1. The Registrant was sent a Notice of Hearing on 30 March 2020.
2. In line with the Government’s recommendations in relation to the COVID 19 pandemic, the HCPC have made the decision to suspend all public hearings and instituted a process where all hearings are ‘on the papers’ The Registrant was invited to prepare written submissions for consideration. On 21 April 2020, Mr Weinbren sent in written submissions on behalf of the Registrant.
3. The Panel accepted the advice of the Legal Assessor.
4. The Panel determined that the email dated 30 March 2020 was delivered to the Registrant by email. The Panel therefore find that there has been good service.
Proceeding on the papers
5. The HCPC applied to have this application heard in the Registrant’s absence under Rule 11 of the Health Professions Council (Conduct and Competence Committee) Rules 2003.
6. The Registrant was served with the notice of hearing which informed him that the hearing would be on the papers. In light of the government’s recommendations on containing the current COVID 19 pandemic, this hearing which would ordinarily have taken place with both parties present is being dealt with on the papers, to ensure that as a regulator, the HCPC can continue to perform its’ statutory duties of protecting the public and maintaining the integrity of the register. The Notice identified the date for the hearing, and confirmed that the matter would be considered ‘on the papers’. This is a mandatory review of the current order and there was no objection from Mr Weinbren to the hearing taking place on the papers.
7. The Panel accepted the advice of the Legal Assessor.
8. The Panel determined that the Registrant had had notice of the intention to proceed to hear this application on the papers. In light of the current COVID-19 pandemic, the Panel accepts that the HCPC has had to adapt the procedure and that currently all applications are heard on the papers. The Panel have carefully read the Registrant’s reflective piece sent in on 9 March 2020, his reference dated 7 February 2020 and the submissions lodged on his behalf by Mr Weinbren. The Panel determined that it was in the interests of justice to proceed to consider the application. The Order is due to expire on 28 May 2020. The question of whether the Registrant has complied with the current order needs to be assessed before the order expires. The Panel find that it is both in the Registrant’s interests and in the public interest for a review of the statutory order to take place as scheduled so that a proportionate decision can be made as to whether the Registrant can be reinstated onto the Register without conditions or whether a further order is necessary.
9. Between 22 August 2016 and 02 July 2017, the Registrant worked as a Band 6 Radiographer at Prince Charles Hospital. In 2015, he had worked as a locum Radiographer at Barnsley General Hospital.
10. 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 sexual in nature. Following this, concerns were raised that the Registrant had also previously made inappropriate comments to two students during their placements at the hospital, Colleagues 2 and 3. Colleague 2 stated 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.
11. The Registrant was referred to the HCPC on 14 November 2017. The HCPC conducted an investigation, and a Substantive Hearing took place 23-30 April 2019. The Panel found that the Registrant made inappropriate comments towards the three colleagues. They also found that a number of these comments were sexually motivated.
12. During the substantive hearing the Registrant denied all of the factual particulars. He told the Panel he was a devout “Born Again Christian”, and would not have acted in the manner alleged, nor would he have pursued a relationship with anyone outside of his own community. He stated that in June 2017 he was focused on his forthcoming wedding. He stated that he had never had complaints of this nature raised against him and he called two colleagues who spoke to the fact that he was always appropriate in their presence. He believed the complainants were friends and had conspired together to make up the complaints.
13. The Panel determined that the colleagues who gave evidence for the HCPC were credible. They had no motive to make false allegations, and the Registrant’s assertion that they had colluded was not credible. The Panel considered the comments made were unprofessional and inappropriate and were so serious as to amount to misconduct. The Panel found that the behaviour was not at the most serious end of the scale of sexual or inappropriate behaviour, but that making sexually motivated comments to junior colleagues in professional environments, would be considered deplorable by other members of the profession and by members of the public.
14. The Panel found that the Registrant’s misconduct was remediable, however he had denied the matters throughout the hearing and therefore had not taken any remedial steps. He had not shown any remorse, or acknowledged the impact of his behaviour on the colleagues. Therefore, there was a risk of repetition of similar misconduct, and the Registrant’s fitness to practise was, found to be impaired.
15. The Registrant was unwell on the day when the Panel determined sanction. The Panel was advised by the Mr Weinbren (who appeared for the Registrant) at the substantive hearing that the Registrant accepted the Panel’s findings, including the finding of sexual motivation. He was committed to remaining in his current employment and working with his current manager to address the issues. The Panel considered this was the first stages of developing insight. The Panel deemed that a Caution Order would be insufficient to mark the seriousness of the findings, protect the public, and maintain public confidence in the profession. The Panel identified Conditions of Practice which could be formulated to appropriately address the misconduct, whilst allowing an otherwise competent radiographer to remain in practice. The
Conditions imposed were:-
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 Any prospective employer ( at the time of your application).
Evidence submitted by the Registrant for the hearing
16. On 16 October 2019 the Registrant sent the HCPC a certificate which showed that he had attended a course on professional boundaries provided by National Training Academy and had been awarded a Level Two.
17. The HCPC received a reference from “LS” the CT Lead Radiographer at University Hospitals Coventry and Warwickshire NHS Trust, dated 7 February 2020 in which she stated that the Registrant was one of “hardest working and considerate radiographers that she had had the pleasure of working with”. She stated inter-alia that his manner towards staff and patients was ‘kind and considerate’ and that he acted in a professional manner at all times. She had supervised the Registrant since November 2017 and has never seen any interaction that would alert or worry her. She added that she would be “happy for him to care for a member of her family”. None of her staff or other members of staff have expressed any concerns. She expressed the hope that the Registrant could put this unhappy period behind him.
18. In his reflective piece dated 2 February 2020, the Registrant focused on the length of time between the allegations and the hearing and the impact that this had on him. He stated that he initially believed that his comments had been taken out of context but now “recognises that he crossed the line between friendship and professionalism”. He accepted that his “thought pattern was inappropriate” and stated that “I should take responsibility for what I did. I made these women feel uncomfortable with my words and behaviour and failed to realised that a relationship is intricate and I should have held my piece. I feel sorry for myself for over-looking these professional boundaries and I put myself in trouble and shame”. He went on to state that he should think more about the difference between personal and professional boundaries and that he needed to be aware of cultural differences, should comply with “company rules and regulations in terms of words and actions”. He stated that he made a grave error and that his shortcomings “hurt individuals his family and endangered his chosen profession”.
19. On 9 March 2020 the Registrant informed the HCPC that he intended to return to the United States for a period of 3 months to care for his mother who was terminally ill with bone cancer. He stated that as a result he had given up his permanent job on 27 March 2020 but had been assured that on return he would be able to return to work as bank staff.
20. The HCPC submitted that the Registrant’s reflective piece did not comment sufficiently on condition 5 which required him to address “how he has implemented the training…in his current role”, nor had he adequately addressed “how he would recognise and deal with words or actions that could be perceived as having a sexual connotation” It also does not deal sufficiently with his reflection on the impact of his misconduct on his colleagues.
The Registrant’s submissions
21. Mr Weinbren submitted that the Registrant had attended an appropriate course and had provided an excellent reference. He had accepted responsibility and had reflected on his actions. His insight had increased and he deeply regretted his actions. The Registrant works with junior colleagues and is appropriate. He has two young children. He submitted that the Registrant was no longer impaired and should be permitted to return to unrestricted practice.
22. The Panel accepted the advice of the Legal Assessor.
23. The Panel accept that the Registrant has taken significant steps to meet the Conditions of Practice imposed by the Panel at the end of the substantive hearing. He has complied with Conditions 1-4 and 6-10. His reference from his supervisor is excellent. There are no issues with his competence and as observed by the previous panel he appears to be respected as an able radiographer.
24. This is a case where the Panel would have benefited from hearing oral evidence from the Registrant on condition 5. The Panel found that the Registrant’s reflective piece focused primarily on his own journey and on the impact that these proceedings have had on him, rather than the impact that his behaviour has had on his colleagues the Registrant has not shown in his reflective piece what he learnt from his training nor has he explained the strategies he has implemented to ensure that he observes professional boundaries.
25. The Panel are mindful of the fact that the Registrant wrote to the HCPC asking for an early hearing and that but for COVID 19, it would have been able to ask questions of the Registrant, which may have addressed the gaps in the written evidence. However, the Registrant bears the “persuasive burden”, as set out in Abrahaem v GMC  EWHC 183 and the Panel were not satisfied on the evidence before it, that the Registrant is no longer impaired. Despite his excellent reference the Registrant’s own reflective piece did not set out the strategies he has developed to ensure that the conduct is not repeated. The Panel is mindful that its overarching objective is public protection. The Panel note that this case should be brought back for early review so that the Registrant has the opportunity to attend and to answer questions. However, on the evidence the Panel is satisfied that a further Conditions of Practice Order for 6 months is proportionate.