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Home > Complaints > Hearings and decisions

Derek Hirsh Gale

Profession: Arts therapist
Registration Number: AS01092
Interim Order: Imposed on 01/06/2009

Finding:

There be an Interim Suspension Order under Article 31 of the Health Professions Order 2001.  This order is necessary to protect the public and otherwise in the public interest.  This order will expire upon (i) (if no appeal is made against the decision and Order of the Panel) upon the expiry of the time during which an appeal could be made; or (ii) (if such an appeal is made) upon the final determination of that appeal, subject to a maximum period of 18 months.

 

Hearing type: Final Hearing
Date & Time of hearing: 01/06/2009 - 10:00
Location: Park House, 184 Kennington Park Road, Kennington, SE11 4BU
Panel: Conduct and Competence Committee
Outcome: Struck off


 Notice Of AllegationView Notice Of AllegationView Notice Of Allegation

At all material times you were registered with the Health Professions Council as an Arts Therapist, and

 1. Between January 2000 and April 2001, you treated patient A at the Gale Centre, and

a) During your sessions with patient A you acted inappropriately in that:

i. on a number of occasions between March and October 2000, you fell asleep during your sessions with A;

ii. on 14 May 2000, during a psychodrama workshop, you insulted patient A by swearing at her;

iii. on 16 May 2000, during a psychodrama workshop, you inappropriately touched patient A during a bedtime story, in that you:

a) touched her shoulder;
b) played with her hair; and
c) pinged her bra strap.

iv. on 16 May 2000 during a psychodrama workshop, you used inappropriate sexual language to patient A, in that you suggested she take advantage of the “unlimited sex”;

v. on 18 May 2000, you allowed other patients to scratch, kick, slap, bite and spit in a psychodrama session, thereby permitting harm to be caused to A;

vi. during a one-to-one therapy session on 6 July 2000, you told patient A about the novel you were writing in which the main character who was a therapist, wanted oral sex all the time;

vii. during a one-to-one therapy session on 6 July 2000, you expressed in detail the fantasy you had in which you dropped your trousers in front of your ex-wife;

viii. during one-to-one therapy sessions with patient A on 10 May 2000, 18 October 2000 and 7 December 2000, you sent text messages and answered your mobile phone.


b) During your workshop sessions you breached patient confidentiality in that:

i. during a one-to-one therapy session with patient A on 27 September 2000, you disclosed personal information about another patient;  and

ii. on 28 or 29 December 2000 during a voice workshop, you disclosed personal information regarding patient A in front of a group of 12 people.


 
2. Between 1984 and 2004, you treated patient B at the Gale Centre and:

a) During that period you inappropriately treated patient B in that:

  i you inappropriately touched her by pinching her breast;

ii, during a psychodrama workshop in 2003, you allowed a situation to arise in a psychodrama session in which other clients caused bruising to her arms;

iii. you discussed your personal sex life in front of her.


b) During that period you acted inappropriately in that:

i. you allowed her to cut yours and your family members’ hair without pay;

ii. you allowed her to attend dinner parties at your house.

 
3. In relation to patient C, during the periods of 1991 to 1998, and 2003 to 2006 you treated patient C at the Gale Centre and:

a) During the periods in which C was a patient, you acted inappropriately in that:

i. in the summer of 2004 you involved C and other patients in the rebuild of the Gale Centre;

ii. you entertained patients at your home when illegal drugs mainly cannabis, were available;

iii. you referred to C as a “cunt” on several occasions in one to one and group sessions;

iv. you kept inadequate patient notes and in May or June 2006, asked patients to write their own notes;  and

v. you asked C to provide free business advice and IT support to you including working on business plans for the centre.


b) During your sessions in which C was present you breached patient confidentiality in that:

i. whilst on a residential workshop in November 1992 you told the group about C’s affair with another member of the group without permission;

ii. in early 2006 you discussed confidential issues relating to other patients, including ZZ, with C;

 

6. Between October 2000 and November 2005, D was your patient and:


 a) During that period you behaved inappropriate towards D in that:

i. on a number of occasions you went on holiday with patient D, including in July 2004, October 2004, March and April 2005 and August 2005;

ii. you involved your clients including patient D in a number of social events and caused D to work at one of these events (on 22 June 2005) unpaid;

iii. during June to August 2004 you encouraged your clients, including patient D, to renovate the Gale Centre unpaid.


b) On a day between May 2002 and May 2003, during a group exercise, you did not provide adequate client care in the group exercise when patient D fell and hit her head on a stone fireplace, in that you:

 i. did not record the incident;  and

ii. did not offer to get any medical assistance, even though patient D expressed that she felt dizzy and nauseous.

c) On or around the 5th November 2005, in a group session, you placed patient  D under undue pressure in that you informed the group that unless her demeanour changed, the group would devote the whole of the next session to a discussion of D’s negative characteristics.


d) On 28th November 2005, during patient D’s last voice group session, she was subjected to a level of abuse and manipulation within the group where you failed to provide adequate support for her, in order to persuade her to stay in therapy.


e) On 18th December 2006, Patient D requested her notes from you, and on the 18th December 2006, Patient D received only one A4 hand written sheet.
 

7
(a) Between 2001 and 2004, you read your clients bed-time stories at psychodrama workshops

(c) Between 1999 and 2004, you gave C a number of greeting cards in which you signed off as “Daddy”

(e) On 23 October 2004, at the opening of the Gale Centre, and on a number of other occasions between 2001 and 2004, you referred to yourself as “the father” and to YY as “the mother”.

(f) Between 1996 and 2004, you frequently conducted voice group sessions and psychodrama workshops in which your clients were seated on the floor and you were seated on a chair or stool.

(h) In May 2002, during a psychodrama workshop, you sent XX to his room for several days and told him he was not to leave.

 

 

 Committee findingView committee finding View committee finding

Introduction. 
1. This decision is being delivered on Monday, 1st June 2009.  The hearing of the allegations against Mr Gale commenced on 3rd March 2009, and since that date there have been 15 days of sittings.  At the commencement of the hearing the HPC was represented by Mr Michael Caplan Q.C., but after the first week has been represented by Ms Jung.  Mr Gale has represented himself, save that he was required to be represented for the purposes of the cross-examination of the witness JB (for which purpose he was represented by Mr Toms of Counsel) and chose to be represented by Mr Gledhill of Counsel for the purposes of evidence given on 21st May 2009 to which further reference will be made below.  Last Tuesday, 26th May 2009 the final submissions were delivered.  Immediately following the delivery of the submissions the Panel had two full days for deliberation.  For the purposes of the private deliberations the Panel had available to it the 1900 pages of transcripts of the evidence given during the hearing up to and including 21st May.
2. Two allegations are made against Mr Gale.  One is that his fitness to practise is impaired by reason of his misconduct.  The other is that his fitness to practise is impaired by reason of lack of competence.  In order to decide if these allegations are well founded the Panel has approached the matter in this sequence:
i. First, to decide which facts have been proved against Mr Gale.
ii. To decide if the proved facts amount to misconduct or demonstrate lack of competence.
iii. If (but only if) misconduct or lack of competence is proved, then to decide if that misconduct or lack of competence has the consequence that Mr Gale’s fitness to practise is currently impaired.
 It is only if the final stage of this enquiry is answered in the affirmative will an allegation be well founded.
3. Extensive particulars are advanced by the HPC in support of the allegations.  All these particulars are advanced in relation to each allegation.  They are set out above and need not be repeated here.  By way of explanation it should be stated that the non-sequential numbering of these particulars is explained by the fact that historically there have been some factual contentions advanced by the HPC against Mr Gale which it is now accepted cannot be advanced for consideration by the Panel.
4. The Panel has remembered throughout that in relation to the resolution of disputed issues of fact the burden of proving those facts rests on the HPC.  Mr Gale is not required to disprove the allegations or any element of them.  The standard to which the HPC is required to prove disputed facts is the civil standard of the balance of probabilities.  Furthermore, the Panel has approached the enquiry on the basis that the more serious the allegation the more cogent and compelling should be the evidence before a finding could be made that the balance of probabilities burden had been discharged.
5. The HPC’s allegations concern Mr Gale’s involvement with four former clients, Ms JB, Ms GD, Mr IJ and Ms PC.  JB, IJ and PC gave oral evidence before the Panel.  As a result of a timetabling ruling made by the Panel (and not as a result of any reluctance on her part) GD did not give oral evidence.  The HPC seeks to rely on her evidence by relying on the hearsay evidence of her witness statement.  The Panel is satisfied that this (and all other) hearsay evidence is admissible, but in assessing the weight that can be attached to the hearsay evidence the Panel has had regard to the fact that Mr Gale has not had the opportunity to challenge the written evidence, nor has the Panel had the opportunity of assessing the witness.  In relation to the hearsay evidence relied upon by Mr Gale no such reservation is required.  This is because the HPC accepted the witness statements, thereby removing any need for Mr Gale to secure the presence of the witnesses to give oral evidence.
6. In assessing the evidence tendered by the HPC the Panel has had regard to the contention advanced by Mr Gale that the complainants have, to use his term, “colluded” in the giving of their evidence.  The Panel finds that this argument does not get off the ground so far as JB is concerned – she has not been concerned in a group effort and has had no relevant contact with the other witnesses.  In relation to the other witnesses the Panel does not doubt that there has been contact between them since the time they variously ceased to be Mr Gale’s clients.  Indeed, the clear evidence is that IJ and PC are friends, a situation that is reflected in the fact that when interviewed for the purposes of a television broadcast regarding Mr Gale, both IJ and HM (PC’s partner) were apparently interviewed in the same room.  The question, however, for the Panel is whether contact between HPC witnesses has had the effect that their evidence is tainted, whether as a result of a pact to tell deliberate untruths or as a result of unintentional reconstruction of relevant events.  The Panel will comment in relation to each witness on the extent to which they found their evidence to be reliable, but it states at this stage that it did not find that the witnesses had colluded to tell deliberate untruths.  The reasoning is: the witnesses did not tell deliberate lies; generally, witnesses gave evidence regarding different events that affected them personally - in the event of collusion it would be expected that they would back one another up; there is no cogent evidence from Mr Gale that they colluded.
7. Mr Gale is registered with the HPC as an Arts Therapist, having completed a Diploma in Dramatherapy in 1980. Unlike some of its psychoanalytic and cognitive behavioural counterparts, dramatherapy does not base itself on a discrete model of theory and practice; instead it involves a creative synthesis of a diverse range of dramatic, artistic and psychotherapeutic ideas and techniques.  Mr Gale states that his practice is informed by Psychodrama, Wolfsohnian Voice Work and Humanistic Psychotherapy – all of which are recognised influences and activities that can be integrated within dramatherapy practice, given that dramatherapy is defined as “a unique form of psychotherapy in which creativity, play, movement, voice, storytelling, dramatisation and the performance arts have a central position within the therapeutic relationship” (HPC Standards of Proficiency, Standard 3a1). The Panel believes that, in this case, Mr Gale’s status as an HPC registrant lends further credibility to such activities. Mr Gale describes himself as a ‘non-mainstream’ practitioner who adopts a confrontational and provocative position in relation to his clients in both individual and group settings. His avowed aim, broadly, is to challenge his clients to accept uncomfortable truths about themselves in order to develop a more congruent and authentic experience of life.
8. In his evidence Mr Gale told the Panel that he advertised his services in Yellow Pages referring to the fact that he was registered with the HPC, that he had displayed prominently in the Gale Centre his HPC Registration Certificate, that it was his unvarying practice to inform new clients that he was registered with the HPC and that in the unlikely event of a client having a complaint they could direct that complaint to the HPC.
Decision on the facts.
9. Reference has already been made to the length of this hearing and to the extent of the evidence received during it.  In reaching its decision the Panel has had regard to all the evidence and had frequent and extensive recourse to the transcripts.  To refer to the evidence extensively in this document would result in it being so long that it would be unmanageable.  What follows is a summary of the Panel’s reasons for its findings.  It should not be thought that a failure to mention in this document relevant evidence, including that given by the witnesses called by Mr Gale, means that it has been ignored.  To repeat: all the evidence has been considered.
10. Many of the particulars incorporate the word “inappropriately”.  The Panel makes it clear that when dealing with such a particular, the appropriateness or otherwise of the actions will be considered under the decision on misconduct/lack of competence.
11. Ms JB.  Ms JB gave a clear, consistent and credible account of her evidence.  She had good recall of past events notwithstanding the passage of time.  She also had both a near-contemporaneous diary and tape recordings (from which she prepared a transcript) of some of her therapy sessions.  To the extent that her transcription did not accord with the recording, and to the extent that the diary did not exactly tally with her evidence the Panel did not find that the differences undermined her evidence.
12. Particular 1(a)(i).  Mr Gale did not dispute that he fell asleep in sessions with JB.  JB said that it occurred on a number of occasions extending over the period of her interaction with him; sometimes he slept for a significant proportion of a session.  She said that his behaviour left her feeling “crushed”.  Mr Gale answered the contention by saying that his sleepiness reflected something happening in the therapy.  He also said that he had taken steps to deal with the situation, including the rearranging of the timing of her sessions.  These facts are proved.
13. Particular 1(a)(ii).  In a psychodrama session Mr Gale referred to JB as a “stupid cunt”.  She said that it made her feel like being married again.  Mr Gale did not dispute that he used this language, but said that it arose in the context of the exercise of psychodrama where emotions are raised.  The Panel finds these facts proved.
14. Particular 1(a)(iii).  Mr Gale’s evidence is that he has no recollection of this physical contact with JB.  In answer to this allegation Mr Gale referred to JB’s diary in which she stated that she felt “perfectly safe sexually with Derek, for all that he is so risque e.g. when reading the bedtime story he would keep inserting things like “and then he [the character in the story] went off for a wank” or suchlike”.  On the balance of probabilities the Panel finds that the physical contact alleged by this particular did in fact occur. 
15. Particular 1(a)(iv).  JB recalled this evidence clearly and furthermore in some considerable detail and the incident is recorded in her diary.  Mr Gale could not recall the specific incident, but stated that he would not have made the remark because he had advised at previous workshops that clients (even married couples) should refrain from sex.  The Panel finds that this particular is proved.
16. Particular 1(a)(v).  The Panel does accept that JB was bruised and may well have been grazed.  However, the allegation is that Mr Gale “allowed” this to happen.  It is not suggested that Mr Gale incited or encouraged others to harm JB, and so the Panel has concluded that this allegation could only be established if it could be demonstrated that JB should simply not have been permitted to participate in the psychodrama workshop.  This contention cannot be maintained so the particular is not proved.
17. Particular 1(a)(vi).  JB had a clear recollection that Mr Gale said on a number of occasions that the character in a novel he was writing had oral sex.  During tape recorded sessions (reflected in JB’s substantially unchallenged transcript of the same) Mr Gale said that the character in the novel, “… gets fucked in every way” and, “… gets fucked by the client”.  It is correct, as Mr Gale contended, that the discussion of the novel was initiated by JB.  Mr Gale denied that there was mention of oral sex.  The Panel finds that he did in fact refer to oral sex.
18. Particular 1(a)(vii).  JB’s evidence that Mr Gale said that he had a fantasy in which he dropped his trousers in front of his wife is supported by her diary entry.  Mr Gale admits that this could have happened.  The Panel finds that it was said.
19. Particular 1(a)(viii).  Mr Gale admitted that during one-to-one sessions with JB he sent text messages and used his mobile telephone.  The evidence of JB was that telephone calls relating to arrangements for a forthcoming holiday were made.  This behaviour, coupled with Mr Gale looking through cutlery brochures, made her feel humiliated.  The Panel accepts the facts alleged by this particular.
20. Particular 1(b)(i).  The HPC’s contention is that during a one-to-one session with JB Mr Gale discussed a health problem suffered by another client when JB expressed sympathy for that client.  Mr Gale expressed doubt as to whether the client in fact suffered from the condition.  Mr Gale also disclosed a phobia experienced by the same client.  The conversation is not disputed.  Mr Gale initially disputed that he breached confidentiality on the basis that the client willingly disclosed his conditions to other members of the group.  Subsequently, however, Mr Gale admitted that the disclosure of the phobia was a breach of the relevant client’s confidentiality, and the Panel finds the particular is proved to that extent.
21. Particular 1(b)(ii).  To the knowledge of Mr Gale, JB had a history of self-harming.  At a voice workshop Mr Gale, for reasons relating to the activities of the group, asked JB to remove a pullover which was covering her arms.  When she did so it was apparent that her arm was bandaged.  On seeing this Mr Gale responded in front of the group with words to the effect of, “Why have you been slashing your arm JB.”  Mr Gale initially denied this incident but subsequently admitted it, stating that he had consulted another member of the group who had been present, and who had confirmed JB’s account.  The Panel finds this allegation to be proved.
22. Ms GD.  Ms GD was a client of Mr Gale for two long periods that spanned an overall period of approximately 20 years.  It is apparent that at various stages GD has collaborated with Mr Gale in conducting voice work.   As already stated, GD did not give live evidence before the Panel and as has also been stated, this was not as a result of any reluctance on her part.
23. Particular 2(a)(i).  Mr Gale does not dispute that he would have touched GD’s upper chest in the context of his voice work, that being an ordinary part of voice work, but he denies that he would ever have touched her breast and states that he did not pinch her.  Mr Gale’s account was supported by a witness, IS, called by him.  In the context of an allegation that is not particularised as to date, occasion or context, the Panel is unable to find that the HPC have proved that Mr Gale pinched GD’s breast.
24. Particular 2(a)(ii).  GD’s account is that at a psychodrama workshop she pushed through a “wall” of men and suffered bruising to her arms.  The Panel does not question her account that she suffered bruising, but for the exactly the same reasons expressed in relation to the JB allegation 1(a)(v), given that the activity was inherently physical, the Panel has concluded that the particular could only be proved if it could be said that GD should not have been permitted to participate in the activity at all.  This cannot be said, with the consequence that the particular is not proved.
25. Particular 2(a)(iii).  GD’s account is that Mr Gale discussed details of his personal sex life both during one-to-one therapy sessions and when she was cutting his hair.  No particulars of what was said or when it was said are given, and as Mr Gale has denied this particular the Panel does not find it proved.
26. Particular 2(b)(i).  Mr Gale admits that GD cut his own hair and that she was not paid for doing so.  He has also admitted that GD cut the hair of other members of his family.  He stated that the arrangement was that he offered payment for these services, but that it was refused in relation to the cutting of his own hair.  Mr Gale stated in evidence that he was content with the arrangement under which GD cut his hair without being paid to do so because it gave her status as he was the Group Leader.  The Panel finds this particular proved so far as it relates to the cutting of Mr Gale’s hair.
27. Particular 2(b)(ii).  GD’s evidence was that she frequently attended dinner parties at Mr Gale’s home.  Mr Gale has admitted this, and the Panel finds it proved. 
28. Mr IJ.  The Panel find that Mr IJ was generally credible and that he gave his evidence honestly, albeit that the tone of his evidence was coloured by his strong views on his experiences with Mr Gale.
29. Particular 3(a)(i).  Mr Gale admits that IJ and other clients were involved in the re-building of the Gale Centre and the Panel finds this particular proved.
30. Particular 3(a)(ii).  It should be stated at the outset that although the allegation is expressed as, “illegal drugs mainly cannabis”, the HPC has brought no evidence at all that any drug other than cannabis is in issue.  Until a late stage of the hearing this particular was supported by the oral evidence of IJ and the witness statement of GD.  At that stage there was no corroborative evidence beyond these sources.  IJ’s evidence was that Mr Gale personally smoked cannabis, and did so on social occasions attended by his clients.  Mr Gale has emphatically denied this contention and he has called a number of witnesses who have testified that they have never seen Mr Gale use cannabis.  This is a factual contention in relation to which there is no room for honest mistake.  Either Mr Gale smoked cannabis (in which case those who have said that he did have told the truth and Mr Gale told deliberate lies), or he has not (in which case those who have said that he did have told deliberate lies and Mr Gale has given truthful evidence). The Panel found that the evidence of IJ on this issue to be compelling.  
At a stage when this case would have been in its final stages had it not been for a prolonged interruption due to the Chair’s ill-health, digital photographs were produced.  These photographs are said to have been recovered from a crashed computer hard disc of former clients of Mr Gale who are apparently living abroad and unable to attend as witnesses.  One photograph is said to show Mr Gale rolling a cannabis joint, and a second is said to show him holding a cannabis joint between the fingers of his right hand.  Following discovery of these photographs the HPC recalled PC who gave evidence that she had taken these (and other) photographs of the social occasion depicted in them.   
In relation to these late-produced photographs two distinct issues arise: First, whether they are genuine, or whether they have been fabricated.  Secondly, whether they do in fact support the evidence that Mr Gale used cannabis.  As to the genuineness of the photographs, Mr Gale, who had in excess of a month to advance a case in relation to them, has contended that they could have been digitally manipulated so as to implicate him.  There is, however, no evidence that this has in fact occurred.  The Panel acknowledges that there are techniques available that permit digital images to be altered, but it accepts the evidence of PC not only that she took the photographs, but also that what is depicted in them accords with her recollection of the event, which includes the distinctive smell of cannabis being smoked.  The Panel therefore finds the photographs to be genuine.  It also finds that they support the evidence of cannabis use on the part of Mr Gale.  There is, of course, no chemical analysis of the contents of the roll-up.  However, the appearance of it is consistent with it being a joint, and not consistent with it being an ordinary roll-up cigarette.  Upon production of the photographs Mr Gale said that although he had given up smoking in the late 1970s nevertheless very occasionally he would smoke a cigarette.  He also said that he would occasionally ask someone rolling a cigarette if he could have a go too.   At the earlier stage of these proceedings (prior to the production of the photographs) he had made no mention of these possible explanations as a possible reason why IJ might have misconstrued what he saw as cannabis smoking when in fact it was ordinary tobacco.   
In short, the Panel found Mr Gale’s response to the photographic evidence to be not credible, and this view of the Panel was not altered by the evidence of a witness called by Mr Gale, MG1, who was present on the relevant occasion and who said in cross-examination when it was put to her, “I am going to suggest to you that you were present at this event .. and you are not telling the truth about that [that Mr Gale had smoked spliffs at social events]”, “OK, I cannot comment.” (page 75 of the transcript for 15th April 2009).  It should be stated that the social occasion depicted in the photographs was not one attended by IJ, but the Panel finds that the evidence corroborates what IJ and GD have stated about Mr Gale’s use and attitude towards cannabis.  To be clear, the Panel finds that Mr Gale personally used cannabis in front of his clients and it rejects his evidence that he did not do so.
31. Particular 3(a)(iii).  IJ’s clear evidence was that Mr Gale used the word “cunt” towards him.  Mr Gale, while agreeing that “industrial” language would be used, had no recollection of specific occasions on which he had used this particular word towards IJ.  Furthermore, whereas IJ’s evidence about his reaction to this language was that he thought that he had done something to upset Mr Gale, Mr Gale has suggested that IJ would not have been upset by it.  The Panel finds this particular proved.
32. Particular 3(a)(iv).  Mr Gale accepts that he did not keep adequate notes, albeit that this arose in the context of his belief that he had a good memory.  He also accepts that he urged clients to keep their own notes.  In relation to clients keeping their own notes Mr Gale urged upon the Panel that it was good practice to do so. He produced NHS and other guidance which alluded to the benefit of patients sometimes keeping their own notes, however the Panel found that these documents neither bore any relation to the practice undertaken by Mr Gale nor did they suggest that this obviated the necessity for the therapist to maintain good notes. He now acknowledges that professional standards require him to keep proper notes.  The Panel finds this particular proved.
33. Particular 3(a)(v).  IJ’s evidence was that he helped Mr Gale with IT support and the preparation of a business plan for the Gale Centre (and that he gave Mr Gale a lift to the airport), that there was no remuneration for these activities and that some of them took place in therapy sessions.  When asked why he did these activities IJ said that it was the sort of thing a son would do for his Dad.  Mr Gale admitted that he asked for, and received, advice and help.  He regarded it as a quid pro quo.  He gave up his time, often unpaid for his clients, so that any services were an exchange of “favours”.  The Panel finds the particular proved.
34. Particular 3(b)(i).  It is alleged against Mr Gale that during a residential psychodrama workshop he disclosed without permission the fact that IJ was having an affair with another member of the group who was also present.  Mr Gale stated in evidence that he would always ask for permission before making any such disclosure and in cross examination he put to IJ that he had obtained consent to make the disclosure, IJ replied, “I don’t remember.”  In the light of this evidence the Panel finds this particular is not proved.
35. Particular 3(b)(ii).  The Panel’s conclusion is that this particular is not proved.  The reason for this is that there is a lack of that degree of clarity that would be required to make a finding as to the occasion and content of the material disclosed.  The particular is therefore not proved.
36. Ms PC.  It has already been stated that the Panel does not find that any of the witnesses have deliberately concocted false evidence against Mr Gale, and this includes PC.  However, the Panel has had the opportunity to observe PC give evidence at two separate stages of the proceedings, and having done so it feels that what PC believes to be the negative influences of her contact with Mr Gale has coloured her recollection of events.
37. Particular 6(a)(i). It is not disputed by Mr Gale that he and PC went away on trips on four occasions.  One trip was a motorcycling holiday abroad attended by only Mr Gale and PC, another was the two of them and a friend of Mr Gale, and on the other occasions there were other participants.  PC’s clear evidence was that these were holidays.  Mr Gale on the other hand has advanced a case that they were in fact therapeutic activities, and that PC had made an informed decision to attend.  On the solo motorcycle trip Mr Gale was writing a book about motorcycling in Europe.  Whatever may have been Mr Gale’s rationale for the trips, the Panel is satisfied that PC did not understand them to be part of the therapy she was undergoing with Mr Gale.  This particular is proved.
38. Particular 6(a)(ii).  It is accepted that PC was involved in social events, and that the particular is proved to that extent.  The evidence does not support the contention that PC was “caused” to work unpaid, because she volunteered her services and there is evidence that she enjoyed the role of making cocktails.
39. Particular 6(a)(iii).  As has already been stated it is proved that clients, including PC, participated in the unpaid work of reconstruction of the Gale Centre.  This particular is proved.
40. Particular 6(b)(i) & (ii).  The Panel finds that at a psychodrama workshop PC did fall and hurt her head.  On the balance of probabilities the Panel does not find that PC was concussed.  In the light of this finding the Panel does not accept that Mr Gale had the duties that are implied by the particular and it is therefore not proved.
41. Particular 6(c).  The Panel accepts that at this workshop Mr Gale referred to what he perceived to be PC’s negative attitude, and it also accepts that in this context there was reference to that issue being discussed at the community meeting the next day.   However, in cross examination PC accepted that he did not say that the whole of the community meeting would be devoted to her behaviour, accepting that it could have been for a period as short as five minutes.  The Panel therefore does not accept the thrust of the particular and so it is not proved.
42. Particular 6(d).  Mr Gale introduced as his exhibit 9 the minutes of this Voice Group meeting.  The Panel accepts that these minutes reflect a sufficiently accurate account of what happened for the finding to be influenced by this document.  It is apparent that PC said that she wished to leave the group but had attended that day because she did not wish to leave under a cloud.   Various responses to this assertion were made by members of the group, some suggesting that she should stay, others that she had already in effect left.  It is apparent that swear words were used in the discussion, but in the context in which that occurred the Panel does not find that such a level of abuse arose that it could clearly be stated that Mr Gale had a positive duty to intervene.  This particular is therefore not proved.
43. Particular 6(e).  It is an undisputed fact that PC made the request for her notes and that she received one sheet of A4 notes.
44. Paragraph 7 particulars.
45. Particular 7(a).  Mr Gale accepts that he read bedtime stories to clients.
46. Particular 7(b).  The HPC now accepts that there was only one card addressed to IJ and signed by Mr Gale as “Daddy”.  Mr Gale accepts that he sent this card to IJ.
47. Particular 7(e).  Mr Gale accepts these facts.
48. Particular 7(f).  Mr Gale accepts that he sat in a chair when there was a reason to do so (for example, when he needed to play the piano or had a bad back). The Panel finds that when clients were seated on the floor, Mr Gale did not sit on a chair without good reason.  This particular is not proved.
49. Particular 7(h).  In relation to this contention the Panel finds that XX was indeed asked to go to his room, and remained there for some considerable time (the evidence was unclear as to precisely how many days it was).  However, the evidence accepted by the Panel is that this decision that resulted in XX being asked to remove himself to his room was one made by the group.  On the available evidence the Panel is unable to find that on this occasion Mr Gale’s influence over the group was so overwhelming that it is possible to find that the decision was, in reality, his.  It follows that this particular is not proved.
Decision on misconduct/lack of competence.
50. Before turning to this issue it is necessary for the Panel to be clear about what it is and is not considering.  These proceedings are being conducted before a Panel of the Conduct and Competence Committee of the Health Professions Council.  Mr Gale appears as a Health Professions Council registrant.  The allegations against Mr Gale are that his fitness to practise as a Health Professions Council registrant is impaired.  It follows that this Panel is only concerned with matters that are of legitimate concern from the standpoint of the Health Professions Council.  The Panel is not concerned with any matters other than Mr Gale’s activities as an HPC registrant or that bear upon his fitness to practise as a Dramatherapist.  Further, the Panel is simply required to decide if the factual matters alleged by the particulars constitute misconduct or represent lack of competence – the Panel is not undertaking a root and branch review of Mr Gale’s professional work.  Indeed, the evidence presented to the Panel suggests that Mr Gale has helped a number of clients over a number of years, and the Panel does not doubt that that is so.
51. The Panel is entirely satisfied that all the professional activities that have been described in the evidence fall within the scope of practice of a Dramatherapist.  That fact, coupled with the matters identified in paragraphs 7 and 8 above are sufficient to satisfy the Panel that it has jurisdiction over the full extent of the allegations.
52. The findings of fact made above can conveniently be grouped as follows:
(i) Use of controlled drugs.  Particular 3(a)(ii). This is, as Mr Gale has clearly acknowledged it would be, obvious misconduct.
(ii) Inadequate notes.  Particulars 3(a)(iv) and 6(e).  The Panel is satisfied that Mr Gale knew that he should have been keeping full notes, whether or not he believed he had a good memory.  The deliberate default in not keeping them was misconduct.
(iii) Structural boundaries.  Particulars 1(b)(i), 2(b)(i), 2(b)(ii), 3(a)(i), 3(a)(v), 6(a)(i), 6(a)(ii) and 6(a)(iii).  This category represents the forms and modes through which Mr Gale delivered his therapy to his clients; it  also includes those areas which Mr Gale himself refers to as “dual relationships”.   
It should be made very clear that the Panel is not prescribing how a therapist must go about their work, the issue is simply whether what happened was clearly inappropriate.   
With this test in mind the Panel is unable to say that although there are suggestions that some of those involved lacked a clear understanding of the full therapeutic rationale for re-building of the Gale Centre, nevertheless the Panel is unable to say that it was demonstrably inappropriate.   It follows that the Panel does not find that 3(a)(i) and 6(a)(iii) constitute or contribute to misconduct or amount to a lack of competence.   
However, the remaining particulars do, in the judgment of the Panel, demonstrate that Mr Gale did not have regard to the need for clear and consistent boundaries, or to the extreme caution that would be required if a generally accepted boundary were to be crossed.  In this regard it is noteworthy that although Mr Gale discussed the issue of the rebuilding of the Gale Centre with his supervisor, in relation to other issues requiring detailed professional consideration, such as the lone holiday with PC, he clearly did not.  
The advice he was given by his supervisor and other professionals he consulted with (people who gave evidence to the Panel on his behalf) was that he should be very cautious about negotiating what Mr Gale describes as the very wide boundaries of his practice.  The consequence was that although Mr Gale has asserted that he was clear about his role as therapist on all occasions, it is evident that not all his clients had that full understanding.  Further, confidentiality was breached.  That these situations arose was the consequence of Mr Gale deliberately disregarding what he knew he should have done. 
It follows that Particulars 1(b)(i), 2(b)(i), 2(b)(ii), 3(a)(v), 6(a)(i) and 6(a)(ii) amount to misconduct.
(iv) Clinical boundaries.  Particulars 1(a)(i), 1(a)(ii), 1(a)(iii), 1a(iv), 1(a)(vi), 1(a)(vii), 1(a)(viii), 1(b)(ii), 3(a)(iii), 7(a), 7(b) & 7(e).   By clinical boundaries the Panel means the boundaries that relate to the specific relationship within the therapeutic encounter between the therapist and the client.  This would include issues that have been described as self disclosure by the therapist, physical contact between therapist and client, and the imagery and vocabulary that is used within the therapeutic relationship.  It follows that different considerations will apply to different clients, and that the clinical boundaries will be impacted upon by the structural boundaries.   
With this background in mind the Panel does not feel able to say that the nature of the therapeutic relationship between IJ and Mr Gale was such that it was clearly inappropriate for the latter to refer to the former as a “cunt”.  It therefore follows that particular 3(a)(iii) falls away.  However, the same cannot be said of JB because, by virtue of her history of which Mr Gale was fully aware, the use of that word would be likely to, and in fact did, have a very different result.  The Panel finds that the use of the word “cunt” to JB, together with particulars 1(a)(iii), 1(a)(iv), 1(a)(vi) and 1(a)(vii) were all inappropriate given the specific problems that had taken JB to therapy and the fact that Mr Gale knew that JB had feelings of sexual attraction for him.  Again, the Panel finds that the sending of text messages and use of a telephone (particular 1(a)(viii)) during a therapy session would represent a significant intrusion into the therapeutic space.  This would be unacceptable for any client, and was so for JB.  Mr Gale did know that it was not acceptable behaviour and is misconduct.  The disclosure of JB’s history of self-harming was clearly an unacceptable breach of confidence that left JB humiliated.  It was misconduct.   
It is clearly undesirable that a therapist should fall asleep in a therapy session, but the Panel does not feel able to say that to do so necessarily results from such a lack of interest in the client that it could be said that it can only arise in the context of misconduct or lack of competence.  Indeed, Mr Gale took steps to deal with it, including rearranging appointment times to a time of the day when he considered he was less likely to fall asleep.  The Panel does not find that particular 1(a)(i) amounts to misconduct or lack of competence. 
 So far as the so-called infantilisation allegations 7(a), 7(b) and 7(e) are concerned the Panel finds that they do not amount to misconduct or lack of competence.  This is because it can not be said of these activities that they are approaches or responses that should never be used.
53. The result of the preceding findings is that the following particulars amount to misconduct: 1(a)(ii), 1(a)(iii), 1(a)(iv), 1(a)(vi), 1(a)(vii), 1(a)(viii), 1(b)(i), 1(b)(ii), 2(b)(i), 2(b)(ii), 3(a)(ii), 3(a)(iv), 3(a)(v), 6(a)(i), 6(a)(ii), 6(e). The misconduct amounts to breaches of standards 1, 2, 3, 7, 10 and 13 of the HPC’s Standards of Performance Conduct and Ethics.  No question of lack of competence arises as the defaults were deliberate.
  Decision on current impairment of fitness to practise.
54. The Panel acknowledges that the issue is whether the misconduct found is currently impairing Mr Gale’s fitness to practise.  It is obvious that misconduct of the extent and seriousness found was impairing his fitness to practise at the time of the relevant defaults.  Mr Gale has told the Panel that he has taken some steps (for example, in relation to notekeeping and preservation of client confidentiality) to remedy shortcomings.
55. The Panel has no hesitation in finding that the misconduct established is still impairing Mr Gale’s fitness to practise.  Having had an opportunity to observe Mr Gale over a long period of time both as a witness and as a person conducting his case in this hearing, the Panel has come to the firm view that he has a cavalier attitude towards the needs of clients and the requirement to follow clear guidelines.  This is demonstrated by numerous instances, including his evidence in cross-examination that he had never read the HPC’s Standards of Conduct, Performance and Ethics, the fact that he failed to heed the warning and advice given to him to exercise caution over socialising with clients, and the fact that in stating that he had now modified his practice to accord with prescriptive rules he was doing so only because of the rule and without embracing the rationale for the rule.  Furthermore, of course, the smoking of cannabis in front of his clients was a flagrant example of a cavalier attitude towards professional responsibility.  None of these criticisms relate to Mr Gale’s avowed unorthodox approach.  Mr Gale’s current fitness to practise is impaired because a person who is capable of adopting this attitude represents a significant risk to clients who may come his way, and that there is this risk with some potential clients is not negated by the acknowledged fact that he has helped people.
56. The consequence of these findings is that the misconduct allegation is well founded and the Panel must proceed to consider the issue of sanction.
 
Decision on Sanction:
57. Since announcing the decision on the allegations set out above the Panel has heard further submissions on behalf of the parties.  On behalf of the HPC, Ms Jung has reminded the Panel of the purpose of a sanction and of the available sanctions, but did not urge the Panel to adopt any particular sanction.  Mr Gale did not make any further submissions at this stage – he merely referred to the submissions he had made earlier relating to his therapeutic approach.
58. The Panel has reminded itself throughout that the purpose of a sanction is not to punish.  Rather a sanction is only to be imposed to the extent that it is required to protect the public, to maintain confidence in the registered profession and in the HPC’s regulatory functions.
59. It is appropriate to record at this stage that Mr Gale has submitted a substantial body of evidence that leads the Panel to accept that he has helped a number of clients over a number of years.  The judgment of the Panel in this case does not directly follow from his unorthodox approach, as to which Mr Gale is transparent.  Furthermore, that some clients consider that the style or manner or delivery of his services is not suitable for their needs does not constitute misconduct and does not register in the Panel’s decision.  Some of Mr Gale’s peers (themselves highly regarded in their field) gave evidence that he is an innovative and creative practitioner in some areas, albeit that these witnesses were clear about the importance of the particular care Mr Gale should exercise because of the very wide and flexible boundaries in which he operates.
60. The behaviour that has been found to constitute misconduct is various, wide-ranging and happened over a long period of time.  Some of it was of a very serious and fundamental nature.  It follows that the seriousness of the behaviour dictates a sanction is required and that a caution order would be an inadequate response.  It is not appropriate to have conditions of practice to require a person to perform in accordance with the standards that the ordinary standards of registration require.  It follows that the choice is between suspension and striking-off.
61. In order to explain the Panel’s decision it is necessary for the Panel to be clear about its assessment of Mr Gale.  The Panel has already stated that it finds Mr Gale’s attitude to be cavalier, and this is so not only in relation to his clients, but also in relation to the justifications for his practice and in his ambiguous relationship with the truth.  That this is so is demonstrated by a number of instances disclosed by the evidence.  One relates to particular 1(b)(ii) – the disclosure of JB’s self-harming.  Having persistently denied this allegation Mr Gale then admitted it.  He said that he did not recall it but accepted the word of another person who had been present on the occasion.  Whether Mr Gale did not in fact remember it (which would be extraordinary given his claimed good memory and the gravity of the disclosure) but did not recall it or he did in fact remember it and chose not to disclose until a late stage is immaterial.  Either explanation reflects badly on him.  Another example, is of course, his incredible evidence relating to the use of cannabis.  Also, Mr Gale told the Panel that he had supervision in relation to all aspects of his practice.  He claimed that his lone motorcycling trip with PC was therapeutic exercise, but it was clear from the evidence of his supervisor that he had no knowledge of that trip.  His supervisor expressed great surprise and concern when he learned of it when giving evidence.  These are merely examples of many.  The Panel notes also that Mr Gale appeared just as affronted by GD’s contention that he could not sing well as he was by the very serious allegations relating to his clinical practice and his use of cannabis. The view of the Panel is that Mr Gale is capable of being evasive when he perceives an advantage in being so.
62. A suspension order could only be justified if the Panel could find that there is a realistic prospect that repetition would not occur.  For the reasons set out above the Panel is not able to find that there is any such prospect.  Mr Gale’s casual neglect of the HPC’s standards does not inspire confidence in the Panel that he would in the future comply with them either in spirit or in principle.  The consequence is that a striking-off order is required.  This is a decision arrived at not only by a process of elimination.  Striking-off is also a necessary and proportionate response to the allegations because of the need to protect particularly vulnerable clients who might consult Mr Gale, and in order to ensure that the public can maintain the level of confidence it is entitled to hold in both the registered profession and the HPC’s regulatory process.
 Committee orderView committee orderView committee order

The Registrar is directed to strike Hirsch Derek Gale off the register
 NotesView notesView notes

 

 



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