Mr Marlo Medel
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On 5 November 2014 at East London Magistrates Court you were convicted of:
1. Assault by beating.
2. For the above offence you received a 9 week prison sentence and a Restraining Order.
3. By reason of your conviction as set out at paragraphs 1 - 2 your fitness to practise as a Radiographer is impaired.
1. The Notice of today’s hearing was sent to the Registrant at his address in the register on 20 July 2016 by first class post and by email. The Panel note that the notice given is 26 days. It has noted that the Review Hearing had originally been scheduled for 20 July 2016 and notice had been sent on 16 June 2016. Due to lack of panel member availability that Review was rescheduled for 15 August 2016 and notice of the hearing today had been given to the Registrant on 20 July 2016.
2. The Notice contained the date, time and venue of today’s hearing. The Panel accepted the advice of the Legal Assessor. The Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”) require that a Notice of Hearing must contain the above information and must be sent to the Registrant at his address not less than 28 days before the date of the hearing. The Panel noted that the Rules do not specifically deal with the issue of notice in respect of rescheduled hearings.
3. The Panel heard from Mr Byrne that today’s hearing was rescheduled from 20 July and that the HCPC’s position is that the new notice of hearing is an updated version, as the Registrant has previously been given more than 28 days’ notice of the original hearing on the 20 July 2016. He submitted that the notice of 20 July 2016 is a second notice bearing in mind the original notice given on 16 June 2016.
4. The Panel has carefully considered matters. It has borne in mind the importance of fairness to the Registrant and has balanced that with the need to protect the public and for expedition. The Panel is satisfied that the Registrant was aware of the 20 July 2016 hearing. Today’s hearing was rescheduled from 20 July and the Registrant has had an additional 26 days’ notice of the hearing today. The Panel is satisfied that notice of today’s hearing has been properly served in accordance with the Rules. The Panel takes the view that there is no unfairness caused to the Registrant and that all reasonable steps have been taken in respect of service.
Proceeding in the absence of the Registrant:
5. The Panel then went on to consider whether to proceed in the absence of the Registrant. In doing so, it considered the submissions of Mr Byrne for the HCPC. He submitted that under Rule 11 of the Rules the HCPC is seeking that the Panel proceed in the absence of the Registrant. He submitted that the Registrant has not sought an adjournment and that he has received notice of the hearing. The Registrant had been emailed on 19 July 2016 and a telephone message was also left for him. The Registrant did not respond and did not attend on 20 July 2016. Mr Byrne confirmed that notice was also given to the Registrant by email. He has not responded. He advised that a tracing company had been engaged for the Final Hearing and it had confirmed that, at that time, the Registrant was still at the registered address held by the HCPC. The Registrant has not contacted the HCPC since the 2 January 2015. Nothing further has been heard from the Registrant since that date.
6. Mr Byrne submitted that the Panel can be satisfied that the Registrant’s absence today is voluntary and he has waived his right to attend or be represented. He submitted that an adjournment would serve no useful purpose and there was a public interest in this matter being dealt with expeditiously.
7. The Panel heard and accepted the advice of the Legal Assessor. He advised that if the Panel is satisfied that all reasonable efforts have been made to notify the Registrant of the hearing then the Panel has the discretion to proceed in the absence of the Registrant. He reminded the Panel that it should exercise that discretion with the utmost care and caution. The Legal Assessor referred the Panel to the HCPC Guidance Note on Proceeding in the Absence of the Registrant and to the recent case of Adeogba v GMC  EWCA Civ 62. This case makes clear that the first question the Panel should ask is whether all reasonable efforts have been made to serve the Registrant with notice. Thereafter, if the Panel is satisfied that proper notice has been given, the discretion whether or not to proceed must be exercised having regard to all the circumstances of which the Panel is aware, with fairness to the Registrant being a prime consideration. Fairness to the HCPC and the interests of the public must also be taken nto account.
8. The Panel agreed to proceed in the Registrant’s absence as it is satisfied that it is both in the public interest and in the Registrant’s interest to do so. In reaching this decision, the Panel has noted there has been no request for an adjournment. It balanced fairness to the Registrant with fairness to the HCPC and the public interest. The Panel is of the view that the Registrant has voluntarily absented himself and no useful purpose would be served by adjourning the hearing. The Panel has also taken account of the fact that this is a mandatory review. The Panel weighed its responsibilities for public protection and the expeditious disposal of the case with the Registrant’s right to be present at the hearing. In these circumstances the Panel is satisfied that it is appropriate to proceed in his absence.
9. The Registrant is a Radiographer. He was employed by the Royal London Hospital, Barts Health NHS Trust in Whitechapel. On 5 November 2014 the Registrant was convicted at the East London Magistrates Court of an offence of assault by beating contrary to section 39 if the Criminal Justice Act 1988. The Registrant pleaded guilty and was sentenced to a 9 week period of imprisonment given the seriousness of the offence which involved an attack on his partner in front of the Registrant’s child. A restraining order was also made.
10. At the HCPC Final Hearing on 29 July 2015 the Panel found that the Registrant’s fitness to practise was impaired by reason of his conviction and a sanction of 12 months Suspension Order was imposed. The Registrant did not appear and was not represented at the Final Hearing.
11. Mr Byrne told the Panel that this was the first Review of the Suspension Order imposed at the Final Hearing on 29 July 2015. Mr Byrne referred the Panel to the decision at the Final Hearing. At that time there had been no evidence of any insight or remediation. That Panel stated that the 12 month Suspension Order would give the Registrant an opportunity to reflect and to remediate and it had suggested what a Reviewing Panel may find helpful. Mr Byrne pointed out that the Panel at the Final Hearing had considered Striking Off but had not considered it appropriate at that stage.
12. Mr Byrne advised that the Registrant has not been in contact with the HCPC. He has not provided any information or evidence to the HCPC as to remediation or insight. He submitted that the Registrant’s fitness to practise remains impaired and there was no evidence of any change since the Final Hearing.
13. Mr Byrne asked the Panel to consider matters carefully and to bear in mind the public interest and the reputation of the profession. He submitted that the least restrictive sanction ought to be a further period of suspension, and then only if the Panel consider there is some chance that the Registrant will engage and remediate. He advised that a Striking Off Order may be the appropriate sanction and he referred the Panel to the HCPC Indicative Sanctions Policy. He suggested that, if a Suspension Order was appropriate, then a further period of 12 months would be appropriate to allow the Registrant to provide information and evidence of remediation to a future Reviewing Panel.
14. The Panel accepted the advice of the Legal Assessor who reminded the Panel that its purpose today was to conduct a comprehensive appraisal to determine if the Registrant is fit to return to unrestricted practice. Its role is not to conduct a rehearing of the allegations nor is it to go behind the previous findings. The Legal Assessor advised that, in carrying out this assessment, the Panel must exercise its own independent judgement and its determination should be based on the evidence before it.
15. The Legal Assessor advised the Panel that if it determined that the Registrant’s fitness to practise remained impaired all the options under Article 30 of the Health and Social Work Professions Order 2001 could be exercised by the Panel. He advised the Panel that it should bear in mind the principles of fairness and proportionality and have regard to the HCPC’s Indicative Sanctions Policy. He reminded the Panel that any order that it makes under Article 30 should not be punitive in purpose, and that it should be the least restrictive order that would suffice to protect the public and/or is otherwise in the public interest.
Decision on Impairment:
16. The Panel first considered whether the Registrant’s fitness to practise is currently impaired. The Panel took into consideration all the documentation before it and the submissions of Mr Byrne. It noted that the Registrant has not engaged with the HCPC since January 2015. He has provided no evidence of insight, remorse or remediation. He has provided no evidence of how he has been maintaining his skills. The panel at the Final Hearing gave the Registrant a clear indication of the four issues which a future Reviewing Panel may find of assistance. The Registrant has not addressed any of these issues and he has not provided any information for this Panel to consider.
17. The Panel can only conclude in these circumstances that the Registrant has not developed any insight, remorse or remediation and that he remains a risk to the public. The Panel has also considered the public interest and concluded that the public would, bearing in mind the seriousness of the conviction, expect a finding of impairment. The Panel has determined that the Registrant’s fitness to practise remains impaired.
Decision on Sanction:
18. The Panel then went on to consider what action, if any, it should take in light of its finding of current impairment. In doing so, it had careful regard to the HCPC Indicative Sanctions Policy. The Panel is concerned that the Registrant has not engaged with the HCPC and has provided no evidence for this Panel to consider when reviewing the sanction.
19. The Panel first considered whether it would be appropriate to take no further action and to allow the current order to lapse at its expiry. The Panel is of the view, given the conviction and the lack of insight and remediation by the Registrant, that it would not be appropriate to allow the order to lapse. Similarly, with regards to a Caution Order, the Panel concluded that such an order would not be appropriate or proportionate to address the Registrant’s conviction of a serious criminal offence, neither would it be in the public interest.
20. The Panel next considered whether a Conditions of Practice Order would be appropriate in this case. It has determined that such an order would not be appropriate or proportionate. The Panel has no information on the Registrant’s current employment and he has not engaged with the HCPC. Accordingly, the Panel are unable to formulate workable and realistic conditions. In any event, the Panel do not consider that a Conditions of Practice Order would be sufficient to protect the public given the nature and gravity of the Registrant’s conviction.
21. The Panel next considered a Suspension Order and it carefully considered the HCPC Indicative Sanctions Policy. The Panel is concerned as to the lack of any engagement by the Registrant and his failure to respond to the opportunity provided by the Suspension Order to show some insight, remediation and remorse. Further, the criminal conviction is serious and there appears to be a persistent lack of insight by the Registrant. In these circumstances the Panel has determined that a further period of suspension would not serve any useful purpose and would not be appropriate or proportionate, nor would it be sufficient to adequately protect the public or the wider public interest.
22. The Panel next considered a Striking Off Order. It has noted the Registrant’s lack of any engagement and has had regard to the lack of any evidence of insight, remorse or remediation. The Registrant has demonstrated an unwillingness to engage with the HCPC to resolve these matters. Further, the Panel had regard to the nature and gravity of the conviction. The Panel is also mindful of the need to protect the reputation of the profession and to uphold confidence in both the profession and the Regulator. In all these circumstances, the Panel have determined that the only appropriate and proportionate sanction which is sufficient to protect the public, and being otherwise in the public interest, is a Striking Off Order.
That the Registrar is directed to strike the name of Mr Marlo Medel from the Register on the date this Order comes into effect.
The Order is imposed with effect from 26 August 2016.
History of Hearings for Mr Marlo Medel
|Date||Panel||Hearing type||Outcomes / Status|
|15/08/2016||Conduct and Competence Committee||Review Hearing||Struck off|
|20/07/2016||Conduct and Competence Committee||Review Hearing||Hearing has not yet been held|