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Physio who placed his penis in service user's hand struck off

Physiotherapist ejaculated on service user's leggings during treatment for her back pain

Published on 28th August 2019

A physiotherapist who placed his penis in a service user's hand while she was experiencing treatment for back pain has been struck off the Health and Care Professions Council register.

Mr Andrew M Davidson is alleged to have placed his penis in each of Service user A's hands during a test on her hands and Service User A subsequently found a semen stain on the back of her leggings.

"The Panel has determined that these were extremely serious acts of misconduct in a professional capacity," said the Health and Care Professions Council Tribunal Service Panel.

Mr Davidson qualified as a physiotherapist in 2012 and has since been employed by Homerton University Hospital NHS Foundation Trust. At the relevant time of the allegation he was a Band 6 Physiotherapist at the Trust.

Service User A was referred to the Trust in May 2015 for treatment for her long term back pain. She had four consultations with Mr Davidson between June 2015 and 18 August 2015. On 20 August 2015, Service User A complained to the police that during a treatment session on 18 August 2015, she had been sexually assaulted by Mr Davidson. She said that he had placed his penis in each of her hands in turn.

Mr Davidson was interviewed by the police on 25 August 2015 and he denied the allegations made by the complainant. He was subsequently charged with an offence of sexual assault on Service User A. In September 2016, he was tried for this offence at the Crown Court but he was acquitted by the jury.

Service User A told the panel that on 18 August 2015, whilst she was lying face down on the treatment bed, Mr Davidson, when purporting to conduct a test on her hands, placed his penis in each of her hands in turn. She did not see what was placed in her hands but by feel, identified it as a penis.

Service User A further said that subsequently, after leaving the unit, she saw stains at the back of her leggings which she believed to be wet semen. She subsequently formed the view that Mr Davidson had ejaculated onto her back which is why she believed his semen had transferred onto her leggings. On 20 August 2015, she took her leggings with her when she reported the incident to the police.

Finlay Kennedy was called by the HCPC as an expert witness. His field of expertise is that of biological evidence including analysis of bodily fluid staining and interpretation of DNA profiling. He conducted an initial analysis on the stains on Service User A’s leggings which indicated that they contained semen. His conclusion was that that stain indeed contained semen and that this matched the Registrant’s DNA profile. In short, that the semen was that of Mr Davidson.

Service User A said that she felt that something uncomfortable had happened during the treatment session and was in such shock that immediately after treatment she sat in the park for over an hour during which time she cried. On returning home, she said she felt “dirty” and scrubbed her hands because she felt so “dirty”. She then checked her leggings and discovered what she believed to be wet semen on the back of her leggings. She said she put the leggings in a bag which she took to the police at the time she reported the matter, two days later.

Mr Davidson has consistently denied placing his penis in the hands of Service User A during the treatment session on 18 August 2015. In his evidence he said that he placed his fingers in her hands in order to test her grip.

The Panel accepted the evidence of Service User A rather than that of Mr Davidson. It is therefore satisfied that, based on the evidence of Service User A, it is more likely than not that the Registrant did place his penis into Service User A’s hand(s).

Expert witness Mr Kennedy said that the stain containing the sample tested by him was four centimetres by three centimetres in area. It was clearly visible, which he said was unusual, and was more likely to be caused by the semen being wet than dry when deposited onto Service User A’s leggings.

In his evidence, Mr Davidson denied ejaculating on Service User A’s back. Further, he said that he did not masturbate whilst in the treatment room. He was not able to give any explanation of how his semen was deposited on Service User A’s leggings. He said however, that it was not unusual for him to have sexual intercourse with his now wife, or to masturbate before leaving for work. He was unable to recall whether he had engaged in either of these activities on 18 August 2015.

However, the Panel took into account the evidence of Mr Kennedy in regard to the size of the stain that he tested, that it was not of minuscule quantity and that it was likely to have been wet. Also the fact that there were several stains on the garment that the indicative test was suggestive of the presence of semen. The Panel also took into account its findings in relation to Particular 1 in concluding that some form of sexual activity by the Registrant occurred in the treatment room as a result of which his semen was transferred to the leggings of Service User A.

The Panel concluded that by placing his penis into the hands of Service User A during a treatment session and by allowing his semen to be transferred to her leggings, Mr Davidson acted inappropriately. Furthermore, that by doing so his actions were sexually motivated.

The Panel has concluded that the matters found proved, individually and cumulatively, which include sexual motivation, clearly amount to conduct unworthy of a physiotherapist. Mr Davidson's actions were so serious as to constitute misconduct.

Mr Davidson's insight in this matter is limited. He recognised the serious nature of such types of misconduct and he has displayed some remorse in regard to the fact that his semen was transferred to Service User A’s clothing. He stated that he was very sorry that this had occurred.

The Panel has taken into account the positive testimonials submitted by Mr Davidson that attest to his good character. It is also aware that there have been no previous FTP findings against him. There has been no report of repetition since the incident, which occurred over four years ago although the Panel was informed has been subject to Interim Conditions of Practice which restricted his practise in relation to female service users. Although the misconduct related to one treatment session and one service user and is thereby an isolated incident, it is by its very nature serious.

The Panel found the aggravating factors to be:

• The sexual nature of the misconduct

• The Registrant’s breach of trust

• The continuing effect the misconduct has had upon the service user

• The risk of repetition.

The Panel found the mitigating factors to be:

• No previous fitness to practice findings against the Registrant

• The wealth of testimonials relating to his character and professional abilities.

The Panel gave serious consideration to a Suspension Order. However, Mr Davidson has not demonstrated insight into the effect that misconduct of this nature would have on a service user and as a result there remains a risk of repetition. Furthermore, such an order would be insufficient to address the serious nature of the sexual misconduct and his breach of trust nor would it be a sufficient deterrent to other practitioners.

In these circumstances, the Panel determined that the only proportionate and sufficient sanction is that of a striking off order.

 

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