Mr Jeffrey S Horn

Profession: Radiographer

Registration Number: RA27853

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 23/08/2019 End: 17:00 23/08/2019

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

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

On 29 October 2018 and 2 November 2018, at Chester Crown Court, you were convicted of the following offences:

1) [redacted]

2) [redacted]

3) By reason of your convictions as set out in paragraphs 1 and 2 your fitness to practise as a Radiographer is impaired.

Finding

Preliminary Matters:

i) Service

1. The Panel heard that Notice in respect of this hearing was sent by first class post to the Registrant’s registered address on 31 May 2019 in accordance with rules 3 and 6 of the Conduct and Competence Procedure Rules 2003.

2. The Panel heard and accepted the advice of the Legal Assessor and determined that the Notice had been served in accordance with the Rules.

ii) Proceeding in the absence of the Registrant

3. Mr Lloyd, on behalf of the HCPC, referred the Panel to the Registrant’s 11 March 2019 Pro Forma Response to the Notice of Allegation. In answer to the question ‘Do you intend to appear in person at the Hearing?’ the Registrant had written: “No, I am in prison.” In answer to the question ‘Do you intend to be represented at the Hearing?’ the Registrant had written “No.” The Registrant had also written: “I know I am unable to work as a medical radiographer in the NHS + private sector due to the nature of my conviction. I have tried to resign from HCPC + Society of Radiographers. I have no intention of working in hospitals after my release.  Hence think this a waste of your time + money! Please note that I have now been transferred to: HM Prison Stafford.”

4. Mr Lloyd informed the Panel that, since 2 November 2018, the Registrant had been serving a four and a half year custodial sentence. He referred the Panel to the guidance contained in the HCPTS Practice Note on Proceeding in the Absence of the Registrant and invited the Panel to proceed with the Hearing.

5. Mr Lloyd submitted that the Registrant’s date of release is not certain, but he has so far served less than 10 months of his 54 month sentence. Mr Lloyd submitted that the public interest in the expeditious disposal of the allegation outweighed any disadvantage to the Registrant in proceeding in his absence. In the circumstances, he submitted that it was appropriate for the Panel to exercise its discretion to proceed with the Hearing.

6. The Panel heard and accepted the advice of the Legal Assessor who reminded it of the guidance provided in the cases of R v Jones [2002] UKHL5, Adeogba v the General Medical Council [2016] EWCA Civ 162 and Davies v HCPC [2016] EWHC 1593 (Admin).

7. The Panel recognised that the discretion to proceed in the absence of a Registrant is one which must be exercised with the utmost care and caution and that its decision should be guided by the overarching objective to protect the public. In reaching its decision, the Panel noted that the Registrant was currently serving a custodial sentence and was therefore not at liberty to attend his Hearing in person. It recognised that this did not prevent him from arranging representation at the Hearing and that he had not done so. Given that the Registrant had so far only served approximately 10 months of a 54 month sentence, the Panel considered that adjourning the hearing was unlikely to result in the Registrant’s attendance. The Panel balanced the public interest in the timely disposal of the allegation with the disadvantage to the Registrant should the hearing proceed in his absence.

8. On the basis of the information before it, the Panel determined that it would be fair and in the interests of justice to proceed in the absence of the Registrant.

Background:

9. The Registrant is registered with the HCPC as a Radiographer. On 17 January 2017, he advised the HCPC that the Police were investigating him in relation to an allegation [redacted].

10. In November 2018, the HCPC was informed that the Registrant had been tried and convicted of [redacted], for which he was sentenced to three and a half years imprisonment. In addition, on his own confession, the Registrant had been convicted of [redacted]. In respect of the four counts, the Registrant received three sentences of 12 months imprisonment each and one of 6 months. As a consequence, the Registrant’s total sentence was one of four and a half years. [redacted]

11. Mr Lloyd opened and summarised the Council’s case. He referred the Panel to the Registrant’s 11 March 2019 Pro Forma Response to the Notice of Allegation. [Redacted]

Decision on Facts:

12. The Panel was mindful that the burden of proving the facts is on the Council, that the Registrant is not required to prove anything and that any fact alleged is only to be found proved if the Panel is satisfied on the balance of probabilities that it is correct.

13. In reaching its decision, the Panel had careful regard to the Certificate of Conviction. The Panel also took into account the submissions of Mr Lloyd, and the HCPTS Practice Note entitled ‘Conviction and Caution Allegations’. The Panel was aware that it could not go behind the convictions and was required by Rule 10 (1) (d) of the Conduct and Competence Committee procedure Rules 2003 to accept the Certificate of Conviction from the Crown Court at Chester as conclusive proof of the convictions themselves and the underlying facts.

Particular 1 - Found Proved

14. The Panel was provided with a Certificate of Conviction in the name of the Registrant, which was signed by an Officer of the Court on 3 December 2018. The Panel accepted the Certificate of Conviction as conclusive evidence that, in the Crown Court at Chester on 29 October 2018 and on 2 November 2018, the Registrant was, upon his own confession, convicted [redacted].

15. Based on the Certificate of Conviction, the Panel was satisfied that the facts as set out in Particular 1 had been proved.

Particular 2 - Found Proved

16. The Panel was provided with a Certificate of Conviction in the name of the Registrant, which was signed by an Officer of the Court on 3 December 2018. The Panel accepted the Certificate of Conviction as conclusive evidence that in the Crown Court at Chester on 2 November 2018 the Registrant was tried upon and convicted [redacted]. Based on the Certificate of Conviction, the Panel was satisfied that the facts as set out in Particular 2 had been proved.

Decision on Grounds:

17. Based on the Certificate of Conviction, the Panel was satisfied that Conviction as a potential ground of impairment had been established.

Decision on Impairment:


18. The Panel then went on to consider whether the Registrant’s fitness to practise is impaired by reason of his convictions. It had careful regard to all the evidence before it, including the Registrant’s responses during the course of police interview and his correspondence with the HCPC.


19. [redacted]

20. [redacted]

21. The Panel accepted the advice of the Legal Assessor and had careful regard to the HCPTS Practice Note entitled Finding that Fitness to Practise is “Impaired”.

 

22. In addressing the personal component of impairment, the Panel considered whether the Registrant was liable, now and in the future, to repeat conduct of the kind which led to his convictions. In reaching its decision, the Panel had particular regard to the issues of insight, remediation and the Registrant’s history.

 

23. The Panel noted that in the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin) Mrs Justice Cox stated: “When considering whether or not fitness to practise is currently impaired, the level of insight shown by the practitioner is central to a proper determination of that issue.”

24. The Panel also noted that in his Response Pro Forma to the HCPC Notice of Allegation, the Registrant had continued to deny that he had acted as the jury found [redacted], although he recognised that his convictions would prevent him from working as a Radiographer after his release from prison. The Panel further noted that in Police interview, after initial unwillingness to do so, the Registrant had recognised the unacceptability of the type of conduct which led to the [redacted] convictions. In all the circumstances, the Panel considered that it had received no evidence which might enable it to conclude that the Registrant had demonstrated meaningful insight into his failings.

25. The Panel had careful regard to Silber J’s guidance in Cohen v GMC [2008] EWHC 581 (Admin) that panels should take account of:
• Whether the conduct which led to the charge is easily remediable;
• Whether it has been remedied; and
• Whether it is highly unlikely to be repeated.

26. The Panel recognised that where there have been findings of fact which relate to sexual misconduct or deep-seated attitudinal problems, the efforts made by a practitioner to address his problems and to reduce the risk of recurrence are likely to be of limited significance. However, the Panel noted the sentencing remarks of Miss Recorder Goode in relation to the Registrant’s aggression and anger management difficulties and that “I accept that there has now been a considerable period of time since these matters have come to light, that your behaviour has improved…imprisonment will no doubt have a profound effect on you.” In light of these remarks, the Panel considered that there may have been some early signs of limited remediation.

27. In relation to the Registrant’s history, the Panel accepted that the Registrant has no previous convictions, and noted his assertion in police interview that “he had been investigated about 3 years ago by the HCPC after it was alleged that he had touched a patient on the hips, he said that he had been exonerated of any wrong doing.” The Panel received no further information about this matter.

28. In the absence of meaningful insight and with no more than limited remediation, the Panel was unable to conclude that the Registrant is unlikely to repeat matters of the kind which led to his convictions.

29. The Panel had careful regard to the critically important public policy issues identified by Silber J in the case of Cohen when he said:
“Any approach to the issue of whether .... fitness to practise should be  regarded as ‘impaired’ must take account of ‘the need to protect the  individual patient, and the collective need to maintain confidence in the  profession as well as declaring and upholding proper standards of   conduct and behaviour.”

30. While the Panel recognised that the conduct which led to the convictions in this case occurred in a domestic setting, it was nonetheless concerned that the level of violence and aggression involved was so serious that Miss Recorder Goode considered it necessary to impose substantial consecutive sentences of imprisonment for the two types of offence. The Panel was particularly concerned that the conduct which led to the [redacted] convictions was repeated over a substantial period of time and suggested deep-seated anger management issues. In these circumstances, the Panel was unable to conclude that the Registrant would not pose a danger to colleagues and members of the public he might encounter in the course of his professional life. As a consequence, the Panel decided that a finding of current impairment in respect of the personal component is necessary.

31. In addition, the Panel had no doubt that the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and performance would be undermined if it did not make a finding of current impairment of fitness to practise on public interest grounds. In the Panel’s view, reasonable members of the public, provided with the information which had been put before the Panel would be appalled if a finding of impairment was not made.

32. For all the reasons set out above, the Panel determined that the Registrant’s fitness to practise is currently impaired by reason of his convictions, in terms of both the personal and public component. Accordingly, the Panel found the Allegation well founded.

Decision on Sanction:

33. The panel next considered what, if any, sanction to impose on the Registrant’s registration.

34. The Panel had careful regard to all the evidence put before it, and also to the submissions of Mr Lloyd. It had particular regard to the Registrant’s 11 March 2019 Pro Forma Response to the Notice of Allegation. In this he stated: “I know I am unable to work as a medical radiographer in the NHS + private sector due to the nature of my conviction. I have tried to resign from HCPC + Society of Radiographers. I have no intention of working in hospitals after my release”. 

35. The Panel accepted the advice of the Legal Assessor.

36. Mr Lloyd drew the Panel’s attention to the HCPC’s Sanctions Policy and submitted that the question of sanction is a matter for the Panel’s own independent judgment.

37. In reaching its decision the Panel had at the forefront of its thinking the principle of proportionality and the need to balance the interests of the Registrant with the protection of the public and the wider public interest in maintaining confidence in the profession and the HCPC, and declaring and upholding proper standards of conduct and performance.

38. The Panel had in mind that the purpose of sanctions is not to be punitive, though they may have a punitive effect. The Panel considered the options open to it in light of the guidance provided in the case of General Dental Council & Fleischmann (2005) EWHC 87 (Admin) that:                                                                                
“where a practitioner has been convicted of a serious criminal offence or offences he should not be permitted to resume his practice until he has satisfactorily completed his sentence.”

39. Given that the Registrant is currently serving a substantial custodial sentence, the Panel concluded that the only options open to it at this time are to impose a suspension order of up to 12 months or to impose a striking off order.

40. In reaching its decision on sanction, the Panel had regard to all the circumstances, including the following aggravating and mitigating features of the case:

Aggravating -

• The conduct which led to the convictions was so serious it could only be dealt with at Crown Court by the imposition of a sentence of four and a half years of immediate imprisonment.
• [redacted]
• The conduct which led to the [redacted] convictions was repeated and persistent over a protracted period of time, and involved minors in respect of whom the Registrant had been in a position of trust and responsibility.
• The Registrant has demonstrated no meaningful insight and only limited remediation.

Mitigating - The Panel could find no mitigating features.

41. The Panel first considered the imposition of a Suspension Order. It gave careful consideration to Paragraphs 39-45 of the Indicative Sanctions Policy. Given its findings in respect of seriousness, insight and the risk of repetition, the Panel had no doubt that this case does not meet the criteria set out in the Sanctions Policy for the imposition of a Suspension Order.

42. In the Panel’s view, the seriousness of this case is such that a Suspension Order would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process.

43. The Panel next considered the imposition of a striking off order. It had no doubt that this case fulfils the criteria for striking off as set out in the Sanctions Policy (i.e. Sexual misconduct, violence and conviction for a serious offence). Having concluded that a lesser sanction in the form of a period of suspension would not provide adequate public protection, and would not be sufficient in the public interest, the Panel determined that a striking-off order is the only appropriate and proportionate response. In the Panel’s view, the Registrant’s actions are entirely incompatible with his continued presence on the Register, and members of the public would be shocked if he were to be permitted to remain. The Panel had no doubt that public confidence in the profession, the regulator and the Register would be undermined if the Registrant were permitted to remain on the Register.

44. For this reason, the Panel determined to impose a Striking Off Order.

Order

Order: That the Registrar is directed to strike the name of Mr Jeffrey Horn from the Register on the date this order comes into effect.

Notes

NB: some of the information in the decision has been redacted in line with our publication policy.

 

Interim Order:
45. The Panel heard an application from Mr Lloyd to cover the appeal period by imposing an 18 month Interim Suspension Order on the Registrant’s registration. He submitted that such an order is necessary to protect the public and is otherwise in the public interest.
46. The Panel heard and accepted the advice of the Legal Assessor. It had careful regard to Paragraphs 133-135 of the Sanctions Policy. The Panel noted that the Registrant had been informed, in the Notice of Hearing dated 31 May 2019, that if this Panel found proved the allegation against him and imposed a sanction which removed, suspended or restricted his right to practise, the HCPC may make an application to the Panel to impose an interim order to cover any appeal period. For the reasons set out in its earlier decision to commence the hearing in the absence of the Registrant, the Panel determined that it would also be fair, proportionate and in the interests of justice to consider Mr Lloyd’s application.
47. The Panel recognised that its power to impose an interim order is discretionary and that the imposition of such an order is not an automatic outcome of fitness to practise proceedings in which a Striking Off Order has been imposed. The Panel took into consideration the impact such an order would be likely to have on the Registrant. However, the Panel was mindful of its findings in relation to the lack of insight and remediation and that there is a risk of repetition of conduct of the kind which led to the convictions. In the circumstances, the Panel considered that not to impose an order would be inconsistent with its finding that a substantive Striking Off Order is required. Public confidence in the profession and the regulatory process would be seriously harmed if the Registrant were not made subject to an interim order during the appeal period.
48. 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.

 

Hearing History

History of Hearings for Mr Jeffrey S Horn

Date Panel Hearing type Outcomes / Status
23/08/2019 Conduct and Competence Committee Final Hearing Struck off