Richard Allen Clarke

Preliminary matters:

Service

1.  The Panel accepted the advice of the Legal Assessor. The Panel had sight of an email dated 9 August 2023, sent to the Registrant at his registered email address, giving notice of today’s hearing. There was notification that the email had been delivered. The email notified the Registrant of the hearing time, the date and that it would be conducted by video conference. Information was included about how the Registrant could join the video conference, if he wished to do so, and the Panel’s power to proceed in his absence in the event that he did not attend.

2.  The Panel was thus satisfied that service had been complied with in accordance with the Health and Care Professions Council (Conduct and Competence Panel) (Procedure) Rules 2003.

Proceeding in absence

3.  The Registrant did not attend the hearing and Ms Bernard-Stevenson made an application to proceed in his absence.

4.  The Panel heard and accepted the legal advice from the Legal Assessor, who referred it to the case of the GMC v Adeogba [2016] EWCA Civ 162, and the principles to be considered when deciding whether or not to proceed in the absence of the Registrant. The Panel had in mind the need to exercise its discretion to proceed with the utmost care and caution, particularly because the Registrant was not represented.

5.  The Panel took into account the content of the notice of hearing sent to the Registrant, which included information about how he could apply for an adjournment, should he wish to do so, and the Panel’s power to proceed in his absence, in the event that he did not attend. The Registrant had responded to that notice in an email dated 14 August 2023, stating, “I will not be attending the hearing on Monday 30th October at 10am.”

6.  On 27 October 2023, the Registrant was sent the Microsoft Teams link for the hearing, in the event that he changed his mind and wanted to attend. He responded in an email the same day, reiterating that he would not be attending the hearing.

7.  The Panel was satisfied that the Registrant had been properly notified of this hearing and that he was aware of the date it was due to take place. In light of his clear, repeated, stated intention not to attend, the Panel was satisfied that the Registrant had deliberately and voluntarily waived his right to be present and his right to be represented at this hearing. The Panel noted that the Registrant faced serious allegations and there was a clear public interest in the matter being dealt with expeditiously. The Panel considered an adjournment would serve no useful purpose and the Registrant had not requested one.

8.  The Panel concluded that it was in the interests of justice that the matter should proceed notwithstanding the absence of the Registrant. The Panel would draw no adverse inference from the Registrant’s non-attendance.

The hearing to be held partly in private

9.  At the outset of the hearing, the Chair indicated that it was apparent from the papers that mention might be made of the Registrant’s health and that accordingly it might be appropriate to consider going into private session, were that to occur.

10.  The Panel heard and accepted the advice of the Legal Assessor. The Panel was cognisant of the normal position, namely that these hearings are conducted in public so that the public are aware of the functions being carried out by the Regulator. However, the Rules allow for the hearing, or part of the hearing, to be conducted in private where to do so is in the interests of justice, or to protect the private life of the Registrant. The Panel decided that it was appropriate to go into private session as and when reference were made to the Registrant’s health, in order to protect his private life.

Background:

11.  The Registrant is, and was at all material times, registered as an Operating Department Practitioner with the HCPC.

12.  Between 1 August 1991 and the present date, the Registrant was employed by Ysbyty Gwynedd (general hospital) based in Bangor, Gwynedd, Wales in various roles, his most recent role being Interim Theatre Manager.

13.  On 13 May 2022, allegations were made about the conduct of the Registrant towards another staff member (Person A, a receptionist based in the vicinity of the theatre and referred to as ‘name 1’ in the Judge’s sentencing comments below). These allegations included the Registrant sexually assaulting Person A.

14.  The sexual assault allegation amounted to the Registrant showing Person A, a photograph of his penis on his mobile phone. This sexual assault also included, the Registrant asking Person A to attend his office on 11 April 2022 and, whilst she was in the office, placing his hand on her vagina, over her scrubs, squeezing her vagina and then pushing her underwear to one side with his fingers. This conduct was preceded by the Registrant showing Person A photographs of his penis on multiple occasions and attempting to solicit sexually explicit photographs from her.

15.  As a result of these allegations, an initial fact find was undertaken by the Registrant’s employer and the Registrant was suspended from his duties.

16.  The Registrant was also subsequently arrested and detained at Caernarfon Police Station. In his police interview, the Registrant stated that he ‘may have brushed passed a part of her body, whilst trying to open the door’ but that he ‘cannot be certain if he touched her or not.’ In this interview, the Registrant denied the sexual assault allegation.

17.  Mr Clarke was later charged with sexual assault on a female. He pleaded guilty to this charge at Gwynedd Magistrates’ Court on 22 December 2022. He was committed to the Crown Court at Caernarfon for sentence and sentenced on 10 February 2023 to: 1.2 years imprisonment, suspended for a period of 2 years; unpaid work for 250 hours; to participate on a rehabilitation activity for 100 days; and to register with the Police for 10 years.

18.  On passing sentence, and providing context to the case, the Learned Judge said:

“You were 53 years old at the time of the offending. The offence I am sentencing you for is that on 11 April 2022 you sexually assaulted (name 1). … She was a receptionist in the theatre department at Ysbyty Gwynedd and you were the theatre manager. I acknowledge that you were not her line manager. The reason you were not was because you were so far superior to her in the rankings at the hospital that you would not have been her line manager.

At the time she suffered depression, it was serious depression and she had been receiving medical treatment and support. Her illness was stabilising to such an extent that she was about to be discharged from the services of the mental health team. I acknowledge that there is no evidence that you were aware of her depression and mental illness. However, on 4 April last year, at work, you sat with her in reception, a department where she worked, as did you, and you asked her if she had cameras outside her home. You made an inappropriate sexual comment. She did not respond but felt uncomfortable.

On 6 April you showed her photographs of your penis. You insisted that she go into your office multiple times which, as a far more junior member of staff, she felt obliged to do, and when in the office you showed her more photographs of your penis and asked for photographs of her vagina. She refused. The same occurred on 7 April and 8 April.

(name 1) did not report this to work as you were a popular member of staff. Your superior member of staff was a close friend of yours and in your police interview you alluded to the fact that this close friend of yours was responsible for investigating and also disciplining you as a result of your actions. She was frightened that reporting this matter would make her life difficult at work.

On 11 April, again, you showed her photographs of your penis in the kitchen and in your office. You asked her again for photographs of her vagina, and you asked to see her after work. she refused. At 15.45 you told her to come into your office. When she went into the office you said:

    “Close the door and sit down.”

She was frightened. She remained standing by the door. You placed one hand on the door and you grabbed her vagina, over her scrubs, pushing her underwear to one side. She said no, pushed you away and left.

On 12 April she confronted you and said:

    “What you did was wrong.”

You said:

    “I’ve done it again, haven’t I?”

Following your arrest after she reported this to the police your phone was analysed and it showed that you were researching a sample apology letter for a male employee who was investigated for making inappropriate comments and jokes to a female employee. In your police interview you referred to what occurred between you as banter. Showing a significantly junior, female work colleague photographs of your penis and grabbing her vagina is not a joke, it is not banter, it is the behaviour of a sexual predator exploiting his seniority in the workforce.

You have now lost your employment as a result of your actions, but there has been a far more significant impact on (name 1). She is suffering severe mental trauma, anxiety and depression. She feels ashamed, dirty and embarrassed by your actions. She was to be discharged from the mental health team one week prior to your sexual assault, but as a result of your actions she has sustained a severe relapse in her mental state.

She now has to see her social worker and support worker on a regular basis. She has to see a psychologist to deal with the trauma which she has sustained. She cannot go to Ysbyty Gwynedd as it is too distressing. She has cancelled medical appointments as a result, and she has informed the Court that she faces losing her job due to a prolonged sickness absence.

In your interview with probation you refute the notion that you are a sexual predator and you say there is nothing sexually perverted about you. You make reference to women behaving in a certain way so that men respond in a certain way. You clearly used your seniority to play out your sexual perversions and sexually assault (name 1). In interview you admitted the offence but minimalised it by describing aspects of it as banter.

You have got no previous convictions and there are no previous records of you committing any offences of this nature or of there being any complaints against you of this nature.

I have taken into account the case of R v Manning [2020] EWCA Crim 592 which deals with prisoners serving within the prison estates during the Covid-19 pandemic because that is still affecting how serving prisoners are being treated. I have taken into account the sentencing code, the guidelines relating to guilty pleas, sexual assault, the imposition of community and custodial sentences,[REDACTED].

That is far out shadowed by the impact upon (name 1) and the mental trauma which she has undergone as a result of your actions.

So far as the guidelines for sexual assault are concerned, in my judgment this is a Category 2 case. You have caused significant psychological harm. There is no medical evidence of severe psychological harm but there is significant psychological harm to (name 1). She was off work for months. There has been a severe relapse of her mental disorder and she now has to see the mental health team on a regular basis, and a psychologist as well.

In my judgment this is a culpability A case. There are elements of planning, no significant planning but elements of planning by constantly and repeatedly getting her into your office, showing her photographs of your penis, requesting photographs of her vagina, ultimately leading up to you grabbing her vagina, and that is combined with an abuse of power. I accept this is not an abuse of trust, but it is a significant abuse of power. There was a disparity of power within your working relationship and you abused that by demanding that she attend in your office on repeated occasions, and she could not refuse because of your seniority.

The starting point is 2 years in prison and the range is 1 to 4 years in prison. It has been mentioned that the location of the offence, the workplace, is an aggravating feature, but because I have used your abuse of power within the building and demanding her to go to your office on repeated occasions, I will not use that as an aggravating feature because it would be, in effect, double counting that aspect of your offending.

In mitigation, you have no previous convictions.

However, in all of the circumstances of this case, after a trial the shortest possible sentence I would have imposed is one of 3 years’ imprisonment. I am going to apply full credit because you pleaded guilty in the Magistrates’ Court and I will impose 2 years’ imprisonment. The question is whether I can suspend any period of imprisonment. I have to ask myself whether you are capable of rehabilitation and whether such rehabilitation will protect the community, in particular women, in the future.

If I were to sentence you to 2 years immediate imprisonment today you would be out in less than one year and your sexually distorted, perverted view of how it is appropriate to behave towards women, particularly in the workplace, would still remain, whatever books you tell the Court you are reading. There needs to be significant work done with you to protect women from you in the future and for this reason I am going to suspend your sentence for two years. This is not an easy sentence. It is a sentence of imprisonment but for 2 years suspended for two years, and I am going to make three requirements.

First of all, that you undertake the Maps for Change intervention. This is a significant intervention by the Probation Service, who will work on a one to one basis with you, addressing your clearly sexually distorted thinking. You will carry out 250 hours unpaid work in the community and, because I am not satisfied that the Maps for Change is enough of an intervention for somebody with such firmly held beliefs at the time of the Pre-Sentence Report, I am going to impose a further 60 Rehabilitation Activity Requirement days.”

19.  In a typewritten, undated account of events, the Registrant said he would:

“like to apologise wholeheartedly to [Person A] and her children for the setback I have caused [Person A] in her rehabilitation, no malice was intended at all. I thought it was a two-way thing as [Person A] said not difference. [sic]

I am ashamed of myself for letting the department down as well as my colleague, I am sure I will have lost their trust.

I am truly sorry for my actions, put working on the NHS is all I know and will do anything required of me to try to stay employed by BCUHB is possible.” [sic]

20.  In his email of 14 August 2023, the Registrant said:

“I realise the severity of my conviction will lead to me being removed from your governing body. All I need to concrete on is [REDACTED] serving my suspended sentence. I have completed my 250 hours community service and I am attending my parole sessions. They have provided me some counselling which has helped me and they are very supportive to me. I realise that I will no longer be able to work in the NHS/Private health care sector ever again, this is a profession I loved for 31 years. [sic]

I am so remorseful for my actions and the hurt and suffering I have caused. This is something I have to live with for the rest of my life and try to deal with.”

21.   In an email dated 27 October 2023, the Registrant reiterated the above and added that he regretted the devastation his actions had caused.

Decision on Facts:

22.  In reaching its decisions on the facts the Panel took into account all the documents relied on, together with the submissions made by Ms Bernard-Stevenson on behalf of the HCPC. The Panel also heard and accepted the advice of the Legal Assessor, who referred the Panel to Rule 10(1)(d) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003, which states:

Where the registrant has been convicted of a criminal offence, a certified copy of the certificate of conviction (or, in Scotland, an extract conviction) shall be admissible as proof of that conviction and of the findings of fact upon which it was based.

23.  The Panel was satisfied, therefore, that the Allegation was proved by virtue of the Certificate of Conviction issued by the Crown Court at Caernarfon, dated 3 March 2023, following the conviction at the Gwynedd Magistrates’ Court, on 22 December 2022, and the sentence imposed by the Crown Court on 10 February 2023.

24.  Accordingly, the Panel found the facts as set out in Allegation 1 proved.

Decision on Statutory Ground:

25.  The Panel next considered the statutory ground. Because this is a conviction case, and the Panel had been provided with the Certificate of Conviction and found Allegation 1 proved, the Panel was satisfied that the statutory ground was made out.

Impairment:

26.  Having found the statutory ground of conviction to be well founded, the Panel went on to consider whether the Registrant’s current fitness to practise was impaired as a result of that conviction. In doing so it took into account the submissions made by Ms Bernard-Stevenson and all the documents provided. The Panel accepted the advice of the Legal Assessor.

27.  The Panel had been advised by the Legal Assessor that an important factor when considering current impairment is whether the conduct which led to the allegation is remediable, that it has been remedied and that it is highly unlikely to be repeated. The level of insight shown  by the Registrant is also an important factor when considering current impairment. Although the Registrant did not attend this hearing, in his email of 14 August 2023, he did say he recognised the severity of his offending behaviour, he said he was remorseful for his actions and the hurt and suffering he had caused.  He also entered a guilty plea at court. All this demonstrated a level of insight.

28.  However, the Panel had in mind the Judge’s sentencing remarks as detailed above. In particular the Registrant’s view that what had occurred was no more than ‘banter’. As the Judge said, “Showing a significantly junior, female work colleague photographs of your penis and grabbing her vagina is not a joke, it is not banter, it is the behaviour of a sexual predator exploiting his seniority in the workforce.” The Judge also referred to the Registrant’s “sexually distorted, perverted view of how it is appropriate to behave towards women, particularly in the workplace.” The Registrant has not addressed this behaviour in his comments in his emails, or elsewhere. Furthermore, he has not spoken in any detail about the impact of his behaviour on the profession and the wider public. The Panel thus determined that his insight was limited.

29.  The offence of sexual assault is extremely serious. The Panel considered that where a man is prepared to sexually assault a woman, whatever the circumstances, he represents a risk to the public. Such behaviour reflects deep-seated attitudinal issues and there is therefore a concern that the Registrant could repeat this behaviour, particularly taken his stance that what occurred was no more than banter. The Panel therefore concluded that the Registrant’s fitness to practise as an Operating Department Practitioner was at the time, and remained, impaired on public protection grounds.

30.  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 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 seriously undermined if a finding of impairment were not made. The Panel considered that a member of the public would be extremely concerned if the Regulator took no action in a case where an Operating Department Practitioner has committed a sexual assault on a junior work-colleague. There was clearly a need to send out a message to the profession that this sort of behaviour is wholly unacceptable and not to be tolerated.

31.  The Panel also noted that the Registrant had yet to complete his prison sentence from the Crown Court and that, in accordance with the principle referred to in the case of The Council for the Regulation of Healthcare Professionals v (1) General Dental Council (2) Alexander Fleischmann [2005] EWHC 87 (Admin), he should not be permitted to resume his practice until he had satisfactorily completed his sentence.

32.  The Panel therefore determined that the Registrant’s fitness to practise is currently impaired on public protection and public interest grounds and that the allegation of impairment is well founded.

Sanction:

33.  In reaching its decision on sanction, the Panel took into account the submissions made by Ms Bernard-Stevenson, together with all the written evidence and all matters of personal mitigation. The Panel also referred to the guidance issued by the Council in its Indicative Sanctions Policy (“ISP”). The Panel had in mind that the purpose of sanctions was not to punish the Registrant, but to protect the public, maintain public confidence in the profession and maintain proper standards of conduct and performance. The Panel was also cognisant of the need to ensure that any sanction is proportionate. The Panel accepted the advice of the Legal Assessor.

34.  The Panel found the following mitigating factors: no previous disciplinary history with the HCPC; admissions made at Court and to this tribunal; some limited insight and expressions of remorse.

35.  The Panel considered the aggravating factors in this case to be: very serious sexual offence; emotional harm caused to a vulnerable colleague who was already suffering from depression; a gross abuse of his position of power; a pattern of behaviour over a period of time; elements of planning (as referred to by the Judge); a lack of remediation; the Registrant is subject to a live sentence; limited insight; behaviour that significantly undermined the profession.

36.  In light of the serious nature of the conviction, the Panel did not consider this was an appropriate case in which to take no further action.

37.  The Panel next considered whether a Caution Order would adequately reflect the seriousness of the conviction. The Panel’s role as indicated by the ISP was not to punish the Registrant twice for the same offence, but to protect the public, maintain high standards amongst registrants and maintain public confidence in the profession. The Panel did not consider that such an Order would adequately mark the seriousness of the behaviour or protect the public in this case.

38.  This was not a case where conditions of practice would be appropriate because of the nature of the Registrant’s conduct. The Panel considered that conditions would not protect the public or the public interest and in any event the Panel considered a Conditions of Practice Order would not adequately reflect the seriousness of the Registrant’s offending behaviour.

39.  The Panel next considered whether to make a Suspension Order. The ISP states that, “Suspension should be considered where the allegation is of a serious nature but unlikely to be repeated and, thus, striking off is not merited.”  The Panel reminded itself of the serious nature of the conviction, namely the sexual assault of a female, junior work-colleague. Although a Suspension Order would provide protection to the public for its duration, in the absence of any information from the Registrant about remediation and his limited insight into what the Judge described as his “sexually distorted, perverted view of how it is appropriate to behave towards women, particularly in the workplace”, the Panel decided that suspension was not appropriate, since the behaviour could be repeated. In addition, the Panel was not satisfied that a period of suspension would be sufficient to maintain public confidence in the profession or the regulatory process, or to send a clear message to the profession at large that such behaviour was wholly unacceptable. The Panel thus determined that a Suspension Order would not be a sufficient sanction in the circumstances of this case.

40.  In reaching this decision the Panel took into account paragraph 82 of the ISP which echoed the case of Fleischmann referred to above, where the High Court stated that as a matter of general principle, where a registrant had been convicted of a serious criminal offence, he should not be permitted to resume his practice until he had satisfactorily completed his sentence. This had direct relevance to this case because the Registrant had been convicted of a serious criminal offence and his prison sentence will not be completed until 2025.

41.  The Panel therefore looked at the guidance in the ISP on making a Striking Off Order in order to decide whether such an Order would be appropriate. The guidance states that, “Striking off is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust such as, sexual abuse, dishonesty or persistent failure.” It goes on to observe that “Striking off should be used where there is no other way to protect the public.” The Panel finds that this case is characterised by a gross abuse of power and a serious sexual offence.

42.  The ISP goes on to suggest that a Striking Off Order may be appropriate where the nature and gravity of the allegation are such that any lesser sanction would lack deterrent effect or undermine confidence in the profession. The Panel’s earlier finding in relation to the consideration of a Suspension Order identified that a lesser sanction would indeed be insufficient to represent these wider public interest issues in the specific circumstances of this case.

43.  The Panel concluded that in all the circumstances, the only appropriate sanction in this case was to make a Striking Off Order. The Panel considered that the Registrant’s abhorrent behaviour was fundamentally incompatible with being a registered Operating Department Practitioner. The Panel took into account the impact this might have upon the Registrant, but concluded that the need to protect the public, which includes maintaining high standards and public confidence in the profession, outweighed his interests and that no other sanction would adequately protect the public.

44.  Accordingly, the Panel makes a Striking Off Order and directs the Registrar to erase Richard Allen Clark’s name from the Register.

Interim Order:

45.  The Panel heard submissions from Ms Bernard-Stevenson on proceeding to hear an application for an Interim Order in the absence of the Registrant and also on the need for an Interim Order to cover the period during which an appeal may be made and, if one is made, whilst that appeal is in progress. The Registrant was not present and therefore the Panel had first to decide whether to proceed to consider the Interim Order application in the absence of the Registrant. The Panel heard and accepted the advice of the Legal Assessor.

46.  The Panel decided that it was appropriate to consider the Interim Order application in the absence of the Registrant. In reaching this conclusion the Panel took into account the contents of the Notice of Hearing sent to the Registrant on 9 August 2023, where it is stated under the heading “Interim Orders”, “Please note that if the Panel finds the case against you is well founded and imposes a sanction which removes, suspends or restricts your right to practise, it may also impose an interim order on you (under Article 31 of the Health and Social Work Professions Order 2001). An interim order suspends or restricts a registrant’s right to practise with immediate effect.” The Panel was satisfied this meant the Registrant was on notice that this was a possible outcome at this hearing.

47.  The Panel remained satisfied that the Registrant had waived his right to be present at the hearing by his clear statement that he would not be attending. The Panel could see no reason to adjourn the hearing in order to allow the Registrant to attend on a later date because there was no indication that he would attend on any other occasion. The Panel took into account the fact that it had identified there to be a continuing risk to the public if the Registrant were allowed to practise without restriction and decided it was clearly in the public interest to consider the Interim Order application today,  even if that meant it was conducted in the absence of the Registrant.

48.  The Registrant has been convicted of sexually assaulting a female. The Panel has already concluded that the Registrant represents a continuing risk to the public because there remains a concern that he could repeat the behaviour in the absence of any evidence to the contrary, particularly given his limited insight and lack of remediation. The Panel therefore concluded that an Interim Order was necessary to protect the public from the risks it had identified during the 28 day appeal period, or the time taken to conduct any appeal, in the event that one is made.

49.  The Panel is also of the view that, given the nature and seriousness of the misconduct in this case, public confidence in the regulatory process would be undermined if the Registrant were allowed to remain in practice on an unrestricted basis during any appeal period. The Panel therefore determined that an Interim Order is otherwise in the public interest.

50.  The Panel first considered whether a Conditions of Practice Order would be sufficient. However, for the same reasons as dealt with at the sanction stage, the Panel concluded that conditions would not be appropriate or proportionate in this case.

51.  The Panel therefore decided to make an Interim Suspension Order under Article 31(2) of the Health and Social Work 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, upon the final determination of that appeal, subject to a maximum period of 18 months.

52.  That concludes this hearing for today.

Order: The Registrar is directed to erase Richard Allen Clark’s name from the Register.  

No notes available

History of Hearings for Richard Allen Clarke