Mr Richard Mundy

Profession: Operating department practitioner

Registration Number: ODP12068

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 11/12/2018 End: 17:00 13/12/2018

Location: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

Allegation (as amended at Final Hearing):


While registered with the Health and Care Professions Council as an Operating Department Practitioner, you;
1. On or around 31 January 2017, engaged in a series of inappropriate text messages with Person A, in that:
a) Person A sent you a picture of a young boy asking ‘so u up for him? Need to know so were on same wavelength’, and you continued to communicate with Person A;
b) Person A told you that they would speak to their “contact” about the young boy and you continued to make arrangements to meet Person A the following day

2. The matters set out in paragraph 1 were sexually motivated.
3. The matters set out in paragraphs 1 and 2 amount to misconduct.
4. By reason of your misconduct your fitness to practise is impaired.

 

 

Finding

Preliminary Matters
Amendment of the particulars
1. The Panel heard an application, on behalf of the HCPC, to amend particular 1. The Panel received and accepted the advice of the Legal Assessor and was satisfied that the proposed amendments to particular 1 provided clarity and better reflected the HCPC evidence. The Registrant did not object to the proposed amendments, having been notified of them by letter dated 17 July 2018. The Panel was satisfied that the proposed amendments were appropriate and were not prejudicial to the Registrant.

Background
2. The Registrant is registered in the Operating Department Practitioner (ODP) part of the HCPC Register. On 31 January 2017, between 10.44 and 16.45, the Registrant exchanged mobile telephone text messages with Person A using the “Grindr” male dating site. At 17.00 on the same day Person A (a 48 year old man) visited a photo shop and requested printed copies of images taken from his mobile telephone. The images were printed at the shop and Person A paid for them before leaving the shop. The shop manager then examined the stored images downloaded from Person A’s telephone and was so alarmed at their content that she contacted the police. The police took possession of the images consisting of one picture of a boy and 13 pages of text messages.

3. Person A was arrested by the police and interviewed on 2 February 2017. He admitted exchanging text messages with the Registrant and provided the Registrant’s name and address to the police. On 3 February 2017 the Registrant was also arrested and admitted exchanging messages with Person A. The Registrant and Person A both denied having any intention of taking part in sexual activity with a child. The Registrant stated to the police that he wanted to meet and engage in sexual activity with Person A. The Registrant stated that he believed the image of a child sent to him was of Person A; taken when Person A was a child.

4. Person A alleged in his police interview that because he had been investigated by the police in 2016, he had wanted to obtain evidence implicating the Registrant in the sexual abuse of children. The photograph of a child was sent to the Registrant, by Person A, as “bait” in an attempt to entrap the Registrant into admitting wanting to have sex with a child.

5. The evidence collected by the police was submitted to an officer from the Child Abuse Investigation Team, who decided that no further action should be taken against either the Registrant or Person A.

6. The Panel carefully considered the evidence in the case, the submissions of Ms Mond-Wedd, on behalf of the HCPC, and the Registrant. The Panel accepted the advice of the Legal Assessor, that the burden of proving the factual particulars 1a, 1b and 2 is upon the HCPC and the standard of proof is the balance of probabilities.

7. The HCPC relied upon the witness statement of the investigating police officer DC R and screenshots of the text messages, a police report dated 16 October 2017, witness statements from three police officers and a statement from the photo shop manager.

8. In an email dated 10 April 2018, the Registrant stated that on 31 January 2017 he began chatting to various people on “Grindr” and knew one of the people was Person A. He had met Person A five years before and stupidly decided to wind him up. Person A sent him a photograph of a teenaged boy taken in the 1980’s. The Registrant stated he would never seek sexual contact with a child. On 3 February 2017, he was arrested by the police and asked to comment on the messages he had sent on 31 January, being arrested and accused of being a paedophile was a nightmare for him and he was subject to bail conditions, preventing him from having unsupervised access to children. He has been an ODP for 25 years with an unblemished reputation.

9. The Registrant also produced testimonials from DM, TS and PB stating that he is highly respected by colleagues and patients in his workplace and has demonstrated excellent professional skills.
Hearsay Evidence
10. The Panel received and accepted advice from the Legal Assessor that hearsay evidence is admissible in these proceedings under Rule 10 (1)(b) and (c) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003. However, the Panel approached all the hearsay evidence with caution because it had not been tested by cross-examination. The Panel carefully considered what weight to afford to the hearsay evidence.
Assessment of the Evidence
11. The Panel first made an assessment of the credibility of the Registrant and the reliability of all of the evidence presented to it. The Registrant denied the factual particulars. The Panel took account of the fact that the Registrant was unrepresented and that his good character is relevant to his credibility and to the likelihood of his having acted as alleged by the HCPC.
 
12. Furthermore, in Lucas (1981) it was stated that people sometimes tell lies for reasons other than to conceal guilt. Four conditions were identified which must be satisfied before a defendant’s lie could be seen as supporting the prosecution case:-


(1) The lie must be deliberate;
(2) It must relate to a material issue;
(3) The motive for the lie must be a realisation of guilt and fear of the truth;
(4) The statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or evidence from an independent witness. If a witness has lied about one matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example, out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure. The Panel must be satisfied on the balance of probabilities that there was no innocent explanation for any untruthful answers, before this evidence could be used against the Registrant.

13. The Registrant totally contradicted the account he gave in his police interview when he gave evidence to the Panel. He said he had lied to the police when he stated that he wanted to meet the person he was texting for sex and in fact he was trying to “flush him out” by asking him to send a picture of himself. He stated that Person A had been stalking him, followed him home and he was traumatized therefore the easiest thing to do was to lie to the police. The Panel found this change of story without any supporting evidence, was not credible. He also stated that he had told his solicitor after the police interview that he had given an untrue account to the police; but this was not confirmed by any other evidence before the Panel. In his evidence to the Panel, the Registrant minimised the seriousness of the HCPC allegations. The Registrant’s evidence lacked credibility, in particular in relation to his suggestion that he and Person A were trying to wind each other up. He said he knew the other person sending the text messages was Person A, because the person stated they were from Harlow and Person A was from Loughton near Harlow. However, he did not tell the police that he knew the other person. This aspect of his evidence also lacked credibility.

Decision on Facts
Particular 1a
14. The Registrant continued an inappropriate text conversation with Person A after being sent a photograph of a young boy. The Panel concluded that the messages he sent were clearly inappropriate, for example the Registrant was asked “u don’t want younger?” and replied: “Difficult to find”. He also stated: “Caught my boys playing told em to get on with it I watched”. He conceded in his evidence to the Panel that these messages were “possibly” or “might be” inappropriate. The Panel finds that he was encouraging an inappropriate conversation about under age sexual activity. He continued to communicate with Person A, who appeared to be offering him a 12 year old for sex, after being sent a photograph of a young boy. The Panel is satisfied that the HCPC has proved that on 31 January 2017 the Registrant engaged in a series of inappropriate text messages with Person A, in that Person A sent him a picture of a young boy asking “so u up for him? Need to know so were on same wavelength” and the Registrant continued to communicate with Person A. Accordingly, particular 1a is proved.
Particular 1b
15. The Registrant confirmed a meeting in a public house in Carey Street on the following day, in response to a message concerning the young boy, after being told that Person A would speak to his “contact”. The Registrant then continued the inappropriate text conversation. The HCPC has proved on the balance of probability that on 31 January 2017 the Registrant engaged in a series of inappropriate text messages with Person A, in that Person A told him that he would speak to his “contact” about the young boy and the Registrant continued to make arrangements to meet person A the following day. Therefore particular 1b is proved.


Particular 2
16. Section 78 of the Sexual Offences Act 2003 states:
For the purposes of this part…penetration, touching or any other activity is sexual if a
reasonable person would consider that-
(a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.
In the case of Basson v GMC (2018) it was stated that sexual motivation means that the conduct was done either in pursuit of sexual gratification or in pursuit of a future sexual relationship.
17. The Registrant stated that he was foolish but not sexually motivated. He sent the messages because he was tricking Person A and had no intention of meeting him for sexual reasons. However, in his police interview under caution on 3 February 2017, with his solicitor present, he stated that he wanted to meet up with the man he was texting to have sex; his flat was available for this purpose because his partner was out. He was sending messages on “Grindr” which is used for sexual purposes.

18. After being sent the photograph of a young boy, the Registrant did not explicitly refer to sexual activity with a boy, but the theme of the text conversation was clearly sexually motivated throughout. He continued to communicate with Person A and arranged to meet him and encouraged the discussion of sexual activity. The Registrant referred to his own sexual encounters as a 12 year old and to watching children engaging in sexual activity. The Panel finds on a balance of probability, in respect of the matters set out in particulars 1a and 1b the Registrant was sexually motivated. Accordingly, this particular is proved.

Decision on Grounds

19. The Panel next considered whether the Registrant’s behaviour in respect of the proved facts amounts to misconduct. Misconduct is a matter for the Panel’s judgment and has been defined as a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a practitioner in the particular circumstances and the conduct complained of must be serious. The HCPC submits that the behaviour outlined in the factual particulars does amount to misconduct in that it constitutes a serious falling short of what would be proper in the circumstances and what the public would expect of an HCPC registered ODP.

20. The standards ordinarily required to be followed by the Registrant would have been those that were in force at the relevant time, namely: The HCPC Standards of Conduct, performance and ethics (2016). Standard 2.7 states: You must use all forms of communication appropriately and responsibly, including social media and networking websites. Standard 9.1 states: You must make sure that your conduct justifies the public’s trust and confidence in you and your profession. Also the HCPC Standards of proficiency for ODPs which state Registrant ODPs must: 2 be able to practise within the legal and ethical boundaries of their profession, and 3.1 understand the need to maintain high standards of personal and professional conduct.

21. As regards the proved factual particulars, the Panel is satisfied that these particulars are sufficiently serious to amount to misconduct. The Panel considered that the messages exchanged between the Registrant and Person A would be considered deplorable and the Panel finds the Registrant participated in and encouraged a sexual discussion which included the sexual abuse of a child. At no time did the Registrant discourage or disengage from the line of discussion. When the messages were viewed by a photo shop manager she became so alarmed while reading them with a colleague that they referred the matter to the police.

Decision on Impairment

22. The Panel next considered whether the Registrant’s fitness to practise is currently impaired.  The HCPTS Practice Note on Finding that Fitness to practise is “Impaired” states there are two components:
The personal component, which includes looking at the current competence, behaviour etc. of the individual registrant.
The public component which includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.
23. The test of impairment is expressed in the present tense, that fitness to practise is impaired at the current time. The Panel has taken into account the lapse of time since these matters occurred but has also looked at the Registrant’s past actions in order to assess his likely future conduct. The Panel considered the need to uphold the HCPC Standards of conduct, the Standards of proficiency for ODPs and public confidence in the profession, in deciding whether a finding of impairment should be made. Whether a Registrant’s fitness to practise is impaired is a matter for the Panel’s judgment. There is no burden of proof on the HCPC or the Registrant at this stage.

24. The Registrant denied the factual particulars which have been found proved. He has shown some remorse but has only demonstrated limited insight into the inappropriate nature of his conduct. His email dated 10 April 2018 shows a lack of appreciation of the seriousness of the issues raised by his regulatory body. He does not appear to appreciate that, despite the decision of the police to take no further action, these matters are still extremely serious. The Panel considered that due to this, there is a real risk of repetition. Further, the Registrant has minimised his behaviour and provided totally different accounts to the Panel and in his police interview. His evidence to the Panel, that he lied to the police about wanting to meet Person A for sex, lacked credibility. As did his assertion that he was 99 per cent certain it was Person A he was exchanging messages with. The Panel took account of the Registrant’s previous good character, employment status and testimonials, but remained concerned about his lack of awareness of the extent that the public would be concerned by his misconduct. The Panel therefore finds the Registrant is currently impaired under the personal component.

25. In considering the public component, as identified in the HCPTS Practice Note, there is a need to declare and uphold proper standards of conduct and behaviour, so as to maintain public confidence in the profession. When the text messages were viewed by a photo shop manager she became so alarmed while reading them, that she referred the matter to the police. The Registrant’s behaviour fell far short of what is to be expected and it is necessary to maintain public confidence in the profession and the regulatory process, by finding that there is a current impairment of his fitness to practise. Accordingly, due to the need to uphold proper professional standards, conduct and behaviour, the Panel finds that the Registrant’s fitness to practise is also currently impaired under the public component.

 


Decision on Sanction

26. The purpose of fitness to practise proceedings is not to punish registrants, but to protect the public. In coming to its decision on sanction, the Panel has given careful consideration to the circumstances of this case and to its findings on the facts, the statutory ground and current impairment.

27. The Panel has considered the submissions made on behalf of the HCPC and those made by the Registrant. It accepted the advice of the Legal Assessor. In accordance with that advice, the Panel has had regard to the HCPC Indicative Sanctions Policy (ISP), which states that any sanction must be proportionate, is not intended to be punitive and should be no more than is necessary to meet the legitimate purposes of providing adequate protection to the public, to protect the reputation of the profession, maintain confidence in the regulatory system and declare and uphold proper professional standards.

28. The Panel first identified the aggravating and mitigating factors that it should take into account.

The aggravating factors are:

• The Registrant has demonstrated insufficient insight into the impact of his actions on the profession and the public. 
• His evidence given to the Panel was not credible and he demonstrated a lack of understanding that the HCPC Standards are applicable outside of the workplace.
• That there is a risk of repetition.

The mitigating factors are:

• The Registrant has been an ODP for 25 years with a hitherto unblemished reputation.
• The Registrant produced testimonials from DM, TS and PB stating that he is highly respected by colleagues and patients in his workplace and attested to his professional skills.
• The facts found proved are limited to communications of a sexual nature, not sexual activity.
• The Registrant has expressed some remorse and regret and taken some remedial action by removing himself from “Grindr”.
• The Registrant has made some limited admissions and has engaged with the HCPC process.
• This is a one-off incident that occurred on one particular day.

29. The Panel has considered sanctions in ascending order of gravity. All sanctions are available in this case.
30. The Panel first considered taking no action and mediation but determined that in this case, it would not be appropriate. The Panel went on to consider whether a caution order would be appropriate. This is not a limited or minor lapse with a low risk of recurrence. The Registrant has not shown full insight. This case is too serious to be dealt with by way of a caution order and therefore it is not an appropriate sanction.
31. The Panel concluded that conditions of practice are not an appropriate sanction in this case because it does not relate to the Registrant’s practice, but to his conduct outside of work. The Panel were therefore unable to formulate workable and practicable conditions to address the misconduct.
32. The Panel then considered whether a suspension order is the appropriate sanction in this case. Whilst it took account of the mitigating factors identified, the Panel concluded that the Registrant has demonstrated insufficient insight and remorse and therefore the risk of repetition still remains. The Panel considered the seriousness of the misconduct and the public interest in this case and concluded that a suspension order for 10 months is the appropriate sanction. This will also afford the Registrant sufficient time to reflect upon the Panel’s findings and demonstrate that he has fully appreciated the seriousness of his misconduct and its likely impact on the profession and the public.

33. The Panel has carefully considered whether to impose a striking off order. Striking off is appropriate when there is no other way to protect the public. However, the Panel has decided that on balance a striking off order would be a disproportionate sanction in the circumstances of this case. The Registrant has shown limited insight into his misconduct along with some remorse. It considered that this was a one-off incident, albeit of a serious nature, and he has engaged throughout with the HCPC process.

34. This order will be reviewed before the end of the suspension period. The reviewing panel is likely to be assisted by:
(1) Up to date references/testimonials from individuals who are aware of the Panel’s full findings.
(2) A written reflective piece demonstrating that the Registrant recognises the serious implications of the Panel’s findings and the impact of his misconduct on colleagues, the profession, patients and the wider public.
(3) Evidence that the Registrant has kept his professional knowledge up to date.

Order

The Registrar is directed to suspend the registration of Mr Richard Mundy for a period of 10 months from the date this order comes into effect.

Notes

This order will be reviewed before its expiry on 9 November 2019.

Hearing History

History of Hearings for Mr Richard Mundy

Date Panel Hearing type Outcomes / Status
11/12/2018 Conduct and Competence Committee Final Hearing Suspended