Mr Elliot J Clarke

Profession: Radiographer

Registration Number: RA37020

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 25/08/2020 End: 17:00 25/08/2020

Location: Hearing taking place virtually

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

Allegations as found proven at the Final Hearing;

Whilst registered with the Health and Care Professions Council as a Radiographer:

1. On 31 October 2017 at Cardiff and the Vale of Glamorgan Magistrates Court you were convicted of:

On 30 September 2017 at McDonalds Restaurants LTD, Pencoed Business Park, Pencoed, Bridgend drove a motor vehicle on a road namely m4 motorway between junction 33 and 35, after consuming so much alcohol that the proportion of it in your breath exceeded the prescribed limit contrary to section 5(1)(a) of Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.

2. By reason of your conviction, your fitness to practise as a Radiographer is impaired.

Finding

Preliminary Matters at 10am
Service
1. The Panel heard that Notice in respect of this hearing was sent by email to the Registrant’s registered email address on 21 July 2020 in accordance with Rules 3 and 13 of the HCPC’s Conduct and Competence Procedure Rules 2003 and the Covid 19 virus HCPC interim procedural provisions. It stated the date, time, method and nature of today’s hearing. The Panel heard and accepted the advice of the Legal Assessor. The Panel determined that the Notice had been served in accordance with the Rules.

Proceeding in the Absence of the Registrant:
2. The Panel noted that the Registrant was not present or represented from 10am to 11.30am (see below). The Panel first considered whether it ought to exercise its discretion to continue with the hearing in the absence of the Registrant.

3. It noted that the Registrant had engaged with this process by email on 7 August 2020, when he informed the HCPC that: “I will be attending my substantive review hearing…..I will be in touch shortly to go through a few more details.”

4. The Registrant again contacted the HCPC on 24 August 2020 by email asking where the link to Microsoft Teams, the video platform for this hearing, was for the hearing today. He asked for another date to be fixed for this hearing. This was not responded to by the HCPC until today, 25 August 2020, the day of the hearing, when the Hearings Officer noticed that he had been in touch the day before. His email was read out to Panel and it stated that he was “keen to attend” his Review hearing and asked for another date in the very near future for this hearing as he wished to prepare for the hearing. The Registrant expressed that he was “very worried that something had gone wrong.” To that end, the Hearings Officer emailed the Registrant at 08.56 hours today, sending him the calendar invitation to Teams and her telephone number, the formal calendar invitation being sent at 9.03 hours today.

5. At 09.52 hours the Hearings Officer telephoned the Registrant’s landline number and, receiving no reply, left a message with her contact number. She telephoned him again on his landline number at 10.13 hours and there was no reply. She did not leave another message. The HCPC had only been provided by the Registrant with his landline telephone number.

6. The Panel had heard a submission from Mr D’Alton on proceeding in absence and also had accepted the Legal Assessor’s advice. Whilst the Panel was in camera deciding on whether or not to proceed in the absence of the Registrant, he contacted the HCPC by telephone. The Panel abandoned its deliberations into Proceeding in Absence and ordered the hearing to re-commence.

7. After a suitable delay to prepare all parties for the full Review hearing, the Panel was able to re-commence the hearing again in the presence of the Registrant who partook fully in it by telephone.

Proceeding in Private
8. The Panel heard an application from Mr D’Alton, supported by the Registrant, for the hearing to be held partly in private to preserve the private and family life of the Registrant under Rule 10(1)(a) of the HCPC’s procedural Rules. The Panel accepted the advice of the Legal Assessor. The Panel determined to hold the hearing in public, but to go into private when the need arose, when hearing about the Registrant’s private and family life, so as to preserve his right to confidentiality about his health and family.
 
The Allegation
Whilst registered with the Health and Care Professions Council as a Radiographer:

1. On 31 October 2017 at Cardiff and the Vale of Glamorgan Magistrates Court you were convicted of:

On 30 September 2017 at McDonalds Restaurants LTD, Pencoed Business Park, Pencoed, Bridgend drove a motor vehicle on a road namely m4 motorway between junction 33 and 35, after consuming so much alcohol that the proportion of it in your breath exceeded the prescribed limit contrary to section 5(1)(a) of Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.

2. By reason of your conviction, your fitness to practise as a Radiographer is impaired.

Background
9. The Registrant is a Radiographer. He was employed by Abertawe Bro Morgannwg University Health Board (the Board) in the Cardiac Catheter Lab at Morriston Hospital (the Hospital) and had been working there since 2002.

10. On 30 September 2017 the Registrant was arrested for driving a motor vehicle with excess alcohol. On the 31 October 2017 at Cardiff and Vale of Glamorgan Magistrates Court, the Registrant pleaded guilty to the following offence:

On 30 September 2017 at McDonalds Restaurants LTD, Pencoed Business Park, Pencoed, Bridgend drove a motor vehicle on a road namely m4 motorway between junction 33 and 35, after consuming so much alcohol that the proportion of it in your breath exceeded the prescribed limit contrary to section 5(1)(a) of Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.

11. The Registrant was sentenced to 3 months’ immediate custody, disqualified from driving for 49 months and 21 days and ordered to pay a victim surcharge and costs.

12. The Registrant referred his conduct to the HCPC in an email dated 23 October 2017 in which he set out the circumstances leading to the offending and expressed regret and remorse. The Registrant also referred to two previous convictions. These were confirmed by the HCPC’s further enquiries, which revealed that the Registrant had been convicted on two previous occasions of driving with excess alcohol on 25 July 2003 and 22 December 2014. The Registrant had self-referred his 2014 conviction to the HCPC in January 2015, but had not self-referred on the first offence. The Registrant had been dismissed as a result of the 2017 conviction from his employment at the Board and Hospital.

13. A substantive HCPTS hearing took place on 27 August 2019 and that Panel found the facts proved on the grounds of the 31 October 2017 conviction. That Panel also found that the Registrant’s fitness to practise as a Radiographer was impaired.  It imposed a sanction of a Suspension Order of 12 months and an Interim Suspension Order of 18 months to cover any appeal period.

14. The substantive Panel’s findings on Impairment:
Decision on Impairment
The Panel then had to consider whether the Registrant’s fitness to practise is currently impaired, in light of the Registrant’s conviction, having regard to the HCPTS Practice Note ‘Finding that Fitness to Practise is Impaired’ and the Practice Note on “Conviction and Caution Allegations’. The Panel’s task is to determine whether the Registrant’s fitness to practise is impaired, based upon the nature, circumstances and gravity of the offence.
The Panel is mindful of the forward looking test for impairment and the need to take account of public protection in its broadest sense, including whether the Registrant’s actions bring the professional concerned into disrepute or may undermine public confidence in the profession.
The Panel heard submissions on the issue of impairment from the HCPC. It was submitted on behalf of the HCPC that the Registrant’s fitness to practise is impaired on both the public and private components of impairment, based on the following factors:
(a)The high level of alcohol in the Registrant’s breath at the time of the offence;
(b)The fact that the Registrant has been convicted on 3 separate occasions for this offence;
(c)The Registrant has not attended the final hearing. The Panel has therefore seen only very limited evidence of insight and remediation, and there remains a risk of repetition.
The Panel, after reviewing all the evidence in this case, and the advice from the Legal Assessor, has concluded that the Registrant’s fitness to practise was impaired both at the time of the offence and remains currently impaired, after considering both the personal and public components.
In reaching its decision, the Panel regarded the offence as being serious. There was evidence in the Memorandum of Conviction that the Registrant posed a risk to the public at the time of the offence. His driving was described as “shocking” and demonstrated an “unacceptable standard of driving, aggravated by passengers in vehicle.” This was behaviour which fell significantly short of that which the public is entitled to expect from a Radiographer.
Although the Registrant pleaded guilty in his referral email to the HCPC, he sought to minimise the seriousness of his behaviour by comparing it to violence or sexual misconduct, rather than focusing on a full admission of his responsibility for his actions.
Although the Registrant in his email apologised and expressed remorse for his actions the Panel had no further detailed evidence about any steps the Registrant had taken to address the circumstances that led to the offence. The Panel noted that the Registrant’s offending behaviour appeared to be escalating with repeat convictions for driving with excess alcohol.
The Registrant has not engaged in these proceedings and the Panel has not seen any significant evidence of insight or remediation. The Panel concluded that there remained a very high risk of repetition.
The Panel’s overall conclusion, in relation to the personal component of impairment, was that the Registrant’s current fitness to practise is impaired, having regard to the seriousness of the offence and the lack of evidence of insight and/or remediation.
In relation to the public component, it is clear that the public’s perceptions of the Registrant’s actions would have been negative and they have harmed the reputation of both his employer and the profession as a whole.
The Panel concluded that the Registrant had breached a fundamental tenet of the profession of being a Radiographer and has brought the profession into dispute. In concluding that the public component of impairment is clearly established, the Panel also had regard to the need to uphold the proper standards of behaviour. The Panel concluded that confidence in the profession and the regulatory process would be undermined if there was no finding of impairment, given the seriousness of the offence.
The substantive Panel’s decision on Sanction:
The Panel has heard submissions on sanction on behalf of the HCPC. It has paid regard to the HCPC’s Indicative Sanctions Policy and has accepted the advice of the Legal Assessor. The Panel had particular regard to the principle of proportionality and the need to strike a careful balance between the protection of the public and the rights of the Registrant.
The Panel has also reminded itself that the purpose of fitness to practise proceedings is not to punish registrants but to protect the public. The primary function of any sanction is to address public safety. However, Panels should also have regard to wider public interest and this includes the deterrent effect to other registrants, the reputation of the profession concerned and public confidence in the regulatory process.
The Panel has had regard to the aggravating and mitigating circumstances in this case. It determined that the aggravating features are:
(a)The seriousness of the criminal offence of which the Registrant was convicted and, in particular, the risk caused to others whilst driving with excess alcohol;
(b)The fact that this was the Registrant’s third conviction for driving with excess alcohol;
(c)The lack of evidence of reflection, insight or remediation;
(d)The lack of engagement in these proceedings;
(e)The Registrant has not taken on board the Learning Point imposed by a panel of the Investigating Committee in 2015 for driving with excess alcohol.
The Panel has concluded that the mitigating features are:
(a)The Registrant pleaded guilty in the criminal case, which this hearing concerns;
(b)The Registrant appears to have had a previous unblemished employment record and there are no clinical concerns;
(c)There is some evidence (albeit limited) that the Registrant has expressed remorse and evidence of personal shame and embarrassment, at his offending behaviour.
In light of the above factors the Panel determined that, given the nature of the Registrant’s conviction, that to take no action, make a Caution Order or a Conditions of Practice Order, would not be in the public interest, and would not retain public confidence in the regulatory process or have the necessary deterrent effect on other registrants. The Panel further concluded that public confidence in the profession would be undermined by imposing any of these sanctions, given the seriousness of the conviction.
In addition, the Panel was unable to identify any suitable or workable conditions which could be imposed, in light of the Registrant’s offending behaviour and his lack of engagement in these proceedings.
The Panel next considered whether to make a Suspension Order, and concluded that this was an appropriate sanction to both protect the public and to address the wider public interest concerns which the Panel identified. The Panel considered that the incident was serious but concluded that the identified failings are potentially capable of being remediated in the future.
The Panel further determined that the Suspension Order should be imposed for a period of 12 months, in light of the Registrant’s limited insight and the extent to which he had fallen short of appropriate professional standards. The Panel considered that the maximum period of suspension was appropriate to mark the seriousness of the behaviour.
Having arrived at an appropriate and necessary sanction, the Panel concluded that to impose the more restrictive sanction of a Striking Off Order would be unnecessarily punitive and disproportionate at this stage. The Panel noted that striking off should be reserved for cases where there is no other way to protect the public and at this time the Panel determined that an adequate level of public protection could be achieved by the lesser sanction of a Suspension Order.
Whilst in no way seeking to bind any future review Panel, this Panel anticipates that the following matters are likely to be of assistance to any future reviewing Panel:
(a) The Registrant’s attendance at the hearing and engagement with the regulatory process;
(b) A written document/reflective piece of writing regarding the Registrant’s insight into his previous offending behaviour and its impact on the profession and on the public and how a repeat of any such behaviour might be avoided in the future;
(c) References and testimonials from any paid or voluntary work that the Registrant has undertaken.
ORDER: That the Registrar is directed to suspend the registration of Mr Elliot J Clarke for a period of 12 months from the date this order comes into effect.
The substantive Panel’s decision on an Interim Order:
Proceeding with the application in the Registrant’s absence
Mr Bridges made an application for an interim order to be made in the absence of the Registrant.
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 sent to him on 21 May 2019, that such an application might be made, and he did not respond. Furthermore, there are no additional factors which would justify deviating from the Panel’s decision to proceed in the absence of the Registrant at the outset of this hearing. In these circumstances, the Panel was satisfied that (i) the Registrant had voluntarily chosen not to participate in these proceedings, (ii) no useful purpose would be served by adjourning consideration of the HCPC’s application and (iii) as a substantive order has been imposed, there is public interest in ensuring that an interim order application is considered as expeditiously as possible.
Decision on Interim Order:
The HCPC made an application for an immediate Interim Suspension Order on the grounds of public protection and the wider public interest.
The Panel was mindful that when a substantive sanction is imposed, a Registrant’s entitlement to practise is unrestricted whilst their appeal rights against the substantive sanction remain outstanding. The Panel concluded that in view of its determination that a substantive Suspension Order should be imposed, it would not be appropriate for the Registrant to return to practice unrestricted given the lack of insight and remediation and the ongoing risk of repetition. Accordingly, the Panel determined that the Registrant’s registration should be suspended on an interim basis. An Interim Suspension Order is necessary to protect the public and to uphold trust and confidence in the profession and the regulatory process.
1. The Panel took the view that the wider public interest far outweighs the Registrant’s personal and professional interests and that an interim order is proportionate because of the risks posed in the interim period.
2. The Panel concluded that the appropriate length of the Interim Suspension Order should be 18 months, as the interim order would continue to be required pending the resolution of an appeal in the event that the Registrant submits a Notice of Appeal within the 28-day period.
3. Therefore, the Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. This Order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

15. The Registrant’s case was reviewed on 10 July 2020.
The first Review Panel’s decisions (PRIVATE):
Impairment:
Ms Ktisti submitted that the Registrant’s submissions in his email dated 7 July 2020, while demonstrating some level of insight, are lacking in depth and that there is no supporting evidence to demonstrate his remediation. Ms Ktisti submitted that the email indicates a rushed approach and without substantive evidence to demonstrate that he has remediated the concerns, the Registrant remains impaired on the basis of the personal and public components. Ms Ktisti submitted that the Panel should confirm the Suspension Order.
The Panel took into account the Registrant’s submissions in his email dated 7 July 2020, as well as an email dated 29 March 2020 in which he requested an early review. The Panel took into account the Registrant’s expression of remorse and regret and his taking of full responsibility of his actions. The Panel noted that the Registrant seeks to ensure public confidence in him.
The Panel was of the view that the Registrant has demonstrated some insight in his email dated 7 July 2020. However, this is expressed in a cursory and brief way without any real and meaningful reflection on the impact of his conviction on the confidence of the public and the profession. With the Registrant being absent, the Panel has been unable to test his assertions by hearing from him in oral evidence.
The Panel was of the view that it would have been helped by detailed information as to the circumstances surrounding, and reasons for, the Registrant’s offending, whether those reasons still exist as issues in the Registrant’s life, and evidence of what steps has been taken address those issues. At this stage of these regulatory proceedings, there is an onus on the Registrant to provide evidence demonstrating that he has made progress to address the findings made against him at the previous hearing. In addition, the Panel took into account that the 2017 conviction was the third received by the Registrant for driving with excess alcohol.
In his email of 7 July 2020, the Registrant refers to a health issue, describes himself as being “in a much better position” and refers to ongoing treatment which may change in the near future following a conversation he anticipates having with his GP. The Panel has no detailed or independent information regarding this health condition nor how it may impact on his use of alcohol.
The Panel noted that the Registrant states that he has been taking steps to keep his professional knowledge and skills up to date. However, there is no independent record of this or any reference given from the Radiographer with whom he says he has been in contact, to give some detail of his efforts.
The Panel was of the view that the 2017 conviction was serious, and that it raised issues which led to concerns regarding the Registrant’s judgement which led him to drive while having consumed excess alcohol. His good judgment is what patients and the public would expect of him as a registered professional. The lack of evidence of sufficient insight or remediation did not address such concerns.
The Panel did take into account in the Registrant’s favour that there is no indication that there has been any further similar conviction since 2017. However, in light of the lack of evidence of sufficient insight or remediation, the Panel was of the view that there was a real risk of repetition of the behaviour which led to the conviction.
The Panel therefore decided that in light of the above factors, the Registrant’s fitness to practise remains impaired in respect of the personal component.
The Panel was also of the view that in light of the seriousness of the conviction, and its circumstances, and the lack of sufficient evidence of insight and remediation, the need to uphold proper professional standards, and to maintain public confidence in the profession, would be undermined if a finding of impairment were not made.
The Panel therefore found that the Registrant’s fitness to practise remains impaired in respect of the personal and public components.
Sanction:
The Panel next went on to consider sanction, and took into account the Sanctions Policy (SP). The Panel bore in mind that sanction is a matter for its own independent judgment, and that the purpose of a sanction is not to punish the Registrant. Any sanction must be proportionate, so that it is the least restrictive order necessary to protect the public interest.
The Panel first considered taking no action. The Panel concluded that, in view of the nature and seriousness of the Registrant’s conviction, it would be inappropriate to take no action. It would be insufficient to maintain public confidence and uphold the reputation of the profession. The Panel concluded that a Caution Order would be inappropriate and insufficient to meet the public interest for the same reasons.
The Panel next considered a Conditions of Practice Order. However, the Panel decided that conditions would be insufficient to meet the public interest concerns in this case in light of the seriousness of the conviction, and the lack of evidence of sufficient insight and remediation.
The Panel next considered a Suspension Order and considered para. 121 of the SP which states as follows
“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.”
The Registrant has shown only limited insight. There remains a real risk
of repetition of the conduct which led to the conviction.
However, he has expressed remorse and regret, he wishes to uphold the public confidence in him, and has a desire to return to the profession. There has also been no further conviction for driving with excess alcohol since the last hearing. In the circumstances, the Panel decided that it would be proportionate and appropriate to confirm the Suspension Order. For the same reasons, the Panel decided that a Striking Off Order would be disproportionate and punitive at this time.
In coming to this decision on Sanction, the Panel took into account the issue of proportionality, as well as the fact that confirming the Suspension Order will prevent the Registrant from practising and may have a financial and reputational impact on him. However, the Panel was of the view that the need to uphold the wider public interest outweighed his interests in this regard.
The Panel further concluded that in the absence of the Registrant who appears to be unrepresented and unadvised with regard to these proceedings, it would be unfair for the Panel to use its powers to extend the current order. The HCPC has not sought an extension of the current order at this time.
Accordingly, the Panel confirmed that it should confirm the existing Suspension Order of 12 months which is due to expire on 24 September 2020. The order will be subject to a mandatory review hearing before its expiry.
The Panel was of the view that a future review Panel would be assisted by the following:
i. the Registrant’s attendance;
ii. a written reflection dealing with the Registrant’s insight into his previous offending behaviour, the circumstances of his offending, its impact on the public, patients and the profession, and what steps he has taken to ensure it will not be repeated;
iii. any references or testimonials from previous professional colleagues dealing with his previous conduct while carrying out work as a Radiographer;
iv. any references or testimonials concerning any other more recent work, whether paid or unpaid;
v. a report from the Registrant’s GP or other treating professional dealing with his health, use of alcohol, treatment received and prognosis.
Order: The Panel decided to confirm the current Suspension Order pursuant to Article 30(2) and (4) of the 2001 Order.

Decision
Impairment
16. The Panel took into consideration the submissions of Mr D’Alton and the oral evidence of the Registrant. In reaching its decisions the Panel also noted the contents of the HCPTS Practice Note ‘Finding that Fitness to Practise is Impaired’. The Panel’s task is to determine whether the Registrant’s fitness to practise is impaired, based upon the nature, circumstances and gravity of the offence. The Panel was mindful of the forward looking test for impairment and the need to take account of public protection in its broadest sense, including whether the Registrant’s actions bring the professional concerned into disrepute or may undermine public confidence in the profession, and balance that against the Registrant’s own interest in being declared fit to practise.

17. The Panel accepted the Legal Assessor’s advice.

18. The Panel noted that Mr D’Alton submitted that the Registrant remained impaired on the grounds that, although he had now engaged with the process and given evidence, that evidence fell short of what was required to maintain public protection and the wider public interest. He stated that the Registrant had failed to implement the recommendations provided to him on two previous occasions at the substantive hearing and at the first Review hearing and despite written reminders with emphasis that Mr D’Alton himself had emailed to the Registrant. In light of that, it was contended that there remained a risk of reputation and therefore, the public remained at risk of harm and public confidence in the profession would remain undermined. Thus, he asked that the Panel should find that the Registrant remained impaired today.

19. The Registrant gave evidence that he was now at a stage in his life when the problems that led to his offending had gone away and that he was happy and in the right frame of mind to be able to resume practice. He expressed regret and remorse, apologising on a number of occasions for his failings and the conviction and that he now recognised that he had brought his profession and himself from the perspective of the public, into disrepute. He was deeply regretful of that but wanted to look forward and offer himself to the Panel for judgement. He loved, and was passionate about, his job in the Cath Lab and was anxious to prove himself to his wider family and return to practice again. His health and personal problems, he felt, had resolved and he had returned to a more consistent and clearer state of mind.

20. The Panel found the Registrant’s evidence to be genuine and compelling. It determined that, although it had been hard for him to do what he did today, he should be given credit for having made that first move back into the process, both by attending and by giving oral evidence to the Panel. He was cross examined and asked questions by the Panel and was able to provide some insight and information about his circumstances at the time and since the conviction. He referred to a Superintendent Radiographer at his former employer who would be able to inform the Panel that he had been a highly capable practitioner prior to this events. Unfortunately, she was not in attendance and/or had not provided any written reference to that effect.

21. Nevertheless, this Panel regarded the conviction as serious, coming, as it did, after two previous similar ones spanning 14 years. There was evidence in the Memorandum of Conviction of the 2017 conviction that the Registrant had posed a risk to the public at the time of the offence. His driving was described as “shocking” and demonstrated an “unacceptable standard of driving, aggravated by passengers in vehicle.” In this Panel’s judgement, the Registrant’s behaviour at the time fell significantly short of that which the public was entitled to expect from a Radiographer. By his conviction, he had breached several of the fundamental tenets of the profession.

22. The Panel noted that, although previously the Registrant had been found to have minimised the seriousness of his behaviour, nevertheless this Panel found no evidence today of that attitude towards his conviction. The Panel has balanced the previous panels’ conclusions against the Registrant’s positive appearance today at this hearing and the evidence that he gave.

23. Notwithstanding that, the Panel has had no reassurance from the Registrant in his oral evidence today or in writing that the underlying health condition (if it was underlying) has now been addressed so as to remove any risk of repetition of the convictions. The time gap between the first, second and third convictions gave the Panel considerable concern about the potential, in the future, for the Registrant to repeat this type of behaviour if under stress, such as he experienced around 2017 in relation to his personal and family life. The Registrant was unable to give any meaningful strategy or measures that he could take to avoid such conduct in the future should he be put in any stressful situation again. The reliance that he referred to on his close family belied the fact that it was his relationship within that dynamic that had caused this misconduct on this occasion. In addition, any reliance he would have on his General Practitioner, to whom he referred in his oral evidence today, has not been borne out by a written report on the Registrant’s health condition from that person, and as recommended by two previous Panels. Thus, the Panel has no confidence in the Registrant’s reassurances that his coping mechanisms would actually work in the future.

24. In light of the lack of evidence from the Registrant to demonstrate any meaningful remediation and/or medical evidence of a commencement of that through any medical or other treatment, the Panel concluded that the Registrant continues to lack the required level of insight and, thus, there remains a high risk of repetition.

25. However, the Panel was able to conclude that the Registrant has made some inroads into remediation by his attendance at this hearing today and his genuine oral evidence. It was clear to the Panel that the Registrant should be given credit for that. In short, he has commenced his journey to remediation. Whether he achieves full remediation in time will be a matter entirely for the Registrant to demonstrate, as the burden for so doing is upon him, and has been since the substantive hearing.

26. It was also clear to the Panel that, having been out of the profession for a considerable period of time, it would be necessary for the Registrant to be fully up to date and to be demonstrably able to resume practice, so as not to be a risk to health, safety and well being of the public. The Panel had no written evidence from the Registrant of the reading and updating that he stated in his oral evidence that he had been doing since these events and the imposition of the Suspension Order. Thus, the Panel could only conclude that, in addition to the other remediation that the Registrant would be required to show, he would also need to provide that evidence and reassurance. In the Panel’s judgement, therefore, the Registrant remains a risk to the public.

27. Furthermore, it was clear to this Panel that an informed member of the public would be concerned if this Panel declared the Registrant fit to practise, in light of the seriousness and recidivist nature of the facts of the conviction, the breach of a fundamental tenet of the profession, the lack of full insight and full remediation of the Registrant and the harm to the reputation of his former employer, the profession as a whole and to himself. The Panel also had regard to the need to uphold the proper standards of behaviour. The Panel concluded that confidence in the profession and the regulatory process would be undermined if there was a finding of impairment.

28. Therefore, for these reasons, the Panel has determined that the Registrant’s current fitness to practise is impaired on the grounds of protection of the public and in the wider public interest.

Sanction
29. In reaching its decision on sanction, the Panel accepted the Legal Assessor’s advice and took into account the HCPC’s SanctIons Policy (SP).

30. The Panel accepted that sanction is a matter for its own independent judgment, and that the purpose of a sanction is not to punish the Registrant. Any sanction must be proportionate, so that it is the least restrictive order necessary to protect the public interest.

31. The Panel first considered taking no action. The Panel concluded that, in view of the nature and seriousness of the Registrant’s conviction, it would be inappropriate to take no action. With no restrictions on practice, this outcome would be insufficient to maintain public confidence and uphold the reputation of the profession. The Panel also concluded that a Caution Order would be inappropriate and insufficient to meet the public interest for the same reasons.

32. The Panel next considered a Conditions of Practice Order. However, the Panel decided that conditions would be insufficient to meet the public interest concerns in this case in light of the seriousness of the conviction, and the lack of evidence of sufficient insight and remediation. It would also not be a relevant sanction at this time, due to the lack of information and reassurance about the clinical skills and knowledge now of the Registrant; he has not worked as a Radiographer for a considerable period of time

33. The Panel next considered a Suspension Order and considered paragraph 121 of the SP which states as follows:

" 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.”

34. The Registrant has shown only limited insight, and, as stated, there remains a real risk of repetition of the conduct which led to the conviction.

35. Whilst the Panel noted that the Registrant has expressed remorse and regret, that he wished to uphold the public’s confidence in him, and that he expressed a desire to return to the profession, there is no evidence before the Panel to suggest that this will come to fruition until he provides a greater level of insight, so as to provide meaningful and reassuring remediation evidence.

36. The Panel has some concerns that the Registrant has been given opportunities and advice about what is required to be shown to demonstrate full remediation and, therefore, fitness to practise. Notwithstanding that, the Registrant has, once again, failed to step up to the plate and provided the necessary safeguards and reassurances with evidence to support any contention. In the Panel’s judgement, the Registrant has continued to fail to take on the full implications of his conviction, and one which has been repeated from past very similar conduct.

37. The Panel was of the view that it was only at the very end of the hearing in his final submission that the Registrant gave evidence that he knew what was required of him on the next occasion, expressed regret at not having provided it today and said that he now understood that, his prior firm belief, that the oral evidence alone would suffice, was mistaken. The Panel took some considerable reassurance from this statement.

38. In the circumstances, the Panel determined that the fairest and most proportionate and appropriate sanction would be to further extend the Suspension Order from 24 September 2020 for a period of 3 months. This period of time will give the Registrant time to gather his remediation evidence, whilst also allowing the trend towards full remediation, that he has commenced today, to continue without faltering. It also allows any future Panel to ascertain if the Registrant can, or is able to, meet the requirements for his full remediation.

39. For the same reasons, the Panel decided that a Striking Off Order would be disproportionate and punitive at this time.

40. Accordingly, under Article 30(1)(a) of the Consolidated Health Professions Order 2001, the Panel confirms that it further extends the existing Suspension Order by 3 months which is due to expire on 24 September 2020. The Order will be subject to a mandatory review hearing before its expiry.

41. The Panel recommends that a future review panel might find the following useful for its consideration:
i. the Registrant’s attendance again, by any remote means suitable for him, unless he is informed by the HCPC that in-person hearings have resumed, when he should try to attend in person;
ii. a written reflection dealing with the Registrant’s insight into his previous offending behaviour, the circumstances of his offending, its impact on the public, patients and the profession, and what steps he has taken to ensure it will not be repeated;
iii. any references or testimonials from previous professional colleagues dealing with his previous conduct while carrying out work as a Radiographer;
iv. any references or testimonials concerning any other more recent work, whether paid or unpaid;
v. a report from the Registrant’s GP or other treating professional dealing with his health, treatment received and prognosis;
vi. Written evidence of any updating reading and research undertaken by the Registrant, in the form of copies of journals, etc, and screen shots of any online research undertaken by the Registrant.

42. The Registrant should endeavour to send copies of all written documents (keeping the originals himself) into the HCPC in good time before the next review hearing.

Order

The Registrar is directed to suspend the registration of Mr Elliot J Clarke for a further period of 3 months on the expiry of the existing order.

Notes

The Order imposed today will apply from 24 September 2020.

This Order will be reviewed again before its expiry on 24 December 2020

Hearing History

History of Hearings for Mr Elliot J Clarke

Date Panel Hearing type Outcomes / Status
25/08/2020 Conduct and Competence Committee Review Hearing Suspended
10/07/2020 Conduct and Competence Committee Review Hearing Suspended
27/08/2019 Conduct and Competence Committee Final Hearing Suspended