Robert Dacey

Preliminary Matters

1. The Panel has been convened to undertake the substantive hearing of the HCPC’s allegation against the Registrant, Mr Robert Dacey, a Clinical Scientist. The allegation is that the Registrant’s fitness to practise is impaired by reason of conviction of criminal offences.

Whether the hearing should be conducted wholly or partially in private

2. At the commencement of the hearing the Presenting Officer submitted on behalf of the HCPC that the hearing should be conducted partially in private; that the fact of the conviction was a matter that should properly be conducted in public, but the evidence the HCPC proposed to produce relating to the Registrant’s diagnosis of autism, and the relevance of that condition to the allegation, should be heard in private. The Registrant’s response to this application was that his primary submission was that the whole case should be conducted in private, his reason for making that request was to prevent the risk of publicity adversely impacting on family members. However, if the Panel did not agree to his request that the entire hearing should be in private, the Registrant stated that he wished the entire case to be conducted in public so that the context of his offending could be understood.

3. In the judgement of the Panel it would not be appropriate to hold the entirety of this case in private. The criminal proceedings were conducted in public and are a matter of public record, and the avoidance of embarrassment for the Registrant and his family was not a sufficient reason for departing from the principle of open, public justice. The Panel would have acceded to the HCPC’s application to direct that evidence related to the Registrant’s diagnosis should be heard in private. However, in circumstances where the Registrant not only unequivocally stated that they did not wish personal information to be dealt with in private, but also articulated a coherent reason for coming to that view, the Panel considered that it would not be appropriate to impose privacy. It follows from these decisions that the Panel decided that the entire hearing should be conducted in public.

The Registrant’s response to the allegation

4.When invited to respond to the allegation, the Registrant admitted each element of particular 1.

Background

5. From September 2009, until February 2021 when he was dismissed in relation to the matters with which this case is concerned, the Registrant was employed by Newcastle upon Tyne NHS Foundation Trust (“the Trust”).

6. On 13 October 2020, the Trust was informed by the local authority that the Registrant had been arrested on suspicion of downloading indecent images of children.

7. On 8 January 2021, the Registrant referred himself to the HCPC with regard to the matters now being considered.

8. On 26 July 2021, the Registrant appeared at the Northumbria Magistrates’ Court and admitted four charges. The first three offences described below related to making indecent images of children, the fourth to possessing extreme pornographic images involving sexual acts with animals. They were:

• 154 Category A videos;

• 134 Category B videos;

• 68 Category C videos and 2 Category C images;

• 1 image and 62 videos of extreme pornography.

The Registrant was committed by the Magistrates’ Court to the Crown Court to be sentenced.

9. On 31 August 2021, the Registrant appeared at the Newcastle upon Tyne Crown Court for sentence. It is apparent from the transcript of the sentencing Judge in the Crown Court that the case was a serious one of its type, involving 154 Category A images involving children and 62 images of extreme pornography. The Judge stated that the majority of the children were aged between 7 years and 10 years, although some were as young as 5 years. The Judge referred to the fact that the offences involved two devices, an iPhone and a hard drive, and extended over a period of eight years from 2012 to 2020. There were a number of elements of the sentence imposed in relation to the offences, including an order for the payment of costs, the destruction of the electronic devices on which the images had been discovered and the completion of 40 days rehabilitation activity. Further, the Registrant was sentenced to 12 months imprisonment suspended for 2 years, ordered to sign the Sex Offender’s Register for a period of 10 years and was made the subject of a Sexual Harm Prevention Order, also for a period of 10 years.

Decision on Facts

10. The admission of the conviction by the Registrant accorded with the officially certified Certificate of Conviction dated 6 September 2022 included in the HCPC hearing bundle. Accordingly, the Panel found that the fact of the conviction was proven.

Decision on Grounds

11. The finding that the Registrant was convicted as alleged by the allegation also has the consequence that the statutory ground relevant to this allegation is made out.

Decision on Impairment

12. An issue that it is relevant for the Panel to mention in relation to its findings on current impairment of fitness to practise is the Registrant’s diagnosis of autism. This is the issue that would have been dealt with in private had the Registrant not expressed the view recorded in paragraph 2 above. In relation to this issue, the Panel heard oral evidence from both Dr Clare Allely and the Registrant, and there was also a considerable amount of additional documentation presented in the hearing bundles.

13. The Registrant was diagnosed as autistic in 2020 after he was arrested in relation to the matters that subsequently resulted in the conviction now being considered. The Panel accepts that he was diagnosed as autistic and that, although not diagnosed at the time, this was an existing condition when the offending took place.

14. It is appropriate to deal first with the evidence of Dr Allely. Despite the fact that she gave evidence that was supportive of the Registrant, she was called as a witness by the HCPC and gave evidence as part of the HCPC’s case.

15. Dr Allely is a Professor of Forensic Psychology with expertise in autism. In advance of the hearing, Dr Allely’s report dated 6 September 2022 was made available to the Panel. This report was prepared for the purposes of these fitness to practise proceedings and will be referred to as “the FTP report”. Dr Allely confirmed its contents at the commencement of her evidence. She was examined in chief by the Presenting Officer, asked questions by the Registrant when he was offered the opportunity to cross-examine her, and also answered questions posed by the Panel. In the FTP report Dr Allely stated that she met the Registrant online for 1 hour and 30 minutes on 24 August 2022. The report did not disclose that she had also had previous involvement with the Registrant. In addition to being instructed by the Registrant’s defence team to provide a report on his behalf for the purposes of the criminal proceedings in 2021 (in evidence before the Panel she stated that she had prepared a report dated 29 May 2021, but this report was not available to the Panel), she had also had some contact with the Registrant in connection with planned collaboration in the writing of a book (this did not go ahead after Dr Allely had been instructed by the HCPC).

16. While acknowledging Dr Allely’s undoubted expertise in her field, the Panel found her evidence to be of limited value in reaching the decisions it was required to make in this case. The reasons for this were the following:

• While detailed and referenced, Dr Allely’s evidence related to her opinions of autism generally, and was less specific concerning the Registrant in particular.

• When the Panel asked Dr Allely if she had asked the Registrant whether he had appreciated that it was wrong for him to be viewing child pornography, she was unable to recall with certainty whether she had and had not made any notes of her conversation with him. The value of recollections on an important issue such as this was limited given Dr Allely’s acceptance that she had a poor memory.

17. The Panel accepted the evidence of Dr Allely that reported studies suggest that approximately 10% of persons convicted of offences of the sort committed by the Registrant re-offend within a period of 5 years. The Panel noted that it was Dr Allely’s view that this proportion would be lower in autistic people, albeit that there was no empirical evidence supporting that view.

18. So far as the Registrant was concerned, the Panel found him to be an open and honest witness. In addition to being candid in his evidence, the Panel also considers that it is appropriate to record the fact that he has made considerable efforts to address matters by therapy and with support groups.

19. The conclusion of the Panel in relation to the impact of autism on the Registrant’s offending is as follows:

• It accepts that his autism was likely to have been a significant element in the repeated nature of his viewing of grossly inappropriate photographs and videos.

• It does not accept that autism wholly removed from the Registrant the ability to understand that what he was doing was wrong. In the judgement of the Panel, this view is supported by the terms of another report that was prepared for the purposes of the criminal proceedings. It was prepared by Gillian Merrill, a Forensic Psychologist, and is dated 26 July 2021. It recorded the Registrant’s account of his thoughts when, at a time before he had commenced accessing indecent images of children, he had been secretly viewing adult pornography that was not prohibited by law.

• In his oral evidence the Registrant accepted that even with his autism, at the time of the offending he knew that accessing indecent child pornography images was wrong, but felt compelled to continue doing so.

20. With these findings made, the Panel first addressed the question whether the Registrant’s fitness to practise is currently impaired in relation to the personal component. The Panel again acknowledges the efforts made by him, and considered that the Registrant has developed significant insight into the impact his offending has had on others including, his family, colleagues and profession. However, it is important to stress that whilst the Registrant has made a worthwhile start on his remediation, this will be an ongoing journey. As he himself stated, he is at step 4 of a 12-step programme in his support group and intends to undertake further Dialectal Behavioural Therapy. The conclusion of the Panel is that there is not a likelihood that he will re-offend, but in circumstances where the residual risk that he will still exists, and the consequences were that to occur are very grave, it is appropriate to find that there is current impairment of fitness to practise on the personal component.

21. So far as the public component of impairment of fitness to practise is concerned, as the Registrant candidly acknowledged, a finding is inevitable. These were offences of the most serious nature and they resulted in a significant sentence at the Crown Court. Fair-minded and fully informed members of the public would be dismayed were the matter not to result in a finding of impairment of fitness to practise. If the Panel did not reach that decision, not only would confidence in the Registrant’s profession be diminished, but the Panel would also be failing to declare and uphold proper professional standards.

22. As the Panel has found that the conviction recorded against the Registrant is currently impairing his fitness to practise, the allegation is well founded. The consequence of that finding is that the issue of sanction must be considered.

Decision on Sanction

23. After the Panel handed down its written decision on the allegation, it allowed the Presenting Officer and the Registrant time to consider the document before hearing submissions on sanction.

24. On behalf of the HCPC, the Presenting Officer made it clear that although he would draw the attention of the Panel to relevant principles and sanctions guidance, he would not urge the Panel to impose any particular sanction. The Presenting Officer identified various factors that he submitted could be considered aggravating factors as well as those that might be considered to be mitigating factors. They were:

• As aggravating factors, the fact that the conviction was in relation to extremely serious criminal offences and the offending did not represent isolated behaviour as it continued over a considerable period and involved hundreds of images over all categories of indecency.

• As mitigating factors, the Registrant’s guilty plea in the criminal court, his full engagement with the HCPC in this fitness to practise process, as well as the open and honest way in which he had conducted himself in the proceedings. He also submitted that the contribution made by the Registrant’s autism to his offending and understanding of the impact of it was also a factor to be taken into account. Finally, he submitted that the beginnings of good insight and remediation were also features that it would be proper to apply to the decision.

25. The Registrant acknowledged the fairness of the proceedings and the recognition of the case he had advanced. He did not make any submission that was directly related to the available sanctions. When it came to make its decision the Panel kept in mind the evidence of Dr Allely that being permitted to return to practise as a Clinical Scientist would be good for the Registrant’s well being, and of the Registrant’s genuinely expressed keenness to be permitted to return to his career. The Panel also kept in mind the Registrant’s evidence that it may be possible for him to restrict his work as a Clinical Scientist to activities that did not involve a patient-facing role. Finally, it should be made clear that there was no suggestion that the Registrant had ever acted inappropriately towards anyone he had encountered in a clinical setting, or that he was anything other than a proficient practitioner.

26. The Panel accepted the advice it received in relation to the issue of sanction, and it paid attention to the HCPC’s Sanctions Policy. Accordingly, the Panel acknowledged that further punishment should form no part of the Panel’s decision. Rather, the factors that could require the imposition of a sanction are the need to protect the public, the maintenance of a proper degree of confidence in registered professions and the important element of declaring and upholding professional standards. Any sanction determined upon should be no more restrictive that these proper sanction aims dictate. Accordingly, it is necessary for any panel making a decision on sanction first to decide if any sanction is required. If it is decided that a sanction is required, then the available sanctions must be considered in an ascending order of seriousness until one that is required is reached. The Panel confirms that it has applied that approach in this case.

27. In reaching its decision the Panel adopted the aggravating and mitigating factors that it considered the Presenting Officer had properly and fairly identified.

28. The Panel also had regard to the Sanctions Policy and considered that the following paragraphs were relevant to the decision it was required to make, namely:

• paragraph 82, under the heading “Criminal convictions and cautions”, relating to the relevance of the significance of on-going criminal sanctions;

• paragraphs 85 and 86, under the heading, “Sex offender”, relating to the relevance of inclusion on the sex offenders’ database;

• paragraphs 87 to 89, under the heading, “Offences related to indecent images of children.

For these reasons the Panel deemed this case to be serious.

29. The Panel first considered whether this was a case which could be concluded without the imposition of any sanction. The conclusion reached that the issue is far too serious for that to be appropriate. For the same reason, when the Panel reminded itself of paragraph 101 of the Sanctions Policy, it concluded that a caution order would not sufficiently address the gravity of the findings.

30. Having rejected a caution order as a suitable sanction, the Panel next considered a conditions of practice order. The Panel did not consider that such an order would be appropriate for two distinct reasons. One was that there could be no appropriate conditions to prevent a repetition of the behaviour underpinning these proceedings; the requirement not to commit serious criminal offences arises by the ordinary obligations of registration. The other is that the Panel would not consider it appropriate to impose a condition that the Registrant should confine his practice activities that did not involve direct patient contact because any work he would do would still be undertaken in a hospital setting. In the judgement of the Panel, legitimate patient concerns would not be allayed by such a requirement.

31. The rejection of a conditions of practice order meant that the Panel next considered whether a suspension order would be appropriate. The Panel did not consider such an order to be appropriate because the factors demanding the imposition of a sanction would be no less strong at the end of any period of suspension than they are at the present time.

32. It followed from these decisions that the Panel arrived at the decision that it is necessary to make a striking off order. In the judgment of the Panel this is the only appropriate outcome when the finding is as serious as that made in this case. In short, the conviction is incompatible with continued HCPC registration. Any lesser sanction would undermine public confidence in the profession of Clinical Scientist and in the regulation of that profession by the HCPC. Any lesser sanction would also fail adequately to declare and uphold proper professional standards, and for that reason would not serve to deter other professionals from serious breaches of the criminal law. For these reasons the Panel is satisfied that a striking off order is a proportionate response in this case.

ORDER: The Registrar is directed to strike the name of Mr Robert Dacey from the Register on the date this Order comes into effect.

Right of Appeal

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

Interim Order

Application for an Interim Order

1. After the Panel announced that a striking off order would be made, the Presenting Officer applied for an interim suspension order to cover the appeal period. He submitted that such an order is necessary for protection of members of the public and in the public interest.

2. The Registrant made no submissions in relation to the application for an interim order.

3. The Panel was satisfied that it had jurisdiction to consider the making of an interim order because the Registrant was informed that an application for an interim order might be made in the notice of hearing email sent on 18 April 2023. Accordingly, the Registrant had been afforded an opportunity of making representations on the issue of whether such an order should be made.

4. The Panel approached its decision on whether an interim order should be made by accepting that the default position is that when a substantive sanction is imposed a Registrant’s ability to practise should remain unrestricted while their appeal rights remain outstanding.

5. However, in the present case the Panel has concluded that the factors that require the substantive sanction to be striking off have the consequence that an interim order is necessary for protection of members of the public and is otherwise in the public interest.

6. The Panel considered whether conditions of practice imposed on an interim basis would provide an adequate degree of protection and sufficiently maintain public confidence while the Registrant’s appeal rights remain outstanding. However, having carefully considered the matter, the Panel concluded that interim conditions of practice are not appropriate for the same reasons already expressed by the Panel for rejecting substantive conditions of practice as a substantive sanction outcome.

7. The result of these findings is that the Panel concluded that an interim suspension order is the necessary and proportionate order to make.

8. It is appropriate for that interim order to be made for a period of 18 months. Such a period is appropriate because the interim order will automatically fall away if the initial 28 day period passes and the Registrant does not appeal, yet if he does appeal, it could be 18 months before that appeal is finally determined.

Decision

The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Robert Dacey