Mr Paul Mitchell

Profession: Radiographer

Registration Number: RA65491

Interim Order: Imposed on 17 Jan 2017

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 02/07/2018 End: 16:00 03/07/2018

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

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

Whilst registered as a Radiographer and working at Papworth Hospital NHS Foundation Trust between September 2015 and 9 January 2017:

1. Whilst on duty at work and using a Hospital computer, you accessed online chatroom website(s) and:

a) purported to be a female under 18 years of age; and/or

b) engaged in inappropriate conversations with unknown persons;

2. Your actions described at particular 1(a) were:

a) misleading; and/or

b) dishonest;

3. Your actions described at particulars 1(a) and/or 1(b) were sexually motivated;

4. Your actions described at particulars 1 to 3 constitute misconduct;

5. By reason of your misconduct your fitness to practise is impaired.


Facts proved:  1(a) and 3 (in relation to 1(a)).

Facts not proved: 1(b), 2(a), and 2(b).

Grounds: Misconduct

Fitness to practise impaired: Yes

Sanction: Caution (3 Years)

Finding

Preliminary Matters

Service

1. On 26 March 2018, notice of this hearing was sent by first class post to the Registrant’s registered address. A copy was also sent on 28 March 2018 to a second address at which the Registrant had been known to receive correspondence. The notice contained the required particulars.

2. The Panel was satisfied on the documentary evidence provided, that the Registrant, had been given proper notice of this hearing in accordance with the Rules.

Proceeding in absence of the Registrant

3. Ms Mond-Wedd, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. The Panel heard and accepted the advice of the Legal Assessor, who advised that the discretion to proceed in a Registrant's absence should only be exercised with the utmost care and caution.

4. The Panel was provided with a chronology in respect of communications with the Registrant. Ms Mond-Wedd submitted that the Registrant had initially engaged with the HCPC, but had subsequently disengaged. On 9 March 2018 the HCPC Case Manager received a telephone call from the Registrant. The note of that call recorded that he asked the HCPC to cease sending him any correspondence and not to contact him. It recorded that he said that he was not living at either of the addresses held by the HCPC and refused to provide his current address. It recorded the Registrant as saying that he did not wish to engage and did not want to return to practice. No further communications had been received.

5. The notice of the substantive hearing was sent to both addresses on 26 March 2018 and 28 March 2018. The hearing bundle was sent to both addresses on 1 May 2018.

6. The Panel was satisfied that the HCPC had fulfilled its obligations and taken all reasonable steps to serve the notice on the Registrant in accordance with the Rules.

7. The Panel was aware that there were two witnesses who were to be called to give evidence, one of whom was in attendance, the other of whom was due to attend for the afternoon of the first day.

8. The Panel concluded that the Registrant’s absence was voluntary, thereby waiving his right to attend. He had not instructed a legal representative to attend on his behalf, nor had he sought an adjournment. Further, given the Registrant’s telephone call of 9 March 2018, stating that he did not wish to engage or receive any correspondence, the Panel was of the view that there was no indication that he would attend a future hearing if the case were adjourned. In light of the Registrant having waived his right to attend, the Panel considered that the public interest for the hearing to take place outweighed any disadvantage to the Registrant in proceeding in his absence.


Background

9. The Registrant is a Radiographer registered with the HCPC.

10. The Registrant was employed through an agency as a Radiographer at Royal Papworth Hospital NHS Foundation Trust (the Trust), a cardio-thoracic specialist hospital. He started working for the Trust in around September 2015, and remained there until 9 January 2017, the date of the incident. His responsibilities included taking chest x-rays.

11. On 9 January 2017, KN, a Trainee Clinical Technologist employed by the East Anglian Regional Radiation Protection Service, and his colleague, FP, were at Papworth Hospital to assess the safety of equipment and to conduct routine servicing, in particular checking output levels of radiation of x-ray equipment. That morning, KN and FP were in the CMU room, which contained an x-ray unit and Computed Radiography Viewer. The Registrant was already in that room, sitting at a computer terminal, when KN and FP arrived to check the equipment.

12. The Registrant was observed by KN to be using an online internet chat room, sending and receiving messages on the computer. KN took two photographs of the computer screen, and reported the matter to CD, the Radiology and Cath Lab Manager, and the police were called.

13. It is alleged that the Registrant was using a chat room called ‘Teens 2017’ and that he was communicating using a female user name, ‘Louise_Mi’, or similar, and was purporting to be a female teenager. It is also alleged that the recipient of the Registrant’s messages was also using a female user name and sending messages suggestive of being a female teenager. Some of the messages exchanged were of a sexual nature.

14. It is further alleged that the Registrant’s actions were misleading and/or dishonest and that they were sexually motivated.

15. The Registrant was arrested and interviewed under police caution. Following the police investigation, no further action was taken against the Registrant.

Decision on Facts

16. On behalf of the HCPC, the Panel heard live evidence from KN and CD. At the time of the incident, KN was a Trainee Clinical Technologist visiting Papworth Hospital to assess the safety of equipment, to conduct routine servicing, and to check output levels of radiation of x-ray equipment.  CD was the Radiology and Cath Lab Operations Manager at the Hosptial and her role involved managing the Radiography Department.

17. The Panel was also provided with a documentary exhibits bundle, which included the witness statements provided to the police by KN and CD; copies of the two photographs of the computer screen taken by KN; the Crime File relating to the police investigation of the Registrant; a transcript of the police interview conducted on 9 January 2017; and a single page of computer activity on 9 January 2017, compiled by the Hospital’s IT Department.

18. The Panel heard and accepted the advice of the Legal Assessor. In respect of the facts, the Panel understood that the burden of proving each individual fact is on the HCPC and that the HCPC will only be able to prove a particular fact if it satisfies the required standard of proof: namely the civil standard, whereby it is more likely than not that the alleged incident occurred.

19. The Panel considered the evidence of KN. He had not met the Registrant before the 9 January 2017 when he observed the Registrant at the computer. The Panel found him to be a credible and reliable witness, who was doing his best to assist the Panel. His police statement, HCPC statement and oral evidence were all broadly consistent. There were minor inconsistencies in respect of timings, and the length of time he had been observing the Registrant, but the Panel did not consider that these undermined the overall credibility of his evidence. The Panel considered that he had been honest in conceding that he could not now recall every word of the messages which he had seen on the computer screen.

20. The Panel found that CD was balanced in her responses, and that she was a credible and reliable witness who was doing her best to assist the Panel, although her evidence was somewhat limited, as she had no direct knowledge of the events.

21. The Registrant did not attend, but the Panel did not hold his non-attendance against him. It had regard to his recorded responses in the police interview held on 9 January 2017 at Parkside Police Station from 22:23 to 23:15. The Panel took into account that the interview was a formal police interview which had been tape recorded, the Registrant had been offered but had declined a legal representative, and he had been cautioned at the outset. The nature of the questions and answers between the Registrant and the police officers was such that the Panel was satisfied that the Registrant had understood the questions put to him and had been candid in his answers. In light of this, the Panel was satisfied that it could rely on the admissions made by the Registrant in that interview.

Particular 1(a)

Whilst registered as a Radiographer and working at Papworth Hospital NHS Foundation Trust between September 2015 and 9 January 2017:

Whilst on duty at work and using a Hospital computer, you accessed online chatroom website(s) and:

a) Purported to be a female under 18 years of age;

22. The Panel finds Particular 1(a) proved.

23. The Panel accepted the evidence of CD that the Registrant was an agency Radiographer who worked at the Trust, based at Papworth Hospital. Although KN did not know the Registrant before 9 January 2017, the Registrant did not dispute in his police interview that he was the person using the computer in the Hospital CMU room on that day. KN stated that the Registrant was the person in the photograph he had taken who was wearing ‘scrubs’. The Panel was therefore satisfied that 9 January 2017 was a working day for the Registrant, who was shown as dressed for work and using the computer in the photograph taken by KN. Therefore the Panel was satisfied the Registrant was on duty at work, and was using a Hospital computer. The Panel also accepted the evidence of KN that he had seen the Registrant at the computer accessing a chat room website called ‘Teens 2017’. KN’s evidence was supported by the photographs he had taken on his mobile telephone of the screen.

24. KN told the Panel that the user name used by the Registrant was ‘Louise_Mi’, or similar, and that in the messages, the Registrant had referenced himself as being of school age, and that ‘my mum’s calling me’.

25. The Registrant, in his police interview, did not dispute that he purported to be a female under the age of 18, and admitted that he may have said he was 15 or 16.

26. In all the circumstances, the Panel was satisfied to the required standard, from the evidence of KN and the Registrant’s admissions in his police interview, that he had accessed the internet chat room purporting to be a female under the age of 18 years of age.

Particular 1(b)

Whilst on duty at work and using a Hospital computer, you accessed online chatroom website(s) and:

b) engaged in inappropriate conversations with unknown persons;

27. The Panel finds Particular 1(b) not proved.

28. The Panel noted the contents of the Crime File relating to the police investigation of the Registrant (the Crime File). Following the police investigation, no further action was taken against the Registrant. The police supervisor recorded on 18 April 2017 that ‘We have no evidence to continue this crime any further forward’. On 19 April 2017, the police supervisor recorded the comment: ‘Despite the fact that we have carried out an extensive investigation we have unfortunately not been able to progress this crime to the CPS. Despite [the Registrant’s] odd behaviour and online fantasy participation there is no evidence to confirm that he as [sic] enticed or tried to engage sexually with any children.’

29. The Crime File recorded that as part of the police investigation an officer visited the ‘e-chats’ website visited by the Registrant and logged in with a female user name to see what details were required. The recorded result was that only a username was required to start accessing several ‘e-chats’ sites including ‘Teens 2017’, as had been described by the Registrant in his police interview. The Officer confirmed that no details or ages were required to enter any chat room. Notwithstanding the name of the chat room, ‘Teens 2017’, the Panel was mindful that there was no evidence that the chatroom was styled to attract under-age teenagers rather than adults seeking to chat with other adults which was what the Registrant said he was looking for in chat rooms. It also had no evidence of the gender or age of the persons with whom the Registrant had been communicating in the chat room on that day.

30. The Panel noted that the Registrant had explained throughout his police interview that he thought that a lot of the time he accessed the chat rooms he would be speaking to men, that it was the role play that he was interested in, and that he was not interested in targeting young girls. He said in the interview that one of the people he had been chatting to on 9 January 2017 had told him that she was 19 years of age. The Panel considered that the Registrant’s account in interview appeared to be supported by the findings of the police investigation as recorded in the Crime File, and had not been undermined by the evidence adduced by the HCPC. The Panel was satisfied it has seen no evidence that the Registrant had an interest in under-age girls.

31. The Panel recognised that the content of the conversations, as described by KN, included matters of a sexual nature from the perspective of young females. However, the Panel concluded that this was taking place in the context of a role play and therefore the conversations were not inappropriate in those circumstances. In the absence of evidence that the unknown persons with whom the Registrant was communicating were, in fact, under the age of 18, whether male or female, the Panel was not satisfied to the required standard that the conversations with those unknown persons were inappropriate.

Particulars 2(a) and 2(b)

Your actions described at particular 1(a) were:

a) misleading; and/or

b) dishonest;

32. The Panel finds Particulars 2(a) and 2(b) not proved.

33. The Panel was satisfied that by purporting to be a female under 18 years of age when communicating on the chat room, the Registrant was providing information which he knew was not correct. However, the Panel did not consider that providing such information was necessarily misleading and/or dishonest. The Panel considered that it was immaterial that the information was incorrect in the context of the ‘online fantasy participation’ (as described by the officer in the Crime File) and role play. In such a context, the Panel considered that individuals may make things up about themselves which would not, in the Panel’s view, be designed to mislead or be considered to be dishonest by the standards of ordinary and decent people.

Particular 3

Your actions described at particulars 1(a) and/or 1(b) were sexually motivated.

34. The Panel finds Particular 3 proved in respect of particular 1(a).

35. The Panel was satisfied from the evidence of KN that the content of the chat room conversations had some sexual content.

36. The Panel had regard to several admissions in the Registrant’s police interview that conversations in online chat rooms may turn sexual so that he could have some fun and that, as part of the role play, he would like to have sexual conversations with men with him playing the role of a girl.

37. In all the circumstances, the Panel was satisfied to the required standard that when the Registrant accessed the chat room on 9 January 2017, purporting to be a female under the age of 18 years old, and engaged in conversations with unknown persons, his actions were sexually motivated.


Decision on Grounds

38. The Panel gave careful consideration to all the evidence and to the submissions made by Ms Mond-Wedd on behalf of the HCPC. The Panel heard and accepted the advice of the Legal Assessor.

39. The Panel considered whether the facts found proved amounted to misconduct. It had regard to the fact that the Registrant had been on duty at work but was not working, rather he was accessing the online chat room from a Hospital computer for personal use and for engaging in sexualised conversations with unknown persons.

40. The Panel considered that the Registrant’s behaviour was unprofessional. The evidence of KN was that the Registrant had been at the computer for all of the time that KN had been in the CMU room checking the equipment, and on the occasions when KN had checked up on the Registrant, the Registrant had been chatting online. This was for a period of at least one hour. KN also told the Panel that during this time another Radiographer had come into the room to ask the Registrant for assistance, but the Registrant had refused, saying that he was busy. In the Panel’s judgement the Registrant’s actions, in engaging in chat room conversations of a sexual nature, while on duty and expected to be working, fell far below the proper standards of conduct and behaviour to be expected of a Radiographer.

41. The Panel was of the view that the Registrant’s actions had breached the following HCPC Standards of conduct, performance and ethics (2016):

• Standard 9.1 – you must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

42. The Registrant’s actions also breached the following HCPC Standards of proficiency for Radiographers (2013):

• Standard 3.1 - understand the need to maintain high standards of personal and professional conduct.

43. In the Panel’s judgement, the Registrant’s conduct was sufficiently serious enough as to amount to misconduct.


Decision on Impairment

44. In considering whether the Registrant’s fitness to practise is currently impaired, the Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note on Finding that Fitness to Practise is impaired and in particular the two elements of impairment, namely the ‘personal component’ and the ‘public component’.

45. The Panel first considered the ‘personal component’.

46. The Panel noted that there were no issues in respect of the Registrant’s clinical practice, and CD had described him as a good Radiographer. The misconduct related to his actions of using a hospital computer during work time to access internet chat rooms for personal, sexual purposes.

47. The Registrant has not attended this hearing, nor has he provided any information in respect of any remediation or insight that he may have gained. While he made admissions in the police interview in respect of his actions, he has not engaged with the HCPC Regulatory process since the early stages. The Panel, therefore, had no information before it that the Registrant had reflected on his personal actions, or recognised how unprofessional he had been, given that he had been at work and was supposed to be working.

48. In all the circumstances, the Panel was of the view that there remained a risk of repetition, and therefore concluded that in respect of the personal component, the Registrant’s fitness to practise is currently impaired.

49. The Panel went on to consider the ‘public component’.

50. The Panel was of the view that the Registrant’s conduct would damage the reputation of the profession in the eyes of the public. The public would not expect a radiographer to access internet chat rooms while at work and on a work computer for his own sexual purposes. He had been distracted for a large part of the morning, and had declined to help another Radiographer who had requested his assistance, saying that he was busy. In the Panel’s view, the nature of the Registrant’s misconduct was such that it would undermine public confidence and call into question the high standards of conduct and behaviour that the profession requires. In these circumstances, the Panel was of the view that public confidence in the reputation of the profession would be undermined if a finding of impairment were not made.

51. Accordingly, the Panel concluded that the Registrant’s fitness to practise is currently impaired in respect of the ‘public component’.


Decision on Sanction 

52. Having determined that the Registrant’s fitness to practise is currently impaired by reason of his misconduct, the Panel next went on to consider whether it was impaired to a degree which required action to be taken on his registration by way of the imposition of a sanction.

53. The Panel took account of the submissions of Ms Mond-Wedd on behalf of the HCPC. It also had regard to all of the material previously before it.

54. The Panel heard and accepted the advice of the Legal Assessor and it exercised its independent judgement. It had regard to the HCPC’s Indicative Sanctions Policy (the Policy) and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive but to protect members of the public and to safeguard the public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.

55. Before considering the individual options open to the Panel, it identified what it considered to be the relevant aggravating and mitigating features in the case.

56. The Panel considered the following to be aggravating factors:

• The Registrant’s conduct had been sexually motivated;

• The Registrant had declined to assist a colleague and instead had continued in the online chat room.

57. The Panel considered the following to be mitigating factors:

• The Registrant had been described by the HCPC witness CD, the Radiology and Cath Lab Operations Manager at the Hospital, as a good Radiographer who had got on well with colleagues;

• The Registrant had worked well as an agency Radiographer for approximately 16 months at the Hospital without any complaint;

• The Registrant had been offered a full-time permanent Band 6 post at the Hospital.

58. The Panel first considered whether to take no action. Given the Panel’s findings at the misconduct stage that the Registrant’s behaviour had been unprofessional in that instead of working he was accessing the online chat room from a hospital computer for personal use and engaging in sexualised conversations, it concluded that to take no action would send out the wrong message to the public and to the profession. It concluded that some form of sanction was necessary to maintain public confidence in the profession and to declare and uphold proper standards of conduct and behaviour. The Panel concluded that mediation was also not an appropriate outcome in this case.

59. The Panel then considered whether to impose a Caution Order. The Panel had regard to the Policy and acknowledged that the factors in the Registrant’s case did not fit easily within the Policy guidance of the circumstances in which a Caution Order may be appropriate. However, the Panel also noted that in the introduction of the Policy it was made clear that the purpose of the Policy was not to establish a fixed ‘tariff’ of sanctions, but to assist Panels to make fair, consistent and transparent decisions.

60. The Panel was of the view that the Registrant’s misconduct on 9 January 2017 was limited. Irrespective of the Registrant’s admissions in the police interview that there had been other occasions when he had accessed online chat rooms at work, the facts found proved related to the occasion on 9 January 2017 which had been witnessed by KN. The Panel had not been satisfied that the content of the Registrant’s conversations was inappropriate. The misconduct related primarily to the unprofessional nature of his behaviour at work, namely not working when he should be, and refusing to assist a colleague when asked, choosing instead to continue his online conversations of a sexual nature.

61. Although the Panel had identified that the Registrant had made some admissions in his police interview, including that he should not have been accessing chat rooms at work, it was mindful of its findings at the Impairment stage. It had identified that the Registrant had not provided any information to the Panel in respect of his current level of insight or remediation, and that as a result the Panel had concluded that there remained a risk of repetition. The Panel therefore considered carefully whether this precluded a Caution Order from being the appropriate and proportionate sanction in the circumstances of this case.

62. The Panel had careful regard to its findings. It considered that it was particularly significant that it had not identified a risk to the public. At the fact finding stage it had been satisfied that it had seen no evidence that the Registrant had an interest in under-age girls, or that he had been targeting under-age girls. Therefore, the in the Panel’s judgement, the risk of repetition related to accessing the internet at work for personal reasons, when he was supposed to be working. In the particular circumstances of this case, the Panel considered that a sanction was required not for the purpose of managing a risk to public protection, but to give weight to the wider public interest of upholding the reputation of the profession, and maintaining public confidence in the regulatory process. In light of this, the Panel considered that it was able to depart from the Policy guidance, which identified that a Caution Order might not be appropriate unless the Registrant had shown insight, the conduct concerned was out of character and the risk of repetition was low.

63. The Panel considered that a Caution Order would manage the risks identified. It would remain on his registration for a considerable period of time. The Panel considered that such an Order would have to be declared to any prospective employer, and would be disclosed in employer checks. Further, the Registrant would know that he would be under scrutiny and monitored in the work place.

64. The Panel considered that a Conditions of Practice Order would be inappropriate in the circumstances of this case. The Panel considered that there were no meaningful practice restrictions which could be imposed on the Registrant’s practice, and workable conditions would be difficult to draft, implement and police.

65. The reality was, therefore, that the next applicable sanction to consider in the hierarchy of sanctions, if a Caution Order was not appropriate, was that of a Suspension Order. The Panel concluded that a Suspension Order would be disproportionate and unduly punitive in the particular circumstances of this case, given that there were no identified public protection issues.

66. In all the circumstances, therefore, the Panel determined that the appropriate and proportionate sanction in this case is a Caution Order for a period of three years. The Panel considered that a three year Caution Order would be sufficient to demonstrate to the public and the profession that the Registrant’s behaviour had been unacceptable.

Order

The Registrar is directed to annotate the register entry of Mr Paul Mitchell with a Caution which is to remain on the Register for a period of 3 years from the date this Order comes into effect.

Notes

 

Hearing History

History of Hearings for Mr Paul Mitchell

Date Panel Hearing type Outcomes / Status
02/07/2018 Conduct and Competence Committee Final Hearing Caution