KB-2023-003302 - [2025] EWHC 1628 (KB)

I have set out, above, the declarations sought in the Particulars of Claim. By the time of the oral hearing before me, the Claimant’s arguments had evolved somewhat. Mr Butler divided his submissions into three topics: the hug, Dr Wilkinson, and sanction.

Mr Butler began with his challenge to the finding that the hug was sexually motivated. Mr Butler took me to caselaw on sexual motivation, in particular Arunkulaivanan v GMC [2014] EWHC 873 (Admin) and Basson v GMC [2018] EWHC 505 (Admin). He submitted that there were ‘two limbs’, i.e. two categories, of sexual motivation – first, in pursuit of sexual gratification, and secondly, in pursuit of a future sexual relationship. He argued that the case against the Claimant, in relation to the hug, was entirely on the first limb – that he received sexual gratification from it. He submitted that that was how the case was opened, that that was what was put to the Claimant and that was the closing submission of the Defendant too. He submitted that there was ‘no evidence’ to support that case. He said that, to support such a case, there ‘had to be touching of the thigh, buttocks etc.’ He sought to support that submission by references to the facts of other cases.

Mr Butler said that the second limb of sexual motivation was never put to the Claimant – i.e. he was never asked about whether the hug was to pursue a future sexual relationship. I asked if he was arguing unfairness and Mr Butler confirmed he was. He also said that, to make a finding of pursuit of a future sexual relationship, there had to be words to the effect of ‘I’ll meet you later’.

I asked Mr Butler what would happen if a therapist had several motivations for hugging a patient – e.g. habit and the awkwardness of refusal but also a desire to keep ‘the door open’ to a future sexual relationship. Was it enough if sexual motivation was a factor but not the primary or ‘but for’ cause of the hug? Mr Butler said it needed to be the ‘but for’ cause.

Mr Butler’s oral submissions under the second topic were not limited to Dr Wilkinson. He also made submissions on insight. He took me to extracts from the transcript, cited above, where counsel for the Defendant accepted that the Claimant reflected ‘long and hard’ and that this was not a case of ‘no insight’. He said that the findings of the Adjudication Panel on insight did not reflect this concession and were ‘fundamentally wrong’. He said that there was ‘not a shred of evidence to support the finding that Mr Hadden had blamed Client A and continued to blame Client A.’ He went through the Adjudication Panel’s findings, at paragraphs 91-93 cited above, and took me to passages in the transcript, cited above, where, contrary to those findings, the Claimant had accepted that the fault was his. He said that no one had ever put to the Claimant that he blamed Client A.

As to Dr Wilkinson’s evidence, he said that this was evidence of fact and opinion which was clearly relevant but there was only one reference to it, which suggested it was merely theoretical when it was not.

Mr Butler also submitted that the decision of the Claimant’s employer was, although not binding, a relevant factor. It could clearly be inferred they had found that the Claimant did not pose a risk.

In relation to sanction overall, Mr Butler made clear that he was not suggesting that the Adjudication Panel failed to have regard to any of the factors in paragraph 5.4.5 of the ISG. However, their overall conclusion applying those factors was tainted by the earlier errors, e.g. in relation to insight.

Ms Mauladad KC, for the Defendant, submitted that the Claimant was, in substance, seeking to re-litigate matters already considered by the Adjudication and Appeal Panels.

She submitted that the conclusions of the Adjudication and Appeal Panels were not unreasonable. She drew attention to concessions made by the Claimant in writing and in cross-examination about the inappropriateness of hugging Client A. She submitted that, as the context was public protection, it would be sufficient if sexual motivation was a factor in the Claimant’s decision to agree to hugging Client A – sexual motivation did not have to be the primary cause.

She submitted that Dr Wilkinson’s letters and reports were not expert evidence, nor tendered as such. The Adjudication Panel had sufficient expertise of its own to judge the likelihood of repetition. The Adjudication Panel had considered his reports but were entitled to take a different view.

I asked her to address the apparent inconsistency between the passages in the transcript that Mr Butler had taken me to and the panel’s finding that the Claimant lacked insight, did not recognise the power imbalance and blamed Client A. She said I would need to read the transcript ‘holistically’ rather than just focus on extracts. I asked her for the ‘high point’ – i.e. the clearest example – of the Claimant blaming Client A. She took me to a passage cited above. Very fairly, she conceded that the Adjudication Panel had been somewhat unfair, in paragraph 95 of their decision, when they relied on the Claimant’s employer moving him to a non-client facing position as evidence of risk. As she accepted, that was what the employer did before they had concluded their investigation. The Adjudication Panel omitted the fact that, after the employer concluded their investigation, the employer had been willing to restore the Claimant to a client-facing role. Nonetheless, she submitted that that this was a relatively small point and did not make the overall conclusion unreasonable.

She submitted that sexual misconduct was always serious and it would set a very unfortunate precedent to divide different forms of sexual misconduct into a spectrum of more and less serious. The sanction was open to the panel.

Mr Butler made submissions in reply, including a submission that the panel had applied a blanket rule that sexual misconduct should result in strike off.