Mr Brian Kenneth Cornes

Profession: Operating department practitioner

Registration Number: ODP17891

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 19/11/2018 End: 17:00 19/11/2018

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

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Whilst registered as an Operating Department Practitioner with the Health & Care Professions Council, you:

1. On 23 August 2017 at Birmingham Crown Court, were convicted of three counts of making indecent photograph or pseudo-photograph of child, contrary to section 160 of the Criminal Justice Act 1988;

2. By reason of your conviction, your fitness to practise is impaired.

Finding

Preliminary matters:
1. The Panel has been convened to undertake the final hearing of the HCPC’s allegation that the fitness to practise of the Registrant, Mr Brian Cornes, is impaired by reason of a conviction.
2. The Registrant has neither attended the hearing nor been represented at it.
Service:
3. The Panel was satisfied that the letter dated 30 August 2018 sent to the Registrant at his HCPC Registered address constituted good service of the notice of hearing.

Proceeding in Absence:
3. After the Panel stated that it was satisfied that there had been good service of the notice of hearing, the Presenting Officer applied for a direction that the hearing should proceed in the absence of the Registrant.
4. The Panel accepted the advice it received from the Legal Assessor concerning the approach the Panel should take when making its decision on this issue.  The Panel also heeded the advice contained in the HCPTS Practice Note on the topic.  Having carefully considered the matter the Panel concluded that the hearing should proceed in the Registrant’s absence.  The reasons for this decision were as follows:
• In addition to the notice of hearing letter sent to the Registrant, the same information was sent on the same day by email.
• Before the Investigating Committee considered the “case to answer” issue in relation to the allegation on 23 March 2018, the Registrant was invited to make representations for the purposes of that decision.  He did not respond.
• There have been numerous other communications to the Registrant made by and on behalf of the HCPC.  For example, on 22 August 2018, the HCPC’s Solicitors sent the hearing bundle to the Registrant by email, and followed up on 4 September 2018.  Furthermore, between 1 August 2017, and 23 October 2018, a number of hearings were held in relation to a collateral matter, and in relation to each of them, the Registrant was written to in advance of the hearing and notified of the outcome after it.
• Despite all these communications, the Registrant has not engaged with the HCPC in relation to this fitness to practise process.  The Panel has concluded that he has made a conscious decision to disengage from it.
• There has been no application for an adjournment of the present hearing and no suggestion that the Registrant would be likely to engage in the process at a later date if the hearing did not proceed today.
• For all these reasons the clear public interest in the case proceeding outweighed any disadvantage arising from the Registrant’s absence.


Background:
5. The Registrant was employed as an Operating Department Practitioner at the New Queen Elizabeth Hospital in Birmingham.  On 16 December 2016, he was arrested in relation to a suspected offence of making and uploading indecent images of children.  He was subsequently prosecuted for, and convicted of, criminal offences.
6. From the remarks of the sentencing judge it is clear that the images were not only still images but also films, of which a significant number were Category A.  Category A images are defined as those showing penetrative activity and/or images involving sexual activity with an animal or sadism.  The judge described a specifically aggravating factor was that the children were as young as six years old, that there was penetrative activity and it was clear from the images that the child or children were distressed by what was happening to them.  It is also apparent from the remarks of the sentencing judge that the Registrant had been accessing the material for the better part of a year.
7. When the Registrant appeared at the Birmingham Crown Court he pleaded guilty.  On 18 September 2017, the Registrant was sentenced to a Community Order for 3 years, was made the subject of a Sexual Harm Prevention Order for 10 years and ordered to sign the Sex Offenders’ Register for a period of 5 years.

Decision on Facts and Ground:
8. The Panel has been provided with a copy of a Certificate of Conviction from the Crown Court dated 24 November 2017, and it has also been provided with a copy transcript of the sentencing hearing on 18 September 2017.  On the basis of these documents the Panel finds that the HCPC has discharged the burden of proving that the conviction was recorded against the Registrant.
9. No separate consideration arises in relation to the ground as it is the fact of the conviction.

Decision on Impairment:
10. As required, the Panel considered the matter from the perspective of both the personal and public component.
11. So far as the personal component is concerned, the Panel acknowledges that the computer on which the images were found was a personal computer and had no connection with the Registrant’s employment.  The sentencing judge described the Registrant as having expressed genuine remorse, and by the time he was sentenced he had also taken steps to address his offending by engaging with an organisation named the Lucy Faithfull Foundation.  However, the Panel agreed with the sentencing judge’s comment that the offences were very serious.  The Panel concluded that the offences are inherently serious; there were a significant number of both still and moving images; a substantial number were of the most serious category; and, given the period of which the images were accessed, reflected a sustained and determined course of offending.  There has been no engagement by the Registrant in the HCPC’s fitness to practise process, and accordingly no account given by the Registrant of how he views his offending in the context of his professional work.  This leaves the Panel to conclude that he has shown limited insight.  Furthermore, there is no information before the Panel about what, if any, progress the Registrant has made in the 14 months since he was sentenced to address his offending behaviour.  In these circumstances the Panel is not able to conclude that there is at the present time anything other than a significant risk that the Registrant would repeat behaviour of the sort that resulted in the convictions.  For these reasons his fitness to practise is currently impaired upon consideration of the personal component.
12. So far as the public component is concerned, the Panel made the following findings:
• The risk of repetition necessarily represents a risk of harm to the public.  The Registrant was convicted of very serious offences.  Operating Department Practitioners interact with members of the public when they are acutely vulnerable, including unconscious patients young and old.  Given the nature of his convictions, the Panel cannot be confident that patients would not be at risk of harm from him.
• The Panel is satisfied that fair-minded members of the public would be dismayed to know that they could be under the care of a practitioner convicted of these offences who was practising without restriction.  Furthermore, the Registrant is still subject to a Community Order, and be subject to both a Sexual Harm Prevention Order and registration on the Sex Offenders’ Register for several years to come.  To permit the Registrant to return to practise without restriction with these elements of his sentence unexpired would seriously undermine public confidence in the profession of Operating Department Practitioner and the regulation of that profession.
• The Panel would be failing to declare and uphold proper professional standards if it did not mark the matter with a finding of current impairment of fitness to practise.
For these reasons the Panel has concluded that the Registrant is currently impaired upon consideration of the public component.
13. The conclusion of the Panel that the Registrant’s current fitness to practise is impaired upon consideration of both personal and public components has the consequence that the Panel must consider the issue of sanction.

Decision on Sanction:
14. After the Panel announced its decision that the allegation was well founded, the Presenting Officer made submissions on sanction.  She made submissions on the proper approach to the imposition of a sanction and urged the Panel to have regard to the HCPC’s Indicative Sanctions Policy, specifically referring to the three sections between paragraphs 18 and 22, which dealt with considerations involved in this case.  The Presenting Officer did not submit that the Panel should apply any particular sanction.
15. The Panel approached its decision on sanction by accepting that a sanction is not to be imposed to punish a registrant against whom a finding has been made.  A sanction is only to be imposed if it is necessary to protect the public from the risk of harm or required to maintain a proper degree of confidence in the profession and the regulation of it.  As the finding that an allegation is well founded does not automatically require the imposition of a sanction, the first question to be addressed is whether the finding in the instant case requires the imposition of a sanction.  If it does, then the available sanctions must be considered in an ascending order of seriousness until reaching one that sufficiently addresses the issues of public protection and maintains confidence.  As the finding in the present case is a conviction allegation, the full sanction range up to, and including, striking off is available.
16. The Panel began its consideration by identifying the aggravating and mitigating factors.  The aggravating factors are those already mentioned: the very serious offences, the grave nature of the category of images involved and the lengthy period over which the behaviour was indulged in.  In the judgement of the Panel, the mitigating factors were the fact that the Registrant admitted the offences and sought professional help with regard to his behaviour.
17. The convictions and the behaviour upon which they were based are far too serious to result in no further action being taken.  It follows that a sanction is required.  A caution order would neither protect the public from the risk of harm nor would it reflect the gravity of the matter.  The Panel was also satisfied that a conditions of practice order was not appropriate.  It would not sufficiently reflect the seriousness of the Registrant’s offending.  No workable condition could be imposed because any condition that afforded sufficient public protection would require such direct supervision, the Registrant would have no autonomous professional responsibility.  Furthermore, the lack of engagement on the part of the Registrant has the consequence that the Panel cannot be satisfied that he would comply with any conditions imposed.
18. The Panel next considered whether the appropriate sanction should be one of suspension.  An order of suspension would protect the public for the duration of the order.  However, the Panel is satisfied that, irrespective of the mitigation, the convictions are such that suspension, even for the maximum period, would be insufficient to maintain public confidence or professional standards. In addition, as has already been explained, the Court orders imposed on the Registrant as a result of his sentence will run for many years, and the Panel has concluded that his continued registration is incompatible with that sentence and the Court orders. 
19. The Panel has therefore concluded that the only appropriate sentence is one of striking off. 

Order

The Registrar is directed to strike the name of Brian Kenneth Cornes from the Register on the day this Order comes into effect.

Notes

Right of Appeal:
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.
Under Article 29(10) of the Health and Social Work Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you.  The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

European alert mechanism:
In accordance with Regulation 67 of the European Union (Recognition of Professional Qualifications) Regulations 2015, the HCPC will inform the competent authorities in all other EEA States that your right to practise has been prohibited.
You may appeal to the County Court against the HCPC’s decision to do so.  Any appeal must be made within 28 days of the date when this notice is served on you.  This right of appeal is separate from your right to appeal against the decision and order of the Panel.
Interim Order:
The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.  This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

Reasons for making the interim order:
(1) The Panel first considered whether it was appropriate to consider the HCPC’s application for an interim order in circumstances where the Registrant was not present.  The Panel decided that the notice of hearing letter dated 30 August 2018, which informed the Registrant that an interim order might be imposed in the event that his right to practise is removed, afforded the Registrant an opportunity to make representations on the issue had he wished to do so.  There were no such representations, and the Panel concluded that it was necessary to consider the matter in the Registrant’s absence.
(2) The Panel approached the issue of an interim order by accepting that the default position established by the legislation is that when a substantive striking off order is made, there will be no restriction on a registrant’s ability to practise while his or her appeal rights remain extant.
(3) However, the Panel concluded that the risk of repetition with the consequential risk of harm made an interim order necessary for the protection of members of the public.  It also found that the public interest considerations identified in its substantive decision required an interim order otherwise in the public interest.
(4) No conditions could be imposed on an interim basis that would address the public safety and public confidence issues necessitating an interim order.
(5) Accordingly, an interim order is required.  That order should be for the maximum period of 18 months lest there is an appeal against the Panel’s decision.  That period is proportionate as it will automatically fall away if no appeal is made within the initial 28 day period during which the Registrant can make an appeal.

Hearing History

History of Hearings for Mr Brian Kenneth Cornes

Date Panel Hearing type Outcomes / Status
19/11/2018 Conduct and Competence Committee Final Hearing Struck off