Anthony Ashton

Preliminary Matters
Service
1. The Panel was referred to the HCPC’s Service bundle and advised that the Notice of this Hearing had been sent to the Registrant at his registered email address on 11 October 2023. The Panel also took into account the confirmation of delivery of the Notice dated 11 October 2023 and signed proof of service.

2. The Panel accepted the advice of the Legal Assessor. He referred the Panel to Rule 6 of the Health Professions Council (Conduct and Competence Committee) Procedure Rules 2003 (the Rules) and the HCPTS Practice Note on Service of Documents.

3. In all the circumstances, the Panel was satisfied that the Registrant was fully aware of the time and date for this hearing and that it would be conducted virtually. In all other respects, the Notice of Hearing complied with the rules.

4. The Panel therefore determined that Service had been properly effected.

Proceeding in Absence

5. Ms Bass on behalf of the HCPC then applied for the hearing to proceed in the Registrant’s absence. She referred the Panel to Rule 11 and to the HCPTS Practice Note on Proceeding in the Absence of the Registrant and to the email from the Registrant to the HCPC dated 14 January 2024 and the Registrant’s bundle attached thereto.

6. Ms Bass referred the Panel to an email from the Registrant to the HCPC dated 14 January 2024 in which he stated that ‘I am happy for the hearing to go ahead in my absence.’ She also referred the Panel to submissions provided for the Panel dated 11 January 2024 and in particular to the Registrant’s comments that ‘with the greatest respect, I’m not attending the hearing as I don’t wish to subject myself to more stress and anguish for something I shouldn’t being going through …it has deeply affected my mental health.’

7. Ms Bass submitted that the Registrant had voluntarily absented himself from the hearing, that he clearly wanted the hearing to proceed in his absence and that the Panel should proceed in his absence.

8. The Panel accepted the advice of the Legal Assessor. He referred it to Rule 11 and to the HCPTS Practice Note on Proceeding in the Absence of the Registrant and to the case of GMC v Adeogba [2016] EWCA Civ 162.

9. The Panel considered that the Registrant had specifically stated that he would not attend the hearing and that it should proceed in his absence. The Panel determined that he had made a decision to voluntarily absent himself from this hearing. The Panel further determined that the Registrant had not requested an adjournment. The Panel therefore concluded it was unlikely that the Registrant would attend on another occasion should this hearing be adjourned. The Panel had the recent submissions from the Registrant before it setting out his position in relation to the allegations. The Panel also determined that there was a strong public interest in proceeding today.

10. In these circumstances, the Panel granted Ms Bass’ application.

Background

11. It is alleged that on 16 December 2021 the Registrant was found guilty on two counts of exposing his genitals intending that someone would see them and caused alarm or distress, contrary to section 66 of the Sexual Offences Act 2003 the first occurring between 1 November 2020 and 31 December 2020 and the second occurring 9 May 2021. Following this conviction, the Registrant was made subject to a Restraining Order (1 year), required to register with the police in accordance with the Sexual Offences Act 2003 from 13 January 2022 for 5 years, and given a Community Order, Rehabilitation Activity, Programme Requirement, requirement to undertake 240 hours of unpaid work, and required to pay costs of the prosecution.

12. The Registrant submitted an appeal against his convictions, having maintained his innocence throughout the case. On 8 September 2022 at the Crown Court at Swansea, the Registrant’s appeal was upheld in respect of the conviction of one of the offences had been allowed and that conviction had been quashed. His appeal against the conviction for the November 2020 incident was allowed, but the appeal against May 2021 was dismissed. The Court also varied the Registrant’s overall sentence, the unpaid hours requirement being reduced from 240 to 120 hours.

13. The Court deciding the appeal determined that there was doubt over identity in relation to the November 2020 incident, but also concluded there were no such concerns in respect of the May 2021 incident.

Decision on Facts
Submissions

14. Ms Bass referred the Panel to her written submissions and adopted them. She referred the Panel to the Memorandum of Conviction confirming that the Registrant was found guilty on 16 December 2021 on two counts of exposing his genitals intending that someone would see them and caused alarm or distress, contrary to section 66 of the Sexual Offences Act 2003. Ms Bass explained that the HCPC did not intend to call any live witnesses and relied solely on the Memorandum of Conviction.

15. Ms Bass referred the Panel to Rule 10 (1) (d) of the Rules that 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;’

16. Ms Bass submitted that applying Rule 10 (1) (d) to the Memorandum of Conviction would allow the Panel to find the factual allegation proved.

17. Ms Bass submitted that the Registrant had continued to deny the allegations as reflected by his most recent submissions dated 11 January 2024. However, she submitted that the Panel could rely on the Memorandum of Conviction.

18. Ms Bass further submitted that the Panel could also find the statutory ground of the allegation to be conviction based on the Memorandum of Conviction.

Panel’s Decision

19. The Panel accepted the advice of the Legal Assessor. He referred it to Rule 10 (1) (d) and the HCPTS Practice Statement on Conviction and Caution Allegations.

20. In reaching its decision on facts, the Panel took into account the written submissions and further oral submissions of Ms Bass and the written submissions of the Registrant. The Panel also took into account all relevant documentation before it.
1. ‘On 16 December 2021, you were convicted at West Glamorgan Magistrates' Court of Exposure, contrary to the Sexual Offences Act 2003.’

21. The Panel noted the Registrant’s submission that one of the convictions had been quashed on appeal and that the other conviction had been referred to the Criminal Case Review Commission for review in 2022. However, the Panel had no independent evidence before it of the stage of that review, nor indeed if it had been accepted by the Commission for review. The Panel had also heard legal advice and submissions from the HCPC that if, the conviction is successfully overturned, there is precedent in the case of Jenkinson v NMC [2009] EWHC 1111 (Admin) for the Regulator to be able to overturn at a later stage, any previous decision made which had been based on an erroneous criminal conviction. The Panel therefore determined that there would be no injustice in continuing with this hearing despite having been put on notice of a potential review of the conviction. The Panel was also aware of the advice in the HCPTS Practice Note on Conviction and Caution Allegations that a Panel should be careful not to ‘go behind’ a conviction. Therefore, the Panel was content to rely on the conviction certificate at the present time and was satisfied with the authenticity of the Memorandum of Conviction and had no evidence currently to question it.

22. Applying Rule 10 (1) (d), the Panel was satisfied that the Memorandum of Conviction clearly showed that on 16 December 2021, the Registrant was convicted at West Glamorgan Magistrates' Court of Exposure, contrary to the Sexual Offences Act 2003.’

23. The Panel therefore found allegation 1 proved.

Decision on Grounds

24. Having found that the Registrant had been convicted as set out in the Allegation, the Panel further determined that the statutory ground was that of conviction.

Decision on Impairment

25. Having found that the statutory ground was conviction, the Panel moved on to consider whether the Registrant’s fitness to practice was impaired as a result of his conviction.

26. Prior to making submissions on impairment, Ms Bass applied to have an ‘impairment bundle’ of further documents introduced as evidence. She explained that the further documentation included a record of a Conditional Caution given to the Registrant on 14 November 2020 for the following: ‘On 24th September 2020 at ALMA ROAD, CLIFTON, BRISTOL, in a public place committed an act outraging public decency by behaving in an indecent manner, namely urinating into a bottle in your vehicle when visible to people passing along the road.’ The Bundle also contained the Registrant’s ‘Basis for Accepting a Conditional Caution.’ Ms Bass also referred the Panel to a letter sent by the HCPC to the Registrant on 27 July 2023 which she confirmed had included that Conditional Caution and had stated to the Registrant that the HCPC intended to present this bundle to the Panel if facts were found proved. Ms Bass submitted that the documents were relevant to the matters before the Panel.

27. The Panel accepted the advice of the Legal Assessor who referred it to Rule 10 (1) (b).

28. The Panel was satisfied that the further documentation was potentially relevant to its consideration of impairment and decided to admit the ‘impairment bundle’.

Submissions on impairment

29. Ms Bass submitted that the Registrant’s conviction was serious and in breach of paragraph 9.1 of the HCPC’s Standard of Conduct, Performance and Ethics. She further submitted that the Registrant’s behaviour fell far below that expected of a registered health professional. She argued that the Registrant posed a real risk of significant harm to the public and his behaviour was so serious that a finding of no impairment would undermine the public’s confidence in the profession and the HCPC as a regulator.

30. Ms Bass submitted that the Registrant continued to be required to register with the Police in accordance with the Sexual Offences Act 2003. Ms Bass further submitted that given the serious nature of the conviction and the fact that the Registrant continued to be required to register with the Police that the public would be concerned if his fitness to practise were not found to be impaired. She said the fact that the Registrant had received a Conditional Caution for similar offences increased the risk of him repeating similar behaviour with a consequent risk of harm to patients and members of the public, particularly as he continued to maintain his innocence. Ms Bass did accept that in his recent submissions the Registrant had stated how the Complainant had been affected by what had occurred, but that he continued to deny that it was him who had acted in this manner. She said that public protection and public confidence required a finding of impairment.

Panel’s Decision on impairment

31. The Panel accepted the advice of the Legal Assessor. He referred it to the HCPTS Practice Statements on Conviction and Caution Allegations and Fitness to Practice Impairment and the cases of CHRE v NMC & Grant [2011] EWHC 927 and Cohen v GMC [2008] EWHC 581 (Admin).

32. In reaching its decision the Panel took into account the written submissions and further oral submissions of Ms Bass and the written submissions of the Registrant. The Panel also took into account all relevant documentation before it.

33. The Panel considered whether the Registrant’s fitness to practise is currently impaired. In reaching this decision the Panel considered both the personal component and public component as set out in the HCPTS Practice Note on Impairment.

34. In relation to the personal component the Panel determined that the Registrant’s conviction was serious and involved sexual offending. The Panel considered that this type of behaviour is difficult to remediate, but that it is nevertheless possible to remediate if appropriate steps are taken and in-depth insight and reflection is shown. The Panel noted that the Registrant continues to deny that he acted in this manner and therefore given this stance, there was no evidence before it that he had remediated his actions or shown remorse or reflection into his behaviour. The Panel noted that the Registrant has undertaken all the unpaid work that he had been required to carry out and had paid the victim surcharge imposed. The Registrant has also stated that he understands how this experience caused the Complainant harm. However, without acceptance of his actions - and in light of his receiving a Conditional Caution in 2020 for similar behaviour – the Panel determined that this behaviour is likely to be repeated with consequent harm. Although the conviction related to behaviour outside the workplace, the Panel considered that there was a risk of the Registrant acting in a similar manner in the workplace. The Panel determined that the Registrant’s fitness to practise was impaired in relation to the personal component.

35. In relation to the public component, given its conclusions above, the Panel determined that a finding of current impairment was required to protect the public. In addition, the Panel was mindful of the need to maintain public confidence in the profession and to declare and uphold proper standards of conduct and behaviour on the part of registrants. The Panel considered that the Registrant’s misconduct represented a serious departure from the standards expected of a Biomedical Scientist. The Panel further determined that the Registrant’s conviction was a breach of paragraph 9.1 of the HCPC’s Standard of Conduct, Performance and Ethics. In the Panel’s judgement, public confidence in the profession and in the HCPC as its Regulator would be undermined if there were no finding of impairment.

36. Accordingly, the Panel found the Registrant’s fitness to practise to be impaired having regard to both the personal and public components.
Decision on Sanction

37. Having determined that the Registrant’s fitness to practise was currently impaired the Panel went on to consider what sanction, if any, to impose.
Submissions on Sanction.

38. Ms Bass referred the Panel to the HCPC Sanctions Policy guidance. She submitted that it was for the Panel to decide on the appropriate sanction, but that it had to pay careful regard to the Sanctions Policy. She further submitted that if the Panel deviated from the Sanction Policy it should explain why it has done so in its written decision.

39. Ms Bass submitted that the primary purpose of any sanction is protection of the public. She submitted that the Registrant could potentially pose a risk to service users.

40. Ms Bass further submitted that a sanction may have a deterrent effect on other registrants and maintain public confidence in the profession and the HCPC as a regulator.

41. Ms Bass addressed the Panel on the various sanctions available to it. She submitted that the Registrant had been convicted of a sexual offence and currently remained on the sex offender’s database. She referred the Panel to paragraph 85 and 86 of the Sanctions Policy which states:

’85. Although inclusion on the sex offenders’ database is not a punishment, it does serve to protect the public from those who have committed certain types of offences. A panel should normally regard it as incompatible with the HCPC’s obligation to protect the public to allow a registrant to remain in or return to unrestricted practice while they are on the sex offenders’ database.

86. Where the Panel deviates from this approach, it should provide clear reasoning.’

42. Ms Bass advised the Panel that she had no instructions to seek any specific sanction.

43. The Panel accepted the advice of the Legal Assessor and exercised its independent judgement. The Panel had regard to the Sanctions Policy (the Policy) and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive but to protect members of the public and to safeguard the wider public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.

44. The Panel took into account the submissions of Ms Bass, the written submissions of the Registrant all relevant documentation and its prior decisions.

45. The Panel first identified what it considered to be the principal aggravating and mitigating factors in this case.

Aggravating Factors
• The Registrant had been convicted of a serious sexual offence and remained on the sexual offender’s database.
• The Registrant’s ongoing refusal to accept his conviction has resulted in a lack of insight from him in respect of the nature of his conviction and the consequences of his actions.
• The Registrant has previously accepted a conditional caution for an analogous matter.
• The Registrant’s ongoing refusal to accept his conviction together with his acceptance of a conditional caution give rise to a risk of repetition and consequent harm to members of the public and the reputation of the profession and the HCPC as a regulator.
• The offence for which the Registrant was convicted has the potential to cause harm.

Mitigating Factors
• The Registrant has expressed a degree of insight into how offences such as the one that he has been convicted of can harm a victim.
• The Registrant has expressed insight into the general seriousness of offences such as the one that he has been convicted of.

46. The Panel considered that the Registrant has failed to accept personal responsibility for his actions and for the nature and extent of the consequences of such actions on the victim, colleagues and the reputation of the profession and the HCPC as a regulator. The Panel has already decided that there is a risk of repetition with consequent risk of harm to the public, colleagues and the reputation of the profession and the HCPC as a regulator.

47. The Panel considered the sanctions available, beginning with the least restrictive.

48. The Panel did not consider the options of taking no further action or mediation to be appropriate or proportionate in the circumstances of this case. The Panel had determined that the Registrant’s ongoing refusal to accept his conviction has resulted in a lack of insight and a risk of repetition. The Registrant’s conviction is serious involving sexual offences and he has previously accepted a conditional caution for analogous behaviour. Neither taking no further action nor mediation would address the regulatory concerns identified, reflect the seriousness of the case or address the issues of public protection and public interest.

49. The Panel went on to consider a Caution order. For the reasons set out above the Panel determined that a Caution Order would not address the regulatory concerns identified, reflect the seriousness of the case or address the issues of public protection and public interest.

50. The Panel next considered the imposition of a Conditions of Practice Order. The Panel was satisfied that this case did not raise any workplace or practice concerns which may be appropriately addressed through conditions. The Panel was of the view that it was not possible to formulate workable or practicable conditions which would address the Registrant’s conviction. Further, the Panel considered that the case was too serious for a Conditions of Practice Order and that such an order would not address the regulatory concerns identified, reflect the seriousness of the case or address the issues of public protection and public interest.

51. The Panel next considered a Suspension Order. The Panel considered the terms of paragraph 121 of the Sanctions Policy that states:
‘121. A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:

• the concerns represent a serious breach of the Standards of conduct performance and ethics;

• the registrant has insight;

• the issues are unlikely to be repeated; and

• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.’

The Panel also noted the terms of paragraph 85 and 86 of the Sanctions Policy quoted above at paragraph 41.

52. The Panel had decided that the concerns represent a serious breach of the Standards of Conduct, Performance and Ethics. Further, for the reasons set out above the Panel concluded that the Registrant is lacking insight and there is a risk of repetition. Whilst the Panel considered that the concerns identified are potentially remediable, it did not consider there was any evidence before it to suggest that the Registrant was likely to resolve or remedy his failings. This is unlikely to change so long as the Registrant continues to refuse to accept his conviction.

53. The Panel also took into account that the Registrant remains on the sex offender’s database until January 2027. It took account of the guidance in the Sanctions Policy, that whilst the Registrant remains on this database, ‘a Panel should normally regard it as incompatible with the HCPC’s obligation to protect the public to allow a Registrant to remain in or return to unrestricted practice’.

54. In all these circumstances, the Panel concluded that a Suspension Order would not address the regulatory concerns identified, nor would it reflect the seriousness of the case or address the issues of public protection and public interest.

55. The Panel therefore went on to consider a Striking Off Order. It noted the terms of paragraph 130 and 131 of the Sanctions Policy that states:
‘130. A striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving (this list is not exhaustive):

• dishonesty (see paragraphs 56–58);
• failure to raise concerns (see paragraphs 59–60);
• failure to work in partnership (see paragraphs 61–62);
• discrimination (see paragraphs 63–66);
• abuse of professional position, including vulnerability (see paragraphs 67–75);
• sexual misconduct (see paragraphs 76–77);31
• sexual abuse of children or indecent images of children11 (see paragraphs 78–79 and 87–89);
• criminal convictions for serious offences (see paragraphs 80–92); and
• violence (see paragraph 93).
131. A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:

• lacks insight;

• continues to repeat the misconduct or, where a registrant has been suspended for two years continuously, fails to address a lack of competence; or

• is unwilling to resolve matters.’

56. The Panel also took into account paragraph 85 of the Sanctions Policy.

57. The Panel took into account that the Registrant has been convicted of a serious sexual offence and remains on the sex offenders database. His ongoing refusal to accept his conviction results in his lacking insight and consequently there continues to be a risk of repetition. The Panel also considers that his ongoing refusal to accept his conviction indicates an unwillingness to resolve matters.

58. The Panel therefore decided that a Striking Off Order was the only sanction sufficient to address the regulatory concerns identified, reflect the seriousness of the case and address the issues of public protection and public interest.

59. The Panel was aware that a Striking Off Order could have a significant impact on the Registrant, but considered that public protection and the public interest outweighed any such impact.

ORDER: The Registrar is directed to strike the name of Mr Anthony Ashton 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

60. The Panel having handed down its determination on sanction, Ms Bass made an application for an Interim Suspension order to be imposed.

61. Prior to proceeding with this application, with reference to the HCPC Practice Note on Interim Order Ms Bass made an application to proceed in the Registrant’s absence in relation distinctly to the issue of an Interim Order being imposed following a Panel’s decision on sanction.

62. Ms Bass referred the Panel to the Notice of this Hearing which had been sent to the Registrant at his registered email address on 11 October 2023. She submitted that the Registrant had clearly been warned that after the impairment stage at a final hearing an application might be heard for the imposition of an Interim Order. Ms Bass submitted that the Registrant had voluntarily absented himself from the hearing, that he clearly wanted the hearing to proceed in his absence and that the Panel should proceed in his absence.

63. The Panel accepted the advice of the Legal Assessor. He referred it to Rule 11 and to the HCPTS Practice Note on Proceeding in the Absence of the Registrant and to the case of GMC v Adeogba [2016] EWCA Civ 162.

64. The Panel considered that the Registrant had specifically stated that he would not attend the hearing and that it should proceed in his absence in the knowledge that the Registrant was aware that the HCPC might seek an Interim Order after sanction had been imposed. The Panel determined that he had made a decision to voluntarily absent himself from this hearing in light of this knowledge. The Panel determined that, given its decision on sanction there was a strong public interest in considering the application for an interim order.

65. Ms Bass thereafter explained that the current substantive sanction will not come into being for a period of 28 days during which the Registrant could appeal the Panel’s decision. If the Registrant did appeal the decision the current order would not come into being until the determination of that appeal. She submitted that she therefore sought an Interim Suspension Order for a period of 18 months.

66. Ms Bass submitted that such an order was necessary for the protection of the public and otherwise in the public interest given the Panel’s findings.

67. The Panel accepted the advice of the Legal Assessor. He referred it to the HCPTS Practice Note on Interim Orders.

Decision

68. 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.

69. 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.

History of Hearings for Anthony Ashton