Mr Ermias Haile

Profession: Radiographer

Registration Number: RA68994

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 23/04/2019 End: 17:00 30/04/2019

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

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

Whilst registered with the Health and Care Professions Council as a Radiographer, you:
1. On an unknown date in or around June 2017, and while working within the Radiography Department at the Prince Charles Hospital made inappropriate comments to Colleague 1, in that you:
a) said to Colleague 1: “do you think I’m too old to date you?” or words to that effect;
b) said to Colleague 1: “if you were single, I would date you”, or words to that effect;
c) said to Colleague 1: “I’m thinking of buying underwear for my girlfriend from Victoria’s Secret and I am picturing it” and went on to say: “now I’m picturing you in it”, or words to that effect.

2. On unknown dates in September and/or October 2015 and while working at Barnsley Hospital made inappropriate comments to and/or acted inappropriately towards Colleague 2, in that you:
a) offered Colleague 2 a sweet and advised her that; “that is how I taste”, or words to that effect;
b) Said to Colleague 2: “Can I stamp your breasts?” or words to that effect whilst holding a stamp used on patient forms.

3. On an unknown date between January 2017 and 2 July 2017 and while working within the Radiography Department at Prince Charles Hospital made inappropriate comments to and/or in relation to Colleague 2, in that you:
a) offered that Colleague 2 to sit on your lap;
b) advised another member of staff that Colleague 2 had asked you whether she could sit on your lap, when this was not the case.
c) asked Colleague 2 to go on a date and suggested that you get married;
d) said to Colleague 2: “you look so much more beautiful when you don’t wear makeup”, or words to that effect.

4. On a date between 10 April and 21 April 2017 while working within the Radiography Department at Prince Charles Hospital made an inappropriate comment to Colleague 3, in that you offered to give her a neck massage;

5. Your actions at 1c, 2a, 2b, 3a and 4 were sexually motivated.

6. The matters set out at paragraphs 1- 5 amount to misconduct.

7. By reason of your misconduct your fitness to practise as a Radiographer is impaired.

Finding

Preliminary Matters

Application to amend the Allegation

1. Mr Foxsmith applied to amend the particulars of the Allegation. The amendments sought were as follows:

Whilst registered with the Health and Care Professions Council as a Radiographer, you:

1. On an unknown dates between 22 August 2016 and 2 July 2017 in or around June 2017, and while working within the Radiography Department at Royal Glamorgan Hospital the Prince Charles Hospital made inappropriate comments to Colleague 1, in that you;  

a) asked said to Colleague 1: whether you ‘were too old to date her’, “do you think I’m too old to date you?” or words to that effect;

b) told said to Colleague 1: you would be ‘willing to go on a date with her’ , “if you were single, I would date you”, or words to that effect;

c) described how you were ‘thinking about buying underwear for your girlfriend and you were picturing it’, or words to that effect, and then that you ‘were now thinking about Colleague 1’, or words to that effect.

c) said to Colleague 1: “I’m thinking of buying underwear for my girlfriend from Victoria’s Secret and I am picturing it” and went on to say: “now I’m picturing you in it”, or words to that effect.

2. On unknown dates in September and/or October 2015 and while working at Barnsley Hospital made inappropriate comments to and/or acted inappropriately towards Colleague 2, in that you:

a) offered Colleague 2 a sweet and advised her that; “that is how I taste”, or words to that effect;

b) In or around January 2017, pretended to stamp the breasts of Colleague 2. Said to Colleague 2: “Can I stamp your breasts?” or words to that effect whilst holding a stamp used on patient forms.

3. On an unknown date between January 2017 and 2 July 2017 and while working within the Radiography Department at Royal Glamorgan Hospital Prince Charles Hospital made inappropriate comments to and/or in relation to Colleague 2, in that you:

a) offered that Colleague 2 to sit on your lap;

b) advised another member of staff that Colleague 2 had asked you whether she could sit on your lap, when this was not the case.

c) asked Colleague 2 to go on a date and suggested that you get married;

d) said to Colleague 2: “you look so much more beautiful when you don’t wear makeup”, or words to that effect.

4. On a date between 10 April and 21 April 2017 while working within the Radiography Department at Royal Glamorgan Hospital Prince Charles Hospital made an inappropriate comment to Colleague 3, in that you offered to give Colleague 3 her a neck massage;

5. Your actions at 1c, 2a, 2b, 3a and 4 were sexually motivated.

6. The matters set out at paragraphs 1- 5 amount to misconduct.

7. By reason of your misconduct your fitness to practise as a Radiographer is impaired.

 

2. Mr Foxsmith explained that the amendments were sought as the detail of the evidence of the HCPC’s witnesses had been clarified when they made their statements for the HCPC case. He submitted that the amendments provided clarification and accuracy to the particulars and did not increase the gravity of the Allegation against the Registrant. The scope of the allegation of sexual motivation in particular 5 had been reduced in that it was not now made in respect of particulars 1a, 1b, 2b, 3b, 3c and 3d. He submitted that no prejudice would be caused to the Registrant by the amendments.

3. Mr Weinbren on behalf of the Registrant did not oppose the amendments sought.

4. The Panel took advice from the Legal Assessor. The Panel considered that the amendments sought provided clarification of the particulars in a number of respects, including the dates when the incidents were alleged to have occurred and the location. They also specified more clearly the comments, which the HCPC alleged the Registrant had made to the three colleagues concerned. The majority of the amendments were not substantive and did not add anything new to the particulars. They would ensure that the particulars better reflected the evidence. 

5. Particular 5 was to be amended so that the HCPC alleged sexual motivation in respect of particulars 1c, 2a, 2b 3a and 4, rather than in respect of all the particulars. This amendment was not adverse to the Registrant, in that it reduced the scope of the allegation of sexual motivation.

6. The Panel was satisfied that all the amendments sought provided clarification of the HCPC’s case which would assist the Registrant in responding to the Allegation. The Registrant had been given notice of the HCPC’s intention to amend these matters since the HCPC’s letter of 30 November 2018 and so had had time to prepare his response to them and he did not object to the changes.

7. The Panel was satisfied that no prejudice or potential injustice was caused to the Registrant and that it was appropriate for the amendments to the Allegation to be made. 

Application for Special Measures in respect of Colleague 3
8. Mr Foxsmith applied for Colleague 3 to give evidence from behind a screen because the Allegation was sexual in nature, Colleague 3 was the alleged victim and she was therefore entitled under the HCPC Conduct and Competence Committee Rules 2003 (“the Rules”) to be treated as a vulnerable witness. Colleague 3 had raised this issue with the HCPC in April 2019, not having done so when a similar direction for Special Measures was sought and granted in advance of the hearing date in respect of Colleagues 1 and 2.

9. Mr Weinbren said that there was an objection on behalf of the Registrant due to the last-minute nature of the application in respect of Colleague 3. He accepted that the grounds for Special Measures for Colleague 3 were established.

10. The Panel took advice from the Legal Assessor. The Panel was referred to the HCPTS Practice Note entitled “Special Measures” and reminded of the relevant provisions of the Rules in respect of vulnerable witnesses and the use of Special Measures. Rule 10A(2) provides that subject to any representations from the parties and the advice of the Legal Assessor, the Committee may adopt such measures as it considers desirable to enable it to receive evidence from a vulnerable witness. The basis for Colleague 3 to be regarded as vulnerable was whether the quality of her evidence was likely to be adversely affected without Special Measures and, under Rule 10A(1)(e), whether the complaint was of a sexual nature and she was the alleged victim. The Special Measure applied for was the use of a screen, as provided for by Rule 10A(3)(d).

11. The Panel was satisfied that Colleague 3 was entitled to be treated as vulnerable due to the nature of the allegation. It noted in her email of 16 April 2019 that Colleague 3 said that she would feel nervous and was concerned about the possibility of feeling intimidated without the use of a screen when giving evidence.

12. The Panel considered the objection raised by Mr Weinbren. It did not consider that the late nature of the application outweighed the need for the special measure and did not consider that the use of a screen for Colleague 3 would cause any unfairness or prejudice to the Registrant. When asked, Mr Weinbren had not identified any prejudice which would be caused. 

13. The Panel was of the view that it was in the interests of justice that the witness should be able to give her best evidence. The Panel accepted the application and directed that a screen should be used when Colleague 3 gave her evidence.

14. The Panel received the HCPC’s 14-page bundle of evidence, the Registrant’s 23-page bundle of evidence and written skeleton submissions on behalf of the HCPC.

15. The Registrant denied the allegation, including all the particulars alleged.

Background
16. Between 22 August 2016 and 2 July 2017, the Registrant worked as a Band 6 locum Diagnostic Radiographer in the Radiology Department at Prince Charles Hospital in Merthyr Tydfil. Some time prior to this, during 2015, he had worked as a locum Radiographer at Barnsley General Hospital. 

17. In or around June 2017, a Band 5 Radiographer, Colleague 1, made a complaint that during her employment at Prince Charles Hospital the Registrant had made a series of inappropriate comments to her, some of which were of a sexual nature.

18. Following this, Superintendent Radiographer PJ was informed by Radiology staff of concerns that the Registrant had previously made inappropriate comments to two students during their placements at the hospital, Colleague 2 and Colleague 3. The colleagues were spoken to and they provided a statement about incidents involving them. 

19. Colleague 2 also described that she had worked with the Registrant on a previous placement at Barnsley Hospital in around September or October 2015 and he had also made inappropriate comments to her during that placement.

20. On 5 October 2017, the Registrant attended an informal meeting with PJ to discuss the allegations. The Registrant denied all the allegations. The concerns were subsequently referred to the HCPC on 14 November 2017. 

The HCPC’s Case
21. Colleagues 1, 2 and 3 gave evidence from behind a screen in accordance with directions for Special Measures. The following are summaries of the key points from their evidence:

22. Colleague 1 gave evidence in respect of particulars 1a, b and c. She confirmed the truth of her witness statement and the comments which she alleged the Registrant had made to her.

23. Colleague 1 had been working at Prince Charles Hospital in Merthyr Tydfil as a Band 5 Radiographer since August 2016. She had worked on a number of occasions on the same shift as the Registrant. She explained that the comments in question were made during the first night shift she worked with the Registrant in June 2017. He and she were the only Radiographers on duty. As a Band 6 Radiographer, the Registrant was in charge of the shift.

24. Colleague 1 said that the comments by the Registrant about dating her (particulars 1a and b) were made whilst they were between patients and were in the X-ray viewing area. The comments came “out of the blue”. They made Colleague 1 feel uncomfortable.

25. The comments about buying underwear for his girlfriend and visualising Colleague 1 wearing it (particular 1c) were made later the same night during a break when she and the Registrant were in the staff room. The room was locked so that patients could not access it. Colleague 1 said that the Registrant had closed his eyes when he made the comments and it made her feel very uncomfortable and confused and “a bit creeped out”. She told the Registrant that they should not talk any more during the rest of the shift. Colleague 1 had spoken to her boyfriend after the shift and another Radiographer the following week. Having returned to work after several days, Colleague 1 spoke to the latter who had advised that she raised the matter with her manager. This was around 7 days later because she did not want to work another night shift alone with the Registrant.

26. In cross-examination Colleague 1 denied that she had made the allegations up in order that the Registrant would have to leave his position at Prince Charles Hospital and she would obtain his Band 6 position. She said she got on well with the Registrant. She also denied that she had spoken with Colleagues 2 and 3 and encouraged them to make false allegations to support her account. She said she knew them, but not very well, but was friendly with them at work. Colleague 1 said that she had never discussed her complaint with them and had not known until recently that they were the other complainants against the Registrant in the HCPC case.

27. Colleague 2 gave evidence in respect of particulars 2a and b and 3a, b, c, and d. She confirmed the truth of her witness statement and the comments which she alleged the Registrant had made to her.

28. Colleague 2 had first met the Registrant when she was undertaking her course at Sheffield Hallam University and was on a four-week placement at Barnsley General Hospital in September/October 2015. During her placement she had worked regularly with the Registrant. Colleague 2 said that on one occasion, the Registrant offered her a sweet and asked her if she liked these sweets. She said yes. He then said “That’s how I taste” (particular 2a) when they were alone in an X-ray room. She had felt nervous and uncomfortable and went red in the face. Colleague 2 said she understood the comment as containing sexual innuendo.

29. Colleague 2 said that on another occasion the Registrant asked if he could stamp her breasts with a stamp which was used to record the date of a patient’s Last Menstrual Period (an “LMP stamp”) in order to confirm that the patient was not pregnant (particular 2b). Colleague 2 said she went red, was embarrassed, uncomfortable and intimidated and she left the room. This took place in the X-ray room where a patient and another colleague were present but on the opposite sides of the lead screen and they did not appear to hear the alleged comment. 

30. Colleague 2 left her course at Sheffield Hallam University. She returned to her studies several months later, at Cardiff University in January 2017. She told the Panel that on commencing a placement at Prince Charles Hospital, the Registrant was the first person she saw as he was now working at that hospital. She said she was shocked, she had a lump in her throat and her heart sank. She was upset at seeing him there and rang her mother. In cross-examination it was put to her that the first person she saw was in fact Mr JM and that when he indicated the Registrant, she went over to him and started chatting and did not appear to be upset. Colleague 2 said that in fact it was on an introductory “tour” of the unit that she first noticed the Registrant and it was later, after she had recovered from the initial shock, that she saw Mr JM and spoke to the Registrant.

31. In relation to the alleged occasion when the Registrant offered that she should sit on his lap and then told a colleague she had asked to do this (particulars 3a and b), Colleague 2 said the latter comment had made her particularly angry because she wanted to be professional and to impress her colleagues during her placement. She said that she considered that these comments by the Registrant were inappropriate, but she had not considered them to be sexual in nature. She was more upset about how her colleagues would view her as a result of the comments.

32. Colleague 2 described how on further occasions the Registrant asked her to go on a date with him and suggested they should get married (particular 3c) and had told her “you look so much more beautiful when you don’t wear make-up” (particular 3d).

33.  Colleague 2 confirmed in cross-examination that she was certain it was the Registrant who had offered her a sweet and made the comments to her and not another member of staff. She was clear as to her recollection of the words said and she had been able to hear them clearly.

34. In respect of particular 2b, it was put to Colleague 2 that there was no LMP stamp in use at Barnsley Hospital and that a form was used to record LMP. Colleague 2 maintained that such a stamp was used and that the incident had occurred. In respect of the alleged comments in particulars 2a and 2b, Colleague 2 said that her perception was that the words had a connotation of sexual innuendo and she felt embarrassed and uncomfortable.

35. Colleague 2 said that she had not reported these two incidents at Barnsley Hospital because she was a student at the time, young embarrassed and lacked confidence. Colleague 2 said that for a number of reasons she had not been happy on the placement at Barnsley and had left her course at Sheffield Hallam University. The Registrant’s actions had contributed to her unhappiness.

36. Colleague 2 confirmed that she did not report any of the incidents at the time they occurred. After she had completed her placement at Prince Charles Hospital, she had been contacted by Cardiff University and subsequently spoke to Mr PJ who told her that Ms SR, Superintendent Radiographer, had noticed awkward and strange interactions between Colleague 2 and the Registrant during her placement at Prince Charles Hospital. He asked Colleague 2 if she was willing to make a statement, which she did.

37. In cross-examination it was put to Colleague 2 that she was good friends with Colleagues 1 and 3 and had discussed the incidents with them. Colleague 2 agreed she was friends with Colleague 3, not good friends with Colleague 1 but was friendly with her at work. She said she had not discussed the incidents with them. She denied a number of matters put to her on behalf of the Registrant, including that she told him she had been travelling in Europe with friends in the break between her courses. She said that she had not travelled across Europe at all.

38. Colleague 3 gave evidence in respect of particular 4. She confirmed the truth of her witness statement dated 6 December 2018 and the comment which she alleged the Registrant had made to her.

39. Colleague 3 told the Panel that she had undertaken a student placement at Prince Charles Hospital and that between 10 and 21 April 2017, she had been working in the CT (Computerised Tomography) Department with the Registrant. In relation to the incident described in particular 4, she described how the Registrant had been behind her whilst she sat at the computer looking at the CT scan and he had made the comment suggesting that he give her a neck massage. Colleague 3 said there had been no preceding conversation which might have led to the comment. She said that there were two other Radiographers in the CT room, but neither commented at the time. Colleague 3 said she had felt awkward and had turned around and said “no thanks” and had wanted to concentrate on the scanning process.

40. She had not raised a complaint at the time and wanted to focus on her placement, which was nearly finished. She did not make a complaint until she was asked later by Mr PJ if there had been any incidents during her placement. She said when the matter was raised with her, she realised that the comment made by the Registrant offering to massage her neck had been unprofessional and with hindsight she feels she should have reported it.

41. Under cross-examination, Colleague 3 said she had not discussed the issues in this case with either Colleague 1 or 2. She knew Colleague 1, but was not close friends with her. She had not known Colleague 1 was involved in this case until the hearing. She was friends with Colleague 2. She had known Colleague 2 was also coming to the HCPC hearing, but they had made a point of being professional and not discussing any details about their evidence.

Decision on Submission of No Case to Answer

42. Following the close of the HCPC’s case on the factual evidence, Mr Weinbren, on behalf of the Registrant, made a submission of no case to answer in respect of all the particulars of the Allegation, i.e. to the HCPC’s case as a whole.

43. Mr Weinbren submitted that the evidence produced by the HCPC was weak in that it relied on the uncorroborated testimony of one witness per allegation. No evidence had been produced by the HCPC in support of the accounts of each of the three witnesses, such as accounts from other persons who the evidence suggested were present during the incidents or who had been told about the allegations, but who it appeared had not been asked to give evidence.

44. Mr Weinbren further submitted that there was evidence to suggest the three witnesses had colluded to falsify their accounts: he referred to the witnesses’ knowledge of each other and the similarity of certain language used in their accounts, for example both Colleagues 1 and 2 used the term “creepy” or “creeped out”. He also submitted that the witnesses had changed and added to their written statements during their oral evidence, for example Colleague 2 said in her oral evidence that the comment that she looked more beautiful without make-up had been made on more than one occasion, whereas her witness statement referred to one specific occasion. He submitted that the witnesses’ inability to give specific dates also indicated that the allegations were false.

45. Mr Weinbren’s overall submission was that the HCPC’s evidence as a whole was insufficient to amount to a case to answer.

46. Mr Foxsmith, on behalf of the HCPC, opposed the submission. He submitted that the HCPC’s evidence was clear, cogent and consistent and supported all of the particulars of the Allegation. He submitted that the HCPC had produced evidence in support of each element of the factual particulars of the Allegation. The three witnesses called on behalf of the HCPC had been honest and consistent and had maintained the truth of their evidence when challenged in cross-examination. They had not resiled from their accounts. He submitted that a number of the specific issues raised in Mr Weinbren’s submission were misconceived, for example there was no requirement for supporting or corroborative evidence, nor was the witnesses’ inability to provide specific dates conclusive. Where there were potential conflicts of evidence, for example in relation to whether a Last Menstrual Period (LMP) stamp was in use at Barnsley Hospital at the relevant time, these were matters to be determined once the Panel had heard the Registrant’s case – at this stage, there was evidence before the Panel that there was such a stamp in use. Mr Foxsmith submitted that there was clear evidence upon which the Panel could find the allegations proved.

47. The Panel took advice from the Legal Assessor. She reminded the Panel of the guidance set out in the criminal case of R v Galbraith [1981] 1 WLR 1039 in which the Court of Appeal set out guidance as follows:
“If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty - the judge will stop the case. The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge concludes that the prosecution evidence, taken at its highest is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case.(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’ reliability, or of other matters which are generally within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge must allow the matter to be tried by the jury.”

48. The Panel was referred to the HCPTS Practice Note “Half-Time” Submissions of 22 March 2017 which set out the approach the Panel should follow in considering a No Case to Answer submission in a regulatory case. The Panel was reminded that at this stage, it is not required to decide if any particulars are or are not proved. The Panel’s task was to decide whether, in the context that the burden of proof is upon the HCPC and that the HCPC had now presented all of its factual evidence, there was evidence upon which it could find the facts proved, applying the test in Galbraith.

49. The Panel considered the submissions of both parties and the legal advice. The Panel was mindful that it was not making a final determination of the facts at this stage. The Panel was satisfied that evidence which supported each factual particular had been presented in the HCPC’s case. The first element of the Galbraith test, that no evidence had been presented in respect of the allegations, therefore did not apply.

50. The Panel then considered the strength of the HCPC’s evidence, that is whether it was of a tenuous character, or inherently weak or vague or was inconsistent with other evidence. The Panel concluded this was the real basis of Mr Weinbren’s submission. The Panel was satisfied overall that the evidence of the HCPC’s witnesses was not inherently weak and that any inconsistencies were minor and did not undermine the HCPC’s case as a whole. The Panel did not conclude that the reliability of the HCPC witnesses had been undermined or discredited such that it should find the allegations not proved at this stage.

51. The Panel was mindful that it had not yet heard the Registrant’s case and had not reached any final determination of the Allegation. The points made by Mr Weinbren in his submission could be put before the Panel again at the stage of closing submissions on the factual evidence.

52. However, at this stage, the Panel was satisfied that there had been sufficient evidence presented before it that could lead to a finding of the facts being proved. Therefore, the Panel rejected the submission that there was no case to answer and the hearing would proceed for the Registrant’s case to be presented.

The Registrant’s Case
53. The Registrant gave evidence and two witnesses gave oral evidence on his behalf. Four other signed witness statements were also entered into evidence.

54. The Registrant confirmed the truth of his witness statement. During his evidence, each of the factual particulars alleged in the HCPC’s case was put to the Registrant and he maintained his denial of every factual particular. The Registrant denied that he had made any of the comments alleged by the three HCPC witnesses, or that he had acted as alleged. The Registrant stated he always acted in a professional manner in his workplace. He accepted in cross-examination that comments such as those he was alleged to have made would have been inappropriate and wrong.

55. The Registrant said in answer to questions that he was a devout Born Again Christian and would not have acted in the manner alleged by Colleagues 1, 2 and 3. His evidence was that he did not go out on dates and would not have pursed a relationship with anyone outside his own community, the Eritrean community. The Registrant said that in June 2017, he was preparing for his wedding to his then fiancée, who is from the Eritrean community and who is now his wife. He was planning a big wedding with around 500 guests from around the world. The Registrant said that all his colleagues at the Prince Charles Hospital were aware of his wedding plans as he talked about them to everyone.

56. The Registrant said in the light of this, he would not have spoken to Colleague 1 as alleged in particular 1. He also denied that he had ever bought underwear for his now wife and so did not make the statement about visualising Colleague 1 in such underwear.

57. In relation to particular 2a, the Registrant said he never ate sweets, but his colleague, Mr A, did eat Werther’s Originals and would offer them to colleagues. The Registrant recalled an occasion at which he was present when Mr A offered one of these sweets to Colleague 2, but he, the Registrant, had not done so.

58. In respect of particular 2b, the Registrant maintained that an LMP stamp had never been in use at Barnsley Hospital. He said that forms were used, which patients had to sign.

59. In respect of particular 3, the Registrant’s evidence was that Colleague 2 arrived for her placement in the Radiology Department at Prince Charles Hospital, he observed that she first spoke to another Radiographer, Mr JM, who had also worked at Barnsley Hospital, and he had told her that the Registrant was there and indicated him. Colleague 2 then approached him (the Registrant) and spoke to him, appearing pleased to see him and saying she was glad to see some familiar faces. He said she told him she had been travelling in Europe with friends.

60. The Registrant referred to a number of hospitals at which he had previously worked and said that no complaints had ever been raised against him, other than in respect of these complaints from three young women who were friends and had worked with him at Prince Charles Hospital.

61. In response to questions from the Panel, the Registrant explained that he had worked with Colleague 1 quite frequently over a period of about 5 months. He said he had worked between 9 and 11 night shifts with her. He had got on well with her as a colleague and without any issues. They had conversations about work, and their social lives, such as what they had done at weekends, but they did not socialise outside of work. He was aware she had a boyfriend and she was aware he had a fiancée and was planning his wedding.

62. The Registrant denied that he had asked Colleague 2 to sit on his lap. This would not have happened at this time when he was planning his own wedding. He also said he would not have consented to such close personal contact in a professional hospital environment. For the same reasons as in respect of Colleague 1, the Registrant said he did not discuss dating or marriage with Colleague 2. He denied that he had made a comment about her looking more beautiful without make-up. He did however recall an occasion when Colleague 2 arrived late for work without her make-up and another colleague said that she should not be embarrassed as she looked more beautiful without her make-up. The Registrant denied that he had made any such comment. In respect of particular 4, the Registrant denied that he had offered to give Colleague 3 a neck massage and said that this would be inappropriate in a professional environment. He said that if he had stood close to Colleague 3 as she suggested, this would have been observed by other staff in the area. He denied ever offering a neck massage to a colleague.

63. In respect of Colleague 2, the Registrant said he worked with her for a few weeks during her placement at Barnsley and at Prince Charles Hospital. He described Colleague 2 as quite loud and chatty and they had no problem working together. They did not have a lot of social conversation. The Registrant said that generally he preferred talking about work matters and was not a person who made jokes. He worked with Colleague 3 for a few weeks and said they did not tend to have social conversation other than in relation to work. The Registrant was sure that Colleagues 2 and 3 were good friends and socialised and travelled to work together. He was less sure about Colleague 1, but thought they socialised together as they all lived in Cardiff.

64. The Registrant was asked why he thought the three witnesses had complained about him. He thought Colleague 1 wanted his Band 6 job which was paid more than her role. He thought Colleagues 2 and 3 had been looking for employment and he believed they thought it would help them to gain employment at the hospital if they assisted management by supporting Colleague 1’s complaint.

Witness JM
65. Mr JM confirmed the truth of his witness statement. He was employed at Barnsley Hospital and then at Prince Charles Hospital at the same time as the Registrant and Colleague 2. At this time, he was a Band 6 locum Radiographer. He later became a Clinical Assessor and then a Clinical Lecturer and is now a Research Radiographer.

66. Mr JM was present when Colleague 2 arrived for her placement at Prince Charles Hospital. They recognised each other from Barnsley Hospital. His evidence was that Colleague 2 talked to him for a few minutes and then he indicated the Registrant, who was in a corner of the same room and Colleague 2 went over and spoke to the Registrant. He did not observe her to look upset on seeing the Registrant.

67. Mr JM stated categorically that LMP stamps were not in use at Barnsley hospital. A form was used which the patient and the Radiographer would sign and this would be scanned into the computerised patient records. Mr JM said that although he had worked in a number of hospitals in the UK, he had never known of an LMP stamp being used.

68. Mr JM said he knew the Registrant well as a professional colleague. He described him as quiet and someone who would get embarrassed by conversation of a personal or sexual nature and would leave the room. Mr JM said the Registrant did not eat sweets and, like himself, preferred fruit. Mr JM was also aware that the Registrant was a committed Christian. He was aware that the Registrant would talk openly to everyone about preparing for his wedding. Mr JM was aware that the Registrant’s wedding took place on 16 September 2017, as he attended it. In his view, the Registrant would not have suggested dating or marrying anyone else.

69. Mr JM knew Colleagues 1, 2 and 3 whilst he worked at Prince Charles Hospital. He said he observed that they were friends. He had seen Colleagues 2 and 3 travelled together to Merthyr Tydfil from Cardiff together. They were good friends and socialised together, He believed that Colleagues 2 and 3 had complained in order to support Colleague 1.

70. Mr JM was asked about references to sexual innuendo on the unit. He said such jokes or innuendo did take place but that “foreigners”, which he said he would call himself and the Registrant, would know that such comments would not be tolerated from them whereas they would from locals. 

71.  He said that the Registrant was embarrassed by such conversations and would walk away. It was put to Mr JM in cross-examination that he was a good friend of the Registrant and his evidence was for the purpose of supporting the Registrant’s case. Mr JM said he knew the Registrant well, but mainly as a professional colleague.

Witness CM
72. Ms CM had worked with the Registrant at Prince Charles Hospital between August and December 2016. She was a Band 6 Radiographer. She only knew Colleague 1 during her time at Prince Charles Hospital. She worked with the Registrant alone on two nights shift and experienced nothing inappropriate. They talked about their families. She described the Registrant as softly spoken, courteous and polite. She said that the Registrant would become tense and visibly uncomfortable when conversations of a sexual nature took place and he would leave the area. She confirmed that such discussions did take place regularly in the department amongst the younger staff. She does not remember Colleague 1 being involved in these discussions. She had remained in contact with the Registrant and said they are friends.

73. Mr Foxsmith, on behalf of the HCPC, reminded the Panel that the burden of proof was on the HCPC. His submission was that the evidence of the three witnesses for the HCPC was credible, consistent and truthful. They had maintained their accounts under cross-examination. There were minor inconsistencies in their accounts, as might be expected, but on the central facts relevant to the allegations, they had been consistent. He submitted that there was no evidence to support the suggestion put on behalf of the Registrant that the three witnesses had conspired together to make up allegations against the Registrant and the witnesses had maintained their denial of this suggestion. Further, there was no credible evidence of any motive they might have to make false allegations against the Registrant. They had never complained about anyone else. 

Decision on Facts
74. Mr Foxsmith accepted on behalf of the HCPC that the Registrant was of otherwise good character and had not been the subject of other complaints. Evidence had been called on his behalf to his good character. There was no criticism in the HCPC case of his competence as a Radiographer. He acknowledged that the Registrant had also been consistent throughout in maintaining his total denial of the allegations and, given the conflicting accounts, the Panel would have to decide who was not telling the truth. Mr Foxsmith submitted that it was the Registrant who had not told the truth and refused to accept that he made the comments.

75. On the issue of sexual motivation, Mr Foxsmith submitted this may be proved by inference rather than direct evidence and referred the Panel to two authorities, Basson v GMC [2018] EWHC 505 (Admin) and Arunkalaivanan v GMC [2014] EWHC 873 (Admin) (see also below under Legal Advice). He submitted that in the present case, sexual motivation could properly be inferred from the words and the context in which they were used.

76. In his closing submission on behalf of the Registrant, Mr Weinbren submitted that the Registrant had been consistent throughout that none of these incidents had happened. He asked the Panel to take into account the extensive evidence of his good character: his strong religious beliefs, the absence of any complaint from any of the numerous hospitals at which he had worked in ten years of professional practice and the persuasive evidence from his witnesses, including his current manager and Mr JM, that the Registrant would not behave in the manner alleged.

77. Mr Weinbren asked the Panel to consider the absence of any evidence supporting the accounts of the three HCPC witnesses. He asked why evidence had not been obtained about the investigation undertaken by Mr PJ at Prince Charles Hospital or from any other people mentioned as having been present during the incidents, such as Ms SR, Superintendent Radiographer, or from the persons to whom witnesses had spoken soon after the incidents. The allegations of Colleagues 2 and 3 had not been spontaneous, but had been sought out by management.

78. Mr Weinbren asked the Panel to consider how the witnesses had changed their accounts, for example in her oral evidence Colleague 1 had added the description that the underwear referred to in particular 1c was “lacy” and that Colleague 2 had said in oral evidence that the remarks about her being more beautiful without make-up (particular 3d) had been said on several occasions rather than only one. He submitted that these inconsistencies were significant, whereas the account of the Registrant had been consistent throughout.

79. Mr Weinbren submitted, subject to reminding the Panel that all facts were denied by the Registrant, that the evidence did not disclose sexual motivation as these were innocuous comments and not of a sexual nature. He suggested the allegation of sexual motivation was included to increase the seriousness of the allegation.

80. The Panel received and applied the advice of the Legal Assessor. The Panel was reminded that the burden of proof was upon the HCPC which brought the allegations: it was not for the Registrant to prove his innocence. The standard of proof was the civil standard, the balance of probabilities.

81. The Panel was reminded that if it found proved any of the factual particulars referred to in particular 5 (i.e. 1c, 2a, 2b, 3a or 4) it should then go on to consider whether it found that the Registrant’s conduct in each was sexually motivated. The Panel was advised to give the term “sexual motivation” its common English language meaning. Some helpful guidance had been given in the recent case of Basson v GMC (see above) that sexual motive means that the conduct was done either in pursuit of sexual gratification, or in pursuit of a sexual relationship. The Panel was reminded that comments or actions may be inappropriate, but it does not automatically follow that inappropriate comments or actions are sexually motivated. These are separate issues for the Panel in its judgment to determine. 

82. On the issue of finding “sexual motivation” the Panel was referred to the guidance in the case of Arunkalaivanan v GMC (see above), to the effect that if the Panel considered there was no direct evidence of sexual motivation, it could consider whether it was possible to prove sexual motivation by way of inference. The Panel would have to be satisfied on the balance of probabilities that sexual motivation should be inferred from an assessment of the primary facts and all the circumstances, including evidence of the Registrant’s character. In this case the Panel should take account of the evidence it had heard concerning the Registrant’s previous good character.

83. The Panel carefully considered all the evidence presented. It accepted and applied the advice of the Legal Assessor. The Panel first considered the credibility of the HCPC’s witnesses:

84. The Panel considered that Colleague 1 was clear in her evidence and was credible. She accepted when she did not know something and her account was overall consistent in her written and oral accounts. Any inconsistencies were of a minor nature. She maintained her account under cross-examination. The Panel did not perceive any malice towards to the Registrant on her part, nor any motive to make false allegations against him.

85. The Panel considered that Colleague 2’s evidence was clear and consistent and she made concessions when appropriate. The Panel did not see any evidence suggesting that she had a motive to complain about the Registrant. The Panel found her evidence believable, and she appeared genuinely angry about the Registrant undermining her professionalism in the eyes of her colleagues (particular 3b).  

86. The Panel found Colleague 3 to be believable and clear in her evidence. She said when she was unable to remember. Colleague 3’s evidence in her written and oral statements was consistent. The Panel did not identify any negativity towards the Registrant. She was open regarding how she dealt with the incident and accepted now that she could have been more proactive in reporting the incident at the time.

87. The Panel noted how the issues in respect of Colleagues 2 and 3 had come to light. They had not initiated complaints at the time of the incidents, but had been approached and asked about any incidents by Mr PJ after Colleague 1’s complaint. The Panel considered this undermined the Registrant’s claim that there was a deliberate conspiracy against him between Colleagues 1, 2 and 3. The Panel did not find any evidence which supported the suggestion that Colleagues 2 and 3 had complained because they were asked to by management, nor did it find this to be a credible submission.

88. Overall, the Panel found all three of the HCPC’s witnesses to be clear, credible and believable and it did not identify any credible evidence of collusion between them.

89. The Panel considered the evidence given by the Registrant. In considering the credibility of his evidence, the Panel took into account his previous good character. The Registrant had been clear and consistent throughout his evidence. He was adamant that none of the incidents alleged had occurred and that he would not have acted as alleged. He did not seek to suggest to the Panel that there was any mistake on the part of the HCPC’s witnesses, or that he had made comments which had been misinterpreted by them. His case was that the witnesses had made up untrue allegations against him. The Panel, however, found the HCPC’s witnesses to be credible and truthful. Accordingly the Panel rejected the Registrant’s account and preferred the evidence of the HCPC’s witnesses.  

90. The Panel found Mr JM to be a clear and credible witness who did his best to assist the Panel. However, at times his evidence went beyond the scope of his knowledge and was opinion evidence. The Panel did not take this evidence into account. The Panel noted that Mr JM held the Registrant in high regard, but he was also fair and balanced in commenting on Colleague 1. Mr JM’s evidence assisted in that it provided the Panel with some information regarding Barnsley Hospital and some context about the working environment at Prince Charles Hospital.

91. The Panel found Ms CM to be clear professional and fair. She also provided evidence about the working environment at Prince Charles Hospital. Ms CM was able to provide little evidence about the matters referred to in the allegation, other than that she had experienced no issues when she worked on two nightshifts with the Registrant.

92. The Panel received further written references which mainly went to the Registrant’s good character and current working practice.


Particulars 1a, b and c – proved

93. The Panel found that it was more likely than not that the facts alleged in particulars 1a, b and c had occurred. The Panel preferred and accepted the account of Colleague 1. Her evidence about the night shift in question had been consistent in her written statements and her oral evidence to the Panel.

94. The Panel noted that Colleague 1 had made her initial complaint and her first written statement in her email of 30 June 2017 soon after the night shift in question and so was reasonably contemporaneous. Where there was any inconsistency in the detail, such as the information it was said that she added in her oral evidence that the underwear referred to in paragraph 1c was “lacy”, any such inconsistency was minor in the Panel’s view and did not go to the heart of the allegation. The Panel did not consider that the minor inconsistencies undermined the credibility of Colleague 1’s evidence overall.

95. The Panel preferred the evidence of Colleague 1 over the Registrant’s blanket denial that the incidents had occurred. She had complained soon after the night shift in question and was evidently still distressed about the incidents when giving evidence. The Registrant had been asked what motive he believed Colleague 1 had for making a false allegation against him. His response was that she had wanted his Band 6 position because it was better paid than her Band 5 role. The Panel was not at all persuaded by this and found the evidence of Colleague 1 compelling.  

96. The stem of the charge alleged that the comments referred to in 1a, b, and c were inappropriate. These three comments were made during a single night shift which Colleague 1 worked alone with the Registrant. The Panel considered that the comments in 1b and 1c were clearly unprofessional and inappropriate. Taken alone and made in different circumstances, the comments in 1a might not be considered inappropriate. However, in the context of Colleague 1 being a young, recently qualified Radiographer working alone during the night with an older male colleague who was also her senior on the unit, the Panel concluded that all the comments alleged in relation to the course of that night were inappropriate. 

Particular 2a – proved
97. The Panel found Colleague 2’s evidence compelling. Under cross-examination when it was put to her that it was another member of staff, a Mr A, who had offered her a sweet, she was adamant that it was the Registrant. The Panel found her description of the incident when she and the Registrant were alone and of the Registrant’s comment, telling her “that’s how I taste”, to be persuasive. It found her description of her reaction, that she felt shocked, embarrassed and uncomfortable, to be credible. The Registrant’s case was that he does not eat sweets. There was some support for this in the evidence of Mr JM. However, in the Panel’s view, this did not mean that he did not offer Colleague 2 a sweet. The Panel was satisfied by the evidence of Colleague 2 that it was more likely than not that the incident occurred as described by Colleague 2.

Particular 2b – not proved
98. The Panel found that there was conflicting evidence regarding whether an LMP stamp was in use at Barnsley Hospital at the relevant time: Colleague 2 was clear in her evidence but the Registrant and Mr JM were both adamant that no such stamp was in use. The Panel reminded itself that the burden of proving the facts is upon the HCPC and was unable to be satisfied on the balance of probabilities that this particular was proved.

Particulars 3a and b – proved.
Particulars 3c and d – not proved (not inappropriate)
99. Colleague 2 again provided the only direct evidence of these matters. The Panel preferred her evidence to that of the Registrant. She was clear and consistent in her account. She was clearly indignant that the Registrant’s behaviour in particulars 3a and b might undermine her position in the eyes of her colleagues during her placement. The Panel found Colleague 2’s account compelling. There was support for her account in the reference to Ms SR, a Superintendent Radiographer, having noted “awkward interaction” between the Registrant and Colleague 2, albeit the Panel could give only limited weight to this untested hearsay evidence. 

100. The Panel preferred the account of Colleague 2 to that of the Registrant and found the incidents alleged in particulars 3 a, b, c and d had taken place.

101. The Panel was required to consider whether the comments made to or in relation to Colleague 2 were inappropriate, as alleged in the stem of the charge. The Panel was satisfied that to invite a junior colleague to sit on your lap in a professional setting was inappropriate. It was inappropriate to tell other professional colleagues that Colleague 2 had asked to do this when that was not the case. Additionally, concern was caused to Colleague 2 that she could be undermined in her senior colleagues’ eyes as a result. The comments in particulars 3a and b were therefore found to be inappropriate.

102. In respect of particulars 3c and particular 3d, whilst the Panel was satisfied on the balance of probabilities that the Registrant made the comments, Colleague 2 was not 100% sure of the sequence of statements over a seven month period she worked with the Registrant. The Panel did not have sufficient information as to how the conversations occurred and in what context. It considered that to make such comments to a colleague was odd. However, in the absence of evidence of repetition and without context, these comments taken in isolation were not inappropriate. 

Particular 4 - proved
103. The Panel considered that evidence of Colleague 3 had been compelling. She was very clear in her recollection of the incident and frankly accepted that she did not raise any complaint at the time, as she dealt with the comment when it occurred and she wanted to focus on her work. The Panel noted the evidence of the Registrant who said that he considered that offering a neck massage to a colleague would be inappropriate and he would not do this, although he also said that it was known for other staff in the Radiology department to carry out neck massages on each other.

104. The Panel accepted Colleague 3’s account and was satisfied on the balance of probabilities that this incident took place.

Particular 5 – Sexual motivation: found proved in respect of particulars 1c, 2a and 3a. Not proved in respect of particular 4.  

105. Sexual motivation was alleged in respect of the following factual particulars which the Panel had found proved: 1c, 2a, 3a and 4. In considering this issue, the Panel took into account the legal advice and the guidance in the cases of Basson and Arunkalaivanan. As part of its consideration of sexual motivation, the Panel took into account the Registrant’s previous good character and that he had not been the subject of previous complaints of this (or any) nature.

106. In respect of particular 1c, the Panel considered that discussing underwear with a young female colleague and then telling her that he was visualising her wearing it involved subject matter of a directly sexual nature. The Panel was satisfied that from all the circumstances the Registrant was pursuing his own sexual gratification. The Panel considered that the sexual motivation proved was towards the lower end of the spectrum of seriousness.

107. In respect of particular 2a, the Panel considered that the comment “that’s how I taste” had an obvious sexual meaning behind it. It noted that Colleague 2 herself perceived sexual innuendo in the comment. The Panel was satisfied on the balance of probabilities that the Registrant made the comment for the purpose of sexual gratification and that the comment was sexually motivated albeit in the Panel’s view, at the lower end of the spectrum of seriousness.

108. In respect of particular 3a, the Panel considered that where an older male invites a younger, more junior female colleague to sit on his lap, this behaviour is not only inappropriate but indicative of sexual motivation. The Panel was satisfied on the balance of probabilities that sexual motivation on the part of the Registrant could be inferred from the primary facts.

109. In respect of particular 4, the Panel did not consider that offering a colleague a neck massage necessarily indicated sexual motivation. Although in the Panel’s view it was likely that this would be considered inappropriate in a professional setting, the Panel was not satisfied on the balance of probabilities that there was evidence suggesting sexual motivation in this incident, nor was there evidence before the Panel based on which a sexual motive could properly be inferred.

110. As regards particular 5, therefore, the Panel found sexual motivation proved in respect of particulars 1c, 2a and 3a, and not proved in respect of particular 4.  

Decision on Grounds and Impairment
111. Mr Foxsmith submitted that the matters found proved by the Panel constituted misconduct. He said that the Registrant’s conduct had breached the appropriate boundaries between colleagues and reminded the Panel of the effect the comments had had on Colleagues 1 and 2. He submitted that a finding of sexually motivated comments should lead to a finding of misconduct. He submitted that given the Registrant’s failure to acknowledge his conduct and offer any remediation or insight, the Registrant’s fitness to practise is currently impaired on the basis of both the personal and public components.

112. Mr Weinbren’s submission was that in order to find misconduct proved, the Panel must be satisfied that the conduct in question would be considered deplorable.  In his submission it would not be, and that the matters which had been proved were minor.

113. In relation to current impairment, Mr Weinbren acknowledged that in the light of the position the Registrant took in denying that he made the comments, it was not possible for him to put forward remediation.  However, Mr Weinbren submitted that the Registrant had addressed the concerns by undertaking permanent employment as a Band 6 Radiographer at Coventry Hospital and by no longer undertaking locum positions. Mr Weinbren submitted that this was significant because, as a permanent employee, the Registrant had subjected himself to supervision and the employer’s disciplinary processes.

114. Mr Weinbren referred to a letter from the Registrant’s current line manager which spoke positively about the Registrant’s performance in his role at Coventry Hospital. He also reminded the Panel of the passage of time since the allegations, during which there had been no repetition. 

115. Mr Weinbren submitted that the Registrant’s fitness to practise was not currently impaired. 

116. The Panel considered whether the facts it had found proved amounted to misconduct and if so, whether the Registrant’s fitness to practise was currently impaired. The Panel considered these issues in two separate stages.

117. The Panel considered the submissions of both parties. It accepted the advice of the Legal Assessor and was referred to the HCPTS Practice Note, Finding that Fitness to Practice is Impaired (22 March 2017) (“the Practice Note”).

118. In respect of misconduct, the Panel was advised that this was a matter for its own judgement, rather than the application of the legal standard of proof. The Panel was reminded that not every falling short of standards amounts to misconduct. In order to find misconduct, the Panel must be satisfied that the falling short is serious.  

119. In this case, the comments found proved were made by the Registrant in a professional work environment. Colleague 1 was a young, relatively junior Radiographer. Colleague 2 was a student undertaking her placements at two different hospitals. The Panel heard evidence of the effect that the Registrant’s conduct has had upon the two witnesses. The Registrant was a more experienced Radiographer who was senior to them. The Panel was mindful, however, that in Colleague 1’s case, the comments were made during the course of a single night shift. In Colleague 2’s case, the conduct occurred at two hospitals and there was a period of around 18 months between the occasions.

120. The Panel recognised that the conduct in this case was not at the most serious end of the spectrum of sexual or inappropriate behaviour.  However, the Panel concluded that making sexually motivated comments, as found proved in particulars 1c, 2a and 3a, would be considered deplorable by other members of the Radiographer profession and by members of the public. The comments in particulars 1a, 1b and 3b, had been found to be inappropriate. These inappropriate comments could not, in the Panel’s view, be separated from the Registrant’s course of inappropriate behaviour towards to Colleagues 1 and 2 and would similarly be considered unacceptable.    The Registrant had accepted that had he made the comments, they would be inappropriate and wrong.

121. In the Panel’s judgment, the Registrant’s conduct fell seriously short of the expected standards and the Panel found misconduct proved.  

122. The Panel considered that the following standard from the 2013 HCPC Standards of Proficiency for Radiographers relevant:
9.2  understand the need to build and sustain professional relationships as both an independent professional and collaboratively as a member of a team.

123. The Panel next considered whether in the light of its finding of misconduct the Registrant’s fitness to practise is currently impaired.  The Panel referred to the approach set out in the Practice Note. It was reminded by the Legal Assessor that not every finding of misconduct will necessarily result in a conclusion that there is current impairment. This is a matter for the judgment of the Panel. The Panel was mindful of the need to protect service users and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect and that public interest includes amongst other things the protection of service users and maintenance of public confidence in the profession.

124. In relation to the personal component of current impairment, the Panel was of the view that the misconduct was potentially remediable.  However, as the Registrant had denied these matters throughout, he had not taken any steps towards remediating the misconduct. The Registrant had not shown any remorse, or acknowledged the impact of his behaviour on Colleagues 1 and 2. The Panel did however acknowledge that he had shown a very limited degree of insight by his own acknowledgement when giving evidence that comments such as those alleged were inappropriate in a professional setting.  

125. The Panel took into account that there had been no previous complaints and there had been no repetition of similar conduct by the Registrant since the most recent events at Prince Charles Hospital in mid-2017. It noted that the Registrant’s current line manager had provided a statement speaking favourably about his conduct and performance in his employment as a Band 6 Radiographer in the CT department at Coventry Hospital since November 2017. She explained that the Registrant had commenced this employment as a locum and he had since become a permanent member of staff.

126. The Panel considered Mr Weinbren’s main submission that the Registrant does not pose a future risk because he is no longer undertaking successive locum positions and is working in a permanent position in which he is subject to supervision and to a disciplinary process. The Panel considered this was a positive development, but given the Registrant’s denial of his past misconduct and his lack of insight, the Panel could not be reassured that the risk of repetition was low.

127. In relation to the public component of current impairment, the Panel concluded that public trust and confidence in the profession would be undermined if a finding of current impairment were not made in this case. The Panel found the Registrant’s fitness to practise to be currently impaired in relation to both the personal and the public components of current impairment.

Decision on sanction
128. Mr Foxsmith made submissions in the issue of sanction. He did not propose a particular sanction on behalf of the HCPC, but referred the Panel to the guidance in the HCPC Indicative Sanctions Policy and reminded the Panel of the correct approach at this stage of the process.

129. Mr Weinbren referred the Panel to the character references submitted in support of the Registrant. He submitted that the issues before this Panel were isolated incidents in the Registrant’s professional career, as he had not been the subject of any complaints at the hospitals in which he had worked prior to this matter. He had now worked in his current employment since November 2017 and there had been no complaints.  He was well thought of by his manager and colleagues. The Registrant is married and his wife is not employed. He has a young child.

130. Mr Weinbren submitted that the Registrant is a competent Radio-grapher and wishes to remain employed in the profession.

131. Mr Weinbren informed the Panel that he had been able to speak to the Registrant, who is not present today due to illness, by telephone shortly prior to making these submissions. He had been able to obtain the Registrant’s views on his position at this stage of the hearing process.  Mr Weinbren told the Panel that the Registrant has now accepted the Panel’s findings, including the finding of sexual motivation. He has said that he honestly did not think the incidents had happened, but now accepts the findings. Mr Weinbren informed the Panel that the Registrant is committed to remaining in his current employment and working with his current manager to address these issues.

132. Mr Weinbren submitted that the matters proved were issues of “low-grade sexual intent”. In his submission, the appropriate sanction would be a caution. He submitted that a Conditions of Practice Order was unnecessary, as the Registrant had already commenced remediation by virtue of his permanent employment and by working with his current manager. Mr Weinbren asked the Panel to find that any higher sanction would be disproportionate. 

133. The Panel accepted the advice of the Legal Assessor. The Panel was aware that the purpose of a sanction is not to be punitive, though a sanction may have a punitive effect.

134. The Panel bore in mind that its primary function at this stage is to protect the public, while reaching a proportionate sanction, taking into account the wider public interest and the interests of the Registrant. The Panel referred to the HCPC Indicative Sanctions Policy and applied it to the Registrant’s case on its own facts and circumstances.

135. The Panel identified the following mitigating factors in the case:
• There had been no complaints against the Registrant prior to the incidents which were the subject of the present allegation;
• There had been no further complaints against the Registrant in the period of almost two years, since the events at Prince Charles Hospital in June 2017;
• The incidents did not involve direct harm to public safety or to service users;
• The Registrant had received a supportive reference from his manager in his current employment where he has worked since November 2017 and is now employed in a permanent position. His manager says that neither she nor any of her staff, Radiologists or the wider multidisciplinary team have any issues regarding him. She states: “He is a kind and caring member of staff who is respectful to both staff and patients.  He spends time with the patients and puts them at ease.  I have no concerns in any way whatsoever”;  
• The Registrant had provided evidence from NSC confirming that he has acted as a professional mentor for the Registrant and confirming that the Registrant has been open and honest about the allegations against him;. He stated that:
“his referral to you, and the allegations placed against him, have had a profound effect upon Ermias, Radiographer; causing him to deeply reflect upon his work at Prince Charles Hospital and how he has been perceived. We have had discussion about professionalism, boundaries and how to maintain working relationships with colleagues. His understanding and has been approached in a suitably reflective and open way [sic]”

136. The Panel identified the following aggravating factors in this case;
• The particulars involved sexually motivated conduct at the lower end of the spectrum of seriousness;
• The incidents involved more than one colleague;

137. The Panel took into account the observations provided by the Registrant through Mr Weinbren at the sanction stage. It acknowledged the Registrant’s acceptance of the Panel’s findings in this case, albeit late in the day, and noted that there appeared to be the first stages of developing insight.   

138. The Panel considered that a sanction was necessary to not just address the Registrant’s conduct but also to act as a deterrent and uphold public confidence in both the profession and the regulator.

139. In light of all of the circumstances, the Panel considered what sanction, if any, should be applied, and considered the sanctions in ascending order of seriousness.

140. The public interest would not be protected if the Panel were to take no further action in a case of this seriousness.

141. The Panel concluded that mediation was not a means by which this misconduct in this case could be satisfactorily addressed.

142. A Caution Order would be insufficient to mark the seriousness of the Panel’s findings and to protect the public and maintain public confidence in the profession. The matters proved are not minor and the Registrant has shown limited insight to date.

143. Having carefully considered all the circumstances of this case and considered the Indicative Sanctions Policy, the Panel had concluded that the Registrant’s failings in this case are capable of remedy. It considered that conditions of practice could be formulated which would appropriately address the past misconduct. The case had not concerned the Registrant’s competence as a Radiographer and an order for conditions of practice could allow him to remain in practice whilst ensuring the public interest issues are addressed.

144. The Panel took account of the Registrant’s comments today, to the effect that he was committed to addressing the issues and he had in fact already started working on this with his current manager.

145. The Panel considered a period of suspension, but decided this would be disproportionate in the circumstances, given that a Conditions of Practice Order would adequately protect the public interest issues and would enable an otherwise competent Radiographer to remain in practice. 

146. The Panel concluded that a Conditions of Practice Order for a period of 12 months is the appropriate and proportionate sanction in this case.

Order

The Registrar is directed to annotate the Register to show that, for a period of 12 months from the date that this order comes into effect (“the Operative Date”), you, Mr Ermias Haile, must comply with the following conditions of practice: 
1. That within 6 months of the operative date, you must attend and satisfactorily complete a suitable course on maintaining professional boundaries in the work environment.
2. You must forward evidence of satisfactory completion of such a course to the HCPC before the review hearing in respect of this order.
3. You must work with a supervisor, who must be your lead CT Radiographer, to address the misconduct issues identified in this case.
4. You must provide the HCPC with a report from your supervisor on your progress in developing and maintaining professional boundaries before the review hearing.
5. You must provide a reflective piece as to how you have implemented the training undertaken at (1), above, on professional boundaries in your current role. This needs to address how you would recognise and deal with words or actions that could be perceived as having a sexual connotation.
6. You must forward this reflective piece to the HCPC before the next review hearing.
7. You must promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.
8. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.
9. You must inform the following parties that your registration is subject to these conditions:
A. any organisation or person employing or contracting with you to undertake professional work;
B. any agency you are registered with or apply to be registered with (at the time of application); and
C. any prospective employer (at the time of your application).
10. You will be responsible for meeting any and all costs associated with complying with these conditions.

Notes

No notes available

Hearing History

History of Hearings for Mr Ermias Haile

Date Panel Hearing type Outcomes / Status
23/04/2019 Conduct and Competence Committee Final Hearing Conditions of Practice