Maurice W McShane

Profession: Chiropodist / podiatrist

Registration Number: CH12152

Interim Order: Imposed on 15 May 2016

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 12/01/2017 End: 17:00 12/01/2017

Location: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

1. On 1 February 2016 at Durham Crown Court you were convicted of:

a. Sexual activity with a child

b. Sexual activity with a child

c. Sexual activity with a child

d. Sexual activity with a child

e. Sexual activity with a child

f. Sexual assault

g. Sexual assault

 

2. By reason of your convictions as set out at paragraph 1 your fitness to practise as a Chiropodist/Podiatrist is impaired.

Finding

Preliminary matters
1. The Registrant has not attended this hearing.  Notice of the hearing was sent to the Registrant by post on 13 September 2016.  The Panel is satisfied that the Registrant received that notice of hearing because he wrote a letter dated 30 September 2016 from prison by which he confirmed that he would not be attending the hearing and he did not have a representative. Within his letter he set out representations that he wanted to be considered and provided a copy of a lengthy Prison Service OASys Assessment dated 14 September 2016.

2. The Panel was satisfied that notice of hearing had been served on the Registrant. The Panel then had to decide whether it was fair and appropriate to continue in the absence of the Registrant. In doing so the Panel took into account the HCPC Practice Note dated September 2016 “Proceeding in the absence of the Registrant”. The Panel was satisfied, in the particular circumstances of this case, that:

(i) the Registrant was aware of the hearing
(ii) he had indicated he would not be attending and did not have a representative
(iii) an adjournment was not likely to result in the Registrant attending on a future date
(iv) the Registrant had provided representations in writing
(v) there was a general public interest that a hearing should take place within a reasonable time of the events to which it relates.

3. The Panel took into account that a decision to proceed in the absence of a Registrant should be taken after applying the utmost care and caution but bearing in mind the circumstances of this case the Panel was satisfied it was fair to proceed in the absence of the Registrant.

Background
4. The Registrant is registered with the HCPC as a Chiropodist/Podiatrist.  On 1 February 2016 at Durham Crown Court he was convicted of offences of sexual assault and sexual activity with a child. He was sentenced to consecutive terms of imprisonment to run, in total, for 6 years and 1 month, and required to sign the Sex Offenders Register for life.

Decision on facts and impairment
5. The Registrant was convicted (on the basis of his guilty pleas) on 1 February 2016 and sentenced on 21 March 2016 at Durham Crown Court on the following charges:

(i) Sexual activity with a child - 12 months imprisonment
(ii) Sexual activity with a child - 30 months imprisonment (concurrent to count 3)
(iii) Sexual activity with a child - 53 months imprisonment (concurrent)
(iv) Sexual activity with a child - 53 months imprisonment (concurrent)
(v) Sexual activity with a child - 53 months imprisonment (concurrent)
(vi) Sexual assault  -   6 months imprisonment (concurrent)
(vii) Sexual assault  - 20 months imprisonment
(consecutive to count 3 above).

The above offences related to two separate teenage girls.

6. The Panel has taken into account the HCPC Practice Note: “Conviction and Caution Allegations” and, in particular, the following comments:

The Panel’s task is to determine whether fitness to practise is impaired, based upon the nature, circumstances and gravity of the offence concerned, and, if so, whether any sanction needs to be imposed.

In considering the nature, circumstances and gravity of the offence, Panels need to take account of public protection in its broadest sense, including whether the registrant’s actions bring the profession concerned into disrepute or may undermine public confidence in that profession. In doing so, Panels are entitled to adopt a 'retrospective' approach and consider the conviction as if the registrant was applying for registration with the HCPC.

Although Panels cannot re-try criminal cases, they may have regard to whether the registrant pleaded guilty to the offence and, if so, at what stage in the proceedings. A guilty plea entered at the first reasonable opportunity is indicative of a greater insight on the part of the registrant than one entered at the last moment.

7. As noted in [the case of] Fleischmann [CRHP v GDC and Fleischman [2005] EWHC 87 Admin] if a Registrant has been convicted of a serious criminal offence and is still serving their sentence at the time the matter comes before a Panel, normally the Panel should not permit the Registrant to resume their practice until that sentence has been satisfactorily completed.

8. The Panel has taken into account the remarks of the sentencing judge. The first victim was 15 years of age at the time of the offences against her in 2006, when the Registrant was in his mid-40s. The second victim was 15 or 16 at the time of the offences against her in 2013 and 2014 when the Registrant was about 51 years of age. The sentencing remarks show that in committing the offences there was penetration of the vagina, the anus and the mouth. The two victims and the Registrant had been members of the same theatre club. There were elements of grooming and abuse of trust. It was accepted that the Registrant had no previous convictions. The Registrant was given credit for his guilty pleas.
 
9. The Panel has taken into account all that the Registrant has said in his letter dated 30 September 2016 and the content of the accompanying OASys Report.  The Registrant maintained that his wrong date of birth had been mentioned and an incorrect reference had been made to the age of one of his victims. He maintained that in a recent meeting with his offender manager it was stated “that I am considered a “low” risk and that I don’t meet the criteria which would require me to attend a sexual hazard programme”.

10. The Registrant went on to draw the Panel’s attention to specific entries in the OASys report as follows:

“Page 3:  Recommended suspended sentence
 Page 6: 2% chance of re-offending
 Page 32:  No risk to identifiable children
 Page 42:  Risk category – Low”

11. The Registrant commented that the offences “were in no way related to my work as a Podiatrist and that I have developed great trust and friendship with my elderly client base fulfilling many social roles in my local community. I ask that I will be allowed to continue this work as it will be a vital factor if I am to make a successful and positive return to the community”.

12. The Panel has noted the references made by the Registrant to certain entries in the OASys Report. But those entries need to be taken into account within the whole context of the report. Elsewhere the report states:

 “Although [the Registrant] has no previous convictions, he is currently assessed as posing a high risk of reoffending and a high risk of causing serious harm to children particularly young females. This is due to the background, nature and circumstances of his current sexual offences, two separate incidents which occurred in 2006 and 2014, the impact on and the vulnerability of the young female victims and the breach of trust, compounded by his overall thinking and behavioural deficits. He makes reference to alcohol use and breakdown of his marriage as contributing factors, however in regard to his own sexual interest and gratification, [the Registrant] has a very limited insight, difficulty understanding other people’s views, especially in respect of the nature and extent of harm caused to his victims. He has a lack of awareness or minimisation of his own grooming behaviours, preferred sexual interest in young teenage girls and inappropriate problem-solving strategies to deal with emotional or stressful situations in his life”.

“It remains concerning however that [the Registrant] continues to view his offences as him “helping the victims” to understand sexual issues and that he continues to empart (sic) blame for the behaviours upon the victims, stating that it was difficult to say no and that the girls were “constantly contacting him”.

13. Within the report is a section which gives an assessment of future risk to children. The report puts the opinion that there are concerns in relation to children and that contact should be made with social services.

14. In the view of the Panel the reference by the Registrant to a 2% chance of reoffending has to be treated with some caution.  The Panel’s interpretation of the material is that this is a percentage expressed simply on the basis of the appellant’s relatively advanced age when he first came into contact with the police.  It is not a measure of other factors of seriousness such as the nature of the offence and the nature of the victims.

15. The reference by the Registrant to him being no risk to identifiable children has to be treated in context.  The Panel’s interpretation is that this is simply an assessment of whether there are particular children (for example, members of the appellant’s household) that would be at risk in the future.  It is not an assessment of the risk that would be faced by unidentified young females who may have dealings with the Registrant in the future.  For example, during any practice by him as a Podiatrist.

16. The reference by the Registrant to him being in a low category of risk again has to be taken into account in the context of the whole report. The Panel is bound also to take into account the opinion that the Registrant still presents a high risk for young persons.

17. The Panel has taken into account the HCPC Practice Note “Finding that Fitness to Practise is Impaired” and has to assess whether the Registrant’s fitness to practise is currently impaired.

18. Panels must take account of a range of issues which, in essence, comprise two components:

i) the ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and

ii) the ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

19. The Panel is satisfied that the past conduct of the Registrant caused very substantial harm to his victims. One of them became pregnant and both suffered significant psychological harm. The Registrant had a very high degree of culpability for his actions. He would have clearly known that what he was doing was very wrong.

20. Returning to the personal and public components referred to above the Panel is satisfied that the conduct of the Registrant was serious, callous and disgraceful. His actions have created very considerable damage to the reputation of Chiropodists/Podiatrists.

21. The Panel takes into account that the Registrant’s offending took place over a number of years. His actions were calculated and deliberate. He has shown no remorse for his past offending and no insight as to the seriousness of the offences.  The Panel has concluded that the fitness to practise of the Registrant is currently impaired. To fail to make that finding would create a risk to service users, would not maintain professional standards and would not maintain public confidence in the profession or the regulatory process.

Decision on sanction
22. The Panel has considered the question of sanction and has taken into account the HCPC Indicative Sanctions Policy. It is not mandatory to impose a sanction. If a sanction is to be imposed it must relate only to the facts proved or admitted. The primary function of a sanction is to address public safety issues although there will also be secondary considerations in the form of a deterrent effect on other professionals, maintaining the reputation of the profession and public confidence in the regulatory process. Any sanction must be proportionate and a key factor to be considered is the extent of insight demonstrated by a Registrant.

23. The aggravating features of the case are:

(i) the very serious nature of the offending over an extended period of time

(ii) the harm caused to the two young victims as is evident from the victim impact statements made to the sentencing court

(iii) there is no evidence of remorse or insight

(iv)  there remains a future risk for young females from the Registrant

24. The Panel finds it difficult to identify any mitigating features beyond the fact that the Registrant pleaded guilty to the charges at the outset of the trial.

25. Bearing those factors in mind the Panel has considered the available sanctions in ascending order. The Panel has determined, given the findings above and the absence of remorse and insight, that taking no action would fail to provide the proper level of public protection, fail to meet the public interest in declaring and upholding proper professional standards and fail to maintain confidence in the profession and the regulatory process. It is not appropriate against that background to consider mediation.

26. The Panel next considered a Caution Order and noted that the Indicative Sanctions Policy states that such an order may be an appropriate sanction for cases where the lapse is limited, there is a low risk of recurrence, the Registrant has shown insight and taken appropriate remedial action. None of those factors apply in this case. In addition, a Caution Order would not provide a sufficient level of public protection. For those reasons a Caution Order is not appropriate.

27. Conditions of Practice will be most appropriate where a failure or deficiency is capable of being remedied and where the Panel is satisfied that allowing the Registrant to remain in practice, albeit subject to conditions, poses no risk of harm or future harm.  There are no conditions of practice that would provide adequate public protection. The offences were committed outside the Registrant’s professional role.

28. The Policy comments: “Suspension should be considered where the Panel considers that a caution or conditions of practice would provide insufficient public protection or where the allegation is of a serious nature but unlikely to be repeated and, thus, striking off is not merited”.

29. There is then the further comment: “If the evidence suggests that the registrant will be unable to resolve or remedy his or her failings then striking off may be the more appropriate option. However, where there are no psychological or other difficulties preventing the registrant from understanding and seeking to remedy the failings then suspension may be appropriate”.

30. The Panel is satisfied there is a risk that the conduct on the part of the Registrant may be repeated in the future. That is clear from the OASys report. There is no evidence of insight which allows the Panel to believe the Registrant is able to resolve his failings.

31. The Panel is satisfied that the conduct of the Registrant amounted to serious and deliberate criminal offences which involved sexual abuse over an extended period of time. There is lack of insight and a continuing risk of harm. The Registrant has shown no ability or willingness to reflect on or change his behaviour.  Members of the public would be highly, and rightly, concerned if the Registrant were permitted to continue to practise.  Given that the Registrant has been sentenced to over 6 years imprisonment for sexual offences any lesser sanction than striking off would lack a sufficient deterrent effect and would undermine confidence in the Chiropody/Podiatry profession  and in the regulatory process. The Panel has concluded that the only proportionate and appropriate sanction is one of striking off.

Order

That the Registrar is directed to strike the name of Maurice W McShane from the Register on the date this order comes into effect.

Notes

The order imposed today will apply from 9 February 2017 (the operative date).

Hearing History

History of Hearings for Maurice W McShane

Date Panel Hearing type Outcomes / Status
12/01/2017 Conduct and Competence Committee Final Hearing Struck off