Mr Gary Bennett

Profession: Biomedical scientist

Registration Number: BS71591

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 22/08/2022 End: 17:00 24/08/2022

Location: Virtual via Videoconference

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

As a registered Biomedical Scientist your fitness to practise is impaired by reason of a conviction. In that:

1. On or around 6 May 2021 you were convicted of “ON 06-DEC-2020 AT... ASSAULTED PERSON A BY BEATING HER. Contrary to section 39 of the Criminal Justice Act 1988.”

2. By reason of your conviction your fitness to practise is impaired.

Finding

Preliminary Matters

Private
1.The Panel was aware that it could of its own volition go into private session if this was necessary to protect the private life of individuals.

Background

2.At the relevant time, the Registrant was employed as a Band 5 Biomedical Scientist in the Histopathology Department at Derriford Hospital in Plymouth.

3.On 6 December 2020, the Registrant was arrested on suspicion of assault following an altercation with his ex-partner.

4.The facts of the case involved the Registrant while intoxicated assaulting his ex-partner, grabbing her, throwing her onto the bed twice, a bite, and three punches. He had said that he had never acted in this way before and she had made him behave in this manner. Children were present at the home at this stage, and police were called to the property.

5.On 18 March 2021, he attended Bodmin Magistrates Court in Cornwall and pleaded guilty to a charge of common assault.

6.On 31 March 2021, the Registrant referred himself via email to the Registrations Department of the HCPC, advising of his conviction.

Decision on Facts

7.The HCPC provided a background by way of context to the offending. The HCPC had no evidence that the matter was anything but out of character and had not occurred either before or since the one conviction that this case concerns.

8.Mr Foxsmith made clear this case was being brought only on the grounds of conviction and not of misconduct. He further made clear that there was no restraining order imposed by the Magistrates Court. He indicated that there has been no interim order in this case imposed by the HCPTS.

9.The Registrant has a criminal conviction. The Panel has seen a certified copy of the certificate of this conviction and the Registrant admits that this is accurate. The certificate is evidence that the Registrant was convicted last year at the Bodmin Magistrates Court, following his plea of guilty, of an offence of common assault.

10. Article 22 of the Health Professions Order 2001 (the Order) makes clear, when a conviction is adjudicated upon, the HCPC is not required to re-prove the matters that have already been proved in proceedings elsewhere. All the HCPC has to do is to put in the certificate of conviction. The Panel is bound to accept the copy certificate as conclusive evidence of the offences having been committed.

Decision on Grounds: conviction

11. Article 22(1)(a)(iii) of the Order provides that one of the grounds upon which an allegation may be made is that a registrant’s fitness to practise is impaired by reason of: “a conviction or caution in the United Kingdom for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence,”.

12. Given the certified copy certificate of conviction and the Registrant’s admission the Panel finds that this ground to be made out.
Evidence given by the Registrant

13. The Registrant gave evidence under affirmation. He said that he had made the decision to continue living with his ex-partner for the sake of the children, which in hindsight was a bad idea. He characterised his behaviour with his ex-partner as out of character and said the incident was one in which he had been attacked and had defended himself. He said that she was controlling and that he had been trying to get his telephone back from her. He said he had sustained injuries but so had she, and that was why he entered a guilty plea at court.

14. He explained that he had done 15 rehabilitation sessions and 80 hrs of unpaid work. He said that he had three months off work and sought his own assistance via various organisations. He had undertaken weekly appointments to assist with his wellbeing. He said that his unpaid work was at Cornwall Hospice Care at their warehouse loading clothes onto vehicles, breaking up furniture etc. He said he had to ask to be transferred following an issue with other people also doing unpaid work, and he thereafter worked in the field behind Bodmin Scouts Clubhouse clearing brambles and making it more suitable for children camping.

15. The rehabilitation sessions included meeting with probation officers, and other meetings where he was signposted towards other sources of help. He said that he had self-referred to several organisations and reported this to his probation officer, completing his rehabilitation easily within the allocated 12 months. He said that the sessions did address coping strategies so as not to find himself in the same situation and it was helpful in looking at “different aspects of life”; he said he felt improved and in hindsight, should have looked at getting help at an earlier stage. He said that he was remorseful and regretting what had occurred.

16. In response to Panel questions, he agreed that his conviction has the potential to cause embarrassment to his employer and concern to the public. He said that it had no impact upon his professional role, and kept his operational officer updated as to his rehabilitation. He said that he had taken three months off to resolve medical issues and did not believe that what has occurred had impacted his role as a Biomedical Scientist, (“BMS”). He reminded the Panel that he had self-referred to the HCPC and said that he believed his conviction will be spent next May, as this would be one year post the completion of the community order.

17. Mr Mitch Waine indicated that he had known the Registrant for 18 years in a work capacity and was aware that he had engaged in counselling and rehabilitation.

18. In cross examination, the Registrant indicated that he had not done any domestic violence courses. He said that violence is never ‘okay’ but his ex-partner was controlling, and he felt himself a victim, even if his ex-partner was considered the victim insofar as the assault was concerned. He said that he had been assaulted, and was acting in self-defence, and had only been trying to get his property back and stop being assaulted.  

19. He said that he did not regret pleading guilty even though he had set this down in his statement. He said that he had been the victim of abuse given the controlling and domineering behaviour of his ex-partner. He retracted a statement to this effect which he gave to the police because he did not want his children impacted. He said that he recognised that he had done something wrong, and could not afford to go to trial, given that he had said things which amounted to admissions recorded by body-worn camera footage by police.

20. The Registrant said that the conviction is minimal in terms of a lower category offence and a relatively low sentence. He said that people would have seen this, and this does not reflect well on the profession, but that other people have done worse.

21. In terms of impact on his ex-partner, he said that he had spoken to her and acknowledged that there had been an impact on his children with the involvement of a social worker. His children have health conditions which meant that there were difficulties with their processing and learning and their youth made this situation confusing for them. He said he was taken out of the children home due to bail conditions which was horrible because his children wanted to see him. It has been unpleasant for him, his partner, children, family, friends and his work.

22. He said he had used to look at everything as a whole, rather than breaking down into more manageable chunks. That has helped him greatly and he has learnt to work on problems in this way. He also undertook a course of Cognitive Behavioural Therapy which has helped him behave differently and talk to people rather than isolating himself from others. He has learnt about trigger points and knows that he should have walked away and taken himself out of the situation. He said that he is the one who made a mistake, and he understands gravity of his actions.He said he recognised he should not work for the three months and took sick leave.

23. He said that the mechanisms and strategies he now has, means he is confident that he is able to function well as a human being and a BMS. He said that anyone who knows him would support this.


Submissions from HCPC on impairment

24. Mr Foxsmith provided written submissions but added oral comments to this. He submitted that the Registrant’s equivocal comments undermined the guilty plea and suggested that there may be attempts to minimise his wrongdoing by the Registrant suggesting his conviction was ‘minimal’ although he accepted there are criminal offences which reference more serious injury. He submitted that the Registrant’s references to himself as a victim suggest that he has sought to deflect blame. He said the Registrant should be found impaired on the personal component, given that he did not appear to accept as yet that he is wholly in the wrong in how he behaved.

25. Insofar as the public component is concerned, the Registrant committed an act of violence that resulted in a criminal conviction. This is serious and as the Registrant has acknowledged can cause embarrassment to the profession.

26. He further submitted that the HCPC considered that there had been a breach of Paragraph 9.1 of the HCPC Standards of Conduct, Performance and Ethics. In considering the behaviour of the Registrant, it was clear that in being violent, he had contravened the following requirement:

“Personal and Professional Behaviour:
9.1 You must make sure that your conduct justifies the public’s confidence in you and your profession.”

Mr Foxsmith submitted that the Registrant’s behaviour fell far below this standard.
Submission from the Registrant

27. The Registrant said that this experience had been a salutary one. He submitted that he was not trying to lessen the significance of his conviction or the damage his assault caused. He said he did not consider himself the victim in this case, and that he was only attempting to paint a picture that provided context and background.

28. He said that the Trust who have known him for years, both as a person and a BMS have confidence in him. He said that he is not the person that this conviction has made him out to be. He submitted that he took three months off work by his own volition, to address a health issue, and considers having been released by agencies who have supported him and returned to full duties that he is fit to practise without restriction.

29. He said that the interventions he had engaged with should provide confidence that there was little risk of repetition. He submitted that a member of the public would expect people to behave well and abide by standards associated with his role. He submitted that the criminal case was made public, and people did see it but it does not appear to have lessened confidence in the profession of BMS in his local area.

30. He submitted it was important for the public to have confidence in BMS and the regulation, and that the process is a key one. He did not think that a finding of impairment was required in the very particular circumstances of this case. This was violence but limited to a single occasion with a significant build up concerning health and personal matters which have subsequently been addressed.

31. He indicated that it had been hard to seek help but having been through the process once, is confident that he could do so again, and seek help for his medical conditions, to prevent any repetition. The violence he regrets, had precipitated his realisation that he needed significant help, and he willingly made efforts to obtain this. This context would be one that a fully informed member of the public would have sympathy with.

Decision on Impairment
32.  The Panel accepted the advice of the Legal Assessor who commended the HCPC Practise Note on Finding Fitness to Practise is Impaired to the Panel. The Panel acknowledged that a finding of impairment needs to consider the Registrant’s current position and that there are two components, a personal component reflective in this case of the Registrant’s state of mind and whether there remains a risk of repetition, and the public component which requires a broader view that considers how the public would regard this matter. The Panel considered the documentary evidence presented by both the HCPC and the Registrant.

33. The Panel did consider the written statement from the Registrant in evaluating whether this evidences sufficient insight by the Registrant to address the risk of repetition. The Panel was reminded that the conviction concerns an incident which occurred in December 2020 and that there has been no repetition, with the Registrant not having been before his regulator ever before. However, the Panel considered that the public need to see how professionals are regulated in order to have confidence in both professionals and their regulation and whether a finding of impairment was required in order to uphold the proper standards for the profession.

34. There was reference made to some of the questions that Dame Janet Smith asked in the Fifth Shipman Inquiry Report, such as bringing the reputation of the profession into disrepute. The Panel was told on behalf of the HCPC that it is only if the Registrant demonstrates a full and fully developed insight can it be satisfied that the personal component is addressed. Additionally, public confidence requires that the public can see how breaches of professional codes of practise are addressed.

35. The Panel accepted that the Registrant that they had before them today is not the same man who fought with his ex-partner in December 2020. The Panel accepted that the Registrant had been on a journey of realisation, and that it had taken a conviction to make him embark upon it. It was heartened to hear of the steps taken pro-actively by the Registrant to address his health failings.

36. It considered that his employers who have a long-standing relationship with the Registrant were positive about the Registrant’s current work.

37. The Panel did not consider this to be a case that has highlighted the protection of service users but rather the upholding of standards and protection of the reputation of the profession and its regulator. Insofar as the conviction is concerned, these did not involve a service user but personal circumstances.

38. The Panel considered the facts behind the conviction. The Registrant had grabbed his ex-partner, punched her repeatedly, when drunk, in a space where young children, with particular processing vulnerabilities were present. It may consider that a tumultuous and acrimonious end of a domestic relationship, should not be a benchmark for every possible encounter, and set this against the Registrant’s employer being pleased to restore the Registrant to full duties and to report favourably on his behaviour and work.

39. The Registrant indicated that he has taken time to reflect on this and accepts that he could have done things differently taking a course of action, which was not immediately apparent to him at the time. However, there has been no repetition since 2020. The Panel accepts that this is relevant and supports his contention that any risk of repetition is low. His insight is evidenced by his reflection. The timing and level of insight may be considered by the Panel given the earlier and latter parts of the Registrant’s evidence but the Panel accepted that the Registrant was a private individual who has difficulty expressing personal issues.

40. Given the remedial work undertaken, the progress noted by his probation officer, and the Registrant’s own complete admission of matters, the Panel were of the view that the Registrant is not impaired on the basis of the personal component. This is because it accepts that the Registrant has made significant strides into developing insight, understands his triggers, and has in place strategies to manage them before anything untoward should ever occur.

41. The Panel then considered the public component of impairment.

42. The Panel considered that there had been a breach of Paragraph 9.1 of the HCPC Standards of Conduct, Performance and Ethics. In considering the behaviour of the Registrant, it was clear that in being violent, he had contravened the following requirement:
“Personal and Professional Behaviour:
9.1 You must make sure that your conduct justifies the public’s confidence in you and your profession.”

43.The Panel did take into account the context in which the wrongdoing had occurred and that it was outside his working life. As a domestic argument, it was sufficiently serious for emergency services to be called and for Person A to have sustained injury by the Registrant’s own admission.

44. The Panel was also conscious that this was a domestic disagreement. The Panel carefully considered the culpability and level of wrongdoing involved in this case. It was conscious that the context of this argument was post the breakdown of a relationship where both parties still co-habited in the same property meaning emotions were running high, and that the situation got out of hand.

45. While the Panel notes that there was no Article 8 (ECHR) argument specifically raised, it did consider this, given the legal advice it had received. It took into account that this situation was not one which involved Service Users in the context of a patient-facing relationship, or professional colleagues. It also considered that the domestic argument had been one where parties were unable to resolve their differences amicably. In taking into account what had occurred the Panel was clear that the Registrant as a registered healthcare professional is bound by a code of conduct that relates to both his personal and professional behaviour. The Registrant did behave in a way that was contrary to the HCPC Standards of Conduct Performance and Ethics which binds him, and his conduct was sufficiently serious for this to amount to a criminal conviction which is a statutory ground on which impairment can be found.

46. The Panel found that the Registrant’s conduct was serious and violence, within the context of a protracted argument, is not something which can be excused. Membership of a profession has both its rewards but it has a price. This is behaviour justifying public trust, and this has not exhibited by the Registrant.

47. The Panel considered that the public should be entitled to have confidence in those who treat them. It evaluated whether an informed reasonable member of the public, knowing of the tumultuous ending to this relationship would be able to distinguish an isolated incident in the Registrant’s private life from their public facing professional role. The Panel carefully examined whether the public would see only an argument between cohabitees, rather than a Registrant who cannot uphold the standards expected of him. The Panel came to the conclusion that it was not possible to distinguish the two.

48. The Panel went on to consider whether this was the type of case that required a finding of impairment on public interest grounds in order to maintain public confidence in the profession and the Regulator and to uphold professional standards. The Panel found that this conviction reflects very serious wrongdoing in the context of a protracted assault in front of children. The Panel was satisfied that a fully informed member of the public, who was aware of all the background to this case, would have their confidence in the profession and the Regulator undermined if a finding of impairment were not made.

49. While the Panel considered that a member of the public would recognise that there are occasions within one’s personal life which are highly charged, and one behaves badly, it found that the Registrant has breached a fundamental tenet of the profession. It is positive that he has reflected on this and not repeated his behaviour. However, even as a wholly isolated incident in an otherwise unblemished career, the Panel was of the view that not to make such a finding would be wholly inconsistent with the gravity of the conviction.

50. The Panel took into account that the Registrant had engaged with the criminal justice system and pro-actively addressed his rehabilitation under a community order but determined that his conduct in assaulting his ex-partner in the circumstances he did, requires a finding of impairment to send out the message to the profession that this sort of behaviour is wholly unacceptable and not to be tolerated.

51. Having determined that the Registrant’s fitness to practise is impaired by reason of his conviction, the Panel had to decide on the appropriate sanction, if any, to impose.

52. The Panel has taken into account evidence received during the earlier stages of the hearing where relevant in reaching a decision on sanction.

53. No further evidence was provided at this stage.

Submissions

54. On behalf of the HCPC, Mr Foxsmith submitted that the appropriate and proportionate sanction in this case was a matter for the Panel. He relied in part on his submissions at the impairment stage, including the primary functions of the Panel, including the risk that the Registrant poses to service users, (which he conceded did not apply in this case), the deterrent effect of sanction, the need to uphold public confidence in the profession and confidence in the regulatory process. He referred the Panel to paragraph 10 of the HCPC Sanctions Policy (‘the SP’), which sets out considerations for a Panel reflecting the primary purpose, and advocated the application of the principle of proportionality.

55. Mr Foxsmith indicated that it was to the Registrant’s credit that he has engaged in these proceedings. He indicated that the Panel should follow the SP in identifying aggravating and mitigating factors in this case. Mitigating factors which the Panel might consider apply in this case include insight, apology, and remorse. Apology means in this instance a genuine recognition of concerns and empathy for the victim of the assault, just as remorse means an acknowledgement of wrongdoing. In regard to the aggravating factors in this case, Mr Foxsmith submitted that these include the presence of children at the scene, the fact that the Registrant was intoxicated and the location of the assault.

56. Mr Foxsmith submitted that in the circumstances of this case it would be inappropriate to take no action. He said that the Panel should consider each of the sanctions in turn in terms of ascending seriousness. He commended the SP to the Panel in terms of guidance it should follow.

57. The Registrant submitted that he comprehended fully the need to protect the public interest. He was conscious of the damage to service users, colleagues, his Trust, the wider profession and the HCPC as the regulator. He said he recognised the profound unacceptability of his actions and that he regretted the impact on his ex-partner and his children. He said he has worked hard to ensure that there is no repetition and hopes that he has sufficiently evidenced the genuine insight he believes he has to his mental health issues and past behaviour. The Registrant said he recognised his wrongdoing, would respect the decision of the Panel, and left the matter of which sanction would be appropriate for it to determine.

58. The Panel accepted the advice of the Legal Assessor regarding the purpose and assessment of appropriateness of sanction.

The Panel’s Determination on Sanction

59. The decision as to the appropriate sanction to impose, if any, is a matter for this Panel exercising its own judgement. It had regard to the SP.

60. The Panel considered the sanctions available, starting with the least restrictive. It has borne in mind that the purpose of a sanction is not to be punitive, but to protect service users and the wider public interest, although it may have a punitive effect. If it chooses to impose a sanction, the sanction should be appropriate and proportionate, although the reputation of the profession as a whole is more important than the interests of any individual practitioner.

61. The Panel considered and balanced the aggravating and mitigating factors in this case.

Aggravating factors
62. The Panel considered that this was a case involving domestic abuse, and the attack was more than a single push or punch. It was, by the Registrant’s own admission, fuelled in part by the fact he had been drinking. The attack on his ex-partner took place in her own home which should be a place of safety for the family, and there was disregard for the fact that children were present. While the children were not physically harmed, the Panel did have regard to culpability and what could have occurred. His ex-partner suffered injury and he showed disregard for the principles set out in the standards that apply to him, with an attempt to blame his victim for what she had made him do.

Mitigating factors
63. The Panel acknowledged that the Registrant had entered guilty pleas which prevented his victim being required to give evidence in Court. He had apologised and shown remorse. He admitted that his conduct was in part attributable to his health conditions which he has since addressed. The Registrant self-referred to HCPC promptly and kept his regulator updated. The Panel was of the view that the Registrant had demonstrated some insight that it was not appropriate for him to continue working as a BMS without treating his mental health first at an early stage. Further, that the Registrant has demonstrated insight in declaring that his engagement with his community order from the Court, and his willing referral to other agencies, has led to him having an understanding why he acted as he did, identified potential triggers and coping mechanisms, as reflected by no repetition of events since the index matter.

64. In balancing the aggravating and mitigating factors in this case, the Panel was mindful that the Registrant had made admissions at the scene and pleaded guilty to the offence at the Magistrates’ Court. He had also apologised for his offending behaviour. However, the Panel also had regard to the serious and grave nature of the offending behaviour and the fact that the Registrant was willing to disregard his professional obligations by acting in a way that does not inspire public trust or confidence. What makes this case unusual is that the Registrant has regarded his arrest as a “wake-up call” to address and change his behaviour. He has sought assistance with health issues so as to be able to be, “a better person” and “a better practitioner”.

No action

65. In reaching its decision as to the appropriate sanction, if any, to impose in the Registrant’s case, the Panel first considered whether to conclude the case by taking no action. Taking no action following a finding of impaired fitness to practise would only be appropriate in exceptional circumstances. The Panel determined that there are no exceptional circumstances in this case and that, given the seriousness of its findings, it would not be sufficient, proportionate, or in the public interest to conclude this case by taking no action.

Caution

66. The Panel next considered whether it would be appropriate to impose a caution. The Panel acknowledged that a caution can have a deterrent effect and can be used as a signal to the profession and the public about what is regarded as behaviour unbefitting of a registered BMS. The Tribunal paid particular regard to paragraph 101 of the SP, which includes the following markers to where a caution order is likely to be appropriate:
·       The issue is isolated;

·       There is a low risk of repetition;

·       Good insight has been shown;

·       The Registrant has undertaken appropriate remediation.

67. In considering whether a caution was appropriate, in line with paragraph 101 of the SP, the Panel was required to determine whether the Registrant’s offending behaviour would be adequately addressed by this sanction. It considered both what the Registrant had done so as to receive a conviction and how he had behaved following his arrest and up to the current time.

68. The Panel concluded that the Registrant’s behaviour was serious. It took into account the context of the offending and the significant steps that the Registrant has taken to address his behaviour. It recognised that the Registrant’s employers were pleased with his performance and considered him a valuable member of the Trust’s team. It further recognised the public interest in not removing a good practitioner from a role in which he can beneficially serve the public.

69. The Panel considered that the duration of the caution should be for 12 months. This would serve as a reminder to the Registrant not to slip into old ways, and would mark the gravity of his wrongdoing, while confirming that domestic violence in never acceptable. The Panel did have regard to imposing a Conditions of Practise Order but did not regard this sanction where there is a need to address the public interest alone was appropriate in this case. The Panel considered that such an order would be wholly disproportionate in this case and that it would not be in the public interest to restrict from professional duties a competent BMS.

70. In deciding on the appropriate length of the Caution Order, the Panel was mindful of paragraphs 101-103 of the SP. It was assisted by paragraph 103 which makes clear that the Panel should take the minimum action required to protect the public and public confidence in the profession, and “so should begin by considering whether or not a caution order of one year would be sufficient to achieve this.” The Panel was of the view that it did not need to impose a caution for a longer period where one year is sufficient.

Order

Order: The Registrar is directed to impose a Caution Order for 12 Months.

Notes

No notes available

Hearing History

History of Hearings for Mr Gary Bennett

Date Panel Hearing type Outcomes / Status
22/08/2022 Conduct and Competence Committee Final Hearing Caution
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