Nick R Palmer

Profession: Operating department practitioner

Registration Number: ODP33041

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 13/07/2015 End: 16:00 13/07/2015

Location: ETC Venues, Avonmouth House, 6 Avonmouth Street, London, SE1 6NX

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

While registered as an Operating Department Practitioner:

 

1. At Birmingham Crown Court on 17 January 2014 you were convicted of attempted rape of a female aged 16 years or over.

 

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

Finding

Background


1. The Registrant is registered as an Operating Department Practitioner (ODP) with the HCPC (the Council).  He previously worked at the Queen Elizabeth Hospital, Birmingham.


2. On 17 January 2014 the Registrant was convicted of the attempted rape of a female. The attempted rape had been observed and the Registrant’s actions had been described as forceful.  The victim was reported within the Judge’s Sentencing Comments as suffering psychologically and that her confidence had been adversely affected by this incident.


Decision on the Grounds


3. Article 22(a) of the Health and Social Work Professions Order 2001 (as amended) identifies a Conviction as a ground.  The Panel has evidence of the Conviction by means of a copy of the Certificate of Conviction issued by the Crown Court.  The Panel is not entitled to go behind the Court’s findings and the Certificate of Conviction is conclusive evidence of the fact of the Conviction and satisfaction of the ground.


4. The details of the incident, which took place in Birmingham on 31 May 2013, were set out in the Court transcript, the sentencing section of which was within the documentation before this Panel. The Panel noted that part of the events that led to the conviction had taken place in public and been observed by two local authority workmen and also recorded on close circuit television. 

 
Decision on Impairment


5. The Panel heard from the Council that the matters giving rise to the conviction are so grave that in the Council’s view a finding of impairment is warranted in the public interest.  The Registrant’s actions as found by the Court have brought him and his profession into disrepute and the public’s confidence in the regulatory and disciplinary process would be undermined if a finding of impairment were not made.


6. Further, the Council advanced that although the Registrant has been released from prison he is at liberty on licence until August 2016.  In these circumstances where there is a current sentence for a serious offence it would be inappropriate for the Panel to make no finding of impairment whilst the Registrant was at risk of returning to prison should he breach the terms of his licence.  There was evidence of some personal remediation being undertaken but the personal component of the Panel’s decision was still warranted.


7. The Registrant had provided this Panel with two references written by his former girlfriend.  One was before the Crown Court at the sentencing stage and the second bears neither a date of writing or postage, nor any address for a recipient.  The content of the second letter however shows that it was intended to be used in HCPC proceedings.  On the 20 May 2015 the author of this undated letter contacted the Council and was recorded by the case manager to say ‘she wished to retract this character reference’ that she had written for these proceedings. The letter was within the bundle of hearing documentation and therefore already before this Panel. The Panel was invited by the Council to disregard this letter and give it no weight as the author had since withdrawn her character evidence.  The Registrant was content with this.


8. The Registrant stated that when he wrote his statement for the Investigating Committee hearing he had only recently been sentenced and so he had had little time to reflect on the events that led to his conviction.  Since then he had undertaken a Sexual Offenders Treatment Programme and now fully understood the gravity of his offence and its impact on the victim.  He had also personally undertaken reflection on how the use of alcohol had affected his behaviour and he was personally limiting his use of alcohol.


9. The Panel accepted the Legal Assessor’s advice, the representations of the parties and took into account the guidance issued by the Council in its Practice Note on this topic of fitness to practise.  In her advice the Legal Assessor had emphasised the need for the Panel to give careful consideration to the public component of its decision: matters that would bring the profession into disrepute and would undermine the public confidence should be given weight notwithstanding that there may be sufficient evidence of remediation on the personal component. The Panel was also advised of the case law which stated that a practitioner who was still the subject of a sentence should not be allowed to resume their practice until that sentence had been fulfilled.


10. The Panel noted the actions the Registrant had taken to gain insight into his behaviour and which would address the likelihood of him reoffending.  The Panel also noted that the sentencing judge had described the Registrant’s former character as ‘exemplary’ and he had assessed the Registrant as a low risk to public safety.  The Panel accepted the Registrant’s testimony that he would not act the same way again and took into account the courses and action undertaken by the Registrant to ensure that there was no repetition of his behaviour.  The Panel concluded that the Registrant currently posed very little risk to service users or to colleagues.


11. The Panel had before it a body of references from those with whom the Registrant had worked at Queen Elizabeth.  Some had been produced for the Crown Court proceedings and some for the early stages of these regulatory proceedings.  These references attest to the fact that his behaviour was out of character, that he was a hardworking and trusted colleague, and had always demonstrated his respect for women.  However the Registrant was not now working and his personal and professional references were historic. 


12. The Panel considered that the Registrant’s actions had brought him and his profession into disrepute and the public’s confidence in the profession and the regulatory process would be undermined if a finding of impairment were not made.  The Panel’s therefore concluded that these matters were too serious for it not to make a finding of current impairment on the public components of its decision.


Decision on Sanction:


13. The Council advanced the argument that the fact of a custodial sentence for a relatively long period of time was sufficient in itself to underline the seriousness of the behaviour.  Further, the Registrant will remain on the Sex Offender Register for life, a matter which will undermine the public’s confidence in the profession.  These matters should be reflected in the sanction imposed by this Panel.


14. The Registrant informed the Panel that he was working having secured a position with a removal company.  His employer is aware of his conviction. In addition, the Registrant had spoken to the matron at his former hospital and received a positive indication that he may, subject to the outcome of these proceedings, be considered for future employment.


15. The Panel was advised by the Legal Assessor that there was case law which supported the position that a practitioner should not be allowed to return to practice until they had served their sentence: the Registrant is not free from the threat of continuing his custodial sentence until August 2016 and the entry on the Sex Offenders Register was part of his sentence, and will remain there for life, unless and until reviewed, which cannot take place for fifteen years with no guarantee of the outcome.

16. As directed, the Panel started its deliberations by considering the range of sanctions in ascending order.  Given the seriousness of the allegation the Panel discounted taking no further action and decided that mediation was not appropriate. 

17. Before moving on to consider the further options the Panel identified the following aggravating and mitigating factors.


18. Aggravating


• The Registrant had taken advantage of a young woman when she was in a high state of intoxication.
• The Registrant mislead the victim in that he had maintained that he was a fellow student.
• A degree of force was used by him during the events that were observed by the local authority workers and on CCTV.


19. Mitigating


• The Registrant had previously possessed a character which had been described as ‘exemplary’.
• A body of testimonials that the Registrant’s behaviour that led to the conviction had been wholly out of character.
• The Crown Court and this Panel had identified that there is a low risk of the Registrant repeating his behaviour.
• He has demonstrated real remorse for his actions.
• He has, so far as he is able, taken the necessary steps to remedy his behaviour by undertaking a Sex Offenders Treatment Programme and limiting his use of alcohol.
• He has been able at this hearing to articulate and demonstrate insight into his previous conduct and an understanding as to how his actions had affected and will continue to affect the victim of his behaviour.
• He is now working and endeavouring to rebuild his life.


20. A Caution Order would not provide any degree of service user protection although, as the paperwork before the Panel discloses, the Registrant has not displayed any behaviour within the workplace which had brought his conduct into question. However, as identified in the Indicative Sanctions Policy a Caution Order is not appropriate where the matters are serious.  A conviction for attempted rape (and which had at first instance been charged as rape) was far too serious a matter for the imposition of a Caution Order.

21. The Registrant is currently working for a removal company who are aware of his conviction. The Registrant wished to return to practise if possible and had spoken with a former senior colleague who had indicated that subject to HR and management approval they may be willing to have him back if this were allowed by his regulator and his former employers. The Panel was aware that it could construct conditions in anticipation of future employment. However, the Panel gave this matter careful consideration and came to the conclusion that a Conditions of Practice Order was neither appropriate, nor proportionate, nor workable in this instance.  Further, although the Panel has concluded that there is a low risk of a repetition, the public perception of the profession would, in the Panel’s view, would be seriously diminished by a decision that would place the Registrant back in an environment where he would be in contact with patients who were in a state of undress and unconscious, particularly at this time when the potential for his custodial sentence to be continued has not yet expired.


22. In deciding whether to impose a Suspension Order the Panel gave careful consideration as to whether the Registrant’s actions were fundamentally incompatible with him remaining on the Register. In this regard the Panel took into account the fact that the Registrant’s actions were for an offence that had resulted in a custodial sentence which had not so far been fulfilled and an entry, for life, on the Sex Offenders Register and entry that could not be reviewed for a period of fifteen years.  In the Panel’s view the Registrant’s actions and conviction were ultimately incapable of being completely remedied. Further, a Suspension Order which would only be for one year at a time was inappropriate in a situation where the Registrant was unable to call for a review of his entry on the Sex Offenders Register for a further thirteen and a half years.  Given these facts, the case law, and the need to uphold the profession’s reputation and to impose a sanction that will act as a deterrent to others, the Panel has concluded that the only appropriate and proportionate sanction is for the removal of the Registrant’s name from the Register.

Order

 

Order: The Registrar is directed to strike the name of Nick Richard Palmer from the Register

Notes

 

Hearing History

History of Hearings for Nick R Palmer

Date Panel Hearing type Outcomes / Status
13/07/2015 Conduct and Competence Committee Final Hearing Struck off