Mr Andrew W Kerr
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Service and Proceeding in Absence
1. The Panel was satisfied that the letter dated 26 May 2016 addressed to the Registrant at his registered address informing him of the date, time and location of the hearing, constituted good service of notice of hearing.
2. The Panel considered that service had been carried out and that reasonable steps to contact the Registrant had been made. It took the advice of the Legal Assessor who referred it to the HCPC Practice Note on Proceeding in Absence and to the case of GMC v Adeogba  EWCA Civ 162 and the guidance contained therein as to the balancing of fairness to the Registrant with fairness to the HCPC and the public interest. No adjournment had been sought by the Registrant and there was a public interest in proceeding expeditiously. The Registrant has not engaged although clearly he is aware of these proceedings. The Panel consider that he has voluntarily absented himself. In all the circumstances the Panel decided to proceed in the absence of the Registrant.
3. On 13 April 2015, Police Officers from the Paedophile On Line Investigation Team attended the Registrant’s home address. The Police had received information that the Registrant’s Internet Protocol (IP) address had been used to access indecent images of children. The Registrant was arrested and his iPhone and iPad were seized by the Police. On these devices 15 live “still” images of children in three categories under the Sexual Offenders Definitive guidelines were found. The Registrant admitted receiving these images and also that he had not deleted them.
4. The Registrant was charged and bailed. On 30 October 2015 the Registrant received a Simple Caution for Possession of an Indecent Photograph/Pseudo-Photograph of a child.
The Submissions for the HCPC
5. Miss Bennett referred the Panel to the terms of the allegation. She told the Panel that the Registrant had been cautioned as set out. The Registrant had received the images on a mobile telephone application whilst engaging in sexually explicitly discussions with other users.
6. Miss Bennett told the Panel that in April 2015 the HCPC had been informed by Kent Police regarding the allegation. Miss Bennett referred the Panel to the HCPC Practice Note on Conviction and Caution Allegations and to the Simple Caution in the bundle which sets out that the Registrant admitted the offences detailed, which relate to possession of child pornography. She pointed out that the Simple Caution document shows the Registrant’s signature, thereby formally admitting the offences. Miss Bennett invited the Panel to find the facts proved in light of the Simple Caution.
Submission on Impairment
7. Miss Bennett referred the Panel to the HCPC Practice Note on Impairment and to the personal and public elements. She confirmed that the Registrant has not engaged in these proceedings. However, she submitted that it was clear that the Registrant had admitted the offences and had given an explanation to the Police, which was somewhat limited.
8. Miss Bennett advised that in February 2016 the Registrant had written to the HCPC advising that he wished to resign his registration and that he had no intention of practising as a Paramedic. She advised that he had admitted the offences but that he had not explained why he had not deleted the images. Miss Bennett submitted that there is no evidence of insight, remorse of remediation by the Registrant.
9. Regarding the HCPC Standards, Miss Bennett submitted that the Standards of Proficiency – Paramedics were engaged. She submitted that the introduction at page 3 was engaged as were standards 3.1 and 4.4. As to the HCPC Standards of Conduct, Performance and Ethics, Miss Bennett submitted that standards 3 and 13 were engaged.
10. Miss Bennett also referred the Panel to the HCPC Practice Note on impairment. She referred it to GMC v Meadow  EWCA Civ 1319 and to the advice on impairment in that case. As to the public component, Miss Bennett referred the Panel to the guidance in Council for Healthcare Regulatory Excellence v Grant  EWHC 927 (Admin). She referred the Panel to the need to consider impairment and the risk presented by the Registrant. She also referred the Panel to the need to have regard to the public interest and the need to declare and uphold proper standards of the profession and the Regulator.
11. On lack of insight and remorse, Miss Bennett submitted that the Registrant’s fitness to practise was impaired given the terms of the Registrant’s Caution and his lack of explanation and insight into his behaviour.
12. The Panel heard and accepted the advice of the Legal Assessor. He referred the Panel to the HCPC Practice Notes on Conviction and Caution and on impairment. On impairment he referred the Panel to the case of Grant and to the helpful guidance there. He stressed the central importance of the public interest.
Decision on Facts
13. The Panel carefully considered all of the evidence and the submissions from Miss Bennett. The Panel heard and accepted the advice of the Legal Assessor. The Panel was aware that on matters of fact, as distinct from issues of lack of competence, misconduct and impairment, the burden of proof rested on the HCPC and that the standard of proof was the civil one, namely on the balance of probabilities.
Finding of Fact
14. The Panel considered the documentation in the bundle and had regard to the Simple Adult Caution and to the Registrant’s admission. The Panel had regard to the HCPC Practice Note it had been referred to. Having considered matters carefully, the Panel find the allegation proved by reason of the Registrant’s admission and the Simple Adult Caution.
15. The Panel next considered whether the Registrant’s fitness to practise is currently impaired. It kept in mind the central importance of the protection of the public, the wider public interest and the guidance provided in the Grant case.
16. The Panel had regard to the Registrant’s clear admission of the offence, as set out in the Simple Adult Caution. He has, however, subsequently failed to engage fully with the HCPC. The Panel has no evidence before it as to the Registrant’s insight, remorse or remediation. His engagement has been very limited and he has asked to be removed from the Register.
17. The Panel finds that the Registrant has shown no insight, remorse of remediation. He has provided no explanation to the HCPC and only a limited explanation to the Police. The offence is very serious and is a serious breach of professional standards. The Panel finds that the Registrant has breached the HCPC Standards of conduct, performance and ethics and the Standards of proficiency - Paramedics.
18. The Panel was also mindful of the guidance found in Grant on the central importance of the wider public interest and the need to safeguard public confidence both in the profession and the HCPC. It considered what a member of the public might make of the Registrant’s conduct and the effect that may have on the reputation of the profession.
19. With the personal and public interest components in mind the Panel finds that the Registrant’s fitness to practise is currently impaired. This was a very serious offence and breach of professional standards. In all the circumstances, the Panel find that in respect of both components the Registrant’s fitness to practise is currently impaired.
Submissions on Sanction
20. The Panel heard from Miss Bennett. She referred it to the HCPC’s Indicative Sanctions Policy. Miss Bennett reminded the Panel to consider the degree of public protection required and stressed the proportionality of any sanction to be imposed. She submitted that the Panel should to consider the sanctions in ascending order. Miss Bennett submitted that in mitigation the Panel may wish to consider that the Registrant did admit the offence, and has asked the HCPC to remove him from the Register and further stated that he did not wish to practice as a Paramedic.
21. The Panel took the advice of the Legal Assessor to consider the HCPC Indicative Sanctions Policy. He reminded it to consider any sanction in ascending order and to apply the least restrictive sanction necessary to protect the public. It should also consider any aggravating and mitigating factors and bear in mind the public interest and that the primary purpose of sanction was protection of the public.
Mitigating and Aggravating Factors
22. The Panel first identified what it considered to be the principle mitigating and aggravating factors in this case. The mitigating factor identified is that the Registrant admitted the offence.
23. The aggravating factor identified was that the Registrant had been engaged in sexually explicit conversations with other users on line at the time of the offence.
Decision on Sanction
24. The Panel approached the ladder of sanction, beginning with the least restrictive first, bearing in mind the need for proportionality. Taking no further action and the sanction of a Caution Order would not reflect the seriousness of the allegation found proved and the finding of impairment. Further, these would not be adequate given the wider public interest of maintaining confidence in both the profession and the regulatory process. Neither order is appropriate or proportionate in the circumstances of this case.
25. The Panel next considered a Conditions of Practice Order. The allegation found proved is very serious and represents a breach of the fundamental standards of the profession. The Panel has found that the Registrant has shown no insight, remorse or remediation. In these circumstances the Panel does not consider that a Conditions of Practice Order would be adequate or proportionate. Any event, no workable appropriate conditions could be formulated. The Registrant is not working as a Paramedic and he has told the HCPC that he wishes to be removed from the Register and does not wish to practice as a Paramedic.
26. The Panel next considered the sanction of a Suspension Order. It has found a very serious allegation proved. The Registrant has shown no insight, remorse or remediation in respect of his behaviour. The Panel has no evidence on which it might assess the risk of repetition posed by the Registrant. It has no evidence on which it can assess whether the Registrant’s behaviour can be resolved or remedied. In all the circumstances of the case, the Panel consider that a suspension order would not be proportionate as it would not sufficiently protect the public or the wider public interest, nor would it uphold public confidence in the profession or the HCPC as a regulator.
27. The Panel has concluded that the nature and gravity of the allegation found proved, coupled with the lack of any evidence of insight, remorse or remediation, is such that nothing less than a Striking Off Order is sufficient to protect the public and the wider public interest. The Panel consider that anything less than a Striking Off Order would undermine confidence in the profession and the regulatory process. In all the circumstances, the Panel determines that a Striking Off Order is the appropriate and proportionate sanction.
The Registrant has the right to apply to the Court of Session in Scotland, against the Order, with reference to Article 31(12) of the Health and Social Work Professions Order 2001.
History of Hearings for Mr Andrew W Kerr
|Date||Panel||Hearing type||Outcomes / Status|
|27/07/2016||Conduct and Competence Committee||Final Hearing||Struck off|
|24/02/2016||Investigating committee||Interim Order Application||Interim Suspension|