Mr Michael Fernando

Preliminary Matters

Service

1. The Panel was aware that written notice of these proceedings was posted by first class post to the Registrant at his registered address on 18 July 2019. The notice was also sent by email on the same date. The Panel was shown documents which established both the fact of the service and the identity of the Registrant’s registered address. In these circumstances, the Panel accepted that proper service of the notice had been effected in accordance with the rules.

Proceeding in the Absence of the Registrant

2. Mr Bridges, on behalf of the HCPC, submitted that the Panel should consider the case in the absence of the Registrant.

3. Mr Bridges informed the Panel that the HCPC had received an email from the Registrant dated 26 July 2019, stating that he was not intending to attend this hearing though he wished to send a representative and written representations. In the event, despite other exchange of emails in August 2019, the HCPC has received no information from the Registrant over the subsequent weeks regarding the appointment of a representative and none is here today. Nor has the HCPC received any subsequent representations to add to the substantial representations previously submitted.

4. The Panel heard and accepted the advice of the Legal Assessor.

5. The Panel was aware that a decision to proceed in the absence of the Registrant was one to be taken with great care and caution. The Panel has decided to proceed in the absence of the Registrant. The reasons are as follows:

(i) Service of the appropriate notice of this hearing has been properly effected. The Registrant is evidently aware of today’s hearing and the significance of the hearing.

(ii) The Registrant has not applied for an adjournment.

(iii) The Panel has noted the contents of the email from the Registrant dated 26 July 2019, which clearly states that the Registrant does not intend to attend these proceedings.

(iv) The Panel has received two undated written representations from the Registrant, one entitled “Statement of Apology” and the other, an apparently later and untitled document, which together set out the facts and matters which he wishes the Panel to take into account. Both these documents were received by the HCPC by March 2019.

(v) The Panel has kept in mind the guidance contained in the HCPTS Practice Note “Proceeding in the Absence of the Registrant”.

(vi) There is no reason to suppose that an adjournment would result in the future attendance of the Registrant.

(vii) There is a public interest in proceeding: the case involves events predating 29 November 2017, and a court hearing on 3 August 2018, over a year ago.

(viii) In all the circumstances, the absence of the Registrant should be treated as voluntary.

Background

6. The Registrant is registered with the HCPC as a Chiropodist. On 30 November 2017, the Registrant voluntarily attended Acton Police Station to make a statement in relation to the offences after a police search of his home resulted in his laptop being seized. The Registrant provided the police with other electronic devices to be examined.

7. On 12 January 2018, the Registrant changed his name by deed poll from Milan Fernando to Michael Fernando.

8. On 3 July 2018, the Registrant appeared before Uxbridge Magistrates Court where he pleaded guilty to three charges of making indecent images of children. The Registrant was then committed to lsleworth Crown Court for sentencing.

9. On 3 August 2018, the Registrant was sentenced to 12 months imprisonment wholly suspended for 18 months and was made subject to a sexual harm prevention order until further order.

10. No oral evidence was called on behalf of the HCPC and no witness statements were tendered. Mr Bridges submitted a bundle of documents for the consideration of the Panel which included:

(i) A self-referral email from the Registrant to the HCPC dated 22 January 2018.

(ii) The Registrant’s Deed Poll dated 12 January 2018.

(iii) Memorandum of Conviction dated 3 July 2018.

(iv) Certificate of Conviction of Finding dated 3 August 2019.

(v) The Police Case Summary.

(vi) Transcript of mitigation and the sentencing remarks made by Mr Recorder Davies in the Isleworth Crown Court on 3 August 2018, the case having been transferred from the Magistrates Court to the Crown Court for the purpose of sentence.

11. The Panel noted the summary of the facts as they appeared in the Police Case Summary. In substance they were as follows; on 30 November 2017 the Registrant arrived at Acton Police Station and stated that he had heard that a search warrant had been executed at his home the previous day and his laptop was seized. He stated that he wanted to come forward and confess. He was cautioned and then interviewed. The Registrant stated in interview that over the last few years, on and off, he had been viewing online and downloading indecent images and videos of children. He stated that he knew that it was wrong and that he had a problem and wanted to stop. The Registrant stated that he was disgusted with himself. He said that he believed that the images and videos showed children between the ages of 13 and 14, though they could have been younger. He identified his “regular site”. However, he said that he did use other sites on line to chat to people who shared with him videos and images of children. He said that some of the images might be stored on his laptop. He produced his mobile phone and tablet and provided the password to his laptop.

12. The Panel noted the sentencing remarks of Mr Recorder Davies. The Panel noted that the Registrant was a man of previous good character. It also noted that the Recorder gave the Registrant credit for having pleaded guilty to the offences. The Panel further noted that the Recorder stated in his sentencing remarks that, the offences had been committed over a period of 18 months and had included distributing images as a means of satisfying the Registrant’s own sexual needs, albeit he had not been charged with distribution. The Recorder remarked that had the Registrant been charged with distribution there would have been no alternative but to impose an immediate custodial sentence.

13. The Panel has read in full the “Statement of Apology” and the untitled document, both of which the Registrant has submitted for the consideration of the Panel. In the documents he expresses remorse and shame at his actions, he describes his past career and passion for the profession, his engagement with the probation service and the Lucy Faithful Foundation (LFF) to address his past behaviours, and his plans for the future.

14. The Panel received a detailed submission from Mr Bridges in respect of the facts, conviction and impairment. In summary, he submitted as follows:

(i) That all the particulars comprised in Particular 1 of the Allegation are proved by the Memorandum of Conviction and the Certificate of Conviction.

(ii) The Panel should not go behind the convictions or the facts on which the convictions were founded.

(iii) That by reason of the convictions the Registrant’s fitness to practise is currently impaired. He referred to the relevant Practice Note. He submitted to the Panel that the risk of repetition could not be excluded and further that public confidence in the profession would be undermined if the Panel was not to find that the Registrant’s fitness to practise is impaired.

15. The Panel took into account all the material produced by the HCPC. The Panel also took into account the “Statement of Apology” and the untitled document received from the Registrant.

16. The Panel heard and accepted the advice of the Legal Assessor as to facts, conviction and impairment.

17. The Panel was aware that on matters of fact the burden of proof rests on the HCPC and that the standard of proof is the civil one, namely on the balance of probabilities.

Decision on Facts and Grounds

18. Having considered all the evidence that it has received and the submissions that it has heard, the Panel makes the following findings as to facts;

19. The Panel is satisfied that Particulars 1(a) – (c) have been proved and that the ground of impairment, namely a conviction is made out. In coming to these conclusions the Panel has seen, and has accepted as conclusive proof, the Memorandum and Certificate of Conviction. Moreover the Registrant has always admitted the fact of the convictions. The nature, extent, and duration of his offending is inherently serious as is the harm that is caused.

Decision on Impairment

20. The Panel has heard and accepted the advice of the Legal Assessor. The Legal Assessor referred the Panel to relevant case law. The Panel is aware that any finding of impairment is a matter for the independent judgement of the Panel and that, in respect of this issue, there is no burden or standard of proof.

21. Having heard the submissions of Mr Bridges the Panel found that the Registrant was in breach of the provisions set out in paragraph 9 of the HCPC “Standards of conduct, performance and ethics” (the 2016 version).

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

22. The Panel proceeded to consider whether the Registrant’s fitness to practise is impaired by reason of the convictions. The Panel is aware that what is to be assessed is the Registrant’s current fitness to practise. In considering this issue, the Panel considered and applied the principles stated by Mrs Justice Cox in the case of the Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council; Paula Grant [2011] EWHC 927 [Admin]. The Panel considered whether there was a risk that the Registrant would in the future act in a way similar to that found proved. In this context, the Panel also considered the case of Cohen v General Medical Council [2008] EWHC 581 (admin). The Panel further considered whether public confidence in the profession, in the HCPC as its regulator and the need to maintain proper standards of conduct, would be prejudiced if a finding of current impairment was not made. In addressing the question of impairment the Panel also took into account the guidance that has been issued by the HCPTS.

23. The Panel first considered whether there was a risk that the Registrant would repeat the conduct that it had found proved. The Panel came to the conclusion that the risk of repetition could not reasonably be excluded and that there was a significant risk of repetition. In coming to this conclusion the Panel had in mind the following considerations:

(i) That though the Registrant has shown some insight and did plead guilty to the offences, he himself has admitted in a document that he submitted to the HCPC “that it is far too early to trust me”.

(ii) That contrary to the comment made in the document that the Registrant has submitted to the HCPC, the offences cannot be characterised as a “one -off mistake” but were committed over an extended period of time.

(iii) The convictions involve the downloading of many tens of still and moving images of child sexual abuse imagery over an extended period of time. The images include penetrative sexual activity with children. The judge describes images “showing fear in [the] eyes” of the victims. The Registrant has admitted to the police, the probation service and the court that his behaviours included engaging with others in his criminal activity.

(iv) There is no independent evidence to support a conclusion that the risk of repetition can reasonably be excluded or to support a conclusion that the Registrant has satisfactorily addressed or remediated his propensity to commit these offences. The Registrant is given credit for, on his account, engaging with the probation service and the LFF. However, the Panel has no independent evidence of the extent of his engagement, nor of the impact this may have had on his future conduct. The Panel cannot, without more, accept his written statements that he will not repeat the behaviours.

24. Accordingly, the Panel did find current impairment on the ground, sometimes referred to as the “personal component”.

25. Moreover, the Panel has concluded that public confidence in the profession and in the HCPC as its regulator, would be undermined if a finding of impairment was not made. The Panel also concluded that the need to maintain proper standards within the profession required a finding of impairment given the nature and seriousness of the convictions. Accordingly, and for these reasons, the Panel has concluded that the Registrant’s fitness to practise is also presently impaired on what is sometimes referred to as the “public component”. The Panel’s considerations include the following;

(i) The risk that the Registrant will repeat the same or similar offences cannot be excluded.

(ii) The Registrant has admitted that harm was caused to the children whose images he had accessed.

(iii) The Registrant has been convicted of very serious offences which include making 78 Category A indecent images of children.

(iv) The Registrant is still subject to a suspended prison sentence which will remain in place until 2 February 2020.

(v) The Registrant is subject to a Sexual Harm Prevention Order which will remain in place until further order.

(vi) The Registrant’s behaviour was a serious departure from the standards of conduct identified above.

(vii) A failure on the part of the Panel to hold that the Registrant’s conduct as found proved, did not amount to present impairment, would undermine public confidence in the profession and in the HCPC as its regulator. A finding of no impairment would not be compatible with the need to uphold proper standards of conduct on the part of Chiropodists / Podiatrists.

Decision on Sanction 

26. Having concluded that the Registrant’s fitness to practise is impaired, the Panel proceeded to consider what, if any order, is appropriate and proportionate, having regard to its findings as set out above and in particular, to address the public interest that is engaged in this case.

27. Mr Bridges made submissions on behalf of the HCPC. He emphasised that the decision as to the appropriate sanction to be imposed was a matter for the judgement of the Panel and the HCPC did not intend to make any specific submissions as to the appropriate sanction. He reminded the Panel of the principle of proportionality. He said that the Panel should have regard to the HCPC “Sanctions Policy” (March 2019). He reminded the Panel that it should have regard to both aggravating and mitigating factors, which he identified. He referred to case law that indicates that a registrant subject to a criminal sanction should not ordinarily be allowed to return to practice until the sanction was concluded.

28. The Panel has considered all the submissions and evidence that it has heard and read. It has accepted the advice of the Legal Assessor. It has taken account of the “Sanctions Policy” and in particular those paragraphs that address criminal convictions and the downloading of indecent images of children. It kept in mind that the purpose of a sanction is not to be punitive but to protect the public and to maintain the public interest. The Panel was very conscious of the need to protect the public, the deterrent effect that an appropriate order could have on other registrants, the need to safeguard the reputation of the profession concerned and also the need to maintain public confidence in the regulatory process itself.

29. The Panel took into account the principles of proportionality, balancing the interests of the Registrant with the public interest.

30. The Panel also took into account the relevant aggravating and mitigating factors.

31. As regards the aggravating factors; the Panel noted:

(i) The offences were committed over an extended period and included the Registrant’s engagement with others in the commission of the offences for which he was convicted.

(ii) The offences included making 78 Category A indecent images of children.

32. As regards mitigating factors; the Panel noted that:

(i) Prior to these offences the Registrant was a person of good character.

(ii) The Registrant pleaded guilty at the earliest opportunity and co-operated with the police in their investigation of the offences.

(iii) The Registrant’s expression of remorse and shame carry some conviction and display some insight. Also the Registrant asserts that he is seeking to address and remediate the conduct which led to the convictions.

33. The Panel has concluded that to take no action or to impose a Caution Order would be wrong. Such an outcome would be inappropriate having regard to the facts of the case. It would not protect the public or maintain public confidence in the profession or in the HCPC as its regulator. It would not send the appropriate message to the public or to fellow professionals.

34. The Panel next considered making a Conditions of Practice Order. It has taken into account the guidance in the “Sanctions Policy”. It has concluded that a Conditions of Practice Order would not be appropriate. Conditions cannot be formulated which would protect the public or address the public interest or would ensure that the Registrant did not repeat his conduct.

35. The Panel next considered a Suspension Order. It concluded that a Suspension Order would not be appropriate or sufficient to protect the public or to satisfy the public interest. In coming to this conclusion the Panel kept in mind all the matters that caused it to come to the conclusion that the Registrant was presently impaired; in particular that the risk of repetition could not be excluded, the very serious nature of the offences, the fact that they were committed over an extended period and were committed in concert with others.

36. The Panel determined that a Striking Off Order is the only order that is sufficient and appropriate to protect the public and to address the public interest considerations which it has identified. In coming to this conclusion, the Panel had well in mind the statement in the “Sanctions Policy” that whilst a Striking Off Order is the order of last resort it is appropriate for serious persistent and deliberate acts involving indecent images of children. Those criteria apply in the present case. In addition, the Registrant remains subject to not only a suspended prison sentence but also an indefinite Sexual Harm Prevention Order which is incompatible with registration.

ORDER: The Registrar is directed to strike the name of Mr Michael Fernando from the Register on the date this Order comes into effect.

Interim Order

The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

This Order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) upon the final determination of that appeal, subject to a maximum period of 18 months.

1. Mr Bridges submitted that the Panel should now make an Interim Suspension Order on the grounds that it was necessary for the protection of members of the public and was otherwise in the public interest. He submitted that the letter dated 18 July 2019 giving the Registrant notice of the substantive hearing, informed the Registrant, that in the event of the Panel finding the case against him being well founded and making an order which removes, suspends or restricts his right to practise, it might also make, with immediate effect, an interim order which suspends or restricts his right to practise.

2. The Panel accepted the submission of Mr Bridges and the legal advice of the assessor.

3. It accepted that the Registrant had been given notice of the fact that the Panel could now make an interim order with immediate effect. The Panel decided that it should consider the application in the absence of the Registrant given its earlier finding and the terms of the notice of hearing. It determined that having regard to all its findings that are set out above, an interim order was necessary for the protection of members of the public and was otherwise in the public interest. In coming to this conclusion the Panel took into account the fact that the risk of repetition could not be excluded and also that the Registrant was still subject to a suspended sentence of imprisonment and to a Sexual Harm Prevention Order. The Panel did not think that an Interim Conditions of Practice Order was appropriate. Its reasons are precisely the same as those set out above. In these circumstances, the Panel concluded that only an Interim Suspension Order for a period of 18 months, would protect the public, maintain public confidence and declare and uphold proper standards within the profession.

History of Hearings for Mr Michael Fernando