Mr Andrew Sandrasagra
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Allegation referred to Conduct and Competence Committee:
While registered with the Health and Care Professions Council as a Biomedical Scientist:
1. On 18 June 2019 at the Guildford Crown Court you were convicted of:
a) Commit an act / series of acts with intent to pervert the course of public justice
b) Making indecent photograph/ pseudo-photograph of children (x3)
2. By reason of your conviction, your fitness to practise is impaired.
Notice and Proceeding in Absence
1. There was no appearance by the Registrant or by anyone on his behalf when the Panel decided to call the case on for hearing at 11.15am (it having been scheduled for commencement at 10.00am). The Panel was provided with confirmation that the Notice of Hearing had been sent by e-mail to the Registrant’s registered e-mail address, on 2 June 2020. Accordingly, the Panel concluded that service had been complied with in accordance with Rule 3 of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2012 (“the Rules”).
Proceeding in absence
2. The Panel went on to consider whether to proceed in the absence of the Registrant. It heard detailed submissions from Ms Hastie, for the HCPC, who argued that the Panel should proceed in the Registrant’s absence (which submissions included reference to correspondence with the Registrant) followed by legal advice from the Legal Assessor, both of whom referred to the HCPC’s Practice Note entitled “Proceeding in the absence of the Registrant”. The Panel was aware, in accordance with that Practice Note, that it is only in rare and exceptional circumstances that the Panel should proceed to hear a case in the absence of a Registrant and then only if it is in the interests of justice. The Panel noted that the Registrant had: (i) stated in correspondence with the HCPC in January 2020 that he had appealed against the criminal conviction in August 2019 and was expecting such appeal to be heard in June 2020; (ii) further advised the HCPC in February 2020 that (in relation to the hearing originally scheduled in April 2020, which was adjourned due to the Covid 19 Pandemic) he intended to attend the hearing in person; and (iii) in May 2020 confirmed that he was content for the HCPC’s hearing bundle to be served upon him electronically. However, he had not responded to an e-mail from the HCPC’s Case Officer sent on Monday 4 August 2020 about lodging his own appeal bundle nor had he initially responded to the HCPC’s Hearings Officer when she e-mailed him on Friday 7 August 2020. The Panel did note that, in a subsequent telephone conversation later that day with the Hearings Officer, the Registrant had confirmed that he would be attending the virtual hearing today, although he did not confirm that in writing. Finally, despite the Hearings Officer sending a further e-mail to the Registrant and leaving a message on the Registrant’s mobile telephone answering service, today between 09.45am and 11.15am, there had been no response from him.
3. In reaching its decision, the Panel took account of the HCPC’s Practice Note entitled “Proceeding in the absence of the Registrant” and the advice of the Legal Assessor. It noted that there had been contact with the Registrant, as recently as the previous working day before the hearing. It therefore considered that, if there had been an urgent and unexpected development which had prevented his attendance at the hearing, the Registrant would have been aware of the means whereby contact with the HCPC could have been established. It further noted that, although the Registrant had been spoken to on Friday 7 August 2020 by the Hearings Officer and that he had stated that he intended to attend the hearing, he had not confirmed this in writing; had not submitted any documentation for consideration by the Panel; and had failed to respond to reminders of the hearing today.
4. Furthermore, the Panel noted that there was no application for any adjournment before it. In addition, although the Registrant had indicated that he had appealed against his conviction in August 2020 (which formed the basis for the Allegation) he had not submitted any documentary confirmation from the appeal courts confirming that an appeal was in process (which may arguably have been a reason for adjourning today’s hearing). Moreover, the Registrant had been given two months’ notice of today’s hearing and had been notified of the previous hearing in April 2020 which had been adjourned, so had been well aware of the case against him and of its nature for over six months. In those circumstances, the Panel concluded that the Registrant had voluntarily absented himself from today’s hearing and determined that it was appropriate to proceed in his absence as it was in the interests of justice to do so.
5. The Registrant was registered with the HCPC as a Biomedical Scientist on 21 June 2013 and at all material times remained so registered.
6. The HCPC received notification from Surrey and Sussex NHS Trust on 6 August 2018 that the Registrant was subject to a criminal investigation.
7. On 18 June 2019, the Registrant was convicted of three counts of making indecent images of children and perverting the course of justice at Guilford Crown Court. The Registrant received a custodial sentence of 15 months’ imprisonment on 5 August 2019.
8. In sentencing the Registrant on that date, the presiding Judge, His Honour Judge Taylor, summarised the facts of the case. The Panel considers it appropriate to quote some of his sentencing remarks verbatim as they accurately and succinctly set out the details of the facts behind this case:
“On the 18th of June, the jury convicted you of all counts on the indictment. Police executed a warrant at your home in Redhill on the 21st of March, 2018. An HP laptop was seized from the spare bedroom and examined…On it were found 108 category A images, 20 images and 88 films, 46 category B images, five images and 41 films, and 10,892 category C images. That’s 10,856 images and 36 films. These were counts 1 to 3. There was an ex directory on the laptop, in which much of this material was catalogued, in addition to folders which contained pictures and films of you having sex with ex girlfriends. This was…catalogued by name.
The prosecution was able to prove in a timeline that images were being accessed at the same time, or immediately before or after you were looking at this material, or performing other searches. For example, on the 24th of June 2015, at which time you were living with your wife in hospital accommodation in Epsom, images were being accessed from 08.18 in the morning. This was interspersed with chat logs with your wife about obtaining tickets for ‘Wicked’, and then searches for ‘Wicked’ tickets. Having been charged with counts 1 to 3, you volunteered a statement, subsequent to your defence statement. In it, you asserted alibi in relation to five dates. You provided photographs, credit card statements and Nike run out logs for runs that you said that you’d been engaged in at the time. Some of the…images were being accessed.
These were investigated and revealed to be bogus. Your mistake was to have forgotten that the police had taken forensic copies of both in that book and the iPhones at the time of the original arrest. When compared with very recent downloads, it was possible to show that certain of the items relied upon, simply had not existed at the time you said they’d been created. For example, on the 10th of March 2016, you provided a photo of you and a lady called Chandy. You were certain that you had lunch with her in Gerrards Cross. In fact, when the metadata was examined, it was established that the photo was taken on an iPhone 7, which was not released until the 16th of September that year, with an iOS software version, which was not released until the 8th of October 2018.
For the 16th of March 2016, you provided a photo which, when compared to the original phone download, was found to have been taken on the 27th of April 2016 with an iPhone 6, using an operating system not released until the 31st of March 2016, 15 days after you said the photo had been taken. For the 26th of March 2016, you relied upon an American Express statement, which proved, you said, that you were lunching with your wife at a time when images were being accessed. This was untrue. The transaction was timed at 22.08 hours, and WhatsApp logs for the day showed that your wife was dining with a female friend of hers that night, and not lunching with you at the same venue. On other dates, you created false run logs, which you suggested had not synced with the app at the time, because your wife never used Wi-Fi.
It is easy to understand why you did this. Your entire life, your career, your family were at stake, and so you chose to try and construct a defence and lie your way out of this indictment. The material you submitted was a detailed and calculated effort to pervert the course of public justice.”
Decision on Facts
9. In considering this case the Panel bore in mind that the burden of proving the facts rests upon the HCPC and that the standard of proof is the civil standard of the balance of probabilities. It has taken account of all the documentary evidence presented to it by the HCPC. It notes that the Registrant has presented no evidence, neither written nor oral. It has also considered the detailed submissions of Ms Hastie and has accepted the advice of the Legal Assessor, who referred the Panel to the HCPC Practice Note entitled “Conviction and Caution Allegations”.
10. In particular, the Panel noted the following extract from the said Practice Note:
“Dealing with conviction allegations
The Panel rules [at Rule 10] provide that:
“where the registrant has been convicted of a criminal offence, a certified copy of the certificate of conviction (or, in Scotland, an extract conviction) shall be admissible as proof of that conviction and of the findings of fact upon which it was based;”
Those rules also provide that, evidence is admissible before a Panel if it would be admissible in civil proceedings before the appropriate court in that part of the UK where the Panel is sitting.
In all three UK jurisdictions, evidence that a person has been convicted of an offence is generally admissible in civil proceedings as proof that the person concerned committed that offence, regardless of whether or not the person pleaded guilty to that offence.”
11. The Panel confirms that the Certificates of Conviction in respect of the charges specified in Particular 1 have been presented to it. Moreover, the Registrant has not denied that Particular – indeed, he has implied that the convictions took place since he has referred to an appeal against them. Accordingly, the Panel finds Particulars 1(a) and 1 (b) proved.
Decision on Statutory Ground
12. The Panel once again took account of the advice of the Legal Assessor, who stated that, generally, in assessing whether the Registrant’s actions satisfied the statutory ground of Conviction, the Panel had to be satisfied that the convictions were sufficiently serious to give rise to concerns about the Registrant’s Fitness to Practise since not all convictions would put his Fitness to Practise in jeopardy, such as very minor Road Traffic Act offences.
13. The Panel took account of the fact that the convictions in Particular 1 were for offences involving (i) child pornography; and also (ii) for attempting to pervert the course of justice by fabricating alibis, which amounts to deliberate and calculated dishonesty; both of which are always regarded as serious in the regulatory sphere – indeed, the Panel notes that matters of “Dishonesty” and “Sexual Abuse of Children” are referred to in the HCPC’s Sanctions Policy document as “Serious Cases”. It therefore concluded that the convictions specified in Particular 1 were serious enough to engage the statutory ground of Conviction.
14. The Panel also concluded that the Registrant had breached the following Standards of conduct, performance and ethics as a Registrant with the HCPC, namely:
9 – Be honest and trustworthy
9.1 – You must make sure that your conduct justifies the public’s trust and confidence in you and your profession
Decision on Impairment
15. In reaching its decision on impairment, the Panel has taken account of the submissions of Ms Hastie, the lack of any testimony of the Registrant and the advice of the Legal Assessor. It has also taken account of the HCPC Practice Note “Finding that Fitness to Practise is Impaired”.
16. The Panel has reminded itself that, as fitness to practise is about public protection, in considering allegations Panels need to address what the case law describes as the ‘critically important public policy issues’ of: protecting service users; declaring and upholding proper standards of behaviour; and maintaining public confidence in the profession concerned.
17. Accordingly, in determining fitness to practise allegations, Panels must take account of two broad components: the ‘personal’ component (namely the current competence and behaviour of the registrant concerned); and the ‘public’ component: (namely the critically important public policy issues outlined above).
18. Further, the Panel is aware that the personal component must be considered first, and the Panel’s task is to form a view about the Registrant’s current fitness to practise based on, among other things, his past acts or omissions. The key questions which need to be answered are:
• are the acts or omissions which led to the allegation remediable?
• has the Registrant taken remedial action?
• are those acts or omissions likely to be repeated?
19. In addition, an important factor will be the Registrant’s insight into those acts or omissions, namely the extent to which the Registrant: (i) accepts that his behaviour fell below professional standards, understands how and why it occurred and its consequences for those affected; and (ii) can demonstrate he has taken action to address that failure in a manner which remedies any past harm (where that is possible) and avoids any future repetition. In particular, it takes account of the fact that it is unlikely that a registrant who lacks insight and thus has not accepted his failure or taken remedial steps would be regarded as being at a low risk of repetition.
20. Having considered the personal component, Panels must next consider the three elements of the public component. The first element of the public component - the need to protect service users - overlaps with the personal component. A registrant who has insight and is unlikely to repeat past acts or omissions is unlikely to present an ongoing/ future risk to service users.
21. The other two elements of the public component are maintaining professional standards and public confidence in the profession concerned. The professional standards expected of registrants are what the public expects of them. Panels should consider the need for the public to have confidence in the registrants they are treated by. The public is entitled to expect registrants who are professionally competent and act with decency, honesty and integrity. The public should also be able to rely on the regulatory process to be robust, fair and transparent.
22. The Panel noted that the key question to be answered on this aspect of impairment is, given the nature of the allegation and the facts found proved, would public confidence in the profession be undermined if there were to be no finding of impairment?
23. In addition, the Panel took account of the following further extract from the Practice Note “Conviction and Caution Allegations”, which appeared to it to be pertinent to its deliberations, namely:
“Panels must be careful not to ‘go behind’ a conviction and seek to re-try the criminal case. The Panel’s task is to determine whether fitness to practise is impaired, based upon the nature, circumstances and gravity of the offence concerned, and, if so, whether any sanction needs to be imposed…In considering the nature, circumstances and gravity of the offence, Panels need to take account of public protection in its broadest sense, including whether the registrant’s actions bring the profession concerned into disrepute or may undermine public confidence in that profession. In doing so, Panels are entitled to adopt a 'retrospective' approach and consider the conviction as if the registrant was applying for registration with the HCPC.
Although Panels cannot re-try criminal cases, they may have regard to whether the registrant pleaded guilty to the offence and, if so, at what stage in the proceedings. A guilty plea entered at the first reasonable opportunity is indicative of a greater insight on the part of the registrant than one entered at the last moment. A registrant who is convicted of an offence but maintains that the conviction was wrong may lack insight into their offending behaviour and this may have a significant bearing upon the sanction which a Panel should impose in order to protect the public.
In reaching its decision, a Panel should also have regard to any punishment or other order imposed by the courts, but must bear in mind that the sentence imposed is not a definitive guide to the seriousness of an offence. Panels should not assume that a non-custodial sentence implies that an offence is not serious. One factor which may have led the court to be lenient is the expectation that the registrant would be subject to regulatory proceedings.
As Dame Janet Smith noted in the Fifth Shipman Inquiry Report:
“The fact that the court has imposed a very low penalty or even none at all should not lead the [regulator] to the conclusion that the case is not serious in the context of [its own] proceedings…The role of the [regulator] in protecting [service users] involves different considerations from those taken into account by the criminal courts when passing sentence…What may well appear relatively trivial in the context of general criminal law may be quite serious in the context of [professional] practice.”
24. Finally, the Panel noted the principles of the case of GDC v Fleishmann  EWHC 87 (Admin) which provides that where a registrant has been convicted of a serious criminal offence and is still serving a sentence at the time the matter comes before a panel, normally that panel should not allow a registrant to resume unrestricted practice until that sentence has been satisfactorily completed. Although the Panel understands that the Registrant has been released on licence in March 2020, his sentence of 15 months’ imprisonment is still ongoing and therefore it should not allow him to resume unrestricted practice without very good reasons.
The Panel’s decision
25. The Panel first considered whether the acts which led to the allegation were remediable. It concluded that they were – a Registrant convicted of offences relating to child pornography and dishonesty could, with appropriate reflection, come to an understanding of why he had committed such offences and thereafter develop insight into his personality together with appropriate strategies to prevent repetition.
26. The Panel next considered whether the Registrant had taken remedial action. The Panel noted that it had heard nothing from the Registrant about his reasons for offending or whether he had reflected upon his wrongdoing, despite having been given several months to consider his position and to develop insight into why he committed the offences. It therefore concluded that the Registrant had not taken any steps to remediate his wrongdoing.
27. Finally, the Panel considered whether the acts or omissions were likely to be repeated and whether the Registrant had developed insight by (i) accepting that his behaviour fell below professional standards, understanding how and why it occurred and the consequences for those affected; and (ii) could demonstrate that he had taken action to address his failures in a manner which remedied any past harm (where that was possible) and avoided any future repetition.
28. The Panel noted that the Registrant had pleaded “not guilty” to the offences but had been found guilty after a trial. It further noted that the Registrant had indicated that he had lodged an appeal. Leaving aside the fact that no evidence of such appeal (or of any outcome) has been provided by the Registrant to the Panel, if the appeal was against conviction as opposed to just the sentence imposed upon him, this would suggest that the Registrant was still denying his culpability and therefore had developed little or no insight into his offending. Moreover, the Panel considered that, even if the Registrant still maintained his innocence, it would still expect some reflection on, for instance, the seriousness of such matters (child pornography by itself is particularly serious, but in this case the Registrant compounded the original offending by engaging in deliberate and calculated dishonesty in attempting to create alibis for himself) and what damage such a conviction would do to his profession, but nothing has been forthcoming.
29. Consequently, the Panel was of the view that the Registrant (since he had not produced any evidence of reflection or insight about what he had done) had not developed any, let alone sufficient, insight to persuade the Panel that he had fully remediated his wrongdoing or that there was little or no risk in him repeating his offending. Accordingly, the Panel concluded that the Registrant was currently impaired in respect of the personal component.
30. In relation to the public interest component, the Panel considered that the Registrant’s convictions were in any event of such seriousness that the need to declare and uphold professional standards and maintain public confidence in the profession would be undermined if a finding of impairment were not made in these circumstances. Biomedical Scientists have a responsibility to set an example and committing such offences required a significant marker to be set down to remind the Registrant and other members of the profession that such behaviour is unacceptable and, in this particular instance, reprehensible, given the combination of criminal offences as referred to above. A right-minded member of the public, with full knowledge of all of the circumstances, would be extremely concerned if a finding of current impairment were not made. Moreover, the Panel noted that the Registrant’s sentence of imprisonment was still ongoing and therefore in any event it would be inappropriate for it to make a finding that the Registrant was not impaired.
31. The Panel therefore concluded that the Registrant is impaired in relation to both the personal and public components.
Decision on Sanction
32. In reaching its decision on sanction the Panel took account of Ms Hastie’s submissions, the Sanctions Policy (“SP”) document (bearing in mind that it is a guide and no more) and the advice of the Legal Assessor, which it accepted. The Panel was mindful that the purpose of sanctions is not to be punitive, although they may have that effect. It appreciated that the primary purpose of any sanction is to address public safety from the perspective of the risk which the Registrant concerned may pose to those who use or need his services. It noted, however, that in reaching its decision, the Panel must also give appropriate weight to the wider public interest, which includes: the deterrent effect to other registrants; the reputation of the profession concerned; and public confidence in the regulatory process. In addition, the Panel noted that it must act proportionately, which requires it to strike a balance between the interests of the public and those of the Registrant.
33. The Panel noted Ms Hastie’s submissions. She drew the Panel’s attention to some parts of the SP and advised the Panel that there had been no previous concerns about the Registrant’s fitness to practise. Ms Hastie concluded by submitting that this was a case where the choice of sanction was most likely at the upper end.
Particular matters referred to in the Sanctions Policy
34. The Panel considered it appropriate to note initially some of the specific guidance in the SP. In relation to Dishonesty, the SP stated:
“56. The Standards of conduct, performance and ethics require registrants to be honest and trustworthy (Standard 9). Dishonesty undermines public confidence in the profession and can, in some cases, impact the public’s safety.
57. Dishonesty, both in and outside the workplace, can have a significant impact on the trust placed in those who have been dishonest, and potentially on public safety. It is likely to lead to more serious sanctions. The following are illustrations of such dishonesty:
• putting false information in a service user’s record (including in an attempt to cover up misconduct or a lack of competence);
• providing untruthful information in job applications (perhaps misleading the prospective employer about experience, training or skills gained);
• using medicines, devices or services meant for service users;
• fraud, theft or other financial crime.
58. Given the seriousness of dishonesty, cases are likely to result in more serious sanctions. However, panels should bear in mind that there are different forms, and different degrees, of dishonesty, that need to be considered in an appropriately nuanced way. Factors that panels should take into account in this regard include:
• whether the relevant behaviour took the form of a single act, or occurred on multiple occasions;
• the duration of any dishonesty;
• whether the registrant took a passive or active role in it;
• any early admission of dishonesty on the registrant’s behalf; and
• any other relevant mitigating factors.”
35. The Panel pauses there to note that: the Registrant’s dishonesty took place on multiple occasions over a period of months; he took an active role in it, creating a false web of information in order to attempt to provide him with alibis to cover up his initial offence of viewing and downloading child pornography; he denied (and apparently continues to deny) that he had been dishonest; and he has not advanced any mitigating factors – indeed, the only suggestion of mitigation came from the sentencing Judge, namely that the Registrant wished to spare his family the shame and embarrassment of him possessing pornographic images of children (His Honour Judge Taylor stating: “This is a personal tragedy for you and your family, and will continue to affect those that - whom you love very, very hard”.).
36. In relation to the issue of Possessing indecent images of children, the SP states:
“87. Under the Protection of Children Act 1978 it is illegal to take, make, distribute, show or advertise indecent images of children.
88. The courts categorise offences relating to indecent images of children based on the nature of the images and the offender’s degree of involvement in their production.
89. Any offence relating to indecent images of children involves some degree of exploitation of a child, and so a conviction for such an offence is a very serious matter. In particular, it undermines the public’s trust in registrants and public confidence in the profession concerned and is likely to lead to a more serious sanction”.
37. Finally, in relation to the Registrant being on the Sex Offenders’ database, the SP clarifies the position as follows:
“85. Although inclusion on the sex offenders’ database is not a punishment, it does serve to protect the public from those who have committed certain types of offences. A panel should normally regard it as incompatible with the HCPC’s obligation to protect the public to allow a registrant to remain in or return to unrestricted practice while they are on the sex offenders’ database.
86. Where the panel deviates from this approach, it should provide clear reasoning.”
Mitigating and Aggravating factors
38. In the absence of the Registrant, the Panel took account of what mitigating factors it felt able to identify. The Registrant was an experienced and senior Biomedical Scientist in haematology and blood transfusion. There was no information before the Panel to suggest that the Registrant was not of previous good character in regulatory terms.
39. However, the Panel also noted the following aggravating features and in particular:
• The fact that the Registrant’s offending in relation to the indecent images of children was persistent and took place over a number of years and resulted in over 11,000 images/films being downloaded by him;
• the fact that his initial offending was compounded by a deliberate and sustained attempt over a number of months to cover his tracks by creating a false web of information to suggest that he could not have accessed pornographic images/films at various times;
• The lack of any demonstration of insight by the Registrant into his failings;
• His failure to accept any, let alone full, responsibility for those actions, exemplified by his dishonest attempts to create alibis;
• The lack of evidence of any remediation;
• The Registrant’s lack of any appreciation as to how his actions potentially affected others, particularly: the children whose images he accessed and downloaded, who would likely have been sexually abused in the production of such images/films; or his profession;
• The lack of any expressions of remorse or any apology; and
• The lack of any testimonials or references.
Consideration of Sanction
40. Given the seriousness of the misconduct and the aggravating factors the Panel took the view that this was not a case that could be appropriately dealt with without a sanction. The Panel therefore went on to consider the various sanctions, beginning with the least onerous. The Panel first considered the sanction of Mediation and concluded that it was not appropriate - the matter was too serious to be resolved in this way.
41. The Panel next considered a Caution Order, which is deemed to be appropriate where:
“the issue is isolated, limited, or relatively minor in nature; there is a low risk of repetition; the registrant has shown good insight; and the registrant has undertaken appropriate remediation…A caution order should be considered in cases where the nature of the allegations mean that meaningful practice restrictions cannot be imposed, but a suspension of practice order would be disproportionate.”
42. Once again, the Panel considered that the Particulars found proved were so serious that such a sanction would be insufficient to address the Panel’s concerns in relation to the public interest grounds. In any event, the factors listed above which otherwise would support a Caution Order being made did not apply to the Registrant – for instance: the issues were not isolated; they were not relatively minor in nature; there was not a low risk of repetition; the Registrant had not shown insight; and there was no evidence of remediation. The Panel therefore concluded that such a sanction would be neither appropriate nor proportionate.
43. The Panel then considered the next most onerous sanction, that of a Conditions of Practice Order. The Panel noted paragraph 106 of the SP which sets out when a Conditions of Practice Order is suitable, but concluded that paragraphs 107 and 108 are more applicable to this case. Those paragraphs state:
“107. Conditions will only be effective in cases where the registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so. Therefore, conditions of practice are unlikely to be suitable in cases in which the registrant has failed to engage with the fitness to practise process or where there are serious or persistent failings.
108. Conditions are also less likely to be appropriate in more serious cases, for example those involving:
• sexual abuse of children or indecent images of children…; [and]
• criminal convictions for serious offences;…
109. There may be circumstances in which a panel considers it appropriate to impose a conditions of practice order in the above cases. However, it should only do so when it is satisfied that the registrant’s conduct was minor, out of character, capable of remediation and unlikely to be repeated. The panel should take care to provide robust reasoning in these cases.”
44. In particular, the Panel considered that the Registrant’s conduct was not “minor” and the Panel had already found that it was likely to be repeated in the absence of any remediation. Furthermore, there was no evidence before the Panel to suggest that the Registrant would comply with any conditions imposed upon his practice and therefore the Panel was led to the conclusion that, against the background of his non-engagement with these proceedings, it is unlikely that the Registrant would be willing or able to comply with any conditions.
45. Finally, the Panel was not satisfied that a Conditions of Practice Order would adequately reflect the seriousness of the Registrant’s misconduct. The Panel next considered imposing an order of Suspension.
46. The Panel noted the following paragraphs of the SP:
“121. A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:
• the concerns represent a serious breach of the Standards of conduct, performance and ethics;
• the registrant has insight;
• the issues are unlikely to be repeated; and
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”
47. However, the Panel doubted that paragraph 121 applied to the Registrant’s case since (given that the Allegation was “a serious breach of the Standards…”) it could not be said that the Registrant had insight or that the issues were …unlikely to be repeated”; and there was no evidence that he was likely to be able to resolve or remedy his failings, given his lack of engagement and the Panel’s previous findings on Impairment.
48. The Panel appreciated that a Suspension Order would provide the necessary level of public protection for its duration, but the Panel considered that, in the light of the background of the Registrant’s non-participation in the hearing, it had no real confidence that allowing the Registrant further time for reflection and remediation would likely achieve the desired result. It noted that he had already had a year since his conviction in which to consider his situation and demonstrate remediation, or a willingness to remediate, but had apparently not changed his position of continuing to deny his offending.
49. As such, the Panel finds that a Suspension Order would be neither proportionate nor appropriate in the circumstances of the case. In addition, the Panel considered that it would not be sufficient to maintain public confidence in the regulatory process or the profession.
50. The Panel therefore considered the sanction of Striking Off. It noted the following paragraphs of the SP:
“130. A striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving (this list is not exhaustive):
• sexual abuse of children or indecent images of children…; [and]
• criminal convictions for serious offences…
131. A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:
• lacks insight;
• continues to repeat the misconduct or, where a registrant has been suspended for two years continuously, fails to address a lack of competence; or
• is unwilling to resolve matters”.
51. The Panel finds that the Registrant’s behaviour is fundamentally incompatible with continued registration. It takes account of the fact that it would be in the public interest to retain an otherwise apparently competent and experienced Biomedical Scientist, but considers that his actions fall into the provisions of paragraphs 130 and 131, in particular his persistent lack of insight and apparent unwillingness to resolve matters. Accordingly, having reminded itself of the need to act proportionately, nonetheless the Panel is led to the conclusion that a Striking Off Order is the appropriate sanction in this case.
52. In addition, the Panel also concludes that a properly informed and fair minded person would consider the Registrant’s criminal activities to be amongst the most serious and any sanction less than a Striking Off Order would seriously undermine their confidence in the profession and in the regulatory process. The Panel also considers it essential to send a clear message to the profession that such reprehensible and odious behaviour such as that shown by the Registrant will not be tolerated.
The Registrar is directed to strike the name of Mr Andrew Sandrasagra from the Register on the date this order comes into effect
Application for Interim Order
Having determined to conclude this case by imposing a Striking Off Order on the Registrant, the Panel heard an application by Ms Hastie for an Interim Suspension Order for 18 months (to cover any appeal period).
Application to proceed in absence
However, before asking the Panel to consider such an application Ms Hastie reminded the Panel that she had to make a further application to proceed in the Registrant’s absence, in accordance with the Practice Note on Interim Orders, which stated:
“If the registrant is absent, the HCPC will first have to make, and the Panel will have to determine, whether to proceed in the registrant’s absence with the HCPC’s application for an interim order and the HCPC will need to show that the registrant has been given notice that an application may be made. Such notice may be contained within the Notice of Final Hearing. As before, the overriding statutory objective of protecting the public and the wider public interest will weigh heavily in favour of an application to proceed in absence, particularly when the Panel has made a finding that fitness to practise is impaired.”
Ms Hastie pointed out that the Registrant had been advised in the Notice of Hearing letter dated 2 June 2020 that such an application might be made if the Panel imposed a sanction which removed his right to practise, which the Striking Off Order did. She went on to say that the basis of the application to proceed in the Registrant’s absence was the same as for the identical application that she had made at the commencement of the hearing, with the additional factor that the Panel had now found the facts proved and had determined that the Registrant should be struck off.
The Panel heard and accepted the advice of the Legal Assessor, who repeated his advice given at the commencement of the hearing. The Panel also had regard once more to the HCPC Practice Note entitled “Proceeding in the absence of the Registrant”.
The Panel decided to proceed in the Registrant’s absence. It noted that he had been given appropriate notice of the possibility of an Interim Order being applied for, such being an important part of what the Panel was required to do. Moreover, the Panel had now found all of the allegations against the Registrant proved and had determined that his fitness to practise was impaired and that he should be made the subject of a Striking Off Order. Accordingly, for the same reasons as previously indicated, which included the Panel’s earlier finding that the Registrant had voluntarily absented himself from the hearing, the Panel decided to proceed in his absence when considering the application for an Interim Order.
Application for Interim Suspension Order
Ms Hastie submitted that such an order was necessary on both public protection and public interest grounds on the basis that the Panel had found that the Registrant was currently impaired due to his being convicted of serious offences involving dishonesty and child pornography and had considered that he should be made subject to a Striking Off Order since it had concluded that, at the very least, the public interest required that had acted in such a serious manner that the ultimate sanction had to be imposed upon him.
The Panel accepted the advice of the Legal Assessor, who referred it to paragraphs 133 to 135 of the SP, which state:
“What is an interim order?
133. If a panel imposes a conditions of practice order, suspension order, or striking off order, Article 31 of the Order provides the panel with the discretionary power to also impose an interim conditions of practice order or an interim suspension order. This will apply from the imposition of the substantive order, until the end of the appeal period, or where an appeal is made, the end of the appeal process.
When is an interim order appropriate?
134. The power to impose an interim order is discretionary, and so panels should not consider it to be an automatic outcome. The panel should carefully consider whether or not an interim order is necessary and should provide the parties with an opportunity to address the panel on whether an interim order is required.
135. An interim order is likely to be required in cases where:
• there is a serious and ongoing risk to service users or the public from the registrant’s lack of professional knowledge or skills, conduct, or unmanaged health problems; or
• the allegation is so serious that public confidence in the profession would be seriously harmed if the registrant was allowed to remain in unrestricted practice.”
The Panel took account of the Practice Note on Interim Orders and first considered whether an interim order was necessary. It noted that the Registrant had not practised as a Biochemical Scientist for 20 months since he had been made subject to an Interim Suspension Order on 12 December 2018. Moreover, it had found that he was currently impaired due to his Convictions. The Panel was therefore satisfied that there was a serious and on-going risk to service users or the public and that for the same reasons public confidence in the profession or the regulatory process would be seriously harmed if the Registrant was allowed to remain in unrestricted practice.
Having determined that an interim order was necessary, the Panel then considered the appropriate form of that order, beginning with the least restrictive. It first considered whether an Interim Conditions of Practice Order would be sufficient to protect the public, meet the wider public interest and be in the Registrant’s own interests. For the same reasons as given when deciding not to impose a substantive Conditions of Practice Order on the Registrant (which included the Panel’s concerns about the Registrant being willing or able to comply with such an order) the Panel decided that such an Interim Order would not be appropriate to manage the risks identified by the Panel and that it would be perverse to impose an order inconsistent with the substantive order of Striking Off.
The Panel therefore concluded that an Interim Suspension Order was the appropriate and proportionate order. It also determined that it should be for a period of 18 months since, if there was an appeal, the substantive order would not come into effect.
History of Hearings for Mr Andrew Sandrasagra
|Outcomes / Status
|Conduct and Competence Committee