Mr Aston Porter

Profession: Physiotherapist

Registration Number: PH97572

Interim Order: Imposed on 10 Nov 2017

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 13/05/2019 End: 17:00 13/05/2019

Location: Health and Care Professions Tribunal Service, 405 Kennington Road

Panel: Conduct and Competence Committee
Outcome: Struck off

Please note that the decision can take up to 5 working days to be uploaded onto the HCPTS website. Please contact one of our Hearings Team Managers via tsteam@hcpts-uk.org or +44 (0)808 164 3084 if you require any further information.

 

Allegation

On 03 October 2017, you received a police caution from Devon and Cornwall Police for the following offence:

1. On or between 01 July 2016 and 30 November 2016, you installed equipment with the intention of enabling, yourself, for the purpose of sexual gratification, to observe another
person doing a private act, knowing that person did not consent to being observed for your sexual gratification.

2. By reason of your caution, as set out in paragraph 1, your fitness to practise as a
physiotherapist is impaired.

Finding

Preliminary matters
Service
1. There was before the Panel a certificate that Notice of Hearing, dated 14 March 2019, had been sent by first class post to the address shown for the Registrant in the HCPC register. The Notice of Hearing was also sent to the Registrant by email on the same date. The Panel was satisfied that Notice had been properly served in accordance with Rule 3 (Proof of Service) and Rule 6 (date, time and venue) of the Conduct & Competence Committee Rules 2003 (as amended).
 
Proceeding in absence
2. Ms Parry applied for the hearing to proceed in the Registrant’s absence, under Rule 11 of the Conduct & Competence Rules 2003 (as amended). The Panel took into account the guidance as set out in the HCPTS Practice Note “Proceeding in the Absence of the Registrant”. The Panel accepted the advice of the Legal Assessor.

3. The Panel determined that it was reasonable and in the public interest to proceed with the hearing for the following reasons:
(i) The Registrant has not engaged with the regulatory process. In particular he has not responded to the Notice of Hearing.

(ii) There has been no application for an adjournment and no indication that the Registrant would attend on any future date. Therefore, re- listing this case would serve no useful purpose. In these circumstances, the Panel was satisfied that the Registrant’s non-attendance was voluntary and therefore a deliberate waiver of his right to attend.

(iii) Although there is a potential disadvantage to the Registrant in being unable to give evidence or to make oral submissions, he was given the opportunity to attend and was also informed in the Notice of Hearing that he could make written submissions. However, he did neither.

(iv) The Panel was satisfied that given the serious nature of the Allegation there is a strong public interest in ensuring that this Final Hearing proceeds expeditiously.

Background
4. The Registrant was employed by Cornwall Partnership NHS Foundation Trust (the Trust) as a Physiotherapist on 3 June 2013. The Registrant treated service users of all ages, including young people.
5. On 28 June 2017, the Registrant contacted the Trust via email and advised that they might receive a safeguarding alert in regard to an incident in November 2016, in which he was directly involved. A later conversation on the same day between the Registrant and the Service Manager at the Trust elicited the circumstances of the incident, in that, while babysitting a young female he placed a camera in her bedroom to film her after she emerged from a shower.
6. On 14 July 2017 the HCPC received a referral from the Trust detailing this incident.
7. On 3 October 2017, the Registrant was interviewed by the Police and admitted that he had placed a camera in the young female’s bedroom for his own sexual gratification. The Registrant accepted a Police Caution for the offence of voyeurism and was required to sign on the Sex Offenders Register for a period of two years.

HCPC Submissions
8. Ms Parry submitted that in the light of the Certificate of Caution, the Panel should find the Facts of the allegation, and the statutory ground, proved. She further submitted that the Registrant’s criminal actions had breached standard 9 of the HCPC’s Standards of conduct, performance and ethics (2016).
You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.
9. Ms Parry further said that the Registrant had given inconsistent explanations to the Police and to his employer. She said also that there was no indication of any significant degree of insight by submission of a reflective piece or otherwise. Her submission was that the Registrant’s fitness to practice is impaired on the personal component.  
10. Ms Parry concluded her submissions by saying that the public would lose confidence in the profession were a finding of impairment not made.
Decision on Facts and Grounds
11. In reaching its decision, the Panel considered the evidence before it, which was the Certificate of Caution dated 3 October 2017. It considered also the submissions of Ms Parry. It accepted the advice of the Legal Assessor.
12. The Panel was satisfied that this was a true certificate and therefore found the Caution proved. The Panel found also that the Caution established the ground.
Decision on Impairment
13. In reaching its decision the Panel considered all the information before it together with Ms Parry’s submissions. The Panel has reached its own decision, after comprehensively considering the case. It had in mind the HCPTS practice notes “Finding Fitness to Practise is Impaired” and “Conviction and Caution Allegations”. It accepted the advice of the Legal Assessor.
14. This was an extremely serious offence. It involved intending to photograph and/or film a young female performing a private act, and doing so for the Registrant’s sexual gratification. Furthermore, this occurred where the Registrant, although not in the course of his practice, was in a position of trust in that he was babysitting a young female.
15. In committing this offence, the Registrant was in breach of standard 9 of the HCPC’s standards.
You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.
16. The Registrant was interviewed by his employer on 5 October 2017. In the course of which, he said “It’s hard to admit there is something wrong with you. I know I’ve done wrong”. However, when interviewed by police in October 2017 he admitted to setting up the camera but denied that the purpose was for sexual gratification. He made reference to what he described as his mental health issues and that what he did was retaliation for a dispute within his family.
17. Although the Registrant engaged with local investigations, he has not engaged with the HCPC. There has been no significant expression of remorse, nor indeed of any real insight, by reflective piece or otherwise. Indeed, his early explanations were inconsistent. The Registrant has demonstrated little by way of consideration of the impact of his action on others, particularly the young person involved. Furthermore, there is no indication from him of any steps taken to remedy the underlying tendencies which led to his offending. Although he made reference to mental health issues, there was no supporting evidence before the Panel in this regard. In these circumstances, the Panel cannot be satisfied that conduct of this nature will not be repeated. On this basis the Panel has concluded that the Registrant’s fitness to practice is impaired in relation to the personal component.
18. In considering the public element the Panel concluded that right thinking members of the public would be concerned if a finding of impairment were not made where a Registrant has accepted a Police Caution for this offence and been placed on the Sex Offenders Register for a period of two years.
19. A finding of impairment is therefore necessary for the protection of the public and is also in the public interest in order to declare and uphold proper standards of conduct and of behaviour, and to maintain confidence in the profession and in the regulatory process.

Decision on Sanction
20. In reaching its decision, the panel considered all the information before it, together with the submissions from Ms Parry. It had regard to the HCPC’s Indicative Sanctions Policy (2017) (the Policy). It accepted the advice of the Legal Assessor.
21. Ms Parry made no submissions in regard to particular sanctions. She referred the Panel to the Policy and emphasised that the purpose of a sanction is not to punish a registrant, but rather to protect the public.
22. The Panel found these to be the aggravating factors:
• The serious nature of the offence, as marked by the Caution and the requirement to be entered on the Sex Offenders Register for two years.
• The Registrant, who was babysitting the young person, was in a position of trust.
• The Registrant, in the course of initial investigations, maintained that there was no sexual motivation for his actions.
• The lack of meaningful expressions of remorse and significant insight into the serious nature of the offence. The Registrant has not expressed specific concern about the effect that his action could have had on the young person involved and on the reputation of the profession.
• The lack of any remedial steps.
• The total lack of engagement with the regulatory process.
23. The Panel found these to be the mitigating factors:
• There have been no previous findings against the Registrant before the HCPC or the criminal courts.
• The Registrant’s acceptance of the Caution.
24. The Panel first considered whether to take no action but the serious nature of this offence demands a sanction.
25. The Panel then considered mediation or a caution order. However, the serious nature of the offence is such that neither would be sufficient to protect the public or to address public interest concerns.
26. The Panel next considered a conditions of practice order, but there are no conditions which would be workable, appropriate or sufficient in the light of the serious nature of the offence.
27. The Panel then considered a suspension order, but again, such an order would be insufficient to address the serious nature of the offence.
28. The Panel therefore considered a striking off order. It is aware that this is a sanction of last resort for serious acts including those involving abuse of trust or sexual abuse.
29. It referred to the Policy which states that such an order should be used where there is no other way to protect the public in circumstances where there is a lack of insight and where the nature of the offence is such that any lesser sanction would lack a deterrent effect or would undermine confidence in the profession or the regulatory process. The Registrant had indicated no understanding of the harm that could have occurred to a young person by his actions.
30. In these circumstances the Panel concluded that the only sufficient and appropriate sanction is that of a striking off order.

Order

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

Notes

Interim Order Application:
Proceeding with the application in the Registrant’s absence
1. Ms Parry applied for an Interim Order on the grounds of the public interest and for the protection of the public, for the maximum period of 18 months to cover the 28 day appeal period and the time that might be required to conclude any appeal. She submitted that the Panel should proceed with this application despite the absence of the registrant.

2. The Panel decided that it was appropriate to consider the HCPC’s application in the Registrant’s absence because he had been informed in the Notice of Hearing that such an application might be made. Furthermore, there are no additional factors which would justify deviating from the Panel’s decision, made at the outset of this hearing, to proceed in the Registrant’s absence. In these circumstances, the Panel was satisfied that the Registrant had chosen not to participate, and that no useful purpose would be served by adjourning this application. Furthermore, a substantive order has been imposed, and there is public interest in ensuring that an interim order application is considered with due expedition. It therefore decided to proceed with the application in the absence of the Registrant.

Decision
3. In reaching its decision the Panel considered all the information before it together with its findings on impairment and the submissions by Ms Parry. It also took into account the HCPTS Practice Note “Interim Orders” and the relevant paragraphs of the HCPC “Indicative Sanctions Policy”. It accepted the advice of the Legal Assessor.

4. It was satisfied that as it has found that the Registrant’s fitness to practise is impaired and that there is a risk of repetition of his conduct, an Interim Order is necessary for the protection of the public. Furthermore, an order is also in the public interest as right thinking members of the public would be concerned if the Registrant were allowed to practise unrestricted until the Substantive Order comes into effect. It therefore determined that an Interim Order was necessary for the protection of the public and is otherwise in the public interest.

5. The Panel was satisfied that during the appeal period there were no workable or appropriate conditions which would be sufficient to protect the public. It therefore concluded that an Interim Suspension Order was necessary to protect the public. Such an order is also in the public interest, to maintain public confidence in the profession and the regulatory process. Although the Registrant will be unable to practice during the currency of this Interim Order, his interests are outweighed by those of the public. The Interim Suspension Order will be for a period of 18 months to cover any appeal period.


Interim Order

6. The Panel makes an Interim Suspension 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.

7. 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 Aston Porter

Date Panel Hearing type Outcomes / Status
13/05/2019 Conduct and Competence Committee Final Hearing Struck off