Mr Jamie M MacLennan
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1. On 14 July 2017 at Edinburgh Sheriff Court you were convicted of:
a) sexual assault, contrary to Section 3 of Sexual Offences (Scotland) Act 2009;
b) sexual assault, contrary to Section 3 of Sexual Offences(Scotland) Act 2009;
c) sexual assault, contrary to Section 3 of Sexual Offences (Scotland) Act 2009.
2. By reason of your convictions, your fitness to practise as a
Radiographer is impaired.
1. The case for the Health and Care Professions Council (the “HCPC”) was presented by Mr Alexis Dite of Kingsley Napley. The Registrant was not present or represented.
2. The Panel was satisfied that notice of today’s hearing had been properly served on the Registrant at his home address as it appears on the HCPC Register in terms of rules 3 and 6 of the Conduct and Competence Committee Procedure Rules. In addition Mr Dite has advised that notice of the hearing was also sent to the Registrant at HMP Prison, Edinburgh, on 15 May 2018, and the final hearing bundle was also sent to HMP Prison on 18 May 2018. Mr Dite advised the Panel that on 25 June 2018, Kingsley Napley received confirmation by telephone from a senior manager at HMP Prison, Edinburgh, that the Registrant had received these documents. The Panel thereafter considered Mr Dite’s application to proceed in the Registrant’s absence. The Panel had regard to the HCPTS Practice Note on ‘Proceeding in the Absence of the Registrant’ and the advice of the Legal Assessor. The Panel is aware that the discretion to proceed in absence is one which should be exercised with the utmost care and caution. The Panel is aware that the Registrant is currently serving a custodial sentence and has not asked for an adjournment of today’s hearing. The Panel has no reason to believe that he would attend at a future date if the matter were adjourned. The Registrant has also submitted written submissions to assist the Panel. The Panel has therefore concluded that in all of these circumstances it is in the public interest to proceed in the Registrant’s absence.
3. The Registrant was employed as a Diagnostic Radiographer at NHS Lothian. On 7 May 2016, the Registrant self-referred to the HCPC in respect of criminal proceedings against him. The Registrant then wrote to HCPC on 3 October 2016, informing them that he had been charged with sexual offences under section 3 of the Sexual Offences (Scotland) Act 2009.
4. On 14 July 2017, following a jury trial at Edinburgh Sherriff Court, the Registrant was convicted of three charges of sexual assault contrary to Section 3 of the Sexual Offences (Scotland) Act 2009. On 15 August 2017, the Registrant was sentenced to three custodial sentences of 9 months, 6 months and 12 months to run consecutively, totalling a period of 27 months. The Registrant is currently serving that sentence. In addition, the Registrant is subject to the sexual offender’s notification for a period of 10 years.
Decision on Facts and Grounds
5. The Panel considered the submissions by Mr Dite, the written submissions of the Registrant, the HCPTS Practice Note ‘Conviction and Caution Allegations’ and the advice of the Legal Assessor. The Panel also had sight of the extract conviction dated 7th December 2017, and signed by an Officer of the Court, and accepted this as proof of the conviction and of the findings of fact upon which it was based in terms of rule 10(1)(d) of the Conduct and Competence Committee Procedure Rules. The Panel is therefore satisfied that the facts and grounds have been proved.
Decision on Impairment:
6. The Panel next considered whether the Registrant’s current fitness to practise is impaired by his convictions. The Panel considered the submissions by Mr Dite, the written submissions of the Registrant and the advice of the Legal Assessor. The Panel also had regard to the HCPTS Practice Notes on Conviction and Caution Allegations and on Finding Fitness to practise is Impaired.
7. The Panel is aware that this is a matter for its own professional judgement. In reaching its decision, the Panel has had regard to the conduct of the Registrant, the nature, circumstances and gravity of the offences and the critically important public policy issues, in particular the need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the regulator and the public expect.
8. The Panel has first considered the personal component of the Registrant’s conduct. The Panel has noted that the Registrant pled not guilty to the charges and was convicted following a jury trial. In addition, in his written submissions to this Panel received by the HCPC on 30 January 2018, he continues to deny the charges found proved against him. In the view of the Panel he has failed to demonstrate any insight or remorse in respect of these offences. The Panel also notes that he is still serving a custodial sentence and is still on the Sex Offenders’ Register.
9. Taking this into account and taking account of the nature and gravity of the offences, the Panel is satisfied that there are concerns in relation to the personal component of the Registrant’s actions. The Panel notes the comments of Sherriff Welsh in his sentencing remarks in which he stated that “These are serious offences and are characterised by an abuse of power on your part……. In my view, you forced yourself onto the victims in this case”. Although these matters did not occur within a clinical setting, the Panel agrees that the Registrant’s conduct amounted to an abuse of power. In the Panel’s view, there is an element of risk to the public from a health professional who has been convicted of offences of this nature and who has failed to demonstrate any insight or remorse for his actions.
10. In respect of the critically important public policy issues, the Registrant’s actions clearly bring the profession into disrepute and undermine public confidence in the profession. The Registrant has been convicted of three sexual offences, the most serious one involving the judgment by the jury that his conduct was with intent to rape. As a radiographer, the Registrant is in a position of trust and his actions have very clearly undermined that trust. The Panel has concluded that given the nature and circumstances of the Registrant’s actions, he has also breached standard 9 of the HCPC Standards of conduct, performance and ethics:- ‘You must make sure that your conduct justifies the public’s trust and confidence in you or your profession’. In order to maintain public confidence in the profession and the regulatory process and to uphold proper standards of conduct, the Panel has concluded that the Registrant’s fitness to practise is currently impaired. The allegation is therefore well founded.
Decision on Sanction:
11. The Panel has heard submissions from Mr Dite on behalf of the HCPC on the issue of sanction. The Panel has given careful consideration to the Registrant’s written submissions and accepted the advice of the Legal Assessor. In addition the Panel has had regard to the HCPTS’s Indicative Sanctions Policy.
12. The Panel is aware that the function of fitness to practise panels is not to be punitive. The primary function of any sanction is to address public safety from the perspective of the risk the Registrant may pose to those using or needing his services in the future and determine what degree of public protection is required. The Panel must also give appropriate weight to the wider public interest which includes the deterrent effect on other Registrants, the reputation of the profession and public confidence in the regulatory process.
13. The Panel considered the following mitigating factors:- the Registrant has had no previous findings made against him; he co-operated with the criminal investigation and self-referred to the HCPC.
14. The Panel also had regard to the following aggravating factors:- the Registrant has been convicted of three very serious sexual offences involving an abuse of power; there is no evidence of remorse or insight and no appreciation of the effect of his actions on the victims.
15. The Panel has considered the sanctions available to it in ascending order of severity. The Panel considered that to take no action or to impose a Caution Order would not be appropriate, given that the lapse was not isolated or minor in nature. In addition the Panel is of the view that neither option would be sufficient to address the wider public interest considerations.
16. The Panel next considered a Conditions of Practice Order. The Panel is of the view that the matters found proved do not relate to the Registrant’s practice and could not therefore be addressed by the imposition of conditions. The Panel therefore considers that a Conditions of Practice Order would not be an appropriate or proportionate sanction in this case.
17. The Panel next considered a Suspension Order. In terms of the Indicative Sanctions Policy, a Suspension Order may be appropriate where the allegation is of a serious nature but is unlikely to be repeated. However the Panel is aware that the Registrant is currently serving a custodial sentence and will remain on the Sex Offenders’ Register for a period of ten years. While a Suspension Order would be sufficient to provide the necessary degree of public protection in that the Registrant would not be able to practise during this period, the Panel is of the view that, given the very serious nature of the convictions, a Suspension Order would not be sufficient to address the critically important public policy issues. In all the circumstances, the Panel is of the view that a Suspension Order would not be appropriate or proportionate.
18. The Panel next considered a Striking Off order. In terms of the Indicative Sanctions Policy, striking off ‘is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust such as sexual abuse, dishonesty or persistent failure’. In addition, it states that striking off ‘should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial’. The Panel has identified a continuing lack of insight in respect of these serious sexual offences involving an abuse of power and an attempted rape. The Panel is of the view that the nature of the Registrant’s convictions are such that they are incompatible with ongoing registration. Members of the public would have serious concerns if a registered health professional who is in a position of trust were able to return to practise with convictions of this nature. The Panel has therefore concluded that given the nature and gravity of the convictions, a Striking Off Order is the only sanction which would adequately address the wider public interest considerations in terms of maintaining public confidence in the profession and declaring and upholding proper standards of conduct.
ORDER: That the Registrar is directed to strike the name of Mr Jamie M MacLennan from the Register on the date this order comes into effect.
History of Hearings for Mr Jamie M MacLennan
|Date||Panel||Hearing type||Outcomes / Status|
|06/07/2018||Conduct and Competence Committee||Final Hearing||Struck off|