Mr Adam Durnan

Profession: Radiographer

Registration Number: RA72777

Interim Order: Imposed on 15 Dec 2017

Hearing Type: Final Hearing

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

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

 

1. On 23 November 2017, at Colchester Magistrates Court, you were convicted of 'Assault by Beating' contrary to section 39 of the Criminal Justice Act 1988.

 

2. By reason of your conviction, as set out in particular 1, your fitness to practice is impaired.

 

Finding

Preliminary Matters

Service of Notice

1. The Panel had information before it that notice of today’s hearing dated 4 July 2018 was sent to the Registrant’s address on the Register on the same date by first class post. The Panel accepted the advice of the Legal Assessor and was satisfied that service had been effected in accordance with Rules 3 and 6 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules).

Proceeding in the Registrant’s Absence

2. Mr Dite, on behalf of the HCPC, applied for the Panel to proceed in the absence of the Registrant today. Mr Dite referred to a “Response pro forma” document dated 3 May 2018 which was completed and signed by the Registrant. In that document, the Registrant confirmed that he admits the facts alleged, that he does not intend to appear in person at today’s hearing, and that he does not intend to be represented. In addition, Mr Dite informed the Panel that the Registrant had, in an email dated 17 July 2018, confirmed receipt of the hearing bundle, and that there has been no communication from him since. Mr Dite submitted that the Registrant had voluntarily absented himself.

3. The Panel took into account the HCPTS Practice Note entitled “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor. The Panel was aware that the discretion to proceed in the absence of a registrant should be exercised with the utmost care and caution. The Panel was of the view that the Registrant has clearly indicated that he will not be attending and has signed the “Response pro forma form” to this effect. There is no indication that an adjournment would secure the Registrant’s attendance at a future date on the basis of his response. The Panel took into account the potential disadvantage to the Registrant if it were to proceed. However, taking into account the position taken by the Registrant, the Panel was satisfied that it is in the public interest, as well as being fair to the Registrant, for today’s hearing to proceed expeditiously.

4. The Panel therefore decided to proceed today.


Background

5. The Registrant is a registered radiographer.
 
6. At the time of the incident referred to in the Allegation, the Registrant was employed at Addenbrooke’s Hospital, Cambridge University Hospitals NHS Foundation Trust as a radiographer. On 7 June 2017 the Registrant referred himself to the HCPC and stated that he had been arrested on 4 June 2017 and released on bail pending further enquiries.

7. On 23 November 2017 the Registrant pleaded Guilty to the offence of Assault by Beating. He was sentenced to 3 months’ imprisonment suspended for 1 year, a Rehabilitation Activity Requirement of up to 15 days and an Unpaid Work Requirement of 150 hours within 1 year, and was ordered to pay the victim compensation of £1000.

8. Following his conviction, the Registrant resigned from his post on 21 December 2017.


Decision on Facts

9. The Panel was aware that the burden of proof lies on the HCPC entirely to prove the Allegation to the civil standard, namely the balance of probabilities.

10. The Panel heard the submissions of Mr Dite who relied on the Registrant’s admission, as well as the certified copy of the memorandum of conviction. Mr Dite referred to Rule 10(1)(d) of the Rules  which states that:

“a certified copy of the certificate of conviction…shall be admissible as proof of that conviction and of the findings of fact upon which it was based”.

11. The Panel took into account the HCPTS Practice Note entitled “Conviction and Caution Allegations”, and accepted the advice of the Legal Assessor.

12. The Panel found the Allegation proved on the basis of the certified copy of the memorandum of conviction, as well as the Registrant’s admission to the facts of the HCPC Allegation in the “Response pro forma” document dated 3 May 2018 and signed by the Registrant.

13. The Panel therefore found the facts proved.


Decision on Grounds and Impairment

14. Having found the factual particular proved, which, as a conviction, forms the statutory ground upon which a finding of impairment may be based, the Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired.

15. The Panel took into account the submissions of Mr Dite that the Registrant’s fitness to practise is currently impaired.

16. There were no submissions from the Registrant before the Panel.

17. The Panel accepted the advice of the Legal Assessor who referred to CHRE v (1) NMC (2) Grant [2011] EWHC 927. The Panel took into account the HCPTS Practice Note entitled “Finding that Fitness to Practise is ‘Impaired’”. The Panel was aware that impairment is a matter for its own independent judgment and that public protection and the wider public interest should be considered.

18. In considering the matter of impairment, the Panel relied on the memorandum of conviction for the findings of fact upon which the conviction was based. That document states as follows:

“Reason for custody: Frightening attack at night on a vulnerable female who was pursued by the defendant and tackled to the ground. Offence has caused great harm to the victim.”

19. While the MG5, otherwise known as the police summary or report, was also provided to the Panel, the Panel placed little weight on this document, on the basis that it is a summary of the evidence obtained, rather than the evidence itself.

20. The Panel took into account the Registrant’s guilty plea and his self-referral to the HCPC. In his email to the HCPC dated 24 November 2017, the Registrant indicates that he was advised to plead Guilty by his solicitor, and the Panel was of the view that he had little choice but to refer himself to the HCPC. In the Panel’s view, there is no evidence of his insight into his wrongdoing and reflection about it. Nor is there any indication of remorse.

21. The Panel also took into account an email from the Registrant dated 24 November 2017 to the HCPC which states as follows:

“Despite my solicitor arguing that my case should be categorised as a Level 2 medium level of offence due to the low injuries sustained by victim [sic] (grazed knees), the layman council decided based on the advice of the legal adviser to categorise my offence as a Level 1 high level offence because of the element of fear the woman experienced…”

22. In the Panel’s view, the Registrant presents this information in a detached and matter of fact manner, and there is no indication of any remorse or any understanding of the impact on the victim or his profession.

23. The Panel also noted that the suspended prison sentence continues to run until 23 November 2018, as does the period for which the rehabilitation and unpaid work requirement was ordered by the Court. The Panel has no information before it as to the Registrant’s compliance with those requirements or any steps taken to address his criminal behaviour.

24. The Panel took into account the questions formulated by Dame Janet Smith in the Fifth Shipman report, as set out in the case of Grant, which are presented as a test of impairment and ask whether a practitioner:

“a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or

c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or

d. has in the past acted dishonestly and/or is liable to act dishonestly in the future."

25. The Panel decided that, while the incident which led to the criminal conviction was an isolated one, it demonstrated a predatory attitude to a vulnerable female at night, and while not committed against a service user at work, the Panel was of the view that by reason of such an attitude held and demonstrated by him, the Registrant did in the past present an unwarranted risk of harm to patients.  

26. Considering the other questions of Dame Janet Smith, the Panel was of the view that by receiving the conviction, and taking into account its nature and circumstances, the Registrant was in breach of the following provisions of the HCPC Standards:

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

27. As such the Registrant has brought the profession into disrepute by his actions and breached a fundamental tenet of the profession.

28. In light of the lack of any evidence of insight, of remorse, reflection or remediation shown by the Registrant, the Panel was satisfied that the risk of repetition was high, and therefore the Registrant is liable to put patients at unwarranted risk of harm, to bring the profession into disrepute and to breach fundamental tenets in the future.

29. In light of the Registrant’s past actions, as set out above, which led to a suspended sentence of imprisonment, and the ongoing real risk to patients and risk of undermining public confidence, the Panel was satisfied that a reasonable well-informed member of the public, with knowledge of all the facts and circumstances, would be gravely concerned if the Registrant were to be allowed to practise without restriction. The Panel was therefore satisfied that the need to uphold proper professional standards and to maintain public confidence in the profession would be undermined if a finding of impairment were not made.

30. The Panel therefore found the Registrant’s current fitness to practise to be impaired on the basis of both the personal and public components.


Decision on Sanction

31. The Panel heard the submissions of Mr Dite, read the HCPC’s Indicative Sanctions Policy (ISP), and accepted the advice of the Legal Assessor. The Panel was aware that the aim of any sanction is not to be punitive. Rather, the aim is to uphold the public interest, which includes public protection. Sanction is a matter for the independent judgment of the Panel. The Panel took into account the principle of proportionality in coming to its decision on sanction.

32. In the light of the information before the Panel, and the lack of any submissions by the Registrant, the Panel was unable to identify any mitigating factors.

33. The Panel identified the following aggravating factors:
i. the offence was so serious that it passed the custody threshold; the reason for custody was stated by the Bench to be a:
“frightening attack at night on a vulnerable female who was pursued by the defendant and tackled to the ground. Offence has caused great harm to the victim”;
ii. no indication of insight or remorse by the Registrant;
iii. a dismissive attitude shown by the Registrant towards his offending in his email dated 24 November 2017 (see paras. 21 and 22 above);

34. The Panel was mindful of the lack of any representations or explanation from the Registrant which were submitted for the purpose of these proceedings. As already determined, there is no evidence of insight from the Registrant into his criminal offending nor is there evidence of any attempt to address the wrongdoing.

35. The Panel was of the view that mediation is not appropriate in respect of a criminal conviction, nor would such an option address the public protection concerns. The Panel discounted taking no further action and a Caution Order because the conviction is too serious for such sanctions, there is a real risk of repetition, and such sanctions would not restrict the Registrant’s practice. Nor would such sanctions satisfy the public interest in this case. In coming to these conclusion, the Panel bore in mind para. 17 of the ISP and was satisfied that it is applicable to the circumstances of this case. That paragraph states:
“Where a registrant who has been convicted of a serious criminal offence and is still serving a sentence at the time the matter comes before a Panel, normally the Panel should not permit the registrant to resume unrestricted practice until that sentence has been satisfactorily completed.”

36. The Panel next considered a Conditions of Practice Order but was satisfied that no conditions could be formulated which would address the risk of repetition of the events in question, the risk to patients as identified above, or be sufficient to maintain public confidence in the profession and the regulatory process.

37. The Panel next considered a Suspension Order and considered para. 39 of the ISP:
“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”.

38. Further para. 41 of the ISP states:
“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.”

39. The Panel has already determined there is a real risk of repetition of the behaviour in question and in light of the Registrant’s lack of engagement with the substantive hearing, he is either unable or unwilling to take the necessary steps to demonstrate insight and remediation. In addition, the Panel took into account the Registrant’s email to the HCPC dated 24 December 2017 in which he stated that following his resignation from his previous role as a radiographer on 21 December 2017, he will not be looking for work as a radiographer in the future. The Registrant’s lack of engagement with this hearing, the lack of evidence of any insight, the lack of indication that the Registrant wishes to return to the profession, and the ongoing risk of repetition, led the Panel to conclude that suspension would not be appropriate or sufficient to protect the public or maintain public confidence.

40. The Panel considered paragraphs 47, 48 and 49 of the ISP which state:
“ 47. 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.
48. 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. A registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate.
49. Striking off may also be appropriate where the nature and gravity of the allegation are such that any lesser sanction would lack deterrent effect or undermine confidence in the profession concerned or the regulatory process. Where striking off is used to address these wider public protection issues, Panels should provide clear reasons for doing so. Those reasons must explain why striking off is appropriate and not merely repeat that it is being done to deter others or maintain public confidence.”

41. In the Panel’s view, the Registrant committed a serious and deliberate predatory act on a vulnerable female at night. The Registrant was sentenced on the basis of a “frightening attack” at night, which caused “great harm” to the victim. The Panel took into account the lack of explanation or indeed any submissions from the Registrant in respect of this hearing, the lack of any indication from the Registrant that he wishes to return to the profession, the lack of any evidence of insight or resolution of the failures found proved, the lack of any evidence of compliance with the rehabilitation and unpaid work elements of the sentence and the ongoing risk of repetition and ongoing risk to patients. The Registrant is either unable or unwilling to demonstrate insight or remediation. All of these factors led the Panel to decide that any lesser sanction would not be sufficient to protect the public, it would lack deterrent effect, and would undermine confidence in the profession concerned or the regulatory process. Striking off is the only way in which the public can be protected, and which can uphold the wider public interest.

42. In coming to its decision, the Panel took into account the principle of proportionality, and the impact that such a sanction will have on the Registrant’s right to practise his profession, as well as the likely reputational and financial impact. However, the Panel decided that the need to protect the public and uphold the public interest outweighed the Registrant’s interests in this regard.

43. The Panel therefore decided to impose a Striking-Off Order.

Order

That the Registrar is directed to strike the name of Mr Adam Durnan from the Register on the date this order comes into effect.

Notes

No notes available

Hearing History

History of Hearings for Mr Adam Durnan

Date Panel Hearing type Outcomes / Status
07/09/2018 Conduct and Competence Committee Final Hearing Struck off