP.

46. In his reflective statement the Registrant apologised for his behaviour, and expressed his remorse. He outlined his personal circumstances at the time of the events which he said provided context, but not an excuse for his actions. [Redacted]. The Registrant said that he felt an obligation to support his [relative] financially and was therefore seeking additional income to cover the expenses. The Registrant stated that he was committed in the future to adhering strictly to professional guidelines, fostering transparency, and seeking guidance when faced with uncertainty.

Decision on Facts

47. The Panel heard submissions on the facts from Mr Barnfield and from the Registrant.

48. The Panel accepted the advice of the Legal Assessor. She reminded the Panel of the burden and standard of proof. She also advised the Panel on the test for dishonesty and referred the Panel to the HCPTS Practice Note “Making decisions on a registrant’s state of mind”.

49. The Panel was mindful of the legal advice and the guidance in the case law. It assessed all the evidence in the round.

Particular 2

Your actions at particular 1 above were dishonest in that you knew:
a) You were not permitted to undertake any employment or engagement which might interfere with the performance of your duties or conflict with the interests of WP;
b) You were required to notify WP if you intended to undertake any employment or engagement, paid or unpaid.

50. The Panel first considered what the Registrant knew or believed as to the facts and circumstances. He knew and understood the requirements of Clause 20 of his contract of employment. He referred to the terms of Clause 20 in his email to MP dated 21 April 2022. The Registrant therefore knew that he was required to notify WP if he intended to undertake any employment, paid or unpaid.

51. The Registrant also knew that he was not permitted to undertake any employment which might interfere with the performance of his duties or conflict with the interests of WP. This was made clear to him by MP in conversations when he was first employed in April 2022, when he was promoted in October 2022 and in his appraisal in January or February 2023.

52. The context and circumstances were that MP had made clear to the Registrant that her concern was “hands on” physiotherapy treatment which she would regard as a conflict with the business of WP. The Registrant did not appear to know that WP provided home physiotherapy services, but the Panel did not consider that this was significant. The Registrant was advertising physiotherapy services to clients in the same geographical area as WP, the services advertised were similar, the prices were similar, and the potential client base was similar.

53. The Registrant had disclosed to MP his business “Potential Mastery” and there was no reason why he could have not had a similar conversation with MP about his new company EPO. He had ample opportunities to do so at the promotion discussion in October 2022, at his meeting with MP on 8 February 2023, or at the appraisal discussion. The Panel inferred that the reason the Registrant was not open and transparent with MP about his new business was because he knew that she would be unlikely to agree, because the Registrant’s involvement in EPO created a conflict of interest with WP.

54. The Panel next considered whether the Registrant’s conduct was dishonest by the standards of an “ordinary decent person”, given his knowledge and beliefs. The Panel decided ordinary and decent people would conclude that the conduct was dishonest.

55. The Panel therefore found particular 2 proved.

Particular 3(b)

In or after December 2022, you:

b) Used images obtained from Flatdot Marketing on EPO’s website and/or social media without authorisation.

56. It was agreed evidence that two images on EPO’s website were the same as those obtained by the Registrant from Flatdot marketing.

57. In considering this particular the Panel acknowledged that the images used on EPO’s website were not specific to or designed for WP. They were “stock” images which can be obtained by members of the public.

58. The Panel decided that it was more likely than not that the images on EPO’s website were obtained from Flatdot rather than from any other source. It was unlikely to be a coincidence that the images on the EPO website were the same as those provided by Flatdot marketing.

59. In reaching this conclusion the Panel also took into account the Registrant’s email to JD dated 30 December 2022 which included the following “hence I haven’t copied [MP] so as not to confuse her, so this email can be just for us”. There was no good reason to exclude MP from the e-mail, and the instruction that the email was “just for us”, was an instruction to JD to keep the matter secret. There was no satisfactory explanation for this underhand communication. The Panel also noted that some of the images requested by the Registrant involved football players which related to the Registrant’s business rather than to the business of WP. The Panel inferred that the Registrant did not want MP to know that he had requested images from Flatdot and that he was requesting them for his own purposes.

60. The Panel therefore found particular 3b proved.

Particular 4

Your actions at particular 3 above were dishonest in that you obtained images using WP’s business relationship with Flatdot Marketing and/or used those images for EPO’s website without the permission and/or knowledge of WP and/or Flatdot Marketing.

61. The Panel first considered the Registrant’s conduct in Particular 3(a) and what the Registrant knew or believed as to the facts and circumstances. As discussed in paragraph 59 above the Panel found that the Registrant obtained the images for EPO’s website without the permission or knowledge of WP. He knew that he did not have such permission and he took steps to ensure that MP should not know of his request to JD.

62. The Panel next considered whether the Registrant’s conduct in Particular 3(a) was dishonest by the standards of an ‘ordinary decent person’, given his knowledge and beliefs. The Panel decided ordinary and decent people would conclude that the Registrant’s conduct was dishonest.

63. The Panel next considered the Registrant's conduct in Particular 3(b). The Registrant knew and believed that the images he used were stock images that could be downloaded by anybody from the internet. In those circumstances, the Panel did not find that this conduct was dishonest by the standards of an ‘ordinary, decent person’.

Particular 6

Your actions at particular 5 above were dishonest in that you knew EPO was:
a) advertising physiotherapy treatment;
b) in direct competition with WP.
c) WP employees were required to notify WP of other employment or engagement.

64. The Panel first considered what the Registrant knew or believed as to the facts and circumstances. The Registrant was responsible for EPO, its advertising, and its links to other social media sites. The Registrant’s conversation with Colleague A took place on 24 January 2024. Prior to this date the Registrant was advertising physiotherapy services on EPO. On 19 December 2022 he posted on social media a review for physiotherapy rehabilitation and with a link to the EPO website. The Registrant was responsible for this link, which was entirely consistent with his later further development of the advertising of home physiotherapy services on the EPO website. The Registrant therefore knew that EPO was advertising physiotherapy treatment when he spoke to Colleague A.

65. The Registrant also knew that EPO was in direct competition with WP. The Registrant was advertising physiotherapy services to clients in the same geographical area as WP, the services advertised were similar, the prices were similar, and the potential client base was similar. Any minor differences in the services provided were of no significance. There were many opportunities for the Registrant to be open and transparent with MP about his new company. He was not because he knew that MP would not agree to his work with EPO because it was providing services similar to those provided by WP. This information was known to the Registrant when he spoke to Colleague A on 24 January 2023.

66. The Registrant also knew and understood his contractual obligation under clause 20 of his contract of employment to notify WP of other employment or engagement on 24 January 2023.

67. The Panel next considered whether the Registrant’s conduct was dishonest by the standards of an “ordinary decent person”, given his knowledge and beliefs. The Panel decided ordinary and decent people would conclude that the conduct was dishonest. The Registrant lied to Colleague A when he stated that EPO did not relate to physiotherapy and was not a problem, or words to that effect. Colleague A was in a junior position in relation to the Registrant and trusted the reassurance provided by the Registrant.

Decision on Grounds

68. The Panel heard submissions from Mr Barnfield. He invited the Panel to find that the statutory ground of misconduct had been established. He submitted that the Registrant’s conduct in the facts found proved by the Panel fell far below the relevant standards in force at the time.

69. There were no submissions from the Registrant specifically on the issue of misconduct, but the Panel took into account the content of the Registrant’s reflective statement, his evidence to the Panel, and his submissions.

70. The Panel accepted the advice of the Legal Assessor. Her advice included reference to the cases of Roylance v GMC [2000] 1 AC 311 and Nandi v GMC [2004] EWHC 2317 (Admin).

71. The Panel was aware that in respect of misconduct there was no burden or standard of proof and that it was a matter for the Panel’s own professional judgment. It bore in mind that breaches of the Standards did not automatically result in a finding of impairment.

72. The Panel considered that the Registrant’s conduct fell significantly below the standards to be expected of a registered Physiotherapist. In particular the Panel considered that the Registrant was in breach of the following standards:

HCPC Standards of conduct, performance and ethics

9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

9.4 You must declare issues that might create conflicts of interest and make sure that they do not influence your judgment.

73. The Panel considered that the Registrant’s dishonest conduct was in breach of a fundamental tenet of the profession. Dishonesty is a very serious matter which has a significant impact on public confidence in the profession. Such conduct is entirely contrary to the requirement for physiotherapists to behave ethically, acting with integrity, honesty, and openness.

74. The Registrant placed his own interests above the requirement to be honest with his employer and his colleague. The dishonest conduct was not an isolated incident, but persisted over a period of several months. The Registrant acted in breach of the trust that MP placed in him,

75. The Panel decided that the Registrant’s conduct fell far below the standards of a physiotherapist and was sufficiently serious to amount to misconduct.

Decision on Impairment

76. The Panel was invited by Mr Barnfield to consider whether, in its judgment, the Registrant’s fitness to practise is impaired, and to consider all the relevant factors. Mr Barnfield submitted that the Panel should consider the tone of the Registrant’s reflective statement and consider whether there remains a risk of repetition, and whether the misconduct indicates a character flaw. He also submitted that a finding of impairment was required to uphold and maintain standards and to uphold and maintain public confidence in the profession.

77. In his submissions the Registrant repeated his apology, accepted responsibility for his actions, and the Panel’s decision. He explained again the significant impact that his personal circumstances had upon him and his judgement at the time.

78. The Panel recognised that its findings in relation to misconduct did not necessarily mean that the Registrant’s fitness to practise is impaired.

79. The Panel accepted the advice of the Legal Assessor and took account of the guidance in the HCPTS Practice Note on Fitness to Practise Impairment.

80. The Panel considered the personal element of impairment. It considered whether the misconduct is remediable. Dishonesty involves an attitudinal issue, and it is therefore more difficult to address such conduct and persuade a Panel that there will be no repetition. The Panel was of the view that with careful thought, reflection and targeted action the misconduct in this case was remediable. In reaching this conclusion the Panel noted that the Registrant made early admissions in his formal meeting with MP. He acknowledged both then and in his submissions to the Panel that he acted wrongly. The Panel was of the view that the Registrant has a moral compass, but that compass was distorted by the emotional impact of his [relative]’s ill health. He wrongly placed the obligations he felt to support and care for his [relative] above his professional obligations, and he takes responsibility for this serious departure from professional standards.

81. The Panel considered the Registrant’s reflective statement. While that statement does not address the entirety of the misconduct as found by the Panel, it does acknowledge the seriousness of the allegations, as follows “I come before you with a heart full of regret and humility, acutely aware of the serious nature of the allegations against me and the potential consequences they carry for my professional life. At the outset, I want to express my heartfelt apologies for the actions and oversights that have brought us to this point. I am deeply sorry for my mistakes and the concern they have caused.” The Registrant was clear in his reflective statement that he does not rely on his personal circumstances as an excuse.

82. In the Panel’s judgment the Registrant expressed genuine remorse and developing insight. There were some points within the statement where the Registrant tended to downplay the seriousness of his conduct, describing it as an “error of judgment”. Nevertheless, having heard from the Registrant in his evidence and submissions, the Panel was of the view that he understood the seriousness of his misconduct. The Panel was also satisfied that the Registrant is a capable, skilled physiotherapist. He understands and is able to recognise potential conflicts of interest, and also understands the requirement to abide by professional ethical standards. This was indicated by his admissions of many of the facts, including his admission of dishonesty.

83. The Registrant has begun to address and consider some of the underlying reasons for his behaviour. However, in the Panel’s judgment the Registrant has not sufficiently reflected on how he might in the future prevent a repetition of dishonest behaviour, when faced with difficult choices due to his challenging circumstances. The Registrant told the Panel that he now believes that his judgment was impacted by the emotional stresses relating to his [relative]’s health. The Registrant has not addressed within his reflective statement how he might manage similar emotional stresses should they arise in the future, or the remedial steps he has taken to address such circumstances. This might be through candid discussion of his past behaviour with individuals who can provide ongoing support, the development of personal support networks, peer support networks, and/or evidence of open candid communication with his manager or employer.

84. In the Panel’s judgment the Registrant has demonstrated developing insight. The Panel considered that there was a residual risk that the Registrant might repeat dishonest conduct, particularly if he were faced with similar emotional and financial pressures to those which impacted his judgment in 2022 and 2023.

85. The Panel therefore decided that the Registrant’s fitness to practise is impaired on the basis of the personal component.

86. The Panel next considered whether, given the nature, circumstances, and gravity of the Registrant’s misconduct, public confidence in the Physiotherapy profession and the HCPC would be undermined if there was no finding of impairment. The Panel also considered whether it would be failing in its duty to declare and uphold proper standards of conduct and behaviour if there was no finding of impairment in this case.

87. The gravity of the Registrant’s conduct is that it involves dishonesty. The dishonesty did not involve service users, any risk to service users, or any other impact on public safety. However, it did involve deliberately concealing information from his employer over a period of time, dishonest use of his employer’s marketing resource, and lying to a colleague. Dishonest conduct is very serious, and a finding of impairment is required to mark the Registrant’s departure from professional standards.

88. The Panel also considered the impact of the Registrant’s behaviour on public confidence in the profession. Dishonesty is unethical behaviour and a breach of a fundamental tenet of the profession. Dishonest behaviour undermines public confidence in the profession. The Panel concluded that public confidence in the profession would be undermined if a finding of impairment were not made.

89. The Panel therefore concluded that the Registrant’s fitness to practise is impaired on the public component.

Decision on Sanction

90. Mr Barnfield referred the Panel to the HCPC Sanctions Policy as important guidance on relevant factors for the Panel to consider. He referred the Panel to each available sanction and the guidance for each sanction.

91. The Registrant read a prepared statement. He expressed his sincere apology and regret for his dishonest behaviour. He spoke about the impact of his behaviour on MP, the clinic, the clinic staff, and the profession. He described his behaviour as unethical and dishonest and that it fell far below the standards for a physiotherapist. He stated that he publicly apologised to MP. He stated that he had two years in which to reflect and had developed insight into the gravity of his actions and their consequences. He was committed to practising ethically and to personal and professional growth.

92. The Panel accepted the advice of the Legal Assessor. In considering the appropriate and proportionate sanction, the Panel took account of the HCPC’s Sanctions Policy. The Panel recognised that the purpose of any sanction it imposes is not to punish the Registrant, although it may have a punitive effect. Sanctions are imposed only for the purpose of protecting the public, maintaining the trust and confidence in the profession, and declaring and upholding professional standards. The Panel also had in mind that any sanction it imposes must be appropriate and proportionate bearing in mind the nature and circumstances of the case.

93. The Panel noted paragraph 56-58 of the Sanctions Policy which address dishonesty. Paragraph 58 of the Policy states:

“Given the seriousness of dishonesty, cases are likely to result in more serious sanctions. However, panels should bear in mind that there are different forms, and different degrees of dishonesty, that need to be considered in an appropriately nuanced way. Factors that panels should take into account in this regard include:

• Whether the relevant behaviour took the form of a single act, or occurred on multiple occasions;
• The duration of any dishonesty;
• Whether the registrant took a passive or active role in it; and
• Any other relevant mitigating factors.”

94. The Panel considered the nature and gravity of the Registrant’s dishonesty. It was dishonesty in which the Registrant took an active role, involved multiple acts and occurred over a sustained period of time. The dishonesty did not involve any risk to patients, and was related to the obligations within the Registrant’s contract of employment. In the Panel’s judgment the dishonesty fell at the lower end of the scale of seriousness.

95. The Panel considered the mitigating factors. The Panel also accepted as a mitigating factor that the Registrant’s judgment was clouded by the circumstances in his personal life. The Registrant has demonstrated genuine remorse and apologised for his past conduct. In his submissions on sanction the Registrant acknowledged the impact of his behaviour on MP, WP, his colleagues, and the profession. He demonstrated insight, albeit incomplete, as set out within the Panel’s decision on current impairment. The Panel also noted that there are no previous regulatory findings against the Registrant. The Registrant provided the Panel with positive reports from patients and MP considered that he was a “great physiotherapist”. The Registrant has attended the hearing and engaged, as is his professional obligation. The Registrant’s engagement was respectful towards the Panel at all times.

96. The Panel considered the aggravating factors. The Registrant breached the trust that was placed in him by MP and his dishonesty caused distress to MP. The dishonest behaviour was sustained over a period of time.

97. The Panel considered the option of taking no action. This is an exceptional outcome, and the Panel was of the view that the circumstances were not exceptional. The Panel decided that the option of taking no action was not sufficient to protect the public or to uphold the public interest.

98. The Panel next considered the option of a Caution Order. The Panel considered the guidance in the Sanctions Policy that “A Caution Order is an appropriate sanction for cases, where the lapse is isolated, limited, or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action.” The Panel considered that some of these features were not present. Dishonesty is not relatively minor, for the reasons set out in paragraphs 56-58 of the Sanctions Policy, and the dishonesty in this case did involve the Registrant taking active steps and lying to a colleague. The Panel also concluded in its decision on impairment that there were further steps the Registrant might take to address the risk of repetition. The Panel concluded that a Caution Order would not reflect the seriousness of the findings in this case. The Panel was also of the view that public confidence in the profession would be undermined if the Registrant’s dishonest behaviour was dealt with by way of a Caution Order. In reaching this conclusion the Panel was mindful of paragraphs 56-58 of the Sanctions Policy and the aggravating features.

99. The Panel next considered whether to place conditions on the Registrant’s registration. The Panel was of the view that the Registrant’s misconduct, which is attitudinal in nature, was conduct that is difficult to remediate by conditions of practice. This case involves dishonesty and the Sanctions Policy at paragraph 108 states that conditions are less likely to be appropriate in such cases. The Panel was not able to formulate conditions that would address dishonest conduct and therefore concluded that conditions of practice would be inappropriate.

100. The Panel next considered a Suspension Order. The Panel had regard to paragraph 121 of the Sanctions Policy which provides:

“A Suspension Order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a Conditions of Practice Order, but which do not require the Registrant to be struck off the Register. These types of cases will typically exhibit the following factors:

• 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;
• there is evidence to suggest the Registrant is likely to be able to resolve or remedy their failings.”

101. Having taken account of those factors, the Panel considered that a Suspension Order was the appropriate order in this case. A suspension order is a serious sanction which marks the Registrant’s departure from the Standards of conduct, performance and ethics. The Panel was of the view that the level of insight demonstrated by the Registrant was sufficient for a suspension order to be considered as the appropriate and proportionate sanction. The Registrant has demonstrated developing insight, as further detailed in his submissions on sanction, and the risk of repetition was described in the Panel’s decision on impairment as a residual risk. The Registrant expressed his commitment to further development and the Panel considered that there was sufficient evidence that he is willing to take further remedial action.

102. The Panel considered whether public confidence in the profession and the regulatory process would be undermined if the Panel were to impose a suspension order rather than a striking off order which is the sanction of last resort. While dishonesty in any form does undermine public confidence in the profession, the Panel was of the view that the dishonesty in this case was towards the lower end of the scale of seriousness, taking into account the mitigating circumstances as identified by the Panel. The Panel was also of the view that there is a public interest in the safe return to practice of a skilled and competent physiotherapist.

103. The Panel concluded that a suspension order was a sufficient sanction to mark the seriousness of the Registrant’s conduct. It provided sufficient protection for members of the public in relation to the residual risk of repetition. It was also sufficient sanction to uphold and maintain standards for members of the profession and to maintain public confidence in the profession and the regulatory process. The imposition of a striking off order would be disproportionate.

104. The Panel therefore decided that a Suspension Order was the appropriate and proportionate sanction.

105. The Panel next considered the length of the Suspension Order. The Panel bore in mind that it may order a suspension for a period of up to twelve months. The Panel decided that a three-month period of suspension was sufficient to mark the gravity of the Registrant’s misconduct. A three-month period was also sufficient to enable the Registrant to prepare evidence to submit to a review panel.

106. The Panel acknowledged that the imposition of this sanction will have a detrimental impact on the Registrant’s financial interests and his reputational interests, but it decided that his interests were outweighed by the need to protect the public and the wider public interest.

107. The Suspension Order will be reviewed before it expires. A future reviewing Panel will be assisted by the attendance of the Registrant and by:

• Evidence of reflection by the Registrant focused on his management of circumstances in which he is subject to emotional stress, and how in future he will maintain ethical standards in such circumstances;
• Testimonials or any other evidence that the Registrant has been open and candid in relation to his circumstances.

ORDER: That the Registrar is directed to suspend the registration of Mr Michal J Grzywacz for a period of 3 months from the date this order comes into effect.

Interim Order

Application

1. Mr Barnfield made an application for an interim suspension order for 18 months to cover the appeal period and allow for any appeal to be disposed of. He submitted that an interim order was necessary for the protection of the public and was otherwise in the public interest. In support of his contention that those grounds are satisfied he relied on the Panel’s decision made in relation to the substantive issues.

Decision

2. The Panel accepted the advice of the Legal Assessor. She advised that the Panel may impose an interim order if it is necessary for the protection of the public, is otherwise in the public interest, or is in the interests of the Registrant. The Panel should apply the principle of proportionality and impose the least restrictive order that is sufficient to protect the public and the wider public interest.

3. In its decision on impairment the Panel concluded that there is a residual risk of repetition. Consequently, the Panel concluded that an interim order is necessary for protection of members of the public. An interim order is also otherwise in the public interest for the same reasons explained by the Panel for its substantive sanction decision.

4. The Panel considered whether Interim Conditions of Practice Order would be a sufficient restriction during the appeal period, but concluded that there were no suitable conditions to address the risk of repetition of dishonesty.

5. The Panel therefore concluded that an Interim Suspension Order should be made.

6. The Panel decided that the Interim Suspension Order should be for the maximum period of 18 months. An Order of that length is necessary because if the Registrant appeals the Panel’s decision, the final resolution of that appeal could well take 18 months. In the event that the Registrant does not appeal the decision the Interim Suspension Order will fall away when the time within which he could have commenced an appeal expires.

The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Michal J Grzywacz