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

In my judgment, it was rational and open to the Adjudication Panel to reach the conclusions that the hug was sexually motivated. In the passages of their determination cited above, the Adjudication Panel gave adequate reasons for reaching that conclusion. A hug can have different motivations and different significance in different contexts – sometimes a hug may be a prelude to a sexual relationship (‘opening the door’ as the Adjudication Panel put it); and sometimes a hug may have no such connotations or motivation.

The context of this hug provided ample support for the conclusion that it was sexually motivated. There are often stepping stones on the way to a sexual relationship – small signals, verbal or physical, where one party seeks, and another party gives, encouragement that the attraction between them is reciprocal. In this case, the panel was entitled to find that the hug was a stepping stone of this sort. The context was that, in the previous session, Client A had asked if the Claimant found her attractive and the Claimant had blushed, which Client A (correctly) interpreted as meaning that he did find her attractive. Furthermore, earlier in that final session, Client A asked if they could meet and the Claimant said not ‘for a while’ – something he later accepted was a mistake. It was a response which opened the door to meeting again. It was in that context that the Claimant agreed to a hug with Client A. He must, at some level, have been aware that accepting the hug might further encourage Client A to contact him after therapy – something he had himself thought about, when Client A waited for him to return to practice, and something which he expressly discussed with Client A earlier in the same session. If he had refused the hug, it would have sent the opposite signal.

I accept the submission of Ms Mauladad KC that the desire to have a sexual relationship only needed to be a factor in the hug, not its ‘but for’ cause, for the allegation of sexual motivation to be made out. The context is public protection. It is often difficult to establish a ‘but for’ cause. There is no typical patient who can act as ‘control’ in a ‘but for’ analysis. Where it is established, on the balance of probabilities, that a desire to have a sexual relationship was a factor in a therapist’s conduct towards their patient, that should be enough to establish that the conduct was sexually motivated.

I reject the submission of Mr Butler that it was unfair for the panel to make any findings on what he termed ‘the second limb’ of sexual motivation (i.e. pursuit of a future sexual relationship) because that case was not put to the Claimant. This was a submission he developed orally for the first time. I do not see it in his pleadings or skeleton argument. It was not a submission I can accept.

First, it seems to turn on a rigid classification of what amounts to sexual motivation. Mr Butler took me to the judgment of Mostyn J in Basson, in particular to paragraph 14 where Mostyn J appears to divide sexual motivation into two categories (gratification and pursuit of a future relationship):

However, in GMC v Haris [2020] EWHC 2518 (Admin), Foster J said the following (which was not overturned by the Court of Appeal) in relation to allegations of sexual motivation:

“Of course, there are significant differences in the context and the analogy is not exact, but it does seem to me that pleading "sexual motivation" is unhelpful. Similarly, to look for "sexual gratification" may be misleading and overcomplicating. It is irrelevant to the actions which the GMC would wish to proscribe whether or not the perpetrator was sexually "gratified" at all - whether before, after or during the act in question. Gratification, as with "pursuit of a relationship" are, pace the analysis of Mostyn J in Basson , not helpful in my judgement in promoting the public interests at stake here. These criteria set the bar too high and I respectfully disagree that they represent the law.”

In my judgment, it is not helpful, at least in this case, to parse the allegation ‘sexually motivated’ and divide it into two hermetically sealed alternatives – either pursuit of sexual gratification in the moment or pursuit of a future sexual relationship. ‘Sexually motivated’ is a term that most people can understand and apply without the need for further definition. As Foster J pointed out in Haris, introducing the term ‘gratification’ can complicate matters by adding in something which may be irrelevant - i.e. whether there was sexual ‘gratification’ to be derived from the act. Furthermore, there is no clear dividing line between the two categories of sexual motivation identified in Basson at [14] – ‘pursuit of a future sexual relationship’ is, very often, indistinguishable from ‘pursuit of sexual gratification’. The reason why a future sexual relationship is pursued is, very often, because it is hoped that the sexual element of that relationship will provide sexual gratification.

Turning to this case, I do not think that the allegation - that the hug of Client A was sexually motivated - should turn on whether the Claimant derived some sexual gratification from the hug itself or hoped that it would ‘open the door’ to sex with Client A at some point in the future. In my judgment, the Adjudication Panel was entitled not to make any findings as which of the two ‘limbs’ of sexual motivation this fell into but instead to concentrate on the overarching allegation – i.e. sexual motivation.

In my judgment, counsel for the Defendant, in his submissions and cross-examination, was not intending to draw the distinction which Mr Butler draws between what he termed the first and second ‘limb’ of sexual motivation. The questions counsel for the Defendant asked, and the case he put, gave the Claimant a fair opportunity to put forward his case about the motivation for the hug. The Claimant’s answer was that the hug was not ‘the problem’. The problem, in his view, was what happened shortly before the hug: i.e. the suggestion, which he left hanging in the air, that they might meet up in ‘a while’, after therapy concluded. His evidence was that, if it had not been for that suggestion, then ‘a hug at the end of therapy would have just been a hug at the end of therapy’. As I read that evidence, the Claimant was effectively saying that the hug would not have been a stepping stone to a sexual relationship, if there had not been another, earlier stepping stone – i.e. namely his suggestion that they could meet in a ‘while’.